One central aspect of this debate of costs raises questions about what accounts for the problem. Among the explanations advanced, the huge burdens attributable to discovery procedures usually top the catalog of the law profession’s grievances.

No one can deny that many aspects of litigation today are expensive and time-consuming or that lawyers are at least partially to blame for that; some lawyers have never met a motion they don’t like to make, while others insist on leaving no stone unturned in discovery.

Battles over procedure occur on multiple levels. At the most granular level, litigants, usually through lawyers, use procedural tools to advance their interests in individual cases. At the most abstract level, the procedural rules we select are products of a complex balance of intersecting and competing interests.

Judge Marrero’s Article is no ordinary Law Review Article. To begin with, it is ninety pages in length, written with passion and intensity. Its title targets practicing lawyers, but its content, upon close examination, challenges all parts of the legal profession.

From the perspective of courts, lawyers, and litigants in 1938, the new Federal Rules of Civil Procedure (Federal Rules) set out to advance the noble goal of “promot[ing] efficiency and lower[ing] litigation costs.”

Among the central participants in commercial disputes—individuals or enterprises that become litigants, advocates, judges, court administrators, and the neutrals who are sometimes called in to help the parties negotiate resolutions—a near-consensus exists that resolving disputes generally costs too much and takes too long.

At a time when too many are offering simplistic solutions to difficult problems, Judge Marrero has tackled one of the most intractable contemporary legal conundrums in a way that recognizes its multiple dimensions and complex underlying causes.