Catalogue Search | MBRL
Are you sure you want to remove the book from the shelf?
{{itemTitle}}
56
result(s) for
"Maxeiner, James"
Sort by:
Failures of American civil justice in international perspective
\"Civil justice in the United States is neither civil nor just. Instead it embodies a maxim that the American legal system is a paragon of legal process which assures its citizens a fair and equal treatment under the law. Long have critics recognized the system's failings while offering abundant criticism but few solutions. This book provides a comparative-critical introduction to civil justice systems in the United States, Germany, and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law. The author argues that these shortcomings could easily be fixed if the American legal systems were open to seeing how other legal systems' civil justice processes handle cases more efficiently and fairly. Far from being a treatise for specialists, this book is an introductory text for civil justice in the three aforementioned legal systems. It is intended to be accessible to people with a general knowledge of a modern legal system\"-- Provided by publisher.
Book
Failures of American Civil Justice in International Perspective
Civil justice in the United States is neither civil nor just. Instead it embodies a maxim that the American legal system is a paragon of legal process which assures its citizens a fair and equal treatment under the law. Long have critics recognized the system's failings while offering abundant criticism but few solutions. This book provides a comparative-critical introduction to civil justice systems in the United States, Germany and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law. The author argues that these shortcomings could easily be fixed if the American legal systems were open to seeing how other legal systems' civil justice processes handle cases more efficiently and fairly. Far from being a treatise for specialists, this book is an introductory text for civil justice in the three aforementioned legal systems.
eBook
Cost and Fee Allocation in Civil Procedure
Court costs in American civil procedure are allocated to the loser (\"loser pays\") as elsewhere in the civilized world. As Theodor Sedgwick, America's first expert on damages opined, it is matter of inherent justice that the party found in the wrong should indemnify the party in the right for the expenses of litigation. Yet attorneys' fees are not allocated this way in the United States: they are allowed to fall on the party that incurs them (the \"American rule,\" better, the American practice). According to Albert Ehrenzweig, Austrian judge, émigré and then prominent American law professor, the American practice is \"a festering cancer in the body of our law.\" This Article surveys American cost and fee allocation practices. The author hopes that the Article will serve as a prolegomenon from an American perspective for more-encompassing comparative studies, including eventually of empirical studies. Preparing this Article has led the author to believe that the impact of fee allocation systems has been underappreciated in evaluation of how well nations in fact deliver civil justice.
Journal Article
Lawyers and Legal Systems
Deciding to bring a lawsuit is a difficult decision. One should make every effort to avoid going to court. Even someone who “wins” a lawsuit, as measured by legal outcome, may lose more in time, energy, and damaged personal relations than the victory is worth. In all three of our legal systems lawyers advise clients: Sue only if a lawsuit cannot be avoided.Mary Roh has reached that point. She has decided to sue. Most likely, that means she needs to find a lawyer. Although a lay person might present a small case to a court without being represented by a lawyer, in a civil case of consequence, such as we have here, a lawyer is a practical necessity; in Germany, it is a legal requirement. In this chapter we consider when one needs a lawyer and how one goes about finding and engaging one. We then consider the legal systems within which they operate.Even before Roh decides to sue, she may find a lawyer helpful to negotiate a settlement. Ordinarily parties try to settle disputes without suing. Introducing the right lawyer may make John Doh, Jr. realize that Roh is serious about the dispute and is thinking about suing. On the other hand, introducing the wrong lawyer could undermine settlement. Roh will decide whether and when to use a lawyer based on convenience, cost, and other personal considerations.
Book Chapter
Legal Method
Before we discuss our lawsuit in three systems, we address basic legal methods. What we say may seem obvious, but our experience suggests that that which is obvious in one legal system may not be in another. We consider what it means to “think like a lawyer” and we look at “sources of law,” that is, principally statutes and court decisions.Deciding according to law requires determining applicable rules, finding facts, and applying rules to facts. This is considerably more difficult than is generally supposed. The legal rule cannot always be read from a single statute or precedent. It often is necessary to search statutes and precedents, analyze them, compare them to facts, revisit statutes and precedents in light of the facts, and again examine facts in light of the law. The end result is to bring facts and law together.
Book Chapter
Process
The civil action has commenced. Mary Roh has filed a complaint; John Doh Jr. has interposed a defense. They have reached the critical point in their lawsuit when by “the course of the law of the land,” they are to be heard in the cause before the court.In this chapter we examine “process.” Process occurs in the period after a lawsuit is commenced by party pleading, and before it is concluded in judicial judgment. Process is the legal consideration of material facts and applicable law. If parties dispute which facts are true or material, process provides them the opportunity to persuade the court which are material and to present proof to the court of which are true. If parties disagree with which law governs their dispute or interpret law differently, process provides them opportunity to express their views on governing law. At the conclusion of process, the court applies the determined law to the facts found to produce the characteristic product of civil litigation: a decision according to law of the parties’ rights and duties. That decision is known as a judgment and is the subject of Chapter 7. In this chapter, after a general introduction of process and the centrality to process of the right to be heard, we discuss process in each of our countries specifically, and how process might unfold in the case of Roh v. Doh.
Book Chapter
Judgments, Appeals, and Outcomes
Mary Roh has reached the end of the process. She and John Doh Jr. are in the courtroom for the last session. They hope that this will be their last day in court together. They can and should expect a decision that day. The case was not difficult. The judge has no special ground to delay decision; a jury, if there is one, should not take much time to decide their case.If it is in the United States and if there is a jury, Roh and Doh will fidget as the judge instructs jurors in their duties. The jurors will retire; Roh and Doh will perspire. They will pace about the courthouse until the jurors return. That is not likely to be in much less than an hour. Even jurors who have made up their minds before leaving the courtroom do not want to return too soon. They want to show that they have deliberated carefully. Because there is no way to demonstrate that in writing, they allow time for deliberation to suggest it.If it is in Germany or Korea, the judge should announce the decision from the bench that day. German and Korean judges may have ready a draft of the reasons that they will give; if they do, they may read from it. If they are not ready with written reasons, they are required to summarize the basis for their decisions orally and provide written reasons later.
Book Chapter
Pleading
Mary Roh has decided to sue. She has a lawyer; she has a court. Now she is ready to bring her case to court. Starting a lawsuit requires that she tell the court what it is that she wants. Otherwise, the court will not know which matters it is to decide and which remedies, if any, it is to order. What the court is to decide – the matter in controversy – is fundamental to all three of our systems of civil procedure.In all three of our systems, plaintiffs begin lawsuits by telling courts what they want from whom. They answer the classic question that American law professors pose to their first-year students: Who is suing whom for what? Plaintiffs do this in documents called complaints. Defendants are formally “served with process,” that is, they are informed of the lawsuit and are formally given the complaint. Defendants are “summoned” to appear within a certain period of time (usually, less than a month) and, if they do not, they are deemed in default. They respond either in documents called “answers” or in motions to the court. Plaintiffs may reply to these answers and motions. Collectively, this written give and take between the parties at the beginning of the lawsuit constitutes the pleadings.
Book Chapter