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The Interaction of Procedural and Substantive Law in the United States, France, and China, 23 Pac Global Business & Development Law Journal Volume 23 Issue 1 Symposium: Local to Global: Rethinking Article 6 Spheres of Authority After a World Financial Crisis 1-1-2010 Threshold Obstacles to Justice: The nI teraction of Procedural and Substantive Law in the United States, France, and China Daniel Vandekoolwyk Pacific cGeM orge School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/globe Part of the Civil Procedure Commons, and the Comparative and Foreign Law Commons Recommended Citation Daniel Vandekoolwyk, Threshold Obstacles to Justice: The Interaction of Procedural and Substantive Law in the United States, France, and China, 23 Pac. McGeorge Global Bus. & Dev. L.J. 187 (2010). Available at: https://scholarlycommons.pacific.edu/globe/vol23/iss1/6 This Comments is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in Global Business & Development Law Journal by an authorized editor of Scholarly Commons. For more information, please contact [email protected]. Threshold Obstacles to Justice: The Interaction of Procedural and Substantive Law in the United States, France, and China Daniel Vandekoolwyk* TABLE OF CONTENTS I. INTRODUCTION ....................................... ............. 187 II. DESCRIPTION OF HYPOTHETICAL CASE............................ 189 III. UNITED STATES.................................................... 190 A. Historical Context .............................. ....... 190 B. Legal Costs and Legal Aid .......................... ..... 191 C. Pleading Standard.................................... 194 D. Alternative Dispute Resolution ....................... ..... 196 IV. FRANCE ................................................... ...... 199 A. HistoricalBackground ............................ ..... 199 B. Legal Costs and Legal Aid ...................... .... ...... 201 C. Court Selection ....................................... 204 D. Pleading ...................................... ..... 206 E. Alternative Dispute Resolution... ............................ 207 V. PEOPLE'S REPUBLIC OF CHINA......................................210 A. Historical Context....................................210 B. Legal Costs and Legal Aid...............................211 C. Attorney Availability...................................215 D. Pleading...........................................216 E. Corruption..........................................217 F. Alternative Dispute Resolution............................ 218 VI. COMPARATIVE EVALUATION OF SYSTEMS ............................ 221 VH. CONCLUSION .................................................... 222 I. INTRODUCTION We can . .. define procedure in a common sense manner. Procedural law may contain its own independent values, but it also serves as an * J.D. Candidate, University of the Pacific, McGeorge School of Law, to be conferred May 2010; B.A., History, University of California Santa Cruz. I would like to thank Professor Thomas Main for his invaluable assistance on this Cmment. I would also like to thank Professors Wenyan Luo and Mao Xiaoxiao for providing me with an essential perspective on the Chinese legal system. Lastly, I would like to thank my friends and family, without which this would not have been possible. 187 2010 / Threshold Obstacles to Justice instrument for guaranteeing the observance of substantive law, or, in the event that the substantive law has been breached, as a means through which an injured party may obtain relief. Procedural law therefore is necessarily interdependent with substantive law, and neither is of much value without the other.' As the above quote eloquently illustrates, procedural law is inherently intermingled with substantive law, and in order to understand the practical significance of procedural law, it is best to discuss it in relation to its practical effect on substantive law. Civil procedure represents the instruments and tools available to a potential litigant to have their substantive rights protected in the civil courts. If a civil procedure system confronts potential litigants with significant hurdles that must be overcome before the merits of the case may even be heard, it is likely that many litigants may decide not to bring the case at all. As one noted scholar on civil procedure put it, "procedures can, in a very practical sense, negate, resuscitate, or generate substantive rights."2 Yet, if one views procedural rules in isolation of the substantive law, it can be very difficult to see their significant practical effect. In recognition of this problem, this comment will illustrate the practical consequences of the procedural issues involved here by a discussion of a hypothetical case. This case, the details of which will follow, will provide the reader with a lens to examine the procedural issues mentioned here in a more realistic light. Even with this perspective, any discussion of procedural law would be limited if it focused only on a single country. Procedure is a reflection of important political and ideological battles, and to view it in isolation of a single country would ignore the importance that culture and history have in any system of civil procedure.' Accordingly, this comment will examine how procedural law would affect a hypothetical case in a common law system (the United States), a civil law system (France), and a socialist system (The People's Republic of China). Since each system emerged out of a unique historical and political context, this comment will also briefly address the historical background of each country. 1. Mauro Cappelletti & Bryant G. Garth, Chapter 1: Introduction - Policies, Trends and Ideas in Civil Procedure, in INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW: VOLUME XVI CIVIL PROCEDURE 14 (Mauro Cappelletti Ed., 1987). 2. THOMAS 0. MAIN, GLOBAL ISSUES IN CIVIL PROCEDURE 1 (2006). 3. See id. (discussing the notion that mastery of civil procedure requires an understanding of global issues). 4. See Michael T. Colatrella, Jr., "Court-Performed" Mediation in the People's Republic of China: A Proposed Model to Improve the United States FederalDistrict Courts' Mediation Programs, 15 OHIO ST. J. ON DISP. RESOL. 391, 414 (2000) (arguing that culture and history play an important role in the development of civil procedure); see also Oscar G. Chase, American "Exceptionalism" and Comparative Procedure,50 AM. J. COMP. L. 277, 278 (2002); see generally OSCAR G. CHASE, LAW, CULTURE, AND RITUAL: DISPUTING SYSTEMS IN A CROSS-CULTURAL CONTEXT (2005). 188 Global Business & Development Law Journal/ Vol. 23 In order to gain a full and complete perspective on a given civil procedure system it would be ideal to study all aspects, from pre-filing to appeals. Due to practical time and space limitations, this comment will only address procedural obstacles that affect the pre-filing stage. These obstacles include the total cost of litigation, both attorney fees and fees to the court, in addition to any possible relief for litigants who are unable to afford those costs. Even assuming that a litigant may be able to afford these fees, the next question is the amount of preparation, in the form of factual allegations or evidence, the litigant must undergo before they can proceed with their claim. If the potential cost of litigation is simply too high, or too burdensome, the next issue is whether there are any alternatives, or informal, alternative dispute resolution systems that the litigant can use to seek relief. Although this approach focuses on a narrow segment of a system of civil procedure, the topics illustrate well the interaction of procedural and substantive law in a variety of important contexts. II. DESCRIPTION OF HYPOTHETICAL CASE A stylized case will be used to examine pre-filing obstacles in all three jurisdictions. This case involves a small business owner named Jane Doe. She formed a contract with a construction company to build an addition to her business premises. The job was completed but Ms. Doe claims it was performed inadequately and would like to recover damages from the contractor. This comment will trace several reasons why she may decide not to file a formal action. The matter in controversy would be an amount large enough to escape small claims courts, but not something so extraordinary that it would make or break Ms. Doe's business. One potential weakness in this survey is that procedural law would likely be only one of the many reasons that Ms. Doe would choose not to file her case. Other potential reasons could relate to the merits of her potential case, the particular nuances of the substantive law, and simple personal reasons that are not easily categorized.! However, an examination of the procedural obstacles that may confront Ms. Doe in her pursuit for relief offers a perspective on how the courts, as a system, may look to potential litigants. As such, the nuances of the substantive law in question, although important, are not addressed in this comment. 5. See Shawn J. Bayern, Explaining the American Norm Against Litigation, 93 CAL. L. REv. 1697 (2005) (arguing that the vast majority of injuries experienced go uncompensated, and explaining the reasons why people choose not to file a lawsuit). 189 2010 / Threshold Obstacles to Justice III. UNITED STATES A. HistoricalContext The roots of United States civil procedure law can be found in the English procedural system. 6 At the time of the founding of the United States, the English court system was split between two
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