Recasting Complaints: An Argument for Procedural Alternatives

In the time that has passed since the academic debate regarding "substance-specific" procedure reform that took place during the 1980's and 1990's, numerous changes in the civil procedure landscape targeted at specific substantive categories of litigation have either been formally adopted in the Federal Rules of Civil Procedure or judicially adopted, despite the continuing trans-substantive premise of the Rules.This Article suggests that increased tailoring of procedure to specific cases may be inevitable and that reformers could better approach such tailoring by creating alternative non-exclusive procedural mechanisms, rather than by adapting existing procedure to the "type" of case in a mandatory fashion.This approach, modeled after the variety of "special statutory proceedings" that currently exist in state law, would encourage and allow reformers to avoid political conflict and the inevitable unintended consequences of containerizing lawsuits into litigation categories like the "product liability case."The approach might also help address some of the other concerns of critics of substance-specific procedure, such as the threat of a return to technical rules of common law pleading.