Description
(Short description)
The book compares the requirements courts impose on civil plaintiffs pleading their cases, as well as the obligation of the other parties to the suit to participate in the proceedings by way of information disclosure. Before defendants are compelled to cooperate in civil proceedings, the court must analyze the sufficiency of the plaintiff's complaint in both countries. The procedure for finding the pleadings sufficient and moving to evidence evaluation differs significantly in both countries. These differences are due, in large part, to differences in underlying jurisprudential values. In the United States, »the public has a right to every man's evidence«, while in Germany an important principle counsels that no defendant is obliged to provide the plaintiff with the material needed to prevail in court. As a consequence, differences with respect to cooperation and testimonial privileges are also reflected in pleading practices in both countries.
(Text)
This book compares how civil courts in the United States and Germany balance the burdens on plaintiffs and defendants during pleading and information disclosure. It focuses on pleading requirements, accommodations for plaintiffs due to information asymmetry, and testimonial privileges.
At the start of a civil case, courts address key threshold issues before gathering and evaluating evidence. In the U.S., discovery rules provide much broader access to evidence than in Germany. U.S. federal pleading standards were raised after criticism that discovery was too costly and intrusive. However, stricter pleading standards also increase the burden on plaintiffs.The extent to which civil procedure demands cooperation from defendants-such as document and testimony disclosure-reflects deeper value judgments about fair burdens in litigation.
The author uses the ideal types of legal formalism and legal realism to analyze the jurisprudential foundations of German and U.S. approaches to pleading and information disclosure. The book concludes that key procedural principles and long-standing practices explain major differences between the two systems. In Germany, pleading and cooperation rules tend to favor defendants, while in the United States, they generally favor plaintiffs.
(Table of content)
I. The Significance of Civil Private Law AdjudicationHolmes and the Courts - The American Preference for Judges and LitigationII. Attacking FormalismLegal Realism and Related Theories - German Theories of Adjudication - German Legal Science and Methods - Legal Dogmatics and Foundational Research - The Influence of Critical Theories of AdjudicationIII. Comparative MethodWhy Compare? - What is Comparative Law?IV. Private-Law Litigation - Values and AttitudesComparing the Parties' Burdens - Civil Pleading Burdens - Shifting the Parties' Burdens - Conclusion
(Author portrait)
Bachelors of Arts in German and Political Science at Temple University in Philadelphia, including studies at the University of Hamburg. Juris doctor at Duquesne University School of Law (with honors). Legal clerkships at the Governor's Office of General Counsel of Pennsylvania and the Court of Common Pleas in Pittsburgh. Research fellow at Brooklyn Law School. Practicing attorney in New York and Connecticut in the areas of civil litigation, discovery and tax law. Doctorate of laws degree obtained at the University of Cologne.
