What America Can Learn From Germany's Justice System

[Swede]

It was once conventional wisdom that in every lawsuit "there are two successive objects: to ascertain the subject for decision, and to decide." Somehow in the course of adopting and implementing the Federal Rules of Civil Procedure of 1938, however, we forgot that wisdom. Today, civil suits infrequently frame the issues for decision, and infrequently result in final decisions on the merits.

This is in large part due to two peculiar aspects of American civil justice. First, American judges are disempowered from asserting common-sense control over cases. American civil procedure treats judges as automatons whose only job is to meekly referee spats between lawyers, rarely interjecting their own common sense into disputes.


Second, American judges often don't know what they are to decide. American civil procedure, led by "notice pleading," denies them such basic information as precisely what parties want, what parties agree on, and what is actually in dispute. Consequently, civil justice generally fails at its essential purpose: application of law to facts to determine rights. There is no judging.

http://www.theatlantic.com/national/archive/2012/06/what-america-can-learn-from-germanys-justice-system/258208/

[AnotherMcIntosh]

1. Maxeiner, who wrote the Atlantic article, made assertions which are not factually supported.