Comparative Legal Institutions Outline 2009

Comparative Legal Institutions Outline, 2009

PART I: INTRODUCTION Why does the law vary? A. A legal system consists of: 1. Laws: norms which originate somewhere, ie w/ Congress, the King etc. 2. Institutions: once there are norms, institutions are needed to apply the norms in factual situations 3. Enforcer: an institution to enforce the norms, ie the executive 4. NB: all modern societies rely on the legislature to make the laws but differ on appliers and enforcers B. Perspectives: 1. Climate and Montesquieu: French writer, mid 18th century; influential on Con drafters; 1st “comparative lawyer” a. “Climate”-different weather influences different social organizations b. “Climate” as Culture-differences reflect something about the locality; law is culturally specific (compare w/ natural law that is derived from nature, God or man’s inherent human qualities) c. Class discussion: i. Culture: soc/anthro-more than the sum of political and social conditions—consists of the “unquestioned premises” of an individual ii. Sociology of law: adversarial (neutral judge standing b/t two opposing parties) vs inquisitorial system (judge plays active role; judge and parties are truth-seeking) A) Study: people from inquisitorial systems think that the adversarial system ensures greater fairness—demonstrating that preferences are more than the sum of the institutions B) Diff Attitudes on Punishment: US is very punitive—leading proponent of the death penalty; in other societies like Japan, apologies are important to “making whole” 2. History, Inheritance and Tradition a. US legal history studies the borrowed traditions, ie throwbacks to the Roman legal system b. “Path dependence”-once you make an initial choice, you’re on a path and it becomes much harder to switch away from that system, ie QWERTY keyboards or Windows i. Modern day democracy can be traced back to the original system of law adopted ii. Prof doesn’t buy this: the historians always seem to reach the conclusion that being colonized by the British or Germans is better than the French iii. “Network quality”-efficacy of system depends on more people using it—if everyone had the same legal beliefs, then it’d be easier to structure conduct in the market; at the same token it might mean that suboptimal rules survive simply because the switching costs to a new system are too high iv. So if that’s true, how or why would things ever change? A) Incremental changes lead to a tipping point (c/l evolution) B) Shocks to the system 3. Internal social structure: race, homogeneity, heterogeneity etc. 4. Government and the Politics of the Society a. Who is the powerful or dominant class? What are their interests? What institutions exist to protect these interests? b. Marx on legal changes as a result of the industrial revolution: this system protects the dominant bourgeois class—economic interests drive changes in the law, thus we can expect the law to be systematically more favorable to the bourgeois class over the proletariat, ie protecting property interests, trade etc. This is repressive towards the poor b/c if they don’t take land, they remain poor, if they take land, they will be jailed. 5. Montesquieu on SoP A. 2 Execs (FoPo and Domestic), legislature and judiciary B. Judiciary: if it’s aligned w/ one of the other two branches  abuse, ie Turks, Ottomans

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Comparative Legal Institutions Outline, 2009

C. There’s agreement among democracies and dictatorships on the importance of the rule of the law; they agree on the importance of judicial independence even if they disagree on everything else 6. Levmore and Efficiency A. Looked at the tort of laws of diff societies, unrelated to each other B. Conclusion: Incentives matter; when there are efficiency considerations at play, we should see a convergence or uniformity on laws as a result of incentives C. S/L vs Negligence i. Efficiency: in both regimes, if the cost of the damages ex post is less than the ex ante costs of mitigation, then you’d rather not mitigate and pay the damages b/c that’s more efficient. ii. But if one of the rules was truly inefficient, ie arule of no liability, then we should not expect that rule to survive. People would either put themselves out of existence or borrow a better legal rule that placed damages on the tortfeasor Stateless Societies and Order Without Law: Case Studies A. Key: Overcoming coordination problems 1. Social surplus 2. Self-regulating/lack of formal enforcement 3. Incentives to Comply 4. Norms and Customs 5. Mediation 6. Arbitration B. The Illini 1. Hunting societies will organize differently as compared to agrarian societies. B/c hunters move more, agricultural societies had permanent or semi-permanent homes. 2. Coordination: hunters of big game will have to coordinate their action to hunt successfully; success and survival depends on their interdependence 3. Status: a. Males: hunters are separated out by age and sex; hunting is also high risk and irregular b. Females: in charge of things that don’t require physical strength so relatively high status—farming and family 4. Social surplus: hunting societies have very little social surplus a. Amt of time left over after hunting and gather is very little—less time to develop other activities b. Culture might develop after basic issues have been solved, ie food c. Specialists do develop: shamans, war chiefs and peace chiefs 5. Orientation towards family law: a. Adultery: male commits—ok; female commits-not ok, could be killed b. Family cohesion and preservation: if you kill someone, you have to take care of their family 1) Bride price or dowry: served the social functions of compensation and signaling about one’s ability to save or earn one’s value; insurance function; creates incentives to make the marriage work if there’s a significant transfer of wealth; establish a sense of obligation (seems to be more prevalent in societies w/ greater scarcity) 2) Potlatch feast: resulted in competition among chiefs to give more than other tribes —played an insurance function: when times were bad, other groups might be more inclined to help; also helps to bond diff tribes 3) Marriage: men have to prove that they can hunt; late marriage rule also kept birth rates low given scarcity 4) Deceased: had rules about what to do w/ the property and who takes care of the remaining fam members 6. Property law conception a. Fairly sophisticated property law rules b. Some conception of private property though mainly collectivist attitude 2

Comparative Legal Institutions Outline, 2009

c. Might have some possessions or personal property but not “real property” belonging to an individual—lots of land, so less of a need to divvy up. (Property rights arise when there’s competing uses or congestion for land) d. Property isn’t quite public though b/c its use doesn’t extend to other tribes. 7. Are these norms of behavior “laws?” a. Not written b. No specialized category of enforcers or dispute resolution c. Society is self-policing so no reason to distinguish this from norms or customs d. Rules evolve from the group itself; it’s evolutionary and created by everyone. 8. Enforcement of the norms: a. Ordeals b. Shaming c. Total banishment d. Some compensation or exacting revenge e. Spiritual internal norms f. Retaliation g. B/c it’s a small society and one’s labor is a key resource, lots of pressure to solve internal problems by compensation. h. Ad hoc mediation by a third party, ie a chief or shaman 9. Intra-tribe conflict a. War raids as compensation for those who die on behalf of the group b. War risks high loss of life though—more reliance on self-help c. Want to quell unmitigated violence into compensation or proportional vengeance 10. Efficacy or compliance w/ the norms? a. Homogeneity helps if small number of people b. Shared identities encourages compliance c. Repeat players, esp in a small society d. Functionalist arguments mainly 11. Blood feuds? Could be used for internal or intra-tribal conflict but very high cost; incentivizes people to police their own family’s conduct if they know that such misconduct could lead to a blood feud C. Medieval Iceland 1. Political system: a. Legislature that met every once in a while b. Some rules, had a notion of legislation c. Courts d. But no professional enforcement of judgments, ie no executive—thus no official “state.” (and no notions of criminal law) e. Their society was divided into sections run by the “chieftain” or office of the gooar; the right to become a gooar was transferable and could be bought, sold or inherited 2. Why no professional enforcement? a. Prof enforcement only arises when there’s enough of a social surplus to have them b. This was not a rich society, thus self-enforcement was preferred c. There’s also no incentive for anyone to take over this society and impose enforcement (not enough revenue to justify conquering them) d. Unlikely that they would’ve survived on mainland Europe. e. They had some social surplus—ie the position of the gooar 3. Dispute resolution: a. Plaintiff must ID the violation and bring it before the D’s gooi/chieftain (akin to tort law —all wrongs here are ‘civil’) to determine jurisdiction and the court b. Ct declares a judgment. c. If judgment is against D, D must compensate. If he doesn’t pay, P can start a second suit to declare D an “outlaw.” d. If D is declared an “outlaw,” then anyone can kill him w/o legal repercussions. The outlaw’s fam can’t defend him without themselves getting into legal trouble. 4. Coordination is key a. System requires coordination for it to work. Doesn’t matter what system is chosen but once one is chosen, everyone needs to follow it for the whole thing to work. 3

Comparative Legal Institutions Outline, 2009

b. Battle of the Sexes: two parties have diff preferences on where to go. W/o communication or the help of a third party, it’s possible that they’ll end up in a place w/o the other. c. Same thing in Iceland: two parties disagree. 1) They could have a fight b/t fam members to settle it but that’s costly for both parties and for society as a whole. 2) Thus they need the help of a dispute resolver: the chieftain must issue an authoritative pronouncement which will help the parties coordinate their actions. 3) This is not an “enforceable pronouncement” 4) But if one party is told to back off and they don’t, they’ll suffer the costly consequences of a fight. They have an incentive to back off and follow the judgment even though there’s no external enforcer. Issuing the judgment signals to the parties how they should behave and the course of conduct to take if the other side doesn’t behave. 5) So you can have adjudication w/o formal enforcement! 5. Transferable Tort Claims a. Tort claims are transferable and can be sold to a more powerful person to “prosecute” the claim. b. The victim gets deterrence in return: a demonstration that people who injure him will nonetheless have to pay damages, if not to the victim then at least to someone. c. This leads to the balance that no one party is ever strong enough to dominate—if one party is strong enough to get 51% of the strong people, then he’d get 100% of the surplus and it’d start to look like govt. 6. The system lasted for 300 years: a. The population was too poor and sparsely populated to self-create a king b. W/o govt springing up internally, they needed a shock to the system from an outside force—Christianity from the outside changed the internal dynamics. c. As a result of Norway’s influence, the category of crimes was created. Thus a breach of the peace meant a breach of the King’s peace and could be prosecuted. Other disputes like over taxes, that threatened the public order could be prosecuted. d. Courts as a kind of service provider of dispute resolution then emerges. D. 18th Century England 1. England is in the process of state-building; there is a category of crimes and cts to solve disputes but there’s no public prosecutor. 2. Tort and criminal victims act as prosecutors – any Englishman could be a prosecutor 3. Why might this work? a. King might not provide for public prosecutors if it’s too expensive, esp since the victim has the same incentives to pursue the case b. Prosecution societies: townspeople give money to a local society which then prosecutes felons on behalf of the town member. The list of society members would be made publicly available so that felons are on notice of the members. c. Might encourage deterrence if conviction rates by the society is high. d. Problems: 1) Might not work for poorer people who don’t have access to the prosecution society —in which case the crimes just shift to the more vulnerable members of society who can’t self-protect 2) Thieves will turn to the highways and go after victims for whom the prosecution society is unknown 4. Complicating issue: all crimes were capital crimes a. Huge increase in the number of capital crimes b. But rates of executions not high c. Risk of DP might have a deterrence FX or later pardons may have reduced death row d. Alternatives to the DP: 1) Imprisonment; but costly 2) Enslavement or indentured servitude 3) Forced enlistment in the military 4) Deportation to Australia 5) Pardoning: which might have the extra benefits of increasing loyalty to the King + feelings of leniency and fairness—also explains why DP’s were public spectacles. 4

Comparative Legal Institutions Outline, 2009

E. Shasta County, California 1. Coase Thereom: The one who bears the costs of solving for an externality will be the person who values it more and the txn can be concluded w/ side payments. All the legal rule does is decide who pays. 2. Shasta County has the following rules: A. Closed range: rancher has the duty to either erect a fence or pay the damages for cattle who stray B. Open range: farmer has the duty to erect the fence or else accept the costs for cattle who stray C. Coase: the efficient outcome is for the one who values it the most to pay 1) Farmers in the open range should pay the rancher to put up the fence 2) Ranchers in the closed range should pay the farmer to put up the fence 3. But instead, ranchers and farmers came up with norms that resulted in social sanctions in lieu of court sanctions b/c going to court will break the relationship with your neighbor, an ongoing relationship. 4. Informal norms were more useful: a. Close knit groups are more likely to develop well-functioning norms b. Externalities: norms might be efficient for you but impose costs on others 5. The beginnings of law will depend on norms and customs but we should be suspicious of small groups. F. Pashtunwali 1. 40M people 2. Illustrates externality problem: blood feuds and vengeance seem to be problematic and inefficient, leading to repression over the long run G. Keys: 1. The group becomes the relevant unit of analysis and are the key players w/ regard to conflict w/ each other 2. Self-enforcement is key b/c it’s essential to survival of the group 3. Stateless societies have remarkable levels of social order 4. Maybe when the dominant group becomes dominant, it can establish a state 5. Substitution effects b/t formal legal institutions for older informal institutions PART II: COURTS, DISPUTE RESOLUTION AND SOCIAL CONTROL

A. Triadic measures: 2 parties + 1 dispute resolver  go to a chief etc for dispute help; why? 1. Might have some experience 2. Social status as a credible decision maker 3. Maintaining social status as an incentive to making good decisions 4. Might help in the crucial question of enforcement B. Institutions 1. Go Between: informal transmission device when two parties are too mad to address each other. Leads to translation issues. Is diff from mediation largely b/c parties are not present. This may empower the go-between to amass info that may or may not be common knowledge. Can act as a buffer; requires consent from the parties to a final outcome. (Think real estate agent going b/t buyer and seller) 2. Mediation: like a go-between but parties are present; helps to find common ground, reconcile interests etc. may not be binding; helpful to finding an internal solution. Can actively assist in finding a mutually agreeable solution. 3. Arbitration: often given the power to make binding decisions; usually involves less consent per se—you consent impliedly to arbitration when you K for certain things. Not trying to find an internal solution but rather arrive at a legal answer. Has the benefit of choice in some way: each party can pick and arbiter and the two arbiters will pick a third. Is a kind of private judging system. 4. Compare: Go-Between  Mediation  Arbitration  Courts A. Moving from L to R increases formality B. Consent? 1) Go-B/t + Mediation: high levels of consent: consent to the resolution and lots of control over the process 5

Comparative Legal Institutions Outline, 2009

2) Arbitration: some consent to some of the arbiters but maybe not to the final decision, depending on the form of arbitration 3) Court: no choice about choice of law, about being a party—low consent C. To what degree are norms outside of the relationship influential? 1) Highly influential for go-b/t and mediation 2) Less so for arbitration 3) Very little for cts, esp given complex procedure rules D. Status considerations: to what degree does the dispute resolver pay attention to the status of the parties 1) Cts: not supposed to matter; are supposed to impose one solution over another but in practice, probably a range of solutions and may even wind up with a broader range of solutions if for example, a party commits a procedural violation 2) Med/Go Between: matters quite a bit (mediators not about justice per se but rather, just about solving this prob so they look at the range of possible solutions); decision will probably reflect some of the underlying power considerations 3) Arbitration: also not supposed to matter b/c they are picking one solution a) Repeat players: esp big companies prefer arbitration b/c they are sophisticated repeat players who have gotten better over time b) Arbitrators are not concerned w/ public policy unlike courts whose decisions might be followed over time c) They can pick the arbitrator who gives them the right decisions (might incentivize arbitrators to skew decisions in favor of the companies) d) Repeat players might become better at forum shopping and thus pick which cases they want to fight and settle. 4) Arbitration/cts: de facto, status seems to matter even if it doesn’t as a formal matter E. Why favor arbitration and mediation? Cheaper! Though arbitration decisions are generally not reviewable, they might be for gross errors of injustice or procedural violations. Mere error of law is usually not enough. F. Why use judges if there’s so many probs? 1) Recalcitrance for the judicial system 2) No way to not follow the verdict/outcome/enforcement 3) Precedential value 4) Public policy concerns 5. What if there were no courts? a. Self-enforcement b. Societal mechanisms and dynamics c. But having a court system as an option is likely to change the value and reliance on other methods of dispute resolution leads to “dispute resolution in the shadow of the law.” Once established, the law casts a much longer shadow and has more impacts than just that one decision b/c it communicates predictive info for future similar disputes d. Dispute pyramid: naming, blaming and claiming: 1) First step/base: name/define the problem or grievance 2) 2nd: find and blame a culprit 3) 3rd: file a claim 4) 4th/apex: go to court 5) (it’s a pyramid b/c at each stage, there’s fewer options) 6. Is it necessary for cts to have “professional judges?” No, prominent people or even pay a common person to be a judge. Despite that, we say a shift towards professionalization of judges over time. Why have “professional judges:” a. Streamlines the process b. Expertise c. Greater legitimacy that comes w/ having developed a rep for being fair and just d. Public policy implications PART III: LAW AND SOCIETY IN IMPERIAL CHINA 6

Comparative Legal Institutions Outline, 2009

1. Always been a western view that China doesn’t have “law” per se b/c it’s repressive etc and always has been. That idea implies that “law” must have some notions of restraint on the govt. 2. Why is so big? A. Old society B. Had a large amount of food to support the population which lead to a social surplus unlike say the Persians. C. Had enough of a surplus to give rise to philosophers to think about organizing a govt D. A lot of wealth E. Language: learning 10000+ characters + tonality = costly to learn the language thus not everyone could learn how to read b/c it required years of study. Idea of written language provided a unifying method for state-building. 3. Confucius had a lot of influence in how to organize the state; looked backwards to this fictitious time to look back to the Chou time when everything was perfect. A. Li: “rite” or ritual-back then people who had the “right” way of conduct or behavior B. Right behavior: you must play your proper role in any situation by treating people as they are supposed to be treated based on their status or position in society—society is hierarchical. C. Key relationships: i. Emperor-subject ii. Father-son; son-father iii. Husband-wife iv. Brother-brother v. Friend-Friend vi. Seems to be male-dominated vii. Seems to be family-oriented viii.Not a lot of duty to outsiders ix. Great emphasis on self-cultivation D. Chinese religion not really an axial religion (realm of earth and separate realm of god); Chinese philosophy thinks that the universe is kind of organic whole. So maintaining these relps well will have spillover effects to enhance the social order and cosmic order. E. What did he think about law? i. Law is a failure—if you need to result to law to get compliance then you’ve already failed to cultivate internally the motivation to comply w/ the social order and social norms ii. Law will lead people to avoid punishment but it won’t give them the sense of shame that would otherwise compel them to act properly iii. Law crowds out social norms if they are alternate systems of regulation iv. Law obliterates the relationships b/c it treats everyone uniformly v. Law and punishment is retrospective and people will act find ways around laws but if norms are internalized then people will avoid committing crime at time 0. F. Practical implications for the legal system? i. Civil disputes should be solved by one side yielding; the moral credit goes to the person who backs down first; that might minimize violence and individual sacrifice is done for the greater good for the social order; benefit of saving face of opponent ii. Maybe more efficient dispute resolution iii. His focus tends to be backwards looking; not worried about deterrence 4. Confucius is contrasted w/ legalism A. Any govt that adopted Confucian policies was wrong and bad for the state B. Legalist view: extending power is a good thing; a powerful state needs a military and strong emphasis on agriculture to support the larger army C. Strong centralized govt D. Tax key parts of economy at the source, ie tax the salt-producing locality E. Harsh punishments and strong laws to achieve in effect, the deterrence effects; assumes that human nature is diff and that people are self-interested and bad F. Neither legalists nor Confucian law had no meaning of “rights” so much as a series of duties 5. Any legalist society today? N. Korea 6. Confucian? Singapore and meritocracy 7

Comparative Legal Institutions Outline, 2009

7. What happens: confucianizing the law 8. Dynasty v important: even if the dynasty would fall, the state would endure 9. Central institution: idea of the mandarin—the scholar-official who served as the basic govt officer; sought to have a govt by the smart; so wanted to recruit intelligent people into the govt A. Class didn’t matter for becoming a mandarin—anyone could sit for the test B. Rule of avoidance: situated the mandarin far away from his home town so that he’d rule w/o bias C. Is an all-purpose officer: judge, jury and executioner; collect taxes, manage social order and apply the law China modernizes The Story of Qiu Ju -law re-emerges at the end of the Cultural Revolution after Chairman Mao’s death -Jin, Mao’s successor, wanted a more orderly basis for running the show; also wanted to strengthen the market economy -so to begin the implementation of law, they used retired military officers to act as judges; while they were likely to be loyal, they didn’t have legal training -the film is one stage in a step by step process -this is set in China, 17 years ago Thoughts on the movie 1. Punishment follows once a public official has committed a crime. 2. Cultural diff: can’t sue for an apology here, but here maybe the norm of an apology has been crowded out by the legal system. 3. Gender relations: she and her husband are treated as equals even though it mostly her pushing for the apology even though she wasn’t directly injured 4. Her baby’s life is saved and by the end, she has no control over the law. 5. Govt will lose this case to have a demonstrative effect. 6. If you invoke this law, you really will lose control—kind of anti-legal. Shows some preference for solving things at the village. 7. Govt is really “good” and is trying to do the “right” thing 8. Communist ideas about law: law was to be used restoratively; law was an educative tool 9. Shift in gender relations. By this time, she’s being treated differently. How complete is the transformation? Not full—meritorious to have sons. Chinese legal system A. Western visitors have an enduring vision of China as having a “brutal, dictatorial, authoritarian” imperial legal regime B. Most provisions in the codes were penal or criminal and not civil (though this is contested among historians) C. Primarily public law—laws governing the relationship b/t the individual and the state 1. Focused on limitations of the subjects 2. No limits on the emperor though under natural law ideas, you could say what the emperor “should” do a. The only evidence of repercussions for the emperor’s misconduct were cosmic— natural disasters, war etc. 3. Not based on some idea of ‘rights’ D. Magistrates per jurisdictions; system allowed for appeals of his decisions including automatic appeal in DP cases 1. Appeals allowed not b/c of a second attempt to vindicate rights but rather, out of fear that magistrates were behaving corruptly or abusing their power 2. An appeal can be an error corrective device that results in monitoring of important officials, thereby leading to better social control E. The “Censorate” 1. A bureaucratic branch of govt whose sole job was to monitor the other branches of govt and ensure that magistrates were doing their jobs 8

Comparative Legal Institutions Outline, 2009

2. Directly responsible to the emperor; sole role is oversight, prestigious system 3. Would move around a lot and conduct investigations, like audits; investigate cases of corruption etc. 4. There wasn’t a general reporting or complaint or whistleblowing process on corrupt officials; in fact, reporting on others was discouraged; if so, that might undermine the system of hierarchy 5. Taiwan has preserved the institute of the censorate as a check on other branches of govt a. Taiwan also has a separate branch which administers exams to enter govt, law, medicine etc. b. Why have such a system? The system works if there’s no corruption in exam-taking. System depends on true meritocracy thus the exam administrators had to be independent and not magistrates themselves c. Corrupt exam officials could be prosecuted d. Very top down societal organization attempt 6. Compared to the US: a. No comparable institution just for govt monitoring b. We rely on the Constitution, separation of powers, lawsuits, democratic processes etc. to protect against govt corruption F. How do you control for corruption? 1. Promote an ideology that emphasizes loyalty to the demands of the central force a. Successful in Imperial China b. Only allowed people to become magistrates if they memorized the Confucian classics c. Indoctrination can make agents internalize the values of the principal to do his bidding 2. Hierarchy a. Checked by higher authorities who can impose sanctions b. Appeals to higher levels 3. Rely on whistleblowers, info from outside of the system a. Get the public or the press to monitor the agents 4. Who guards the guardians? a. Allow appeals or public monitoring b. But at some point, the decision will be right b/c it’s final (and not final b/c it’s right) G. The Magistrate 1. In general, China is very hierarchical so social mobility might be harder to obtain 2. Lower level judge + some admin functions 3. Most people wanted to avoid the magistrate and formal run-ins w/ the law—litigation avoidance 4. Thus private disputes didn’t always use cts; instead: a. Many resolved w/in the fam b. Social pressures such as shaming, gossiping and ostracizing c. Plus the legal system was largely about public law and cts probably wouldn’t handle those claims anyway d. Commercial claims? 1) Other institutions to handle marketplace matters 2) Associations like clubs or guilds; created some info transparency on potential trading partners; also mediated disputes and punished violators; to succeed guilds needed to offer these dispute resolution services to members 3) At the same token, informal social controls such as trade w/ whom you know; ostracize those who rip you off etc. 5. To become a magistrate: a. Years of study; prestigious position so if you pass exam, you’re set for life b. Multi-stage system c. Those who failed the exam but were relatively learned and could read could become teachers, lawyers, scribes or “litigation tricksters” (help people take their complaints to the magistrate) 1) Kind of a tricky profession to desire 2) Might disperse authority—don’t want lots of people running around questioning the govt 3) But there was still a demand for lawyer-like services, ie drafting documents in a language that the upper officials would understand etc. 9

Comparative Legal Institutions Outline, 2009

6. Perception of magistrates: a. Judge Dee stories (detective novels set in ancient China where the upright Judge Dee judges crim cases) b. The wise magistrate is a kind of hero doing substantive justice outside the 4 corners of the law b/c he ascribes to broader notions of morality but doesn’t substitute individual conceptions of morality for the law c. Law tried to import Confucian morality in various ways d. It’s Rule by (wise) men, not rule by law where discretion is cabined 7. Balancing your docket: a. Magistrate wants to maintain order and supervise lower officials under him b. Doesn’t want to have his decisions appealed b/c higher bureaucrats don’t want to be bothered. c. But magistrate misconduct could be punished. 8. Adjudicating: a. Wise magistrate sees the logic of mercy (if you’re the emperor, sometimes you commute sentences and that’s a good omen, generates good will, loyalty etc.) b. But penalties can be harsh -corruption often brings down empires; you can combat corruption through: appeals, the censorate or harsh punishments -the system ended in 1911 due to pressure from American and European powers who wanted to trade w/ China -China was pretty self-sustaining and not too interested in what westerns could offer; so West finally comes up w/ something that the Chinese want: opium. Grow in India, sell in China. -Chinese emperor says this is wack, you’re undermining the country -China’s attempts to exclude pernicious western ideas resulted in highly restricted trade; in response, England starts to export to China cheaply produced opium which the Chinese did not have, but wanted. -China tried to restrict the inflow of opium; that led to a naval battle b/t China and England PART IV: ISLAMIC LEGAL INSTITUTIONS Basic Structure A. Key Players: 1. Ulema: body of Islamic scholars and jurists; is the scholarly community who become the authoritative interpreters of the law after Mohammed’s death. This includes the special group of kadis and muftis who are born out of the ulema group. 2. Kadi: a kind of judge; is a religious figure whose legal authority (and knowledge) derives from his position of religious prominence; is not a bureaucrat. 3. Mufti: special group that grows out of the ulema. They produce fatwas (advisory opinions about the outcome of a case); is based on his religious training and religious authority a. Fatwa: formal legal judgment or view of the mufti b. Gave rise to a marketplace for muftis, fatwas and in some sense, forum shopping b/c everyone wants to get the most favorable opinion (which then gets taken to the Kadi) c. In many cases, they are more knowledgeable about the law than kadis. d. Using a mufti means you’re going to take the fatwa and use the adversarial process. e. The mufti institution gave rise to diff schools of training and thought, giving rise to institutionalized norms that had some precedential value. f. Process of using the mufti: 1) Go to mufti and get a written fatwa. 2) Take the fatwa to the kadi; kadi will decide which fatwa is better and render judgment based on that. 3) The variety of decisions produced, and the lack of real stare decisis is the product of a decentralized system but b/c diff schools of thought give rise to some consistency, the system is probably not as unpredictable as we assume. B. All law is “personal” 1. We tend to think of laws as territorial and that w/in a territory, the sovereign is supreme and will set the rules that apply to all people in the territory. 10

Comparative Legal Institutions Outline, 2009

2. But Islamic law was personal—the rules that apply to you depend on your status, ie your religion. (Jewish, Islamic and Christian) So specific sects of Islam can apply their own norms to their specific adherents even if the move to an area where they are the minority sect. (See Afghanistan). 3. There are rules for how to deal with intra-sect txns as well as rules for txns b/t Muslims, Christians and Jews + rules for when they deal with someone not of the “Book.” C. Sources of Law 1. Old Testament is clearly a legal document. Has lots of rules. 2. New Testament contains little to no law; it’s primarily a narrative of achievements or revelations. It’s not meant to be a set of rules. 3. Koran: some intermediate status. There are some commands or rules for followers but they are not organized or systematically presented. 4. Mohammed’s revelations reflected ideas of the Bedoins as well as the rules of the Arabic tribes. Lots of specific statements: a. Prohibition on interest rates 1) A pre-Mohammed or Bedoin idea 2) Probably to protect the weak 3) To create financial equality 4) The rule originates out of societies like Illini—everyone bands together; group protection is important and want to protect against exploitation. 5) Market might be illiquid so protect against increasing and exploitive interest rates 6) Alternatively, this might just push the practice underground. b. Islamic banking c. Ideas of radical equality is part of the reason that Islam spread so quickly—not much difficulty in converting people d. The theory that the religion is distinct from the state is underdeveloped—the two seem pretty intertwined D. History 1. Mohammed introduces the Koran 2. Islam splits to 4 caliphs (head of an Islamic community) a. Ummayads b. Abbasids c. Ottomons d. Mongolians (but no lasting dynasty) 3. Caliphs dissolve to two major schools--the Sunnis and the Shias E. Evolution of the Rules—all the rules of Mohammed or the caliphs weren’t written down or extensive enough to cover all situations: 1. Hadith: oral tradition of the words and deeds of Mohammed; were eventually written down; have legal status 2. Ijtihad: personal reasoning—finding the right answer by reasoning on your own to the good decision based on independent interpretation of legal sources such as the Koran 3. Taqlid: to imitate; is the practice of following the decisions of religious authority w/o independently examining their scriptural basis or reasoning for the decision 4. Major schools of Islamic thought shut the door on Ijtihad—this is crucial b/c then it leaves the Taqlid as the major source of law of relying on precedent or analogizing from precedent. This is viewed as closing off the creativity of lawmaking arguably signaled the end of Islamic law. 5. This left scholarly consensus (ijma) as the key rulemaking source. This is difficult to reach in a decentralized system. 6. How could personal reasoning have the same status as divinely inspired law? a. Everything that exists is “god’s will.” Thus my coming up with an answer reflects an earlier divine plan. b. This is used to justify Ijma—if everyone reaches a consensus, then that consensus is the product of a divine plan. c. This combines personal reasoning by actual jurists w/ divine law 7. The process of rule crystallization is decentralized and relied heavily upon scholars to do the thinking and dissemination. 11

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8. The system had some proto-constitutional elements. Even though there were dynasties and various govts, they were constrained b/c their laws were always second to divinely inspired rules, which means that the king isn’t the highest order per se. Thus the king couldn’t contradict the Koran and as a result the Ulema became a very important class of scholars and the king needed their backing and support in order to rule effectively. Thus the religious leaders’ authority is strong b/c it’s independent of earthly lawmaking by kings b/c it’s divinely inspired law. Comparing this system to the US A. US tends to categorize conduct as binary—everything that the law does not make illegal is presumptively legal. 1. Islam uses degrees or gradations to describe conduct that is absolutely forbidden, discouraged but allowed, neutral, encouraged or required. 2. This makes sense if the Islamic legal system uses morality to inform their sense of law. While ther is moral disagreement internally, the moral basis is more similar across the population than ours is. 3. Law is a broader category of behavior that includes moral prescriptions and proscriptions. Thus morality and sanctions are not just imposed by society, but also by God. 4. The distinction b/t the US system and Islam might be artificial. To call our system binary might also be artificial in the sense that society prescribes or proscribes lots of conduct that has gradations of duty although that might not necessarily be legal or illegal. B. Islam tends to have lots of rules that get applied in a stds sort of way. There isn’t uniformity across decisions and decisions in large part will turn on the schools of thought that they originate from. C. Muslims and Others 1. There is a diversity of religion in the Arab world and Muslims were supposed to tolerate “people of the book” ie Jews and Christians but they were considered inferior to Muslims and couldn’t hold high offices for example. But other sorts of religions, like B’hai in Iran (apostasy) was not tolerated. D. Legislation 1. Why have legislation? a. To give notice of what is allowed and condoned b. To structure behavior c. Is ideally responsive to changing situations. 2. Islamic legislatures a. Classically, they didn’t have it b/c law was not meant to be “created” by human beings b. Thus Islam used various interpretive techniques to keep the law consonant w/ society c. The Koran does explain many of their affirmative duties or laws d. Some are also just spiritual laws that are followed out of devotion and are not necessarily rationale (fundamentally diff from our system b/c we require every law to have some minimal level of rational relation to the state objective.) 3. US a. We can use human reasoning to find or rationalize to the right rule of behavior and use that to guide our actions b. Islam isn’t oriented in this way. Islam would not reject a rule of behavior just b/c it’s no longer instrumental. As long as the “right” thing to do (to achieve a religious or societal goal) then it should be followed. c. We don’t follow rules just b/c they are “given” to us. We follow rules if they are rational and continually applicable to us. 4. Argument: US has a quasi-religious attitude towards the Constitution. But the Constitution is a rationalist document—the best institutions could be dreamed up by reason. But our devotion to it is quasi-religious. 5. So why do some societies succeed while others fail and what can law do to help? a. Some say that success or failure has to do with law. b. Weber says that: how did capitalism where and how it did. i. Talks a lot about religion. ii. Roots the success of the West in religion iii. Protestantism: previously the Catholic church was pretty regressive; kept knowledge locked up. It was fatalist—said the meek would inherit the earth. It didn’t have the 12

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ability to release the energy of people who wanted to make a better life for themselves. But Protestantism (and Calvinism) allowed people to have a direct connection w/ God—said it was good to be rich but didn’t need to show it off, ie be ascetic. c. Weber on China: i. Had science and invention; religion was such that they were very rationalist; emphasis on perfecting one’s self. Godless religion not mucking things up. ii. He’s asking why capitalism didn’t emerge in China? The institutions were repressive. They took the best and brightest of society to work for the govt. But that meant that the best people were studying Confucian classics—which is backwards looking, and not forward-looking to figure out how to make a better mousetrap. d. Probs w/ his theory: i. Capitalism emerges in England but the English were more like the Catholics than the Protestants. ii. English system of law is rather irrational. The institution of the waqf 1. Waqf: Islamic equivalent of a charitable trust 2. Device emerged early on in Islamic legal tradition and became widespread. 3. Theory: originally good but wound being repressive 4. Why used? A. Property put into it is free of taxes. Good. B. In gen, was set up w/ charitable purpose in mind, but no requirement that you do so. Thus some were set up to provide income for the fam in future generations. C. Would allow you to avoid some of the rules, ie the inheritance rule of giving half property to a daughter (Islam was arguably more liberating for women as compared to Arab tribal rules). Thus if you wanted to give all of the trust to your male lineage, you could. D. Rules of the trust had to be enforced in perpetuity. E. Trustee was salaried. 5. Why is this bad for long-term economic development? A. Became very popular. At end of Ottomon empire, 75% of all agricultural land in Turkey was tied up in a waqf. This is a lot of land, and arguably inefficient based on what the original purpose was. B. Unlike c/l trusts, waqfs lacked an easy way to deviate from the rules set up to govern it— thus it didn’t respond to changes in society. C. The tax benefits meant that the state got a lot less state revenue; state had a hard time getting the land back. D. This is all anti-capitalist according to some scholar named Koran?? E. Also some suggestion that by providing these public goods like soup kitchens and public hospitals, it crowded out incentive to innovate by the poorest people in society. -All these institutions came up against modern institutions that forced the Muslim world to change as well. -The emergence of modern nation-states has crowded out or squeezed out the role of Islamic law in people’s lives so that it’s far less relied upon as compared to the civil code. That doesn’t mean there’s nothing left for the Islamic system. And that depends on from country to country. -In most countries, w/ the exception of Saudi Arabia and Pakistan for example, most predominantly Muslim countries use Islamic law largely for family law matters. -The question for the state is whether to recognize these decisions or not. Class 12: Islamic Legal Systems April 22, 2009 1. Default rule: All disputes involving a non Muslim + a Muslim had to be resolved by Kadis. But intra Jewish or intra Christian disputes were solved by their own rules. 2. Stereotypical imagery about the Islamic legal system was the absence of institutions of appeal. A. You go to the Kadi w/ some opinions from a mufti. There was no hierarchy of kadi among themselves. 13

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B. But w/in the empires, some cities were more important than others. Thus is it really true that there was no appeal? C. Explanations for the absence of appeal: i. Ideological idea that diversity was to be celebrated as it’s a gift of god. On the other hand, uniformity of decisions is a reason for an appeals process. ii. Diversity was tolerated but consensus was so difficult to achieve. Diversity of opinions among kadis could be overridden by consensus of the Muslims or by Ijma. But that’s difficult to achieve and it’s a bottom up phenomenon. Thus no reason to create appeals from top down. iii. Religion: if one kadi gives a decision based on divine power, then how can some other kadi question that decision? Plus the kadi system is kind of like arbitration where having agreed in advance to some things means you’re less likely to question the decision. iv. Each decision was a unique event but for the rich, if you didn’t like the decision, you could go to another kadi and ask for another decision. So despite the ideological lack of an appeal, pragmatically, there could be appeal. a. Ottomans running a Muslim empire but not imposing their particular version of Islam on everyone. b. But for their core interests, they didn’t leave them to the will of the religious authorities. c. Key interests: taxes, military and conscription etc.  thus Ottomans had some needs which caused them to create some system of appeal d. Every soldier reported to the sultan, thus disputes for them required the sultan or politics to intervene. They were not left to the ordinary Kadi process. The sultan asserted his power to hear disputes among his own staff. e. Collecting taxes will also lead the govt to be pretty engaged in society. Agriculture could be taxed but that might be trickier b/c it requires making a deal w/ citizens. (Contrast w/ Saudis who tax oil, which they already own—maybe why oil regimes tend to be dictatorships). But did have to tax agriculture and land. Land is something people fight about. Thus tax authorities can’t just restrict their jurisdiction to agriculture since that in turn will depend on who owns the land—thus there’s a need to resolve ownership disputes. The Ottomans eventually set up the mazalim jurisdiction, an administrative appeals system for taxes and resolving land disputes. f. Shurta:state officials and police in charge of keeping the peace but that varies across time and place. But are not relied upon to solve disputes per se. Give some sense of criminal law. g. Muhtasib: marketplace txns; so some appeal through admin channels of the empire h. Success of the empire depended on having some hierarchical structure to resolve internal disputes. i. Thus for religion and Kadis, they are handling mainly family disputes. j. There’s a class of kidnapped slaves and raised to be loyal to the sultan. They are valued b/c they aren’t loyal to anyone else and are useful b/c they can be indoctrinated to carry out the admin needs of the sultan. PART V: ROMAN LAW 9. Roman Law April 22, 2009 Civil v C/L law 1. Civil law: code law vs case law systems but that one is important is a stereotype 2. Legislature is more important than judges for civil law jurisdictions; most people don’t know judges’ names. 3. C/l: most know judges’ names; legislature less well-known 4. Role of scholars: pretty unusual that scholars have such a major impact on the law; scholarsturned-judges are influential. 14

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A. Civil system: scholars play a bigger role to help articulate what the law should be and what it is; have more influence 5. Romans: great lawyers, very influential. We tend to think of it as code law but it doesn’t start out that way. It begins as kind of a system of a arbitration. A. Udex B. Praetors: announced what the rules would be; begin to apply rules in the same way and create uniformity Roman law history: 1. Early on, laws were very specific instead of being articulated at a higher level of abstraction. Ie a law about a contract for dates instead of just K law. 2. But increasing abstraction of law becomes important and influences other legal systems. 3. Class probs: A. Patricians: upper class; have a monopoly on important city officials; thus early on, only Patricians could be praetors. B. Plebians: lower class and mostly shut out of power C. As the praetor position became more important, there was more pressure for lower class members to want to know or understand the law. Class strugglethus the Praetors/Patricians write the 12 Tablets. 12 bronzed tablets placed in marketplace w/ all rules written on them. D. Ideological importance: citizenry demanded transparency in the law and got it. E. None of the tablets survived so we don’t know the rules but the scholarly consensus is that these rules were also very particular and not very abstract. One suspicion is that they had a lot to do w/ procedure. 4. System is streamlined over time, leading to a jurisconsult. 5. Jurisconsult:a legal institution; these people were sort of like mufti; they were learned in law. Were usually people of social status. They advised Praetors about what their edicts should look like as well as commenting on particular decisions in the quasi-arbitral legal system. Are very important to the eventual crystallization of concepts that we now follow. 6. Concepts also inform the statutes and edicts pronounced by the emperor. Law develops in a kind of collective process. Justinian the Emperor 1. Great contributions: A. Codex: statutes in force B. Digest or Pandex: summarized, updated, codified and categorized the best of the jurisconsult opinions; wanted to make sure that his choices were the definitive choices. i. Codification is modernization of legal technologies; we codify when we think we’ve reached the definitive rule after some experience. ii. Is an expression of power though b/c reflects what Justinian thought was most important C. Institutes: textbooks 2. Key concepts developed by the Romans A. Divide the rules into the law of persons, of obligations and of things. i. Persons: about people and their interactions ii. Obligations: modern day torts and some kinds of K iii. Things/objects: many more kinds of K’s; about how objects should be treated B. Private law v public law i. Chinese: all law was public and promulgated by the emperor to keep order but not to facilitate private exchanges. ii. Term limits, veto and impeachment: Roman concepts on public law iii. Private: great advances to systematize concepts in property, torts and K: essentially facilitative of organizing private affairs 3. Why don’t we use this system any more? A. Roman empire is destroyed. B. Justinian’s digest emerged at the tail end of the empire and thus didn’t have much application in Roman Empire itself. C. But it’s discovered later and it’s how we view the empire. D. Digest is maintained in Byzantine empire to some extent. 15

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4. 5. 6.

7. 8.

E. But W. Europe undergoes the Dark Ages and so not much survived. They are governed by feudal system and gothic law. So why are France, Belgium etc are civil law systems if Roman law was cut off? Roman law during medieval era and dark ages, 11thcentury, is revived. In Pisa, someone discovers an old copy of Justinian’s digest. The rules are studied and taught in newly emerging universities. Roman law becomes the main subject of study. This begins the revival of Roman law. At this time, it becomes a kind of c/l for Europe. Judges and scholars are studying these rules and they return to their own societies armed w/ Roman law knowledge. It becomes a common set of rules that educated people all over Europe know. Roman law then becomes applied by local cts and institutions and feudal cts under the jus commune. Roman law becomes the common law of Europe. It’s not binding b/c the rules are being imposed but rather b/c it’s seen as the repository of good rules. Theme: A. Role of scholars at founding of codification, making choices of what goes into the digest and serve as the vehicle for the revival of Roman law. B. Importance of code: collection is a repository of important knowledge. i. Replaces everything that came before it in a kind of violent way. ii. Becomes a symbol of a concise place of where one can get what rules are good. iii. Reflects the process of picking and choosing what rules are good.

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April 27, 2009 1. Civil law evolution: A. Rome B. Reception (canon law, manor law, lex mercuatoris) C. Revolution 2. Roman law had tons of cases and scholarly discussion of the opinions was important to resolving disputes. So Roman law wasn’t entirely a civil law system. At the very end, Justinian’s great contribution freezes Roman law and codifies it. The 12 tables represent a kind of codification but there was no attempt to be systematic. 3. During Dark Ages, a copy of the Justinian Code is found and becomes the basis for European universities. A. The political system was decentralized—people from all over would study in the university then bring it back home and use it to address probs. B. It became a kind of jus commune—it was shared b/c it was a body of educational principles; it’s not promulgated legislatively. 4. The Reception: A. Waves of commentators commenting on the code. Again scholarly focus. B. Manor law: But this isn’t the only set of legal norms out there. There are other governing legal systems: i. Feudal system: hierarchical system, based in land. System of govt that predates the modern nation-state. You might have kings but their authority is limited. Your primary loyalty as a serf would be to your feudal lord. So if you had a problem with your neighbor, you were likely to go to your lord for dispute resolution. They developed their own legal systems. (“manor law”—very local law that would apply to you.) Not much known about this b/c not studied intensively. C. Canon law: law of the Catholic church; internal legal system. For residents of feudal Europe, might affect them. i. Catholic church owned a lot of the property. So some people were vassals of local churches. ii. Canon law would apply to you even if you weren’t a vassal b/c the theory was Europe was all bound under Catholic law. iii. Canon law governs: (not commercial) family law, secession and transmissions of states (estates?); criminal law D. Lex Mercutoria: market law i. Most people spent most of their lives in small areas. But for institutions of long term or long distance trade, fairs or markets would be set up periodically. ii. They can develop their own methods to sanction people who cheat. iii. In some K’s w/ parties from another state, you might write that the dispute will be governed by the law of NY but gaps by Lex mercutoria (ie merchant custom) 5. Revolution: changes this system A. Enlightenment: idea of reason emerges i. We could discover principles that would facilitate good governance; systems could be designed to facilitate the pursuit of happiness and law is a big component of that. ii. One shouldn’t necessarily rely on old sources of rules based in tradition, but that people were capable of coming up with reasoned ideas. B. Modern states are also emerging after feudal system breaks down. It’s replaced w/ the idea that each prince is sovereign in their own territory. Why does that matter? i. The unit of analysis expands: we’re no longer worried about just the manor, but rather the state. Internally, the prince is unconstrained to make the laws. Positive law. C. French Revolution i. Start calendar over at year 0 ii. Start new society based on reason. iii. Goal: come up w/ a progressive order, which includes getting rid of anything that’s old. iv. What does this mean for law? v. 1804: Napolean promulgates the Civil Code (Napoleonic Code) 17

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a. Reflected ideology that they needed to de-professionalize law and move it away from this specialized knowledge only in hands of lawyers and judges, whom the revolutionaries didn’t like. b. So turn this specialized knowledge into something that was clear, general and could guide everyone. This was hoped to be a substitute for the Bible. It was supposed to be easy to read and understand. c. Substantively, the Code Civil embodied revolutionary ideology. Status of all people will be equal and not depend on wealth or land ownership, give legal personalities to everyone. So that means you have to change the rules to liberate people. d. Every single person had a separate legal personality—to engage in K’s. Determine your own relationships based on your own will. e. Other legal systems we’ve studied gave rights and duties based on your status. f. Not fond of law in groups—want to create the modern individual in law. g. In French tradition, the constitution is being revised. Civil Code seen as central document for liberty. h. Code Civil unifies France into modern nation-state. i. Also important for rest of Europe b/c Napolean conquered the rest of Europe. But he didn’t conquer England thus no influence there. j. We say that they have codes and we have cases but of course they have cases also. Judges do interpret and make new rules but the French doesn’t acknowledge that their judges are making the law—their job is to “find” the right answer latent in the gen language of the code. 6. What is a “code?” A. Our codes tend to be compilations rather than replacements. The Justinian and Napoleonic codes replaced prior existing law. B. Code matters perhaps more than cases for civil law countries. But cases tend to be shorter opinions, discrete and sometimes just list see this part of the code. 7. We had a revolution at the same time. Why not adopt a code? A. Ideological divisions among the Framers. B. A national code may have been too scary to the anti-Federalists. Plus it might lead to a tyranny of the majority. So it came down to the c/l judges. If they had sided w/ the king, then maybe diff outcome. But the c/l judges had become a storehouse of liberty for the people. C. American Revolution also isn’t a revolution per se, no social transformation like the French Revolution. This was just to get rid of the King. The Americans weren’t trying to start from ground 0. 8. Germany A. Germany was a rather disunited region at this time. B. Some German thinkers wanted something like the French Civil Code. C. German Romanticism: intellectual movement that says that we Germans are a distinct people. Therefore, Germany should not be governed by a bunch of rules developed in France. Notwithstanding that Napoleon said his rules were by reason and universal applicability. D. The law for the Germans can come about by discovering what works for the Germans. Per Von Savigny, law is not universal but rather, is an expression of what it means to be German. They needed to figure out what the law of the German people is. After careful study of looking at custom and talking to people. Adopt the BgB. E. BgB i. This marks the revival of the scholar in Germany. In France, the smart rationalist legislature could come up with the right rules. But Germany required a bottom up deductive approach. Figure out what it is and record systematically in some order of principles. ii. Much longer, not meant to be simple or clear as France had intended. Wanted to find the best rules being used. Keep the good parts, get rid of others. Law is a distinctive expression of Germany and can’t borrow “universal principles.” iii. “Legal science”-inductive. Views laws as facts and norms. So scholars go find the facts and then theorize about them. iv. Didn’t have the unification that France did. 18

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9. If judges are on the wrong side, ie France, then the hope all falls on the legislature to come up with the universal ideas. 10. More civil law countries than common law countries. Thus a body of law kept by judges is not attractive to civil law countries. 11. A small number of jurisdictions are mixed: some influence of common and civil law. A. LA: still has a civil code B. South Africa

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April 28, 2009 Exam -take home w/ strict page limit -open book Judges 1. Triad: finding a third part to resolve disputes turns it into 2 v 1. Legitimacy concerns arise when you move from consent to an office for dispute resolution. 2. Judicial independence as a possible solution to the triad: A. If you think the person judging you is independent of the executive, then that might make it easier to swallow if you lose a case B. What do we want out of our judges? 3. Judicial independence from what? Largely structural. A. From judges above you—individual judicial independence (but career incentive system diff) B. Freedom from the lawmaking or political branches C. Independence from the parties; implicates judicial corruption—we want judicial impartiality and freedom from bias or favoritism based on irrelevant consideration like class, race etc. D. Independence from his own personal interests E. Independent from ideology at some level, w/o regard to some social policy; want them to decide issues objectively F. Life terms 4. Judges as good policymakers: A. We want them to be good policymakers B. Follow precedent b/c we’re suspicious of judicial innovation C. Then again, we want judges perhaps to depart from the legislature and protect minorities D. We want the judiciary to act as corrective measures. If you think they are wise men, then you might be more trusting. E. We want judges to make law but we don’t want them to say that they are making law. 5. Fairness and justice or accountability: judges have to be somewhat responsive to what people perceive as fairness 6. Judges should be intellectually elite, intellectually curious, relevant, informed 7. Judicial quality 8. Accuracy: judges make the right decisions, and that may mean we want the judges to have some special technical knowledge. De facto though, there is specialization. Ie, DE Chancery ct is good at corporate law, DC cir good at admin law etc. 9. Consistency/uniformity of principles across various areas of law 10. Extrajudicial institutions might be used to overcome judicial gaps. Career system vs Recognition 1. Career: take test and get on a judge track after law school A. Younger age B. Bureaucracy C. Judiciary is very large D. Lots more de novo appeal E. Opinions generally unsigned; some have no dissent. Reasonable judges can’t disagree; law is not an art; it’s a science and the point is to find the right answer. No reason b/c the individual judge’s voice or opinion doesn’t go in the opinion. The opinion just alerts the parties to the provisions of the code that is relied on for the decision. F. Status: lots of them, don’t sign opinion, don’t have a chance to show off their legal acumen 2. Recognition: appointed in recognition of already being a good legal mind A. Older age, after establishing one’s self somehow, academic or lawyer but have to prove sharp legal mind 20

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B. Maybe more meritorious; but the organization is not bureaucracy; “individual districts” system; making it to the fed judiciary, you are unlikely to rise to the appellate level; will probably stay there for life C. Judiciary is small, 1000ish max D. Appeals very hard; questions of law generally; usually not q’s of fact; trial ct judge has lots of discretion in large part b/c of reliance on jury and their fact finding. Trial is an event reflects the idea that you need the jurors to all be there and hear the same evidence. Stare decisis might compel more adherences to precedent leading to uniformity. Thus having a well-reasoned elaborate signed opinion w/ dissents. E. Status: you only get the job b/c you have high status. Once judges get the job, they sign the opinion, thereby promoting their jurisprudence.

Recap 1. We characterized the judiciary: A. Career B. Recognition i. Not a lot of judges so appeals are restricted. ii. Hiring non-fresh to become judges maybe leads to better judges who wind up being well-known 2. Evaluate these models based on the things we want out of the judiciary. A. Consistency: i. Recognition: a. Might be concerned w/ making a name for themselves once they become a judge so are more likely to be more creative or diverge from consistency. b. Less consistency but that may depend on diversity of the judges themselves ii. Career: a. Large pool of judges so maybe less consistency; but if all are following the same code of law and less of “making law,” then maybe more consistent; structure of appeals ensure that B. Diversity: every system has political filters i. Recognition: a. Geographic diversity b. Political diversity c. English system: not a lot of educational diversity; all go to Oxford/Cambridge; few female and minority judges d. US: wants to lock in their judges picks when openings come up. e. But if the system is dominated by a single party, then you don’t get political diversity on the courts. ii. Career: a. Have to get into the judge track from a test taken very early; is a very difficult test, so perhaps not great diversity C. Providing more judicial independence? i. From what? ii. Recognition: a. US 1. Politically appointed but life tenure 2. Impeachment for egregious behavior 3. Fed dist cts have tons of discretion when they aren’t dealing w/ major hot button issues. 4. Keep relatively free from other political branches? A. Judges are always engaged w/ legislature b/c judges are interpreting; if they get too out of line, legislature can change the law (Law is easy to pass in England b/c of party discipline and alliance b/t PM and majority party in Parliament) B. Life tenure maybe insulates judges a bit C. Poker game: in any local community, judges are playing poker w/ others. D. Enforcement 21

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E. Change the constitution F. Manipulate jurisdiction G. Court packing H. Budget 5. Judiciary might not be as independent as we think the whole institution is b. How do you get to a high quality, independent judiciary? 1. Judicial corruption occurs when the judge is so independent of the politics of political structure 2. Japanese are so worried about the appearance of impropriety so they don’t play poker w/ other people in their community; tend to socialize w/ each other to maintain independence iii. Career: a. Japanese judges punished for being “too independent” and advancing their own ideology b. Doesn’t have much independence; more pressure to conform from above. c. But it does provide independence for the judiciary as a whole. iv. What should Burundi pay attention to, to make judiciary independent? a. Salary: high salaries means protected and job security; but high salaries might incentivize people to adjudicate in a way that preserves that salary esp since there’ll be high competition for high salaried judgeships b. Judicial appointments vs elected judiciary 1. Elected to enter vs retention election which is more advantageous; incumbent has advantage 2. US only country that uses judicial elections—promotes accountability; better reflects norms of the state; legitimacy 3. Practically, do people really know what judges they’re voting for? 4. But despite elected vs appointed, there doesn’t seem to be much diff in jurisprudence, except for DP. The DP position tends to matter. Hard to elect non-DP pro judges in jurisdictions that have the DP. c. Competence? 1. Based on the relative satisfaction of the litigants? 2. Uses a lot of subjective indicators. 3. Very difficult to determine. 4. Best international studies tend to rely on structural characteristics that we think are good to guarantee judicial independence. 5. Look at culture? Default solution that are setting up judiciaries: set up a judicial council 1. JC: a mixed body which contains some judges + lawyers, prosecutors, politicians etc. that is responsible for some aspect of judicial management. 2. Usually appointments, may also handle promotions and discipline. 3. JC is created w/ input from diff political branches and the judges; meant to protect judges from political influence in places where fascism was a prob, ie Italy 4. But JC’s have also becomes tools of judicial manipulation. 5. Does not do a better job of ensuring judicial independence. PART VI: COMPARATIVE PROCEDURE Procedure 1. Lay procedure vs professional procedure 2. Adversarial vs inquisitorial procedure What is procedure? 1. Rules of evidence 2. How the court proceedings are conducted 3. How do claims get on the docket 4. How are claims shortened in some way, ie dismissal or SJ 5. Appeals 22

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6. Executing judgments 7. What values are incorporated into procedure? A. Uniformity B. Efficiency and economy C. Fairness i. Equality ii. Notice and opportunity to be heard—procedural due process D. Accuracy i. Tension b/t accuracy and fairness ii. Statute of limitations a. Degradation of evidence possibly b. Efficiency that if you expend more resources on older cases, you neglect newer ones 8. Is procedure substantive? A. Dictates the outcome of many cases B. Most criminal law systems of many societies are quite similar substantively; but enormous diff on procedure. C. Reflects social policy D. Reflects crime rates E. More variance in procedure—reflects local value choices 9. Iceland: have to pay your judgment or anyone can kill you – a kind of procedural rule for example. 10. Ordeals: a kind of process to ferret out truth-tellers and liars. 11. Battle: hiring a champion to make your case for you; the winner of the fight is in the “right” in the dispute 12. Many of these “supernatural” procedures seem to disappear w/ the rise of the great religions A. Odd B. Kind of switch towards emphasis on witness testimony in Islam for example; lots of rules on who can serve and the oaths they must take; their connection to the dispute etc. C. Alternatively, you might think that supernatural methods are ok b/c god will intervene on behalf of the one in the right. 13. Our demands on evidence change. The most crucial form, the confession, lead to lots of torture to get the confession out. Confessions are useful b/c they come from the only person who knew the whole truth. It emerges as a product of higher stds of evidence—it’s a medieval idea, not pre-modern. 1. Person making decision is not a professional; is relying on his own knowledge. 2. Ie, using a praetor and the iudex. The Roman procedure is more of a lay model than a professional model. 3. The professional model emerges in the medieval era in the Catholic church; is rooted in canon law. Around the 12thcentury, Catholic church came up w/ inquisitorial procedures. Idea was that canon law administrators, themselves priests, no longer needed to limit themselves in terms of claims brought by parties. They could on their own, conduct investigations, find out what they need to in the search for truth to administer god’s law. A. When they were doing so, they were acting as inquisitors by inquiring into the factual situation was. B. Abusive inquisition: a real suspicion that converts weren’t real converts so you need an inquisition to figure out who was really a convert and who wasn’t a sincere convert. (This is like civil law systems where the judge takes an active role in figuring out what the truth is.) C. China had some torture + inquisition, very bureaucratized to find out the truth but for less beaurocratized societies, adversarial systems were the norm. D. French/Normans invade England. i. They had a more minimal conception of the state so they employed locals to become sheriffs. ii. The Normans ride circuit and go around to diff parts of England to hear all the cases. So very early on, the English diverged from the Catholic bureaucracy of mainland Europe. Used the lay model of procedure. 23

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iii. The reason that when the Normans show up once yearly, they don’t know really what’s going on in the town so it’s more attractive for them to use local notables to tell them what went on, ie juries. iv. So early juries provided information on what was going on. v. Decentralized system; evolved slowly b/c no revolution. vi. Complex ct system: Exchequor, Court of Common Pleas, King’s Bench a. Why’s this called common law? It was the only law that was common to all of England even though there were local customs and norms. vii. By 14th: petit jury emerges. Lay vs professional systems Origins 1. Lay: folkmoot: decentralized, bottom up; people announce what they know themselves 2. Professional: Canon law; becomes popular Publicity 1. Lay: system where trial is a public and open thing; less likely to rat on people in the public eye 2. Professional A. Inquisitorial B. Why is torture covert? Early on, torture occurred publicly. But inquisition torture is private b/c it’s not torture to demonstrate or deter, but rather, as a truth-finding function. An inquisitorial system destroys social trust b/c it encourages people to squeal, break up social relations, isolate people and get them to lie or tell the truth about their neighbors. C. The greater affinity to your god and church might make you more likely to speak up b/c you think also that if you tell someone what you’ve done, you’ll be “forgiven.” 3. Why have? A. Makes judges accountable to majoritarian rule How does the evidence or testimony brought? 1. Lay A. Oral proceedings B. “Concentrated trial”-trial is a concentrated singular event; all the parties are brought together, in a relatively concentrated time period, we resolve the problem C. Is concentrated for the convenience of the local decisionmakers 2. Professional A. Written dossiers and evidence B. Is produced even today in civil law systems; since trial isn’t being conducted by ordinary people, it’s more permissive to move away from the concentrated system; since one appearance before the judge is just a motion. C. How is the dossier comprised? i. W/in the judiciary, there will be not only judges who decide the case, but also “investigative judges” who put together the authoritative written dossier on what you have done. That will involve asking the cops what happened, going w/ cops to investigate the crime scene. The judge himself is doing the investigating and thereby making some key decisions about what can be done, ie cops may have to ask the judge what to do and judge will yay or nay it. ii. It’s as if all the law enforcement people are on the same side w/ the goal of finding out the truth. iii. Investigating judge might also interview the accused, witnesses etc. all before case starts. iv. The prosecutor’s role is to define the charge, bring the charge and argue the case in court. v. The dossier then in fact becomes the dispositive form of evidence to be used at the trial. vi. Much less emphasis on separation of powers. vii. The investigating judge is usually not the same person as the presiding judge. 3. Adversarial: evidence is brought by the parties; judge plays lesser of a role. A. C/L systems or lay models have more finely defined rules of evidence on what can be introduced. 24

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B. Background rule in inquisitorial systems is that judge can freely evaluate the evidence and give diff weight to diff aspects of the evidence. C. US rules of evidence has lots of rules to test the reliability of evidence an allow some in and some out. D. W/ lay decisionmakers, the assumption is that they can’t be trusted to freely weigh and evaluate thus the judge serves as a gatekeeper function and informs the jury to some extent on how to consider evidence. E. Singapore: has no jury but is a c/l lay system. 4. But many civil law systems are hybridizing and using juries or elements of the c/l system for certain kinds of cases, ie serious criminal cases, ie Japan, Russia, Germany. Prediction is that we should see that as you move more towards the lay model, finer rules on evidence. 5. Differences in privilege: A. Lay: i. Lots of privileges, self-incrimination, spousal—give privilege when you think there’s an incentive to lie B. Professional i. Given for diff reasons, to protect the institution of law -Lay model: assumes that people are lying -openness: harder to lie to lots of people than to one -C/X: if you’re lying, you’re going to break down -Professional: assumes that people are telling the truth; part of this has to do w/ the origins of confession and speaking to a priest; system also assumes that the judge is there to not just look at you, but to everyone, so truth will come out. Also, only have to convince one decisionmaker. 1. Adversarial vs inquisitorial procedure 2. Corresponds closely to lay and professional models, though not be perfect. 3. What do these distinctions tell us about the ideas that underpin the states that they are found in? A. States change over time thus their systems don’t correspond tightly w/ the adversarial or inquisitorial procedure? B. Adversarial: i. Ideological basis: distrust the state, so put adversary system on same level w/ state ii. Parties themselves reveal the “truths”—the truth is created by clashing perspectives and the truth will come out; so we determine the winner in a contest, which then leads to a “truth” iii. Pragmatism: there aren’t predetermined truths, we work it out by dialogue and what works in practice C. Inquisitorial i. Greater trust in the state ii. At the same token, in this system, you could adjust the burden of proof so that the burden distribution looks closer to the adversarial system iii. It tends to be the case that in societies w/ inquisitorial systems, the state plays a greater role in the market and is a more activist state in the economy by actively leading and directing the state in market affairs iv. Judge has a greater role D. Lay i. Have to rely on local and community norms ii. Juries have lots of discretion but we think they are competent to answer some kinds of questions; their stds reflect “local community standards” which is good b/c it’s the kind of question for which reasonable people can disagree; shows the idea that law should reflect society instead of imposing a dominant view (whereas in the professional case, the answer is imposed and it reflects national or state ideas) E. Professional: i. Better bureaucracy ii. Need lots of professionals and hierarchical systems of control iii. Writing to control 25

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iv. More uniformity and crowding out of local norms in favor of national or state norms; norms are imposed rather than created from the bottom up v. “Right answers” are able to be determined through a sort of scientific inquiry about the law vi. w/ criminal justice systems that have constrained resources so de facto they might result in plea bargaining (whereas ordinarily settlement is discouraged) 4. Jury Study from 1960’s A. In any proceeding, don’t know the actual truth and can’t send the same case through both judge and jury systems. B. Judge and jury agree on the outcome of the case 80% of the time. C. So 20% of the time, there’s disagreement and from that, we can’t tell which one is wrong but one of them is wrong. So how do you figure out which is what? D. So the study examined rates of bias as to that 20%. (conventional thinking is that the jury and judges prefer the plaintiff) i. Showed that there isn’t bias towards one side or the other ii. Propensity to award higher damages by juries. E. Suggests: i. No systematic diff among judges and juries w/in the adversarial system ii. But hard to generalize this to the professional system 5. What would people prefer, an inquisitorial system or the adversarial system? A. Have mock trials under each system and ask what people would prefer. B. Results: regardless of what country you come from, people tended to prefer the adversarial system. (Except for China) C. What explains this preference? i. Voice and getting to present your case has value; very important! Idea is that people are very concerned about procedure than substantive outcome or than winning/losing. Being able to present your case to some extent matters more than winning or losing. ii. Judge viewed as a neutral b/c he’s not on the side of any truth finding PART VII: COMPARATIVE JUDICIAL REVIEW 1. Canon law: idea that divine law is higher than any man-made law 2. The emergence of nation states lead to pressure to develop positive law or the law of the state, which may clash w/ higher or religious law. 3. Islam/Christianity/Judaism had two realms of influence: man-made and divine and to structure the man-made law so not to clash. 4. Chinese: A. Had some notion of heavenly constraint B. But no one would describe the li or the mandate of heaven as being institutionalized in any notion of law C. So you’re left w/ a system of law where all law is positive and comes from the emperor 5. Islam A. Primary source of law was divine, as spoken through the religious authorities B. To be called law, it’s divine. 6. If you have either Chinese or Islamic systems, you’re unlikely to develop judicial review. Thus JR is a western idea. 7. Why does judicial review develop? A. After Christian schism happened, two sources conflicted: law of god and kings’ law but neither was in a position to dominate over the other B. It’s a situation of multiple sources of law, which in some sense requires some authority to resolve disputes and to say which shall prevail when they conflict C. It never manifested itself though b/c after the Peace of Westphalia, you give up the idea that god’s law constrains princes; there’s a push towards positivism. D. In England, c/l tradition develops and is a bit distinct from laws made by the king/Parliament. Judges are set up very early though are officers of the state. i. But the c/l develops out of the authority of being a judge. ii. So what happens when a parliamentary law conflicts? Parliament wins, it reigns supreme. 26

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iii. This set up is the product of a big fight b/t judges and Parliament. iv. Dr. Bonham’s Case: said that c/l was the top source and Parliament is secondary, but this idea is never institutionalized. After much fighting, Parliament emerges as the supreme actor in England. 8. Why does this emerge in the US? A. Notions of higher and lower law. For the Framers, it’s the idea of natural law and these rights exist and should trump any order of the King or of Parliament that infringed on these supreme values, which are discoverable through the exercise of reason B. US as a contract society/Locke’s social K idea: state exists as the product of contracting; individuals give up rights and liberties to the state in exchange for protections but rights not given up are retained. K’s need enforcers—hence supreme judicial review might be more necessary. (judges are the same people who enforce regular K’s and cts were seen as legitimate actors) C. Marbury: first national constitution; doesn’t invent judicial review; striking an act of legislatures had been occurring regularly as is, and fed ct had regularly struck state laws for being incompatible w/ the Con. It was seen as a natural progression for Marshall to take the additional step that the SC can strike the laws of the national govt. i. Ordinary cts have the ability to strike down laws for being unconstitutional. ii. Seen as the first real case for judicial review that cts ought to be able to strike incompatible laws w/ a written constitution. Prelim points 1. Great prob of discussing jud rev –it’s never mentioned in the US Constitution + the judges who exercise the power are elected and of dubious democratic legitimacy (the countermajoritarian difficulty) 2. There are alternative ways to design judicial review that maybe get around the countermajoritarian difficulty and enhance judicial review. 3. Early on, SC used judicial review for separation of powers and federalism issues. In some sense, early on, the SC following the triadic function. The Court is deciding issues on allocation of power b/t Congress and the executive as well as definitions of power, ie scope of the commerce clause etc. A. Thus you need a triadic figure in order to help allocate power and define power. B. How does the Constitution become a protector of rights? This is a relatively late development in the US for con law. Austria in 1920 1. Hans Kelsen, accomplished legal theorist; wrote the Austrian constitution 2. Austria was a federalist country which necessarily creates a line drawing problem in b/t spheres of power. 3. For Kelsen, it was important for the legal system to have a hierarchy of norms. A. At the highest level is the constitution  which sets up how to pass authoritative statutes, which by definition are likely to fulfill the powers allocated in the constitution itself  judges interpret the statutes. B. So judges in this system don’t have the authority to be the top interpreter of the constitution as they themselves are the creation of the constitution. –positivist law: law is in the command of the sovereign or legislature. So judges aren’t above the con, and thus can’t decide whether and when the con trumps the legislature. C. Ours is a natural law c/l idea: embodies the wisdom of the ages and judges in our system are the speakers of the common law. Thus a judge’s authority arose from something other than pure statute—their authority derives from the c/l. D. So in Kelsen’s system, who guards the constitution? Can’t be the legislature b/c they too are the creation of the highest source of norms, same as judges. i. Special constitutional court: also a creation of the constitution; but by segregating them from ordinary judges you avoid the prob of giving lower level authority to trump higher authority. ii. Special CC would only judge constitutional issues. iii. Constitution is seen as a bargain among the various states and b/t the states and fed govt, which explains why Austria adopts this and a non-federal country like Belgium didn’t accept this. 27

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iv. (In the original Austrian con court, they could only resolve only intra-govt disputs, no use of individual litigants.) Germany, post WWII 1. The German CC fused Kelsen’s idea of where the institution should be located w/ natural law ideas in the German constitution. Strong need for the legislature to be controlled. 2. Transitional societies face the prob of purging most of the old regime but keeping some in order to staff the new regime—that’s why they often go for strong centralized administration b/c don’t want the few people who remain on, but in lower level positions, to be doing things like interpreting higher law. 3. German constitution lists lots of rights + institutions like the CC to protect those rights. 4. Lots of diff ways for cases to come before the GCC: A. Anyone can get to the German CC; don’t need to be a litigant—standing is far more open there. (In the US, only litigants can get to the SC) B. Case goes to an ordinary judge; if constitutional issue to be decided b/t person-litigant and another, ie the state, (the ordinary judge can’t decide con q’s, can only apply the law), ordinary judge sends the issue to the Con Ct who issues a decision in the abstract. Then the judge applies the decision. C. Constitutional Complaint: anyone who thinks con rights have been infringed (not necessarily by the person sending the complaint), can send a complaint directly to the constitutional court. If the CC finds that there’s a con question, they’ll take the case and issue the decision. Most complaints don’t get through—only 2.5% get through. 5. Ancillary powers of the GCC A. Can impeach public officials, resolving electoral disputes, have the power to regulate whether or not a particular political party violates the constitutional order (ie to prevent the rise of a new Nazi or communist party who wants to overthrow the system) B. GCC is a “guardian” of democracy even though it’s countermajoritarian ie by disallowing the Nazi party to form. 6. Some parts of the GCC (applies to some other con cts too) are unamendable even if an amendment follows the right procedure—idea is that you don’t want some rights or liberties to be touched b/c they are core to some other value. (Judicialization: big political q’s ultimately get answered by the ct—ie if the majority passes an amendment that changes an unamendable provision, then a CC can strike it down even though it passed democratic processes) 7. Timing: A. In the US, you can only mount a challenge once the law has been applied on some way B. Germany: don’t need to be a litigant or even wait until the statute has been applied; you can challenge it in the abstracteven if no injury has occurred yet or can be claimed. GCC also hears cases after application. 8. Appointment: A. US: Prez + Senate: cooperative/supermajority method B. Germany: similar to our system 9. Term limits: A. US: life B. Germany: 12 years 10. What happens when the Court declares a statute unconstitutional? A. US: stays on the books but becomes unenforceable (“disapplied”)—in a c/l system w/ precedent, it doesn’t matter if the statute is on the books, b/c it will not be applied or upheld by the courts (who are following precedent) even if the exec tries to enforce it. B. Germany: unconstitutional statute is voided and is taken off the books. 11. Germany married con review to rights protection. France 1. France won WWII so they didn’t have this ideology that they needed to protect themselves from themselves. And dating back to the French revolution, they carried the idea that unelected judges shouldn’t have power over the democratic branches. 2. So it would be unnatural for them to adopt any form of con review. 3. But it emerges anyway—relatively late—1958: creation of the 5th republic. A. After WWII, France sets up a parliamentary republic which doesn’t work. 28

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4.

5.

6. 7. 8. 9.

B. They continue to be colonial in Algeria. In 1958, there’s a coup, de Gaulle (hero of WWII) says he’ll save France but they have to let him write a new constitution. De Gaulle’s theory of con review: A. Not concerned w/ rights per se; wanted to ensure that the legislature was weak. Parliament was bad but the executive was set up as the primary locus of political authority. B. Exec: had lawmaking power over a whole host of things; by exec decree, the exec had control over many issues. In de Gaulle’s opinion, these were on par w/ the authority of statutes. C. So w/ two sources of lawmakers, there’s a prob of who wins when they clash and what is the jurisdiction of authority? D. De Gaulle creates the Constitutional Council, whose sole job was to keep the legislature in its box. B/c he’s not concerned w/ rights, he wasn’t concerned w/ ensuring that people had access to this court. Thus individuals have no way to get to this court. E. The FCC would ONLY hear complaints brought by state bodies (as designated in the constitution) about laws passed by the legislature but not yet promulgated. Are limited to pre-promulgation review only. i. Thus the FCC can send legislation back to the legislature for revision before it is promulgated and becomes law. ii. W/o individuals bringing cases, the review is occurring in the abstract. iii. Pre-promulgation occurs after legislature has written the law but before the prez signs off on it. iv. (Now if a con issue comes up after the law is passed, then the French can use the ECJ or European Court of HR). This political scheme changed radically in 1974, among the people who could challenge the law, that included any group composed ¼ of the legislature; this lowered the threshold of people needed to challenge the law. Politically, after this change, lots more laws were being challenged. Changed the dynamics w/in the legislature b/c lead to coalition building and coalition fracturing. 9 year terms for judges on the FCC. Last summer, France amended its constitution as to whether Sarkozy could show up in the legislature and give a state of the union address. They decided he could and then changed the scheme so that the FCC can hear post-promulgation cases. Court of Cassation: is a high court that supervises lower cts. Counseil d’etat: a body made up of senior bureaucrats; highest admin law court; can review admin rules and exec decrees before they are promulgated including as against the FCC; but they are not judges

Generally 1. Germany model is more popular; French scheme hasn’t been that popular b/c it’s not rightsprotective but has been adopted in ex French colonies. 2. Important to understanding major trends in global society: judicialization of politics: political q’s are increasingly decided by cts not only at the national but supranational (international) levels 3. Main probs that arise in countries like France are coordination problems b/c the supreme court and the Constitutional Ct. 4. Might be problems for treating the Constitution as reserved for the cts only. PART VIII: LAWYERS AND THE LEGAL PROFESSION Lawyers A. Appear in court (lawyers tend to have a monopoly over this) B. Draft docs, K’s, wills, txns among private parties or govt parties C. Lawyers, who influence judges in law-making, are sort of law-makers D. Provide legally informed advice in light of the law E. Govt lawyers monitor or investigate for compliance, of companies perhaps F. Negotiate for their clients G. Teach, inculcating an ideology 29

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H. Can become politicians (if legislatures are policymakers, then lawyers are trained to understand policy; lawyers can also act as intermediaries b/t the society and the state, ie lobbyists). -our system is somewhat unusual is that on one dimension that we diff is the internal organization of the profession; lawyers don’t always have such prominent roles -internal organization is very diff; our system is very unified; you can become a lawyer, prosecutor and judge; it’s one profession that unifies all those positions; but it’s a social construction -in other jurisdictions, can be divided into diff professions: -judge profession -prosecutor profession -advocate profession -other professions in other countries that do what we think lawyers do: -notary: drafts docs for certain kinds of txns (in the US, notaries just validate docs) -barrister-solicitor -barristers: can only appear in court as advocates; can’t deal with clients directly first; have a monopoly -solicitors: play other legal roles; client goes to solicitor first and then solicitor will take the case to a hired barrister—a screening function. -why? Specialization and expertise. Protects the industry to preserve their monopoly. A. Japan, UK and US: all democracies but have diff ratio of lawyers to judges. C/L countries tend to have a lot more lawyers per capita. 1. Japan has 2 judges per 100k people, France has 10 per 100k 2. Are these stats useful? a. Japan has lots of people trained in law but didn’t pass the bar and are not lawyers in that sense. But the trained law non-lawyers are hired into companies, govt etc and act almost as in-house counsel, doing the same thing as the lawyers who passed the bar. But they aren’t counted as lawyers and the stats don’t reflect that. b. But it’s true that having fewer people licensed to go to court means there will be less litigation, which contributes to the idea that Japan has lesser rates of litigation b/c of these constrained resources, not b/c they are a “harmonious society.” B. All modern societies have a need for the people that we call lawyers 1. What explains the variation of societies over time of the number and variance of lawyers over time? 2. Large imperial powers leads to a need—bureaucracy a. Large bureaucracies; state officers in charge of things will lead to a demand for help for people to interface w/ that bureaucracy b. Explains lobbying: govt allocates resources through rules which have distributive consequences. Companies and interests need help to guide them into picking what rules work for them. 3. Large geography might need lawyers for facilitating txns when people are doing impersonal K’s; b/c the two parties are subject to the same imperial power, makes sense to use a lawyer to guide the impersonal exchange (ie impersonal markets) 4. Impersonal markets: a. Specialization develops b. Freedom from local communities or norms that you might be bound in 5. What is likely to dominate, markets or bureaucracy? 6. E. Germany has more judges than lawyers per capita; what are they doing?! A lot of is the crim law functioning—social control. Not social control or judicial lawmaking, but in a totalitarian state, are doing crim law. Such a society would be afraid of attorneys b/c the govt doesn’t want people questioning or competing to change or interpret or re-interpret the law. a. Govt also creating backlash against lawyers in China who push for something other than what the govt considers optimal. So China allows lots of lawyers to come up but will bear down heavily on rabble rousers. 7. When markets (and industrialization) play a more dominant role in society, ie in the US, might be more of a need for lawyers based on the needs of the market. 30

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8. Singapore and China show the risks of having agents to intervene, ie lawyers. Sometimes, lawyers, who know the system, will use it to lead to outcomes that they want but that are perceived as threatening to the political system. 9. A lot has to do w/ timing. There was established legal professions before bureaucracy and the govt was created. 10. We’re ok w/ the “truth” and public policy being set by cts and lawyers using cts to advance particular social claims. We’re ok w/ the adversarial process leading to “truths” and public policy. 11. Other states have a vision where the state’s govt is the whole of the public good and thus rely on the state govt for more to do w/ setting policy and determining social change or social forces. 12. Diff b/t lawyer-driven markets and societies where bureaucracy controls -Legal Academics—gap filling for the codes in the system A. Treatise written by leading practicing lawyers can then be cited authoritative in cts in civil law countries. B. Why is it diff in civil law countries? 1. If there’s no stare decisis, and not going to rely on cases, then might as well ask the professors and rely on their treatises; treat the opinion and treatise as persuasive opinions when there’s no stare decisis 2. Competition for academic opinions is very intense; those are some of the top legal minds in the state. 3. Historical story: in many countries, it was these profs who were writing the codes in the first place. If that’s the case, might be more natural to let the scholars fill in the details. 4. Plus if the cases don’t have precedential value, then the stakes might be lower so less drama if you use an academic source as authoritative C. Seems akin go the Restatements 1. But the restatements are restatements of crystallized law and existing cases, so less discretion among the authors in the ALI Prosecutors A. Distinct branch and institution and function, as from an inquisitorial judge going and trying to find out what happened. If you have an inquisitorial judge doing all that work, then less work for the prosecutor. B. Prosecutor is a post-French Revolution thing. 1. Before then, might’ve had a gen state officer who brings the criminal to the ct 2. But then the ct does the trial on its own. C. Distinctions among prosecutors in diff systems 1. Civil system prosecutors: appointed at a young age as a prosecutor; move around w/in or up through the ministry of justice. Serve in a bureaucratic and discrete hierarchy. 2. US’ prosecutors: a. Might be a political stepping stone b. Once you get in, you might stay for life; is a kind of bureaucratic job and a profession c. Highest level of prosecutors or AG’s at state level: elected or appointed by governor 1) If elected, is elected as a separate office from the governor; they might be prosecuting political corruption so w/ direct accountability, want them to be free from political influence 2) Prosecutors have tons of discretion so some accountability, either through public pressure or reelection incentives etc might help them fulfill their duty of prosecuting 3) Diff maybe based on incentives? Elected vs appointed? 4) Hypo: what if we had the rule of mandatory prosecutions? A) Might have an impx on the types of laws that get passed B) No discretion might lead to more detailed statutes C) Might not have any plea bargaining (which in civil law systems is seen as a great distortion of the justice system) D) You can have a rule of no discretion but in the implementation of the law or the allocation of functions, you can’t functionally get rid of discretion. 31

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3.

4.

5.

6.

E) Short term FX: incredible crowding in jails and on dockets So how do countries like Germany get away w/ not having discretion? a. They aren’t formally engaging in plea bargaining but functionally there do have screening processes to get “minor” cases out of the system. b. There’s a rule to exempt “minor” cases from prosecution and prosecutors use it to get rid of cases. Japan: considers it terrible to have plea bargaining and they say they like mandatory prosecutions a. But they tend to only litigate cases where they think they can win b. They also have a tendency to push cases outside of the legal system, ie forcing an apology or restitution and then ex post saying that there’s no legal issue. c. It’s in line w/ their emphasis on socially re-integrating people and social harmony If you want to control prosecutorial discretion, you want police discretion to be constrained. It would help to have constrained police discretion and then prosecutor makes more decisions. Alternatively, if lots of police discretion, then they filter first before prosecutor gets it. US is an anomaly in amount of crime and punitive levels.

Law as a Profession A. What does that mean? 1. Compare to other things we call a “profession?” 2. There’s always competition over the boundaries of the profession. 3. As society becomes more specialized in division of labor, professions are likely to be formed. 4. Entails: a. Some talent maybe b. Specialized education and a degree c. Standards and regulation; usually self-regulated profession 1) Policing violations d. Protecting exclusivity of your own profession e. Not the same as a union 1) Can’t be kicked out of the profession the way you can be kicked out of a union but still have your profession of being a plumber 2) Are found in sectors of the economy that require “team production?” B. Professionalizing always has FX though: 1. Creates barriers to entry 2. Might reduce or increase supply and prices C. What distinguishes true “professions” from fringe “professions” 1. As a layman, you can’t evaluate the professional’s role or effort by just looking at the outcome. 2. Thus profession has to take on the role of having very specialized knowledge D. Others? 1. Journalist? Has a journalistic privilege 2. Clergy? 3. Compare to other countries to see what’s a true profession a. In other countries, bar associations can be very lax or informal and more club-like. State intervenes more and regulates. b. Anglo-American systems tend to have robust associations E. Hard to separate out merely monopolistic activity and regs as defining traits PART IX: US IN COMPARATIVE PERSPECTIVE A. Is the relevant distinction US vs everyone else or is common law vs civil law countries? B. Significant diff b/t the US and other countries: 1. Juries dominant here (England has almost gotten rid of the civil jury though it’s used in the crim system) a. Juror attitudes vary b. Forum shopping 32

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2. Contingency fees (as opposed to flat rate fee structure); lawyers play a first cut screening function when deciding whether to take a case a. Might not be popular that this will lead to higher damage awards b. If a society has too few lawyers, then that might be less incentive to take contingency fees b/c they have lots of cases to pick which ones to take on c. In other societies, fee shifting might curb some of the risk of taking on a lawsuit. 1) If we moved to a rule where losers have to pay, that might reduce the number of lawsuits or the number of risky suits 2) Less likely to take on low probability high value suits w/ novel case theories 3) High quality cases are likely to be brought in both contingency fee and loser pays systems. But for lower quality cases, if the lawyer is bearing the risk of the loss, then lawyers are less likely to take such cases on in the first place. Thus lower quality cases will get screened out. 4) For good suits though, increasing costs from discovery etc might drive out even good suits. 5) Good suits might also encourage settlements in the loser pays or contingency fee cases d. Punitive damages might increase suits. 3. US is set up so that litigation is promoted. Lots of litigation may also lead to innovative and creative movement in the law. C. US tends to be somewhat comfortable w/ a lack of uniformity and adherence to local norms, especially while we’re waiting to let things work themselves out. We’re willing tolerate a lot of diversity. 1. Pushback: stare decisis 2. Civil law jurisdictions tend to produce more uniformity as a matter of inclination, training and bureaucratic incentives D. Crim Law 1. US: tends to be pretty punitive given high imprisonment rates; higher rates of incarceration even though crime rates are declining 2. US one of the few countries to use the DP 3. Garland: crim law was an arena to express our desire to rehabilitate people, restore social order. Rational purpose of punishment is forward-looking (enlightenment idea on punishment). US federalized modern crim pro. a. And now we seem to be going in the other direction. b. It’s a reconceiving of crime as a zero sum game, not as a social prob but as an adversarial contest b/t victim and perpetrator. c. Rise of prisons focuses on incapacitation as a justification of punishment. 4. Fear of crime creates an externality of crime prevention costs to third parties, like alarms. Is also a major political issue. a. Victims’ rights pioneered 5. New kinds of sanctions a. Increasing conditions on parole b. Conditions are often given to debase or humiliate the defendant—shaming the defendant rather than relying on incapacitation. 6. Lots of self-help to prevent crime a. Gun laws b. Minute men 7. We still have post-release sanctions 8. Judicial discretion in sentencing a. Illustrates the power of the fear of crime as a political issue b. 3 strikes laws E. Accessibility of the law 1. B/c law is part of the popular culture here, the gen population does have a general legal conscience 2. But it’s not clear that de Tocqueville’s Napoleonic vision that everyone would carry a copy of the civil code was materialized. People in civil law countries aren’t necessarily more or less knowledgeable about the law. F. Legal Profession 1. In the US, is very powerful, specialized, is a profession, very well organized 33

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2. De Tocqueville likens it to the aristocracy—powerful, well-read, knowledgeable, have access to lawmakers. Lawyers have an impact on shaping the law judicially as well. 3. US never had an aristocracy but if every society needs an elite class, since there’s no landed elite class, we’ve developed a profession to be the elite class. Over time, the institutions become self-reinforcing G. Regulation 1. Across jurisdictions, the substantive level of admin regs is relatively equal across industrialized countries 2. US admin state imposes lots of sanctions and administrative oversight whereas other countries are less punitive about enforcement. 3. Content of regs a. Extremely detailed regulations; in part due to the high litigiousness of the US; also discretion is diff 1) We don’t trust inspectors for example, as much as they do in other countries 2) We might wind up paying for products and services more b/c the inputs require higher admin costs 3) We have adversarial implementation but we also rely on litigation to resolve disputes and claims b. Other countries differ in levels of specificity

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