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Comparative Law Penn Law Outlines

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Comparative Law Penn Law Outlines Powered By Docstoc
					Introduction (1-8) .................................................................................................................................................... 3
     Course Structure.............................................................................................................................................. 3
     Three Braches Seen in Most legal systems ..................................................................................................... 3
     Influences on Law ........................................................................................................................................... 3
   Why does law vary? ............................................................................................................................................ 3
     Montesquieu, The Spirit of the Laws (1748) .................................................................................................. 3
     Levmore, Rethinking Comparative Law: Ancient and Modern Tort Law ..................................................... 4
   Order W/out Law? Legal Institutions in stateless societies ................................................................................ 4
     The Delaware - American Indians. ................................................................................................................. 4
     Bailey, Approximate Optimality of Aboriginal Property Rights, ‗92 ............................................................ 4
     Friedman, Law‘s Order ‘99............................................................................................................................. 5
     The Economist, Pushtunwali, ‗06 ................................................................................................................... 7
     Stein, Development of Dispute Settlement in Stateless Societies ‗84 ............................................................ 7
Cts, Dispute Resolution and Social Control ........................................................................................................... 8
       Stein, Legal Institutions, 13-23 ...................................................................................................................... 8
       Martin Shapiro, Cts: A Comparative and Political Analysis 1-37 (1981) .................................................... 10
Law and Society in Imperial China (Hierarchy, Harmony and Group Duty) ....................................................... 11
       Shapiro, Cts, China chapter .......................................................................................................................... 11
       Quotes from Confucius – See My Docs Folder ............................................................................................ 13
       Film: The Ballad of Qiu Ju – Chinese Law in the 80‘s ................................................................................ 13
       Van Gulik, Five Auspicious Clouds, from Judge Dee At Work ................................................................... 14
       William P. Alford, Of Arsenic and Old Laws: Criminal Justice in Late Imperial China, ‗84 ...................... 14
Islam and Appeal .................................................................................................................................................. 14
       Jacob Neusner and Tamara Sonn, Comparing Religions Through Law 128-38 (2000). .............................. 14
       Muhammad – Charismatic Leader ................................................................................................................ 14
       Shapiro, Cts 194-222 – Cts of Islam ............................................................................................................. 15
       Jensen, CONFRONTING MISCONCEPTIONS AND ACKNOWLEDGING IMPERFECTIONS: "ISLAM
       AND DEMOCRACY" .................................................................................................................................. 18
Intro to Western Legal Tradition: The Civil Law ................................................................................................. 18
   Sources of Law in the Western Legal Tradition ............................................................................................... 18
     Merryman, The Civil Law Tradition 19-34 (2nd ed. 1985) ........................................................................... 18
     Barry Nicholas, An Introduction to Roman Law 1-14, 38-45 (1962). ......................................................... 19
     Shapiro, Cts 126-56 ...................................................................................................................................... 22
   Judges and Judicial Independence in Legal Systems Today ............................................................................ 25
     Merryman, Judges, in The Civil Law Tradition 34-38 ................................................................................. 25
     Ramseyer, The Puzzling (In)Dependence Of Cts: A Comparative Approach, '94. ...................................... 26
     Georgakopoulos, Discretion in Career and Recognition Judiciary ‗00 ........................................................ 26
     Career v. Recognition Judiciaries ................................................................................................................. 26
     Appointment of Judges ................................................................................................................................. 27
   Comparative Procedure ..................................................................................................................................... 27
     Stein, Legal Institutions 25-44. ..................................................................................................................... 27
     Criminal Procedure ....................................................................................................................................... 28
     Shapiro, Cts 49-64 ........................................................................................................................................ 29
     Adversarial v. Inquisitorial Systems – Lay v. Profession, Judge v. Jury...................................................... 30
     Damaska, Faces of Justice & State Authority 186-99 (1986). ...................................................................... 31
     M. Galanter, Haves Come Out Ahead in Civil and Common Law Systems (‗74) ....................................... 32
     Mary Ann Glendon, Comparative Legal Institutions. .................................................................................. 33
     civil, criminal, and admin procedure CL and civil law countries differ ON ................................................ 33
   Lawyers and the Legal Profession .................................................................................................................... 34
     Influence on Organization of How Laws are Made ...................................................................................... 34
     Jacob, Cts, Law and Politics in Comparative Perspective 84-93, 201-206, 266-277 ................................... 34
     Kenneth Port, Comparative Law: Law and the Legal Process in Japan 281-90 (1996). .............................. 34
     Robert Kagan, Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry ‗94 ................................ 34
   Comparative Judicial Review ........................................................................................................................... 34
     Judicial/Constitutional Review ..................................................................................................................... 34
     Ginsburg, Judicial Review in New Democracies (2003), excerpts. ............................................................. 35
     Ginsburg, The Spread of Constitutional Review, ‗07 ................................................................................... 35
Japan ..................................................................................................................................................................... 36
   Legal History and Civil law institutions ........................................................................................................... 36
     Kawashima, Dispute Resolution in Japan, ‗63 ............................................................................................. 37
     Ginsburg, The Unreluctant Litigant? Journal of Legal Studies (2006). ...................................................... 37
Criminal Process/Justice Systems ......................................................................................................................... 37
       Stein, Legal Institutions 54-68. ..................................................................................................................... 37
       Jacob, Cts, Law and Politics in Comparative Perspective 328-347 .............................................................. 38
       Frank Zimring, Punishment and Democracy: Three Strikes and You‘re Out in CA (‗01) ........................... 38
America in Comparative Perspective.................................................................................................................... 39
       Comparative Common Law: Posner, ‗96..................................................................................................... 39
       Atiyah and Summers, ‗87Comparative Common Law – See My Docs ....................................................... 40
       Alexis De Tocqueville, Democracy in America 282-90 (1835). – See My Docs ........................................ 40
       Kagan and Axelrad, Adversarial Legalism: An Int‘l Perspective in Comparative Disadvantages? ............. 40
       Schwartz, Product Liability and Med Mal in Comparative Context – See My Docs ................................... 40
       Wilson, Bureaucracy ‘89 – See My Docs ..................................................................................................... 40
       Feldman, Blood Justice: Cts, Conflict and Compensation in Japan, France and US ‘00 – See My Docs.... 40
       Keleman and Sibbitt, The Globalization of American Law, International Organization, 2004. .................. 40
Introduction (1-8)
Course Structure
   A. Pre-state Societies
   B. Four Legal Institutions
       1) Islamic Legal Tradition
       2) Chinese Legal Tradition – focus on criminal/penal/public law
              a) Rule by law
       3) Civil Law
              a) Roman Law – focus on private law
                       i. Ordered relationships btwn civilians
                              1. Jus Civilis – law governining citizens
       4) Common Law
   C. Structuring of Legal Systems
   D. Election of judges, judicial review, etc
   E. Transnational Institutions

                 Custom:                 Iceland             China                Nation State/        Islam
                 Pre-state societies                                              Western norms
                 (Native Americans)
Law Created      Group                   Legislature         Emperor/Gov‘t        Legislature          Divine
                                                                                                       Revelation –
                                                                                                       from God
ID Violations    Group                   Private             Bureaucrat           Private/public       Private/public
                                                             (magistrate)         ID of violation      ID of violations
Apply            Chief/Group             Ct                  Bureaucrat           Ct                   Ct
Enforce          Group                   Private             Bureaucrat           Executive            Executive

Three Braches Seen in Most legal systems
1) Who creates/makes the rules
     God, King, Elected Officials (usually)
2) Institutions: Apply Rules
3) Executive – make sure rules enforced

Influences on Law
Colonialism – responsible for spreading the 3 branches of gov‘t
Globalization – putting pressure on nation states, super-national powers/forces taking decisions away from national
powers
Economic – Levmore
Political Theory – Marx
Geography (or isolation of a country)
Culture – beliefs, values (ex. Individualism, litigiousness)
Path dependency – certain decisions are sticky for a particular reason, Ex:
    1. network good (telephone),
    2. one person‘s benefit ↑ed by the use of others of the same good
    3. Stickiness of past Decisions – once decision made, even if bad decision, difficult to change (keyboard
        configuration), So makes different legal systems to maintain different standards

Why does law vary?

Montesquieu, The Spirit of the Laws (1748)
Separation of powers, based on British ideals, heavily influenced US constitution
Law is dependent variable,
   1. dependent on features of different countries,
   2. founder of law and society
Sources of divergence of law in different states –
    1.   history,
    2.   morals,
    3.   different ethnic groups w/in states,
    4.   prominent historical figures

Levmore, Rethinking Comparative Law: Ancient and Modern Tort Law
Analysis of ancient legal systems, optimistic econ theory, opposite of path dependencies

Rules that are good and are founded on good reasoning are likely to be seen across legal systems
    Uniformity when the rule matters behaviorally and divergence when it does not matter
    But societies w/bad legal rules aren‘t likely to survive long (optimistic)
    SL vs. Negligence – same basic outcome will result, efficient levels of care will be taken under either legal
        regime, DIFFERENCES
                a) distribution of costs
                b) administration – lower or higher costs
Convergence when econ efficiency is a stake, otherwise divergence

Order W/out Law? Legal Institutions in stateless societies
The Delaware - American Indians.
How Gov‘ts set up
   1. Divisions of Labor – by age, sex, skill
          a. Scarcity of Labor: Couldn‘t handle complicated division of labor – need more food to support it, they
              didn‘t have enough
   2. Class – had slaves (captured in war)
   3. Leadership (Chiefs) – works as negotiator and dispute resolution, did not make rules
          a. selected by matrilineal descent and appointed by outgoing chief (although not binding)
   4. Medicine Men – picked more based on belief than on actual skill

Women
Women – relatively important role; had word in divorce, matrilineal descent, etc.
Mass Agriculture – may be cause of shift to greater gender inequality whereas less developed societies tend to be more
gender equal

Rules They Had – War, Religion, Adultery
   1. Emerged from – social norms – also form of enforcing the law ―shame‖ –
   2. ultimate punishment = banishment, they would die
   3. No need for elaborate laws b/c all individuals know each other, repeat interactions
   4. Blend of criminal and civil law

Food Acquisition
Agriculture – harder to tie effort to output, difficult to monitor – usually individualized
Hunting – easier to know who‘s doing work (monitor),
        all go out for hunt together – usually collective work and distribution
Collective (strong use of sharing) in societies living at the margin – ex. Food hunted (large animals)
        For two reasons 1) economic benefits – carrying back large catch and
                          2) social norms – how you were taught, expectations

Bailey, Approximate Optimality of Aboriginal Property Rights, ‗92
Differences btwn Humans/Animals – Morality, Trade, internalization of right/wrong
Private Prosecution – common in early stages of legal societies (Iceland, Romans, also 18th England)
     US Legal System‘s
            o IDing violations bifurcated btwn
                      civil (private citizens protect themselves) and
                      criminal (State: either bring violations to police or take the violation to them)
Kin – mandatory duty to protect your kin and avenge their loses,
Serves to prevent crimes by other groups
Collective violence → reduction of violence, social stability

You can have social order w/o state and w/o law –
Law has a relationship w/norms (builds on them)
   1. Begins by allowing private enforcement – w/a small amnt of enforcement
   2. State eventually replaces normative systems

3 Functions of Law:
   1. Making Rules, (IDing violations, bringing the case),
   2. Applying Rules, and
   3. Enforcing Rules

Jan 17
Friedman, Law‘s Order ‘99
Lessons
    1. Internal norms are very important
    2. One reason people are not criminals is that they suffer in softer terms—no job, no apt rented, no dating
             a. System of private enforcement
Judgment – expression of legal authority,
    1. Helpful to facilitate coordination btwn parties,
    2. Powerful w/o enforcement, follow rule b/c others will be likely to do so as well
             a. Iceland - told people appropriate way to behave)
Case Studies
1) Iceland – no mechanism for enforcing rules, privately (exclusively) prosecuted each other
    ―Godi‖ (Chieftain/landowner) - System organized around
        1. 39/40 total on island
        2. Right to be a Godi was transferable property like a franchise
        Legal System – all law (and its enforcement was private)
    To sue:
        1. First determine person‘s ―Godi‖ to know which Ct.,
        2. Then sue, if no payment sue again,
        3. If no payment again you can kill opponent.
    Problems w/System:
        1. Powerful men – systems solves by use of fines and awareness of the cost of killing people
        2. Poor Defendant – tort claims transferable so victim can sell claim to neighbor (like contingency fees)
        3. Crimes w/low probability of Detection – treat concealment of crimes as further offense
        4. Judgment on poor Ds –
                a. loans from neighbors or
                b. forms of temporary slavery,
                c. being killed or exiled was motivation to pay
        Major problems – upset balance of power by influx of outside resources, eventually led to collapse after 300 yrs
        a. Vote eventually turned Iceland land back over to Norway – ended 300 yr experiment
     legal system of private law
      No executive branch
      System consisted of court and a legislature with one gov‘t employee—
         o the logsumador who presided over leg, gave legal advice, and recited the legal code
      System centered around the office of the Godi—or local representative
      When suing someone—whoever represented the def, his godi, determined which court he could be sued in
      P sued for money damages and if def did not pay, pl could kill him with impunity with the help of the community
         o Anyone that helps the def is in violation of the law and can in turn be sued
         o This reflects the problem of not having an executive branch
         o System of private law where the hearing and the enforcement of the verdict were all private
      Problems
         o The person without friends or money to bring or enforce a suit
         o The Judgment proof def without money to pay the fine
        o  The D that ignores the verdict and is alienated by a coalition of pple that believe what he did is wrong or
           illegal
     Argues that the system is inherently stable
       o Killings had to be paid for, and so the proposition was an expensive one
       o Claims were transferable (resolves the problem of poor not having resources to bring the claim
                 Person that gives up the case gets deterrence and the one that brings it gets the damages
       o To deal with low probability of being detected
                 Misprision of felony and confessions
                 Failing to admit a killing was punishable as a worse felony—and shameful
       o Judgment proof def
                 Borrow money from friends and family to pay fine in exchange for future services
                 Def did their best not to be judgment proof—alt was banishment or death
     Present systems
                 System collapsed b/c of external pressure—Norway incited civil war and Icelanders eventually gave
                   up
                 Balance of power depended on decentralization with power dispersed among many godi
                 Once power became concentrated, the system failed
                 When feud resolution related to halping someone that had been wronged, it was fine, but then it
                   turned into a system vying for political power—for the monarchy
                        Foreign ideology fucked the system

2) 18th Century England – allowed any citizen to prosecute their own crimes
         Dispute Resolution
         Globally, a private system of justice getting replaced w/public service of dispute resolution
         UK had Monarchy in development –
            a. Public punishments (and rules) to show authority,
            b. Don‘t give law making functions to parliament (centralized and not given up until much later)
         Punishment –
            a. 1st sent prisoners to the Americas,
            b. Then continued w/ the Death Penalty,
                      i. Death Penalty often used as a scare tactic (costly and waste of resources, but ―mercy‖ set up
                         political structure that built authority and power of King)
            b. Private Prosecution – cheaper, allowed for settling out of Ct,
                      i. system of groups that prosecuted of felons (neighborhood watch) –
                             1. Prob - many only serve as a way to shift crime to another house or area
     No police or prosecution
      Why prosecute if the D would just get death
          o Hope that def will settle, Pl has a chance to gain something
          o To buy deterrence—buy a reputation that will deter other criminals
      Developed a private society for the prosecution of felons
          o Collected dues that would be available to prosecute anyone for a felony
          o List of members was published in the local paper
          o Turned deterrence from a public good into a private good
      Problem—anonymous victim offenses—e.g. highway robbery
          o Where the criminal does not know whether the v is part of the society
      Abuse of the Neck verse system
          o Saved your neck if you could recite a passage from the bible-this meant that you could read
          o Criminals memorized the lines
          o Response to the church retaining authority over its clergy was to declare certain serious crimes non-
             clergyable
      Bloody code
          o All serious crimes were capital crimes punishable by hanging
          o Lead to juries convicting for lesser crimes (pious perjury) or the court offering pardons
                  Pardons reduced the negative
          o Preganant Women pleaded their belly
          o Men enlisted in the army
         o   Stats indicate that only 40 percent of def charged with nonclergyable offense were convicted and less
             than 40 percent convicted were executed
      Imprisonment was not widely used
          o Execution and banishment or transportation (to Australia—galley servitude) were cheaper
          o Galley servitude or slavery was a renaissance idea where the prisoner must more money than the cost
             of feeding him
                   Impractical for war on ships b/c men were chained and hated you—did not become widespread
                      practice until the invention of the canon
      More inexpensive and profitable penal system
          o England relied more on transportation
          o Discretionary sentencing
                   In the form of pardons, which reduced the negative externalities of sentencing
      System of Pardons
                   High status people intervened in exchange for favors and services
                   In a sense an option of fine or execution
                   When def borrowed for fine—to secure the pardon, his friends and family were sure to deter him
                      from committing another crime—there were economically invested
                   Form of collective punishment
                   Substituted for efficient punishment
     France - System of police and prosecutors and jails and the system collapsed mid-century
      Why did England not seek a more modern system
          o GB was engaged in war for much of the 17th and early 18th
          o Knew that if the crown controlled the system, king‘s friends could get away with murder
      Comparing to the modern system
          o Note that the incentives of both the enforcers and the enforcees matter
          o Police, judiciary, and courts can be and are corrupt
          o The state controls criminal prosecution and civil prosecution by the victim
      Prosecution depended on lots of collaboration and cooperation, which worked best in small towns—see shift from
private to public prosecution
      GB used imprisonment when it was rich enough to afford it
Rationality and a modern view of punishment—criminals were criminal b/c it paid and you had to impose
punishments severe enough to deter
Order without law—Shasta County
          o Open and close range system where the informal norms are privately enforced and privately judged
          o System that is better than self-help b/c the norms are internalized
          o System of vengeance and counter measures where punishment would be more efficient, but might be too
             efficient
      Close knit groups develop efficient rules
          o Whalers in Maine
          o Academics in re copyright

The Economist, Pushtunwali, ‗06
Group of ~25m people, some of which have never been controlled
            a. has resisted time and Islam
Mandatory vengeance – most important aspect of society, Honor based society
Liberal in some ways
            a. Egalitarian, very little social structure and material goods and
            b. At the same time very controlling of women (treated as property)

Stein, Development of Dispute Settlement in Stateless Societies ‗84
Difficulty in Determining Guilt of Innocence
Evidentiary system - like flipping a coin now
        Ex: If hot coal burned you, meant you were guilty, If not, then not

Jan 22-24
Cts, Dispute Resolution and Social Control
Stein, Legal Institutions, 13-23
Dispute Resolution Continuum
Go-Btwn → Mediation → Arbitration → Adjudication (High formality/law)
Before dispute resolution –
            a. Negotiation,
            b. Self-help (1st person or 3rd party imposition: Gossip, Shaming, Violence),
            c. Surrender (Concede defeat) –
            d. If cannot be resolved like this conflict develops in triangle below
Dispute escalates by:
    1) 1st IDing dispute,
    2) Assigning blame,
    3) Asserting claim against them



                                                  Claiming


                                            Blaming – ID the
                                            wrongdoer
                                    Naming (of dispute) – ID the
                                    wrongdoer
* hard to compare across societies: although some societies have less dispute resolution, no way of knowing how
many disputes there are total in a society

Go-Btwn → Mediation → Arbitration → Adjudication (High formality/law)
    Less consent/fairness/status considerations/exogenous factors on the Right,
    More costs/formality/law/norm generation on Right)
    *Results towards the middle ground on the Left, to extremes on the Right

1) Go-Btwn – like mediation but parties no present
2) Mediator – very hands off, parties settle w/middle man to lead negotiations more actively, constructs solutions
3) Arbitrator – less flexible, picking solution congruent w/law or norms parties have chosen, no publicity of decisions
   (or generation of law)
       a. Non-binding – a lot like mediation
       b. Binding – more like Cts, generally selected by parties (consent to submit to arbitration)
                 i. Ex – Baseball: two sides submit possible solutions and arbitrators selection 1 or other
       c. If arbitration was procedurally biased you can challenge in Ct. but NOT for error in application of law or
           factual error
                 i. Often can challenge choice of arbitrator
       d. Efficient – keep cases out of Cts, speedy decisions, so appeals very limited
4) Adjudication – more black and white decisions, less compromise, sets precedent/generates norms (need publicity
   of decisions)
       a. rules known in advance,
       b. independent judgment,
       c. Adversarial process,
       d. Dichotomous results,
       e. Based on relevant facts
       f. Want system that will decrease incentive to litigate,
                 i. if no barriers/costs to litigation then too many cases would be adjudicated,
                ii. don‘t want Cts to resolve every dispute
       g. Reasons for Choosing Adjudication –
                 i. enforcement (legitimacy)/
                ii. uniformity/predictability/
               iii. fairness is high
        h. Consequences of Getting Rid of System of Adjudication –remove incentive to submit to other dispute systems
           in the shadow of the Cts

Substitution: Office for Consent - Upon development of state
a) Arbitration - very consent based,
b) New system - there is no say in judgments → leads to unhappiness when decisions go against parties
        Gain respect by appearing impartial, avoidance of self remedies
   Rome Ex: when it became a republic around 5 B.C. system become more permanent/routine
    Wanted to arbitrate - picked two fellow citizens
       1) Praetor rule maker AND
       2) Iudex (arbitrator) applied and decided on the rule
    Eventually people went to same rule makers, Iudexs continued to change
    Praetor (rule maker) – gov‘t officials whose job to govern relations btwn Romans and Non-Romans, case by
       case arbitration
           o Edicts: Praetors decided that continuity of rules should be developed, list of rules/answers to each
               question
                   1) Eventually these rules became a fixed system of law
           o Praetors then become deciders of law as well

Triad – Idea that when two people have a dispute, usually go to a third party for resolution of their dispute,
    Usually man chosen is powerful that carries a lot of weight,
    Once we establish a state/gov‘t, shift/pressure goes towards more formal system
    Specialized Judges – appear early in development of division of labor

Regular courts and why some states do not adopt them
    Regular courts classical model
           o Dichotomous solutions
           o Law is precisely defined and applied rigidly
           o There is central authority behind the court, so it is not necessary that pple consent to be bound by its
               decisions
           o Decisions are predicted with certainty and the law is seen as a set of known rules of reasonable precision
    Arbitration—split the difference, seen as justice that carries peace b/c parties accept the decision
    Limits
           o People do not like the court
                    Tory island prefer equal shares, custom and public/family pressure/ alienation to ensure that
                       people do not try to get more than they should have to keep the peace
           o Athens
                    Court of citizen judges
                    Some matters were so complex that they could not be explained to regular people so parties
                       preferred arbitrations
                    Made arbitration mandatory as a preliminary step
Kin and the blood feud institutionalized violence
    NB—litigants had to be able to compel their opponents to go to court and had to enforce the judgments
       themselves
           o Problematic when the litigant could not mobilize support from the community/family
           o Ireland
                    Use fasting to shame people into paying debt
           o Ancient Germany
                    Tribal group defined the laws of the group lawfinders
                    Retaliation in kind was allowed for individuals wronged
                    Later—institute a system of fines and tariffs for compulsory compensation
                    Essentially a system of damages
                    Killer had to pay the kin of the victim
                 Since there was no executive to enforce the judgment for damages, a blood feud resulted
           oScotland
                 Institutionalized the blood feud within the feudal system
                 Kings incorporated the feudal lords into national law b/c it was the best way to ensure stability
                         Albanians in Kosovo have strong clan relations where it is custom that one clan much
                           avenge a wrong against the other
      Compensation was able to replace violence
         o Kin as a group became less of a cohesive body and populations grew and people moved
         o The Church discouraged violence
         o Central government became stronger

Martin Shapiro, Cts: A Comparative and Political Analysis 1-37 (1981)
Myth of Ct System:
1) Decisions: Not as dichotomous decision making
2) Judicial Reasoning: Don‘t apply pre-existing law, always defined rules in place, many times analogize to similar
     cases
3) Judiciary does some law making, alters balance of Montesquieu’s separation of powers
         a. CL system – Hayek, can evolve and adjust as economy and society changes,
                  i. Civil law system more static in rigid
         b. Civil Law (legislative system) – provides more uniformity, predictability, knowledge of law provides
             deterrence
Triad is the basic structure of dispute resolution
         a. Based on consent—people pick the law and the judge, so they are more likely to agree to the solution
         Go between                     Mediator                    Arbitrator                 Adjudication
Hi consent                    Hi consent                   Lo consent                   No consent
Vehicle of negotiation        Assists the parties in       Fashions his own             Dichotomous solution
                              shaping a resolution of      resolution                   binary/ adversary (Japan in
                              their own                                                 urban areas)
Buffer                        Split the difference btw     Can merge with mediation Binary aspect is a legal
                              the parties (best with       or with judicial decision    fiction—the judge must
                              something that can be        making (private judge        pretend that he knows
                              split= e.g. money)           chosen by the parties)       what the facts were
Lo specificity                Lo specificity               Hi specificity               Hi specificity
Working with an elder to      Reveal great deal of                                      Consistent verdicts based
settle the ownership of a     judicial discretion                                       on pre-existing and hard
pig (Papua—big man =                                                                    rules (loser unhappy but
man with many pigs)           China, Japan (rural),                                     he does not Q so long as
                              agrarian villages                                         he believes law is
                                                                                        legitimate)
**********                    ********                     Function well under the      Balancing of equities in
                                                           shadow of supervision of the seemingly
                                                           the court                    dichotomous system
                                                                                        allows room for mediation
a. Key in shift from consent to law is specificity (compulsory legal rules)
Eisenberg—classifications are not hermetically sealed — continuities btwn dispute resolution and adjudication
Coons — questions adjudication b/c it is based on legal fiction that one side is correctly stating facts when not
established with a reasonable degree of certainty
b. Prototype
     a. independent judge applying (social control, gov‘t official, working for agency or for gov‘t, criminal law)
     b. preexisting legal norms after (judge as lawmaker and in order to create social policy)
     c. adversary proceedings (two on one)
     d. in order to achieve a dichotomous solution (jury mitigates damages)
Shapiro Challenges the prototype
         a. independent judiciary (looks at the one that is supposed to be the most independent—English)
             a. lower courts are not independent of appellate courts
         b. pre-existing legal norms (looks at Western Europe)
          a. Fiction that civil law Ct‘s do not engage in lawmaking
                i. stats are too sparse
               ii. in interpreting stats, judges rely on case law
              iii. large role of scholars
       c. adversary proceedings (tests insistence that societies mix the 4 approaches against China—reputed to be
          totally dominated by mediation)
                i. China does mix approaches
               ii. appeal as universal b/c of its political utility against Islamic law
c. The court must convince the parties that it is a neutral 3P and that the laws chosen are legitimate
       c. Judicial activism questions the independence and legitimacy of the court
Jan 29
Law and Society in Imperial China (Hierarchy, Harmony and Group Duty)
Shapiro, Cts, China chapter
Chinese Legal System – most successful legal system, longest lasting
Confusionist System
Characteristics
   1. No separation of gov‘t branches
   2. Unified whole of the cosmos, Beijing seen as the center of the world
   3. Gov‘t good, people productive, no drought or famine b/c people behaved properly
―Li‖ – rights or rituals – proper behavior causes stability
   1. 5 Relationships of social order:
        a) Emperor and subject
        b) Father and son
        c) Older and younger brother
        d) Husband and wife
        e) Friend and friend
   2. Mistrust of law in social ordering
            a. In a harmonious society there wouldn‘t be any disputes –
            b. Surrender/yield to superiors, but also good to yield in friend-friend relationships
                        a) Advances harmony of universe (look good when you yield)
Emperor – Center of the universe ―Polestar‖
   1. has Mandate of Heaven (if he behaved properly)
   2. If he did not behave properly he would lose the mandate of heaven,
            a. you would know this b/c bad things would begin to happen (drought/war),
            b. eventually he would fall and a new dynasty would arise,
            c. ideological structure of system would remain

Confucianism vs. Legalist School
                                    Confucius (Natural Law)                      Legalist School (like modern N. Korea)

Legal System                        Law is failure, should lead people by        Confucian answer is misguided and naïve
                                    virtues
Ways of Keeping Social Order        Social order is of utmost importance,        Efficient to establish strong system of laws
                                    follow rituals to maintain order             – Deterrence theory
Materialism                         Anti-materialist – respect of the people     True materialists – Goal of state to
                                    was more than anything                       accumulate power
Goal of State                       Goal to acquire legitimacy and establish     Glorified conquest/Power, emphasis on
                                    moral order                                  agriculture
Education                           Education of utmost importance               Devalued scholarship
Method of Regulation/Order          Groups regulate social order                 When punishments are heavy people dare
Maintenance                                                                      not transgress, therefore you will have
                                                                                 social order – law and econ view -
                                                                                 criminal makes decision based on
                                                                                 costs/benefits
Dominant Concept                    Li – proper behavior /etiquette              FA – Law or Principle
Conceptions of Human Nature         Good, perfectible                            Bad, Selfish, individualistic – organic
                                                                                creation of groups based on fear
Hierarchy/Equality                  Lots of levels                              Little, 2 classes (rulers and ruled),
                                                                                Equality Inherent concept,
                                                                                Equality before the law
Rights                              No – 5 relationships have                   No – emphasis is on duties to state
                                    responsibilities but no rights,
                                    Emphasis on duty to others in society
Gov‘t                               Rule of Man – the right emperor             Rule by Law of lower class,
                                                                                Tool but not used on rulers,
                                                                                Emperor could not be constrained by law
Ex: Father Committed a Crime       Tell no one – group relationships            Had to tell on him
                                   supreme
                                   Compromise – should not tell unless
                                   crime is treason against emperor
         * Our system, strong focus on Natural Law, unlike Confucius or Legalist school

―Confucianization‖ of the Law – Blending Confucianism and legalist system

Qin (Chin) 1st to consolidate power in 221 – 206 BC
Han Dynasty – system of dynasties,
   1. things went well for a time,
   2. then badly b/c they would lose mandate of heaven,
   3. dynasties rose and fell but empire continued,
   4. system of social classes w/scholars at the top
           a. Classes w/some mobility in btwn them,
                     i. any person could become magistrate: Scholars (gov‘t officers), Farmers, Artisans, Merchants
                            1. took yrs to pass series of exams to reach magistrate (governing officer)
           b. Mobility was possibility but reality very rare
Lawyers: distrusted in imperial china,
a) knew rules b/c had tried to be magistrate but hadn‘t quite made it

Magistrates - All purpose ruler of area, dispense justice
a) Traveled Far - from home to another region,
   a. to encourage neutrality/avoid corruption
b) Small staff of people
c) Folk heroes for ability to dispense justice - wise
d) System of appeals
   a. used to monitor
   b. ensure administrative control
   c. Some appeals mandatory, ex. Murder
e) System Harsh on all it came into contact w/,
   a. Chinese mediate b/c of fear of legal system
   b. Very Penal - System did not differentiate btwn civil and criminal
   c. Could even torture witnesses/victims
f) Crimes very specific and Confucianized
   a. Different crimes against different people
   b. Emphasis on confession – restore harmony
g) Legalist aspects of system
   a. Harsh punishments – Murder could get anything from strangling to torture
   b. Codification of Laws
   c. Guilt before innocence

Fall of System – Entry of the West
               British bring in opium forcibly into China and cause system to collapse
Capitalism – often has to replace religion, overcome idea of pursuit of money being bad,
Should have caught on in China but didn‘t succeed b/c channeled energy of most educated into Confucianism which was
hierarchical and not into being merchants
                But now Capitalism is growing strongly
Imperial China - one of largest and longest lasting judicial systems in the world.
      Dominance of Confucian ideology often declared reason China avoided winner take all solutions in favor of
mediate solutions
         o China a contradiction to notion that most societies mix four forms of conflict resolution with coercion and
              consent –b/c China was largely mediatory
         o China in fact does not contradict this proposition for 5 reasons, but remains a source of strong evidence that
              mediation can be as central to triadic conflict resolution as the western judge applying the law
                 1. existence of a long, severe, and detailed imperial code (law by analogy) indicates that mediation
                     was not always the most favored and that adjudication based on preexisting legal rules was not
                     always condemned
                           land disputes were largely adjudicated
                           China had a land title system traced by taxes
                           Solutions were binary
                 2. mediation was the empires solution to scarce judicial resources
                           channeled most conflict resolution chores into nongovernmental hand
                 3. existence of official and harsh law made mediation possible
                           local elders mediated in the shadow of the law
                           this prevented phenomenon of over-claiming, which was endemic in mediation systems
                           people avoided litigation like the plague b/c it was so severe
                 4. evidence that adjudication based on customary rules did occur at the local level by non-official
                     private ―judges‖
                           Chinese mediation was a form of lay judging
                 5. magistrate incorporates in his own person a whole continuum from go-btw to judge
                           when he acted as a mediator, tacitly presented the threat that he could transmute into a
                              draconian judge when the parties were not happy with his proposed solution
                           could transmute civil cases into penal ones at his pleasure
                           combined capacity for consent oriented mediation with coercion oriented judging more than
                              most western judges would

Quotes from Confucius – See My Docs Folder
Jan 31
Film: The Ballad of Qiu Ju – Chinese Law in the 80‘s
Overlap W/ Imperial System
    a. A lot of continuity from imperial system, Group over individual
           a. Officer tries to settle dispute by buying gift from chief –
                     i. looks bad if dispute keeps rises, shows his failure to mediate
                    ii. I‘m a lousy officer – I mishandled your case, he is getting heat from above
    b. Law is strict and fair but impractical – better to mediate
           a. Result is not what they wanted – detained chief for 15 days b/c of broken rib
           b. Officer in village first settles disputes as mediator, preference for payment over apology to save face
Change from ancient system –
    a. Legis and judiciary separated, different prongs of gov‘t
    b. Lawyers: distrusted in imperial china, now more common but discouraged from litigation
Appeals - could look at everything – De novo
Notes:
    a. She worries about Justice; he worries about saving face
    b. District explains procedure and appeals possible
    c. Administrative Law – Suing the Gov‘t
    d. She always ask will you do the right thing?
    e. Chief willing to help in Qui Lai‘s labor - still very civil throughout
        when Qui Lai is well let her sue me if she wants
Van Gulik, Five Auspicious Clouds, from Judge Dee At Work
Judge Dee – all purpose officer, out there doing all the work
   a. Confucius philosophy: I will confess if it will help you dispose of your case
   b. Judge is the hero, solves the mystery thru his wits
           a. Does justice thru his discretion
Clouds Story Themes – About Chinese Magistrate
   a. Not guilty man willing to take blame for murder to dispose of case
   b. Magistrate/Judge Dee made to look very smart as an investigator
           a. Appears to give prison time, then allows bargaining for fines, Hwa very thankful
   c. Magistrate‘s strong disapproval of bad morals

William P. Alford, Of Arsenic and Old Laws: Criminal Justice in Late Imperial China, ‗84
See Confucius Document in MY DOCS FOLDER
Islam and Appeal
Feb 5-7
Jacob Neusner and Tamara Sonn, Comparing Religions Through Law 128-38 (2000).

Early on:
Correct Judgments – spiritually guided but made by common men that are well trained by weighing evid
Ijma – consensus, harder to reach as Muslim community grows, later thought to mean only among scholars

Early 9th Century (Al-Shafi‘i): Legal Scholars/System required extensive training
   a. Any man could achieve Ijtihad (higher order)
   b. Relies on analogies
   c. Judges chosen from trained practitioners
   d. Must know: Quran, Sunna, and Hadith materials
   e. Must command Arabic well in written form
   f. Rely on text, not memory
   g. Must give proper weight to and understand opposing opinion
   h. Excludes women (especially fertile ones) considered not in control of their capacities
         Literacy, Intelligence, Maturity, thru training in the Quran, the Sunna and Precedents to be a legal
            scholars

Ijihad (Higher order) – Can be reached by sound judgment and more training
         Even more specialized knowledge
         Requiring analogy, beyond precedent

5 Basic Responsibilities of All Muslims:
    1. 5 daily prayers
    2. Fast the month of Ramadan
    3. Make a pilgrimage to the sacred house when they are able
    4. Pay the legal alms in their estate
    5. God prohibits usury, adultery, homicide, theft and wine

Muhammad – Charismatic Leader
―Charismatic‖ – founders of religions/ideals
   1. Change history
   2. Can be good or bad,
   3. Tend to fuse something old w/something new
          a. Create new organizations that people find appealing,
   4. often come from outside
   5. Ex: Hitler, Muhammad, Jesus
Muhammad – charismatic, outsider, easy to join
   1. Umma –Islamic community; made if fairly easy to join
    2. Promise of formal equality
    3. All have direct relationship w/God
    4. Gets revelation and some followers and travels to Medina,
            a. begins Islamic calendar
    5. Governed
    6. Received prophecies about law,
    7. Fused Arab tribal rules, Judaism, Christianity
    8. No charging ―interest‖ allowed – created trust w/in community by prohibiting interest,
            a. insider/outsider distinction
            b. Modern Societies – have changed structure of transactions to get around no interest barrier,
                    i. Sales and buy backs to get around barrier
    9. Radically equalizing in tribal structure,
    10. Allowed inheritance by women

Institutionalization of Islam/Continuance of message
    1. Muhammad did not designate a successor –
            a. 1st was an associate of Muhammad,
            b. then 3 ―right guided‖ individuals
            c. 4th (Ali, relative of Muhammad) caused separation
    2. Caliphate – not spiritual successors to Muhammad
    3. Shi‘te – believed in hereditary line - Ali should have succeeded by relatives of profit
    4. Sunni – did not believe the same and so civil war ensued
    5. Ummayad – 1st Islamic Dynasty
            a. Lasted 90 yrs, extremely successful
            b. Ensued in what is now Damascus
            c. Successful in conquering
    6. Abbasids Dynasty – another hereditary dynasty
            a. Shi‘te – realize they would never get their system set up

Break of Religion - 4 schools of thought based on region and named after founders of schools
   1. Relied more heavily on precedent
   2. Thought highest level of (absolute) Ijtihad - only been achieved by founders
           a. Decline in Ijtihad caused by renewed reliance on oral models of reasons w/less reliance on schools

Shapiro, Cts 194-222 – Cts of Islam

Qadi (Judges)
Rise in arbitrators - death of Muhammad and spread of religion led to rise,
    1. 1st political appointees,
    2. Then selected from legal scholars
Requirements to be a Qadi –
a) Integrity,
b) being a man,
c) intelligence,
d) free from slavery (but can serve after being a slave),
e) Be Muslim (if a nonbeliever renders judgment over a Muslim in a non-Muslim Ct it is only binding if Muslim
    voluntarily availed himself,
f) Good hearing/eyesight free from defects (arguable),
g) Detailed legal knowledge of -
        a. Book (Quran)
        b. Sunna (Authentic tradition)
        c. 1st generation of Muslims
        d. Analogy

Type of Qadi – Determined by standing w/political leader
   1. BUT evidence that judges not always answerable to leader
   2. General and absolute authority – judges/decides cases
   3. Special judge - limited in authority by leader

Qadi Justice
3 common attributes
1) Highly particularized by sub-subject matter
2) Treats what is morally good, better, and best along w/ what is right and wrong
3) No appeals

Reasons for No Appeals in Qudi Justice
1) Cultural – no legislation except words of Muhammad written in the past
       a. No central ruler/law maker
                i. Consent of faithful is used as a judge
               ii. Recognition that there is diversity of opinion
       b. Highly particularized body of law
                i. Based on Muhammad stmts about particular resolutions w/o general rules
       c. Supplementary law – used to fill in Quran
                i. Use discovered and ―authenticated‖ traditions of the Profit
2) Institutional/political

                   Custom – Pre-      Iceland            China               Nation              Islam
                   state societies                                           State/Western
                   (Native                                                   norms
                   Americans)
Law Created        Group              Legislature        Emperor/Gov‘t       Legislature         Divine
                                                                                                 Revelation –
                                                                                                 from God
ID Violations      Group              Private            Bureaucrat          Private/public ID   Private/public ID
                                                         (magistrate)        of violation        of violations
Apply              Chief/Group        Ct                 Bureaucrat          Ct                  Ct
Enforce            Group              Private            Bureaucrat          Executive           Executive

History
    1. Arabs spread quickly from center in Baghdad
    2. Conquered surrounding civilizations (including Bizantine)
    3. Replaced leaders and set up Garrison Towns
           a. Garrison Towns - where Islam was followed
    4. Soldiers - happy as long as they got spoils (plunder) of war
    5. Operated as an Arab empire – sought to civilize
    6. District Officer - sent out to maintain order
           a. had many functions including legal (many times military person)
           b. more professionalized as time went on
    7. Quran was originally oral
           a. Many issues not addressed directly in book
                    i. Ex. Punishment for drinking alcohol not stipulated
           b. Analogy used to determine punishments, ex. Drinking = adultery

Schools - organized w/manuals produced under names of founder
   1. Substance and method (reasoning)

Sharia (Islamic Law)
Legal Rules – used backward looking authority
   1. Sources relied on - Retrospective Sources
            a. Quran
            b. Hadith – sayings of Muhammad, storytelling –
                   i. Frozen in 10th Century
                        1. To be valid needed saying as well as transmission line for reliability
         c. Sunna – story of practice of admiral person, to be followed
                 i. More localized custom
         d. Ijma – Consensus
         e. Ijtihad – personal reasoning, could be a source of law, period of reasoning over
   2. Law: Reasoning to find best answer, not adversarial
         a. Figh (jurisprudence) – human endeavor
         b. Qadi (judges) - decision makers, knew all law
         c. Mufdi – anyone religiously knowledgeable, scholars that knew the right answers

Islam Did not infringe on the states
    1. Things states cared about (taxes, land, admin law) untouched by Sharia (Islamic law)
           a. Realm of Sultan - had a Ct and appeal
    2. Judicial independence of Sharia from main law
           a. Pluralism, no hierarchical control

Islam Law Today
1) Displacement of Islamic Jurists due to rise of modern nation-state/commerce system
        a. Realm of Sharia Governance
                i. Smaller than it has ever been
                       1. limited mostly to family law
        b. Using western structures
                i. legislation, separation of powers
        c. Colonialism (minimum impact )– very brief stay in Ottoman area of Islamic world
2) Arg – Sharia used to work as mediator btwn state and people,
        a. BUT as Sharia has disappeared protection from gov‘t has been removed
                i. Resulting in the rise of dictatorships
Islamic law
                1. Highly particularized
                2. About what is legally right and morally good
                3. No appeals
                4. No legislature or legislation
                         Absence of legislation lead to highly particularized utterances of the law such that law by
                             analogy and legal reasoning (itjihad) became necessary
                         Necessitated development of parallel secular system to dispense with administrative laws
      Law comes from god and is applied by courts of kadis, and enforced by the sultan
         o Sultan is subject to the law as well—sharia law prevented sultan‘s from being too exploitative—could
            never develop central control
      Could only obtain new legal rules through the Koran or thru consensus (impossible with a divided Muslim
community)
      Tolerance of diversity—evident in the number of schools of legal thought
         o No compulsion toward uniform laws
      Closing of the gates in the 11 century—no more new law (forever incomplete)
         o The empire was developing but was still not centralized
         o Shafi closes the gates and freezes the law
                 Emphasis on keeping the sources the same
                 Wanted to emphasize Mohammed and not his successors
      Mufti: type of jurisconsult or lawyer that issued opinions called fatwa—which served as briefs
      Absence of system of appeals
         o NB that China had a highly particularized code but still had a system of appeals
         o Muslim community was never able to establish a system of central control
                 Appeals are a function of centralized government to retain political control
         o Kadi transformed into a religious expert, not an administrative agent
      Parallel system of secular and religious courts
        o  Secular and moral law were separate and the Sharia did not interfere with the sultan‘s admin
           functions e.g. taxes, police, criminal justice, etc.
                Mazalim js—could bring complaints against officials and kadi was an official
        o Sharia law encouraged development of a secular system—why?
                Incompleteness
                Demanding rules of evidence to hear a case
        Appeal as a check on admin performance was not needed b/c kadi‘s did not dispense admin functions
        o Caliph retained authority when he delegated it—so going to kadi was like going to caliph, you could
           not go any higher
        o Courts of the kadis were religious and Islam is not hierarchical no opportunity or incentive for appeal
        o Cultural reasons for lack of appeal
                Antipathy toward lawmaking (no desire to create standard rules)
                Absence of hierarchy in religion
                         System of formal equality
                                o Anyone who accepted the program is equal and has a direct relationship with God
                Islam is not concerned with obtaining political control—no need to check its power
        o Suggests that it is not concern for justice under the law that fuels appeals, but concern for political control is
           the basic motive (esp. in centralized governments)

Jensen, CONFRONTING MISCONCEPTIONS AND ACKNOWLEDGING
IMPERFECTIONS: "ISLAM AND DEMOCRACY"
Great Irony of Our Time:
Islam Is –
    1. Profoundly pluralistic religion
    2. Values equality,
    3. Respects privacy,
    4. Thru most of its history has refused to be co-opted by State (despite numerous efforts),
Now Islam:
    1. Used by 3 groups for purposes that belie its tradition.
           a. Power-holders in Muslim countries - use Islam to perpetuate authoritarianism and autocracy.
           b. Islamists - promote Islam as the basis of political administration.
           c. West - conjure up threat-based agenda in response to what they contend are inherent, immutable, and
               inimical dimensions of Islam."
Intro to Western Legal Tradition: The Civil Law
Civil vs. Common Law
Stereotype:
    1. Civ Law - made by codes
    2. Common Law - Judge made law
    3. BUT not as extreme as stereotype
            a. legis is dominant in common law
            b. codes are as common in America as in civil law society
Actual Differences
    1. Scholars play less of a role in common law than civil law tradition

Codes – existence/nonexistence of codes itself not an indication of a civil/common law state
   1. must look at the way codes are used/interpreted
   2. Civ law countries sought to abolish prior law and put everything into new codes
   3. Common Law – has codes (a lot sometimes) but used differently,
           a. supplement, not replace prior legal system,
           b. just one element of the law

Feb 12-14
Sources of Law in the Western Legal Tradition
Merryman, The Civil Law Tradition 19-34 (2nd ed. 1985)
Nationalism and Sovereignty - Essential to development of state and transformation from feudal system
   1. Rise of positivism - came w/ decline religion in relation to law,
           a. State as creator of law, not a greater force
    2. Jus commune (roman law) declined, monarchy took its place
           a. When used they were applied uniformly no matter where you were in Europe
    3. Sovereignty –
           a. led to exclusion of laws from other states (external)
           b. AND exclusion from local gov‘ts (internal)
           c. Int‘l Legal Rules - No adherence if a state chose not to be bound - complete sovereignty
    4. Separation of Powers - strong btwn judicial and legislative branches
           a. legislature (as elected) alone has law making ability,
           b. no judge made law, stare decisis

Sources of Law – order of authority
   a) Statutes enacted by legis – but sometimes Prince could make law too
   b) Regulations - allowed for delegation of law making authority to admin agencies
   c) Custom - source of law
   d) Arrival of constitutions - upsets balance by adding higher authority above legis made law
           a. some cases confuses things more by adding judicial review of legis actions

France
Code napoleon – OG‘ly complete civil code
Seek to abandonment of past Law
Effort to make could very clear and easy to understand
    1. provide specific instructions for every situation
    2. make it easy for judges to make decisions and avoid judge made law
            c. utopian idea that lawyers wouldn‘t be needed

Germany followed French code but included historical aspects
Did not seek to totally abandon past as French did
    1. Scientifically looked for core principles of prior German law and sought to codify them
    2. Rejected the idea that code could be developed that wouldn‘t need lawyers

Barry Nicholas, An Introduction to Roman Law 1-14, 38-45 (1962).
Law divided into
   1. Jus Gentium: Public law (of the state) and
   2. Jus Civilis: Private (governing relations btwn individuals)

Rome as Republic
Divided into two social classes
    1. Plebian – lower class
    2. Patrician – higher class

Iudex – arbitrator, given rule he would make decision on
2 official Prators, rule-makers, eventually became specialized/powerful officials

History
Roman Law - had two lives
1) 1st: when it first emerged as first of its kind, innovative,
        a. ended w/Justinian Law around 6th century
2) 2nd when revived around the 10th century
        a. became the basis for civil law societies of today

Laws created by Patricians (secret law)
451 BC – Plebian‘s request that body of a law be placed in public,
    1. Posted ―12 Tables‖ where rules were publicly announced,
           a. Used to disfavor arbitrary rules
    2. Jurisconsult – legal scholar (like the Mufdi) –
           a. studied the law and
           b. issued responsas (opinions) when asked Qs that could be brought before the Iudex
Early History
Constitution consisted of;
   1. Magistrates – succeeded royal power
           a. Began w/ 2 of equal power
           b. Only limited by: specific legislation, agreement of other magistrate and one yr term
   2. The Senate – counsel of elders w/purely advisory role
           a. BUT had the most power of the three
   3. The Assemblies –
           a. composed of entire citizen body
           b. had no initiative,
           c. voting by groups, not one vote person,
           d. could only vote up or down things put in front of them by the magistrate
           e. Became important to be member of gov‘t
Middle Years – territorial expansion led to changes in gov‘t
   1. Creation of proletariat - from those that had lost land,
   2. Larger land area, smaller population b/c of expansion
   3. Adoption of many Greek characteristics including lax stnds, moral degradation ensued
   4. Military became professional (paid)
           a. So generals w/most money controlled,
   5. Rich continued to grow in power and hold gov‘t positions

Rome as Empire
Arrival of Octavian - led to Empire, restoration of constitution
    1. Period 1: Principate – emperor as 1st citizen, Augustus greatly concentrated power
            a. Veiled it as constitutionalism,
            b. Period of strong central authority where emperor (w/ senate) rule everything
1) Principate emperor is the princeps or first citizen
    2. Dyarchy where power is shared between the emperor and the senate, but the emperor was predominant
    3. Augustus learns from Caesars fall and dresses his power in reupublican forms
    4. Augustus—Nero (surge in power of the army, upon N‘s death 4 general were proclaimed emperors by their
        troops)—Marcus Aurelius—Commidus---Septimus (excess, increased taxation, rampant devaluation, further
        increase in ppower of the army)
    5. 3 CE  chaos
    6. 3rd century - period of chaos and great decline
            a. military trying to control,
            b. until Dominate
    7. Dominate –
            a. Diocletian - created system of total domination
            b. No pretending of it being a constitutional system
            c. Divided rule, co-emperor,
            d. BUT not divided state,
                     i. w/Caesars below each empire
            e. Empire‘s center then relocated to Constantinople and named Byzantine
2) Dominate emperor is the dominus
       Diocletian resolves three defects
            o Political: domination of power of army is cured with his declaration that he is domiant
                                     o   Dispels all forms of a republican government
                                     o   Senate lost even the appearance of legislative power
            o Adminstrative: empire was too large for one man to rule it
                                     o   Divided the empire into sections that were more manageable
                                     o   Division of the rule of an undivided empire
            o Economic: devalued currency and unbolstered taxation
                                     o   Compulsion and state control
   8. Empire ends in 476
           a. Attempted revision by Justinian but failed, but his law survived
   9. 4th century lose western empire, lose Rome
   10. Justinian takes over of the Roman empire w/o Rome—the eastern side governing from constantinople
           a. Claim to fame is reclamation of the Roman law

Sources or Roman Law
1) statutes
2) edicts of magistrates
3) interpretation of jurists

Justinian Code – 438 A.D. compilation of law
Named: East Justinian Codex
Corpus Iuris Civilis – 1st effort to bring constitution together,
    1. Tried to make authoritative law and centralized by freezing law at moment
           a. looking to past for docs
           b. Got rid of other/conflicting sources of law
           c. forced Juris-consults to adopt principles of new law
    2. Three Elements:
           a. Digest of decisions - bringing together history and 2,000 books into 50 volumes
                    i. Great project completed in only 3 yrs
           b. Book of statutes - Set out to codify judicial decisions
           c. Institues – academic textbook, for school children
    3. Law over persons, things and actions
           a. Problems: lack of organization and contradictions in text
                    i. due to the haste in which it was put together
    4. Marked the end of ancient law
    5. Later formed the basis for the law of Europe

Reception of Roman Law - Following the dark ages in 11th Century
Discover old copy of Corpus Iuris Civilis (Justinian Code)
    1. Justininian Code became symbol of glorious time
    2. Sought to emulate/adopt/adapt to modern world
Jus Commune (law of the community, revived Roman Law) - becomes name of good general principals
    1. Cannon Law (Catholic Church) - Replaced/stood side-by-side
            a. limited to family and property law

Four Sources of Laws
    1. Jus Commune - Roman Law revived
    2. Cannon Law – catholic church
    3. Local laws
    4. Lex Mercateria (customary merchant law) – law of merchants by merchants, based on custom
           a. sometimes used to determine int‘l arbitration today
   **Law was a mess coming from 4 different sources
history
    i.     First life of the law justinian code
    ii.    Second life reception in the middle ages and development of jus commune
    iii.   Law focused on private law
    ii.    law was a system of principles rather than rules
    iii.   large degree of abstraction from which general principles could be dervived
    iv.    Development of constitution occurred as a product of struggle between the class orders
    v.     Replacement of King w/2 consuls (imperium limited only by veto over other, one year term and statutes)
    vi.    Praetorship was the magistracy vitally concerned with private law
    vii.   Development of
              urban praetor (administered the ius civilis) and
              peregrine praetor (administered the ius gentium,
                     i. which was an extension of Roman law to meet new circumstances)
    viii.   Struggle for equality lead to the development of nobility
    ix.     272 BC rome focuses on expansion
    x.      conquest and assimilation of more peoples leads to greater need for peregrine praetor
    xi.     rome is a source of commerical power
    xii.    wealth becomes a huge divide between classes gulf between the wealthy man of K and the poor
            (proletariat)
    xiii.   development of the professional army
    xiv.    social war between 91-88 BC which leads to citizenship for all Italy

sources of the law major concern was permanently accessible publication and compilation
                             1. statutes
                             2. edicts of magistrates
                             3. interpretatio of the jurists
justinian‘s work codification, the corpus iuris civilis
               failure
                      i. in seeking to preserve the greatness of the past, J failed to produce a practical codification
                         which his own subjects could use
                     ii. the digest was rampant with inconsistencies that resulted from the various opines of the original
                         works from which the digest was derived
                    iii. different people were writing in a different time and these inconsistencies are evident in the digest
                         success
                    iv. he collected, in a form which survived, the literature on the roman law

Shapiro, Cts 126-56
Civil Law
In Middle Ages, very decentralized
    1. Governed diff realms of behavior and diff people.
    2. Not much appeal
    3. From there get modern professional legislatures and professional states

Social and Ideological Change
Martin Luther
    1. Very Important for change:
    2. Schism in Christendom provides issues to fight about
    3. Comes to head in Treaty of Westphalia (1648) –
            a. Deal/Principle - w/in his domain, prince can choose religion
                     i. Others will be free to practice own religious choices w/in state
            b. Ends unified universal Christian empire in Europe
    4. Shift [universal to particular]: Away from Roman ideas of universality and common law governing everyone
            a. to Particularity and domain of Prince
Rise of idea of sovereignty
Implications (for legal systems):
    1. autonomy to choose own governing principles
    2. shifts emphasis from other legal systems at time
    3. Prince subject to no higher rule w/in his realm
            a. he becomes law-giver (power to legislate)
            b. Positivism - law is defined by rules and reference to conditions w/in system
                     i. can only look to law itself to see if something is binding
                            1. Natural law: look outside the law (ex: Bible, universal reason)
                            2. Positivism: self-defining, no external source
Other Social Change: rise of commerce/towns
Enlightenment - human reason can be applied to determine what law ought to be
- we ought to be governed by rules that are good policy
- Shift toward legislation and codification - benefits of enlightenment in process of governing state
French Revolution - Monumental Event in Civil Law History
a) Shatters all pre-existing society in France
b) Inspires liberals in Euro to follow
c) Enlightenment at core –
           a. started all over
                      i. calendar year,
                     ii. new regime (including judges)
d) Impact for French legal system: judges on wrong side of revolution
           a. Disbanded bar, sought to start over in legal system
                      i. Code Napoleon - single body of law for entire territory to replace local customs/rules
Code Napoleon (1804; Code Civil)
a) Reflected Enlightenment ideas and values
b) Wanted to get rid of professionals in interpreting and applying law
           a. Drafted in general language (new "bible" for quasi-legal issues),
           b. easy to read and understand
           c. Abstract
                      i. Ex: Torts - 75 words, in a nutshell (pay for damage you cause)
c) Substance:
           a. Every individual is legal person - can enter contracts and own property
                      i. ―legal personality‖ = was foreign
                             1. women couldn't own property before, owned by nobles
                             2. end of feudal system,
                             3. status arises from being an individual (not tribe/group),
d) Legal Construction of Modern Liberalism - underscores lots of system
           a. Separation of Church and State
                      i. No special privileges for church in Code
           b. Shift society from one governed by status to by contract
           c. Social contract and freedom - not governed by restraints
           d. Regulatory device - universal in character
e) Not every country wanted to adopt it --> ex: Germany

German Romantic Idea:
a) Nation-state - citizens of same place bound by same ideas
           a. law ought to reflect German society and values
           b. law as particular to each nation
b) Ok that each country differs
           a. As long as int‘l rules allow us to come together and deal w/difference
c) Emphasizes National vs. Citizen (French)
d) Karl von Savigny - influenced by Romantics
           a. Need to study and catalogue local laws and ideals
                    i. Chose among customs - Pick one rule as better than other
                            1. Come up w/definitive legal expression of German law
BGB (German Code), enacted 1896
a) Code Created by Scholars (not Napoleonic legislatures)
           b. Discover rules and reason that are best
           c. "Legal Science (philosophy of law/political science)" and scholarly focus on law in German
                    i. Legal Science = legal reasoning as discipline in itself,
                            1. can get to answers thru pure legal reasoning;
                            2. law as autonomous discipline, less emphasis on society
                   ii. Emphasis on right rule thru scholarly endeavor
e) Very influential doc - most new countries today adopt German style and methods
           a. More detailed than French code, better dealing w/ realities of society

Distinction btwn German and French Codes
a) French: simple doc, empowers citizen, grants citizenship rights on all
            a. Universalism ideals – from human reason
        b. Created by legislators, anti-judicial law making
b) German
        a. National Ideals – not complete derivable from human reason
               i. German law ought to reflect local reality
        b. Created by scholars/major role
        c. More detailed

Code/Case Distinction – Is it viable difference btwn systems?
a) Scholars: Don't play as much role in US (judges do)
           a. BUT do have things such as Rstmt
b) Distinction btwn Code and Rstmt:
           a. codes = adopted,
           b. rest = advisory
c) No attempt to codify entire system (civil code)
           a. Code here = piece of legislation;
           b. Code in France = constitution-type dimension (fundamental, bible-like regulator of entire social sphere)
                     i. fundamental to organization of the law
                    ii. Note: also have constitution - highest law; then statutes etc,
                             1. code only a piece - but in fact, outlasts many constitutions
                                     a. regulates many aspects of life
                   iii. Constitutional in way it regulates life
d) Judges' role as being interpreter
           a. Civil Law – still look at judicial decision but more prominent role for scholars
                     i. Use commentary built up around code that collects the jurisprudence

Civil Law Today
a) Classic System lasted until end of WWII
           a. Then came Const Ct that gave judges bit more power
b) Civil Law tradition is not a Monolith - each Country is different
           a. French: centralized, statist
           b. German: more organic, more scholarship role, less statist in character
           c. Many differences arise from politics situation:
                     i. State formation has a lot of influence on institutions and governing practices, social
                        structure
                            1. France - already centralized,
                            2. Germany - less centralized, More gradual process
Revival of Roman law (shapiro page 130)
Germany‘s reception
              G had view that Roman law was ius gentium or a body of universal legal principles applicable to all
           people
              Roman law = ration scripta ―true reason embodied in writing)
              Roman law was a tool for teaching law students and the vehicles for reception were professors and
           teachers (Pandectists)
              Reception was parituclarly interesting in germany b/c:
                            1. GERMAN law dominated all of medieval europe
                            2. germany was not unified
                            3. it was a cultural and academic rather than a legislative movement vehicle was the
                                 training of lawyers and not the passage of statutes
   notion that continental judges do not look to case law is incorrect
                       the code is not complete and in some instances so meager (e.g. the 45 words of code law on
                        delict) that judges inevitably look at the body of judicially announced doctrine
                       when the judge purports to be drawing a defintion of a doctrine from the code by logical exegesis
                        he is essentially acknowledging the body of law built up around previous cases
                       in French textbooks, when rules that had their origin in case law are introduced, the autthor
                        presents them as logical derivations of the code
                       in essence, there is judge made law, but the French couch this judicial role in the code
                        many of the phrases in the code exhibit enormous potential for judicial choice e.g. ―things under
                         their guard‖
                        the rules are not self explanatory
                        In france there is a proclivity among courts to make findings of fact that stems from belief that a
                         judge must be absolutely certain that he has discovered the true facts in order to make such a
                         finding
   French code is seen as providing more principles than legal rules
      Roman law is a combo of particularized law and sweeping academic generalizations
      The central role that scholarly writing plays in civil law and muslim countries undermiens the pre-existing rule
   aspect of those courts.
      European courts do not mechanically apply a set of complete, self explanatory, pre-existing rules.
      Codes are often incomplete and ambiguously worded such that a great deal of judicial creativity is needed
   to obtain apporopriate legal treatment for litigants
      In europe, england, and the US there is an invocation of the appropriate legal rule
      But it can be seen that the clearly applicable rule had changed although the statutory provision has remained the
   same
      Changing legal doctrines are incorporated case by case
      Doctrines are embedded in the continuous dialectic of academic discourse in which nothing is finally fixed
      Judges in France are not independent and are often beholden to the bureucratic government, which control
   their career advancement opportunities although politicians do not directly pressure the judges
      Judges in civil law countries have a different status that stems from their roman beginnings as an iudex or ―a
   layman discharging an arbitral function by presiding over the settlement of disputes according to fomulae supplied by
   another official, the praetor.‖

Feb 19- 21
Judges and Judicial Independence in Legal Systems Today

Merryman, Judges, in The Civil Law Tradition 34-38
Common Law
Before the Norman invasion: English was feudal society w/law of local community applied by local Cts peers
(layman).
1. Establish local control by sending representative of King,
        a. Officials would travel around and hear cases pending in local areas
2. ―Common law‖ (shared law of England) emerged w/direct political authority controlling them
        a. Officials become ―judges‖
        b. ―Writ‖ – written order from King, King directs its staff to implement
        c. ―Kings Ct‖ – Kings bench becomes very formalistic
        d. Chancellors (Equity Cts) - response to formalism
                i. Where damages not a fair remedy
3. Reasons code did not develop:
        a. In continental Europe codification result of revolution where judges on wrong side,
                i. lack of discretion/prudence led to codification
                       1. France – strong legis role
                       2. German – high scholarly role
                       3. Common Law – judges play a major role
        b. UK - No major revolution (only revolution before enlightenment)
                i. High judicial independence from;
                       1. Political authority
                       2. Wealth/social class
                       3. Majority
                       4. Legislature
                       5. Other Senior Judges
        c. Values Sought
                i. Predictability
               ii. Consistency
              iii. Objective
                iv. Apolitical
                 v. Morality
                vi. Expertise

Ramseyer, The Puzzling (In)Dependence Of Cts: A Comparative Approach, '94.
    Judicial independence arises out of factors beyond constitution‘s text
Reasons for wanting judicial independence
   1. Expect system to continue in place: whether elections to continue indefinitely
   2. Remain in power: If elections continue, whether they expect to continue to win them indefinitely

Georgakopoulos, Discretion in Career and Recognition Judiciary ‗00

Judicial discretion: constrained in part by legislative authority/discretion to override opinion
    Will interpret statute in way to avoid threat of being overruled
    Nevertheless decision can move bargaining power/range of where legislation falls
            1. Ct likely to choose something close to their preference, but that will not be overruled.
            2. Unlikely to decide outside range btwn House/Senate




Can quantify effects of diff political systems on judicial discretion OR range of possible decisions Ct can make
    Number of actors involved in decision-making
Range of players: determined more by politics than structures
    Judicial activism: determined by structural and political conditions
        Strength and cohesiveness of groups that will check them

Differences: US and UK Judiciaries
Both recognition, but US judges are more activist/willing to change the law
         Hard to explain this from a legal perspective
         Structural and political constraints on judges that affect this?
         Judges may lead law-makers in some fields, as long as not too far from mainstream

Career v. Recognition Judiciaries
1. Recognition System: is an attempt and accountability
        a. Ex-post evaluation of what you have done and then appoint or elect you
2. Career systems: Ex ante—screen you at first, when you have done nothing and elect you
                        Career (Gen Civil Law)                            Recognition (gen Common law)
Age                     Young                                             Old
Organization            Centralized/Bureaucracy                           Judge more individual/less panels/specific
                            1. promotion/transfer                         districts
                            2. top-down                                        1. less opportunities for promotion
                                                                               2. bottom up
Size                    Large all the way thru                            Small
Appeal                  De novo – law is a science, judges are law        Matters of law only, lower Cts make some
                        finders                                           policy decisions
Opinions                Unsigned, short                                   Signed, individualized
Precedents – reality    No requirement but gen followed or will be        Supposed to be required but reality is judges
is not much             overturned                                        try to distinguish to avoid overriding
distinction                                                               precedent
Institutional Structure of Judges - Myth may exist b/c of institutional structure judges are in
    1. Recognition - District, little room for advancement and little supervision, so lots of discretion
    2. Qualifications/training
    3. Appointment
    4. Terms - assumption is longer terms insulate judges from pressure
    5. Advancement
    6. Discipline/Removal - ultimate form of discipline

Appointment of Judges
Institutional Systems
    1. Governor appointment
    2. Election Commission (sometimes w/retention election)
    3. Elections (partisan and non-partisan)
    4. Legislative Selection
Appoints for Life
    1. Appointment for life (only system that really has this w/no mandatory retirement)
    2. State Cts: no appointments for life (vary)
    3. Problem w/ life appointments – people living longer
            a. Want it long enough to immune from politics but lifetime too long given increase in life expectancy
            b. Appointed during good behavior
Appointment by Commission: Some states: judges not elected but appointed by commission and approved by governor
    1. Commission is known as Missouri Plan
            a. Experts, i.e. bar association to get quality appointments insulated from politics
            b. Provides pool of qualified people and governor chooses
    2. Sometimes commission is combined w/ a retention election
    3. Plurality in US is by election, but various states use legislative selection
    4. Election of judges seems bizarre! But keeps popular control over branch that is very involved in governance
    5. Some int‘l systems also use commission
            a. Have not created more judicial independence.
                     i. another mechanism by which Pres. controls the judiciary and does not provide substantive
                        independence
US Federal System – hurdles to nomination
    1. Appointment by the Pres and approved by Senate (has the final veto)
    2. Need support of Pres and of home state senator
    3. ABA ranking—usually need high ranking for senate approval (Bush did away will this tradition)
    4. DOJ investigation of the candidate
    5. Harriet Myers - notion Pres. cannot just do anything
    6. Chance and politics plays a big role
Effects of Different US Systems
    1. See a difference in death penalty, Elected judges are harsher

Feb 26
Comparative Procedure
Stein, Legal Institutions 25-44.
Roman model
        Iudex is compared to the jury—served as a lay person that applied the doctrine or law and had been chosen
        by the parties---there was no appeal of the decision of the iudex
                 o Like the iudex, the jury rules on questions of fact, which are largely not appeal-able in CL systems
English model
              2 parts—the fact finding part and the legal part
              if there were still questions as to the facts, they would be remitted to a group of laymen
              adopted from Germanic procedure in the 9th c. that included jurors or member of the community sworn
        in folkmoot
              like the judgment from god or the iudex, no appeal was possible
France state developed before capitalism (lots of involvement in the political economy).
Anglo/Amer capitalism developed before the state (there is little state involvement in the political economy)

Criminal Procedure
   1. Increased discourse for universal controls in crim procedure
   2. Crim procedure law revolution – Warren Ct – US led standard
           a. Spread w/human rights norms, led to convergence, resulted from involvement of laymen
   3. Types of Convergence
           a. Acceptance
           b. World gov‘t, single gov‘t makes announcement
           c. **Several major players accepting rules (probably in place)
           d. Reality today is a big shift towards lay model in practice - not clear why this is the case
           e. Reforms towards less investigating judges, less inquisitorial
   4. Nuremburg Trials – 1st instance of international criminal procedure
           a. Prob – two different systems (French and Anglo)
           b. Used a blend of two systems
                   i. Get to confront witnesses BUT get state-appointed counsel
                  ii. No investigating judge, Robert Jackson (SCOTUS)
                 iii. Public events
                 iv. No right to remain silent (civil law system)
                          1. CL system allows silence b/c don‘t want to encourage lying – assumes liars
Convergence in Criminal Procedure - across systems
Convergence between common law and civil law or toward which model?
   1) professional model (inquisitorial model)
           o this model seems to be slipping away
   2) lay model—lay people make the decision
          o Japan
          o Germany
          o Russia

Increasing discourse around HR movement around standardizing criminal procedures
   o Nuremberg trials
   o Problem is that international criminal law is international
   o So what procedures do we use?
   o Civil law (Fr won) criminal procedures or common law (US and GB win) ones ?
   o They blend the models
From CL—
            o they took adversarial model, you get to confront the witnesses against you
            o they appointed the def counsel
            o they did not have an inquisitorial judge, but prosecutor was a US Supreme court justice
            o trials were public effects (served the effective propaganda needs of the allies to change the rules by
                publicly showing them)
From Civil law
            o there was no right to silence for the Nuremburg defense (professional model—this is inquisitorial and also
                about government control)
            o our system assumes people are lying make trial public to induce you to say the truth upon rebuttal by
                witnesses present and allow you to have a right to silence (we do not want the liar to confuse the
                proceedings)
            o their system assumes people are telling the truth based on the Catholic idea of confession and there is
                no need to public trials
            o right to silence is rooted in evidentary concerns

Early Hybrid steps taken in US were being mirrored internationally
   o federal constitutional rights against the states for the individual right to counsel, to freedom from illegal search
   and seizure
   o developed after gross violations of civil rights
   o court made up these things and effectively took on a criminal procedure revolution
  o US led the effort for human rights
  o Efforts in the international arena to develop a covenant ICCPR--International covenant of civil/political rights
  o Right to counsel, right to silence, right to presumption of innocence
  o Movement from US national constitution, to international covenants, and then back to national constitutions to be
  in compliance with international laws
           o  that there has been a great deal of convergence
Convergence—what do we mean
   1) In terms of formal commitments of states
   2) Single authoritative pronouncement that these rules apply to all world government type model
   3) Agreement among several very important jurisdictions (this is what we are seeing now)
  o There have been shifts from embedded and old models to more modern ones under the pressure of globalization
  o Competitive authoritarianism is really spreading, not democracy, not political competition (Chavez, Putin)
Summary
  o The 2 models (professional and lay) do perceive different roles for the states
  o Both are spreading at different levels
  o Juries are spreading but so is competitive authoritarianism—e.g. Russia
  o So it is hard to see the convergence, b/c states are adopting different parts of different systems

Shapiro, Cts 49-64
on the appellate process
      Argues that a jury is itself a significant aspect of social control
      found in areas with centralized government
      Mitigates loser‘s feeling of 2 v. 1 (cathartic)
      Form of hierarchical control on lower courts—central form of supervision (political purpose)
          o E.g. Tokogawa courts in Japan—all lower court opinions = drafts, until approved by higher courts
      Reminds people on the outskirts that the government is everywhere
US system is worrisome
          o Cannot appeal after guilty plea
          o Courts have become admin agencies charged with sentencing and discharging of criminals
          o Appellate courts seem the most removed from the social logic of courts act like a government agency
              imposing laws on the citizenry
      Appellate courts become active when new social policy is introduced
      Note—courts engage in rule making and have a lot of discretion appellate system is necessary to ensure that
some central body of law is applied and promulgated
Issue of legitimacy
      Appellate system and jury (community participation) attest to the legitimacy of the system
England
      Originally—juries were a group that was required to report crimes of local residents to king—civic duty—now
seen as a safeguard against tyranny
      Institutional lay judging in GB is a device for exploiting pool of judicial and adm skills in the country

PROCEDURE - varies across societies
Path-dependent and responsive to history (rather than functional needs)
Procedural Issues: Timing and form of claims, who can bring claims and where, decisions and appeals, post trial and pre
trial practices, evidence (discovery, witnesses, depositions), Remedies
What we Want of a Systems of Procedure:
     1. Accuracy of Results
     2. Efficiency - systemic (speed, timeliness)
     3. Legitimacy of System - appearance of fairness
Adversarial System – mostly preferred
     1. System Seems to Satisfy Fairness - result determined not only by the rules, but also by way you're treated
         (procedures matter), voice able to be heard
Distinction Btwn Layperson and Professional
     1. Layperson: associated w/CL institution
              a. From society where everyone would judge the case
              b. England: judge only showed up cyclically, most justice was local
    2. Professional




Adversarial v. Inquisitorial Systems – Lay v. Profession, Judge v. Jury
Adversarial - might be closer to finding the truth –
   1. parties better able to present own side,
   2. judge more impartial
Judge v. Jury
         Influence of           Impartiality         Expertise           Non-Legal Expertise       Consistency/Accuracy
         Lawyers
Judge Better able to see        More impartial       Better education Expertise in law             More consistency
         tricks                 and better legal     makes them          doesn‘t always convert
                                training             better fact         to technical facts
                                                     finders
Jury/ More swayed, but          More people in       Better conflict     More potential for        May be more accurate
Lay      making more            dialogue so better resolvers             general expertise
         important decision     decision
Professional model - probably better at consistency, may be better at getting accuracy

Two Types of Procedure
   1. Lay decision-making/Usually Common Law
           a. limited structure of appeals b/c of difficulty of new trial de novo on appeal, only on questions of law
   2. Judge decision-making/Usually Professional
   3. Not clearly common vs. civil law distinction b/c in certain common law trials don‘t provide for juries
           a. ex – no jury in admin law cases
                      i. constitution only interpreted to apply to juries for types of trials considered in 1789
Guilty - want to be tried in Lay system
   1. easier to get off, professional model less likely to be fooled
Innocent - want Professional system
   1. More likely to find this info
Lay v. professional model
                            Lay                                 Professional—activist model of bureaucratic policy
                                                                                   implementation
Economical use of law professional                           Wasteful
Judges concentrated on legal issues                          Judge did it all investigation, eval, and law
Appeal only issues of fact?                                  Appeal both fact and law, there was no division btw
                                                             the 2, meaning that judges would review the factual
                                                             record during several levels of litigation

                                                            this has lead to the aggrandizement of the judiciary
Jury                                                       No jury
Strict rules of E (no hearsay rule)                        Lax rules of E (did have rules about how much E was
                                                           required before a finding of fact could be made)
Judge=umpire                                               Judge = inquisitor
Trial—one event                                            No trial—series of proceedings
Adversarial                                                Passive, prosecutor has no discretion
Public - Assume that def will not tell the truth, so      Private - Assume that def will tell the truth in private
trial must be public, so assertion can be challenged in
court
More precise—judge and jury see the entire process        Less precise—judges who decide the case might not be
                                                          the same ones that question the witness or hear the
                                                          evidence—need to write everything burdens the process
Less search for the truth; tainted by zealous             More search for the truth—more accurate,
advocacy                                                  continuous process

This final difference might stem from fact that Fr. did not want a large role for the lawyer—the code was to be a
handbook for the citizen
               Line btw law and fact is a hard one
                  o Fact also includes application of legal ideas that are deemed knowable by the community e.g. good
                      faith, reasonable, fair
               The CL system recognizes that lay people are experienced in the ways of the world and understand
        conduct/behavior
                  o Decisions of the jury or iudex are binding on the parties and not promulgated into a new rule
                  o Where the court worried about too much discretion for the jury, they supplemented precision and
                      standardization with flexibility
               Result of distinguishing btw law and fact
                  o Antidote against excessive technicality
                  o Dispute may be oversimplified, with certain issues removed from consideration by the jury b/c
                      they might make the issue too complex
                  o Professional model might be more consistent and more accurate

Damaska, Faces of Justice & State Authority 186-99 (1986).
Lay v. Professional - Diff conceptions of what the state is supposed to be doing
   1. Lay Model – judge is passive, only polices trial/umpire
           a. Anglo-American system – let it go, more passive role, less regulation
   2. Professional Model – active role, aggressive, more active fact finding role,
           a. find out what actually happened, more than resolving the problem,
           b. state does more, more trust in expertise of judges,
                    i. less fear that gov‘t will trample on your rights,
           c. emphasis on social control in dispute resolution
           d. more extensive regulation
Central control v. Dispute resolution Repeat Players v. One-shot‘ers
—our vision of the role of the state affects the way we make legal rules
         contest or inquisition?
         central control (inquisition) v. dispute resolution (lay model)
         repeat players v. one shotters (RP care more about the rules)

Ancient Rome (inquisition—continent)
     When government was not centralized, crime was a matter btw the parties, there was no notion of civil
wrongs
     As the government grew, the communitas politica developed notion that wrongs against the state had to be
corrected
     Inquisitorial investigation was first thought of as a last resort for the war on crime--its use was apologized for
Post revolution (contest—anglo)
     Contest btw the state and the def before independent adjudicators
     Pretrial investigation was exhaustive and the office of the investigating judge was developed
Soviet model (also see Shapiro p. 62)
     Criminal procedure was not a contest btw the def and the state (seen as bourgeoisie ideology) it was an
arm of government control to repress conduct dangerous to the state
        o Lawyers were excluded from prelim investigation
        o Investigators had to be convinced of def guilt before bringing him to trial
        o Prosecutor was the guardian of legality and he decided detention measures
         o  Critique system is overly influenced by work done beforehand and leaves little room for the defense
         o  Social accusers voiced opinions about the criminal and the crime (state sought to draw citizens into the
            process)
                  Conflicted with notions of hierarchy and bureaucracy
        o Hierarchical and managerial system of adjudication that valued consistency—higher courts issued
            binding instructions to lower courts on how to apply the law (unlike US where there‘s a multitude of js,
            Russia = anti-federalist)
Mao‘s China
     Activist and hierarchical (polar opposite of continental system)
     Police and judges were one ministry
     Appeals were seen as acts of defiance and criminal procedure was a tool of control
     Trials were not always granted—reserved for educational value; verdicts were never explained
     Dealing with criminals was part of managing and transforming societ
        o Criminals did not have a right to defend themselves
M. Galanter, Haves Come Out Ahead in Civil and Common Law Systems (‗74)
Haves **Doesn‘t matter what institution you come up w/, haves are going to come out ahead
Repeat Players in the Ct system - care more about procedural rules being established
   These structures may account for our litigious society and not our greater value for the right to obtain
   vindication
   1. Haves can create rules that favor them
           a. Perform Risk Analysis
                      i. Settle bad cases you are likely to lose
                     ii. relative costs of losing are lower
                    iii. If there is an important rule that the RP does not want changed, it will likely settle to save the rule
           b. Can Lobby for better rules, Not restricted to single arenas
           c. Spend opponent into the ground
           d. Buy the best talent
           e. Better info about system i.e. favorable judges – better info on decision makers
           f. Structure transactions favorably
       The advantages of the repeat players (specialist lawyers can also be seen as RP)
           They are not restricted to the judicial arena
           They lobby for changes in substantive rules (tort lawyers lobby for reform that would help clients and
              also themselves—they are not going to fix the system)
           Expertise and economies of scale
           Minimax strategy minimize the probability of maximum loss
           Continuity they are represented by the same people repeatedly
           Transactions are built by the them around the rules that they structure e.g. credit card arbitration rules
              are developed by credit card companies
           o American trial lawyer‘s association is a huge and successful repeat player that has managed to hamper
                tort reform
           o Our tort system seems to be RP v. RP
   2. Does matter if you‘re a repeat player or NOT – HAVES STILL COME OUT AHEAD
           a. Regardless of the system, the haves come out ahead
           b. Litigation is a series of combinations btw one shotters and RP
           c. Institutions are passive and oveloaded—increasing cost and risk of adjudication this accentuates
                inequalities
   3. Juries – more of a crapshoot
           a. Low probability w/possibility of high payout provide incentive for ambulance chasers
           b. Repeat players – tend to go to Ct when confident of result,
                      i. Avoid Ct. when rule favorable to them is at stake
           c. Where there is a jury, there is a shadow of unpredictablility, that might induce RP to settle out
           d. Jury crap shoot quality that gives lawyers in a contingency basis an incentive to look for low
                probability cases (b/c the RP might not settle, the the lawyer might win)
Valuation of rule outcome
  o Depends on whether you are seeking symbolic gratification—care about the rule
  o Or private vindication—don‘t care about the rule
Alternatives
   o Lumping it—not making a claim or complaint or exiting, which depends on access to other opportunities
   Reformpage 314
   o Rule change
           o Test cases are $$$
           o Courts are not equipped to assess the systematic problem-defer to legislature
   o Improvement in institutional facilities (to solve overload)
           o Need more judicial activism to reduce advantages of RP
   o Improvement of legal services (qual and quant)
           o Accompany that with increased coordination, information and organization
   o Improvement of strategic positions of have nots
           o About group organization
           o Aggregate OS into RP‘s
                  E.g. ASCAP (performing arts)
                  NAACP
   o Active social change role for lawyers page 321
   o De-legalization - Allow private remedies and allow relationships to be regulated by norms

Mary Ann Glendon, Comparative Legal Institutions.
civil, criminal, and admin procedure CL and civil law countries differ ON
    1. Civil procedure
             a. In civil law - no discovery or pretrial process
             b. Judge plays an active role in the litigation, he can introduce new theories
             c. No jury, Effects
                       i. No hearsay rules—all E is admissible
                      ii. Continuous process that does not culminate in trial
                     iii. Lawyers, judges and parties do not get together on one occasion b/c there is no need to present
                           the facts to the jury
    2. Criminal procedure
             a. Civil—judge is active—often described as inquisitorial
             b. Prosecutor is more passive (CL—adversarial proceeding)
                       i. has no discretion—must prosecute, no plea bargaining
             c. Lay judges who serve on mixed courts are arguably an analog for a jury
             d. Victim can combine civil and criminal proceedings in criminal trial—can sue for damages
                       i. Common in Fr discouraged in W. Germ
             e. 2 stages
                       i. evidence-taking stage
                      ii. proceedings stage
                                1.  problematic that different judges can preside over different stages
    3. Appellate process
             a. Civil--De novo review of the law and the facts
             b. Cassation courts (Like Fr.) can only affirm or quash—cannot decide the case but only the question of law
                 and must remand the case
                       i. If on remand, the party appeals again, the cassation court cannot decide the case once again, on
                           the third remand, it‘s rule is binding on the lower court (inefficient)
             c. Revision system (W. Germ, Austria, Switz)
                       i. Court can affirm, reverse, remand, or enter final judgment
    4. Administrative courts
             a. In France, there is no appeal in admin courts and the law is largely judge-made and not codified (council
                 of state)
             b. Italy and Belgium follow this model
             c. West Germany and Austria the admin courts are part of the judiciary and the system of appeals functions
                 the same way
             d. Can appeal a question of admin law to a higher intermediate court

Mar 12-14
Lawyers and the Legal Profession
Influence on Organization of How Laws are Made
    1. China – positivism,
           a. distrust of law made law separate from morality
    2. Islam – all law from God, fully imbued w/morality,
           a. religious scholars maintained important role in articulating rules
    3. Western Tradition – in btwn, religious (canon) law separated from other authority
           a. mix of positivism and natural law
                     i. Until revolution – restored state to primacy in western tradition
                    ii. Differences btwn German and French traditions and England (common law)
           d. Common Law (England) – developed before other systems,
                     i. Judges powerful and autonomous before modernization,
                            1. Retained a lot of political power – ordinary citizens have a say,
                            2. tradition of adversarial model
                    ii. Seen as independent, not mere functionaries of state law function
                            1. Recognition model – judges as heroes - signing opinions and giving their view
           e. Civil Law – not as much of adversarial model, open Ctroom, etc, only coming back now

Jacob, Cts, Law and Politics in Comparative Perspective 84-93, 201-206, 266-277
Kenneth Port, Comparative Law: Law and the Legal Process in Japan 281-90 (1996).
Robert Kagan, Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry ‗94
Regulation of lawyers - bureaucracy needs them
1) Lawyers – generally distrusted by societies,
        a. very powerful in market societies (especially in US)
        b. Eastern societies – more state power, less powerful legal profession, social control more important
2) Lawyer-like agencies
Is adversarial legalism intrinsic in American institutions or do lawyers perpetuate system?
    1. lawyers influence on politics is key
    2. once in this structure it is impossible to switch
Legal Profession – acts as corporate body, large group
Professions typically independent, w/specialized ideals/values, provide a service
US Adversarial System – seeks to solve social policy problems in Ct.
    1. ex: tobacco regulation, environmental law
Mar 19-21
Comparative Judicial Review
Judicial/Constitutional Review
    1. Review by (unelected) judges of elected gov‘t decision making
            a. of legislative action and regulatory agencies
Influence of Religion on Constraint/Review– judicial review/constraint in systems based on religious law
Axial Religion – axis btwn heaven and earth, realm of god trumps law of man
    1. Form of natural law constraints provided by the religion
    2. Differences in forms of constraint
            a. Chinese – Emperor subject to natural law constraints, but no earthly constraints
                     i. No well developed notion of natural law, all law positive (command of emperor)
                            1. ―Li‖ - if emperor did not obey demands of universe he would lose mandate
                                     a. but no human mechanism for correcting emperor‘s behavior
                            2. Duty of remonstrance – emperor‘s staff supposed to tell him when he was doing
                                 something wrong
                                     a. reality was it didn‘t happen much, usually killed if they did
            b. Ancient Islam – state rulers did have check on religious institutions
                     i. BUT reality - did not regulate most important aspects of society at the time, i.e. family
                    ii. also had seeds of const‘l review, but in practice not used
            c. Modern Islam – notion of natural law constraint on positive legislation successfully adopted by most
               constitutions in Islamic countries
            d. West – tension btwn religious authority and man-made law,
                     i. perfect format for judicial review to emerge
                     ii. nevertheless doesn‘t emerge until American colonies
Ginsburg, Judicial Review in New Democracies (2003), excerpts.
Emergence of Judicial Review
UK Nobles demanded establishment of Parliament when Monarchy asked them for money
    1. Beginning - Parliament had control over common law formation
    2. Then Dr. Bonham’s Case (1610) – Lord Coke
        College of Physicians (authority by parliamentary statute) prevented unlicensed physician from practicing
        Bonham’s Arg: against natural law principles b/c College of Physicians is both party harmed and adjudicator
        Ct: Statute of parliament against common right of reason will be struck (voided) by common-law
    3. But: Parliamentary sovereignty (supremacy) did not allow concept to take off, parliament won the battle
US Beginning of Judicial Review attributed to founding fathers
Requirements for Emergence
1) Higher Law Concept
2) K Ideas – society‘s members are in K w/each other and gov‘t,
        a. gov‘t limited by terms of contract
3) Written constitution – 1st one of a nation-state, written contract btwn states
4) Enforced by Judges -- Evidence that judges knew about judicial review and expected it,
        a. others say judicial review done by people themselves (right of revolution, participation)
        b. Revolution – not as big a judicial revolution as France, kept common law
Ct‘s Focus – primarily issues of federalism until Lochner era when substantive due process emerged
     Police the boundary btwn state and federal authority
Development of Constitutional Cts
Hierarchy of Laws: Austrian, Kelsen
    1. Constitution
            a. ―Ground norm‖ – All societies have a founding norm, decides how rules will be made
                      i. Found in constitution and structures legal and political authority
            b. If ―Constitutional Ct‖ exists, it is placed here in hierarchy
    2. Legislation - should be subject only to norms of constitution
    3. Judges, interpreting legislation
            a. Problem w/ US system: judges enforce interpretation when they are below legislation
            b. Led to development of ―constitutional Ct‖
Benefits of Con Ct – single, coherent jurisprudence w/greater predictability, no runaway judges
Abstract Review – in some situations, Ct‘s don‘t need actual case or controversy to adjudicate const‘l violation
Problem - Mixed and other constitutional issues
    1. Germany Resolution – when const‘l issue arises Ct stops case, certifies Q to const‘l Ct, and waits for response to
        continues w/case
            a. If general Ct refuses to certify Q and party loses
                      i. Can file a complaint directly to the constitutional Ct

Ginsburg, The Spread of Constitutional Review, ‗07
Spread of Constitutional Review – 3 waves
When limited to federalism it didn‘t spread much
Judicial Review Models
a) American Way
           a. Decentralized,
           b. Case or/and controversy requirement, can‘t deal w/ abstract cases
                    i. exception for administrative law, some abstractness
           c. Statutes ruled unconstitutional are not taken off the books
                    i. just determined unenforceable by law
                   ii. congress must go back and repeal legislation
b) German Way –
           a. Centralized,
           b. Allow for abstract review – ID violation of constitution but don‘t need to be harmed
                    i. Ct then gives general pronouncement of interpretation
           c. Statute ruled unconstitutional – comes off the books
           d. Not a binary decision, not simply con/unconstitutional, ex: only if applied in this particular way
c) Amparo System (Latin America) – concrete form of judicial review
           a. Writ of Amparo (ruling of unconstitutionality) – only applies to YOUR case
d) France Model – Const‘l Ct, centered around const‘l council
           a. Made by Charles de Gaulle – Pres. also had law making authority (not just legis)
           b. Ct served as a policeman to guard against expansive jurisdiction by Exec or Legis power
           c. Addressed challenges by select political institutions, but NOT available to ordinary citizens
           d. Review could only take place BEFORE an act was promulgated
e) Other Cts
           a. Council of State – gov‘t problems
           b. Ct of Cassation
European Union – Quasi Federalism
a) Independent states joined together – initially for limited purposes (treaty)
b) Then adopted Constitution –
           a. agree to process of gov‘t, much more than just a treaty
c) Instituted Euro Ct of Justice – interpret
d) Council – member states
e) Commission – propose
f) Parliament – weak
g) Rather than decentralized regulatory system w/race to the bottom → push towards central regulation
           a. World Trade – national regs are barriers to trade, must be evaluated
           b. Super-national Review – existed but not binding
                    i. Ex: order from Euro Ct to country to make change
Mar 26
Japan
Legal History and Civil law institutions
Japan – other richest society on earth, 3 times bigger than Chinese economy
History
    1. 6th century: Buddhists traveled to Japan and brought culture and legal and gov‘t institutions
    2. Differences w/China
            a. Never adopted system of meritocracy
            b. Blood line (unbroken) from 1st Emperor,
                       i. Continuous reigning by one imperial line
                      ii. China – emperor‘s replaced when ruler lost ‗mandate of heaven‘
            c. Feudal society (rather than imperial) where top class
            d. Highly decentralized, cardinal virtue is loyalty
                       i. China – highly centralized w/centralized administration
            b. Top class: Warriors/Samurai
                       i. China – Scholars
                      ii. Farmers, Craftsman, Merchants
    3. Long periods of war until Shogun (Tokugawa Shogunate, 1606- 1868) imposed peace
    4. Period of peace and prosperity
    5. Became mostly self-sufficient society, isolated until American‘s show up and force trade
    6. 1868 Maji Restoration – internal revolution involving provinces that opposed Shogun,
            a. Instituted Maji Gov‘t
            b. Law central to Maji reformers
                       i. main influence on law was German
                      ii. adopted Prussian constitution and German Civil Code
                     iii. by 1890s tradition of autonomous law and legal institutions
    7. Successful period of forced modernization – can‘t beat the West so join them
    8. German system of Gov‘t,
    9. Japan engages in Colonial project seeking to expand its influence
            a. Causes conflict w/west
            b. Exasperated by refusal of West to recognize it as equal in power in League of Nations
    10. Militarists take over until 1945 – loses WWII
            a. US becomes main occupying power imposing new rules on Japan
    11. Legal system in substance looks German but w/US influence
            a. Constitution – renounces use of armed forces
            b. Legal system sues much less than other systems

Kawashima, Dispute Resolution in Japan, ‗63
Low Litigation Society –
Kawashima Arg:
   1. Cultural Harmony - b/c of cultural harmony at the group level - Litigation b/c it breaks social relationships
   2. Modernization Theory – culture is determinative, shows why certain societies succeed when others fail –
        changing a culture can change a society
   3. Japan has a cultural lag – predicts that Japan will eventually change and converge w/ the result of the modern
        world
                i. Has not changed from group orientation/status to K relationships
               ii. Popular idea in the 50s – 60s but fallen out of favor b/c it is Western centric
              iii. Hard to imagine culture being a constraint on Japan
Haily - Institutional – criticizes Kowashima
   1. Litigation rates before war showed Japanese are more litigious
            a. higher in the 20s than today
            b. but not consistent w/Japan‘s cultural development
   2. Institutional: Cts in Japan are inefficient so people make choice to solve outside of Ct,
            a. not that they wouldn‘t use Cts, just doesn‘t make sense
   3. Civil Procedure – no serious of trails, numerous Ct appearances
   4. Gov‘t sponsored alternatives to litigation
   5. Mngt Perspective – Elites have managed society to suppress disputes by using inefficient institutions
            a. Channel forms of social protest to ADR
Ramseyer – Judges pretty consistent – highly predictable
   1. One system of law
   2. No juries
   3. Book of exact awards, means only go to Ct when disputing the facts
   4. Japanese legal system great b/c of consistency, more predictability leads to less litigation
Ginsburg, The Unreluctant Litigant? Journal of Legal Studies (2006).

Criminal Process/Justice Systems
Stein, Legal Institutions 54-68.
Criminal Justice Systems
Restorative sanctions – designed to restore social order
    1. Common in pre-state societies
    2. Part of social control function of legal institutions
Goals of Crim Justice
    1. Deterrence
            a. Specific – prevent same person from committing crime in the future
            b. General, AND
    2. Retribution – punish D for pain he has caused
    3. Incapacitation – physical detention of person, stop from committing crime in the present
    4. Restorative/Rehabilitation – bring them back into the social order
Freedman
Gali servitude - only developed when technology was efficient/available
States – changed logic of punishment
    1. common use of PUBLIC punishment
Enlightenment
Beccarria – Rationality of Punishment,
Importance of PROPORTIONAL CONSEQUENCES
    1. Min possible under the circumstances,
    2. State should not be inflicting punishment upon its citizens,
    3. Punishment should be prompt
    4. Influenced founding fathers, cruel and unusual punishment
    5. Decline of retributivism/death penalty
Prisons\
    1. Mass production/factory model
    2. Total monitoring of prisoner behavior,
    3. Disciplinary institution
Japan – Criminal Justice System
    1. Western style institutions
            a. Yet other extreme in terms of institutional operation
    2. Safer Society – more successful system
            a. crime rate lower, murder much lower
    3. Efficient crim justice system – 99.7% conviction rate (70% in US)
            a. Result of high confession rate
    4. Clearance rate (% solved) for reported crimes – 64%
            a. compared to 20% in US
    5. All w/in crim justice system much smaller than US
            a. Fewer police, <3k prosecutors, 3k judges
            b. US has 70-80k prosecutors and 50k judges
    6. Communitarian Orientation –
            a. criminal justice professionals are a community and
            b. higher participation by private citizens/use of community/community policing
    7. Restorative/rehabilitation sanctions
    8. Why it works
            a. Homegneity
            b. Unified system
            c. Confucian emphasis on harmony
            d. Geographic/social mobility
            e. Distrust of state
            f. Aging society – most crime committed by 18-25 yr olds in US
            g. Counter-args/Why it might not work
                     i. Not totally homogeneous - do have low cast and descendants of Korean laborers
                    ii. Globalization of labor – dirty, dull and dangerous jobs done by foreigners
                             1. Immigrant communities have higher crime rates
                             2. Less of a factor than we think
                                     a. Most crime in the US is intra-racial, not inter-racial
                                     b. White murder is lower
Organized Crime – Yakuza – Guys in White Shoes are completely legitimate enterprise
            h. Cooperative role w/the police in preventing crime
            i. Gambling and prostitution illegal but in practice
            j. Provide enforcement services – ex eviction (very difficult normally)
                     i. Loan sharks
Confession – HIGH role
            k. Can be in jail 23 days w/o access to a lawyer
            l. Right to counsel, but not interpreted as well
                     i. Results in injustice and high social control
Jacob, Cts, Law and Politics in Comparative Perspective 328-347
Frank Zimring, Punishment and Democracy: Three Strikes and You‘re Out in CA (‗01)
3 strikes Model
    1. instituted b/c judges seen as too lenient
    2. No Real Deterrence in Implementation
            a. Sharp decline in # of people getting 3 strikes b/c judges realized marginal cost of 3rd strike too great
US is Punitive System
    1. Punish people more,
    2. Still have death penalty
            a. one of 2 first world countries,
    3. Shift to pre-modern sanctions
            a. Ex: Shame, sign around their neck, sex offender publishing
    4. Drug offenses – high proportion of prisoners are for drugs,
            a. not a lot of agreement country to country on how they should be treated

April 9
America in Comparative Perspective
Comparative Common Law: Posner, ‗96
Differences and Similarities btwn UK and US Legal System

Shared                    Why
Common Law                Lawyers
Rise in Statutes          Culture – spectacle, provincialism/legal nationalism
(similarity of law)
Recognition               History
Judiciary
Jury                      Political Structure
Adversarial System        Economics/Wealth
Similarities
Common Law - Traditionally conceived of universal among nations sharing system
    1. Privy Council of House of Lords - ensured uniformity
              a. Appeals Ct from all nations - beginning to change w/nations upset at certain decisions,
              b. Decline in device used to maintain commonality of common law
              c. UK itself - forced to get rid of feature of final appeal to House of Lords
    2. Rise in Statutes (scope and authority) over time [similarity in the sources of law]
    3. Recognition Judiciary - high status, appointed after long career
              a. UK: drawn entirely from senior ranks of barristers
                      i. Almost all males, whites; limited pool has led to conservative tendency.
                     ii. Beginning to address this w/ committee
    4. Procedural Similarities:
              a. Use of the Jury (beginning to decline in UK, esp. civil jury)
              b. Adversarial (hand-in-hand w/recognition judiciary)
                      i. Ratio of judges to attys is high
                              1. Delegate certain functions to parties and their lawyers
              c. Single, concentrated Trial
    5. Judicial opinions: extensive opinions,
              a. emphasis on the role of opinion (not just technical/bureaucratic docs; reasoning is important
              b. Diff kind of legal document than civil tradition)

                                                       Differences
                            US                                                             UK
Constitutional Reivew                                          Parliamentary Supremacy
Written                                                        Unwritten constitution
Different Legal Education
Winner Pays                                                    Loser (UK loser pays legal fees)
Divided legal profession
Federalism
Contingency fees and punitive damages                          None?
Litigious – individualistic, rights orientation, civil damages
Scope of Legalism
Harsh Punishment
More adversarial regulation
Policy view of law as instrument for social change
Hostility to foreign citation
Differences:
    1. Parliamentary Supremacy vs. Constitutional Review
             a. Diff type of Judicial Review
                      i. Admin/gov‘t review, not legislative review
                  ii. UK is dualist system - parliament is superior,
                          1. has to add int‘l laws to own laws
   2. Written vs. Unwritten Constitution
         a. UK Constitution: some docs and unwritten norms;
                   i. no const review by any Ct - no judicial enforcement of unwritten constitution
                  ii. Includes: Magna Carta, BoR act, docs creating constitutional monarchy
                          1. Statutes passed by ordinary majority and now politically entrenched
                iii. Contours hard to determine
                          1. Different idea - not like our law/individual rights
                                  a. Fundamental political principles
                                           i. Political, not legal, constraint on what parliament can do

Atiyah and Summers, ‗87Comparative Common Law – See My Docs
Alexis De Tocqueville, Democracy in America 282-90 (1835). – See My Docs
Kagan and Axelrad, Adversarial Legalism: An Int‘l Perspective in Comparative Disadvantages?
All advanced industrial societies face same problems w/reg
US automatically adversarial
    1. Today: Comparative Common Law (US and UK);
    2. Then: US in a Comparative Perspective (what makes our system distinctive)
    3. Is it better to organize comparative analyses along different lines?
            a. Maybe divide US and everyone else
            b. Generally Common Law/Civil Law, sometimes 3rd category: mixed
            c. Most are mixed in globalized world today
Schwartz, Product Liability and Med Mal in Comparative Context – See My Docs
April 11
Wilson, Bureaucracy ‘89 – See My Docs
Feldman, Blood Justice: Cts, Conflict and Compensation in Japan, France and US ‘00 – See My Docs
Keleman and Sibbitt, The Globalization of American Law, International Organization, 2004.

				
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