Reviewed by Stephen Daniels, American Bar Foundation and Sturm College of Law, University of Denver.
FAILURES is a sharp critique of the American civil justice system – especially civil procedure. Its authors are: James Maxeiner, a law professor at the University of Baltimore School of Law; Gyooho Lee, a law professor at Chung-Ang University School of Law in Seoul; and Armin Weber, a German appellate judge in Munich. All are described as being steeped in the civil law tradition. Accordingly, the book’s critique is structured as a detailed comparison to the German and South Korean civil justice systems, which are presented as exemplars pointing the way to a fairer, more efficient, and less costly civil justice system. The Preface, however, does state that “Professor Maxeiner bears responsibility for the work as a whole and, in particular, for comparative conclusions critical of the American system” (p.xxiv).
Though not written by political scientists or aimed at political scientists per se, the book is worth the notice of political scientists for three reasons. First and foremost is its general topic – the current state of the U.S. civil justice system, the policy questions surrounding its operation, and favored reforms advocated by the system’s critics. This is primarily the world of private rather than public law, and given the traditional public law focus of political science, one that has not received the attention it should. The making and operation of private law, including its more arcane areas like civil procedure – and its reform – warrant greater interest by political scientists. This is about who gets what, when, and how with the help of the state. Many of those inside the legal system and those who regularly are involved with it firmly believe that there are serious problems with the civil justice system and that fundamental changes are needed and they are working to institute their favored changes. Needless to say, many reforms (proposed and enacted) favor some interests at the expense of others.
Second, the book “is not a treatise for specialists … We intend for it to be accessible to people with an educated layman’s knowledge of a modern legal system” (p. xx, emphasis in the original). Indeed, one of the book’s strengths is the way in which it explains the technical aspects of civil litigation, especially the [*324] complexities of civil procedure (e.g., the details of pleading, discovery, and motion practice) in a clear, concise, and easily understandable way. However, this is no mere layperson’s introduction to three civil justice systems. It aims to convince the reader of the authors’ claims (perhaps more accurately and fairly, Professor Maxeiner’s) about the U.S. system, of the need for reform, and that civil law systems – especially the German system – offer the source of changes.
FAILURES is not about the policy debate, it is a part of the policy debate over the U.S. civil justice system. It is a sophisticated work of persuasion rather than a detached scholarly analysis accessible to the layperson (see p. xxviii). This is quite evident in the book’s Introduction, which sets the tone and context for what Professor Maxeiner has to say. It was written by Philip K. Howard – a lawyer and well-known policy activist in the debate surrounding civil justice. (Howard’s most recent book is Life Without Lawyers: Liberating Americans From Too Much Law; his website is http://www.philipkhoward.com/). Like Professor Maxeiner, Mr. Howard has strong views on the subject and is highly critical of lawyers and the entire American civil justice system. He ends the Introduction by saying, in part, “Justice is supposed to be rendered by the rule of law. America has strayed far from this core principle” (p.xvi).
Simply, Professor Maxeiner’s assertion is that the U.S. system is utterly dysfunctional. In practice, he argues, it lacks substantive accuracy, is deficient in procedural fairness, falls short in terms of equal access, and is highly inefficient. Each of these four elements is essential if there is to be a system consistent with the rule of law (p. 4). Building on this critique, Professor Maxeiner sets out to convince the reader to accept his assertions about the way in which the German system actually works and hence its superiority. It is a source of potential solutions because it operates, apparently flawlessly, as a system in which substantive accuracy and procedural fairness are the norm, in which access is broadly and inexpensively available, and in which efficiency prevails. The South Korean system ultimately plays a secondary role in his argument.
To make his argument, Professor Maxeiner uses a traditional law school vehicle, the hypothetical case. He does so, however, with a comparative twist. To illustrate how the competing legal systems operate – the failings of the one and superiority of the others – he carefully takes the hypothetical from the very beginning of the process to the very end within each civil justice system. He moves the case from the initial meeting with an attorney about the issue in dispute (including the discussion of cost) all the way through judgment and possible appeal. At each step along the way, Professor Maxeiner explains the process, the rules involved, and how things would be handled in each system. There are chapters on the respective legal professions, jurisdictional rules, pleading rules, formal processes, and final judgments. He essentially holds the case constant and then compares it’s handling in the different civil justice systems.
The final substantive chapter – “Judgments, Appeals, and Outcomes” – acts as a summary of Professor Maxeiner’s argument about the operation and worth of the competing civil justice systems. Among other points, he argues for a greater formalism and the use of legal syllogisms,
which make civil justice possible. They enable bringing objective law and subjective fact together to determine parties rights and resolve [*325] their disputes according to law in particular cases. Consistently applied syllogisms promote equal protection under law. They provide guidance to subjects of the rules. Syllogisms contribute to constraining decision makers, parties, and third parties. They make the rule of law possible (pp. 219-220).
He also argues against juries because juries are unlikely to decide in the appropriate syllogistic fashion (p. 221).
This chapter concludes with a series of tables for the hypothetical’s outcome in each system (pp. 241-246). More specifically, the tables are focused on the issue of cost (legal fees, expenses, court costs, etc.) and they lay out the hypothetical costs each party would incur in both winning and losing conditions. In a sense, the tables and their hypothetical data on costs serve as summary indicators of the problematic nature of the U.S. system and the superiority of the civil law alternative. The key item in the tables – the one that seems to make the most difference – is a loser pays rule (the losing party pays some or all of the costs of the winning party). It is not the norm in the U.S. system, while some form of the rule is in the other systems.
Needless to say, adopting loser pays as the default rule in the U.S. would favor some interests at the expense of others. In the terms of the classic Marc Galanter article on why the “have’s” come out ahead, loser pays may favor repeat players (frequent and experienced users of the legal system who have superior resources) at the expense of one-shotters (those who seldom use the legal system and have minimal resources, if any) (Galanter, 1974). This, of course, is an empirical question deserving an appropriate answer.
The final reason FAILURES is worth the notice of political scientists is its primary weakness. It eschews reference to empirical data or to any of the relevant empirical literature. The reader will find only a handful of references to the empirical literature throughout the discussion in the text or in the footnotes. Few will be found in the book’s Bibliographic Notes. Nonetheless, the discussion is chocked full of assertions of fact regarding the failings of U.S. system in practice – stated with a level of certainty that implies that the assertions must be true and that all of those in the know (the experts) recognize the claims as true. The discussion of the German system in operation and its superior virtues is no different. It is as if there is no need for empirical research. But of course there is – and political scientists should consider the opportunities.
One work by a political scientist that does appear in the Bibliographic Notes is Malcolm Feeley’s book Court Reform On Trial: Why Simple Solutions Fail. It focuses on criminal justice reforms and Feeley concludes that one can find the roots of failure in the mistaken notions about how the courts actually operate, and in "the exaggerated assertions about the problems faced by the courts, the historical perspective that informs (or, more properly, fails to inform) so much analysis, and the easy - and often wrong - answers implied in so many crisis-generated discussions.” (Feeley, 1983, xii). [*326]
Feeley, Malcolm. 1983. Court Reform On Trial: Why Simple Solutions Fail. New York: Basic Books.
Galanter, Marc. 1973. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” Law & Society Review 9:95-160.
Howard, Philip K. 2009. Life Without Lawyers: Liberating Americans From Too Much Law. New York: W.W. Norton.
Copyright by the Author, Stephen Daniels.