Abstract

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.

Document Type

Article

Publication Information

34 Boston College International and Comparative Law Review 1-26 (2011)

Share

COinS