The Netherlands: A No-Nonsense Approach to Civil Procedure Reform
In the Netherlands, significant changes to the procedural regulations and other policy reforms have thoroughly reshaped the legal system over the past decades. Much more attention than before is directed to gathering data and to conducting empirical research in order to assess some of these changes. The role of the judge regarding case management seems to be of greater significance today than in the early 1990s. Judges have the authority to control the progress of lawsuits. It is now common for judges to schedule oral hearings at an early point in time at which the judge will order the parties themselves to appear in court in order to discuss the case. In the Dutch legal system, some preliminary steps have also been taken to promote mediation.
Searching for Truth in Civil Process: The Netherlands and Russia
This article examines the search for truth by the civil law courts in The Netherlands and Russia, and elucidates three basic questions in that respect: 1) should civil law courts seek for truth in civil process; 2) how must this truth be perceived; and 3) how do courts seek for truth? The Dutch approach to these questions is basically that no justice can be done when there has not at least been undertaken a serious effort to find out the truth, while at the same time acknowledging that seeking for truth has less to do with the final result than with the attitude of the court in its quest for a just decision. In their search for truth – by establishing the correct facts – Dutch courts apply a balanced methodology. Russian civil courts take the position that, although are not required to, they think they should search for truth in the sense that it correctly reflects objective reality. It may well be that Russian civil procedure puts in theory a goal of finding objective truth but, while having no objective instrument for that, does so in the most subjective way possible. Dutch methodology may well be the one needed for the Russian courts.
Tethering the Administrative State: The Case Against Chevron Deference for FCC Jurisdictional Claims
Like many other agencies, the Federal Communications Commission has seen significant regulatory growth under President Obama. But unlike health care, financial reform, and other areas, this growth has come without statutory guidance from Congress. The FCC’s assertion of jurisdiction over broadband service is reminiscent of its earlier attempts to regulate cable and to deregulate telephone service, efforts that courts have viewed skeptically in the absence of specific statutory authorization. But this skepticism is in tension with Chevron, which grants agencies substantial deference to interpret ambiguities in the statutes that they administer. This article argues that Chevron deference should not extend to agency jurisdictional claims, such as the FCC’s claim to authority over broadband. For both constitutional and policy reasons, courts should distinguish between agency action that fills a gap in a statutory scheme and action that defines the outer boundary of that scheme. As the Commission’s net neutrality project winds its way through the judicial system, courts should not allow the agency to define the limits of its own authority, and should instead search closely for a grant of authority from Congress.