My colleague Professor Rick Marcus, who has distinguished himself in procedure circles not just in the U.S. but also quite prominently abroad, has posted a new book chapter titled “Reassessing the Essential Role of the Public Courts: Learning from the American Experience.” The book is focused on the public role of courts from a comparative perspective, and Professor Marcus’s contribution interrogates the American angle and situates it within the broader global landscape.
His primary thesis is historical, documenting the trends in, causes for, and effects of American reliance on courts for dispute resolution. Professor Marcus begins by detailing the predominant reliance on public courts for civil disputes in the mid-1900s. He explains that the rise of public litigation as a means to address social priorities—along with procedural reforms that both responded to and helped drive public litigation—forced those cases into the public sphere in a way that few other countries would countenance. He then turns to the transitions from around 1970 to present day, which has seen a reversal in the procedural rules and judicial decisions now geared toward cabining litigation, supporting case management, and encouraging private resolution.
The chapter is a sweeping, panoramic review of America’s fickle relationship with public litigation, and its lessons are important. The chapter is an essential read from start to end, so it is no spoiler to state here a few key takeaways. One takeaway is that America is both quite different and not so different from other countries. Our path—and its continuing evolution—certainly looks different from that of other systems, but the tensions inherent in the journey and choices confronted along the way have common rings to them. Another takeaway is that the American experience detailed by Professor Marcus complements other historical trends in standing doctrine, punitive damages, and injunctive relief. No matter how the Court decides Frank v. Gaos—the cy pres case on the docket this Term—I imagine it will be impossible to understand fully without Professor Marcus’s observations in mind. All those concerned with the role of public litigation should read this chapter.