Procedure and Pragmatism
In Debatiendo con Taruffo (J. Ferrer & C. Vasquez eds, Marcial Pons 2016)
22 Pages Posted: 23 Jan 2015 Last revised: 15 Nov 2017
Date Written: 2016
In this essay, prepared as part of a festschrift for the Italian scholar, Michele Taruffo, I portray him as a pragmatic realist of the sort described by Richard Posner in his book, Reflections on Judging. Viewing him as such, I salute Taruffo for challenging the established order in domestic and comparative law thinking about civil law systems, the role of lawyers, courts and precedent in those systems, and also for casting the light of the comparative enterprise on common law systems, particularly that in the United States. Speaking as one iconoclast of another, however, I also raise questions about Taruffo’s depictions of American litigation, in particular the class action. Suggesting that he privileges the perspectives of sociology and cultural anthropology over those of economics and political science, I argue that, to the extent that professional ideology is involved in enforcing federal statutory rights, it is primarily the ideology of doing well by doing good. I also contend that, if one is not careful to trace the history of, and the purposes served by, the different types of class action authorized in Rule 23(b) of the Federal Rules of Civil Procedure, it is difficult to discern the different motives/ideology that may drive litigation under them, a question intimately linked to the different funding sources that may be available.
Keywords: Comparative law and procedure, legal practice, legal sociology, litigation, courts, evidence, class actions, complex litigation, private enforcement, incentives and motivations for litigation, pro-plaintiff fee shifting
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