What Germany Can Teach the U.S.: Rewrite Old Laws

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Laws go out of date, so why can't the U.S. regularly revise and update them, as some European countries do? 

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In 1955, after ten years of American occupation and 80 years of law-making from the governments of Otto von Bismarck to Adolf Hitler, Germany announced a house-cleaning of its laws. At Parliamentary direction, the Federal Ministry of Justice collected all of the existing laws it believed the government should keep. Laws not in the collection were no longer valid.

How has Germany kept current since then? For one thing, it sporadically conducts new spring cleanings. Most recently, it reduced 2,039 laws to 1,728. Government ministries also see it as their job to keep laws in their competence areas current, regularly releasing new editions of the laws that incorporate recent minor amendments.

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The Federal Ministry of Justice, the Parliament, and the Cabinet collaborate to write new codes and revise old ones. Since 1976, they've created new codes of administrative law and modernized the civil and criminal codes. They introduce new ideas and clean out old ones. Some of these revisions would be familiar to American lawyers. Updated Civil Code provisions protect contracting parties against unfair terms more precisely than the 1900 versions they replaced. Their American analogue, the "unconscionability" section of the Uniform Commercial Code, hasn't changed since we borrowed it from the German Civil Code in the 1950s. It's no surprise that it does not work as well as its updated German counterpart.

Obsolescence isn't only a problem of accumulation, it's also a problem of quality; poorly drafted laws and regulations age quickly and poorly. To combat this, in Germany -- as well as in France and the United Kingdom -- lawmaking is largely left to the executive, rather than to lobbyists or inattentive legislative committees. Legislators review, revise, and adopt government bills, but only rarely do they write laws themselves. Typically, in Germany, a ministry floats a preliminary draft law for discussion by the public. If it's well-received, the ministry, in coordination with the Federal Ministry of Justice, offers a formal draft to the cabinet. When the governing parties agree, they present either that draft or a variation with revisions. Parliament then irons out the most important issues. The Federal Ministry of Justice controls the technical quality of laws, imposing standards of comprehensibility, consistency, and coordination with other laws to ensure that all aspects of German law work together efficiently and harmoniously. Other countries employ similar bodies: for instance, in the UK, this same task is overseen by the Office of Parliamentary Counsel.

Regardless of where they originate, German laws use an open-textured language of flexibility that also guides solutions to future problems, rather than the language of micro-regulation more common in American law and regulation. Section 242 of the German Civil Code is famous for how it tempers the Code's rules with a general obligation of "good faith."

Both Germany and the United States are members of the Organization for Economic Cooperation and Development (OECD). For nearly 20 years, the OECD has been working to establish and maintain a long-term basis for efficient and responsive regulation in its member countries. Its work is appreciated worldwide but particularly in the European Union (and a particular lack of effect here in the U.S.). Why?

The EU has 27 sovereign states with 27 different accumulations of laws and regulations. It also has 12 different national languages, which are natural barriers to a single market. If the EU is to be competitive, argues the OECD, it needs "a stable, high-quality legal framework that applies in all Member states" and that is also true to its principle of decentralism. One would expect greater difficulties there than in the United States given government overlap, state particularism, and licensing schemes designed to keep their European competitors at bay, but it is the EU and its member states that have embraced the OECD program.

EU issues are American issues: The laws of the EU and of its member states must each be good, up to date and must all work well together. Although the EU has had only a few years' experience, it has already had successes that we have missed. For instance, where we have multiple levels of regulatory reviews (sometimes dozens for a single project or product), Europe embraces the principle of the one-stop-shop. If you get an approval from the EU or from one member state, ideally you should be good to go in the whole EU.

The OECD Regulatory Reform program prods EU member states to conduct house cleanings of old laws. It pushes them to develop economic-based reviews of old and new laws in addition to the legal reviews that they historically have conducted. It prompts them to create new permanent high level government institutions to conduct economic policy reviews of both old and new laws to ensure that the economic burdens of laws and regulations never outpace their social utility.

Several countries have taken up this challenge, with new review bodies now old enough to trumpet successes. In the UK, for instance, when implementing EU directives, government departments are required to report instances of "gold-plating," where UK regulations require more than the directives, so that they can be considered by the Regulatory Policy Committee and cleared by the Reducing Regulation Committee. The German National Regulatory Control Council reports on the fifth anniversary of its establishment that it has saved Germany nearly 12 billion euros in unnecessary costs. And reviewing new laws for economic efficacy and burden of compliance in Belgium and the Netherlands are the Administrative Simplification Agency and the Regulatory Reform Group, respectfully.

The OECD Regulatory Reform program is not just a guide, it is also a warning. A 1999 report on regulatory reform in the United States found that "much legislation and regulation is seriously outdated." It concluded that the quality of the statutes that Congress adopts is "at the heart of the most severe regulatory problems." To deal with obsolete laws it prescribed the cure that the OECD encourages around the world: "systematic review of the vast body of existing laws and other regulations." Others countries have taken the cure and prospered; will we?

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James R. Maxeiner is law professor at the University of Baltimore and holds degrees in both U.S. and German law. His most recent book is Failures of American Civil Justice in International Perspective (Cambridge University Press, 2011). More

James R. Maxeiner is the author of numerous articles and several books on law reform including Failures of American Civil Justice in International Perspective (Cambridge) and Policy and Methods in German and American Antitrust Law (Praeger). His professional background is in both U.S. and German law and in the international practice of law. Before his academic appointment, he was vice president and associate general counsel of Dun & Bradstreet, Inc., a senior associate at Kaye Scholer in New York City, and a trial attorney in the Antitrust Division of the U.S. Department of Justice in Washington DC.
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