Wednesday, July 29, 2015
I had the privilege this week of participating on a panel at the 2015 SEALS Conference that explored the question of whether Edward Snowden is a whistleblower or a spy. The panel members engaged in a robust discussion which examined (1) whether Snowden’s actions fit under a traditional model of civil disobedience; (2) the extent to which Snowden harmed national security; and (3) whether our current legal framework offers adequate internal avenues for individuals like Snowden to question the legality and wisdom of national security programs.
My comments focused primarily on question three. In this post, I’d like to briefly highlight that issue looking at U.S. law. In a subsequent post, I will offer a comparative perspective by looking at how European states address the issue.
While a good number of American commentators have called on Snowden to return to the U.S. to face trial, our current whistle-blowing laws in the national security field offer Snowden no adequate defense to his actions. Although whistle-blowing legislation in the healthcare, financial, and consumer products industries protects whistleblowers from retaliation and in some cases actually provides financial rewards for disclosure, whistle-blowers in the national security field enjoy less protection.
Although the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA ) creates a process for employees and contractors who work in the national security sphere to report matters to Congress, it does not fully protect those individuals who do report from retaliation. Nor does it cover civilian contractors like Snowden. The IWCPA also gives the agency directors the ability to limit the scope of external disclosure. President Obama attempted to rectify that problem with Presidential Policy Directive 19. However, the real problem for whistleblowers is that none of these laws protect them from prosecution under the Espionage Act. Notably, the structure of the act does not allow the fact finder to consider the defendant’s motivations for disclosure. Nor does the Act permit a jury to weigh whether the benefits from the disclosure to the public outweigh the damage done to our national security.
Harvard law professor, Yochai Benkler, has proposed a Public Accountability Defense for individuals who “violate the law on the reasonable belief that by doing so they will expose to public scrutiny substantial violations of law or substantial systemic error, incompetence, or malfeasance even when it falls short of formal illegality.” Benkler argues that this defense is necessary because the national security organizations themselves, like other organizations, are prone to group think and routinely discourage individuals from challenging the majority position. As Benkler points out, by failing to adequate provide a robust mechanism for external review, our current regulations insulate the national security establishment from public accountability.
Yochai Benkler, “A Public Accountability Defense for National Security Leakers and Whistleblowers,” 8(2) Harvard Review of Law and Public Policy, July 2014.
Daniel D’Isidoro, “Protecting Whisteblowers and Secrets in the National Intelligence Community,” Harvard National Security Journal, September 29, 2014. Available online at: http://harvardnsj.org/2014/09/protecting-whistleblowers-and-secrets-in-the-intelligence-community/
Thursday, July 23, 2015
A colleague, Professor Hongjun (Nick) Yao, recently told me about an interesting trade dress case currently pending before the Supreme People’s Court in China. The state-owned Guangzhou Pharmaceutical Group (GPG) licensed its trademark, “Wang Lao Ji” (also read as “Wong Lo Kat”) to Hong Kong-based Hongdao Group for use in marketing ready-to-drink herbal tea throughout China. Hongdao invested millions of dollars in both advertising and designing a well-known red can for what became the top-selling canned beverage in China, surpassing even Red Bull and Coca Cola. GPG also marketed the same tea in a green carton under the same trademark but at much lower sales volumes. Problems arose, however, when the China International Economic and Trade Arbitration Commission invalidated continuations of the licensing arrangement in 2011 because they were based on bribery. Hongdao thereafter changed the name of its tea to “Jia Duo Bao” but continued using its well-recognized red can design.
GPG sued Hongdao, however, claiming that the red can design was protectable trade dress that belonged to GPG along with the licensed Wang Lao Ji trademark. The Guangdong High Court agreed in a decision that has engendered more than a little criticism. First, as Professor Yao notes, trademarks serve as “source” identifiers, allowing consumers to associate the quality of a particular good or service with the company that manufactures the good or provides the service. Because the red can design marked the herbal tea that Hongdao produced and sold (as opposed to the herbal tea that GPG produced and sold in green cartons), the High Court presumably should have held that trade dress rights in the red can design belonged to Hongdao. Second, the High Court suggested that trade dress rights in the red can design could not be separated from the trademark rights in the licensed WLJ mark. As Professor Yao notes, this differs markedly from U.S. trademark jurisprudence, under which any single product might bear multiple protectable trademarks owned by multiple separate entities.
One interesting aspect of the case that might explain the High Court’s decision, however, is the court’s factual finding that it was GPG, not Hongdao, who was more responsible for the reputation and trade dress value of the red can design. Although the Court acknowledged that Hongdao had invested a great deal in the design, the court attributed most of reputation and value of the red can trade dress to its association with the 150-yr-old WLJ mark – i.e., that GPG’s “investment” (associating its WLJ mark with the red can design) was more important than Hongdao’s investment in the design. This seems dubious as a factual matter, but if nonetheless accurate, it would not only explain the High Court’s decision but also help reconcile it to general trademark theory.
Regardless, it will be interesting to see the Supreme Court’s decision when it comes out.
Thanks so much to my fellow Comparative Law Prof Bloggers, Shawn Marie Boyne, Monica Eppinger, and Lissa Griffin for allowing me to join them on this blog.
Sunday, July 19, 2015
A recent article in The Economist of a case in which a Japanese prosecutor altered a document that was being used as evidence casts an unusually revealing eye on the traditionally respected Japanese prosecution, in a system that is already heavily weighted against an accused.
Sunday, July 12, 2015
Contributory Negligence in the Twenty-First Century: An Empirical Study of Trial Court Decisions
James Goudkamp and Donal Nolan posted this paper on July 10, 2015. From the abstract:
In this paper we report the results of an empirical study of the practical operation of the contributory negligence doctrine in the courts of England and Wales since the turn of the Twenty-First Century. For the purposes of the study, we analysed 273 trial court decisions. The two central questions that we looked at were (1) how often a defendant’s plea of contributory negligence was successful; and (2) by how much a claimant’s damages were reduced when a finding of contributory negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: (1) the claimant’s age; (2) the claimant’s gender; (3) the type of damage suffered by the claimant; (4) the contextual setting of the claim; and (5) the year of the decision. Our study uncovered a number of important truths about the contemporary operation of the contributory negligence doctrine hidden in this mass of case law. Our findings will be of considerable interest to both scholars and practitioners of private law
Quantifying Key Characteristics of 71 Data Protection Laws
Bernold Nieuwesteeg posted this paper on July 10, 2015. From the abstract:
This research is the first ever systematic study that unlocks six paramount characteristics in the literal text of 71 Data Protection Laws (DPLs). The quantification fosters comparison of a potential federal U.S. law with DPLs in the rest of the world. It can also be used for empirical legal research in information security by linking the index or subsets to data concerning, for instance, deep packet inspection.
This research is exploratory: adding more characteristics to the database is one of the key next steps for future research.
There are some noteworthy initial results: only 5 out of 71 DPLs have penalties that deter companies for non-compliance. Also, compared to the U.S. states, few countries have data breach notification laws. Principal component analysis reveals more information. Characteristics can be grouped in two unobserved factors, which explain ‘basic characteristics’ across laws and ‘add ons’ to these characteristics.
By summing these two factors a privacy index is constructed. Countries that are not known for their stringent privacy control such as Mauritius and Mexico cover a top position of this index. Member States of the European Union have DPLs with a privacy control score above average but no absolute top position
Sunday, June 28, 2015
Anne Marie Lindemann of Slate has posted a short video entitled "The Stunning 15 year March to Marriage Equality Around the World" that tracks the growth of marriage equality around the world beginning with the Netherlands' 2000 decision to legalize gay marriage.
Sunday, June 7, 2015
I've been in China for three weeks teaching a class on American criminal law to a group of Chinese students studying law and/or criminal justice at the Shanghai University of Political Science and Law. Ironically, I couldn't log into this blog while in Shanghai. Despite their varying degrees of English proficiency, the students engaged with the material. There were hiccups along the way. After spending the first session of the course laying out the basics of the adversarial system and the due process model, the students asked to learn about famous trials-including the O.J. Simpson case.
So I adjusted my material and used the narratives of famous trials to explain the basic elements of our adversarial system of justice as well as a few ways in which the system diverges from the ideal. Although my sample size of 40 students is a small one to build insights upon, I did notice some similarities and differences with my experiences of teaching in Germany's civil law system. To begin, many of my students in Shanghai questioned the ability of a jury to understand the case and not be swayed by emotions well-enough to render a decision. Their German peers also tend to question the merits of the jury system-though that questioning is rooted more deeply in the complexity of the law.
One big difference between justice in China and Germany is the relative harshness of punishment in China. In Germany, the bulk of cases that cross prosecutors desks are dismissed or slated for diversion progrems. For that reason as well as the relative disinterest of German prosecutors in striking onerous bargains against the defedant, the rise of plea bargaining in Germany has reinforced the system's leniency. In contrast, justice in China may be both harsh and swift.
Given the harshness and ubiquity of the death penalty in China, I did not expect my students in Shanghai to place as much faith as they did in the symbolic role of punishment. One student even commented that it would be better for 9 innocent people are convicted, than if the court would let free one guilty person. While the prevalence of plea bargaining and the prospect of harsh sentences has compromised the fairness of the process in the U.S., the general public has begun to question the wisdom of high incarceration levels. In contrast in China, at least among the future elite, there appears to be a solid faith in the system's results and a cautious optimism that the State may temper those punishments in the future.
Monday, June 1, 2015
An interesting, and alluring, article in The Times of London contains an announcement that Scottish Prosecutors are going to be equipped with Ipads for use in court. Although it is unclear exactly what they will use the ipads for, there is a reference to using ipads to take witness statements, which could well raise confrontation issues. Otherwise, more efficient and cheaper access to records and increased security for records is intended.
Wednesday, May 27, 2015
Next week the UK Parliament will consider a proposed British Bill of Rights (BBR) that is intended to replace the Human Rights Act of 1988, which essentially adopted the European Code of Human Rights as domestic UK law. That's a broader statement than is probably accurate, but the HRA did force the UK courts to consider whether domestic legislation might violate the ECHR.
A recent column in the London Times questions the need for a different bill of rights. Will the rights be different? Are there particularly 'British" rights that are not contained in the ECHR and vice versa?
To read the article in the Times, please click here.
My own guess is that the declaration of rights will not be that different, but that the way in which the BRR will bind the courts and government could be quite different than the apparatus for review under the HRA. Major differences between US and UK criminal procedure and law enforcement stem from the existence of the US Constitutional Bill of Rights. Methods of fighting terrorism, for example, or the right to jury trial and the plea bargaining explosion in the United States are two examples that come readily to mind. And maybe that's a good thing. But the point is that the UK should tread carefully: in the zest to free itself from the continent, it should make sure to replace what is already there with something that will function, in reality, in a way that is best for Britain.
Monday, May 11, 2015
In 2013, the Vera Institute of Justice published a report entitled, “Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States.” The report was part of a larger “experiential” project in which teams of state officials from Colorado, Georgia, and Pennsylvania visited Germany and the United States to get a first-hand look at prison facilities and correctional practices. Without a doubt, American practices such as high mandatory minimum sentences, long sentences for drug crimes, and the incarceration of mentally ill offenders have fueled the rise of our nation’s prison system and led to incarceration rates that lead the Western world.
Some of the key differences in prison practices that the report taught include: longer and more professional training for prison officials, changes in the architectural design of prisons, and increased freedom of movement of inmates may be worth trying in the United States.
However, what the report fails to consider is the extent to which the problems in the U.S. system extend beyond our sentencing and correctional practices. Even if we eliminate mandatory minimum sentences, will the current structure of prosecution offices (headed by elected officials) embrace the widespread use of diversionary sentences? There is a vast difference between the organizational culture in German prosecution offices and their U.S. counterparts. To begin, the German Code of Criminal Procedure actually mandates that prosecutors conduct an objective investigation. It is the judge or judicial panel that conducts the bulk of the questioning in a criminal trial, not the prosecutor. Indeed, in most of the trials that I observed in Germany, the prosecutor is not invested in a particular outcome.
Underpinning these differences in institutional design are historical and cultural norms. In Germany, where law is considered a science that can only be understood by professionals, the prospect of allowing a civilian jury to adjudicate guilt is inconceivable. In the U.S., with our wariness of government, the prospect of entrusting the fate of the accused to a government bureaucrat might be enough to provoke riots in the streets. Perhaps an even deeper divide to bridge is our societal condemnation of criminals and the barriers that the system places in the way of reentry. In Germany, the government aims to reintegrate those who have gone astray quickly back into society. Thus prisons are not isolated gulags where inmates are stripped of their humanity. In the U.S., we treat inmates as people who need to be separated from society as well as their own humanity.
So, as we look for “solutions” to our problems in the U.S., let’s be open to the fact that the true roots of the problems in the criminal justice system go beyond sentencing practices.
Thursday, May 7, 2015
A recent case in England epitomizes the difference between our bill-of-rights-based criminal justice system and the UK’s more practical, parliamentary and judge-based process.
Last week, Masood Mansouri was convicted of rape. Mansouri, a carwash owner, apparently pretending to be a cab driver, picked up Ceri Linden, who was hailing a taxi, kidnapped her and raped her. Five days later, she committed suicide. She thus was unavailable to testify at trial. Instead, the jury watched a videotaped recording of an interview Ms. Linden gave to the police in which she described the assault. No rape case has ever been successfully prosecuted in England and Wales based on statements of a victim who is not subject to cross-examination.
Interestingly, of course, this kind of evidence would not be admissible in the United States -- and for a host of reasons. Aside from the fact that it is hearsay for which there is no exception, it would not be admissible under the residual clause. According to the testimony of a consultant forensic psychologist, Ms. Linden had an “emotionally unstable personality disorder,” and had been hospitalized nine times over six months for attempted suicides. My guess is that these circumstances would have made it inadmissibly unreliable. Nor would it be admissible under 'forfeiture by wrongdoing,' exception, because the defendant did not intentionally cause her to be absent. Last but manifestly not least, the videotape clearly is a testimonial equivalent whose admission violates the confrontation clause under the Supreme Court’s Crawford v. Washington jurisprudence.
The stark inadmissibility of the video under US law raises interesting, recurring questions. While this conviction could be overturned either by UK domestic courts or the European Court of Human Rights, it’s a good reminder about the protections of the bill of rights and the limitations on US judges.
- Frances Gibb, Rapist jailed on victim’s evidence “from the grave,” The London Times (May 1, 2015).
- Crawford v. Washington, 541 U.S. 36 (2004). (OYEZ, slip opinion)
Monday, April 27, 2015
James Maxeiner, an Associate Professor of Law at the University of Baltimore School of Law, has posted: A Government of Laws Not of Precedents 1776-1876: The Google Challenge to Common Law Myth (April 21, 2015). 4 British Journal of American Legal Studies 141 (2015).
Available at SSRN: http://ssrn.com/abstract=2597431
Thursday, April 23, 2015
Today in London, English lawyers are protesting what they see as the collapse of the criminal justice system. No doubt austerity and budget cuts are to be blamed.
At the same time, there is still talk from the Tories about creating a British bill of rights. Readers will recall that the Human Rights Act, which came into effect in 2000, essentially rendered the British judicial system subject to the European Charter of Human Rights and to review by the European Court of Human Rights in Strasbourg. 9/11 occurred shortly thereafter. As a result of the fear and reality of terrorism, the Human Rights Act and its focus on human rights has lost popularity. Perhaps the notion of being subject to review by the mainland has lost whatever popularity it once had too.
To read an article from The Times of London on these subjects, click on the link below.
Monday, April 20, 2015
Mathias Siems of Durham Law School (Durham University) and the Centre for Business Research (The University of Cambridge) recently posted on SSRN an article that admirably categorizes various the main research approaches to comparative corporate law. From the abstract:
In the growing literature on comparative corporate law there is often a lack of consideration to the recent advances made in the general field of comparative law. This chapter aims to fill this gap. It outlines a conceptual framework that shows how seven core themes of comparative law can be linked to research on comparative corporate law. Subsequently, it explains these seven topics in more detail, also distinguishing between research approaches that have a legal focus and those that follow a more interdisciplinary perspective. The conclusion suggests that there is a need to overcome not only the separation between comparative and corporate law research but also between legal and interdisciplinary perspectives of comparative corporate law
Monday, April 13, 2015
Twenty years after Beijing hosted the Fourth World Conference on the Status of Women, the Chinese government just today released five women on bail who had been detained for weeks after trying to bring attention to sexual harassment on public transportation. There is no evidence that the young activists’ plans to use apolitical performance art to bring attention to the problem of harassment posed a threat to the political order. Despite the fact, on the eve of International Women’s Day, the government arrested the five women and charged them organizing a crowd to disturb public order- a charge that may carry up to a five year prison sentence (Article 291 China’s Criminal Law).
The government has charged activists for organizing activities under this statute before. Just last year, a court sentenced lawyer-activist Xu Zhiyong, who helped to organize Chinese plaintiffs in the 2008 milk powder lawsuits, to a four year sentence under the statute. Three years earlier, in 2005, Yang Maodong, who provided legal advice to villagers in Guangdong province, was arrested under this same statute. Maodong had been trying to help villagers remove an allegedly corrupt municipal leader from office. Though the government released him in December 2005, a few months later Beijing security officials arrested him again and charged him with “running an illegal business.”
Given the history of Article 291, it appears that anyone who attempts to capture the public attention to improve socio-political issues may find themselves arrested and charged under this Article.
“A Great Danger for Lawyers”: New Regulatory Curbs on Lawyers Representing Protestors,” Human Rights Watch (2006).
Donsheng Zhang, “Civil Procedure and Anti-Modern Myths in the ‘Harmonious Society’: China and pre-war Japan Compared,” in LEGAL INNOVATIONS IN ASIA: JUDICIAL LAWMAKING AND THE INFLUENCE OF COMPARATIVE LAW. (2014)
Edward Wong, “Chinese Police Seeking Charges Against Detained Women’s Activists, Lawyer Says. New York Times, April 9, 2015.
Edward Wong, “China Releases 5 Women’s Rights Activists Detained For Weeks,” New York Times, April 13, 2015.
Sunday, April 5, 2015
My most recent article, "Procedural Economy in Pre-Trial Procedure: Developments in Germany and the United States," was recently published in the Southern California Interdisciplinary Law Review (my alma mater).
And for my other alma mater: GO BADGERS!
Thursday, April 2, 2015
A Parliamentary committee recently published its report on the working of the Criminal Cases Review Commission, the independent governmental body that reviews claims of miscarriages of justice and refers them to the court of appeal. It's an amazing report. The Committee essentially found that the CCRC was performing "reasonably well." But it had many significant recommendations. First, the standard of referral by the CCRC -- the "real possibility" of a different decision on appeal -- has been under tremendous criticism as compromising the CCRC's independence from the court. While the committee did not recommend changing the test, it did note that such a change would require a change in the court of appeal's jurisdiction to grant relief where there is no new evidence or argument but only a concern about the accuracy of the result. Accordingly, the report recommends that the Law Commission evaluate the court of appeal's grounds for relief where there is "serious doubt about the verdict" even without fresh evidence or argument. meanwhile, it recommended that the CCRC be "less cautious" in its approach to the real possibility test. The report also recommends extending the CCRC's subpoena power to private bodies (a power its sister commission, the Scottish CCRC already has), and that time limits and sanctions be imposed for failure of public bodies to comply with its subpoenas. This will certainly improve the CCRC's investigatory powers. The report also called for giving the CCRC discretion to refuse to investigate cases decided summarily (the less important criminal cases, decided without juries), for additional funding, and for steps by the CCRC to ensure consistently thorough screening among Case Review Managers. Finally, the report recommended that a system be developed for feedback from the CCRC to the relevant players in the criminal justice system about the factors that continue to cause miscarriages of justice. The report can be found here. http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/850/850.pdf
If these recommendations are followed, wide ranging changes will make real and tangible improvements in the relief available to those in the UK who claim to be victims of miscarriages of justice, whether on direct appeal or later in the process. It will also help the CCRC get
Sunday, March 22, 2015
The Fordham Urban Law Center and the Sorbonne Center for Study and Research on Environmental, Development, Urban and Tourism Law (SERDEAUT) are pleased to announce a call for participation for the 2nd Annual International & Comparative Urban Law Conference, which will be held on June 29, 2015 at the Sorbonne Law School. Potential participants in panels and workshops at the Conference should submit a one-page proposal to Nisha Mistry (email@example.com), Director, Fordham Urban Law Center, by April 20, 2015.
Thursday, March 19, 2015
Conviction of the innocent is an international issue, and there are innocent projects doing important work all over the world. The Irish Innocence Project, in Dublin, is hosting its annual conference in June 2015. Part of the conference is a film festival devoted to the subject - internationally - of wrongful convictions, exonerations, and exonerees. For a schedule of the conference, please click on the following link.
For a schedule and complete listing of the films to be presented, please click on the following link.
Friday, March 13, 2015
As we continue to think about the larger social impact of extremely long sentences and supermax detention, we should include consideration of the social impact of collateral consequences of conviction. What are the pros and cons of imposing collateral consequences on those who have been convicted and served their punishments? As all criminal law professors know and teach our students, one of the purposes of an actual sentence is rehabilitation and certainly one of the purposes is retribution. The other purposes are isolation and deterrence. So what are the purposes served by collateral consequences? Permanently disenfranching post-sentence - is that part of punishment? Is depriving someone of housing benefits or requiring perpetual reporting of convictions part of punishment or is some other purpose served? Given a growing political and social impact, particularly in the United States, we need to think more clearly about this.
A new statute in the United Kingdom seeks to protect those who have served their sentences from having to report past criminal convictions on a job application. Until recently, those sentenced to four years or less in prison who do not offend again do not have to disclose their criminal records. There is a schedule about when those prior sentences are deemed too old to require reporting. Realizing that “finding a job can be a crucial step in the rehabilitation process,” a recent amendment to the Data Protection Act – a new Section 56 - imposes criminal liability on potential employers who require a job applicant to authorize a data search that would fully reveal past information. For additional information about this new law click here:
In the United States, the ABA has created and launched an extremely helpful NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.
To track changes in the United States, and for more information on the debate, please see the readings below.
- Frank Thurston Green, Certificate Confusion Puts Focus on Convictions’ Consequences, City Limits.org (Feb. 17 2015) (certificate of relief program).
- Rachel Black & Aleta Sprague, Give the Unemployed Second Chance, CNN (Feb. 4, 2015).
- K. Reiter, J. Selbin & E. Hersh, Op-Ed, Should a Shoplifting Conviction be an Indelible Scarlet Letter? Not in California, LA Times (Dec. 28 2014).
- Gary Fields & John R. Emshwiller, Fighting to Forget: Long After Arrests, Criminal Records Live On, Wall Street Journal (Dec 25, 2014).
- Monica Haymond, Should a Criminal Record Come with Collateral Consequences?, NPR (Dec. 6, 2014).
- Editorial Board, In Search of Second Chances, The New York Times (May 31, 2014).
- Sarah B. Berson, Beyond the Sentence – Understanding Collateral Consequences, National Institute of Justice – Office of Justice Programs (May 2013).
- National HIRE Network Newsletter, Relief from the Collateral Consequences of Convictions (Nov. 2005 – May 2006).
- Lisa Hale Rose, Community College Students with Criminal Justice Histories and Human Services Education: Glass Ceiling, Brick Wall or a Pathway to Success, 39 Community C. J. Res. & Prac. 584 (2015) (suggesting that students with criminal records at community colleges intending to pursue human services education may face obstructed pathways).
- Heather R. Hlavka, Darren Wheelock & Jennifer E. Cossyleon, Narratives of Commitment: Looking for Work with a Criminal Record, The Soc. Q. (Jan. 23, 2015) (unemployment being the most cited barrier to reentry).
- Amy P. Meek, Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level, 75 Ohio St. L.J. 1 (2014) (available at HeinOnline).
- Erin L. Bauer et al., Evaluation of the New York City Justice Corps: Final Outcome Report, (July 2014) (evaluation report of the community based programs aimed to help juveniles to reenter).
Sunday, March 8, 2015
Ronald Allen, Northwestern University Law School, has recently posted an article entitled "The Perils of Comparative Law Research," on SSRN.
From the abstract:
This article is part of a festschrift in honor of Michele Taruffo’s remarkable career, and the astonishing erudition reflected in his wide ranging and significant corpus. One criticism is advanced, to-wit that he has too readily accepted as true the persistent rhetoric to the effect that the American adversarial system does not pursue accuracy in adjudication and is dominated by a sporting model in which the stronger and smarter wins regardless of truth and that Continental legal systems are much more geared toward truth determination. This rhetoric is examined and found to rest on striking mischaracterizations of both approaches to litigation. A more accurate, although quite general, description of both approaches is provided that suggests the rhetoric has it exactly backwards. Suggestive data concerning American and Continental legal systems are presented that directly conflict with the rhetoric. In addition, the obvious prediction is that accurate and efficient legal systems should lead to economic growth and innovation. Some suggestive data is presented, which shows that since 1980 the United States has dominated France, Germany, Spain, and Italy in both regards, tending to disconfirm the comparative effectiveness of the European legal systems. Compounding variables are mentioned, and hence the title, “The Perils of Comparative Law Research.”
Allen, Ronald J., The Perils of Comparative Law Research (March 3, 2015).
Available at SSRN: http://ssrn.com/abstract=2573296