Richard Marcus, ‘The Litigation Superpower’s Case Management Cure for Adversarial Ills’

This contribution examines how adversarial excesses in the American system are contained through judicial case management. It begins with an introduction to the US court system and an explanation of American exceptionalism in procedure. America’s unique procedural attributes, while linked by many to a ‘litigation explosion’, also created the need for managerial judging. The contribution then examines the role of judicial settlement promotion in American courts. In some state courts, ‘settlement weeks’ became prominent; rather than hold one or two trials to resolve cases, judges would instead convene numerous settlement conferences to hammer out agreed resolutions. Indeed, judges command a special authority that, if used properly, could set parties on the right course in settlement negotiations. The contribution highlights both the innovations in judicial management and the results of judicial settlement promotion during the last half century. It concludes that the overall experience of judicial case management has been positive.

Marcus, Richard, The Litigation Superpower’s Case Management Cure for Adversarial Ills (2021) in Civil Case Management in the Twenty-First Century: Court Structures Still Matter (P Chan and CH van Rhee, eds, Springer, 2021), UC Hastings Research Paper No 404.

First posted 2021-06-09 14:00:48

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