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.
See generally de Tocqueville (1835).
- 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.
Swift v. Tyson, 41 U.S. 1 (1842).
- 4.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
- 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.
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.
Hollander v. American Cyanamid Co., 895 F.2d 80, 84–85 (2d Cir. 1990).
- 8.
See Brown v. Plata, 131 S.Ct. 1910 (2011).
- 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.
See generally Burbank et al. (2013).
- 11.
For an extensive review of this development, see Farhang (2010).
- 12.
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 263 (1975).
- 13.
For discussion, see Rubenstein (2004).
- 14.
- 15.
For a discussion of the changes between 1975 and 1995, see Marcus (1998).
- 16.
Private Securities Litigation Reform Act, Pub. L. 104–67, 109 Stat. 737, 1995.
- 17.
Class Action Fairness Act, Pub. L. 109-2, 119 Stat. 4–14, 2005.
- 18.
See Executive Office of the President (2013).
- 19.
See Innovation Act of 2015, H.R. 9, 114th Cong., 1st. Sess.
- 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.
For discussion of the legislation, see Marcus (2018).
- 22.
For discussion, see Marcus (2013).
- 23.
For an argument to this effect, see Marcus (2003).
- 24.
See, e.g., Resnik (1982).
- 25.
See Miller (2003).
- 26.
See Marcus (1989).
- 27.
- 28.
See Redish and Marshall (1984).
- 29.
See, e.g., 28 U.S.C. 455.
- 30.
See Marcus (1993) for discussion of judicial discipline.
- 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.
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.
For an in-depth review of the campaign that removed three justices from the Supreme Court of California in 1986, see Grodin (1989).
- 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.
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.
- 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.
For an example, see Shaffer and Mcthenia (1985).
- 39.
See Cal. Civil Code 4607(a).
- 40.
Ohio Civil Rights Comm’n v. Dayton Christian Schools, 477 U.S. 619 (1986).
- 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.
See 28 U.S.C. § 651.
- 43.
- 44.
Doe v. Archdiocese of Portland, 249 F.R.D. 358 (D. Ore. 2008).
- 45.
Doe v. Merten, 219 F.R.D. 387 (E.D. Va. 2004).
- 46.
Coca-Cola Bottling Co. v. Coca-Cola Co., 107 F.R.D. 288, 290 (D. Del. 1985).
- 47.
Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 258 (7th Cir. 1976).
- 48.
For one criticism, see Marcus (1983).
- 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.
See Fed. R. Civ. P. 5.2.
- 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.
See text accompanying ns. 28–32 above.
- 53.
United States Arbitration Act, Pub. L. 68-401, 43 Stat. 883, codified at 9 U.S.C. §§ 1–10.
- 54.
For discussion of ‘the private enforcement puzzle’ in evaluating American class actions, see Marcus (2016).
- 55.
American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013).
- 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.
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
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
Burbank S, Subrin S (2011) Litigation and democracy: Reassessing a realistic prospect of trial. Harvard Civ Rights-Civ Liberties Law Rev 46:399–414
Burbank S, Farhang S, Kritzer H (2013) Private enforcement. Lewis & Clark Law Rev 17:637–722
Carrington P (1979) Adjudication as a private good: a comment. J Legal Stud 8:303–318
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
Chayes A (1976) The role of the judge in public law litigation. Harvard Law Rev 89:1281–1316
Davey M (2015) Concerns grow as court races draw big cash. New York Times, 28 March 2015
de Tocqueville A (1835) Democracy in America
Drahozal C, Wittorck Q (2008) Is there a flight from arbitration? Hofstra Law Rev 37:71–116
Edwards H (1986) Alternative dispute resolution: Panacea or Anathema? Harvard Law Rev 99:668–684
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
Executive Office of the President (2013) Patent Assertion and U.S. Innovation, Washington, D.C
Farhang S (2010) The litigation state. Princeton University Press, Princeton and Oxford
Feldman N (2010) Scorpions: the battles and triumphs of FDR’s great supreme court justices. Random House, New York
Fiss O (1979) Foreword: the forms of justice. Harvard Law Rev 93:1–58
Fiss O (1984) Against settlement. Yale Law J 93:1073–1092
Galanter M, Palay T (1991) Tournament of lawyers. University of Chicago Press, Chicago
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
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
Gilson R (1990) The devolution of the legal profession: a demand side perspective. Maryland Law Rev 49:869–916
Goodman C (2004) Justice and civil procedure in Japan. Oceana Publications, Dobbs Ferry, New York
Grodin J (1989) In pursuit of justice: reflections of a state supreme court justice. University of California Press, Berkeley
Herman G (2001) Collaborative divorce: a short overview. Divorce Litigation 4:68–79
Hodges C, Benöhr I, Creutzfeldg-Banda N (2012) Consumer ADR in Europe. Hart Publishing, Oxford & Portland
Kronman A (1993) The lost lawyer. Harvard University Press, Cambridge
Landes WZ, Posner R (1979) Adjudication as a private good. J Legal Stud 8:235–284
Lee J (2002) Dirty laundry: online for all to see. New York Times, 5 Sept 2002
Lieberman J, Henry J (1986) Lessons from the alternative dispute movement. Univ Chicago Law Rev 53:424–439
Luban D (1995) Settlements and the erosion of the public realm. Georgetown Law J 83:2619–2651
Marcus R (1983) Myth and reality in protective order litigation. Cornell Law Rev 69:1–75
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
Marcus R (1993) Who should discipline federal judges, and how? Fed Rules Decis 149:375–434
Marcus R (1998) Discovery containment redux. Boston Coll Law Rev 39:747–784
Marcus R (2003) Reining in the American litigator: the new role of American judges. Hastings Int Comp Law J 27:3–30
Marcus R (2013a) Bomb throwing, democratic theory, and basic values—a new path to procedural harmonization. Northwest Univ Law Rev 107:475–510
Marcus R (2013b) Procedure in a time of austerity. Int J Procedural Law 3:133–158
Marcus R (2014) Looking backward to 1938. Univ Pennsylvania Law Rev 162:1691–1730
Marcus R (2015a) Once more into the breach? Further possible amendments to Rule 23. Judicature 99:57–66
Marcus R (2015b) A genuine civil justice crisis. XVth international association of procedural law world congress. Onikilevha, Istanbul, pp 27–54
Marcus R (2016) Bending in the breeze: American class actions in the 21st century. DePaul Law Rev 65:497–534
Marcus R (2018) Evolution v. Revolution in class action reform. North Carolina Law Rev (in press)
Marlow L (1985) The rule of law in divorce mediation. Mediation Q 9:5–13
McEwen C, Maiman R (1984) Mediation in small claims court: achieving compliance through consent. Law SocRev 18:11–50
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
Millar R (1952) Procedure in the trial court in historical perspective. Law Center of New York University, New York
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
Mnookin R, Kornhauser L (1979) Bargaining in the shadow of the law: the case of divorce. Yale Law J 88:950–997
Murray P, Stürner R (2004) German civil justice. Carolina Academic Press, Durham
Musalo K, Moore J, Boswell R (2011) Refugee law and policy: a comparative and international approach. Carolina Academic Press, Durham
O’Shea J (2005) Private judges keep divorce quiet. San Francisco Recorder, 13 Jun 2005
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
Pildes R (2014) Romanticizing democracy, political fragmentation, and the decline in American Government. Yale Law J 124:804–852
Pound R (1906) The causes of popular dissatisfaction with the administration of justice. Rep Am Bar Assoc 29:395–417
Redish M, Marshall L (1984) Adjudicatory independence and the values of procedural due process. Yale Law J 95:455–505
Resnik J (1982) Managerial judges. Harvard Law Rev 96:374–448
Resnik J (2014) Reinventing courts as democratic institutions. Daedalus 143(3):9–27
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
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
Rubenstein W (2004) On what a ‘private attorney general’ is—and why it matters. Vanderbilt Law Rev 57:2129–2173
Said C (2014) When arbitration causes frustration. San Francisco Chronicle, 13 Jan 2014
San Francisco Chronicle (2015) Abuse of law. San Francisco Chronicle, 13 April 2015
Shaffer T, Mcthenia A (1985) For reconciliation. Yale Law J 94:1661–1705
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
Smith M (2015) Partisanship a worry in Wisconsin supreme court election. New York Times, 6 April 2015
Steinman J (1985) Pseudonymous parties: when should litigants be permitted to keep their identifies confidential? Hastings Law J 37:1–90
Sterngold J (1992) Japan’s rigged Casino. New York Times, 26 April 1992
Stolberg S (1992) Politics and the judiciary coexist, but often uneasily. Los Angeles Times, 21 Mar 1992
Strom S (2014) General Mills reverses itself on consumers’ right to sue. New York Times, 20 April 2014
Survey of Civil Justice in New York (1931) Institute of law, Johns Hopkins University
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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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