Document Type


Publication Date

Fall 1985


When a federal court resolves equipoise in its effort to determine the contours of a litigant class created by an express private cause of action, the court should consider the control that the Federal Rules of Civil Procedure, taken as a whole, exercise on the conduct of litigation. With civil RICO as background, part II presents this thesis and discusses the circumstances in which procedural control would be an element supporting a determination *1481 that Congress created a broad litigant class. Implicit in the notion of equipoise is the threshold recognition that when a court engages in statutory interpretation, it exercises judgment that might affect the outcome and thus make law. This recognition did not come quickly or easily to mainstream jurisprudence, and even today the role of judgment in judicial decisionmaking is a subject of spirited public discussion. Part III surveys American legal thought about judicial decisionmaking from the early years of the Republic until judgment and judicial lawmaking won general recognition in this century. To amplify the Article's thesis, parts IV and V focus on civil RICO decisions that struggled to determine the litigant classes before the sharply divided Supreme Court spoke in Sedima. Part IV compares the courts' disparate determinations, which show how the sources of legislative meaning sometimes may be so contradictory or otherwise unilluminating that they leave a judge at equipoise. Part V isolates civil RICO procedural holdings to demonstrate the control that the Rules exercise on the conduct of litigation.



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