Defining Civil Disputes: Lessons from Two Jurisdictions

28 Pages Posted: 23 Sep 2015

See all articles by Elizabeth G. Thornburg

Elizabeth G. Thornburg

Southern Methodist University - Dedman School of Law

Camille Cameron

Dalhousie University - Schulich School of Law; University of Windsor - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: September 3, 2015

Abstract

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions — the United States and Australia — to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary comparative analysis of the approach to pleadings in the United States and Australia, this article recommends that courts should rethink the function of pleadings, alter litigation incentives, and refine case management practices. This will lead to earlier issue identification, better framing of the discovery process, and a more efficient litigation process.

Keywords: Civil Disputes, Case Management, United States, Australia

JEL Classification: K00, K41

Suggested Citation

Thornburg, Elizabeth G. and Cameron, Camille, Defining Civil Disputes: Lessons from Two Jurisdictions (September 3, 2015). Melbourne Univeristy Law Review, Vol. 35, No. 1, 2011, Available at SSRN: https://ssrn.com/abstract=2655780

Elizabeth G. Thornburg

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 0116
Dallas, TX 75275
United States
214-768-2613 (Phone)
214-768-3142 (Fax)

Camille Cameron (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

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