Lumen N. Mulligan (University of Kansas Law School) & Emily Pennington (State of Kansas Court of Appeals) have posted Purposivist Reasoning in Federal Civil Procedure on SSRN. Here is the abstract:
This invited Article both reviews the Tenth Circuit’s stance on the circuit split addressing repleading counterclaims in amended answers and observes broader interpretive-approach trends in Federal Rules of Civil Procedure cases. In Sinclair Wyoming Refining Co. v. A & B Builders, Ltd., the Tenth Circuit holds that, absent prejudice to the opposing party, the failure to replead a counterclaim in an amended answer does not constitute abandonment; thus, taking the so-called permissive side of a circuit split on this question. In so doing, the Tenth Circuit adopts a purposivist approach to interpretation of the Federal Rules of Civil Procedure. In reviewing all of the Tenth and other circuits’ significant, published, 2021, Federal Rules of Civil Procedure cases, we conclude that the circuits deploy textualist reasoning less often for Rules issues than they do for other questions. In particular, we find that both the Tenth Circuit, at 1.9%, and the other circuits, at 1.8%, deployed textualist reasoning seldomly for Rules issues. Yet, in this same dataset of cases, the courts used textualist reasoning for non-Rules issues often: Tenth Circuit, at 23.1%, and the other circuits, at 21.3%. We also found the Tenth Circuit, at 1.9%, trailed the other circuits, at 5.3%, in the use of purposivist reasoning in Rules analyses.
Interesting and recommended.