Main Reasons for the Crisis in the United States Civil Litigation in the Second Half of the Twentieth — Early Twenty-First Century

Abstract

In the 1970s and 1980s, a crisis of the judicial system (litigation explosion) broke out in the United States. It manifested itself in a multiple increase in the number of appeals to the courts, the duration of cases, and the legal expenses of the parties. Under the pressure of the idea of reducing the burden on the judicial system, the US civil procedure undergone changes. This paper is a part of a larger study of the nature of these transformations. Thus, the author analyzes the causes and factors that contributed to the development of this crisis. It is established that they are largely related to the sphere of civil procedure. In particular, these are features of the distribution of legal costs between the parties to the dispute — the so-called American rule, which does not impose the legal costs of the opponent on the losing party and therefore does not prevent the presentation of obviously unfounded claims (as in the case of the "loser pays" rule). The possibility of a contingency fee contract between the lawyer and the plaintiff, combined with other factors, led to the emergence of a huge industry based on damages, including class actions. The 1938 Federal Rules of Civil Procedure significantly simplified the requirements for a claim, which also contributed to an increase in the number of appeals. Abuse by the parties during the evidence disclosure procedure became a significant problem, since it is during this procedure that the parties incur the maximum costs. Identifying the factors that contributed to the development of the crisis will allow us to better understand the essence of the changes that the US civil procedure has undergone in recent decades.