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Transnational Dispute Resolution
University of South Carolina School of Law
Samuels, Joel H.

Transnational Dispute Resolution and

Comparative British and American Legal Systems

Professor(s): Joel Samuels, Martin McWilliams

2011 Maymester

University of South Carolina

Transnational Disputes

Samuels and McWilliams

Material(s) Distributed annually, no textbook on the market

1. Comparative U.K. and U.S. Law and Legal Systems

a. Sources of Law

Chapter 4 Statute Law—

a. English legal system is more formal than American because of its heavy reliance on statute law

a. Statute law is inherently more formal

i. England’s statutes are very detailed and leave little room for judicial review

ii. Long tradition of legislative rather than judicial reform in England

b. English judges adopt a textual, literal, “plain meaning” approach to statutory interpretation. American courts tend to take a purposive and substantive approach.

i. English courts only look at statutory purpose if the words are unclear on their face

ii. Do not look at legislative history

iii. Reasons for difference

1. Statutes drafted better

2. Legislature will amend poor statutes

3. Looking to legislative intent will lead to greater uncertainty

4. Citizen is entitled to rely on written text

5. Avoiding political issues

6. Too expensive to do otherwise (researching intent, etc costs money)

iv. English judges try to remain neutral—interpreting statutes is a policy issue that is for the legislature to settle, not for judges to interpret based on their own views

v. American lawyers/judges believe role of statutory interpretation is to give effect to legislative intention—“imaginative reconstruction”

c. Modern statutes have a greater mandatory formality in England

i. E.g. American UCC gives authority to make laws on the spot—no mandatory formality

ii. In England, there is nothing comparable to allow courts to override statutes or substantially modify them at the point of application

Chapter 5 Common Law—

b. In modern times, CL just means “judge made laws”

c. Judges can make law by stare decisis—law made by high court controls lower courts unless statute or overruled by even higher law. Reasons for stare decisis listed on page 12.

d. Binding precedent=predictability

a. Strong policy of treating like cases alike

b. Limits discretion of courts deciding cases

c. Encourages courts to be careful since they know others will follow it

d. Reduces costs of court system because appeals are less likely

e. US courts are more activist in terms of judges making rules

f. Stare decisis can either be strict or loose

a. Strict—courts do not overturn themselves, even if think they should

b. Loose—courts can overturn themselves

i. No high degree of authoritativeness

ii. Can have retrospective overruling—find someone liable who originally was not

c. England more strict than US

g. Reasons for US’s loose use of stare decisis

a. If CL rule is wrong, judges may disregard it—page 21

i. Circumstances have changed

ii. Growing moral/social enlightenment

iii. Precedent was substantively erroneous

b. Split opinions

c. Anticipatory overruling—judge chooses not to follow, on appeal that is affirmed, so lower court essentially overruled higher court. Does not occur in England.

h. Distinguishing precedent—previously decided cases look like they’d be binding, but does not control outcome. Judges in England will do this also.

i. Holding vs dicta—Only holding/ratio decidendi is binding. English interprets this rule narrowly

j. Reasons for the differences

a. Volume of case law in US—virtually unmanageable

b. Dissenting opinions rare in England

c. Growth of plurality opinions in US

k. Methodology of Legal Change—not more conservative in England, just different

a. English will apply a law they think is bad and just hope Parliament notices

b. In England, only House of Lords has power to overrule. However, legislative reform is frequent in England. Let Parliament do it because English believe changing through the courts is very confusing to people and makes things uncertain.

c. Prospective overruling: will not change old decisions. English courts do not do this.

d. Positive law=law that is written down, e.g. statute (English way)

e. Public law litigation: like desegregation, health care issues, etc. No comparison in England.

i. English judge would never make such a decision

ii. Note that stare decisis does not really apply here

iii. Nature of the bureaucracies in the US

f. Major reform in US stems from courts, especially federal courts. US Legislature leaves the “dirty work” to courts.

Chapters 10, 12 The English Legal System: Courts and Practice—

ii. History of English Courts

a. 2 courts originally

a. Court of King’s Bench=criminal

b. Court of Common Pleas=civil

b. But no law to enforce, so invented Common Law

c. Formulaic writ system—state grievance to Lord Chancellor. Person would hire a “pleader” to make appearances for you

iii. Comparing US and English Systems

a. English—Has 3 branches of government like the US, but they are not equal. Parliament, especially House of Commons, is supreme. Whichever party has majority of seats in House of Commons picks the government. Party chairman becomes Prime Minister

b. Judges are appointed by the Queen, but in practice by the Prime Minister or the Lord Chancellor. Rely heavily on advice of other sitting judges.

a. No political orientation at all

b. No power of judicial review—CANNOT overturn statutes; little interpretation of statutes (see above about policy)

c. Both US and English system use a “relative formality” system of basic rules based upon a canon. In the US the canon is the Constitution

iv. The Courts and Judges—differences not discussed above

US

England

SCOTUS

High Court

All 9 justices sit on every case—collegial

Sit in panels

Very little oral argument

In appellate courts, all

t make a lot of objections, try to trip up opposing council, etc.

c. The “unwritten” English Constitution—Professor Matthews

i. Not a federal constitution—powers not given to certain branches

ii. Parliamentary supremacy—courts must give effect to what Parliament says

iii. Lisbon Treaty=EU constitution

iv. Treaties not part of law of the land though

v. Conventions—not by law, just practices that have evolved

vi. Impliedly repeal inconsistent prior acts

vii. Civil liberties

a. European convention versus EU

b. Totally unreasonable test

c. Proportionality test for Human Rights

2. Introduction to International Commercial Litigation

a. European Court Systems

i. European judges

a. European style is based on logic, leads to impartiality

a. No dissenting/concurrent opinions

b. Do not know who wrote opinions, so no one has a favorite judge

b. Appointment based on technical merits rather than political expertise

c. Behaves as a bureaucrat—writes more “official” styles

a. Not viewed as same level of “power” that US judges have

d. US Supreme Court judges select case load. European judges do not. They decide all appeals they getàcannot delay issues

a. Leads to large number of Supreme Court judges in Europe (about 100) so as not to overcrowd the system

b. Court divided into small chambers, usually with about 3 judges

e. Each chamber is specialized in regards to what kind of case (e.g. family, criminal, labor law, etc)

f. Division of workload among higher courts—separate high courts, not just Supreme Court. Coincides with idea that law is logic.

g. Judges research everything themselves. Lawyers do not find precedent, etc.

ii. Note that on appeal can bring issue that was not brought before, but that is shifting towards American way

iii. Grand Chamber: decides what to do if difference in precedent established by the different high courts, so kind of like the highest court, but for all European high courts

iv. Cases are much cheaper in Europe because there is no discovery, lawyers charge lessàlower damages awarded

v. Constitutional Court: new in Europe. Judicial review. Constitutionality of law—limited role. IF law is constitutional, then ordinary judge continues proceedings.

a. Legislators also have a right to send a law to the Constitutional Court.

b. Also can be constitutional complaint against decision of court—the decision was made unconstitutional—can also go to Constitutional Court