Tuesday, November 7, 2017

Erbsen on Lahav on Procedural Design

Now on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Sequential Progression of Dispute Resolution in Federal Courts. Allan reviews Alexandra Lahav’s recent article, Procedural Design.





Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship, Weblogs | Permalink


Alexandra D. Lahav, Procedural Design (2017), available at SSRN.

Professor Lahav’s review of recent developments in procedural design is most welcome. It tells us how the textbook design of the FRCP is breaking down. Professor Erbsen’s comment is also welcome, for it suggests that maybe the textbook design was never intended to be so formal.

Procedural design has long been a feature of planning American civil procedure. See, e.g., Hugh D. Evans, An Essay on Pleading with a View to an Improved System (1827). It is at the core of many discussions of comparative civil procedure. See, e.g. chapters 4, 5 and 6 of my book, Failures of American Civil Justice in International Perspective (Cambridge University Press, 2011) and John H. Langbein, “The German Advantage in Civil Procedure,” 52 U. Chi. L. Rev. 831 (1985).

Professor Lahav’s article does not address comparative work on procedural design. Perhaps it still can do that before final publication. In any case, subsequent discussion would benefit from examination of foreign procedure. A notable feature of foreign success is a general free approach to procedure and a reluctance to decide substantive issues finally until the last hearing. Civil procedure should be about bringing law and facts together to decide cases according to law. The American penchant for separating law and facts is a scourge of our system. It promotes what Roscoe Pound condemned as the “sporting theory of justice.”

Examination of foreign experiences is especially important in view of Professor Lahave’s “core normative claim … that the federal rules of procedure ought to have a contestable procedural design.” That is a prescription for the sporting theory of justice and more illness. It helps explain why the U.S. system ranks 94th in access to justice out of 113 systems ranked by the ABA-sponsored Rule of Law Index.

As someone who for forty years has called on Americans to improve law through comparative examination, it is discouraging that this article as drafted does not even note foreign experiences. More discouraging still is that apparently more than twenty civil procedure stars and six law school workshops cited in the star note did not call this omission to the attention of the author.

James R. Maxeiner

Posted by: James Maxeiner | Nov 8, 2017 6:33:03 AM

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