Comparative Civil Justice: Decision According to Law in the United States, Germany and Korea: Chapter 5 - Pleading: The Matter in Controversy
38 Pages Posted: 16 Nov 2009 Last revised: 9 Dec 2010
Date Written: February 5, 2010
This paper is superseded by a later draft of the complete book, which is available at http://ssrn.com/abstract=1711003.
This is a working draft of a chapter in a book that introduces and compares civil justice systems in the United States, Germany and Korea. This chapter shows how American systems of pleading have failed either to direct parties and judges to material matters in dispute or to bound the dispute to produce fair and efficient decisions. It shows how American pleading has sung from one extreme of strictly limiting the subject matter of the lawsuit to allowing everything to be considered with unfortunate results for efficiency and privacy. The chapter shows how German and Korean systems use pleadings to guide courts in finding and resolving material issues in dispute and to bound the scope of the dispute to the substantive rights claimed by plaintiffs and thereby keeping the costs of litigation proportionate to amounts in dispute. This chapter discusses the “back-and-forth” phenomenon of litigation, that is, that facts and legal rules are mutually interdependent. Until one knows the facts, one does not know which legal rules apply to govern them. But until one knows which rules govern, one does not which facts are material. This phenomenon is infrequently recognized in any of the three systems of civil justice. It has frustrated the American system in successfully applying law, while it has not frustrated the German and Korean systems.
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