It’s the Law! The application of law to facts is a measure of convergence of common and civil law systems of civil procedure that is missing from our program. The previous session addressed “Getting Straight to the Facts” and “Getting Results.” Facts and results are fine, but what of the law and of its application? Should not applying law have pride of place in systems of civil justice? Should not it be the measure of convergence?
The measure of convergence that I propose is whether methods of applying law to facts are converging. Applying law to facts is the principal purpose of every system of modern civil justice. A successful method of applying law to facts serves essential functions of legal systems. It helps parties foresee how law will be applied to their lives. Should they have disputes, it helps parties resolve those disputes before bringing suits or, once lawsuits are brought, before those suits are determined. Of course, a method of applying law to facts determines the outcomes of disputes. The method of applying law to facts can facilitate appellate review of court decisions. It can help determine the res judicata effect of those decisions for subsequent disputes.
There is no sign of convergence between German and American methods of applying law to facts. The German method shows success and stability. It is the Relationstechnik or relationship technique. It has been in use throughout Germany, little changed, since adoption of the Code of Civil Procedure of 1877. It was in use in parts of Germany before that. There is no single American method. There have been, instead, numerous American methods used in different state and federal courts. American methods have vacillated between convergence and divergence among themselves. They have shown little stability and less success.
The German relationship technique has been successful, while American methods have been not been, because it has solved and American methods have not solved, what this paper refers to as the interdependency problem. Applying law to facts requires that laws be determined and facts found. These two findings are interdependent.
It's the Law! Applying the Law is the Missing Measure of Civil Law / Common Law Convergence, 49 Sup. Ct. L. Rev. 471 (2010)