James R. Maxeiner

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

An earlier version of this chapter was published in 31 Houston Journal of International Law 27 (Fall, 2008).

Integrating Practical Training and Professional Legal Education

Reform of legal education is a hot topic. Talk today focuses on practical training. While similar issues are present in every legal system, this discussion will concentrate principally on the three systems of legal education that I know best: the legal systems of the United States, Germany and Japan. All three systems face the problem of how to integrate theory and practice in professional education. Recently, in the United States, the Carnegie Foundation for the Advancement of Teaching released a study, Educating Lawyers: Preparation for the Profession of Law. The Foundation castigates American legal education for paying “relatively little attention to direct training in professional practice”1 and contrasts this with American medical education where there is “growing recognition that medical science is best taught in the context of medical practice. . . .”2 At more or less the same time, in Germany, the German Lawyers’ Association proposed a new legal education law that would completely overhaul

Civil Justice Reform in the United States-Opportunity for Learning from 'Civilized' European Procedure Instead of Continued Isolation?

This article reports on present and past efforts at civil justice reform in the United States and assesses the opportunities for learning from Continental models.

Constitutionalizing Forfeiture Law: The German Example

This article demonstrates how German criminal law has made forfeiture of objects used in crime consistent with constitutional guarantees.

The American ‘Rule’: Assuring the Lion His Share

Court costs in American civil procedure are allocated to the loser (“loser pays”) as elsewhere in the world. When American civil procedure took shape in the 1840s, American lawyers thought that losing parties ought to indemnify winning parties against all expenses of lawsuits. Yet today, attorneys’ fees – the lion’s share of expenses in the words of the General Report – are not allocated this way. By practice – and not by legal rule – attorneys’ fees fall on the parties that incur them. Those fees are not set by statute or court decision, but by agreement between parties and their lawyers (“unregulated fee agreements”). This essay suggests that the reason this is so is that this practice suits lawyers.

Failures of American Methods of Lawmaking in Historical and Comparative Perspectives

America’s eighteenth-century founders expected that the people of the United States would establish a wise and happy government of written laws adopted with a single eye to reason and the good of those governed. Few Americans today would say that America’s lawmaking fulfills the founders’ expectations. Dysfunctional is the word that many Americans use to describe their methods of lawmaking. The legal professions tell the American people that they are doing the best the can. They tell a myth of common law. They say the people should rejoice, and not complain, when America’s judges make law, for such lawmaking makes America’s laws exceptional. It is how America has always made law, they say. Judges make better laws than legislatures, they claim. The historical part of this book explodes the common law myth of dominance of judge-made law in American history. Using sources hardly accessible until 21st century digitization, it shows that statutes have had a much greater role in American law than the legal professions acknowledge. The comparative part of this book dismantles the claim that judges make better law then legislatures. It shows how the methods of American legislative lawmaking, owing to neglect, have failed to keep up with their counterparts abroad, and have thus denied the people the government of laws that the founders expected. This book shows how such a system works in Germany and would be a solution for the American legal system as well

The United States Federal Rules at 75: Dispute Resolution, Private Enforcement or Decisions According to Law?

This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure. The designation essay is deliberate. This essay is a wake-up call to American proceduralists to acknowledge what they all know: the Federal Rules of Civil Procedure fail to fulfill the fundamental goal of civil procedure just about everywhere: apply law to facts to determine rights and decide cases. Because the rules of procedure of American states largely follow the Federal Rules, the federal failure is a national failure. Some American proceduralists excuse this failure by asserting that the rules fulfill other “dynamic” goals. The essay is consciously polemical. It assumes failure is a given. In my book, Failures of American Civil Justice in International Perspective (Cambridge University Press, 2011), I document that failure. Skeptics are invited to consult that book.

United States Federalism: Harmony Without Unity

American efforts to achieve unification within federalism are many. But unification does not well describe the legal system of the United States. Unification is found only when law is exclusively federal. In most areas of the law there are significant non-uniformities between state and federal law and among laws of states and of municipalities. The government presents the people not with one law, but with a multitude of laws. Yet if law in the United States is not often uniform, it is mostly harmonized. Although there are numerous inconsistencies in law, only rarely are these inconsistencies substantive at a societal level (e.g., death penalty in some states). Usually inconsistencies are matters of detail. These details can, however, be extremely important in individual cases (e.g., death penalty, statutes of limitation). The people are left to sort out the various laws at their peril. The inconveniences and inefficiencies are many.

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.

Costs of No Codes

It is well known that the United States does not have a national civil code. This article shows what is less well known about the lack of codes in American law: it is not because Americans did not want codes. Throughout much of the nineteenth century they expected that they would have them. They made many attempts to adopt civil codes at the state level. Only when their attempts failed, did Americans turn to the well-known alternatives of uniform state laws and restatements of the law. These alternatives have proven disappointing. The United States is drowning in sea of uncoordinated laws. It pays a heavy price for the lack of a national civil code.