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Transnational Dispute Resolution
University of South Carolina School of Law
McWilliams, Martin C.

Transnational Dispute Resolution
Maymester 2014 –McWilliams/Samuels
·         Comparative U.K. and U.S. Law and Legal Systems
o   Sources of Law
§  Statute Law—Chapter 4
·         Rules are based on words in England vs. in America the rules comes from outside sources of words
·         English legal system is more formal than American because of its heavy reliance on statute law
o   Statute law is inherently more formal
§  England’s statutes are very detailed and leave little room for judicial review
§  Long tradition of legislative rather than judicial reform in England
·         First main difference is how rules are interpreted
o   English judges adopt a textual, literal, “plain meaning” approach to statutory interpretation.  American courts tend to take a purposive and substantive approach.
§  Literal or plain meaning = predictability
§  English approach involves an attempt to protect reliance and less concerned with substantive justice of that reliance à English goal is reliability that is ascertainable
·         Huge advantage for lawyers in England – able to predict for clients
§  English courts only look at statutory purpose if the words have are unclear on their face
·         Do not look at legislative history
o   In England – Parliament is supreme and in America judicial system is supreme à Legislature is supreme in England
§  Reasons for difference
·         Statutes drafted better
·         Legislative will amend poor statutes
·         Looking at legislative intent will lead to greater uncertainty
·         Citizen is entitled to rely on written text
·         Avoiding political issues
·         Too expensive to do otherwise (researching intent, etc costs money)
§  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
§  American lawyers/judges believe role of statutory interpretation is to give effect to legislative intention—“imaginative reconstruction”
o   Modern statutes have a greater mandatory formality in England
§  E.g. American UCC gives authority to make laws on the spot—no mandatory formality
·         Invites judges to be interpretative in how they apply à leaves gaps for judges to fill
§  In England, there is nothing comparable to allow courts to override statutes or substantially modify them at the point of application
·         Equity appears on American side not English
o   Law courts and courts of equity in England
§  Law courts applied common law legal rules
§  Chancery side was equity where legal rules could be overcome
o   At some point, parliament decided chancery was making law and didn’t approve, it decided it would be superior and make the law à advent of parliamentary supremacy in England
§  Common Law—Chapter 5
·         In modern times, CL just means “judge made laws”
o   Common law established by the feudal system
§  King’s Bench – criminal/feudal matter
§  Common pleas – between nobility
§  Chancery
o   When we discuss – do not discuss in terms of medieval times à judge made law generally
o   Judges can make rules to “fill in gaps” of statutes
o   Judge made law is just as potent as statutes by legislature
·         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.
o   Like cases are treated alike – pillar of justice
o   Limits arbitrariness
o   Decisions are not applied against personally – important aspect of justice
o   Efficiency and resources
o   Responsibility of judges b/c they are essentially rulemaking
·         Power judge made rule has is established by stare decisis
·         Lower courts cannot look from higher courts and decide if it is bad – have to follow until higher court decides differently (page 11)
·         Binding precedent=predictability
o   Strong policy of treating like cases alike
o   Limits discretion of courts deciding cases
o   Encourages courts to be careful since knows others will follow it
o   Reduces costs of court system because appeals less likely
·         US courts are more activist in terms of judges making/applying rules
·         American courts of last resort will be in general more active than English courts and far less rule-bound
·         Stare decisis can either be strict or loose
o   Strict—courts do not overturn themselves, even if think they should
o   Loose—courts can overturn themselves
§  No high degree of authoritativeness
§  Can have retrospective overruling—find someone liable who originally was not
o   England more strict than US
§  Follow closely decision of higher courts
§  In England, even bad precedent is followed – demonstrating belief that precedent is binding law because of its authoritativeness (13)
§  US – if case is found wanting – judges may disregard it
·         Reasons for US’s loose use of stare decisis
o   If CL rule is wrong, judges may disregard it
§  Circumstances have changed
§  Growing moral/social enlightenment
§  Precedent was substantively erroneous
o   Split opinions
§  US opinions are often plurality because divide politically
§  England it is rare – almost always unanimous

tution for a way to correct – so many cases are not making decisions on construction of document itself, but on construction of construction, etc. of document à add gloss
o   English “unwritten constitution”
o   Magna Carta (written/statute) – judges can make decisions that have constitutional impact, but not particular document that they look at
·         Changes in drafting statutes –
o   Parliament is careful about drafting statutes
o   Appoint blue ribbon commission to figure out what is desirable/limits in order to change statutes
o   Courts change the law in America – where change would not be otherwise forthcoming
·         Certainty/uncertainty –
o   English – if law reform done by courts, will be uncertain – rather they want single source of lawmaking
o   America – takes years for states to fall in line
o   Page 142 – change through judicial decisions creates much uncertainty
o   The English Legal System:  Courts and Practice—Chapters 10, 12
§  History of English Courts
·         2 courts originally
o   Court of King’s Bench=criminal
o   Court of Common Pleas=civil
·         But no law to enforce, so invented Common Law
·         Formulaic writ system—state grievance to Lord Chancellor.  Person would hire a “pleader” to make appearances for you
§  Comparing US and English Systems
·         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
o   When general election – party with most seats is party in power
o   Prime minister – member elected by constituents that is then elected by party
o   Queen is the executive, but leader elected goes to Queen and asks to form a government and she always says “yes”
o   When bill becomes before party – PM says we’re voting for this, so much easier to pass legislation in England
·         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.