Civil Procedure in the United States

Civil procedure in the United States has three distinctive features. First, it follows an adversarial model of dispute resolution. Parties initiate and propel litigation in this model, and the judge, historically and at least in theory, plays the relatively passive role of umpire. The burden is on the parties to present their grievances and defences. Unlike in so-called inquisitorial models of dispute resolution, the judge rarely makes independent inquiries. The burden is also on the parties to prosecute their grievances and defenses; litigation stops unless the parties pursue it. These characteristics of the system of dispute resolution place on lawyers a heavy responsibility for assuring justice and mastering civil procedure.

Second, civil procedure in the United States is dominated by positive law: codified rules enacted by legislatures or their delegates. In contrast, the substantive rules of decision taught in the other traditional first year courses are more often doctrinal: declared by courts as part of the common law.

One difference between positive and common law lies in the materials containing the legal rules. The common-law materials are almost entirely judicial opinions, and the appropriate inquiry is: what rule best fits the case? In contrast, positive law materials are enacted laws or procedural rules and legislative history. Emphasis in administering the latter is on their plain words and (sometimes) legislative intent, in recognition of the superior lawmaking authority of legislatures and their delegates.

It is not always easy for the first year student to subordinate the comparatively freewheeling policy-oriented analysis of common law taught in many substantive courses to the plain language of positive law, principles of statutory construction, and reading of legislative history. But mastery of the latter lays the groundwork not just for understanding much of civil procedure, but also for understanding upper level law courses. Significantly, practicing lawyers rank “knowledge of statutory law” as the most important knowledge for practice, just ahead of “knowledge of procedural rules”.

Finally, the purpose of civil procedure is, as the Federal Rules of Civil Procedure state “to secure the just, speedy, and inexpensive determination of every action and proceeding”. Presumably, decisions are more likely to be just when they reach the merits. But the adversarial character of civil dispute resolution in the United States, have made the goals of “speedy and inexpensive” determinations increasingly difficult to attain. As a result, there is constant pressure for more active judicial management of litigation and for judicial intervention to dispose of the litigation without trial, if possible. Thus, the 1993 amendment to Rule 1 requires the rules to be “administered” — as well as “construed” (the original term) — “to secure just, speedy, and inexpensive determination of every action and proceeding”. No one foresees the replacement of the adversarial model by the inquisitorial model of dispute resolution, yet the former is undergoing significant change in response to widespread criticisms of the cost and efficiency of civil litigation.

Рекомендуемая литература

1. Немировская Э.А. We Study Law: учебное пособие.

2. (файл 10) Collin P.H. Dictionary of Law. 8,000 terms clearly defined. – 4^th edition. –Bloomsbury Publishing Plc, 2004.

3. Мюллер В.К. Англо-русский, русско-английский словарь. 150000 слов и выражений.- М.: Эксмо, 2010. – 1200 с.

Тема 8. Правоведение зарубежных стран (Канада)

Содержание темы: основы правоведения в Канаде, гражданский процессуальный кодекс в Канаде.

Вопросы для самоконтроля:

1. Дайте краткую характеристику правовой системы Канады?

2. Существуют ли отличия в правовой системе Канады и России?

3. Повторить правила составления презентации в PowerPoint.

4. Повторить речевые клише, свойственные устному докладу.

5. Самостоятельно подберите англоязычную информацию по правовой системе Канады?