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Guiding Litigation: Applying Law To Facts In Germany, James Maxeiner
Guiding Litigation: Applying Law To Facts In Germany, James Maxeiner
All Faculty Scholarship
"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a "simple-minded demand" that is "silly and misleading. It is not; it is what the public rightly expects from law. H.L.A. Hart, reminded U.S. jurists that "conventional legal thought in all countries conceives as the standard judicial function: the impartial application of determinant existing rules in the settlement of disputes."
This essay discusses the German method of judicial applying of law to facts. called, in German, the "Relationstechnik," that is, in English, literally "relationship technique." This essay shows how …
True Believers At Law: National Security Agendas, The Regulation Of Lawyers, And The Separation Of Powers, Peter Margulies
True Believers At Law: National Security Agendas, The Regulation Of Lawyers, And The Separation Of Powers, Peter Margulies
Law Faculty Scholarship
Ideological agendas distort the deliberation required for sound legal advice about national security. Elite government lawyers after September 11 advanced a theory at the expense of context, labeling legal constraints as "lawfare" against American interests. The lawfare critics failed to recognize that legal constraints can empower decision makers by reinforcing reputational and other long-term values. They also failed their history test, ignoring the lessons of presidents from Jefferson to Kennedy who rejected a rigid adherence to ideology in the national security realm. By discounting context, the construction of the lawfare paradigm produced dire results, including the torture memos drafted by …