Failures of American Civil Justice in International Perspective

by Maxeiner, James R.; Lee, Gyooho; Weber, Armin; Howard, Philip K.

• ISBN13: 9781107009936
• ISBN10: 1107009936
• Format: Hardcover
• Copyright: 2011-08-29
• Publisher: Cambridge Univ Pr

Summary

America's eighteenth-century founders expected of the nation's future civil justice system that everyone ôought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay.ö They declared ôthat all establishments or regulations contravening these rights are oppressive and unjust.ö Few lawyers today would say that American civil justice fulfills the founders' expectations, Some say that it is oppressive and unjust. Many have given up the goals that the founders set. America's reformers have run out of ideas. They have no proven models for fixing what they know is broken.

Author Biography

James R. Maxeiner is Associate Professor of Law at the University of Baltimore School of Law. Gyooho Lee is Professor of Law at Chung-Ang University School of Law in Seoul. Armin Weber is Judge of the Court of Appeals (Oberlandesgericht) in Munich, which corresponds to a U.S. Court of Appeals.

Table of Contents

Foreword	p. xiii
Preface	p. xvii
Acknowledgments	p. xxv
Summary	p. xxi
Civil Justice: An Introduction	p. 1
The Purpose of Civil Justice	p. 2
The Theme of This Book: Civil Justice That Is Just, Speedy, Inexpensive, and Accessible to All	p. 3
The State of Civil Justice in the United States, Germany, and Korea	p. 5
The State of American Civil Justice	p. 6
The State of German Civil Justice	p. 8
The State of Korean Civil Justice	p. 9
The Facts of the Hypothetical Case	p. 10
Legal Method: Thinking Like a Lawyer	p. 13
Sources of Law Generally	p. 16
Statute Law	p. 17
Precedents (Case Law)	p. 17
Statutes versus Precedents	p. 18
United States	p. 19
Statutes in the United States	p. 20
Precedents in the United States	p. 20
Preeminence of Statutes	p. 21
Germany	p. 22
Statutes in Germany	p. 22
Precedents in Germany	p. 23
Korea	p. 23
Statutes in Korea	p. 23
Precedents in Korea	p. 24
Lawyers and Legal Systems: Access to Justice	p. 25
United States	p. 28
Access to Justice in the United States	p. 28
The Cost of Lawyer Representation in the United States	p. 32
Representing Roll in the United States: Is a Lawsuit Worth It for Roh?	p. 35
Legal Professions in the United States	p. 37
Germany	p. 43
Access to Justice in Germany	p. 43
The Cost of Lawyer Representation in Germany	p. 45
Representing Roll in Germany: Is a Lawsuit Worth It for Roh?	p. 47
German Legal Professions	p. 48
Korea	p. 52
Access to Justice in Korea	p. 52
Cost of Legal Representation in Korea	p. 53
Representing Roh in Korea: Is a Lawsuit Worth It for Roh?	p. 55
Korean Legal Professions	p. 56
Comparative Statistics	p. 60
The Court: Jurisdiction and Applicable Law	p. 62
Jurisdiction Generally	p. 63
Subject Matter Jurisdiction	p. 64
Personal Jurisdiction	p. 64
United States	p. 65
American Courts	p. 65
Subject Matter Jurisdiction	p. 67
Personal Jurisdiction	p. 68
Historical Note: Jurisdiction from Power to Authority	p. 70
Applicable Law in American Courts	p. 74
Forum Shopping	p. 75
Jurisdiction in Roh v. Doh	p. 77
Germany	p. 80
German Courts	p. 80
Subject Matter Jurisdiction	p. 81
Personal Jurisdiction	p. 82
Applicable Law in Germany	p. 84
Korea	p. 84
Korean Courts	p. 84
Subject Matter Jurisdiction	p.  5
Personal Jurisdiction	p. 85
Applicable Law in Korea	p. 86
Pleading: The Matter in Controversy	p. 87
Pleading Generally	p. 88
Purposes of Pleading	p. 89
Limits on Pleading - The Interdependency of Law and Facts	p. 90
United States	p. 91
Contemporary American Pleading	p. 91
American Pleading in Historical Perspective	p. 94
Joinder of Claims and of Parties	p. 96
Handling Complaints	p. 98
The Complaint and Answer in Roh v. Doh	p. 100
Germany	p. 105
Substantive Requirements of Complaints	p. 105
Formal Requirements of Complaints	p. 107
Complaint and Response in Roh v. Doh	p. 107
Joinder of Claims, Splitting of Claims, and Joinder of Parties	p. 110
Handling Complaints	p. 111
Korea	p. 114
Substantive Requirements of Complaints	p. 114
Formal Requirements of Complaints	p. 116
Joinder of Claims and Parties	p. 116
Handling Complaints	p. 117
Process: The Right to be Heard
Process and the Right to be Heard	p. 122
A Remarkable Contrast in Process	p. 122
Dispelling Popular Misconceptions: Day in Court or Inquisition	p. 123
United States	p. 125
The Vanishing Trial	p. 125
Pretrial Discovery	p. 128
Discovery in Roh v. Doh	p. 143
Discovery's Flaws	p. 147
Three Perspectives on Pretrial Discovery	p. 149
Pretrial Conferences	p. 156
Motions for Summary Judgment	p. 158
The Trial Model	p. 160
Germany	p. 168
The Nature of German Civil Process: Judgment as Goal of Process	p. 170
The Process in Outline	p. 172
The Oral Hearing and the Right to he Heard	p. 174
Taking of Proof	p. 181
Process in Roh v. Doh	p. 184
Korea	p. 192
The Nature of Korean Civil Process	p. 193
The Process in Outline	p. 196
Judgments, Appeals, and Outcomes	p. 200
Judgments and Appeals Generally	p. 201
Judgments	p. 202
Appeals Generally	p. 208
United States	p. 210
Judgments	p. 211
Judgment in Roh v. Doh	p. 213
Jurors' Decisions According to Law	p. 214
Neglect of Syllogisms in American Law	p. 219
Appeals	p. 224
Germany	p. 226
Judgments	p. 226
Reasoned Grounds for Decision: Applying Law to Facts	p. 228
Judgment in Roh v. Doh and Assuring Open Courts Ace	p. 229
Appeals	p. 237
Korea	p. 237
Judgments	p. 238
Appeals	p. 241
Roh v. Doh: Comparative Outcomes	p. 241
Can Roh Lose while Winning?	p. 241
Unsettling Settlements	p. 246
Conclusion: Ten Insights for Civil Justice Reform	p. 249
Appendix: Historical Notes on Legal and Political Unity	p. 260
United States	p. 260
History of American Civil Procedure - Three Tries for Reform	p. 263
Using American Civil Justice to Make and Enforce Public Law	p. 265
Germany	p. 269
The Social Market Economy	p. 271
History of German Civil Procedure - Refining a Good Choice	p. 271
Nazi Takeover of German Civil Justice	p. 272
Korea	p. 276
Modem and Traditional Korean Law	p. 277
Civil Procedure - Realizing the 1987 Rule of Law Revolution	p. 278
Foreign Influences on Contemporary Korean Civil Procedure	p. 279
Rejection of American and Renewal of German Influence?	p. 280
Bibliographic Notes	p. 283
Introductions to Legal and Civil Justice Systems	p. 283
Critiques of American Civil Justice	p. 287
Index	p. 301
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