Linda S. Mullenix (University of Texas School of Law) has posted Discovering Truth and the Rule of Proportionality (Conference paper: I Seminario Internacional de Derecho Procesal: Dilemas Sobre La Verdad en el Proceso Judicial (October 16-17, 2014)(Medellin, Colombia); Convocan v organizan: La Escuela Derecho y Ciencias Politicas de la Universidad Pontificia Bolivariana, La Universidad de Antioquia et al.) on SSRN. Here is the abstract:
The American legal system of procedural justice is characterized by a unique set of attributes commentators have labeled “American exceptionalism.” Characteristics of American procedural exceptionalism include the notice system of pleading, fact discovery, litigation financing and attorney fees, entrepreneurial lawyering, class action litigation, the judge’s role, punitive damages, evidentiary standards, allocation of burdens of proof, res judicata, and the right to trial by jury. The adversary principle is a foundational premise of the American civil justice system, which posits that the truth will emerge when adversaries rigorously represent the interests of their clients. The central procedural mechanism for implementing this adversary principle is the American system of discovery, largely unknown and repudiated by most civil law systems. This article discusses the fundamental American principle that, through the adversarial pursuit of discovery, the truth of a litigated matter will emerge and triumph. Against this proposition, the article analyzes the competing rule of “proportionality” which imposes limits on unfettered discovery. The article posits the question whether, in a system constrained by a rule of proportionality, the truth can emerge as a consequence of litigant discovery.