Miyoko Pettit-Toledo (University of Hawaii at Manoa - William S. Richardson School of Law) has posted THE POLITICS OF PROPORTIONALITY IN STATE CIVIL RULEMAKING (Denver Law Review, Volume 101, Issue 3, pp. 641-718) on SSRN. Here is the abstract:
In the wake of the 2015 amendments to the Federal Rules of Civil Procedure (FRCP)—particularly with the perceived constriction of discovery through the revised federal proportionality standard in Rule 26(b)(1)—a wave of critics quickly emerged. Some commentators highlighted how procedural reforms heightened barriers to accessing federal courts, sharply limited claim development through discovery, and impeded opportunities for trial. Others detailed well‑founded concerns about federal rulemakers’ potentially nefarious motivations, given their mostly conservative, Republican, pro‑corporate defense backgrounds. Still others rightly worried that the federal proportionality standard (with its six factors), when applied by certain federal judges, would potentially stifle discovery, thereby disproportionately harming disempowered plaintiffs and inhibiting a fair and just resolution on the merits. A few scholars urged state courts to resist calls for uniformity and blind adoption of the federal proportionality standard.
Through the lens of a developing “Critical Procedure” framework, this Article provides an updated, more balanced assessment of these concerns and explores previously overlooked benefits of proportionality, with the goal of informing ongoing and future conversations among state rulemakers contemplating adoption of the 2015 federal proportionality standard. To ground these conversations, this Article offers the first systematic fifty‑state survey examining the states’ responses to the 2015 federal proportionality amendments. The Article also highlights recent trends and insights into rulemaking processes that reveal the complex shades of the politics of proportionality. The Article then argues that, although early critics of proportionality raised legitimate doubts about its efficacy, some of the initial predictions and critiques may have been overstated, and perhaps they were also simply effective in encouraging at least some federal judges to take a more cautious approach. In any event, the critiques also tended to obscure proportionality’s potential benefits. This Article clarifies and highlights these affirmative benefits, positing that they should be front and center in state rulemakers’ ongoing and future conversations. When properly understood and applied, proportionality principles can simultaneously balance power between asymmetrical parties, uplift the role of state court judges, and give a voice to vulnerable litigants. Indeed, the federal proportionality standard opens possibilities to realize and equalize access to justice to an even greater degree.
