Lessons from Abroad: Complexity and Convergence

Prior public interest law paradigms, especially as described by Professor Abraham Chayes, fail as models for the complex litigation that the American judicial system has experienced in the last twenty years: first, because modern complex litigation (particularly mass tort litigation), is being resolved in ways that resemble private legislation negotiated and approved by unelected people, and, second, because a a new descriptive paradigm is needed to capture the both the essence and the nuance of the complex litigation that the American judicial system has experienced at the end of the twentieth century.<br><br>While it is difficult enough to describe a model of complex litigation at the end of the twentieth century, it is perhaps even more challenging to forecast the future of complex dispute resolution. Complex litigation, in particular, has pushed the boundaries of civil rules that were designed for simple litigation. The globalization of social and economic transactions in the twenty-first century, then, will affect complex litigation, and the procedures for resolving complex disputes will be informed by legal lessons from abroad.<br><br>The judicial system lacks the forecasting powers to anticipate new problems. Attorneys, judges, and rulemakers cannot know what kinds of problems, disputes, or grievances will emerge to challenge the role of the judiciary. Jurists, then, typically engage in rule reform after-the-fact, to deal with problems that the rulemakers never anticipated. The impulse towards complexity inevitably leads to reform and simplification.<br><br>Technology and globalization will also have an impact on the future of complex litigation. Technology has enabled international transactions that transcend national borders, and will affect the way in which lawyers conduct their professional activities. Globalization means that business, social, and legal transactions also will transcend national borders.<br><br>In the twenty-first century, the impact of technology and globalization will result in legal problems of global reach and lawyers will be practicing on a world stage. The American lawyer, then, will need to understand comparative law and the ways in which other legal systems resolve complex legal disputes.<br><br>As complex legal problems transcend national borders, American procedural law may well converge with the adjective law of civil law systems. The pronounced differences between Anglo-American procedure and civil law countries may fade or merge, as each system learns from the experiences of the other. The interaction of American lawyers and scholars with civil law colleagues may well spur a convergence of procedural law.