American "Exceptionalism" and Comparative Procedure

52 Pages Posted: 19 Jun 2002

See all articles by Oscar G. Chase

Oscar G. Chase

New York University School of Law

Date Written: November 30, 2001

Abstract

The relationship between a society's culture and its socially-approved means of dealing with disputes has intrigued procedural comparatists and social theorists for decades. Notwithstanding wide acceptance that there is such a relationship, its relevance to pragmatic work of procedural reform remains controversial. The importance of the issue has grown as the globalization of business and personal activity has created incentives to transplant or harmonize procedures across borders. In this essay I focus on the claim that court procedures reflect the fundamental values, sensibilities and beliefs (the "culture") of the collectivity that employs them. Using the United States as the case in point I show how the well-documented idiosyncrasies of American culture are reflected in the procedural rules that govern civil litigation. I turn first to the salient features of American society and adopt the widely shared generalizations about American culture posited by Seymour Martin Lipset. He claims that America's "ideology can be described in five words: liberty, egalitarianism, individualism, populism, and laissez-faire." I then show how those cultural predilections are reflected in four important aspects of civil procedure that are peculiarly American: the civil jury; party-dominated pre-trial discovery; the passive judge; and party-chosen experts.

JEL Classification: K41

Suggested Citation

Chase, Oscar G., American "Exceptionalism" and Comparative Procedure (November 30, 2001). American Journal of Comparative Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=306759 or http://dx.doi.org/10.2139/ssrn.306759

Oscar G. Chase (Contact Author)

New York University School of Law ( email )

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