American exceptionality Liberty, Egalitarianism, Individualism, Populism, Laissez-faire are in the opinion of Alexis de Tocqueville, the 4 distinctive

characteristics of the American legal system. - Liberty -> freedom of expression, even of criticizing the government. The jury is the body that can protect the individual from undue interference of the state: initially it was born to protect coloniesʼ citizens from the British government, but it has survived until current times and it is a fundamental institution in the US both in litigation between states & Federal government and in litigations between citizens and between a citizen & the State when an individual right needs to be protected (individual rights were incorporated in the US Constitution with the “Bill of Rights”, which was drafted for the explicit purpose of protecting the individual from undue interference of the State/Federal government - Also the right of a Trial, of a jury, etc... are Constitutionally granted rights => the US Constitution is the best one from a comparative perspective and it is often “imported” by new democratic countries). - Jury -> each individual has the right to be judged by his peers. The jury is a “fact finder”, that is analyses the case and gives a verdict, then it is the judgeʼs task to apply the law & decide the sentence - In a Trial we will have a plaintiff (or Public Prosecutor in the case of criminal matters) and the defendant with the respective lawyers, the judge and the jury. We can also have experts that can give opinion over technical issues, however, they are selected by the two parties and not impartially appointed by the State (as it happens in Italy for example and in Civil law countries in general). The jury, which doesnʼt have any legal background, is very useful for criminal & civil & social cases where it is easy to draw a distinction between facts and legal issues, while it is quite useless in Business cases which are too technical (e.g. “punitive damages” -> they are always decided by the jury, not by the judge, to send strong social messages - e.g. Mc Donald, Tobacco Companies). The jury decides the case based on the instructions given by the judge, that necessarily have to be followed (e.g. which cases to analyze as precedents) and that provide all the technical info: however, these are very general guidelines that do not have to influence the jurors at all because the jury needs to be impartial. To be judged by a jury is a constitutional right but at the same time it is a duty to serve as a juror if selected and it is not possible to resign. Moreover, it is not paid service, it is a service to the community). The Selection process -> a wide range of potential jurors is selected randomly (the procedures vary among States: drawn from electoral lists, from people having a driving license, etc.). From this great range 12 jurors have to be selected and a first selection process is made through a questionnaire drafted by the 2 lawyers (each type of question is allowed, however, they must be careful not to give hints about the case to be judged) and approved by the judge. The 1st screening is done by the judge, then the 2 lawyers will select 6 members each and there is only a limited number of refusals granted to the other lawyer in order not to accept a candidate proposed by his opponent -> the lawyers will ask questions to candidates and they will try to select the ones that seem to be more sympathetic with their client. Jurists are selected by lawyers with the assistance of their own counsels that interpret the answers & aptitude of the interviewed, under the supervision of the judge. The final jury is composed of 12 members, it needs to deliver a unanimous vote for criminal cases and a simple majority is sufficient in Civil proceedings: since it is composed of people so different between them, the final decision is likely to be impartial & fair. A party in a civil case or contract - business issues can give up the right to be judged by a jury in an ordinal tribunal proceedings and can opt for arbitration. In criminal cases it is mandatory to have the jury. - The Judge -> while one of the basic principles of Civil law is the independence of the judiciary & the impartiality & neutrality of judge, American judges are selected among lawyers and, except for federal judges, that are appointed, they are elected (as

controlled experts Weapons of the American Private Attorney General: 1) Clean Action 2) Contingency Fees 3) Punitive Damages 4) Extensive Discovery 5) No loser-pays rule 6) Civil law jury .Equality of opportunities (not of Results!) c) INDIVIDUALISM .Freedom from undue governmental interference b) EGALITARIANISM .Celebration of the “Common Man” e) LAISSEZ-FAIRE . in Civil law judges are selected through strict public examination) American Exceptionality: a) LIBERTY .“Anti-statist” desire for a passive government Procedural Exceptionality: 1) The Civil jury 2) Party-controlled pre-Trial investigation 3) Relative passivity of the judge 4) Use of party .g.Orientation towards rights of the individual d) POPULISM .politicians!): how can they be completely impartial?! (e.

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