Emory Law Journal


The story of American federal civil litigation over the past half century is one of exodus and of transformation¿exodus from and transformation of the traditional model of ¿court litigation.¿ The exodus has taken various paths, especially contractual arbitration. Arbitration has become mandatory for claims by consumers and employees. In approving this expansion, the Supreme Court increasingly makes clear that it sees nothing special about court litigation¿that it and arbitration are mechanisms of equal dignity. Courts today are less often fora for public adjudication and law generation than monuments to mediation. Litigants not cajoled into settlement are hustled through a front-loaded process focused increasingly on adjudication without trial. The driving force of both the exodus from court litigation and its transformation is the perception of excessive caseload. There are not enough Article III judges to do the job in accord with the historical model. Thus, the Court and drafters of the Federal Rules have pursued two safety valves: getting disputes out of the courts and streamlining litigation to foster pretrial resolution. They have pursued exodus and transformation.