My colleague Scott Dodson is the most prominent American civil-procedure scholar of his generation addressing comparative-procedure issues. One recognition of his status is that he is the youngest American elected to membership in the International Association of Procedural Law. Another is that he was invited to serve as National Reporter for the U.S. in connection with the quadrennial Congress of the IAPL in Japan in November 2019.
Professor Dodson has posted his national report for that Congress, “Accountability and Transparency in U.S. Courts.” The overall focus of the session will be on contrasting attitudes and practices across the world on these vital issues. As he has in past work, he displays a keen insight into the distinctive features of U.S. judicial arrangements—a form of American “exceptionalism”—and draws on his deep knowledge of the U.S. judicial experience.
For Americans, it may seem that the prominent role of the court system in many features of public life is a natural feature of an advanced democracy. Thus, particularly with regard to our federal courts, we assume that judicial independence and the power to rule that legislation violates the Constitution are integral features of a judicial system.
Actually, they are not. Indeed, it seems that our Acting Attorney General entertains doubts about the power of judicial review enshrined in Marbury v. Madison. Certainly that power is not widespread outside the U.S. And the pervasive judicial authority to constrain and contain other governmental actors that plays such a prominent role in our public life is not true in many other places, if any.
This distinctive role is reflected in many aspects of American judicial organization profiled by Professor Dodson. The judicial power is much broader in this country, and judicial officers are selected by a quasi-political process rather than emerging from a judicial bureaucracy, as in much of the rest of the world. Those judges are largely shielded from “political” pressures while acting in their judicial capacities, however. The judicial process itself, particularly the unique American commitment to broad discovery and an “open courts” mode of operation, provides citizens access to governance matters handled behind closed doors in other countries.
Though this piece is largely directed to the rest of the world (which will be represented at the Congress), it is also important for Americans. It is valuable for us to realize, at least, that our assumptions can be challenged as well. As Professor Dodson concludes: “What works for the US might fail in Germany or Japan, of course, and very probably vice versa. But for those interested in cross experimentation, the American experience may hold valuable lessons—both promises for future research and pitfalls to avoid.” As we move further into the globalized world of litigation, these are valuable thoughts to keep in mind.