Global Civil Procedure Trends in the Twenty-First Century

Abstract

Recent scholarship regarding comparative civil procedure has identified "American exceptionalism" to emphasize practices which set the U.S. apart from most of the world - particularly the civil law world. This article focuses on two areas of "exceptionalism," namely, differences in pleading standards and the role and status of judges. We trace some modern trends in these areas toward convergence. With regard to pleading standards, two recent Supreme Court cases, Bell Atlantic v. Twombly and Ashcroft v. Iqbal, have moved U.S. pleading standards toward the rest of the world. With regard to judicial roles, convergence has been bilateral, with American judges becoming more "managerial" particularly in big cases, and with European judges giving lawyers more responsibilities for presenting the case. Other trends have had the effect of conferring a larger degree of discretion on civil law judges and at the same time increasing their prestige and visibility toward the level that American judges enjoy. The final focus of the article is on the degree to which, from the perspective of the American procedural system, these recent trends might promise opportunities for improvement on the one hand or unwelcome disruption on the other hand.

Keywords: Iqbal, Twombly, civil procedure, comparative, civil law, managerial, convergence, exceptionalism, decodification, globalization, globalisation