Wednesday, March 30, 2016

Now on JOTWELL: Thomas on Coleman on Efficiency

Today on the Courts Law section of JOTWELL is Suja Thomas’ essay, Redefining Efficiency In Civil Procedure. Suja reviews Brooke Coleman’s recent article, The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015).

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Efficiency and American civil procedure are two concepts that do not go together. Efficiency should not be feared, but should be greeted. Efficiency means greater access to civil justice, because efficient civil justice is affordable. Because civil justice is efficient in Germany, everyone who needs legal aid has a right to it—including the million newly arrived refugees.

Compare the systems. For an example among the amendments that threaten to introduce a “restrictive ethos,” take one of the first: the amendment to Rule 4(m) requires plaintiffs to serve their complaints within 90 days instead of 120 days. WOW! What a threat. Under § 271 of the German Code of Civil Procedure the court, yes the court, not the plaintiff, is to serve the complaint without delay (“unverzüglich”). Without delay means service in less than 14 days after filing. Moreover, before the court serves the complaint, the court—yes the court, of its own motion—conducts Federal Rule 12(b) reviews. Think what a savings of time and client money that produces! Two weeks, not two months, not two years.

What’s wrong with American procedure that’s right with German procedure? American procedure focuses on process, while German procedures focuses on reaching decisions according to law. American procedure is the darling of the bar; German procedure is a service for the people.

Posted by: James Maxeiner | Apr 22, 2016 10:20:23 AM

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