Bomb Throwing, Democratic Theory, and Basic Values-A New Path to Procedural Harmonization?
Marcus, Richard, Northwestern University Law Review
ABSTRACT-From the beginning of his career, Marty Redish has been something of a bomb thrower, repeatedly challenging legal orthodoxy. During the last decade, democratic theory has been at the center of many of his challenges to widely accepted procedural rules. Meanwhile, American proceduralists are gradually waking up to the reality that the rest of the world handles procedure quite differently. Redish's theoretical challenge to U.S. procedure-premised on political theory-therefore also corresponds to efforts to harmonize American procedure more closely with that of the rest of the world. But the United States remains stubbornly resistant to that harmonization, and even limited shifts in the direction Redish endorses excite very vigorous opposition. This Article recognizes the ways in which Redish's democratic theory could lead to greater harmonization with the rest of the world, but contrasts several other political theory explanations for American exceptionalism that support retaining our current methods. It concludes by recognizing that this tension presents considerable challenges to American rulemakers.
Marty Redish has long been a bomb thrower. By that, I mean that he has launched trenchant critiques of established doctrine that shake up the academic and, sometimes, the judicial establishment. When he was new to academia, for example, he established himself with major articles-bombs-about the right to jury trial,1 the Erie doctrine,2 the timing of appellate review,3 the Anti-Injunction Act,4 and the proper handling of due process limitations on personal jurisdiction.5
Many begin as bomb throwers but end up staid Establishment defenders. Not so with Marty. He has persisted in his clear-eyed and rigorous scrutiny of the solemn precedents in many fields, and has become a giant in constitutional law and federal courts, in addition to civil procedure, the only field I can claim to have mastered even partly.
In the last decade or so, Marty's civil procedure bomb throwing, broadly construed, has shifted from the focus of his first decade in teaching. In particular, he has raised a series of challenges to the foundations on which many of the principles of modern American civil procedure have been built.6 In other words, he has invited us to get back to basics, most recently by emphasizing the foundations of modern procedure. As in his other endeavors, Marty has shaken those foundations. That's what good academic bomb throwers do.
I want to reflect on Marty's recent challenges to orthodoxy, partly from the perspective of one who has found himself laboring in the vineyards of the procedure establishment, at least in relation to several of the topics Marty has within his sights. In addition, I've had some exposure (more than most American proceduralists) to efforts at procedural harmonization in the rest of the world, and I approach these topics with that effort in mind. In the process, I will take some liberties with Marty's actual positions, hopefully not too many, to elaborate on a theme that I take from his recent writings. I will suggest that the combined effect of Redish's critiques could be seen as endorsing a revision of American procedure that would move our practice toward harmonization with the rest of the world. The contrasting attitude might be generalized as the procedure of Continental Europe, which relies on precise specification of factual allegations and evidentiary support, leaves fact-gathering to the judge rather than party-controlled discovery, generally allows less generous monetary relief, and permits the winner to recover its attorney's fees. Drawing then on this comparative perspective, I intend to offer some political theory explanations for the persistence of American procedure in what Marty (and much of the rest of the world) would likely call its erring ways. And then I finish with brief reflections on the consequent messiness of contemporary American procedure reform. …