Lewis & Clark Law Review
First Page
51
Abstract
We conventionally see pleading as liberalized, with leeway for inconsistent claims and expansive choice among theories of relief, or counts. Yet procedure scholars have shown how heightened pleading post-Twiqbal constricts liberality, turning us back toward 19th century fact-intensive code pleading. This Article theorizes a further constriction: proliferating and ossifying counts. While affording pleading latitude, doctrinal expansion forces hard strategy decisions and represents an inversion of the maxim that procedure shapes substance. Expansion increases system complexity, making localized strategy and discretion more impactful and amplifying opportunities for juridical manipulation. The result: doctrines complexifying toward a tipping point, beyond which we make frantic reforms to deal with inequities and other system failures.
Through this macroscale theory of doctrinal development, the Article makes several contributions. First, it parses the claim—the operative facts warranting judicial involvement in a dispute—from the count—the articulation of how a claim can be adjudicated. Second, the Article explains how over time substantive splits in doctrine become procedural hurdles requiring particularized allegations above and beyond a heightened factual showing and thus resembling traditional common law “forms of action.” Third, the Article situates doctrinal expansion within a multi-generational undulation between complexity and simplicity; infers as eventualities both doctrinal contraction and system failure; and proposes more routine system maintenance with respect to doctrinal splits in lieu of infrequent but intensive renovation. To work out these ideas, the Article engages critical civil procedure, law and social movements, law of democracy, complexity theory, and professional responsibility literatures, among others.
Recommended Citation
Kip M. Hustace,
Counting Is Hard! A Theory of Doctrinal Expansion,
28
Lewis & Clark L. Rev.
51
(2024).
Available at:
https://lawcommons.lclark.edu/lclr/vol28/iss1/3