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Failures of American Methods of Lawmaking in Historical and Comparative Perspectives

Failures of American Methods of Lawmaking in Historical and Comparative Perspectives This book was written “for general readers interested in fixing America’s broken legal system.”1 What follows is a compelling indictment of the state of the law and legal culture in the United States, with a prescription to restore “the government of laws” based on how things work in Germany. In reaching out to “general readers,” people interested in the legal system but not active in the legal professions, Maxeiner uses rhetoric, repetitions, clear language, illustrations, and inventive vocabulary (for example “zombie laws”), which makes for a fascinating story for both laypersons and experts. The strength of this book is at the same time what makes it vulnerable. Maxeiner issues a disclaimer: experts “may find some of what I say simplistic or insufficiently rigorous in description.”2 In this Review, I will point out some of these simplifications. At the same time, it would be too easy to disregard the message simply because the author uses the art of persuasion to address a wide audience and force a change in legal attitude. In putting his finger on some painful wounds, Maxeiner deserves to be taken seriously. The book is introduced as one “about lawmaking, i.e., about making good statutes that can be routinely applied and that taken together provide people with a government of laws.”3 It is this idea of a “government of laws” that is his central concern. The term “government of laws” is deliberately used instead of the more established “rule of law.” The latter refers to the global legal system, including case law, whereas Maxeiner claims that people should be governed by statutes that are adopted by their representatives, and he blames the dominance of a common law culture for the neglect of a quality system for statutory lawmaking. The first half of the book is devoted to countering the argument that criticism of the quality of legislation is irrelevant, because the common law offers an alternative. In its historical part, Maxeiner shows that from the start, Americans established, and expected, a system based on statutes, and that the common law does not offer an alternative but instead undermines “a government of laws.” Maxeiner defines “a government of laws” in terms of quality requirements. It is a system of laws “that are made in legislative procedures that consult those affected and help create laws serving common good and justice, that are coordinated with laws or other lawgivers, that are constitutionally valid and that are routinely applied as written.”4 Under this system, “knowing which law governs should be easy and unproblematic.”5 Hence, a government of laws depends on “good laws” that (1) guide people in how they act; (2) are clear about how they want people to act; (3) are organized; (4) are general rules for all for the welfare and justice of all; (5) rely on faithful execution; (6) look to future change and are an ongoing project; (7) make provision for not one case, but all cases; and (8) are consistent internally and with other laws.6 This is a very demanding list—especially where “clear” laws mean that “they capture in a few understandable words what people are compelled to do,”7 but Maxeiner claims that they can be attained, that in fact this is already achieved in Germany, and that it is “common law myths” that prevent the United States from following that lead. These myths, according to Maxeiner, are the following: (1) the United States is a common law country; (2) the common law is superior to statutory law in individualizing justice; (3) the common law is superior to statutory law in adapting to changes over time; (4) U.S. judges have always freely made law; and (5) all U.S. law is based on the common law of England. Maxeiner goes to great lengths to dispel these myths from a historical perspective. I am in no position to evaluate the historical arguments, but they correspond to the phases identified in the literature on codifications, with an early colonial onset of the codification debate, then the peak of that debate with David Field’s leading role in the enactment of codes in various U.S. states, followed by a relapse, and presently the adoption of contemporary codes that, however, do not start a new trend in favor of codification.8 The contrast between common law and codification efforts is important for Maxeiner’s argument, even though—as he concedes9—one does not necessarily preclude the other. The argument, however, cannot simply be dismissed by pointing out how common law and civil law systems have moved closer together. Despite the convergence, there remains a fundamental difference between both systems, which concerns the position of legal sources, modes of research, legal education, and the organization and functioning of the judicial system.10 This is exactly where Maxeiner aims his arrows in his harsh attack on the common law “myths” that keep the system from appreciating codification with the purpose of systematizing the law, from developing a “science” of legislation, from solving disputes on the basis of the statutory framework, and from teaching law to students as an organized system of laws. The diagnosis is that the United States is not a government of laws, because people are at the mercy of the common law, which is unstructured, inaccessible, unreliable, and undemocratic, and because statutes are difficult to know, confounding, and confusing. This is the result, so Maxeiner claims, of a failing system, that encompasses the lawmaking procedure, the federal system, the diffuse system of constitutional review, civil procedure, and legal education. It is clear from this diagnosis that the cure cannot consist of a single technical intervention, but rather systemic change is needed. This is where the comparative part comes in. That part comes down to an anthem full of praise for the German system. Here, Maxeiner’s rhetorical talent and, regrettably, also the one-sidedness of his analysis, comes to its full extent. He depicts the German system as flawless, where laws are “a house of order,”11 easy to find and to understand, reliable, made under the clear responsibility of the competent minister after careful consultation and consideration of regulatory impacts, coordinated with laws adopted at other levels of authority, submitted to clear and swift constitutional review by a centralized court with judges selected to avoid political judging, and a spotless system of adjudication—a feature he already praised in a previous book.12 Maxeiner uses material that proves his point, but does not engage in a critical and nuanced discussion. There is a lack of robust data to support his assertions. As a small example: to back the idea that German laws are flawless, he states that “[t]oday Germany’s laws often are models for European Union regulations and directives.”13 But there is no reference to corroborating or supporting data or literature, and nothing proving that even if this holds true, it is due to the quality of German legislation rather than Germany’s political dominance within the European Union. Also, more nuanced reports are ignored, to the point that, surprisingly, even the embedment of EU law and executive federalism are presented as highlights of the German law system. It is difficult to discuss the quality of legislation and legislative procedures, especially in the European context, without including the rise of Better Regulation programs.14 Maxeiner refers to this once, where he correctly observes the role of the Organization for Economic Co-operation and Development (OECD) in the diffusion of Better Regulation programs.15 There is no mention, however, of the OECD’s country report on Germany, which sketches a completely different picture of German lawmaking, with a highly politicized and closed consensus-building process that is suspected of hindering serious impact assessment.16 Nor is there mention of the OECD noting that the legal culture in Germany resulted in an extremely formal-legalistic concept of regulatory quality,17 and improvements were observed only when nonlegal civil servants were systematically appointed.18 And no mention of the fact that while the German state does take initiatives to improve the lawmaking system, they result from observations that German laws have become so excessive that the system has reached its limits.19 The book also ignores German scholars who have highlighted the obstacles for making the German lawmaking system a “full quality assurance system.”20 It disregards those that criticized the formalized regulatory culture, the high degree of politicization, and the closed system of regulatory preparation with isolated and nontransparent processes of participation and fact finding—for quashing attempts to improve impact analyses.21 Maxeiner simplifies and overstates for a reason. He wants to make a point, and his book is not designed as a reference handbook of precise and methodologically sound analysis; it is an act of persuasion. The question remains whether, in the end, such a romanticized picture of the German system is really helpful. What is worse, in light of Maxeiner’s sharp critique of the American self-absorbed academic legal world, preoccupied with the U.S. legal system only, one may wonder whether this method will really convince colleagues to value comparative analysis more. Maxeiner quotes Justice Antonin Scalia in his critique on the use of foreign law in domestic adjudication: “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.”22 This point could be made against this very book. For Maxeiner, comparative research serves foremost the goal of improving one’s own system by showing “historical reasons for a long recognized and severe failure in our system and contrast that failure with obvious better performances of another system.”23 While this is a good reason for doing comparative research, it is not the only one. It may, for example, serve to better understand one’s own legal system, or to find patterns that characterize a legal instrument throughout different legal systems. Neither of these necessarily entails cherry picking or generalizations unsupported by evidence. The (sad) truth is that a long list of legislative anomalies can be drawn up in just about every country, irrespective of civil law or common law tradition. If the goal is to improve the U.S. lawmaking system, then it would be more fruitful to discuss Better Regulation programs, compare several jurisdictions that score well on specific points, and draw best practices from them, without idealizing a specific jurisdiction as such. Nevertheless, while the book’s strength makes it vulnerable, the reverse is also true: what makes the book vulnerable, is also its strength. A nuanced analysis with data and an engagement with the academic debate would make the book as tedious as any legal book is to “the general,” non-specialist reader. Instead, Maxeiner has produced a provocative work that kicks in the shins, gives a wake-up call, and calls into question well-established institutions and certainties. For this reason alone, this book is a must read, and more scholars should follow in his footsteps. For what is the purpose of scholarly inquiry if not to distrust the canon and to question what is well established? What is more, the book is not just a long complaint, it is also a recipe for the future. Maxeiner seems hopeful that the U.S. system can be cured, once Americans are taught what the alternatives are, as practiced elsewhere, and why it is not “un-American” to apply them. At the same time, he draws a bleak picture of the legal professions that are expected to fight for such cure. Maxeiner is not the only one to blame a conservative legal profession for obstructing attempts to codify and systematize the law; others have confirmed this.24 But where Maxeiner notes that legal professionals have chosen “to deal transactionally with chaos and find for themselves and their clients within that chaos the best possible solutions,”25 he seems to imply that lawyers do not find it in their self interest to improve the system. And the appendix is a long complaint of the very limited position that foreign law and comparative legal scholars occupy in U.S. law schools. If change has to come from legal professionals, this leaves little hope for improvement. Footnotes 1 " James R. Maxeiner, Failures of American Methods of Lawmaking in Historical and Comparative Perspectives, at xxii (2018). 2 " Id. at xxi. 3 " Id. at 15. 4 " Id. at 166. 5 " Id. at 181. 6 " Id. at 4, 7. 7 " Id. at 7. 8 " See Gunther A. Weiss, The Enchantment of Codification in the Common-Law World, 25 Yale J. Int’l L. 498 (2000). 9 " Maxeiner, supra note 1, at 117, 130. 10 " Joseph Dainow, The Civil Law and the Common Law: Some Points of Comparison, 15 Am. J. Comp. L. 426 (1966). 11 " Maxeiner, supra note 1, at 193. 12 " Failures of American Civil Justice in International Perspective (James R. Maxeiner et al. eds., 2011). 13 " Maxeiner, supra note 1, at 194. 14 " Better Regulation programs are about rational and effective lawmaking, with consultation, regulatory impact analysis, and ex post evaluation as cornerstones in the regulatory toolbox. See Ciara Brown & Colin Scott, Regulation, Public Law and Better Regulation, 17 Eur. Pub. L. 467 (2011); Claudio M. Radaelli & Anne C.M. Meuwese, Better Regulation in Europe: Between Public Management and Regulatory Reform, 87 Pub. Admin. 639 (2009). 15 " Maxeiner, supra note 1, at 225. 16 " Org. for Econ. Co-operation & Dev., Bessere Rechtsetzung in Europa: Deutschland 2010, at 85 (2010). 17 " Org. for Econ. Co-operation & Dev., Regulatory Reform in Germany 8, 52 (2004). 18 " Org. for Econ. Co-operation & Dev., supra note 16, at 58. 19 " This is why, for example, in 1985 an expert committee on “Schlanker Staat” (“slimmer state”) was established. For an end report, see Abschlussberichte (Sachverständignrat “Schlanker Staat” ed., 1997). 20 " Dirk Zeitz, Better Regulation in Germany as Quality Assurance System: Recent Developments and Current Challenges, Neth. Admin. L. Libr. (2016). 21 " Sylvia Veit, Bessere Gesetze durch Folgenabschätzung? 30 (2009). 22 " Maxeiner, supra note 1, at 308 (quoting Roper v. Simmons, 125 S. Ct. 1183, 1226 (2005) (Scalia, J., dissenting)). 23 " Id. at 319. 24 " Weiss, supra note 8, at 510. 25 " Maxeiner, supra note 1, at 146. © The Author(s) [2020]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Failures of American Methods of Lawmaking in Historical and Comparative Perspectives

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American Journal of Comparative Law , Volume Advance Article – Oct 1, 2002
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Oxford University Press
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© The Author(s) [2020]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com.
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Abstract

This book was written “for general readers interested in fixing America’s broken legal system.”1 What follows is a compelling indictment of the state of the law and legal culture in the United States, with a prescription to restore “the government of laws” based on how things work in Germany. In reaching out to “general readers,” people interested in the legal system but not active in the legal professions, Maxeiner uses rhetoric, repetitions, clear language, illustrations, and inventive vocabulary (for example “zombie laws”), which makes for a fascinating story for both laypersons and experts. The strength of this book is at the same time what makes it vulnerable. Maxeiner issues a disclaimer: experts “may find some of what I say simplistic or insufficiently rigorous in description.”2 In this Review, I will point out some of these simplifications. At the same time, it would be too easy to disregard the message simply because the author uses the art of persuasion to address a wide audience and force a change in legal attitude. In putting his finger on some painful wounds, Maxeiner deserves to be taken seriously. The book is introduced as one “about lawmaking, i.e., about making good statutes that can be routinely applied and that taken together provide people with a government of laws.”3 It is this idea of a “government of laws” that is his central concern. The term “government of laws” is deliberately used instead of the more established “rule of law.” The latter refers to the global legal system, including case law, whereas Maxeiner claims that people should be governed by statutes that are adopted by their representatives, and he blames the dominance of a common law culture for the neglect of a quality system for statutory lawmaking. The first half of the book is devoted to countering the argument that criticism of the quality of legislation is irrelevant, because the common law offers an alternative. In its historical part, Maxeiner shows that from the start, Americans established, and expected, a system based on statutes, and that the common law does not offer an alternative but instead undermines “a government of laws.” Maxeiner defines “a government of laws” in terms of quality requirements. It is a system of laws “that are made in legislative procedures that consult those affected and help create laws serving common good and justice, that are coordinated with laws or other lawgivers, that are constitutionally valid and that are routinely applied as written.”4 Under this system, “knowing which law governs should be easy and unproblematic.”5 Hence, a government of laws depends on “good laws” that (1) guide people in how they act; (2) are clear about how they want people to act; (3) are organized; (4) are general rules for all for the welfare and justice of all; (5) rely on faithful execution; (6) look to future change and are an ongoing project; (7) make provision for not one case, but all cases; and (8) are consistent internally and with other laws.6 This is a very demanding list—especially where “clear” laws mean that “they capture in a few understandable words what people are compelled to do,”7 but Maxeiner claims that they can be attained, that in fact this is already achieved in Germany, and that it is “common law myths” that prevent the United States from following that lead. These myths, according to Maxeiner, are the following: (1) the United States is a common law country; (2) the common law is superior to statutory law in individualizing justice; (3) the common law is superior to statutory law in adapting to changes over time; (4) U.S. judges have always freely made law; and (5) all U.S. law is based on the common law of England. Maxeiner goes to great lengths to dispel these myths from a historical perspective. I am in no position to evaluate the historical arguments, but they correspond to the phases identified in the literature on codifications, with an early colonial onset of the codification debate, then the peak of that debate with David Field’s leading role in the enactment of codes in various U.S. states, followed by a relapse, and presently the adoption of contemporary codes that, however, do not start a new trend in favor of codification.8 The contrast between common law and codification efforts is important for Maxeiner’s argument, even though—as he concedes9—one does not necessarily preclude the other. The argument, however, cannot simply be dismissed by pointing out how common law and civil law systems have moved closer together. Despite the convergence, there remains a fundamental difference between both systems, which concerns the position of legal sources, modes of research, legal education, and the organization and functioning of the judicial system.10 This is exactly where Maxeiner aims his arrows in his harsh attack on the common law “myths” that keep the system from appreciating codification with the purpose of systematizing the law, from developing a “science” of legislation, from solving disputes on the basis of the statutory framework, and from teaching law to students as an organized system of laws. The diagnosis is that the United States is not a government of laws, because people are at the mercy of the common law, which is unstructured, inaccessible, unreliable, and undemocratic, and because statutes are difficult to know, confounding, and confusing. This is the result, so Maxeiner claims, of a failing system, that encompasses the lawmaking procedure, the federal system, the diffuse system of constitutional review, civil procedure, and legal education. It is clear from this diagnosis that the cure cannot consist of a single technical intervention, but rather systemic change is needed. This is where the comparative part comes in. That part comes down to an anthem full of praise for the German system. Here, Maxeiner’s rhetorical talent and, regrettably, also the one-sidedness of his analysis, comes to its full extent. He depicts the German system as flawless, where laws are “a house of order,”11 easy to find and to understand, reliable, made under the clear responsibility of the competent minister after careful consultation and consideration of regulatory impacts, coordinated with laws adopted at other levels of authority, submitted to clear and swift constitutional review by a centralized court with judges selected to avoid political judging, and a spotless system of adjudication—a feature he already praised in a previous book.12 Maxeiner uses material that proves his point, but does not engage in a critical and nuanced discussion. There is a lack of robust data to support his assertions. As a small example: to back the idea that German laws are flawless, he states that “[t]oday Germany’s laws often are models for European Union regulations and directives.”13 But there is no reference to corroborating or supporting data or literature, and nothing proving that even if this holds true, it is due to the quality of German legislation rather than Germany’s political dominance within the European Union. Also, more nuanced reports are ignored, to the point that, surprisingly, even the embedment of EU law and executive federalism are presented as highlights of the German law system. It is difficult to discuss the quality of legislation and legislative procedures, especially in the European context, without including the rise of Better Regulation programs.14 Maxeiner refers to this once, where he correctly observes the role of the Organization for Economic Co-operation and Development (OECD) in the diffusion of Better Regulation programs.15 There is no mention, however, of the OECD’s country report on Germany, which sketches a completely different picture of German lawmaking, with a highly politicized and closed consensus-building process that is suspected of hindering serious impact assessment.16 Nor is there mention of the OECD noting that the legal culture in Germany resulted in an extremely formal-legalistic concept of regulatory quality,17 and improvements were observed only when nonlegal civil servants were systematically appointed.18 And no mention of the fact that while the German state does take initiatives to improve the lawmaking system, they result from observations that German laws have become so excessive that the system has reached its limits.19 The book also ignores German scholars who have highlighted the obstacles for making the German lawmaking system a “full quality assurance system.”20 It disregards those that criticized the formalized regulatory culture, the high degree of politicization, and the closed system of regulatory preparation with isolated and nontransparent processes of participation and fact finding—for quashing attempts to improve impact analyses.21 Maxeiner simplifies and overstates for a reason. He wants to make a point, and his book is not designed as a reference handbook of precise and methodologically sound analysis; it is an act of persuasion. The question remains whether, in the end, such a romanticized picture of the German system is really helpful. What is worse, in light of Maxeiner’s sharp critique of the American self-absorbed academic legal world, preoccupied with the U.S. legal system only, one may wonder whether this method will really convince colleagues to value comparative analysis more. Maxeiner quotes Justice Antonin Scalia in his critique on the use of foreign law in domestic adjudication: “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.”22 This point could be made against this very book. For Maxeiner, comparative research serves foremost the goal of improving one’s own system by showing “historical reasons for a long recognized and severe failure in our system and contrast that failure with obvious better performances of another system.”23 While this is a good reason for doing comparative research, it is not the only one. It may, for example, serve to better understand one’s own legal system, or to find patterns that characterize a legal instrument throughout different legal systems. Neither of these necessarily entails cherry picking or generalizations unsupported by evidence. The (sad) truth is that a long list of legislative anomalies can be drawn up in just about every country, irrespective of civil law or common law tradition. If the goal is to improve the U.S. lawmaking system, then it would be more fruitful to discuss Better Regulation programs, compare several jurisdictions that score well on specific points, and draw best practices from them, without idealizing a specific jurisdiction as such. Nevertheless, while the book’s strength makes it vulnerable, the reverse is also true: what makes the book vulnerable, is also its strength. A nuanced analysis with data and an engagement with the academic debate would make the book as tedious as any legal book is to “the general,” non-specialist reader. Instead, Maxeiner has produced a provocative work that kicks in the shins, gives a wake-up call, and calls into question well-established institutions and certainties. For this reason alone, this book is a must read, and more scholars should follow in his footsteps. For what is the purpose of scholarly inquiry if not to distrust the canon and to question what is well established? What is more, the book is not just a long complaint, it is also a recipe for the future. Maxeiner seems hopeful that the U.S. system can be cured, once Americans are taught what the alternatives are, as practiced elsewhere, and why it is not “un-American” to apply them. At the same time, he draws a bleak picture of the legal professions that are expected to fight for such cure. Maxeiner is not the only one to blame a conservative legal profession for obstructing attempts to codify and systematize the law; others have confirmed this.24 But where Maxeiner notes that legal professionals have chosen “to deal transactionally with chaos and find for themselves and their clients within that chaos the best possible solutions,”25 he seems to imply that lawyers do not find it in their self interest to improve the system. And the appendix is a long complaint of the very limited position that foreign law and comparative legal scholars occupy in U.S. law schools. If change has to come from legal professionals, this leaves little hope for improvement. Footnotes 1 " James R. Maxeiner, Failures of American Methods of Lawmaking in Historical and Comparative Perspectives, at xxii (2018). 2 " Id. at xxi. 3 " Id. at 15. 4 " Id. at 166. 5 " Id. at 181. 6 " Id. at 4, 7. 7 " Id. at 7. 8 " See Gunther A. Weiss, The Enchantment of Codification in the Common-Law World, 25 Yale J. Int’l L. 498 (2000). 9 " Maxeiner, supra note 1, at 117, 130. 10 " Joseph Dainow, The Civil Law and the Common Law: Some Points of Comparison, 15 Am. J. Comp. L. 426 (1966). 11 " Maxeiner, supra note 1, at 193. 12 " Failures of American Civil Justice in International Perspective (James R. Maxeiner et al. eds., 2011). 13 " Maxeiner, supra note 1, at 194. 14 " Better Regulation programs are about rational and effective lawmaking, with consultation, regulatory impact analysis, and ex post evaluation as cornerstones in the regulatory toolbox. See Ciara Brown & Colin Scott, Regulation, Public Law and Better Regulation, 17 Eur. Pub. L. 467 (2011); Claudio M. Radaelli & Anne C.M. Meuwese, Better Regulation in Europe: Between Public Management and Regulatory Reform, 87 Pub. Admin. 639 (2009). 15 " Maxeiner, supra note 1, at 225. 16 " Org. for Econ. Co-operation & Dev., Bessere Rechtsetzung in Europa: Deutschland 2010, at 85 (2010). 17 " Org. for Econ. Co-operation & Dev., Regulatory Reform in Germany 8, 52 (2004). 18 " Org. for Econ. Co-operation & Dev., supra note 16, at 58. 19 " This is why, for example, in 1985 an expert committee on “Schlanker Staat” (“slimmer state”) was established. For an end report, see Abschlussberichte (Sachverständignrat “Schlanker Staat” ed., 1997). 20 " Dirk Zeitz, Better Regulation in Germany as Quality Assurance System: Recent Developments and Current Challenges, Neth. Admin. L. Libr. (2016). 21 " Sylvia Veit, Bessere Gesetze durch Folgenabschätzung? 30 (2009). 22 " Maxeiner, supra note 1, at 308 (quoting Roper v. Simmons, 125 S. Ct. 1183, 1226 (2005) (Scalia, J., dissenting)). 23 " Id. at 319. 24 " Weiss, supra note 8, at 510. 25 " Maxeiner, supra note 1, at 146. © The Author(s) [2020]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

Journal

American Journal of Comparative Law – Oxford University Press

Published: Oct 1, 2002

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