Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, A Day in Court and a Decision According to Law

Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, A Day in Court and a Decision According to Law

By James R. Maxeiner.

114 Penn St. L. Rev. 1257.

Abstract

The Maryland Declaration of Rights proclaims “That every freeman, for any injury done to him in his person, or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.” America’s litigation lawyers know that these fine words do not describe the reality of our system of civil justice. Last year the American College of Trial Lawyers pronounced our system a “captive to cost, delay and gamesmanship” and “in serious need of repair.” The Iqbal decision is an attempt to deal with one of many failings of our system.

Globalization challenges America to construct a system of civil justice that works. Foreign parties find litigating here a “nightmare.” So, too, do our own people, but they do not know alternatives. The Report of the American College of Trial Lawyers reminds us that our foreign friends know alternatives that work well; no wonder that they are disappointed here.

This article is based on a forthcoming book that examines from beginning to end, a lawsuit in three countries: the United States, Germany and Korea. The book shows ways that one foreign legal system minimizes costs and delay and promotes decisions according to justice and right. The draft chapters of the book are available online at http://ssrn.com/author=825054.

This article puts pleading in historical and comparative perspectives. It shows how past and present systems of American pleading have failed while the German system succeeds.
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