The recent legislation imposing restraints on suits under the securities laws by private persons was no quibble over the level of fact pleading. It was a decision by Congress that enforcement of the securities laws was excessive in ways that it wished to curb. It is apparent that the marriage of substance and procedure may affect the perception of what is discovery abuse, at least with the large civil cases which appear to be generating the problems with discovery. Naked rules are seldom the culprit in discussions among trial lawyers of how well the federal trial courts are operating how fair and how efficient. The debate inevitably includes various practices that fall within a broad range of management choices lying largely within judicial discretion.
Discovery is a good example.
The discussion will turn to establishing a cut off date for discovery, setting an early and firm trial date, or at least a firm trial date, and access of judges for rulings on matters of discovery. All provide a larger matrix of legal culture in which the rules lie in a given jurisdiction. This is important because the study of rules and empirical research informing that study must embrace this culture. This play of local legal culture is a limit to the ideal of geographical if not substantive uniformity. Its introduction of more variation taxes the need for a baseline.