NCJ Number
118871
Journal
Justice System Journal Volume: 13 Issue: 2 Dated: (1988-89) Pages: 186-201
Date Published
1989
Length
16 pages
Annotation
Concern with growing caseloads of courts in West Germany and the United States has been accompanied in both countries by proposals to encourage pretrial or out-of-court settlements, but efforts at cross-national imitation of specific aspects may not prove fruitful because of the different functions of civil procedure in the two legal cultures.
Abstract
Proposed reforms in the two countries address both the role of the judge and procedures for obtaining evidence before trial. Both countries' reformers look across the Atlantic; those in the United States often advocate more of a continental, judge-centered system, and those in Germany are attracted to American pretrial discovery procedures. Replication is not likely to take hold in either country, however, because dispute resolution and law application are grounded differently. Americans focus on the dispute and the disputants as being a part of society; whereas, Germans focus on the legal order as part of the social order; Americans are process-oriented; Germans are outcome-oriented; Americans need the courts to guarantee the rule of law, but prefer to settle cases instead of having them adjudicated; Germans leave the possibility of settlement open to observe the principle of private autonomy, but prefer adjudication once a case is in court. 31 footnotes, 38 references.