Monday, February 10, 2014

Kagan on Ginsburg and Civil Procedure

Adam Liptak reports in the New York Times on last week’s appearance by Justices Ginsburg (Brooklyn) and Kagan (Manhattan) at the New York City Bar Association. A few of the funnier bits from Justice Kagan’s lecture involve civil procedure. From the article:

Justice Kagan also had a little fun with Justice Ginsburg’s writing and interests. “As a law professor, she was a pathmarking scholar of civil procedure,” Justice Kagan said, and then paused. “Pathmarking. Have you ever heard that word before? It appears in about 30 Justice Ginsburg opinions — although it appears actually not to exist. Oh well.”

Justice Ginsburg is also an expert in comparative civil procedure, Justice Kagan said: “She wrote what I am confident is the definitive American volume on civil procedure in Sweden. That’s why when the Supreme Court faces a tricky question of Swedish civil procedure, we always go straight to Justice Ginsburg.”

http://lawprofessors.typepad.com/civpro/2014/02/kagan-on-ginsburg-and-civil-procedure.html

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Justice Kagan would do well to read Justice Ginsburg’s book about Swedish civil procedure. She could learn a lot. Foreigners are willing to learn from us. Swedish jurist Gustaf Fahlcrantz investigated American civil procedure and came to the US to address the 1904 St. Louis Comparative Law Universal Congress on Iqhbal: “The Preferable Method of Regulating the Trial of Civil Actions with Respect to Pleading and Evidence,” available in the proceedings of the Congress at Google books at books.google.com/books?id=ff00AAAAIAAJ. Fahlcrantz wrote a book on civil procedure in England which I have, but cannot read: Om rättegångsväsendet i England med svenska paralleler‬.

Seymour Thompson, Holmes’ successor as editor of the American Law Review, invited Fahlcrantz to the U.S. Thompson was the author of one the first, if not the first, American trial practice manual (first edition 1889). He did not think too highly of the U.S. system. He dedicated his two-volume work to Fahlcrantz in the following words:

To Gustaf Edw. Fahlcrantz

That a distinguished Swedish advocate, after investigating the English system of trial by jury, should recommend its adoption to his countrymen, cannot but be regarded as a compliment to the English-speaking race. And yet while naturally partial to the institutions of my own great and prosperous country, I feel that it would not be becoming in me to offer the suggestion that the jury system of your country would be improved by adopting ours. …

You must further understand … that the jury which really tries the case is often composed of the most ignorant men who can be found in the community. When you consider that this body of twelve dolts, selected because they are ignorant of the facts of the case about to be tried, no matter how notorious those facts may have been, are entrusted with the power of judging of the law against the opinion of the presiding judge, and even in opposition to the Supreme Court, you will at least conclude,—however much you may be impressed in favor of the English system of trial by jury,—that, there is one feature of our American system which you cannot recommend to your countrymen.

Seymour D. Thompson, A Treatise on Trials in Actions Civil and Criminal, 2 vols., (Chicago: T.H. Flood & Co.: 1889) at vol. 1, pp. iv-vi.

Posted by: James Maxeiner | Mar 22, 2014 8:19:50 AM

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