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The French Huissier As a Model for U.S. Civil Procedure Reform

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The French Huissier As a Model for U.S. Civil Procedure Reform University of Michigan Journal of Law Reform Volume 43 2010 The French Huissier as a Model for U.S. Civil Procedure Reform Robert W. Emerson Warrington College of Business Administration, University of Florida Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Comparative and Foreign Law Commons, Courts Commons, Evidence Commons, and the Litigation Commons Recommended Citation Robert W. Emerson, The French Huissier as a Model for U.S. Civil Procedure Reform, 43 U. MICH. J. L. REFORM 1043 (2010). Available at: https://repository.law.umich.edu/mjlr/vol43/iss4/5 This Article is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE FRENCH HUISSIER AS A MODEL FOR U.S. CIVIL PROCEDURE REFORM Robert W. Emerson* Huissiers dejustice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing"or "assisting")and works directly for the court system itself The huissier's report remains alien to the American lawyer, who is steeped in no- tions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich his- tory in the American tradition. An important aspect of most legal processes, the collection of data in preparationfor litigation is particularly marked by rhetorical differentiations and historical adaptations reflecting upon (actually, reinforcing) a cross-cultural dissonance that discourages both harmonization and legal ex- perimentation between the two great Western legal cultures (Civil Law and common law). The apparent discord between the two systems leads courts and commentators rou- tinely to overestimate the disparity between the use of a French-styled investigative magistrate as opposed to the U.S. trial method. Despite the distinct nature of gath- ering evidence according to the French and U.S. traditions, the huissier is a type of figure found since the origin of the Western legal tradition. Vestiges remain in the United States, although American scholars and practitioners often overlook these manifestations (e.g., trustees and bailiffs). Still, the increasing complexity of commercial litigation, the harmonization of international civil procedure outside the United States, a growing corpus of internationalprivacy standards, and a concern for the competitiveness of US. courts in attractingand inducing business development may cause re-examination of discovery rules, particularly the use of masters and investigative magistrates. Realizing that the French system is reflected in US. law not only may aid in reso- lution of disputes where both French and US. courts might claim jurisdiction, and where issues of transnationaldiscovery often become key to resolving conflicts of law, but further can function as a paradigmfrom which particularadministra- tive functions in U.S. courts may be reformed and harmonized with international standards and with principlesof efficiency. * BA, University of the South; J.D., Harvard Law School. Huber Hurst Prof. of Business Law & Chair, Dept. of Management & Legal Studies, Hough Graduate School of Business, Warrington College of Business Admin., University of Florida. Any errors are the author's own. 1043 1044 University of MichiganJournal of Law Reform [VOL. 43:4 I. INTRODUCTION TO THE HUSSIER .............................................. 1045 A. Gatheringand ReportingEvidence ................................. 1045 B. ComparativeLaw in Theoretical Context ......................... 1050 C. The Huissier as Model: Complications and Possibilities..... 1052 II. H ISTO RY ....................................................................................... 1053 A. Equity, Masters, and U.S. Discovery in H istorical Context ........................................................ 1054 1. The American Courts of Equity Before 1938 ........ 1054 2. Delaware and the Effects of the American Revolution on U.S. Corporate Law ....................... 1060 3. The Special Case of Louisiana Before 1938 .......... 1065 B. The Development of the Huissier de justice .................... 1068 1. The Notarial Professions ........................................ 1068 2. Emergence of the Contemporary Huissier............ 1072 III. USES OF THE HUISSIERAUDENC1ERIN CIVIL LITIGATION ........ 1078 A. The Huissier Under the Nouveau Code de ProcidureCivile ........................................................... 1079 1. Introduction to the Contemporary H uissier Audiencier ................................................... 1080 2. The Huissieys Report .............................................. 1084 3. C onclusion .............................................................. 1086 B. The Dayan and Socit6 Civile Cases: Use of the Huissier in Contemporary U.S. Civil Litigation ............................ 1086 1. Introduction to Using Huissiers' Reports in U .S. C ourts .............................................................. 1089 2. The Dayan Case: An Opportunity for the Transnational Litigator? ......................................... 1090 3. Socidt Civile: Extending the Dayan Theory ........... 1096 4. C onclusion .............................................................. 1100 IV. THE HUSSIER AS A MODEL: REFORMING U.S. DISCOVERY THROUGH ADAPTATION ......................................... 1101 A. A ComparativeLaw and Economics Analysis ofProcedure .................................................... 1103 B. Efficiency of the FrenchProcedural Method ....................... 1108 C. Giving Partiesto Commercial Litigation the Right to Choose an Investigative Magistrate................................. 1111 V. ENHANCING THE SPECIAL MASTER: DOMESTIC COMPLICATIONS AND ISSUES IN INTERNATIONAL CONVERGENCE ................................................ 1112 A. The Special MasterAfter the 2003 FederalRules of Civil ProcedureAmendments: New Potential.................... 1115 B. Complicationsto Effective Reform ................................... 1119 SUMMER 2010] The French Huissier 1045 1. Discovery in the American Tradition .................... 1120 2. The Changing Nature of the Adversarial System and the jury ................................................ 1124 C. Reforming Discovery in Complex and Commercial Litigation: Twenty-First Century Privacy Concerns ............ 1130 V I. CONCLUSION ................................................................................ 1134 I. INTRODUCTION TO THE HUISSIER A. Gatheringand ReportingEvidence It is rare, but far from astonishing, for an American adjudicator to adopt factual determinations from a non-U.S. jurisdiction.' That seems to be far less controversial, or at least newsworthy, than when a U.S. court refers to foreign laws for support.2 Indeed, it seems that after a lengthy history of utilizing foreign case law in its deci- sion making,3 American courts now face considerable criticism for doing so.4 1. See, e.g., Hilton v. Guyot, 159 U.S. 113, 202 (1895) (finding that a foreign judgment will not be recognized by a U.S. court unless "there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a sys- tem of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procur- ing the judgment"); see also Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 158-59 (2d Cir. 2005) (same). 2. See, e.g., Roper v. Simmons, 543 U.S. 551, 575--78 (2005) (disallowing capital pun- ishment for minors under the age of 18, with Justices citing various international human rights laws, treaties, and cases). Justice Scalia criticized the use of international human rights standards. Id. at 622-28 (Scalia, J., dissenting). The majority's discussion of foreign law was discussed widely in the media. See, e.g., Mary Ann Glendon, Judicial Tourism: What's Wrong with the U.S. Supreme Court Citing Foreign Law, WALL ST. J., Sep. 16, 2005, at A14 (on file with the University of Michigan Journal of Law Reform), available at http://www.opinionjournal.com/ editorial/feature.html?id=1 10007265; Charles Lane, 5-4 Supreme Court Abolishes Juvenile Executions, WASH. POST, Mar. 2, 2005, at Al (on file with the University of Michigan Jour- nal of Law Reform), available at http://www.washingtonpost.com/wp-dyn/articles/ A62584-2005Marl.html; Jeffrey Toobin, Swing Shift: How Anthony Kennedy's Passionfor Foreign Law Could Change the Supreme Court, NEW YORKER, Sep. 12, 2005, at 42 (on file with the Univer- sity of Michigan Journal of Law Reform), available at http://www.newyorker.com/archive/ 2005/09/12/050912fafact. 3. Justice O'Connor, dissenting, argued that "[o]ver the course of nearly halfa century, the Court has consistently referred to foreign and international law as relevant to its assess- ment of evolving standards of decency." Roper, 543 U.S. at 604
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