| . |
James R. Maxeiner's
Scholarly Papers
Click on the title of any column to sort the table by that
column. |
|
|
| |
|
|
Aggregate Statistics |
|
Total Downloads
1,457 |
Total
Citations
0 |
|
|
|
|
|
1.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
18 Aug 08
|
|
Last Revised:
|
|
11 Feb 09
|
|
161 (52,922)
|
|
|
| |
Abstract:
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.
Rule of Law, Rechtstaat, Legal Certainty, Rechtssicherheit, securite juridique, certezza del diritto, rechtsezekereheid, la seguridad juridica, legal indeterminacy, under determinacy, legal methods, legal reasoning
|
|
|
2.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
26 Jun 08
|
|
Last Revised:
|
|
19 Sep 08
|
|
139 (60,644)
|
|
|
| |
Abstract:
The 2007 Carnegie Foundation report on legal education, Educating Lawyers: Preparation for the Profession of Law, is eerily reminiscent of the Foundation's 1914 Report, The Common Law and the Case Method in American University Law School. This article compares the two reports. It commends the 1914 report for its broad comparative civil/common law perspective that is unsurpassed to this day. It shows how the two reports view the case method similarly, but with significantly different emphases. The 2007 report counts the case method as academic, while the 1914 report sees it as practical. It shows how the two reports, while having similar diagnoses of the ills of legal education, prescribe different cures. The 2007 report calls on legal educators to increase clinical education; the 1914 report urges them to rationalize the legal system in order "to invigorate the principle of social and economic justice in the life of the American people." The article questions the comparability of medical and legal professional education. The article is available in book form together with a reprint of the 1914 report.
legal education, legal scholarship, legal training, medical education, comparative legal education, legal methods
|
|
|
3.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 May 09
|
|
Last Revised:
|
|
16 Sep 09
|
|
94 (82,594)
|
|
|
| |
Abstract:
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.
common law civil law convergence, legal methods, applying law to facts, relationship technique, civil procedure, pleading, fact pleading, notice pleading, common law pleading, syllogism, syllogistic law application
|
|
|
4.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
18 Aug 08
|
|
Last Revised:
|
|
11 Jan 09
|
|
69 (100,919)
|
|
|
| |
Abstract:
This address has three principal points: (1) An overview of how we are going about internationalizing the law school curriculum today in the United States; (2) Whether we are making as much progress as we should and how learning from others is central to sustaining our progress such as it is; and (3) What some of the obstacles to such learning are.
International legal education, foreign law, law faculty selection, comparative law, trans-systemic law, first year courses
|
|
|
5.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
17 Aug 08
|
|
Last Revised:
|
|
24 Sep 08
|
|
63 (106,265)
|
|
|
| |
Abstract:
Foreign experiences remind us that legal education is not just law school. They inform us that we should seek for ways not just to integrate theoretical and practical teaching, but to assure that our students or our graduates get real experience with practice. The assumption that law schools are the exclusive place for preparation for the profession of law is bad for students, bad for bar, bad for law schools, bad for the legal system and bad for society. We should look to see what we can do best and should encourage other institutions to do what they can do better.
Legal education, legal profession, legal writing, articling, Referendar, legal internship, legal clerkship, practical training, clinical legal education
|
|
|
6.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
19 Aug 08
|
|
Last Revised:
|
|
29 Aug 08
|
|
55 (113,829)
|
|
|
| |
Abstract:
This address considers five points: (1) the place of theory in American contract law; (2) the basic elements of Professor Barnett's theory are; (3) how these elements are similar to Continental law; (4) what it says about the American legal world that Barnett's 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.
contract law, consideration, intent to be bound, German law
|
|
|
7.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
19 Aug 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
51 (117,840)
|
|
|
| |
Abstract:
This comment reports on a case pending before the European Court of Human rights which raises the question whether torture can ever be supported to save human life.
ticking time bomb, torture, Rettungsfolter, rule of law, Gaefgen, Metzler
|
|
|
8.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
18 Aug 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
49 (120,031)
|
|
|
| |
Abstract:
The EU Data Protection Directive attempts to balance protection of privacy and freedom of information acquisition. It does this by authorizing Member States to provide exemptions and derogations in their individual legislation.
freedom of information acquisition, Article 10, data privacy, data protection
|
|
|
9.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Aug 08
|
|
Last Revised:
|
|
01 Sep 08
|
|
47 (122,207)
|
|
|
| |
Abstract:
This presentation examines some of the new laws that affect the liability risks faced by online service providers that rely in part or in whole on information posted or otherwise provided by third parties, both with respect to issues associated with liability for defamatory information and to infringement issues. In this presentation we are going to consider first the most important areas of liability for distribution of third party content. These laws pre-date the Internet and continue in force. We will then consider liability for third party content under the most important of those laws. Finally, we will consider how two relatively new federal laws, section 230 of the Communications Decency Act (CDA) and section 512 of the Digital Millennium Copyright Act (DCMA) change the law of liability for third party content, and will also examine a European counterpart. Along the way we will consider the risks intermediaries run and how practically both under the old law and the current law they may seek to reduce them. Few, if any, of the specific legal issues information service providers face in providing information on the Internet are new. Most are old issues that have assumed new or different importance because the Internet has changed the quantity, speed and geographic scope of information distribution. A few examples of how the Internet has changed things quickly come to mind. Public information that was available only when looked up in a courthouse is now much more public when it can be consulted online. Republication of articles, which was a common practice in early 19th century magazines, takes on a whole different scope when the number of articles republished goes from dozens to millions. International distribution which before the Internet was unusual is now the rule.
Information, Provider Liability, Communications Decency Act (CDA), Digital Millennium Copyright Act (DCMA)
|
|
|
10.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Jun 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
47 (122,207)
|
|
|
| |
Abstract:
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.
legal certainty, legal indeterminacy, legal methods, law reform, civil procedure, comparative law, legislation, case law, statutory interpretation, federalism
|
|
|
11.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
19 Aug 08
|
|
Last Revised:
|
|
19 Sep 08
|
|
43 (126,767)
|
|
|
| |
Abstract:
"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. It is not; it is what the public rightly expects from law. H.L.A. Hart, reminded U.S. jurists that "conventional legal thought in all countries conceives as the standard judicial function: the impartial application of determinant existing rules in the settlement of disputes."
This essay discusses the German method of judicial applying of law to facts. called, in German, the "Relationstechnik," that is, in English, literally "relationship technique." This essay shows how it helps make German civil justice work effectively and justly.
law applying, legal method, subsumption, Relationstechnik, relationship technique, legal reasoning
|
|
|
12.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
19 Aug 08
|
|
Last Revised:
|
|
21 May 09
|
|
43 (126,767)
|
|
|
| |
Abstract:
This report surveys uniform laws in federalism in the United States for synthesis in an international report comparing uniform laws in federal countries.
uniform laws, harmonization of law, model laws, approximation of laws, uniform legislation, directives
|
|
|
13.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Jun 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
42 (127,972)
|
|
|
| |
Abstract:
This article examines American, European Union and German standard terms laws from an American perspective. It considers not only current law, but significant aspects of the development of these bodies of law. It sets out general issues involved in standard terms laws and summarizes American law. It notes the origin of American concepts in Europe and examines standard terms in the struggle over revision of the Uniform Commercial Code. It looks at the law of the European Union and its origin in the consumer movement. It considers in detail the law of one Member State as an example, that of Germany.
Standard terms law, unconscionability, 2-302, consumer law, legal history, comparative law, click-wrap, rolling contracts, adhesion
|
|
|
14.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Aug 08
|
|
Last Revised:
|
|
24 Sep 08
|
|
41 (129,168)
|
|
|
| |
Abstract:
The expert often plays a crucial role in patent litigation in both Germany and the United States. Determination of facts and application of law to facts frequently require a technical understanding that only an expert can provide. Despite the similarity of the problem of conveying information to the decision-maker, the role of the expert in the two systems and the manner in which the problem of providing technical knowledge necessary for the decision is solved are so very different, that German jurists who transfer their German experiences and expectations over to US procedures, are in danger of experiencing great disappointment if not disaster. American practices relating to the selection and preparation of expert witnesses are so different from European practices, that their explanation to European jurists is said to cause "amazement... bordering on disbelief. " Knowledge of American practices can both ease involvement in an American patent lawsuit, whether as party or as expert, and contribute to a better understanding of the risks and costs of patent lawsuits in the United States.
Expert Witnesses, Patent Litigation, Patent Courts, Patent Judges, Discovery, Testimony
|
|
|
15.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Aug 08
|
|
Last Revised:
|
|
29 Aug 08
|
|
40 (130,429)
|
|
|
| |
Abstract:
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.
Standard terms, click-wrap, shrink-wrap, unfair terms, unconscionability EU, Japan, Germany, content control, incorporation control
|
|
|
16.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Jun 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
35 (136,771)
|
|
|
| |
Abstract:
The thesis of this Article is that the indeterminacy that plagues American law is "Made in America." It is not inherent in law. Rather, it is a product of specific choices of legal methods and of legal structures made in the American legal system.
legal certainty, legal indeterminacy, legal methods, legislation, case law, statute law, civil procedure, pleading, jury, federalism, localism, local government
|
|
|
17.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
24 Aug 08
|
|
Last Revised:
|
|
24 Sep 08
|
|
33 (139,574)
|
|
|
| |
Abstract:
The legal methods through which one adopts and implements policy decisions profoundly affect the compatibility of policy implementation with democratic legitimacy and legal certainty of the rule of law. Indeed, the choice of legal methods can be as important as the formulation of the policy itself. While a good choice of methods will not heal a bad policy, it can help assure that a less-than-perfect choice of policy can be more forcefully realized than otherwise, it can also help improve the policy choices made and help protect democratic legitimacy and the rule of law. While deficiencies in legislation or in the political system may require resort sometimes to policy decisions in the course of law application, legislatures should minimize mixing policy decisions with law application. One of the simplest ways of promoting policy while safeguarding the rule of law is to restrict the effect of policy decisions to the future. In any case, policy decisions can ordinarily be expected to be better made when they are recognized as such, are made by institutions created to make policy decisions, and are reached by decision makers who can appeal to political responsibility as a basis for their decisions.
Policy, Legal Methods, Antitrust, Rule of Law, Legal Certainty, Legal Indeterminacy
|
|
|
18.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
19 Aug 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
30 (144,044)
|
|
|
| |
Abstract:
This paper addresses the importance of comparative legal methods for study of comparative procedure.
legal methods, civil procedure, culturalism, comparative law
|
|
|
19.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
07 Oct 09
|
|
Last Revised:
|
|
07 Oct 09
|
|
29 (145,755)
|
|
|
| |
Abstract:
This report summarizes critically the American practice of providing indemnity for court costs in litigation but not for attorneys' fees. It considers the basics, who pays, the rationals, exceptions,and modifications. It challenges the suggestion that the American no-indemnity practice reflects American values and debunks the assertion that it is used to promote access to justice. The report show that American jurists, just as their non-American counterparts, have pointed to a rational of full realization of rights to support complete indemnity. The reports notes the role of the bar in promoting no indemnity and the importance of viewing litigation as an event separate from the rights that it is to enforce.
American rule, English rule, contingent fee, fee-shifting, costs, attorney's fees, legal aid, access to justice
|
|
|
20.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
24 Aug 08
|
|
Last Revised:
|
|
29 Aug 08
|
|
29 (145,755)
|
|
|
| |
Abstract:
Discusses the lack of American interest in learning about foreign civil procedure. Considers points where America might benefit from foreign experiences. Suggests significant differences in procedure can be attributed to emphasis on day-in-court thinking over reasoned decision thinking.
day-in-court, civil procedure, foreign law, subsumption, syllogistic, legal methods, judgment style, Relationstechnik
|
|
|
21.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
18 Aug 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
28 (147,523)
|
|
|
| |
Abstract:
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.
civil justice reform, case management, foreign civil procedure, German advantage in civil procedure, foreign law
|
|
|
22.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
18 Aug 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
28 (147,523)
|
|
|
| |
Abstract:
Discusses the public interest in the free flow of information.
Privacy, data protection, freedom of information, freedom of speech
|
|
|
23.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Aug 08
|
|
Last Revised:
|
|
24 Sep 08
|
|
26 (151,580)
|
|
|
| |
Abstract:
a. The Rule of Law is at the heart of the present legal reform.
b. There is an international consensus about basic elements of the Rule of Law.
c. Legal methods are central to the Rule of Law. But different legal methods are used to realize the Rule of Law.
d. Teaching legal methods, i.e., teaching to think like a lawyer, is at the heart of that which is professional in legal education.
e. The present legal reform invites Japanese law schools to teach legal methods.
Rule of Law, Legal Methods, Legal Education, Legal Reasoning, Legal Mind, Thinking Like a Lawyer
|
|
|
24.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
24 Aug 08
|
|
Last Revised:
|
|
29 Aug 08
|
|
24 (156,290)
|
|
|
| |
Abstract:
Address the problem of comparative law in the United States. Explains why comparative law matters. Gives reasons why U.S. lawyers are not learning from comparative law. These include lack of skills, lack of institutional supports, and legal structures that resist comparative law. and an attitude that comparative law has little to teach.
Comparative Law, Legal Education, Legal Methods
|
|
|
25.
|
|
|
Keiichi Yamanaka Kansai Law School James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
29 Aug 08
|
|
Last Revised:
|
|
20 Nov 08
|
|
23 (158,878)
|
|
|
| |
Abstract:
In April 2004, more than sixty law schools began operation in Japan. Legal education, previously treated as a combination of undergraduate education in law and extra-university training in professional skills, will now be concentrated in new professional law schools. The reforms of Japanese legal education are intended both to produce more attorneys in a nation that has a shortage of legally trained professionals, and to help increase the role of law in Japanese society generally.
In order for Japan's new law schools to achieve their educational objectives, they must successfully address a host of conceptual, pedagogical and organizational challenges. Foremost among these challenges is making legal education professional by placing a focus upon legal reasoning.
legal education, legal reasoning, subsumption, syllogism, practical training, judicial training
|
|
|
26.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
23 Aug 08
|
|
Last Revised:
|
|
28 Aug 08
|
|
23 (158,878)
|
|
|
| |
Abstract:
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.
Rule of Law, Legal Methods, The Subsumption Model, Rechtssatz, Tatbestand, Rechtsfolge, Justice, Public Policy, The Judicial Process, Jury, Judge-Made Law, Fairness of the Process,Flexibility, Legal Certainty, Legal Indeterminacy, Equity
|
|
|
27.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Aug 08
|
|
Last Revised:
|
|
19 Sep 08
|
|
22 (161,615)
|
|
|
| |
Abstract:
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.
|
|
|
28.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Aug 08
|
|
Last Revised:
|
|
09 Oct 08
|
|
20 (167,285)
|
|
|
| |
Abstract:
This piece is intended to show Japanese law students how their own everyday experiences raise significant domestic and international legal questions. It shows that a seemingly technical matter need not be boring, but can provide an example of practical application of law internationally and of the benefits that knowledge of foreign law can bring in assisting in understanding and improving domestic law. It discusses standard terms in licenses of information and software.
Standard Terms Contracting, Click-Wrap, Shrink-Wrap, Unfair Terms, Unconscionability
|
|
|
29.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
29 Aug 08
|
|
Last Revised:
|
|
29 Aug 08
|
|
19 (170,204)
|
|
|
| |
Abstract:
Discusses lack of clear career paths in international legal practice.
international practice, legal careers
|
|
|
30.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
27 Aug 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
19 (170,204)
|
|
|
| |
Abstract:
Shows how the key points Roscoe Pound made in his famous law reform address point to foreign law study for future reform.
Roscoe Pound, 1906 Address, law reform, foreign law, civil procedure, legal methods
|
|
|
31.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
24 Aug 08
|
|
Last Revised:
|
|
28 Aug 08
|
|
19 (170,204)
|
|
|
| |
Abstract:
Law faculties in Japan are asking whether and how they should remake themselves to become law schools. One basic issue has been framed in terms of whether such programs should be professional or general. One Japanese scholar put it pointedly: "[a] major issue of the proposed reform is whether Japan should adopt an American model law school, i.e., professional education at the graduate level, while essentially doing away with the traditional Japanese method of teaching law at university." American law schools are seen as having as their fundamental goal "to provide the training and education required for becoming an effective legal practitioner, i.e., the institutions provide a 'professional legal education.'"
This article addresses the professional character of American law schools in the context of a comparison with German legal instruction. Its focus is on differences in the hope that these comparisons will help clarify thinking about the choices available to Japan. That comparative perspective leads the author to suggest that before one considers using the American legal education system as model of professional education, one should ask the preliminary question: What should the legal system itself look like?
Law School, Law Faculty, Legal Education, Professional Education, Law as Science, Legal Scholarship, Practical Training
|
|
|
32.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Aug 08
|
|
Last Revised:
|
|
24 Sep 08
|
|
15 (181,645)
|
|
|
| |
Abstract:
The purpose of this contribution is to help develop Methods Awareness in German jurists unfamiliar with American law. It shows how distant from German understanding present-day American practice is. It proceeds from Fikentscher's thumbnail sketch of German Prevailing Teaching: "this method starts from norm-thinking, therefore thinks in rules, that are applied to the case at hand." It refers to the core elements of this teaching, namely the place of the legal norm (Rechtssatz) in the legal order (Rechtsordnung) and its application to a particular set of facts (i.e., subsumption), and discusses the significance of these concepts in American law. It leaves unaddressed certain other key elements of Methods Theory, such as differences between case law and statute law, which are much discussed elsewhere in the literature.
Legal Methods, Subsumption, Syllogistic, Legal Reasoning, Relationstechnik, Judgments, Law-Making, Legislation, Legal Process, Applying Law, Law-Applying, Law Application, Legal Process, Nightmare Noble Dream, Rule Skepticism, Self-Application
|
|
|
33.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Aug 08
|
|
Last Revised:
|
|
25 Aug 08
|
|
14 (184,527)
|
|
|
| |
Abstract:
This article demonstrates how German criminal law has made forfeiture of objects used in crime consistent with constitutional guarantees.
in rem forfeiture, deodand, criminal foreiture,
|
|
|
34.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
01 Sep 08
|
|
Last Revised:
|
|
01 Sep 08
|
|
12 (190,324)
|
|
|
| |
Abstract:
The expert often plays a crucial role in patent litigation in both Germany and the United States. Determination of facts and application of law to facts frequently require a technical understanding that only an expert can provide. Despite the similarity of the problem of conveying information to the decision-maker, the role of the expert in the two systems and the manner in which the problem of providing technical knowledge necessary for the decision is solved are so very different, that German jurists who transfer their German experiences and expectations over to US procedures, are in danger of experiencing great disappointment if not disaster. American practices relating to the selection and preparation of expert witnesses are so different from European practices, that their explanation to European jurists is said to cause "amazement... bordering on disbelief. "Knowledge of American practices can both ease involvement in an American patent lawsuit, whether as party or as expert, and contribute to a better understanding of the risks and costs of patent lawsuits in the United States.
(Ob in Deutschland oder in den Vereinigten Staaten, der Sachverstaendige spielt haeufig eine entscheidende Rolle in einem Patentrechtsstreit. Die Erforschung der Tatsachen wie auch die Anwendung des Rechts erfordern oft ein technisches Verstaendnis, das nur ein Experte liefern kann. Das Problem, wie diese Informationen demjenigen, der das Urteil faellen muss, nahegebracht werden koennen, stellt sich in beiden Systemen gleichermassen. Allerdings sind die Rolle des Sachverstaendigen und die Art, wie diese Informationen uebertragen werden, hier und dort so verschieden, dass deutsche Juristen schwere Enttaeuschungen, wenn nicht sogar empfindliche Niederlagen befuerchten muessen, wenn sie ihre Vorstellungen und Erfahrungen auf den amerikanischen Prozess uebertragen. Nach Meinung Langbeins weicht die amerikanische Art, Sachverstaendige auszuwaehlen und vorzubereiten, so weit von der europaeischen Praxis ab, dass eine genaue Darstellung bei einem Europaeer "Erstaunen, an Unglauben grenzend" hervorruft. Die Kenntnis der amerikanischen Praxis kann einerseits die Schwierigkeiten mit einem amerikanischen Patentrechtsstreit, sei es als Partei oder als Sachverstaendiger, mindern und andererseits die Risiken und Kosten einer Patentklage in den Vereinigten Staaten leichter verstaendlich machen.)
Sachverstaendige, Patentrecht, Prozess
|
|
|
35.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
25 Aug 08
|
|
Last Revised:
|
|
24 Sep 08
|
|
12 (190,324)
|
|
|
| |
Abstract:
This article refutes the claimed historical bases for criminal law in rem forfeiture.
deodand, in rem forfeiture, guilty object, navigation acts, confiscation acts, criminal forfeiture, civil forfeiture
|
|
|
36.
|
|
|
James R. Maxeiner University of Baltimore School of Law Gyooho Lee affiliation not provided to SSRN Armin Weber affiliation not provided to SSRN Harriet Weber affiliation not provided to SSRN
|
| Posted: |
|
16 Nov 09
|
|
Last Revised:
|
|
16 Nov 09
|
|
4 (210,016)
|
|
|
| |
Abstract:
This is a working draft of a chapter in a book that introduces and compares civil justice systems in the United States, Germany and Korea. This chapter shows how the American legal system, compared to its German and Korean counterparts, does a poor job of providing access to justice. It points out how the American practice of no recovery of legal fees, high fees for all, and lack of provision of civil legal aid, discourages righteous litigants in ordinary cases. The chapter shows how the German and Korean systems do a better job of providing access for all to the legal system. It shows that both systems make righteous litigants nearly whole by using “loser pays” systems, which helps keep legal fees for all low. It shows how both systems provide better access to civil justice for the indigent. The German system guarantees the indigent civil legal aid; the Korean system makes pro se representation a real possibility in most civil cases. The chapter also gives brief descriptions of the instrumentalities of civil justice, i.e., lawyers, judges, legal education and ministries of justice. It observes that there is no institution in the United States to look out for the common good in litigation that is comparable to ministries of justice in Germany and the Supreme Court in Korea.
|
|
|
37.
|
|
|
James R. Maxeiner University of Baltimore School of Law Gyooho Lee affiliation not provided to SSRN Armin Weber affiliation not provided to SSRN Harriet Weber affiliation not provided to SSRN
|
| Posted: |
|
15 Nov 09
|
|
Last Revised:
|
|
15 Nov 09
|
|
4 (210,016)
|
|
|
| |
Abstract:
This is a working draft of a chapter in a book that introduces and compares civil justice systems in the United States, Germany and Korea. This chapter introduces the shared purposes and goals of civil justice systems generally, sets out what it means to ‘think like a lawyer,” identifies the principal sources of law in statute and precedent, and gives historical information important to understanding each of the three systems. Unlike the other chapters in the book, this chapter emphasizes attributes that the three systems share. Relying on the “open courts” clause of the Maryland Declaration of Rights, characteristic of other similar declarations of the late eighteenth century, as well as on their spiritual forerunner, section 40 of Magna Carta, this chapter identifies four criteria for use throughout the book to measure the respective systems: (1) accuracy according to law and justice, (2) procedural fairness, (3) access to justice and (4) efficiency.
|
|
|
38.
|
|
|
James R. Maxeiner University of Baltimore School of Law Gyooho Lee affiliation not provided to SSRN Armin Weber affiliation not provided to SSRN Harriet Weber affiliation not provided to SSRN
|
| Posted: |
|
16 Nov 09
|
|
Last Revised:
|
|
16 Nov 09
|
|
3 (211,838)
|
|
|
| |
Abstract:
This is a working draft of a chapter in a book for laymen that introduces and compares civil justice systems in the United States, Germany and Korea. This chapter shows how the American system pointlessly makes issues of jurisdiction complicated and expensive. It shows how the German and Korean systems resolve these same issues without expenditure of significant resources. The chapter also provides brief descriptions of the civil courts systems in the United States, Korea and Germany. It includes a Special Comment on why forum shopping is a feature of American litigation, but not of German or Korean cases.
|
|
|
39.
|
|
|
James R. Maxeiner University of Baltimore School of Law Gyooho Lee affiliation not provided to SSRN Armin Weber affiliation not provided to SSRN Harriet Weber affiliation not provided to SSRN
|
| Posted: |
|
16 Nov 09
|
|
Last Revised:
|
|
16 Nov 09
|
|
2 (213,991)
|
|
|
| |
Abstract:
This is a working draft of a chapter in a book that introduces and compares civil justice systems in the United States, Germany and Korea. This chapter sets out the facts of the hypothetical case used throughout the book as a teaching tool.
|
|
|
40.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
16 Nov 09
|
|
Last Revised:
|
|
16 Nov 09
|
|
0 (0)
|
|
|
| |
Abstract:
This is a working draft of a chapter in a book that introduces and compares civil justice systems in the United States, Germany and Korea. This chapter shows how American systems of pleading have failed either to direct parties and judges to material matters in dispute or to bound the dispute to produce fair and efficient decisions. It shows how American pleading has sung from one extreme of strictly limiting the subject matter of the lawsuit to allowing everything to be considered with unfortunate results for efficiency and privacy. The chapter shows how German and Korean systems use pleadings to guide courts in finding and resolving material issues in dispute and to bound the scope of the dispute to the substantive rights claimed by plaintiffs and thereby keeping the costs of litigation proportionate to amounts in dispute. This chapter discusses the “back-and-forth” phenomenon of litigation, that is, that facts and legal rules are mutually interdependent. Until one knows the facts, one does not know which legal rules apply to govern them. But until one knows which rules govern, one does not which facts are material. This phenomenon is infrequently recognized in any of the three systems of civil justice. It has frustrated the American system in successfully applying law, while it has not frustrated the German and Korean systems.
|
|
|
41.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
16 Nov 09
|
|
Last Revised:
|
|
16 Nov 09
|
|
0 (0)
|
|
|
| |
Abstract:
This is a working draft of a chapter in a book that introduces and compares civil justice systems in the United States, Germany and Korea. This chapter shows that the American civil justice system denies most litigants their right to be heard by judge or by jury. Thanks to the disappearance of juries, rarely do American courts provide opportunity for litigants to “tell it to the judge.” Trials are goners. Discovery is what passes for American process. The chapter explains discovery to non-Americans and non-professionals and shows how expensive it is and how little it may have to do with material matters in dispute between the parties. This chapter shows how German and Korean courts give all cases hearings in the presence of and with the participation of the parties. Parties and judges work together to determine whether facts fulfill the objective elements of legal rules. This chapter reaches a number of conclusions that may surprise American readers: (1) American procedures are inquisitorial, while German or Korean procedures are not. (2) American procedures deny parties their day in court, while German and Korean procedures safeguard the day in court. (3) American procedures produce surprise; German and Korean procedures do not.
|
|
|
42.
|
|
|
James R. Maxeiner University of Baltimore School of Law
|
| Posted: |
|
19 Aug 08
|
|
Last Revised:
|
|
27 Aug 08
|
|
0 (0)
|
|
|
| |
Abstract:
This address deals with integrating theory and practice in practical professional training in US, German and Japanese systems of legal education.
internship, articling, referendar, legal education, practical training
|
|