The Cardozo Law Review has published a special issue, inspired by a 2016 essay from Judge Marrero entitled The Costs of Rules, the Rule of Costs, focusing on the way modern practice and procedure have needlessly made litigation so expensive and slow. The special issue includes (among other things) a follow up article from Judge Marrero entitled Motion to Dismiss: A Dismissal of Rule 12(b)(6) and the Retirement of Twonbly/Iqbal, proposing various reforms, including severely limiting motions to dismiss that are aimed at the factual sufficiency of the allegations (as opposed to dispositive legal theories). Judge Marrero argues that the wastefulness that inspired the adoption of the Federal Rules in 1938 (which ushered in the simple, notice pleading standard) has reappeared in a different form in today’s practice:
The excessive formalism and quibbling of the pleading codes that characterized the federal courts’ previous procedural epoch has been supplanted by a contemporary version of excess. Today, extreme litigation is modeled on an updated measure of exorbitance. In practice, litigation excess now finds expression in other metrics: the greater complexity of claims, the longer delays in resolving cases, the prohibitive or disproportionate costs, the expedient posturing of lawyers, and the attendant waste and inefficiency associated with much federal court practice.
The issue also includes a transcript from a panel discussion that includes Second Circuit Chief Judge Katzmann, and Southern District Judges Preska, Rakoff, Koeltl and Berman, all of whom appear to agree to one degree or another about the need to improve the modern practice of federal civil litigation.