Imagining Judges that Apply Law: How They Might Do It

"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. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law. American obsession with judicial lawmaking has its price: indifference to judicial law applying.

If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts is a necessary feature of civil procedure at all. German civil justice does have a method for routinely applying law to facts. It is called, in German, the "Relationstechnik," that is, in English, literally "relationship technique." This article introduces it to American lawyers and judges and shows how it helps make German civil justice effective.