American Exceptionalism and Convergence Theory: Are We There Yet?

Common Law, Civil Law, and the Future of Categories, p. 41, Janet Walker and Oscar Chase, eds., 2010

Supreme Court Review, Vol. 49, p. 41, 2010

U of Texas Law, Public Law Research Paper No. 314

23 Pages Posted: 3 Feb 2013

Date Written: January 1, 2010

Abstract

American law reform projects eschew reliance on civil law concepts and continue to embrace American procedural exceptionalism. However, in an interesting conundrum, American resolution of complex class settlements often mimic civil law systems, while some civil law systems continue to resist American-style class actions. However, some civil law systems are moving towards adopting class action statutes or legislation. Complex dispute resolution, then, presents and interesting opportunity for convergence of civil and common law systems.

In a world characterized by the increasing globalization of legal practice, one would expect to find an increasing degree of cross-fertilization and borrowing of legal concepts. In particular, one might expect to see the erosion of rigid concepts and categories that have long signaled the differences between the common law and civil law traditions.

This paper discusses the extent to which civil justice reform efforts in the United States reflect the convergence between the American common law and civil law systems. The article explores three inconsistent and perhaps contradictory themes that reflect both an American explicit resistance towards foreign law concepts on the one hand, but implicit utilization of some civil law traditions, on the other. While it is difficult to rationalize these seeming inconsistencies, this is perhaps explained by the peculiarly American resistance to theoretical concepts or foreign norms, but the U.S.’s ready embrace of pragmatism and practical solutions.

Part I briefly canvasses the various means for judicial reform and harmonization projects in American law. This section also describes the well-known theory of American exceptionalism in the procedural universe, and how American exceptionalism serves as a barrier to convergence with foreign legal traditions. Hence, American reform efforts have hewn closely to the concept of American exceptionalism and thus have resisted any drift towards the embrace of civil law traditions. Consequently, in American jurisprudence, at least, the traditional categories of the common and civil law are still highly relevant in describing the American legal system.

Part II of this article then explores a diverting (and unintended) American expression of sympathy for civil law concepts that emerged during the 1980s and 1990s with the civil justice reform movement in the United States. Clearly, the American civil justice reform advocates did not anchor their reform efforts in admiration for civil law systems. Ironically, however, in the quest for civil justice reform, American ideological conservatives embraced a program for reform that incorporated a civil law mindset about access to justice, coupled with numerous features of civil law systems. If convergence had its moment in American legal history, it is perhaps to be found in the civil justice reform movement of this period.

Finally, Part III explores the phenomenon of how the American resolution of complex litigation has informally mimicked many civil law traditions and the ways in which civil law systems similarly resolve complex, massive disputes. This section traces two possible convergence themes: (1) informal convergence through pragmatic American class action settlements, and (2) formal convergence through the adoption of class-action procedural devices in civil law countries. Thus, while civil law countries still rhetorically reject the American-style class litigation, this resistance to class action style procedural mechanisms seems itself to be eroding. Therefore, complex dispute resolution presents the most interesting opportunity for convergence of traditional common law and civil law categories.

So, with regard to convergence and the erosion of traditional categories: Are we there yet? The American answer to this question continues to be a qualified “no.” As indicated above, the primary barrier to achieving convergence with civil law norms is deeply embedded in the American notion of its own exceptionalism. We are theoretically disinclined to embrace foreign values or processes.

On the other hand, one may find American examples of unintended appreciation for, or embrace of, certain civil law traditions. The most interesting example is provided by the 1980s-1990s debate over civil justice reform in the United States, which ironically espoused programs and ideals that many civil jurists would readily recognize. And, the entire arena of complex litigation dispute resolution has come to resemble, de facto, many attributes of civil law traditions.

Finally, as Americans we may not be there yet, but in regard to collective dispute resolution, civil law systems may very well be converging with us. Hence, complex litigation presents the most intriguing opportunity for evolving theories of convergence.

Keywords: Complex litigation, comparative law, civil law, common law, settlements, convergence theory

Suggested Citation

Mullenix, Linda S., American Exceptionalism and Convergence Theory: Are We There Yet? (January 1, 2010). Common Law, Civil Law, and the Future of Categories, p. 41, Janet Walker and Oscar Chase, eds., 2010; Supreme Court Review, Vol. 49, p. 41, 2010; U of Texas Law, Public Law Research Paper No. 314. Available at SSRN: https://ssrn.com/abstract=2210607

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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