Comparative Civil Procedure

THE POLITICAL ECONOMY OF CIVIL PROCEDURE
Professor John C. Reitz
Telephone (319) 335-9086
E-Mail: john-reitz@uiowa.edu

1. The Political Economies of Various Countries

   Continental European systems are more state-centered, the US is more market-centered, and the UK is somewhere in between.

2. Aspects of Civil Procedure Directly Reflecting the Political Economy
   1. Proof of Facts (Sometimes Misleadingly Characterized as “Adversarial” vs. “Inquisitorial”)
      1. Interrogation of Witnesses and Creation of Record
      2. Selection and Use of Experts
   2. Judges’ Duty to Clarify in Civil Law Systems vs. Reliance on Attorneys in US
   3. The “Private Attorney General” in US Civil Procedure
      1. The “American” Rule vs. the “English” Rule
      2. Incentives to Sue: Class Actions, Treble Damages, Punitive Damages
      3. Discovery - Extraction of Information from Parties and Third Parties
   4. Juries vs. Professional Judges or Mixed Courts with Lay Judges
3. Interaction with Other “Architectural Principles” of Civil Procedure
   1. Independence of Legal System from Parties and from Other Political Powers
      1. Independence of Courts and Bar
      2. Independence of Legal Academia and Free Press
   2. Principles of Fair Hearing
      1. Right to a Hearing (Including Chance to Present Evidence and Argue)
      2. Right to Equal Treatment
      3. Party Autonomy: Right to Define Scope of Law Suit; Right to Settle

FURTHER READING

1. About Political Economy and Other Architectural Principles of Legal Systems

John C. Reitz, "Political Economy and Abstract Review in Germany, France, and the United States,” in Sally J. Kenney, William M. Reisinger, & John C. Reitz, Constitutional Dialogues in Comparative Perspective 62-88 (Basingstoke, Hampshire & London: Macmillan Press, 1999)

John C. Reitz, “Major Architectural Principles of Public Law,” ___ Tulane L. Rev. ___ (forthcoming March 2001)

2. About Foreign Civil Procedure

Ruldolf B. Schlesinger, Hans W. Baade, Peter E. Herzog, Edward M. Wise, Comparative Law 375-583 (6th ed. 1998)(updated version of Schlesinger’s classic comparison of US civil procedure with procedure in other countries, especially in civil law countries; with copious citations to the literature, especially but not limited to literature in English)

“Symposium on Civil Procedure Reform in Comparative Context,” 45 Am. J. Comp. L.647-944 (No. 4, Fall 1997)(articles by leading scholars on civil procedure in the US, UK, France, Germany, Italy, Japan, China, Sweden, and the EU)

John Langbein, “The German Advantage in Civil Procedure,” 52 U. Chi. L. Rev. 823 (1985)(great teaching piece because provocatively written; reliable for details of German procedure; for literature responding critically to Langbein’s thesis about the “German advantage,” see Schlesinger, et al., op. cit., at 376, n.3, and Oscar Chase, “Legal Processes and National Culture,” 5 Cardozo J. Int’l & Comp. L. 1 (1997))

The International Encyclopedia of Comparative Law also has a volume devoted to civil procedure

3. Path-Breaking Book That Lead Me in This Direction

Mirjan R. Damaška, The Faces of Justice and State Authority (New Haven & London: Yale University Press 1986)(does not mention “political economy,” but talks about factors I would so label, and uses them to analyze differences in procedural systems)

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