Comparative and Foreign Law Commons^™

An American Lawyer In The Queen's Courts: Impressions Of English Civil Procedure, Benjamin Kaplan

Michigan Law Review

While the words "English Civil Procedure" in the title of this lecture might suggest that there is a single English system, there are in fact a number of them. In the High Court itself, the court of general jurisdiction, a suit in Chancery Division proceeds differently from an action in Queen's Bench Division: the English have made less of a fetish of the "one form of action" than we have. Procedure in the County Courts, the courts for small-debt collection and miscellaneous claims, contrasts with those of the High Court. But Queen's Bench procedure for the staple cases of some …

Social And Political Aspects Of Civil Procedure--Reforms And Trends In Western And Eastern Europe, Mauro Cappellitti

Michigan Law Review

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 socio-political 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.

Federal Rule 44.1 And The "Fact" Approach To Determining Foreign Law: Death Knell For A Die-Hard Doctrine, Arthur R. Miller

Michigan Law Review

The objective of this article is to analyze Federal Rule of Civil Procedure 44.1, which was developed as part of the reforms of the last decade and became effective on July 1, 1966 and to assess its capacity to rationalize the process of determining foreign law in the federal courts. What follows is an excursion through the past doctrine and into the probable future treatment of foreign law in the federal courts, an exploration of the interrelationship between the new Rule and other phases of federal civil procedure, and an analysis of the prospect that the Rule's effectiveness may be …

Revitalization Of The International Judicial Assistance Procedures Of The United States: Service Of Documents And Takings Of Testimony, Richard F. Gerber

Michigan Law Review

This comment will examine two aspects of such judicial assistance-service. of documents and taking of testimony-and it will analyze each from the viewpoint of assistance obtained abroad in aid of American litigation as well as assistance rendered within the United States in aid of foreign litigation. It will attempt to survey some of the problems involved in securing performance of these acts, indicate the changes in current practice which are likely to result from the revisions of the Federal Rules of Civil Procedure and the proposed amendments to the Judicial Code, and, last, suggest some additional measures which might promote …

Specific Performance In France And Germany, John P. Dawson

Michigan Law Review

Edgar Durfee studied long and closely the subject of specific performance. He taught it for many years, wrote about it and planned to ·write more. He conceived it broadly, as he did every subject that ever had his attention, but he had a lively interest in details, including very technical details. Long before others and much more than most, he saw the importance of our remedial system both in shaping law and as a reflection of its larger purposes. All those who learned from him will remember as long as memory lasts the insight he gave and the hidden meanings …

Required Joinder Of Claims, Dieter L. Hoegen

Michigan Law Review

In review we can say that within a comparatively broad field of the American law required joinder of claims is the rule. There are some exceptions. The German law has no rule of compulsory joinder of claims. Here, there are some exceptions, too. In this sense and within a field which is marked out by the American rule and the German exceptions, the relationship of rule and exceptions is reversed in the two systems.

Required Joinder Of Claims, Dieter L. Hoegen

Michigan Law Review

This comparative study is confined to the situation of one claimant against one claimee. The principles which will be considered seem to be rather well settled both in the American and the German law. The fact, however, that besides many a common result we shall find fundamental differences in the pertinent basic concepts of the American and German systems makes the discussion worthwhile. It may, at least, promote a reconsideration of the propriety of those concepts.

Civil Justice In Germany, Burke Shartel, Hans Julius Wolff

Michigan Law Review

Our aim in preparing this paper is to develop for American lawyers a picture of the functioning of German civil justice. This aim, as well as the paper itself, is an outgrowth of a series of lectures on the German legal system delivered by the authors as background in the law of military occupation for the Judge Advocate General's School of the United States Army in Ann Arbor. That part of these lectures which concerns the operation of German civil justice seems to us of sufficient intrinsic interest to warrant publication.

The Theory And Practice Of Pre-Trial Procedure, Edson R. Sunderland

Michigan Law Review

Pre-trial civil procedure under the English common-law system consisted only of pleading. Whatever the rules of pleading could accomplish in the way of defining and restricting issues contributed to the efficiency of the trial. What could not be done by the rules of pleading could not be done at all.

The great weakness of pleading as a means for developing and presenting issues of fact for trial lay in its total lack of any means for testing the factual basis for the pleader's allegations and denials. They might rest upon the soundest evidence, or they might rest upon nothing at …

The Doctrine Of Stare Decisis In British Courts Of Last Resort, John A. Fairlie

Michigan Law Review

The House of Lords and the Judicial Committee of the Privy Council are both British courts of last resort. The House of Lords is the final court for the United Kingdom and reviews cases from the English Court of Appeals and equivalent courts of Scotland and Northern Ireland; the Judicial Committee hears appeals of cases from the colonies and dominions and ecclesiastical cases.

Readers of Professor Gray's lectures on The Nature and Sources of the Law are aware of the distinction he notes between the attitude of the British House of Lords, on the one hand, and the Judicial Committee …

Civil Pleading In Scotland, Robert Wyness Millar

Michigan Law Review

It might be expected that, after the lodging of the answers and pleas in law on the part of the defender, a brief period would now be allowed the pursuer to put in a reply to any affirmative allegations contained in the defender's pleading. But this is not the case, at least in the sense of his lodging a separate pleading. He is given opportunity to reply, but by way of revising his condescendence. Basically, the principle is the same as that obtaining in our classic chancery practice, whereby the complainant amended his bill in order to include any special …

Civil Pleading In Scotland, Robert Wyness Millar

Michigan Law Review

Said Lord Chancellor Loreburn, in his answers to the questions addressed to him by Mr. Justice Lurton, preparatory to the drafting of the Federal Equity Rules of 1912: "It may be worth while for Mr. Justice Lurton and his coadjutors to consider the Scottish method of pleading which, in my opinion, is the best." This can only mean that the Lord Chancellor regarded the method in question as superior to that obtaining under the English Rules - certainly a high testimonial coming from such a quarter. Whether the opinion is justified or not is a question which may be left …

Procedure - Service Of Process - Jurisdiction Conferred By Consent

Michigan Law Review

Plaintiff, a resident of England, and defendant, a resident of New York, entered into a contract for the sale and delivery of zinc. By a clause in the contract the parties agreed that all differences arising thereunder should be arbitrated at London pursuant to the arbitration law of Great Britain. Differences arose, and the plaintiff requested the defendant in New York to concur in the selection of an arbitrator, serving notice that, in the event of failure so to do, application would be made for appointment of one as provided by statute. This notice was ignored, and a form of …

An Appraisal Of English Procedure, Edson R. Sunderland

Michigan Law Review

On paper the program of the London meeting of the American Bar Association last year was not a crowded one. No busy morning sessions hurried the members away from their hotels; at noon there was a leisurely opportunity for comfortable luncheons; and the drowsy summer afternoon was far advanced before the real business of the day began. But the printed program only marked the high points of the meeting. All through the week, by day and by night, there was London to be seen, the Abbey, the Tower, the Thames, palaces, parks and galleries, and the thousand historic spots which …

Book Reviews, Edwin W. Patterson, Edson R. Sunderland, C E. Griffin

Michigan Law Review

The title of this brilliant little volume might, more accurately, have been, "The Spirits of the Common Law," for it depicts the common law as the battleground of many conflicting spirits, from which a few relatively permanent ideas and ideals have emerged triumphant. As a whole, the book is a pluralistic-idealistic interpretation of legal history. Idealistic, because Dean Pound finds that the fundamentals of the 'common law have been shaped by ideas and ideals rather than by economic determinism or class struggle; he definitely rejects a purely economic interpretation of legal history, although he demands a sociological one (pp. io-ii). …