Author Archive

Self-Funding Civil Legal Aid

To the relief of many, last year in Turner v. Rogers the Supreme Court again held that there is no right to legal aid in civil matters. The very idea conjured up a nightmare of movement lawyers bringing on class action suits.

But is it right that someone should lose a lawsuit because he or she can’t afford to contest it? The founders did not think so. In 1776 they declared that everyone “ought to have justice and right, freely without sale, fully without any denial.” In 1793 Joel Barlow, a confidant of Thomas Paine in London, lectured European rulers that in America, courts were equally open to the poor as to the rich. Today, tables are turned: Europeans — from Georgia in the Caucasus to Portugal on the Atlantic – have a right that Americans do not have.

The German system of legal aid is a model for the rest of Europe. Here is how Germany can make legal aid available to all who need it without bankrupting the treasury:

(1)    Litigation for everyone is less expensive and faster than here. Attorney’s fees are proportionate to amounts in dispute.

(2)    Legal aid is dependent on a judicial finding at the outset of the case that the party requesting aid has a reasonable chance of success.

(3)    Legal aid consists of state advances to cover court costs, attorneys’ fees and expenses to permit recipients to participate in lawsuits and, if necessary, to obtain private counsel of their own choosing.  Not all recipients get private counsel. When counsel are employed, their mission is not to make law, but to protect their clients’ claims.

(4)    Legal aid is not a gift to recipients but a loan, to be repaid in 48 monthly installments beginning already when aid is granted.

(5)    Legal aid is built into the loser-pays cost-shifting system. When the legal aid recipient wins, the other party, and not the state pays the costs, fees and expenses of the legal aid recipient.

Legal aid doesn’t come free to the states’ budgets in Germany, but to a substantial extent it is self-funding. Proponents of legal aid and court reform have common cause: we will not have legal aid for everyone with need, until we have a legal system that works well for everyone, needy or not.

Read more: James R. Maxeiner, A Right to Legal Aid: The ABA Model Access Act in International Perspective, Loyola New Orleans Journal of Public Interest Law, Vol. 13, No. 1 (Fall 2011), pp. 61-113. Available at SSRN.

Scalia: Write better laws: no more garbage in—garbage out

Earlier this week we noted Justice Scalia’s new book, Reading Law. But reading won’t be enough. We need to worry about writing law. In an interview on C-SPAN a few years ago, Justice Scalia said: “But in this job, it’s garbage in, garbage out. If it’s a foolish law, you are bound by oath to produce a foolish result, because it’s not your job to decide what is foolish and what isn’t. It’s the job of the people across the street.”

The current Congress telegraphs that we won’t get well-written, indeed any laws, from across the street.  What to do about it? In most countries, for well over a century, government ministry drafts laws, presents them to the public for discussion, to the government for approval and then finally to the legislature for consideration. In Germany, for example, the Federal Ministry of Justice is a “legislative ministry.” Its principal tasks are to make sure that bills would make good rules and, if adopted, would work in practice.. The legislature and the public consider for enactment-ready well-designed bills. The legislature avoids eleventh hour compromises held together with duck tape.

Read more: James R. Maxeiner, Legal Certainty: A European Alternative to American Legal Indeterminacy?, Tulane Journal of International and Comparative Law, vol. 15, No. 2, pages 541, 556-567 (2007) available at SSRN: http://ssrn.com/abstract=1150522

Law—Made in Germany: global – effective – cost-efficient

125 years ago this month the British parliament required that goods made abroad and sold in Britain state their country of origin. Hence was born “Made in Germany.” To the chagrin of the British, it became a badge of high quality and not a warning of inferiority. Now, it’s being used against the Law Society of England and Wales. A few years ago the Law Society published a brochure designed to entice foreign litigants to sue in England. The German Ministry of Justice responded with its own brochure, recently released in a second edition: Law—Made in Germany: global – effective – cost efficient. You can download a free copy at http://www.lawmadeingermany.de/Law-Made_in_Germany.pdf

In the brochure the Minister of Justice writes: “‘Made in Germany’ is not just a quality seal reserved for German cars or machinery, it is equally applicable to German law. Our laws protect private property and civil liberties, they guarantee social harmony and economic success. “

“For entrepreneurs, German law constitutes a genuine competitive advantage. It is predictable, affordable and enforceable. Our law codes ensure legal certainty. Whoever loses his case in court will have to bear the costs of the litigation. Once a court has made its rulings, its judgments are enforced swiftly and effectively. It is primarily for the sake of legal certainty and swift enforcement that German law does not recognize some legal concepts, such as class actions or punitive damages, which are common in other legal systems.”

As an advertising lawyer, I am skeptical of claims such as these as puffery. But after thirty-five years of study and work with the German system, I believe them. The German system is a court reformer’s paradise.

The French and Germans have cooperated on another brochure for both their systems. It is Continental law—global—predictable—flexible—cost-effective. It is available at http://www.kontinentalesrecht.de/tl_files/kontinental-base/Broschuere_DE.PDF.

These brochures are concise introductions to Continental systems. They are accessible to non-lawyers. They are highly recommended for anyone interested in alternatives to our dysfunctional system.

Read more: Maxeiner, James R., Law – Made in Germany: Global Standort or Global Standard? (June 3, 2012). Draft of article for book to be published October 2012. Available at SSRN: http://ssrn.com/abstract=2135684

Scalia: Common Law is a School for Misrule

Justice Scalia (with Brian Garner) has a new book out that is drawing attention as he presents it around the country: Reading Law: The Interpretation of Legal Texts. Its most enduring lesson may not be his proposal for reading texts, but his unequivocal denunciation of common law methods and of law schools for continuing to teach them in the 21st century. He sees law schools, as Walter Olson does, as “Schools for Misrule.”

Scalia writes: “American legal education has long been devoted to the training of common-law lawyers, and hence common-law judges. What aspiring lawyers learn in the first, formative year of law school is how to discern the best (most socially useful) answer to a legal problem, and how to distinguish the prior cases that stand in the way of that solution. Besides giving students the wrong impression about what makes an excellent judge in a modern, democratic, text-based legal system, this training fails to inculcate the skills of textual interpretation.”

What we need are good rules applied according to their terms. We don’t need every case to be a contest in which we debate which rules are appropriate. Scalia is right: the rule of law is a law of rules.

Read more: James R. Maxeiner, Scalia & Garner’s Reading Law: A Civil Law for the Age of Statutes? (August 18, 2012), available at SSRN: http://ssrn.com/abstract=2132581; James R. Maxeiner, Thinking Like a Lawyer Abroad: Putting Justice into Legal Reasoning, Washington University Global Studies Law Review, vol. 11., no. 1 page 55 (2012), available at http://law.wustl.edu/WUGSLR/Issues/Volume11_1/Maxeiner.pdf , Walter Olson, Schools for Misrule: Legal Academia and an Overlawyered America (2011) http://www.amazon.com/Schools-Misrule-Academia-Overlawyered-America/dp/1594032335 .

33 questions @ $31.8 million—That’s a lot of apples

By now everyone has heard that Apple took a $1.05 billion bite out of Samsung Friday.  The jury did not just say, we find for Apple for $1.05, but it did not tell us which facts it found or how these facts fit under the law. It filled out a 33 question twenty page form. It answered probing questions such as

7. For each of the following products, has Apple proven by a preponderance of the evidence that Samsung Electronics Co. (SEC) and/or Samsung Telecommunications America (STA) has infringed the D’305 Patent?

(Please answer in each cell with a “Y” for “yes” (for Apple), or with an “N” for “no” (for Samsung). Do not provide an answer for any cell that is blacked out.)

10. If you answered “Yes” to any of Questions 1 through 9, and thus found that any Samsung entity has infringed any Apple patent(s), has Apple proven by clear and convincing evidence that the Samsung entity’s infringement was willful?

(Please answer in each cell with a “Y” for “yes” (for Apple), or with an “N” for “no” (for Samsung).)

11. Has Samsung proven by clear and convincing evidence that Apple’s asserted utility and/or design patent claims are invalid?

You can find the jury form used at http://ia600609.us.archive.org/14/items/gov.uscourts.cand.239768/gov.uscourts.cand.239768.1890.0.pdf .

For $31.8 million per question, you might think that Samsung is entitled to more than a simple yes/no. If the judge triples the verdict because the infringement was willful (question 10), its $95.4 million per question. And just how will the Court of Appeals review this verdict?

Foreign Clients Want U.S. Court Reform

Hi. I’m James Maxeiner. Along with Gerald Russello, I’m guest blogging this week. Although I teach law now, formerly I was a litigation lawyer and in house counsel, so I look at things from a practical perspective. Thanks to additional foreign education and international practice, I look abroad for ideas that might help our system work better.  You can find out more about me at http://law.ubalt.edu/faculty/profiles/maxeiner.cfm

My litigation practice background—which was mostly for foreign clients—is the theme of my first post.

What’s the difference between a domestic and a foreign client? When you touch on a hot button issue, e.g., crazy lawsuits, discovery, unjustifiable and unreviewable jury verdicts, or incredible costs, the American client will squawk, but will accept the U.S. lawyer’s consolation that, “sometimes it’s crazy, but that’s the price we pay for our legal system.” The foreign client—at least one from a well-functioning system—will not.

The foreign client will tell the U.S. lawyer, what do you mean? Your system is primitive and unjust. It’s crazy that someone can bring a lawsuit with no plausible legal ground. The foreign client will say, its expensive and idiotic that the adversary’s lawyer can make me produce thousands of documents with no apparent connection to the lawsuit. It’s unjust that the jury gives a verdict that makes no sense and no court can review the “facts” the jury found and its application of law. The foreign client will scream to high heaven when he or she wins: “what do you mean I won? After paying you, court costs and experts’ fees, I have only $30,000 of the $100,000 the defendant owes me. That’s not justice!

There’s another difference: the sophisticated foreign client will not only give the U.S. lawyer a piece of his or her mind, he or she will tell the lawyer how things can be done better. He or she will say, we don’t have many frivolous lawsuits, because the loser pay rules discourages most of them and active judges weed out the remaining ones. He or she will say, we don’t let parties demand any materials they like: judges have to approve materiality of evidence taken. We won’t let irrational decisions stand: decision-makers in first instance have to explain their decisions and those decisions are fully reviewable on appeal. In our system, a win is a win: losers pay the cost of winners. My right is to one hundred cents on the Euro and not discounted to third.

Practice for foreign clients challenges us to reform our courts, not with small steps to deal with the extreme, but with fundamental changes for the everyday. As Philip K. Howard’s Common Good organization argues, America is fixable, but it needs to Start Over. Foreign clients force American lawyers to reconsider what they are doing.

Read more: James R. Maxeiner, Failures of American Civil Justice in International Perspective (Cambridge University Press, 2011) http://www.amazon.com/Failures-American-International-Perspective-ebook/dp/B005IVX1I4http://www.theatlantic.com/special-report/america-fixable; http://www.commongood.org/