Professional Documents
Culture Documents
PART I: INTRODUCTION
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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
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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.
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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.
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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
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
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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
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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
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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
-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
-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
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.
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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.
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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.
-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.
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.
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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.
9. Roman Law
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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
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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.
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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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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.
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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
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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?
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
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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.
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
-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.
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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
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.
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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.
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iv. (In the original Austrian con court, they could only resolve only intra-govt disputs, no
use of individual litigants.)
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.
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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.
4. 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).
5. 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.
6. 9 year terms for judges on the FCC.
7. 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.
8. Court of Cassation: is a high court that supervises lower cts.
9. 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 rights-
protective 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.
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
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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.
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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
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.
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E) Short term FX: incredible crowding in jails and on dockets
3. 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.
4. 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
5. 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.
6. 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
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
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Comparative Legal Institutions Outline, 2009
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
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Comparative Legal Institutions Outline, 2009
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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