732. Louis Kaplow, Multistage Adjudication, 09/2012; forthcoming In Harvard Law Review, 2013.
Abstract: Legal proceedings often involve multiple stages: U.S. civil litigation allows motions to
dismiss and for summary judgment before reaching a trial; government agencies as well as
prosecutors employ investigative and screening processes before initiating formal adjudication;
and many Continental tribunals move forward sequentially. Decisionmaking criteria have
proved controversial, as indicated by reactions to the Supreme Court's recent decisions in
Twombly and Iqbal and its 1986 summary judgment trilogy, which together implicate the four
Supreme Court cases most cited by federal courts. Neither jurists nor commentators have
articulated coherent, noncircular legal standards, and no attempt has been made to examine
systematically how decisions at different procedural stages should ideally be made in light of the
legal system's objectives. This Article presents a foundational analysis of the subject. The
investigation illuminates central elements of legal system design, recasts existing debates about
decision standards, identifies pathways for reform, and provides new perspectives on the nature
of facts and evidence and on the relationship between substantive and procedural law.