Civilizing American Civil Justice: International Insights

Abstract

In 1776, when Americans declared independence from Britain, they also declared their rights. Their declarations of rights count “open courts” as among the best means for constitutional development. Open courts should secure to every man, without regard to wealth, a just remedy for every wrong suffered, according to the law of the land, by fair and speedy procedure.

Since 1776 Americans have invested heavily in creating open courts. They have been disappointed by returns that fall “far short of perfection” (Maurice Rosenberg). They have found reform to be an “unending effort to perfect the imperfect” (Jay Tidmarsh).

That Americans have built on the imperfect, i.e., that they have looked only to the system that they have, explains their disappointing results. Contemporary critics can diagnose disorders, but cannot contribute cures known to work. Reformers must imagine how proposed new methods might work; they have no guide to ways proven to work.

Elsewhere in the world there are civil justice systems that work better. American reformers need not imagine the unproven; they can study the proven. Yet contemporary reformers have not done so. They have foregone international insights. Why? Those better-functioning foreign systems are in non-English speaking countries. Their civil law methods seem distant from American common law practices.

This book is intended to make our three systems of civil justice, the German and the Korean, more familiar and less foreign to each other. It demonstrates that civil processes in Germany and in Korea are closer to American understanding than Americans assume. German and Korean civil justice values are familiar; their means of implementing those values are known and often practiced in America. Far from fearing foreign processes, American reformers should find them fonts of tested ideas.

Ten Points for Civil Procedure Reform that Promote Justice that is Civilized: 1) Legal rules seek justice through statutes; 2) Civil justice is accessible independent of wealth; 3) Those in right are not burdened with high litigation expenses; 4) Judges are professionals; 5) Trusted institutions coordinate civil justice; 6) Jurisdiction is determined without litigation; 7) Parties tell courts about their disputes; 8) Judges work with parties to prepare cases for decisions according to law; 9) Judges oversee taking evidence; 10) Courts base their judgments on law and explain them.

Keywords: comparative civil justice, civil procedure, legal methods, legal systems, Germany, Korea, Civil Law,