Abstract
This chapter considers the role of comparative analyses in the development of civil procedure. The chapter considers why we can expect there to be obstacles to change within the field of civil procedure and what might be the forces and mechanisms leading to any change. The chapter also focuses on comparative law-led change as both a force and mechanism of change. It considers the suitability of comparative analyses within a civil procedure context, arguing that the methodology works well across civil procedure systems. The chapter concludes that given the characteristics of civil procedure, comparative law-led change may be a particularly well suited mechanism for change in this field.
Professor, Associate Dean (International), Faculty of Law, UNSW Australia. A.B. (Bowdoin), J.D. (Yale), PhD (UNSW).
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- 1.
See http://www.oxforddictionaries.com/definition/english/dynamism (last checked 19 March, 2015).
- 2.
See M. Woo, Chapter 7 at footnote 1.
- 3.
See Tronson, Chapter 9 (the quote is from Bleak House).
- 4.
See Código de Processo Civil, Lei No. 13.105, 16 March 2015 (available at http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2015/Lei/L13105.htm, last checked 20 March 2015).
- 5.
See, e.g., Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition 7–10 (1983) (one of the characteristics of the Western law is that growth and change of law is part of its pattern of development).
- 6.
- 7.
Though changes to a constitution may also impact large parts of the legal system too, but that is part of the reason that the process for changes to constitutions is so difficult.
- 8.
Mixed Jurisdictions are “legal systems in which the Romano-Germanic tradition has become suffused to some degree by Anglo-American law.” William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 La. L. Rev. 677, 679 (2000); see generally Vernon Valentine Palmer, Introduction to the Mixed Jurisdictions, in Mixed Jurisdictions Worldwide: The Third Legal Family (Vernon Valentine Palmer ed., 2001).
- 9.
Stephen Goldstein, The Odd Couple: Common Law Procedure and Civilian Substantive Law, 78 Tul. L. Rev. 291, 293 (2003); Vivian Grosswald Curran, Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union, 7 Colum. J. Eur. L. 63, 78–79 (2001) (arguing that procedure is central to the common law worldview).
- 10.
See, e.g., Richard Tromans, Challenging the Conflict Culture: Mediation’s Struggle for Acceptance in Europe, 68 Euro. Law 19–23 (2007).
- 11.
Min Zhou, A Comparative Analysis of Contemporary Constitutional Procedure, 30 Case W. Res. J. Int’l L. 149, 158–159 (1998) (“The separation of law into procedural and substantive categories began early in the history of legal study, a separation originally proposed in the academic community by Jeremy Bentham. According to Bentham, substantive law is the law that creates, defines, and regulates the rights and duties of the parties, while procedural law prescribes methods for enforcing rights or obtaining redress for their invasion” citing Jeremy Bentham, A Treatise on Judicial Evidence, and Principles of Judicial Procedure XI (Baldwin, Cradock & Joy) (1825)). This is not to say that civil procedure has no impact on rights and liabilities – for the consequence of civil procedure rules may extinguish rights or expose liabilities – but civil procedure has traditionally not been conceived as creating rights and liabilities.
- 12.
For example, Legg and Higgin’s chapter’s comparison of overriding “purpose requirements” for civil procedure notes the greater presence and recognition of politics in the United States on this issue, than is the case in the relatively similar legal systems of England or Australia. M. Legg & A. Higgins, Chapter 8.
- 13.
See, e.g., K. Thomas, Chapter 6 and M. Woo, Chapter 7. Normativity may be ubiquitous, and hence more present in civil procedure reform, in those systems undergoing substantial societal and governmental transitions – for the civil procedure will like all aspects of the law be impacted by the changing private and public relationships that arise in such transitions.
- 14.
See Newton’s First Law, Wikipedia at http://en.wikipedia.org/wiki/Newton%27s_laws_of_motion (last checked 17 March, 2015).
- 15.
See, e.g., Mary Ann Glendon, Paolo G. Carozza & Colin B. Picker, Comparative Legal Traditions: Texts, Materials And Cases On Western Law, 4th Edition (Thomson West Publishing 2015) at 74–75 (discussing the law change following the French Revolution).
- 16.
See, e.g., L. Cadiet Chapter 4 at part IIB.
- 17.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) (finding that the US constitution requires a federal court sitting in diversity jurisdiction, handling a state common law based civil action, to apply state law and not federal common law to the claim).
- 18.
In this chapter the focus is on the research methodologies, and not on the theoretical frameworks. The two will often overlap, with the one driving the other. But they should not be confused – though that confusion is endemic.
- 19.
Roux, Theunis Robert, Judging the Quality of Legal Research: A Qualified Response to the Demand for Greater Methodological Rigour, (2014) 24 Legal Educ. Rev. (forthcoming). Available at SSRN: http://ssrn.com/abstract=2499258.
- 20.
Doctrinal research has been and continues to be the primary form of legal research. See, e.g. Terry Hutchinson & Nigel Duncan, Defining and Describing What We Do: Doctrinal Legal Research, 17 Deakin L. Rev. 83 (2012).
- 21.
See Michael Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism, 2002 U. Illinois L. Rev. 819 (2002). An example applied to civil procedure was a study employing data on civil disputes that then suggested they are taking too long. Michael Heise, Justice Delayed?: An Empirical Analysis of Civil Case Disposition Time, 50 Case W. Res. L. Rev. 813 (2000).
- 22.
See Banakar, Reza & Travers, Max, Introduction to Theory and Method in Socio-Legal Research in Theory and Method in Social-Legal Research (R. Banakar, M. Travers, eds.) (Oxford, Hart, 2005). Available at SSRN: http://ssrn.com/abstract=1511112. For an example of a sociological analysis in civil procedure, concerning under-claiming and over-claiming, see Sachin S. Pandya & Peter Siegelman, Underclaiming and Overclaiming, 38 Law & Soc. Inquiry 836 (2013).
- 23.
Other significant research methodologies may include ones that rely on historical sources and data or on economic materials.
- 24.
J. Maxeiner, Chapter 5.
- 25.
L. Cadiet, Chapter 4, Part IB.
- 26.
It has been said, after all that “[t]he past is a foreign country; they do things differently there.” L. P. Hartley, The Go-Between, 9 (1953).
- 27.
See Woo Chapter 7.
- 28.
See, e.g., Colin B. Picker, China’s Legal Cultural Relationship to IEL: Multiple and Conflicting Paradigms in China in the New International Economic Order: New Directions and Changing Paradigms (Cambridge Univ. Press, 2015) (Lisa Toohey, Colin Picker & Jonathan Greenacre, eds.) (2015) at 62–76.
- 29.
See, e.g., Roper v. Simmons, 125 S.Ct. 1183 at 1198 (2005) (Explaining that the issue is decided under the 8th Amendment of the U.S. Constitution, and other countries’ stance on the issue is merely instructive and not binding) compared to Roper, at 1215–16 (O’Connor, J., dissenting) (“T]his Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries.”); see also id. at 1216 (“[A]n international consensus …can serve to confirm the reasonableness of a consonant and genuine American consensus.”); but see Atkins v. Virginia, 536 U.S 304, 347–48 (2002) (Scalia, J., dissenting) (“Equally irrelevant [to the disposition of the case] are the practices of the ‘world community,’ whose notions of justice are (thankfully) not always those of our people.”). See also, Steven G. Calabresi, “A Shining City on a Hill”: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law, 86 Bos. Univ. L. Rev. 1335 (2006) (contrasting the use of foreign law by the judiciary and legal elites compared with political and popular legal culture’s opposition to that use).
- 30.
While the author is certainly not chauvinistic, he presents well many of these, and other, issues. See Sir Basil Markesinis, Understanding American Law by Looking at it Through Foreign Eyes: Towards a Wider Theory for the Study and Use of Foreign Law, 81 Tul. L. Rev. 123 (2006). The author also specifically discusses when systems are not suitable. Id. at 176–78.
- 31.
A perfect example of the error of those views is provided in Maxeiner’s contribution to this book, in which he debunks the America view that its civil procedure is “exceptional”. See J. Maxeiner, Chapter 5.
- 32.
“A court usually applies its own local law rules prescribing how litigation shall be conducted even when it applies the local law rules of another state to resolve other issues in the case.” Restatement (Second) Conflict of Laws §122 (1971).
- 33.
Colin B. Picker, Comparative Civil Procedure : Opportunities and Pitfalls, in The Future of Dispute Resolution (Michael Legg, ed.) (Lexis Publ.) (2012) at 254. See, also, John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. Chi. L. Rev. 263, 273 (1978); Shaun P. Martin, Rationalizing the Irrational: The Treatment of Untenable Federal Civil Jury Verdicts, 28 Creighton L. Rev. 683, 688–89 (1995).
- 34.
Compare K. Thomas with M. Woo., Chapters 6 and 7.
- 35.
Compare M. Legg & A. Higgins with B. Tronson, Chapters 8 and 9 (Legg & Higgins consider cost as part of their discussion of the overriding purpose for civil procedure discussions).
- 36.
Compare E. Silvestri and L. Thai, Chapters 10 and 11.
- 37.
See Oliver Brand, Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies, 32 Brook. J. Int’l L. 405, 415 (2007).
- 38.
See, e.g., Catherine Valcke, Comparative Law as Comparative Jurisprudence--The Comparability of Legal Systems, 52 Am. J. Comp. L. 713, 720 (2004).
- 39.
See Scott A. Sanford, Apples and Oranges--A Comparison, 1 Annals of Improbable Research, May/June 1995, available at http://www.improbable.com/airchives/paperair/volume1/v1i3/air-1-3-apples.html (scientifically “apples and oranges are very similar”).
- 40.
Oscar G. Chase, American “Exceptionalism” and Comparative Procedure, 50 Am. J. Comp. L. 277, 288–92 (2002).
- 41.
T. Wambier, Chapter 14.
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Picker, C.B. (2016). Comparative Law as an Engine of Change for Civil Procedure. In: Picker, C., Seidman, G. (eds) The Dynamism of Civil Procedure - Global Trends and Developments. Ius Gentium: Comparative Perspectives on Law and Justice, vol 48. Springer, Cham. https://doi.org/10.1007/978-3-319-21981-3_3
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