American Civil Procedure: An Introduction.

Author:Shreve, Gene R.
 
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By Geoffrey C Hazard, Jr. and Michele Taruffo. New Haven: Yale University Press. 1993. Pp. x, 230. $28.50.

The unassuming tone and diminutive size of this book belie its worth. Authors Geoffrey Hazard(1) and Michele Taruffo(2) have produced a remarkable exegesis of their subject. As an introduction for academics without law training, this book is without equal. It will help American proceduralists wishing to acquire a comparative or global perspective. Beyond all that, it is simply a seamless, lucid, and thoroughly enjoyable work.

Far more is known in this country of the first author than of the second. Coauthor of a major civil procedure treatise(3) and author of many influential civil procedure articles,(4) hazard stands with Charles Alan Wright(5) at the top of the field. Taruffo's English-language publications have not been extensive; he is a scholar primarily of Italian law.(6) The publications that have appeared could suggest an interest less focused on civil procedure than Hazard's.(7) Taruffo's interest in law appears to be that of a comparativist(8) and seems wide ranging.(9)

Readers may assume, then, that Hazard is largely responsible for the richness of the book's discussion of American procedure and for the surefooted progress the book makes through that entire subject. Taruffo's greatest contributions may have come in the selection and explanation of foreign law procedural models and in the successful process of melding that material with descriptions of American procedural law. His role may well be greater in a counterpart of this book to appear in Europe.(10) In the end, speculations concerning the relative contributions of the coauthors are, of course, just that. Hazard and Taruffo merely state: "The underlying analysis reflects several years of discussion and many written exchanges between us" (p. x).

Most civil cases filed in the United States never see trial.(11) When trials do occur, they are not always efficient or reliable means for settling controversies.(12) For better or worse, however, trial is the centerpiece of American civil procedure, and it contributes more than any other event to the shape of the subject.(13) It therefore makes sense for Hazard and Taruffo to make use of civil trial -- or the prospect of civil trial -- to link together much of their work.(14) About half the book consists of successive chapters describing American procedure for preparing for -- or preventing -- trial, basic and specialized forms of procedure for the trial itself, and the particular procedure involved in appeal and judgment enforcement (pp. 105-204).

The other half of the book -- most of it at the beginning -- consists of material enabling readers to view American civil procedure in broader contexts. The book surveys the antecedents of American procedure found in our own history and abroad (pp. 1-28). It discusses how American courts function as coordinate units of government, with particular attention to public law disputes (pp. 29-34). The authors review sources of governing law -- constitutional, statutory, and common law -- and the relation between federal and state law (pp. 34-43). They describe the structures of federal and state court systems and explain the important influence of American courts, especially the U.S. Supreme Court, on the shape of American law (pp. 43-70). The authors end the book by reflecting on a variety of matters, including procedural goals and justifications, financial constraints on court access, and future reforms that might reduce the cost and improve the quality of litigation (pp. 205-15).

This summary may suggest that American Civil Procedure is rather orthodox. In fact, the opposite is true. The book does not really conform to any established model in the civil procedure literature. It attempts no radical critique or reconceptualization of its subject. The book does not confine itself to any particular aspect of the field. It lacks the length, detail, and how-to orientation of a basic reference work. It is also far too reffective to serve as an exam-preparation device for law students. What are the contributions of this book, then, and how important are they?

The balance of this review addresses those questions. I suggest that at least three groups of readers should be pleased by the appearance of this book. In the first group are scholars who are not law trained but who have a budding interdisciplinary interest in law. In the second are law-trained readers with a substantial but insular understanding of American procedural law, who wish to enrich that understanding with comparative perspectives or who realize that even an American law practice may now require some global understanding of civil procedure. I inhabit the third group. It consists of hardened proceduralists who delight in viewing their subject through the work of a great master.

  1. INTERDISCIPLINARY ATTRIBUTES

    Perhaps the most significant development in modem legal scholarship has been the increase in interdisciplinary inquiry.(15) Civil procedure writing has benefited enormously from this movement.(16) However, effective use of the research methodologies and knowledge of another academic discipline require of law...

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