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Reassessing the Essential Role of Public Courts: Learning from the American Experience

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Transformation of Civil Justice

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 70))

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Abstract

Over the years, the United States has introduced different alternative dispute resolution mechanisms, thus ‘outsourcing’ some of the court’s tasks. The ADR movement was a reaction to costly and lengthy proceedings the United States was coping with. It is doubtful whether such ‘outsourcing’ indeed routinely saves time and money and contributes to the public goals of civil justice. This contribution describes the evolution of American civil procedure, thereby explaining the issues that the American civil justice system has faced over the years and mechanisms which have been identified and chosen to fight those challenges. This experience is a lesson to other countries trying to reach the same goals.

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Notes

  1. 1.

    See generally de Tocqueville (1835).

  2. 2.

    28 U.S.C. § 1652 provides that ‘the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States.’

  3. 3.

    Swift v. Tyson, 41 U.S. 1 (1842).

  4. 4.

    Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

  5. 5.

    See Marcus (1989, 778–782) (discussing what could be lost if the American system shifted to reliance on written materials submitted to the judge rather than relying on the in-court presentation of live witnesses before a jury).

  6. 6.

    Conley v. Gibson, 355 U.S. 41 (1957). This case announced the ‘slightest doubt’ standard for dismissal on the pleadings that was ‘retired’ by the Supreme Court in its decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The case was about discrimination by a southern union against its African American members. For a discussion of the case, see Sherwin (2008).

  7. 7.

    Hollander v. American Cyanamid Co., 895 F.2d 80, 84–85 (2d Cir. 1990).

  8. 8.

    See Brown v. Plata, 131 S.Ct. 1910 (2011).

  9. 9.

    Rahman v. Chertoff, 530 F.3d 622, 626 (7th Cir. 2008), criticizing the suit as ‘a relic of a time when the federal judiciary thought that structural injunctions taking control of executive functions were sensible. That time is past.’

  10. 10.

    See generally Burbank et al. (2013).

  11. 11.

    For an extensive review of this development, see Farhang (2010).

  12. 12.

    Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 263 (1975).

  13. 13.

    For discussion, see Rubenstein (2004).

  14. 14.

    See Gilson (1990, 899–903); Kronman (1993, 290) (lamenting the declining ability of lawyers to influence or guide their clients in making business decisions, as opposed to facilitating decisions the clients made without lawyer guidance).

  15. 15.

    For a discussion of the changes between 1975 and 1995, see Marcus (1998).

  16. 16.

    Private Securities Litigation Reform Act, Pub. L. 104–67, 109 Stat. 737, 1995.

  17. 17.

    Class Action Fairness Act, Pub. L. 109-2, 119 Stat. 4–14, 2005.

  18. 18.

    See Executive Office of the President (2013).

  19. 19.

    See Innovation Act of 2015, H.R. 9, 114th Cong., 1st. Sess.

  20. 20.

    See Fairness in Class Action Litigation Act of 2017, H.R. 985. The House of Representatives passed this bill in March 2017. It is uncertain whether the Senate will also pass it.

  21. 21.

    For discussion of the legislation, see Marcus (2018).

  22. 22.

    For discussion, see Marcus (2013).

  23. 23.

    For an argument to this effect, see Marcus (2003).

  24. 24.

    See, e.g., Resnik (1982).

  25. 25.

    See Miller (2003).

  26. 26.

    See Marcus (1989).

  27. 27.

    For a general discussion of these issues, see Marcus (2013b, 2015b).

  28. 28.

    See Redish and Marshall (1984).

  29. 29.

    See, e.g., 28 U.S.C. 455.

  30. 30.

    See Marcus (1993) for discussion of judicial discipline.

  31. 31.

    See Musalo et al. (2011, 990, 991), reporting that as a result of ‘streamlining’ of administrative decisions ‘federal court judges began to receive and directly review the decisions of the immigration judges’ and ‘began to express shock, dismay, and incredulity at both the quality of the legal decision-making, as well as the abusive and unprofessional behavior of the judges in the treatment of the applicants before them.’

  32. 32.

    H & B Hardware v. Hargis Industries, 135 S.Ct. 1293, 1303 (2015): ‘[I]ssue preclusion is not limited to those situations in which the same issue is before two courts. […] [B]ecause the principle of issue preclusion was so “well established” at common law, in those situations in which Congress has authorized agencies to resolve disputes, “courts may take it as given that Congress has legislated with the expectation that the principle of issue preclusion will apply except when a statutory purpose to the contrary is evident.”’

  33. 33.

    For an in-depth review of the campaign that removed three justices from the Supreme Court of California in 1986, see Grodin (1989).

  34. 34.

    See Stolberg (1992), reporting that in 1970, then-Los Angeles Superior Court Judge Alfred Gitelson was defeated for election after ‘a campaign that focused almost totally on his controversial order to desegregate the Los Angeles School System.’

  35. 35.

    Caperton v. A.T. Massey Coal Co, 556 U.S. 868 (2009), holding that under the ‘extreme facts’ of the case the US Constitution required that the state court justice be recused.

  36. 36.

    Davey (2015); see also Smith (2015) (reporting that the challenger seeking a position on the Wisconsin Supreme Court in an election asserted that the incumbent justice was motivated by ‘extreme liberal personal politics’).

  37. 37.

    See Williams-Yulee v. Florida Bar Ass’n, 135 S.Ct. 1656 (2015), upholding discipline imposed on a judge for personally soliciting campaign donations from lawyers who might appear in the judge’s court.

  38. 38.

    For an example, see Shaffer and Mcthenia (1985).

  39. 39.

    See Cal. Civil Code 4607(a).

  40. 40.

    Ohio Civil Rights Comm’n v. Dayton Christian Schools, 477 U.S. 619 (1986).

  41. 41.

    See Fed. R. Civ. P. 16(b) (permitting the judge to require that parties attend pretrial conferences ‘to consider possible settlement’) and 16(c)(2)(I) (authorizing considering of ‘settling the case and using special procedures to assist in resolving the dispute’).

  42. 42.

    See 28 U.S.C. § 651.

  43. 43.

    See Rice (1996); Steinman (1985).

  44. 44.

    Doe v. Archdiocese of Portland, 249 F.R.D. 358 (D. Ore. 2008).

  45. 45.

    Doe v. Merten, 219 F.R.D. 387 (E.D. Va. 2004).

  46. 46.

    Coca-Cola Bottling Co. v. Coca-Cola Co., 107 F.R.D. 288, 290 (D. Del. 1985).

  47. 47.

    Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 258 (7th Cir. 1976).

  48. 48.

    For one criticism, see Marcus (1983).

  49. 49.

    See Murray and Stürner (2004, 182): ‘Case records in civil cases in Germany are not open to the public, either before or after judgment. The parties and their counsel are entitled to free access to the official records of their cases, but others may look at case records only with the consent of the parties involved or by order of the chief judge of the court upon a showing of some legitimate interest in so doing.’ Contrast Japan: ‘As a general matter, the court records of a case in Japan are public records just as the trial itself is a public event. Any person may seek to review the records of a case’ (Goodman 2004, 341).

  50. 50.

    See Fed. R. Civ. P. 5.2.

  51. 51.

    That is not to say that all businesses shy away from arbitration. For example, an article reported that many law firms prefer arbitration for legal malpractice claims. See Rogers (2015). But one lawyer interviewed for the article had a counter example that sounds as though it shows that arbitration can be just as costly as in-court litigation, if not costlier: ‘She described an ongoing “runaway arbitration” in which the arbitrator has held 70 days of hearings over two years and has issued more than 500 “partial interim” orders. … “It’s a nightmare.”’

  52. 52.

    See text accompanying ns. 28–32 above.

  53. 53.

    United States Arbitration Act, Pub. L. 68-401, 43 Stat. 883, codified at 9 U.S.C. §§ 1–10.

  54. 54.

    For discussion of ‘the private enforcement puzzle’ in evaluating American class actions, see Marcus (2016).

  55. 55.

    American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013).

  56. 56.

    The whole issue of using special masters, Fed. R. Civ. P. 53, and other representatives of the court to achieve institutional reform is beyond the scope of this paper. Suffice it to say that such activity is itself ‘private’ in some senses, and that something like it could probably be constructed through private ADR.

  57. 57.

    On this score, consider the advent of ‘collaborative divorce’ efforts to persuade divorcing spouses to agree not to seek contested court hearings, disclose all relevant financial information, and generally refrain from acting in a manner detrimental to the future relationship of the parties. For a description, see Herman (2001).

References

  • Bar B (2007) Some attorneys questioning advantages of arbitration. New York Law J, 17 May 2007

    Google Scholar 

  • Barkoff R (2007) Is the bloom off the rose of alternative dispute resolution? Franchise Update, 4 Dec 2007. http://www.franchise-update.com/articles/335. Accessed 7 June 2018

  • Brunet E (1987) Questioning the quality of alternative dispute resolution. Tulane Law Rev 62:1–56

    Google Scholar 

  • Burbank S, Subrin S (2011) Litigation and democracy: Reassessing a realistic prospect of trial. Harvard Civ Rights-Civ Liberties Law Rev 46:399–414

    Google Scholar 

  • Burbank S, Farhang S, Kritzer H (2013) Private enforcement. Lewis & Clark Law Rev 17:637–722

    Google Scholar 

  • Carrington P (1979) Adjudication as a private good: a comment. J Legal Stud 8:303–318

    Article  Google Scholar 

  • Cavanagh E (2015) Federal civil litigation at the crossroads: reshaping the role of the federal courts in twenty-first century dispute resolution. Oregon Law Rev 93:631–685

    Google Scholar 

  • Chayes A (1976) The role of the judge in public law litigation. Harvard Law Rev 89:1281–1316

    Article  Google Scholar 

  • Davey M (2015) Concerns grow as court races draw big cash. New York Times, 28 March 2015

    Google Scholar 

  • de Tocqueville A (1835) Democracy in America

    Google Scholar 

  • Drahozal C, Wittorck Q (2008) Is there a flight from arbitration? Hofstra Law Rev 37:71–116

    Google Scholar 

  • Edwards H (1986) Alternative dispute resolution: Panacea or Anathema? Harvard Law Rev 99:668–684

    Article  Google Scholar 

  • Eisenberg T, Miller G (2007) The flight from arbitration: an empirical study of ex ante arbitration clauses in the contracts of publicly held companies. DePaul Law Rev 56:335–374

    Google Scholar 

  • Executive Office of the President (2013) Patent Assertion and U.S. Innovation, Washington, D.C

    Google Scholar 

  • Farhang S (2010) The litigation state. Princeton University Press, Princeton and Oxford

    Book  Google Scholar 

  • Feldman N (2010) Scorpions: the battles and triumphs of FDR’s great supreme court justices. Random House, New York

    Google Scholar 

  • Fiss O (1979) Foreword: the forms of justice. Harvard Law Rev 93:1–58

    Article  Google Scholar 

  • Fiss O (1984) Against settlement. Yale Law J 93:1073–1092

    Article  Google Scholar 

  • Galanter M, Palay T (1991) Tournament of lawyers. University of Chicago Press, Chicago

    Google Scholar 

  • Garth B (1993) From civil litigation to private justice: legal practice at war with the profession and its values. Brooklyn Law Rev 59:931–960

    Google Scholar 

  • Garth B (1998) The worlds of civil discovery: from studies of cost and delay to the markets in legal services and legal reform. Boston Coll Law Rev 39:597–612

    Google Scholar 

  • Gilson R (1990) The devolution of the legal profession: a demand side perspective. Maryland Law Rev 49:869–916

    Google Scholar 

  • Goodman C (2004) Justice and civil procedure in Japan. Oceana Publications, Dobbs Ferry, New York

    Google Scholar 

  • Grodin J (1989) In pursuit of justice: reflections of a state supreme court justice. University of California Press, Berkeley

    Google Scholar 

  • Herman G (2001) Collaborative divorce: a short overview. Divorce Litigation 4:68–79

    Google Scholar 

  • Hodges C, Benöhr I, Creutzfeldg-Banda N (2012) Consumer ADR in Europe. Hart Publishing, Oxford & Portland

    Google Scholar 

  • Kronman A (1993) The lost lawyer. Harvard University Press, Cambridge

    Google Scholar 

  • Landes WZ, Posner R (1979) Adjudication as a private good. J Legal Stud 8:235–284

    Article  Google Scholar 

  • Lee J (2002) Dirty laundry: online for all to see. New York Times, 5 Sept 2002

    Google Scholar 

  • Lieberman J, Henry J (1986) Lessons from the alternative dispute movement. Univ Chicago Law Rev 53:424–439

    Article  Google Scholar 

  • Luban D (1995) Settlements and the erosion of the public realm. Georgetown Law J 83:2619–2651

    Google Scholar 

  • Marcus R (1983) Myth and reality in protective order litigation. Cornell Law Rev 69:1–75

    Google Scholar 

  • Marcus R (1989) Completing equity’s conquest? Reflections on the future of trial under the federal rules of civil procedure. Univ Pittsburgh Law Rev 50:725–788

    Google Scholar 

  • Marcus R (1993) Who should discipline federal judges, and how? Fed Rules Decis 149:375–434

    Google Scholar 

  • Marcus R (1998) Discovery containment redux. Boston Coll Law Rev 39:747–784

    Google Scholar 

  • Marcus R (2003) Reining in the American litigator: the new role of American judges. Hastings Int Comp Law J 27:3–30

    Google Scholar 

  • Marcus R (2013a) Bomb throwing, democratic theory, and basic values—a new path to procedural harmonization. Northwest Univ Law Rev 107:475–510

    Google Scholar 

  • Marcus R (2013b) Procedure in a time of austerity. Int J Procedural Law 3:133–158

    Google Scholar 

  • Marcus R (2014) Looking backward to 1938. Univ Pennsylvania Law Rev 162:1691–1730

    Google Scholar 

  • Marcus R (2015a) Once more into the breach? Further possible amendments to Rule 23. Judicature 99:57–66

    Google Scholar 

  • Marcus R (2015b) A genuine civil justice crisis. XVth international association of procedural law world congress. Onikilevha, Istanbul, pp 27–54

    Google Scholar 

  • Marcus R (2016) Bending in the breeze: American class actions in the 21st century. DePaul Law Rev 65:497–534

    Google Scholar 

  • Marcus R (2018) Evolution v. Revolution in class action reform. North Carolina Law Rev (in press)

    Google Scholar 

  • Marlow L (1985) The rule of law in divorce mediation. Mediation Q 9:5–13

    Article  Google Scholar 

  • McEwen C, Maiman R (1984) Mediation in small claims court: achieving compliance through consent. Law SocRev 18:11–50

    Article  Google Scholar 

  • Menkel-Meadow C (1995) Whose dispute is it anyway? A philosophical and democratic defense of settlement (in some cases). Georgetown Law J 83:2663–2696

    Google Scholar 

  • Millar R (1952) Procedure in the trial court in historical perspective. Law Center of New York University, New York

    Google Scholar 

  • Miller A (2003) The pretrial rush to judgment: are the ‘litigation explosion,’ ‘liability crisis,’ and efficiency clichés eroding our day in court and jury trial commitments? New York U Law Rev 78:982–1134

    Google Scholar 

  • Mnookin R, Kornhauser L (1979) Bargaining in the shadow of the law: the case of divorce. Yale Law J 88:950–997

    Article  Google Scholar 

  • Murray P, Stürner R (2004) German civil justice. Carolina Academic Press, Durham

    Google Scholar 

  • Musalo K, Moore J, Boswell R (2011) Refugee law and policy: a comparative and international approach. Carolina Academic Press, Durham

    Google Scholar 

  • O’Shea J (2005) Private judges keep divorce quiet. San Francisco Recorder, 13 Jun 2005

    Google Scholar 

  • Peckham R (1985) A judicial response to the cost of litigation: case management, two-stage discovery planning and alternative dispute resolution. Rutgers Law Rev 37:253–278

    Google Scholar 

  • Pildes R (2014) Romanticizing democracy, political fragmentation, and the decline in American Government. Yale Law J 124:804–852

    Google Scholar 

  • Pound R (1906) The causes of popular dissatisfaction with the administration of justice. Rep Am Bar Assoc 29:395–417

    Google Scholar 

  • Redish M, Marshall L (1984) Adjudicatory independence and the values of procedural due process. Yale Law J 95:455–505

    Article  Google Scholar 

  • Resnik J (1982) Managerial judges. Harvard Law Rev 96:374–448

    Article  Google Scholar 

  • Resnik J (2014) Reinventing courts as democratic institutions. Daedalus 143(3):9–27

    Article  Google Scholar 

  • Rice C (1996) Meet John Doe: is it time for federal civil procedure to recognize John Doe parties? Univ Pittsburgh Law Rev 57:883–958

    Google Scholar 

  • Rogers J (2015) Firms like arbitration for malpractice claims, but it’s not without downsides, experts say. Bloomberg BNA Class Action Litigation Rep 16:292

    Google Scholar 

  • Rubenstein W (2004) On what a ‘private attorney general’ is—and why it matters. Vanderbilt Law Rev 57:2129–2173

    Google Scholar 

  • Said C (2014) When arbitration causes frustration. San Francisco Chronicle, 13 Jan 2014

    Google Scholar 

  • San Francisco Chronicle (2015) Abuse of law. San Francisco Chronicle, 13 April 2015

    Google Scholar 

  • Shaffer T, Mcthenia A (1985) For reconciliation. Yale Law J 94:1661–1705

    Google Scholar 

  • Sherwin E (2008) Precedent by accident: the story of Conley. In: Clermont K (ed) Civil procedure stories, 2d edn. Thomson/Foundation Press, New York, pp 295–322

    Google Scholar 

  • Smith M (2015) Partisanship a worry in Wisconsin supreme court election. New York Times, 6 April 2015

    Google Scholar 

  • Steinman J (1985) Pseudonymous parties: when should litigants be permitted to keep their identifies confidential? Hastings Law J 37:1–90

    Google Scholar 

  • Sterngold J (1992) Japan’s rigged Casino. New York Times, 26 April 1992

    Google Scholar 

  • Stolberg S (1992) Politics and the judiciary coexist, but often uneasily. Los Angeles Times, 21 Mar 1992

    Google Scholar 

  • Strom S (2014) General Mills reverses itself on consumers’ right to sue. New York Times, 20 April 2014

    Google Scholar 

  • Survey of Civil Justice in New York (1931) Institute of law, Johns Hopkins University

    Google Scholar 

Download references

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  1. Hastings College of the Law, University of California, San Francisco, USA

    Richard Marcus

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  1. Faculty of Law, University of Zagreb, Zagreb, Croatia

    Alan Uzelac

  2. Faculty of Law, Maastricht University, Maastricht, The Netherlands

    Cornelis Hendrik (Remco) van Rhee

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Marcus, R. (2018). Reassessing the Essential Role of Public Courts: Learning from the American Experience. In: Uzelac, A., van Rhee, C. (eds) Transformation of Civil Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 70. Springer, Cham. https://doi.org/10.1007/978-3-319-97358-6_10

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