My colleague Rick Marcus, a longtime leader in both domestic and comparative civil procedure, has published two articles. The first, “Treading Water? Current Procedural Issues in America,” 23 ZZPInt 183 (2018), reports on U.S. procedural developments of some interest to scholars in other countries, including class-action rule reform, personal jurisdiction, discovery, arbitration, and third-party litigation funding. The second, “A Common Law Perspective on the Supreme Court and Its Functions,” 81 Studia Iuridica 15 (2019), argues that the design and function of high courts “probably are not more important than more elusive questions about institutional status and evolution, something one could refer to as ‘legal culture.’”
Rather than detail each paper seriatim, let me offer some reflections on Professor Marcus’s diligent and largely successful pursuit of comparative procedure, particularly in bringing American knowledge to bear in a vibrant international conversation. That conversation is dominated by European scholars and, increasingly, Asian and South American scholars. Historically, American proceduralists (with notable exceptions, including, from UC Hastings Law, the late Geoff Hazard) have scoffed at such collaborations and exchanges, an affect that has both contributed to American procedure’s isolationism and inhibited its influence overseas. But with transnational litigation inevitable, with international travel prevalent, and with American jurists on the U.S. Supreme Court and elsewhere taking an interest in foreign developments, Professor Marcus’s efforts seem both timely and important.
In these two papers, Professor Marcus offers a study of comparative procedural change. In “Treading Water,” for example, Professor Marcus notes that while American litigation’s broad support for aggregation and open discovery continue to be anomalous (though with some openness to experimentation elsewhere), the Supreme Court recently has aggressively used doctrines of personal jurisdiction and arbitration to constrain those facets of litigation. By contrast, this year, the Advisory Committee on Civil Rules proposed only one modest rule change—to depositions of corporations—that generated sizable resistance and commentary. (Congress, though it often makes waves about intervening in procedure, seems sidelined by gridlock and, in my view, some ineptitude.) The result is that the Supreme Court, rather than rulemakers or legislators, continues to be the driving force of procedural change and development, and has been markedly so at least since Bell Atlantic v. Twombly.
That insight connects to “A Common Law Perspective,” which homes in on the outsized role of common-law courts in legal developments, and the particularly extreme role of the U.S. Supreme Court even among its common-law kin. Part of the distinction arises from more than 200 years of American history and tradition, but another part arises from the education and selection of American federal judges, who are trained to see themselves as lawmakers with broad remedial and precedent-setting powers rather than bureaucrats applying law to specific facts (Chief Justice Roberts’s “umpire” exhortation notwithstanding). Professor Marcus does not oversell; he aptly recognizes that the roles of high courts around the world are diverse—including in India, for example, which appears to have enthusiastically embraced judicial activism in public-interest litigation. But even the Indian example proves the point: there is no unitary “common law” high court. And the U.S. Supreme Court is its own beast.
That is particularly true with respect to procedural change. Since 1938, the Supreme Court has been primarily in charge of the civil-procedure rulemaking for federal courts. This role is in some contrast to other civil-law and common-law countries. Yet, as Professor Marcus points out, the Supreme Court has repeatedly chosen to intervene in procedure through its common-law adjudicatory power rather than its rulemaking power, especially regarding aggregate litigation. The Supreme Court’s lead has been followed in the lower courts, which have developed an ad hoc set of procedural norms for dealing with multidistrict litigation.
All this probably strikes the outsider as perplexing. That, in itself, is a useful contribution to the international conversation on procedural norms and institutional structures. As Professor Marcus concludes, although the systems of each country continue to evolve, both the systems themselves and the method of change are anchored to deep-seated values, tradition, and political culture.