Monday, June 14, 2010

Marcus on American Exceptionalism in Procedure

Rick Marcus has published an article titled, "Exceptionalism and Convergence: Form versus Content and Categorical Views of Procedure," 49 Sup. Ct. L. Rev. (2d series) 521 (2010). Rick does not see much evidence to support the growing belief that American and European systems of procedure are converging:

"Although there has surely been convergence in some matters of form -- a good example of which would probably be judicial management of litigation -- it is much less clear that the content of this convergence is really significant. What is clear is that the seeming convergence that has resulted from changes to some non-American legal systems -- such as the introduction of something like discovery in Japan or Germany -- depends on provisions that are so different in content from the American version that they are insignificant as evidence of meaningful convergence. Perhaps the American embrace of private enforcement of law, which began in the mid-20th century, will fade in the 21st. For the present, however, although American procedure may be closer to that of the rest of the world than it was a generation ago, it is not much closer."

4 comments:

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