Misgivings About American Exceptionalism: Court Access as a Zero-Sum Game

Abstract

This contribution reports on the tenor of relatively recent American reform efforts, which may strike those from the rest of the world as surprising because they urge that access to justice, at least in terms of procedural arrangements, is something of a zero-sum game, a game theory construct in which a gain by one side can be had only if there is a corresponding loss by the other side. That seems a peculiar attitude to take toward procedure, which is designed in general to enable just results. Indeed, that is a central assumption of Professor Huang's book endorsing the adoption of American discovery and related concepts in the rest of the world.