Reflections on Civil Procedure Reform in the United States: What Has Been Learned? What Has Been Accomplished?
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Description
My contribution to this conference—to describe recent procedural reform in the United States—is daunting. As readers are no doubt aware, in the U.S. we have not one but fifty-one different judicial systems—fifty “sovereign” states and the federal judicial system. An American speaker at a gathering such as this is more likely than not to focus on the federal courts. This is in part because the federal judiciary is (wrongly in my view) thought to be more worthy of serious study. Although it is certainly true that federal law is supreme over state law whenever they conflict, the reality is that such conflicts are rare, largely because the states continue to control most of private law—the law of tort and contract. And if one looks at sheer volume—it is no contest. The courts of New York State alone handle geometrically more cases than all of the federal district courts together. Perhaps the primary reason for the comparative lack of scholarly attention to the state courts is an information gap. It is virtually impossible for anyone to keep an eye on all of these jurisdictions, whereas all serious American civil procedure scholars can and do follow federal developments. Too, there is a greater institutional capacity for, and commitment to, self-examination manifested in the federal system. It is this latter reality that leads me to discuss the federal situation in this paper. I will not, however, attempt a comprehensive review of the changes made in federal procedure in the last decade. Most of them have been at a level of detail not likely to be of interest here. Instead, I will focus on the empirical methodology that increasingly informs procedural reform at the federal level. I will consider some specific reforms, but my primary purpose is to illustrate the strengths and weaknesses of the empirical work that lies behind them. I justify this interest in methodology in part because of its potential for trans-national applicability. Procedural reformers cannot be indifferent to the availability of information about tools of analysis. My turn to methodology was inspired as well by the themes explored at the recent XIIth World Congress of the International Association of Procedural Law in Mexico City: culture and science. I thus return to questions I raised then—what are the goals of our reforms and how can we go about informing ourselves as to the best means of achieving them 1?
Source Publication
The Reforms of Civil Procedure in Comparative Perspective: An International Conference Dedicated to Mauro Cappelletti, Florence, 12-13 December, 2003
Source Editors/Authors
Nicolò Trocker, Vincenzo Varano
Publication Date
2005
Recommended Citation
Chase, Oscar G., "Reflections on Civil Procedure Reform in the United States: What Has Been Learned? What Has Been Accomplished?" (2005). Faculty Chapters. 1133.
https://gretchen.law.nyu.edu/fac-chapt/1133
