Global Civil Procedure Trends in the Twenty-First Century

Recent scholarship in comparative civil procedure has identified“American exceptionalism” as a way to describe practices which set theUnited States apart from most of the world, particularly the civil law world.This Article focuses on two areas of “exceptionalism”: pleading standardsand the role of judges. Specifically, pleading requirements are considerablyless strict in the United States compared to other countries. Additionally,U.S. judges are less active in conducting litigation than their counterpartselsewhere, especially judges in the civil law tradition. This Article tracessome modern trends toward convergence between the United States andthe rest of the world. With regard to pleading standards, two recent SupremeCourt cases, Bell Atlantic v. Twombly and Ashcroft v. Iqbal, have movedU.S. pleading standards closer to the rest of the world. With regard to judicialroles, convergence has been bilateral, with U.S. judges becoming more“managerial” and European judges becoming less so. Additionally, civil lawjudges have begun to enjoy broader discretion, increasing their prestigeand visibility in a manner similar to the U.S. judge. The final focus of theArticle is whether these recent trends represent opportunities for improvementor an unwelcome disruption for the U.S. procedural system

Comparative Convergences in Pleading Standards

Comparative civil procedure has had little influence in American jurisprudence and commentary, in part because of American procedure\u27s deep and widespread exceptionalism. But this may be changing, at least in certain areas. The American notice pleading standard, for example, which has long been considered exceptional, shows signs of trending toward the fact pleading models of foreign countries. Congressional experimentation with heightened pleading in statutes such as the Private Securities Litigation Reform Act and the Supreme Court\u27s recent pronouncements in Iqbal v. Ashcroft and Bell Atlantic v. Twombly suggest that American pleading jurisprudence is moving away from its traditionally exceptionalist corner and towards a regime focused on facts that is more akin to the global norm. If so, then this trend may allow for more meaningful transnational dialogue between the U.S. and foreign systems, more valuable comparative analyses in the U.S., and the potential to harmonize civil procedure across national boundaries

The Federal Rules of Civil Settlement

The Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement This Article begins by providing a systemic analysis of why the Federal Rules inadequately prevent settlement outcomes from being distorted relative to the underlying merits — as defined by reference to substantive law — of a given dispute. It then explains how the Federal Rules can actually amplify these distortions. Indeed, notwithstanding the well-worn adage that settlement occurs in the “shadow of the law,” scholars have shown that non-merits factors exert significant influence on settlement outcomes. However, these insights have not been considered together and combined with a systemic focus on the ways in which the influence of these factors on settlement outcomes is actually a product of the basic structural features of the Federal Rules. This Article takes these next steps to explain that the “shadow of the law” that is cast on settlements is fading. Further, this Article discusses a new phenomenon in the current litigation environment — namely, that litigants’ increased reliance on prior settlements as “precedent” for future settlement decisions may move settlement even further out of the “shadow of the law” and into the “shadow of settlement” itself. This Article then traces these problems to three foundational assumptions underlying the Federal Rules of Civil Procedure, all of which have become outmoded in a world of settlement. In rethinking these assumptions, it provides a new conceptual account that contextualizes previously isolated procedural reform proposals as challenges to these foundational assumptions. It also explains how these reform efforts ought to be refined and extended with a specific view toward systematically redesigning the basic model and operation of the Federal Rules for a world of settlement. Lastly, it sets forth new proposals that seek to reorient current rules expressly toward the goal of aligning settlement outcomes with the merits of underlying claims. What emerges is a new vision of procedure — one in which the application of pretrial procedural rules do not merely facilitate trial but are designed to provide litigants with guidance regarding the merits of claims and are used to align settlement outcomes more meaningfully with the dictates of the substantive law. In describing this vision, this Article lays the groundwork for the design of a new Federal Rules of Civil Settlement

A Structural Vision of Habeas Corpus

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the rights and welfare of individuals. 19 Conversely, the right to vote belongs to individuals, but one of its most important functions is to prevent the systemic distortion of political power. The law assigns the individual voter a right partly to vindicate his individual interests, but the assertion of that right is also meant to prevent the more general abuses that might follow if whole groups of voters were excluded from the political process.20 This Article proposes that federal habeas could be profitably reimagined along parallel lines, with the rights of individual petitioners functioning as levers for prompting systemic criminal justice reforms. In so doing, the Article departs from a long tradition of understanding habeas review as a straightforward matter of individual rights, the aim of which is to remedy legal violations that occur in particular petitioners\u27 cases. This individualist orientation dominates existing theories of habeas corpus, uniting those who would reform habeas by making it more broadly available with those who have proposed narrowing or streamlining reforms. In the former camp, scholars such as Larry Yackle21 and Gary Peller 22 have advocated eliminating many procedural barriers to federal habeas review.23 In the latter camp, Henry Friendly, 24 John Jeffries, and William Stuntz25 have recommended restricting habeas petitions that do not allege factual innocence; scholars building on Paul Bator\u27s process theory26 have focused on whether individuals had a fair opportunity to raise their claims in state court;27 and still others have argued that federal habeas should be a forum for some constitutional criminal procedure claims (such as claims of judge or jury bias) but not for others (such as the unreasonableness of a police search).28 On all sides, the literature is large. But from each perspective, these scholars share the assumption that the point of federal review of state convictions should be to correct errors in individual cases. They only differ as to which errors they think are worth correcting-process errors, guilt-innocence errors, or errors affecting certain favored federal rights

Global Civil Procedure Trends in the Twenty-First Century

Recent scholarship in comparative civil procedure has identified “American exceptionalism” as a way to describe practices which set the United States apart from most of the world, particularly the civil law world. This Article focuses on two areas of “exceptionalism”: pleading standards and the role of judges. Specifically, pleading requirements are considerably less strict in the United States compared to other countries. Additionally, U.S. judges are less active in conducting litigation than their counterparts elsewhere, especially judges in the civil law tradition. This Article traces some modern trends toward convergence between the United States and the rest of the world. With regard to pleading standards, two recent Supreme Court cases, Bell Atlantic v. Twombly and Ashcroft v. Iqbal, have moved U.S. pleading standards closer to the rest of the world. With regard to judicial roles, convergence has been bilateral, with U.S. judges becoming more “managerial” and European judges becoming less so. Additionally, civil law judges have begun to enjoy broader discretion, increasing their prestige and visibility in a manner similar to the U.S. judge. The final focus of the Article is whether these recent trends represent opportunities for improvement or an unwelcome disruption for the U.S. procedural system

A Structural Vision of Habeas Corpus

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the rights and welfare of individuals. 19 Conversely, the right to vote belongs to individuals, but one of its most important functions is to prevent the systemic distortion of political power. The law assigns the individual voter a right partly to vindicate his individual interests, but the assertion of that right is also meant to prevent the more general abuses that might follow if whole groups of voters were excluded from the political process.20 This Article proposes that federal habeas could be profitably reimagined along parallel lines, with the rights of individual petitioners functioning as levers for prompting systemic criminal justice reforms. In so doing, the Article departs from a long tradition of understanding habeas review as a straightforward matter of individual rights, the aim of which is to remedy legal violations that occur in particular petitioners\u27 cases. This individualist orientation dominates existing theories of habeas corpus, uniting those who would reform habeas by making it more broadly available with those who have proposed narrowing or streamlining reforms. In the former camp, scholars such as Larry Yackle21 and Gary Peller 22 have advocated eliminating many procedural barriers to federal habeas review.23 In the latter camp, Henry Friendly, 24 John Jeffries, and William Stuntz25 have recommended restricting habeas petitions that do not allege factual innocence; scholars building on Paul Bator\u27s process theory26 have focused on whether individuals had a fair opportunity to raise their claims in state court;27 and still others have argued that federal habeas should be a forum for some constitutional criminal procedure claims (such as claims of judge or jury bias) but not for others (such as the unreasonableness of a police search).28 On all sides, the literature is large. But from each perspective, these scholars share the assumption that the point of federal review of state convictions should be to correct errors in individual cases. They only differ as to which errors they think are worth correcting-process errors, guilt-innocence errors, or errors affecting certain favored federal rights