Comparative Civil Procedure

Using the Transnational Rules to Teach Comparative Civil Procedure
Antonio Gidi¹

Introduction

1. It was particularly appropriate for the AALS to dedicate a section on comparative civil procedure. There is a pervasive absence of comparative studies in civil procedure in the United States despite its practical advantages, not only in international litigation, but also in domestic law reform.

There is a trend to reverse this reality, but the truth remains that American proceduralists are among the most parochial in the world. In some European and Latin American countries, for example, some of the most prominent scholars are also comparatists. In some of them, a scholar is even looked down if he or she does not engage in comparative studies.

2. I was invited to talk about civil procedure in Latin America. However, if I did that, some of you would leave this room with plenty of information about foreign systems, but would not know what to do with it.

Therefore, I decided to change my presentation. I will try to give you some suggestions on how to use the information you will receive here. I will share with you my experience in teaching a Seminar on Comparative Civil Procedure at the University of Pennsylvania. This is only one of many ways to teach comparative law, but I hope you will see that this Seminar may be intellectually stimulating and plain fun.

I have been co-teaching Comparative Civil Procedure with Geoffrey C. Hazard, Jr. for four years now. Working with him, teaching with him, and thinking with him have been a great experience in itself. But this is a topic for another talk. Here I want to describe our experience in teaching to a multi-cultural group of students.

Penn is a mid-size law school with around 700 J.D.s and 70 LLMs. The LLM students are mostly young attorneys and budding law professors from all over the world, some with extensive experience in practice. They come to the United States in order to receive an international and cross-cultural education in law. And that is exactly what they receive at Penn.

However, having studied and closely interacted with them in the innumerous law courses that I attended as a visiting scholar at Penn, I could see how wasteful was it to let all these qualified people come to our school without leaving a contribution to their fellow LLM students, to the JDs, and to the faculty.

The secret of the success of this Seminar is that it is small and, ideally has an even number of American and foreign students.

The Seminar is divided into two parts: The first part is a class presentation by a couple of students. This presentation is followed by a debate involving all students.

First Part: Class Presentation

1. Once a week the class meets for a couple of hours and discuss a different topic of civil procedure. These topics are assigned in the first day of class to pairs of students. The pair is made of one American and one foreign student. In class, the American student present the topic in the foreign system and the foreign student present it in the American system.

Students are forced to meet in advance and to teach their legal systems to each other. This is the most effective way to encourage interaction between the LLMs and JDs.

The American student presents the most important aspects of the foreign system from the comparative perspective of an American lawyer. In this presentation, the American law and the ALI and Unidroit-sponsored Transnational Rules of Civil Procedure are always in the background and will be referred to many times. Naturally, the foreign student will frequently intervene in the American student's presentation in order to make explanations, corrections, or developments, or just to answer the questions that naturally come up.

While the American student is presenting the foreign system, a different perspective might appear from a student from a different background. The presentation usually becomes an interesting debate involving all the students. It is common for the presentation to be interrupted by a pertinent question that is answered immediately by all students present.

After this presentation comes the presentation of the American system by the foreign student. In theory, this should be a general exposition of the topic under American law. Experience shows, however, that an extensive presentation by the foreign student is not captivating for many reasons. First, lack of facility in English makes the presentation very slow and the fact that most students have already a fair knowledge of the American procedure makes it cost inefficient. Therefore, the foreign student's presentation is limited to a critique of a few items that the student found particularly interesting in American Law from the perspective of a foreign lawyer.

2. It is extremely important to choose the topics well. Very broad topics such as "the powers of the judge", or "the role of the judiciary" will certainly lead to such generalities and abstraction that it will not only be useless but also prejudicial to the point of being dangerous. For example, even though all would agree that "the judge must have power to manage the proceeding", this notion has a completely different connotation for a civil lawyer than to a common lawyer.

The topics should be technical, specific and well established in the practice of all systems. For example "standard of proof", "hearsay rule", "jury trial" are not topics well developed enough to grant a complete presentation from the civil law perspective. These topics are important, however, and should be discussed and extensively acknowledged in class within the context of some other topic, but should not be a topic in itself.

The topics we have been using in the seminar are taken from the Transnational Rules of Civil Procedure: statements of claims, amendments, discovery, trial, appeal, etc. The use of concrete rules of procedure provides the adequate measure of objectiveness necessary for a preliminary comparison of legal systems.

The Meeting

1. We have discovered, however, that the students are not able to select on their own the most important aspects for comparison, especially in the first half of the semester. Therefore, before the class presentation, we invite the pair of students to meet with us for discussion and a preliminary mock presentation. This rehearsal insures that the class presentation is stimulating and educationally productive. Instead of letting the pair of students realize what are the important topics during the class discussion, it is much better if they arrive in class knowing what to say, what to develop and what to omit.

At least one such meeting is necessary. In this meeting, we will listen to their presentations, and try to focus their attention on the important questions and avoid what is irrelevant. We also answer questions about the topic and the presentation.

A common problem is that the students frequently get lost in a discussion of the topics because they do not understand each other. They think they are communicating only to discover, after some of our questions, that they are talking about different things.

In this meeting, we try to keep the students on the right track by suggesting the aspects of most important comparative value. We need not be too explicit nor do we try to decide what aspects the students should develop. Rather, we give hints on what is important and what is not. We do not spoon feed the students but let them teach each other and discover topics that we might be unaware of. This is what gives the peculiar educational value of this experience. That is why we meet with the students only after they have met with each other and have developed their presentation.

2. We need not and certainly cannot know all details about all procedural systems of the world. As a matter of fact, the structure of this seminar presupposes our ignorance: if we knew everything, we probably would not use this teaching strategy. As a matter of fact, we probably would not be teaching this seminar at all. However, it is essential to know the basic structure and reasoning of both common law and civil law systems, and be familiar with important issues of comparative civil procedure.

With time, some patterns emerge and we are able to understand a given legal system, ask the right questions, and lead the students to solutions neither they nor we envisioned at the outset. Surprises always happen, however. That is precisely the beauty of this Seminar. We have taught it for four years and always learn something truly new.

3. In summary, this is what happens in the two weeks preceding each presentation in class. First, each student studies the topic from the point of view of his or her own national system. Then the pair of students meets once or twice in order to teach each other the topic from the point of view of their system.

The foreign student is supposed to give the American student all information about his or her system. If there are translations in English of books and rules, he or she should provide this information to the American student (if the American speaks the language, even better). Since the foreign student speaks English, he or she is supposed to study the topic in the Federal Rules and in textbooks. This will give the foreign student enough information to be able to make critical comments.

Only after developing their presentations will the pair of students meet with us and make a mock presentation or describe the topics to be presented in class. At this time, we make comments and suggestions. The students will then meet a last time to adjust the presentation to the new information. A second meeting with the professor is rarely necessary.

Second Part: Debate

After the presentation, the other students are expected to make a brief presentation on the topic from the point of view of his or her own system of procedure. Therefore, LLM students will make comments about the topic in their system.

A different problem is what to do with the American students. In the first time we taught this seminar, the American students had little participation in the debate. This happened because the presence of the American professor would intimidate them and also because they did not have unique knowledge that the group did not already know. It soon became clear that six people speaking about the same country was not working. This was a great problem and forced us to rethink the effectiveness of our formula.

In the second time we taught the seminar, we had the idea of assigning to the American students a foreign system. Typically some of them speak at least one foreign language, such as Spanish, Chinese, or French. For those American students that do speak a foreign language, we would give a treatise and the code of procedure on the language they speak. For those that speak only English, we would assign the treatise and the rules of procedure of an English speaking country, such as England, Canada, or Australia.

Therefore, in the debate phase of the Seminar, each student is in charge of a different legal system. The only limitations are the languages spoken by the students and the availability of books and materials in the library.

The Paper

At the end of the semester, each student presents an informative paper on comparative aspects of civil procedure. Students are free to choose the topic of their interest, even if it was not directly discussed in class.

The student presents either a detailed paper about one single topic (usually the same topic of the presentation) or an informative general report about all topics debated in class. In any event, these papers contain relevant information about various legal systems that were not discussed in class due to lack of time.

Conclusion

In this seminar, the JDs and LLMs gain a better understanding and greater respect for another system and for each other. This seminar is also a source of intellectual pleasure and personal growth to the professors and the students.

This technique can be used with any course within the Law School curriculum. Not only civil procedure but also torts, contracts constitutional law, products liability, etc. With some adjustments, it can also be used with a specific topic within a course, such as class actions. It is important, however, to have a text, which provides a frame-of-reference against which all systems can be compared. In our case, this frame of reference is the Transnational Rules of Civil Procedure, but it could also be the Federal Rules or some other text.

This experience, however, cannot be reproduced by one common law professor that knows only the common law nor a civil lawyer that does not know American civil procedure. Nor will it be profitable if done by those two people together. This seminar has a greater chance of success if conducted by someone who feels comfortable enough to navigate between both systems. Two professors that know only their own system do not sum to one professor that knows both.

I hope I have convinced you that this is a very interesting method to teach comparative civil procedure. For those still skeptical, I invite you to come to Penn and see for yourself how one of our classes works in practice. You might be surprised with what you will see.