Private Law Theory

Abstract:
American procedure has long been exceptional, a fact that baffles Americans and non-Americans alike. But focusing on the goals of civil litigation provides an important insight into why US procedure is so different. Everyone around the world wants procedure that suitably balances accuracy with economy. But American procedure seeks to enable litigants in this country to go further, by enforcing public norms through private initiative, a major reason why it puts fewer obstacles in the way of prospective plaintiffs. That seems to be a uniquely American role for civil litigation, and largely explains the relaxed pleading, broad discovery, and jury trial features of American civil litigation.

Marcus, Richard, ‘American Exceptionalism’ in Goals for Civil Litigation (2014). Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems 123 (Alan Uzelac, ed, Springer 2014); UC Hastings Research Paper No 99.

First posted 2014-04-25 05:03:50