CIVIL PRoCEDURE

Civil Procedure on Discovery: Reform a Current Aspect of Legislation

[Name of the Writer]

[Name of the Institution]

Civil Procedure on Discovery: Reform a Current Aspect of Legislation

Is there any contribution that a European student of comparative law and procedure can make to the study of procedural reforms in the United Stateso Clearly, the answer to this question cannot come from me. You will have to judge for yourself whether or not the continental problems of which I shall speak in this lecture are similar enough to the problems in your country to deserve your attention; whether or not the European solutions, as well as the trends, needs, and designs of reform, may offer any suggestions to Americans.

It is my intention first to analyze the reforms accomplished in Europe in the relatively recent past. I shall then turn to the principal current problems and trends of reform. Finally, I will reflect on the intellectual and sociopolitical background of such reforms, problems, and trends. This approach will also give us the opportunity to discuss what kind of scholarship in the field of civil procedure is demanded today, at least in Europe but probably elsewhere as well, in order to meet the changed needs of our time.

A Look at The Past

The most varied systems of civil procedure have been in force at one time or another in continental Europe. I shall not go back to the ancient ones. I am concerned here only with those types that still exercise some influence for better or for worsen the Continent. We must begin with the late Middle Ages and the jus commune procedure, the "common" procedure of Europe, adopted by the ecclesiastical and imperial courts; defined and refined by the learned doctors at the School of Bologna and all of the other Schools in Italy and elsewhere which followed the Bolognese model; influencing, and yet in turn influenced by, the statutory developments of the free city-states, the principalities, and other sovereignties; "received" as the regular, general type of procedure by most of the Continent during the last centuries of the Middle Ages, and still the prevailing procedural norm on the eve of the French Revolution and beyond. Subject to many variations particularly noteworthy were those in France the jus commune procedure had certain unique characteristics.

Why not, then, entrust the preparation of the record to persons other than the judgeo Thus, the actuary, the notary, and others not the judge examined the witnesses in camera and translated into written language often Latin the witnesses' spoken words. The court only met with the paper sat the end of the proceeding. Hence, a wall existed between the judge, usually a doctor and as such a representative of a small ruling segment of society, and the other persons involved in a civil litigation, particularly the parties and witnesses. With that wall came the insulation of the judge from the facts and, of course, from the people as well.

Third, the jus commune civil procedure was characterized by the so-called "formal" or ...