It\u27s the Law! Applying the Law is the Missing Measure of Civil Law / Common Law Convergence

It’s the Law! The application of law to facts is a measure of convergence of common and civil law systems of civil procedure that is missing from our program. The previous session addressed “Getting Straight to the Facts” and “Getting Results.” Facts and results are fine, but what of the law and of its application? Should not applying law have pride of place in systems of civil justice? Should not it be the measure of convergence? The measure of convergence that I propose is whether methods of applying law to facts are converging. Applying law to facts is the principal purpose of every system of modern civil justice. A successful method of applying law to facts serves essential functions of legal systems. It helps parties foresee how law will be applied to their lives. Should they have disputes, it helps parties resolve those disputes before bringing suits or, once lawsuits are brought, before those suits are determined. Of course, a method of applying law to facts determines the outcomes of disputes. The method of applying law to facts can facilitate appellate review of court decisions. It can help determine the res judicata effect of those decisions for subsequent disputes. There is no sign of convergence between German and American methods of applying law to facts. The German method shows success and stability. It is the Relationstechnik or relationship technique. It has been in use throughout Germany, little changed, since adoption of the Code of Civil Procedure of 1877. It was in use in parts of Germany before that. There is no single American method. There have been, instead, numerous American methods used in different state and federal courts. American methods have vacillated between convergence and divergence among themselves. They have shown little stability and less success. The German relationship technique has been successful, while American methods have been not been, because it has solved and American methods have not solved, what this paper refers to as the interdependency problem. Applying law to facts requires that laws be determined and facts found. These two findings are interdependent

Legal Certainty and Legal Methods: A European Alternative to American Legal Indeterminacy?

Americans are resigned to a high level of legal indeterminacy. This Article shows that Europeans do not accept legal indeterminacy and instead have made legal certainty a general principle of their law. This Article uses the example of the German legal system to show how German legal methods strive to realize this general European principle. It suggests that these methods are opportunities for Americans to develop their own system to reduce legal indeterminacy and to increase legal certainty

The Professional in Legal Education: Foreign Perspectives

Japan is about to change its system of legal education. In April 2004 Japan will introduce law schools. Law schools are to occupy an intermediary place between the present undergraduate faculties of law and the national Legal Training and Research Institute. The law faculties are to continue to offer general undergraduate education in law, while the law schools in combination with the national Institute are to provide professional legal education. A principal goal of the change is to produce more lawyers. Law schools are charged with providing practical education especially for fostering legal professionals. But just what is professional legal education? And how and where is it to be accomplished? There are recurring issues of legal education around the world. This article focuses on what professional education is and how it is conveyed in Germany and the United States. It puts in comparative perspective some of the choices that Japan is facing in deciding what to include in professional education and where to provide it. The article sets out the issue in general terms and then seriatum the German and American approaches

Are Your Click-Wrap Agreements Valid?—Internet Contracting in the Global Electronic Age: Comparative Perspectives for Taiwan

Addresses the issue of standard terms in click-wrap and shrink-wrap licenses generally and in some detail how the laws of Taiwan, Germany, the European Union, the United States and Japan

Building a Government of Laws: Adams and Jefferson 1776–1779

America’s rule of law is not working well because many American lawyers confound their rule of law with common law and with common law methods. They overlook the contribution of good legislation to good government. They fixate on judges, judge-made law and procedure. America’s founders, in particular, John Adams and Thomas Jefferson, did not. They were not entranced by common law and by common law methods. This chapter shows how in the first few years of American independence, Adams popularized the term “government of laws” and how Jefferson drafted statutes for a government of laws. Neither of them assigned common law or common law methods a leading, let alone the preeminent role in governing assumed today. Instead, they looked for a government of laws that anticipated a rule-of-law state. They looked for a path that would lead to good government and to liberty in law

Some Realism About Legal Certainty in the Globalization of the Rule of Law

The rule of law is at the heart of globalization. It promises both international and domestic routes to peace, security, democracy, human rights and sustainable development worldwide. A central tenet of the rule of law is legal certainty. For most modern jurists, it is a matter of course that legal certainty is a systemic goal, even if that goal is not always fully realized. But for American jurists who count themselves legal realists, legal certainty is not even a flawed goal; it is a childish myth. This address seeks to raise awareness of this fundamental difference and to show its importance for legal methods used to implement the rule of law

Different Roads to the Rule of Law: Their Importance for Law Reform in Taiwan

Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the legal rules themselves and on the institutions charged with implementing the law. Fulfillment of the Rule of Law requires both rules and institutions. But among those countries that have the Rule of Law, there are noticeable differences in how their rules and institutions contribute to fulfilling the Rule of Law. While there is considerable knowledge in Taiwan about western models of the Rule of Law, Taiwanese scholars who look abroad to consider the Rule of Law, should be aware of differences in how the Rule of Law is implemented among the countries they consider as models. The road to the Rule of Law is unique for each state. Thus, after exploring the experiences of the German, American and Japanese systems, Professor Maxeiner points out how infirmities in the Rule of Law necessarily cause you to have to choose among roads to the Rule of Law and to suggest how these choices may affect law reform. He would like to stress that these differences among legal methods demonstrate that there is no one right road to implement the Rule of Law. Taiwanese reformers should not seek for a preferred foreign choice, but to develop their own solution that works best for Taiwan

When Are Agreements Enforceable? Giving Consideration to Professor Barnett\u27s Consent Theory of Contract

This address considers five points: (1) the place of theory in American contract law; (2) the basic elements of Professor Barnett\u27s theory are; (3) how these elements are similar to Continental law; (4) what it says about the American legal world that Barnett\u27s theory has been discussed without reference to Continental systems; and, finally, (5) why I believe the American model is not a good one for a future European Civil Code but also hope that such a Code will become law

Imagining Judges that Apply Law: How They Might Do It

Judges should apply the law, not make it. That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law. American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts is a necessary feature of civil procedure at all. German civil justice does have a method for routinely applying law to facts. It is called, in German, the Relationstechnik, that is, in English, literally relationship technique. This article introduces it to American lawyers and judges and shows how it helps make German civil justice effective

Legal Certainty and Legal Methods: A European Alternative to American Legal Indeterminacy?

Americans are resigned to a high level of legal indeterminacy. This Article shows that Europeans do not accept legal indeterminacy and instead have made legal certainty a general principle of their law. This Article uses the example of the German legal system to show how German legal methods strive to realize this general European principle. It suggests that these methods are opportunities for Americans to develop their own system to reduce legal indeterminacy and to increase legal certainty