Law Commons^™

The Authoritative Text As Imperative To Comprehensibility Of Legislation, James Maxeiner

All Faculty Scholarship

The most understandable of texts is of little use as law if it is not clear that it is authoritative. This is the comparative lesson of this essay. American law is—Americans say—indeterminate. American law is indeterminate because American texts, clear as they may be in wording, often are not authoritative; other texts apply too and may be inconsistent. German law is rarely indeterminate in this sense.

This essay identifies in bullet-points some comparative aspects of clarity of American and German law. Why is American law indeterminate? Why is German law not? What, if anything, do these differences …

Policy And Methods: Choices For Legislatures, James Maxeiner

All Faculty Scholarship

The legal methods through which one adopts and implements policy decisions profoundly affect the compatibility of policy implementation with democratic legitimacy and legal certainty of the rule of law. Indeed, the choice of legal methods can be as important as the formulation of the policy itself. While a good choice of methods will not heal a bad policy, it can help assure that a less-than-perfect choice of policy can be more forcefully realized than otherwise, it can also help improve the policy choices made and help protect democratic legitimacy and the rule of law. While deficiencies in legislation or in …

Legal Certainty And Legal Methods: A European Alternative To American Legal Indeterminacy?, James Maxeiner

All Faculty Scholarship

Americans are resigned to a high level of legal indeterminacy. This Article shows that Europeans do not accept legal indeterminacy and instead have made legal certainty a general principle of their law. This Article uses the example of the German legal system to show how German legal methods strive to realize this general European principle. It suggests that these methods are opportunities for Americans to develop their own system to reduce legal indeterminacy and to increase legal certainty.

Legal Indeterminacy Made In America: American Legal Methods And The Rule Of Law, James Maxeiner

All Faculty Scholarship

The thesis of this Article is that the indeterminacy that plagues American law is "Made in America." It is not inherent in law. Rather, it is a product of specific choices of legal methods and of legal structures made in the American legal system.