Full transcript
0:00Hello everybody. I'm delighted to welcome you all here this evening to celebrate Holger Spamann's appointment as the Lawrence R. Grove Professor of Law. Now, I very nearly always follow Holger's advice and he advised me to keep this short,
0:23so I will, though normed of course, against what deans considered to be short. I want to start by mentioning that the chair in which Professor Spamann now sits was named after a very public spirited person. Lawrence Grove served for more than 40 years as clerk of the Massachusetts House of Representatives and in that capacity
0:46built a reputation for bringing a high degree of integrity to a legislative process that badly needed it. There couldn't be a better namesake for Professor Spamann's chair. One of the most distinctive things about Holger as a scholar, as a teacher, and as a colleague, is the intellectual and personal integrity he brings to everything he does.
1:10As a scholar, Professor Spamann uses sophisticated empirical methods to cast a bright light on important questions. Many involved corporate law, many do not. He has for example helped us better understand what factors have contributed to a higher rate of incarceration in the US than in comparable countries.
1:33In addition, he and some of his co-authors have done a series of really intriguing experimental studies that tell us a lot about how judges do and do not make decisions and about whether and how much the law matters when they do. Of course, he has written about the Chevron doctrine. We all do eventually.
1:54[LAUGHTER] Holger is an academic's academic. He's someone who's playful about ideas, who takes risks, who digs deep into human behavior, and who sees disagreement as an opportunity for learning. His work is simultaneously bold and measured.
2:14It tells us not only what we can learn from facts in the world, but also what we can't and that's where his integrity comes through most strongly. It's also why Holger's work shapes our understanding not only of important topics, but also and this is a big contribution in its own right about how excellent empirical work is done.
2:36Again, I said I'd be brief and Holger will definitely let me know if I haven't been. I have just two more quick things to say. Holger Spamann is also creative and hardworking teacher. He's developed a wonderful online lectures, exercises, of flipped classroom, and modular teaching that let students dip into
2:58a course to focus on what they most want and need to learn. He also has a great case book on corporations that emphasizes newer cases more recently in the news that students might actually want to learn about. Imagine that. [LAUGHTER] Professor Spamann is a true innovator. It's hard work and he invests a lot in it and with great results.
3:20Finally, my last point, Professor Spamann is an amazing colleague. We've now served together for two years on the appointments committee. He's a great leader. He's wise, he's tough. He gets along with respect and he is respected by both people who think about the world the same way he does and people who think about it and very differently.
3:42Professor Spamann also makes everyone around him better. Final point. Holger is an awesome human. He somehow manages to be direct and blunt and kind and affirming all at once.
4:02He also has a good, mostly mischievous sense of humor and that makes it especially fun to be his colleague and friend. Holger this may not have seen brief to you, but you don't know what the baseline was. [LAUGHTER] Without further delay, I give you the Lawrence R. Grove Professor of Law, Holger Spamann. [APPLAUSE]
4:41That's what I feared. [LAUGHTER] Thank you for being here. I am a little embarrassed by all the attention and in fact, that I didn't want to give a lecture for that reason. But then I was told that I wouldn't get my chair [LAUGHTER] if I didn't give the lecture and I do want my chair.
5:03[LAUGHTER] While I was dragging my feet, it seems like somebody else took my first choice chair [LAUGHTER] so now I believe I will get my second choice [LAUGHTER] looking at it there, it seems a bit smaller than I imagined it to be real life, but I still want it. Now, as many of you know,
5:25and as John said, I work a lot on technical topics and corporate law using mathematical models and statistics. But I also work on an evergreen of legal discourse, actually, as popular as originalism, more popular than Chevron even. In law review as citations and that is the common civil law distinction.
5:49Now, I personally don't think that the common civil law distinction should be such a big topic in legal scholarship. In fact, I was drawn to the topic because what I experienced as a lawyer first trained in France and Germany then coming to the US, practicing in New York for a while and then Europe for a while,
6:09didn't match up with the myths that were being pounded about the common law the civil law. From my own experience, I don't give much credence to these myths, but then I also think there's a logically that I don't trust my own judgment
6:31and you shouldn't trust my own judgment either and that's going to be a big theme of this talk. Now, to begin, what are we talking about? What are common and civil law? I've problemized these concepts later. But for now, let me give you a working definition that I personally think it's also the best definition. Common and civil law mean legal systems of or
6:55mainly influenced by England or continental Europe respectively. Between 1100 and 1900 AD, Continental European legal institutions were gradually infiltrated by university graduates trained in Roman law. They didn't make the local law Roman but they at least brought vocabulary and ideas and they entertain
7:17the pan-European legal discourse with a center of gravity that moved over time from Italy to France and the Netherlands, and then to Germany. England was never completely isolated from this as later English nationalists claimed. But England had centralized it courts very early, starting in the late 11th century.
7:39These centralized courts develop their own terminology and their own rights. That being centralized and hence strong were more resistant to Roman law. [inaudible] to its relatively high degree of centralization, England also didn't feel the need to codify in the 19th century as most continental European countries did.
8:00This parochial European story became a global story in colonial times, the European countries exported their law through force and prestige. As a result, one can today group almost all the world's legal systems under common and civil law systems, as shown on this map. Civil law is blue, common law is red,
8:21orange or yellow, and mixed is purple. These are often called legal families. Now, please don't think that all the blue countries have the same law or all the red countries have the same law. The colonies legal systems generally did not become carbon copies of the colonizers far from it, but they often did adopt
8:42the colonizers language as the legal language especially in the English colonies. They still refer to English legal authorities, for example, you may see the English case, Hadley v. Baxendale, cited as authority in common law courts around the world. Perhaps most importantly, the recipient countries absorbed the legal vocabulary or concepts,
9:04if you will such as consideration. Judges from most common law countries around the world even still wear wigs. The next time you find yourself abducted, blindfolded, and flown to some unknown location. If you manage to escape, and you stumble into some courthouse and you see people wear wigs and speak English,
9:26you know, that they will understand if you tell them that you have been the victim of the torts of battery and false imprisonment. In fact, even if you don't manage to escape, but you somehow managed to rip the blindfold off and you see somebody walk by in a wig you know, that they will understand it when you shout out to them habeas corpus.
9:48[LAUGHTER] Now, they may not do anything because you didn't file your request and writing, we'll get back to that, but at least they'll understand what you're talking about. By contrast, if a civil law judge were to walk by and you shout habeas corpus [FOREIGN] Okay [LAUGHTER]. Now, seriously, the similarities within
10:08each legal family actually have practical payoff. They facilitate intra-family communications and intra-family exchange of ideas and personnel. The legal families are like language families, such as romance or dramatic languages. Individual languages within each family are definitely not the same,
10:28nor are language families hermetically sealed, but a family is common historical roots manifests in similarity of the vocabulary and grammar that make it much easier to move within a language family than across. In earlier work I looked at this systematically. Within Europe and North America it's all a bit of a mess. The US and to a lesser extent the UK,
10:51hegemons at least when it comes to business law, and everybody looks to them for ideas. But when you look elsewhere around the world, you see an amazing transmission of models and knowledge that is largely confined within legal family boundaries. France, the UK, and to a lesser extent the Netherlands, Germany, and some other countries have legal development officers
11:15that exclusively cater to countries [NOISE] within their legal families. The influence is sometimes astonishing. There's an amazing amount of literal copying of statutes to the point of copying typos and sexual numberings from the donor country. You also see continued influence of legal writing and
11:36exchange of personnel heavily concentrated within legal families. The US muddies the water a little because as the global hegemon and the top dog in the Americas, the US exerts influence everywhere, especially in Latin America. Still, even in Latin America today, there's a lot of influence of the continental legal scholarship and
12:00statutory models and this is because they look within their civil law family for inspiration. So far so good. I think this is interesting and again, helpful to orient yourself and the global world of law. But it only gets you so far. To use the language analogy again, you wouldn't say that India and the United States have
12:21the same culture just because both countries have English as their main or one of the main languages and you definitely shouldn't assume that they have the same law. They don't. To be sure there are few laws that may be predictably different between common law and civil law countries but I can't get very excited about these because, well, you'll see.
12:45Apparently, you can make a valid Ville in front of a notary. In every civil law country but, a no common law country. That sort of stuff. Somewhat more meaningful the trust does not technically and fully existence civil law countries, but there are workarounds. Another widespread difference is that common law countries generally don't gram
13:08specific performance as of right and don't allow penalty clause as well as civil law countries do. Now, both common and civil law countries have deviations from this baseline. In actuality they may be close together but I'd like to mention this one because it cuts against the very well-known actually a myth that the common law
13:29is more respectful of contractual freedom than the civil law. Now, specific performance clauses and penalty clauses are contract clauses, and the common law traditionally has not allowed them, whereas the civil law has at least as a first approximation. Still, this is all pretty boring. I find and it wouldn't make the common civil law distinction compete with originalism
13:50in law review I mentioned so what does It's precedent or the lack thereof? This is the big myth about common and civil law that gets people excited. That civil law doesn't have precedent or so people [NOISE] still say. Now expert comparators, I should say right away haven't believed this for a long time.
14:11Nonetheless still today, half the published articles that mention precedent in connection with civil law assert that the civil law doesn't have it. In truth. It's more complicated. But let's start with the basics. Those of you who know me probably expect some statistics and graphs at this point,
14:32I'll get there but for now, I just want to do a bit of show and tell. Because if something is blatantly obvious, you don't need complicated numbers to make the point. Now, this is the greener back, a commentary on the Germans civil code. Every German lawyer, or at least every lawyer working in private law has this book on their desk or on the shelf behind them.
14:56I put up a picture of someone holding the Greener back just to give you a sense of its size, it has 3,000 pages and weighs a hefty five pounds. What's in it? Mostly [LAUGHTER] precedents organized around themes indexed by the court. There are lots of precedence, so the print has to be very small.
15:18But if you can read anything, most of any numbers you see refer to some case reporter. The statutory text of the code is also reproduced in the Greener back, but that's a tiny fraction of the overall texts and the book. At this point, the code is really just an indexing system to help the expert find the relevant precedents.
15:39By the way, the authors are judges. Precedent is just what they do. Now you might think perhaps this is a German thing or a modern thing. Perhaps it wasn't like this in the 19th century or perhaps it isn't like this in France, you might have heard or read someone say that the French Civil Code specifically it's article five, prohibits judicial precedent.
16:04Well, here is article five annotated with precedence [LAUGHTER]. Jurisprudence in the standard French edition of the civil court, the Siri here, one of its earliest editions from 1817. The first edition appeared in 1814, just ten years after the promulgation of the Civil Code.
16:26Siri by the way, was a practitioner and his was a work for practitioners. They clearly cared about precedent from the get-go. You sometimes read that 19th century France had the so-called a cold elaxagies, which was an academic movement that rejected anything but a close reading of the text of the code.
16:47But whatever they were doing in the Ivory tower, the practice didn't care. The practice was busy developing the case law. Now, it is true that civil law countries generally did not develop a rule of stare decisis, that is a former rule that prior decisions constitute the law and must be respected as such.
17:09But until the 19th century, the common law didn't have stare decisis either. Stare decisis is a 19th century invention. In any event, as a legal realist, I can't get very excited about stare decisis. Even with stare decisis, courts can overrule or distinguish old cases or just ignore them.
17:30Even without stare decisis, courts can respect prior decisions as they had and the common law before the 19th century. Just based on experience, I wouldn't be able to say whether German or US courts, for example, are more respectful of precedent. John Dawson in his famous book on the oracles of the law, concluded that they are about the same.
17:51[NOISE] But one of my pet peeves and a major point I wanted to get across in this talk is that personal experience isn't particularly helpful when we're dealing with something that is ostensibly a global phenomenon on the legal world. Modern legal systems are so complex that one can hardly be an expert in one, less so two and clearly not in more than two or three
18:14heck I'm not even sure that I'm an expert of US corporate law. I'm sorry for my students in the room, [LAUGHTER] but whatever you learn is good enough for the exam. [LAUGHTER] I have some sense how precedent operates and Delaware corporate law or federal securities law
18:35and I know that precedent is a joke in US constitutional law, but I don't know how it operates elsewhere in US law, or let alone in all common law systems and the same of course with German and civil law systems. Now, so how does one then approach such a question? Well, of course, by collecting data.
18:57One thing I've done is an experiment with real judges, John mentioned it actually from seven jurisdictions two common law and five civil law. On each jurisdiction, we gave the judges the same international criminal law case, but we randomly varied the precedent that we made available and briefed. Judges from the common law countries, US and India,
19:18didn't decide more in line with precedence than the judges from the civil law countries, France, Germany, China, Argentina, and Brazil. If anything, it was the opposite. Perhaps you're thinking that an international criminal law case wasn't a good test. What if we gave the judges a domestic case, maybe a civil case. Well, we did that.
19:40With US judges, we found the same. We could barely get US judges to follow the law as expressed in precedent and other sources. I don't have time to go into details. I don't want to leave you with the impression that a US judge don't decide with some predictability and consistency in the real-world. They do. But that's because they usually decide matters that are standard.
20:04Our experiment involved them deciding a case that was for them novel. There they reached a precedent and just the same way that judges do when they get a novel case. In that situation, we found that the precedent barely made a difference in the decisions. They mentioned, the law at the precedent and their reasons,
20:24but it had no effect on the outcome. To summarize what we have so far, France and Germany are clearly full of precedent, and it's unclear that they are precedents are any less strong than say US precedents. In this sense, the absence of precedent in the civil law is a myth.
20:46This is what the comparatists have known for a long time. There are, however, two complications. One is country coverage, for example apparently, Brazil does not have case law. Italy, on the other hand, seems to have too much case law on the sense that their [inaudible] a chance out of all the 100,000
21:09decisions each year that are often inconsistent with one another. Brazil and Italy are both civil law countries by my working definition so then which is the real civil law? France and Germany or Brazil and Italy. I'll get back to that later. The other complication is not the if,
21:30but the how and more generally the how of legal reasoning. When you look at judicial opinions around the world, you see distinct differences. These differences are interesting from two perspectives. First, they may tell you something about how their authors, that is the judges, reasoned. Now, that's tricky because the judge doesn't necessarily write
21:53down what they were thinking as they were making up the decision. I'll get back to that. Second, however, what's in the written opinion is clearly relevant for subsequent work by lawyers, including judges as they are working with the published opinion. For example, in the US, we're used to having an opinion of the court and that is arguably the embodiment,
22:17the primary embodiment of the present. In England, there is no opinion of the court. Each judge gives their speech, and then it's up to subsequent lawyers to figure out which of these speeches, how to make them consistent with one another and figure out what the content of that precedent is. Clearly, there's that difference between the US
22:39and the UK and how you work with precedent. But let's get back to common law and civil law, more specifically, England and Germany. When you open any case reporters from these two countries you immediately notice a difference in style. The Germans, they don't speak they write in the third person and in a very technocratic and personal manner.
23:03German opinions are opinions of the court and descents are generally not registered. The English judges by contrast, write personal speeches in the first-person and generally in a more colloquial style. But what I want to focus on is the reasoning in the opinion. My impression just from reading opinions over the years had been that the reasoning is really pretty much the same once you strip away superficialities,
23:27such as the tone and the style of citations. But I didn't trust my impressionistic judgment and I also wanted to know if the equivalence that I perceived was only the result of 20th century convergence. I said about studying this systematically, with some co-authors, we took the 10 most cited and 10 randomly chosen contract law cases
23:51from the 1880s and a 2010s in England and Germany respectively, and quoted the reasoning. Here's a first cut of this, starting clockwise from the top-left. The four plots show the number of words per decision and the number of citations to cases,
24:11literature, and statutes respectively. Within each plot, the 1880s are on the left and the 2010 is on the right. Within every decade, English cases are the blue bars on the left, and German cases, the orange bars on the right. The bars indicate the number of citations, etc. Within each plot, country and decade we have ordered
24:34the cases by the number of citations and so on from lowest to highest to give you a sense of the distribution, and drawn a horizontal line to indicate the mean. The top-left plot shows you that the English decisions have been and still are much longer, and both have grown much longer over time. Next on the top right,
24:53you see that English decisions contain more citations to cases, although the Germans have almost caught up and adjusted for decision length, they now have more citations to cases. In the bottom left, you see that English and German cases, judges cite statutes with equal frequency, which should put to rest the myth that common law systems don't
25:13use statutes as much if anybody still believe that. Finally, the German decisions make much more use of literature. But much of that literature are companion of precedents like the Greenberg you saw earlier and this is all pretty crude. When we go deeper, what happened now? Did I just discuss the wrong figure?
25:35Did you see this one before? You saw this one before. Now you see this one. Good. Did you see this one before or not? Yes. Well, have a brief look before I go on. [LAUGHTER] Somebody should have spoken up. Words, cases citations, statutes citations, literature citations.
25:56Here we go. Now, you've already looked at this one, so I can be really be quick here. [LAUGHTER] Case citation is about the same, very interesting. Overruling. The English and the Germans both do it. That I think is interesting because the Germans explicitly overrule. If you thought that the Germans didn't have a real notion of precedent,
26:18why would they explicitly overrule their precedence? They do it about as frequently as the English. Even more interesting, they distinguish cases. There is this myth that only the common lawyers have this technique of distinguishing precedence. Well, here we see the German judges don't do it as often as the English judges, but they do it.
26:40They also do it and they already did it in the 1800s. [NOISE] Where you see a difference though, is in the level of engagement with the precedence. When you look at the bottom row, the right and middle panel, you see that the English judges and their decisions and their opinions, they talk much more about the facts and the reasons of the prior decisions.
27:05Now, you might think that this confirms another myth about common law and civil lawyers, which is that the common lawyers are more attentive to the facts and reason from the facts more than civil lawyers. A related myth is that the common law is more open to doing justice in an individual case.
27:27That is, it is more flexible than the civil law. There are two substantive reasons why you might be skeptical of such claims from the get-go. One is English legal history. Historically, the common law, whilst notoriously inflexible with its attachment to forms of action and other formalisms.
27:49Equity arose to soften this until equity itself ossified into something like the common law. The other substantive reason for skepticism is if you're familiar with the Comparative Law Literature. There, you'll also find the opposite cliche that the common law is quaintly attached to certain formalisms.
28:11That is, it is inflexible. Indeed, I found both cliches in one famous article on the subject of civil versus common law. The author loaths the common laws of flexibility on one page and then three pages later marvels at the English laws attachment to certain formalisms that prevented from doing justice in particular cases.
28:36The reason why this can happen, why the same author can support two incompatible myths within the span of a few pages is a deficiency of method. That's what I mostly want to talk about. The usual method, how people write about common and civil law is to take one or two instances
28:56from one member of each legal family and then to claim that these are representative. That's where things go very wrong because legal systems are very multi-faceted and different systems within the same legal family aren't necessarily alike at all. Every legal system has some instances when the system is flexible.
29:18Some when that is not. Some when has been closely scrutinized as the facts and some when who does not. Some when it bends a rule to achieve justice and some when it does not. You can always find an instance of just about anything in any legal system, and definitely in each legal of family. That's why you can contradict yourself in the span of three pages if you're not careful.
29:39Let me illustrate that with an anecdote. There's unintended pun here that will become clear in thirty-seconds. When I had just started as a graduate student working on a topic related to common and civil law, the author that I just mentioned gave a guest lecture at Harvard Law School. Some of you might have been here. He was and is the most ardent defender of the common civil law divide.
30:05I was very excited to hear what he had to say. It was somewhat of a letdown when his talk consisted mostly of him asserting his right to anecdote, which I guess is called for asserting a right not to bring any evidence.
30:25I don't think there is such a right in serious conversations, let alone academic debates. Anyway, he proceeded to tell the story of how he was a visiting professor in Paris at the Sorbonne, my alma mater, and how he went to the library and he didn't have a university ID with him.
30:46So the guard didn't let him in and he told the story, I guess, to show how inflexible these civil lawyers are and in this case, the guard didn't let him in. This is really silly and so I hesitate even to tell you what the young firing me retorted. Well, I told my own anecdote,
31:06which was about me enrolling at that very same university without the proper health care documentation. The French administrator enrolled me anyway. Good luck trying that here. Unsurprisingly, we fought this anecdote battle to a draw. Now when you do this with judicial decisions rather than with real-life stories,
31:30it's still anecdotes and it's still just as unsuitable. For illustration, let me play this silly game one more time with a judicial decision. I started off with the myth that the common law is big on facts and flexibility, whereas the civil law cares about abstract rules, even at the expense of justice in the case.
31:51Let me give you an example that is starkly in consistent with this. Now I can test whether you've been paying attention. Am I showing you here a common lawyer or a civil lawyer? Common Lawyer. Yes, because this gentleman is wearing a wig. This is Lord Halsbury, a famous English judge.
32:12He was on the House of Lords when he decided Salomon v. Salomon, probably the most famous case in English company law. Now, the case dealt with limited liability in corporate law. The question on the case was whether a shareholder had limited liability for contractual debts of the company time.
32:33Let me just tell you about Salomon v. Salomon. As I said, limited liability, shareholder, contractual debt. Well, Lord Halsbury, the question was, at the time, English company law required seven shareholders for a valid company formation and
32:55Salomon was the only real shareholder and then there were six figureheads who had one share each, but no involvement in the company, The question was, did that count as a real company. So that's Salomon would have, the man, would have limited liability. Lord Halsbury had a very simple answer. I'm quoting, "The soul guide must be the statute itself."
33:20The statute said that they needed certain shareholders and it didn't say anything about there having to be real shareholders or anything like that. So limited liability obtained. Now, 100 years later, the House of Lords, again, confronted the question of limited liability but this time, limited liability for tort claims, specifically of asbestos victims.
33:42Now, that's a materially different question in many ways. One of them being that tort creditors generally don't get to choose that data. Nonetheless, Lord Slade and Adams VK upheld that, a gain quote, that would be on the slide now if you can see it, "The court is not free to disregard the principle of
34:04Salomon v. Salomon merely because it considers the justice requires." Notice that neither opinion dive deep into the facts to reach this decision and a latter opinion did not hold the earlier decision to its facts. Instead the first opinion just appeal to the simple rule in the statute
34:26and the second opinion just appeal to the principal in the first opinion, notwithstanding the fact that the first decision concerned a materially different question. Both are completely inconsistent with the myth of the flexible, fact focused, justice oriented common law. I didn't even need to look very far.
34:47This is, as I said, that probably the most famous decision in English company law. Now, obviously, I could also do the inverse and find an English case that is very much focused on the facts and doing justice in the case and I could play the same game and some civil law jurisdictions.
35:08But I'll spare you that because it's obviously silly and I hope that that's clear by now. In fact, this game is even sillier than what I've said so far, because the game is played of published or at least written traditional opinions. How much do these written opinions tell us about how judges really reasoned?
35:29Possibly very little. The published opinion not a good idea for doing research on how judges actually reason or ultimately how the law of functions, and there's no better way of making this point than by looking at a French decision. This is the famous John Doerr opinion of
35:50the French Quarter Cassio sitting on bank in 1930. [NOISE] This is the decision that ushered in strict liability for vehicle accidents in French law, so it was pretty important. By the way, flashback here to the question of case law in the civil law,
36:11this is an example of major judge-made law in French law, and they all knew it when the decision came down, that's why they were sitting on bank. Anyway, that's just normal procedure in France. But here what I want to focus on is the opinion. What you see on the screen is all there is, this is the entire opinion.
36:31One sentence, three paragraphs, I haven't edited a single bit. The ellipsis there is not mine, that's already in the decision, it's about the name. I didn't bother to translate it into English because you wouldn't be able to make any sense of it. Anyway, it's so dense and coded, it's the typical cryptic style of French decisions
36:53until 2019 when they had form of their opinion. Now here it is, I think, absolutely clear that the judges that decided this case were thinking about much more than they wrote. That's not a secret, each case in France generally has a report by a reporter,
37:14judges, a judge, that is published. There's an entire genre of legal literature called the case commentary, that situates the case in the other precedence and the debates around discretion, often written by somebody who has insight knowledge about what the judges were thinking.
37:35So it's no surprise that when Mitch Lassa embedded himself in the French Quarter Cassation in the 990s, he found the French judges to be every bit as pragmatic or not pragmatic or whatever as the US Justice on the US Supreme Court. The takeaway for our purposes is that one absolutely cannot use
37:57the populist French pinions to infer how French judges reason. That the fringe opinions are so extreme, makes it obvious, but of course it isn't really different anywhere else. Just because the published opinions are longer elsewhere doesn't mean that they are more truthful, so to speak, in terms of revealing what the judges were actually thinking.
38:18It's always a performance. It's interesting to think about the performance as performance, who's the audience that they're playing to and why do these audiences apparently expect different things in different places? My personal sense is that a lot of it is probably just happenstance and doesn't have a deeper meaning,
38:39but anyway, that's an interesting question, I unfortunately don't have any time to pursue this in this talk. Let me recapitulate. There are two reasons why looking at individual published opinions, the usual fare of common civil law comparison is not the right approach to ascertain abstract qualities of legal systems,
39:02let alone legal families, such as whether common law or civil law are more flexible. First, individual cases aren't necessarily representative of the totality of cases, second, published opinions aren't necessarily representative of the actual reasoning behind the case. There are many ways how one could study various abstract quality systematically,
39:25and virtually none of it has been done. I took a small first step to study judicial reasoning systematically in my seven-country experiment. There we tracked our judge participants while they were working on the case. We gave them the materials on a computer and the computer recorded every 10 seconds which document,
39:45in fact, each paragraph, each document that they were looking at at that moment. That's what I have on this slide. Each panel is one country. Starting at the top from left to right we have Argentina, Brazil, China, France, and Germany. These are all civil law countries. The bottom row, we have India and the United States,
40:08these are our common law countries. Within each panel, that is within each country, individual judges are stacked vertically, so each horizontal line and the panel is one judge. Here, Argentina, that's one judge. That's judge number 2, and so on. They are going through the case from left to right, start to finish.
40:28We have rescaled the time so that they normalize to have the same length. Then the color-coding indicates which document they were looking at at that relative moment of time. The gray is the facts, black is the briefs, yellow is the trial judgment, green is the statute,
40:48and blue is the precedent. At first glance, all seven countries look pretty similar. Judges everywhere tend to start with the facts, then move on to the briefs, and then the trial judgment, and then occasionally check out the statute or the precedent. At the highest level, the takeaway here should be that the judges everywhere behave the same.
41:13I want to emphasize that because abstractly, you might have thought that in some jurisdictions, they start with the statue, or elsewhere they start if the precedent, maybe somewhere there start with the briefs, but that's not what we see. Virtually everywhere, they start with facts, then the briefs and so on. There is variation, but that variation is mostly within countries,
41:34not from one country to the next. That said, machines can do this better. They actually can detect differences here, even though we, with our naked eye, wouldn't be able to tell some random variation or something else going on.
41:55We've done that, I'll spare you the details of how we did it, but the bottom line is that we can distinguish countries. The countries are different from each other, but the families are not different from another. So you can tell apart the countries, but you can't tell apart the families that matches my personal experience that I perceive differences between countries,
42:20but it doesn't match up with the system divide. I tell you that just in case you trust a human more than a machine, but you shouldn't, you should trust the machine [LAUGHTER] more than the human, at least on this particular point. I should say a word about that. Because humans are incredibly good
42:40at certain things without understanding how they do it. Like throwing a ball or judging the emotions on somebody's face, humans are extremely good at, but there's a reason why they are good at that, and that reason doesn't carry over to comparative law. The reason is that [LAUGHTER] when you throw a ball,
43:01you immediately see where it goes and you can throw the ball again. That's what children do, you throw the ball, you throw the ball and eventually you become amazingly good. When you think about the physics, amazingly good. Judging face, we're extremely good at judging faces. We can make mistakes, but overall, we're very good at judging faces because from childhood onwards we see people,
43:22and then we see what they do. They start to cry, do they shout, whatever it is they do, we can tell, we learn how to read emotions. Very frequent instant feedback. System comparison is nothing like that. You don't get to assess whether a particular legal system is, let's say,
43:42flexible, and then the light goes on and says yeah, you were right, or you were wrong, or whatever it is. No, you just do it once and there's never any feedback on how you did. It's a completely different task from the kind of thing where humans are intuitively good at. In fact, we know from psychology and research on expert decision-making that humans are
44:04terrible at intuitive learning when those conditions of instant and frequent feedback do not hold. Humans don't go out and test their hypotheses in order to actually learn about them, they do the opposite, they ignore countervailing evidence and just handpick the evidence that supports their initially formed hypothesis.
44:29I suspect that's what happened in the most cited and taught book on civil law and common law in the United States, John Merryman, Civil Law Tradition. In the preface, Merryman frankly admits that his account of the civil law doesn't fit France and Germany.
44:51He says that they are at atypical, and at the real civil law is what we have in the Mediterranean and in Latin America. Now, that's a really odd choice because as I said in the beginning, France and Germany have been the core countries of the civil law from about the 16th century onwards. That's not just me saying this,
45:12Merryman himself mostly discusses French and German examples in the book. I'm sure Merryman beliefs in a civil law tradition, which he defines as a set of deeply rooted, historically conditioned attitudes about the way law is or should be made,
45:35applied, studied, perfected, and taught, end quote. Now, after I worry, I would have thought that historical roots would be deepest in the origin countries and not, let's say in Latin America where this was clearly an import. But okay, perhaps France and Germany somehow killed their roots and the tradition only lives on elsewhere.
45:59Still one has to wonder what exactly that tradition is supposed to be. Merryman locates the origin of the civil law in 450 BC ancient Rome. Back then, Roman law was casuistic, no code. If it resembled modern law at all,
46:20it resembled the modern cliche of the common law. This has completely changed by Byzantine times when Justinian compiled existing sources into his unsystematic Corpus Juris. Justinian prohibited further commentary.
46:41But that's the first thing that the medieval Europeans did when they rediscovered the corpus. The very act of rediscovery was going against the whole spirit of the corpus as Justinian Act conceived it. Nineteenth century codification and Europe was another thing altogether, again,
47:04because it was systematic and it had like these big overarching concepts that the Justinian Corpus not have. Politically civil law has been associated with everything from feudalism to fascism, social democracy, laissez faire. I have real difficulty seeing a tradition
47:27here if tradition is supposed to be anything substantive. Of course, I can see the continuity of certain terminology and even publication forms. Alan Watson has written about that and it is a fascinating phenomenon, but it's a surface phenomenon and doesn't support the kind of tradition that Merryman imagines.
47:49Merryman makes similarly all choices among the common law countries. In his writing, Merryman implicitly or explicitly takes the United States as the representative of the common law. Even though he also acknowledges that the common law, that the United States actually is not like the traditional common law.
48:11Now, there's one aspect of tradition that I wanted to revisit, and that's precedent in the civil law. Earlier in my talk, I acknowledged that there are some countries, specifically Brazil, that are traditionally classified as civil law countries, but that do not appear to have case law. Since there are some Brazilians in the room and just want to say,
48:32I'm not judging, but that's what all the Brazilians thinks, for letting me be one that's in the room. Have tried to tell me over the years. I just take that from you. They do not appear to have case law. I asked what we are to make off this. When we have France and Germany have case law, Brazil does not, and Italy,
48:48somewhat weird like which is the real deal now; what is the civil law? Well, ultimately, it depends on how you define civil law. But if by civil law you mean historical tradition that existed in Europe before being exported around the world. Then it's now clear that case law is an important part of it.
49:10The historical record is very clear that cities in German, French, Italian cities in the early modern period were full of case law. Brazil today doesn't have case law, super interesting. But can we say that because they are civil law countries?
49:33I hope it's clear from my discussion of Brazil and other countries that absolutely do not think that all legal systems are the same. Not even in the neighboring countries with similar economic development. In other words, I'm not saying that there are overall less differences than the common civil law myths suggest.
49:55But I think the real differences at different differences. They mostly don't follow the common civil law division and what people associate with it. One difference between common and civil law that could have a profound impact but hasn't been explored at all is how judges are appointed.
50:16By and large common law jurisdictions appoint practitioners after a successful career, usually, in private practice, while civil law jurisdictions appoint graduates straight out of university. This can have all implications. One that hasn't received any attention is the worldview that these judges bring to the job.
50:38If you are appointing an English judge after a successful career as a barrister, you have been an employer for many years. You probably own a house and you've probably advised businesses. By contrast, if you are appointed a French judge straight out of university, then you will probably be a consumer,
51:01tenant, and employee for your entire life and i can't help thinking that that probably has an impact on how you relate to consumer law, landlord-tenant law, and employment law disputes. I'm also fascinated by the higher-order question. What effects the myths half on internal legal discourse?
51:25If I'm no different from you, but I think in some fundamental sense, but I think I'm different from you, then somehow this is going to change how I reason about myself and perhaps ultimately end up doing things differently than other ways would have. At the very least, it affects rhetoric. If it weren't for the civil law myth,
51:47it just wouldn't make any sense for a Brazilian lawyer to say that they don't have precedent because they are a civil law country. At least there's that. But even to perceive this as an interesting question, we first have to see the myths as what they are, which is myths. Speaking of myths one last time, I slipped one by you and I wonder how many noticed.
52:10This is of course, Charles sitting on the sovereign's throne. And if you Google Charles's coronation, the picture will pop up a lot. But actually, Charles's coronation hasn't happened yet. The picture is from May of this year when Charles was still prince and very much was not yet crowned.
52:33He was merely standing in for his mother, the queen, in opening for parliament this year. Now why this picture pops up when you Google Charles's coronation may have several answers. Perhaps one reason is that the New York Times featured it in an article on Charles's succession to the throne. But I suspect another answer is that people just
52:56imagine that there must be a fancy throne and the actual thrown that Charles set on during the session ceremony looks more like a pompous living room chair. I think many common law civil law myths arise in much the same way. Anyway, now, I hope I can get my chair back.
53:16[LAUGHTER] [APPLAUSE] [BACKGROUND]
53:42I'm really waiting though. [LAUGHTER] This will be [inaudible] because it's only [inaudible] If we take the subset of say, courses at Harvard Law School that some of us teach and others must take, that use the case matter and say are not like constitutional [inaudible] trust for a lot of cases
54:04might be the most recent controlling precedent on x, but rather more like say, contracts or torts. We have a little from here, a little from there, mistake that say this doctrine, that doctrine, crossing a century or more, few old English cases in whatever, of course those cases were selected to be in the case law as representative of something, tell various stories.
54:27Aside from an interesting literary interpretation exercise, what should we make whether there's any content relevant to anything that we should infer from the fact that these cases are in this spot and this is what we teach? I look at them as a training material. I mean, they are sometimes selected not because they are a law,
54:50but because they've made some stupid mistake or something. They're not actually being taught as the law and it's still useful. There are facts there. You can talk about the facts and you can play around with some alternate theory. Yeah, I think that they're being taught as training materials. You could do something else,
55:11at least in principle. Any other questions people really want to hear? I think in the proof and evidence for the usual common civil law divided between adversarial versus inquisitorial. Is your thesis about the myth of the difference between the two same?
55:34Oh yeah, that's a complete red herring as well. That's a complete red herring. I mean, the inquisitorial is a bad name anyway, because of course, that evokes memories of the Spanish Inquisition riding around and torturing people, but even if it's not like that, the European civil procedure hasn't been inquisitorial in any sense that you would recognize,
55:56at least since the early 20th century. The adversarial process is the absolute norm at least for civil litigation around the world. In criminal, I mean, not American adversarial if it's okay. We all realize, I mean, no. I'm telling you my students,
56:18[LAUGHTER] we did that this week in my survey, Dean, they don't know how much of an outlier the United States is. Go work on that. [LAUGHTER] The American adversarialism is a wild outlier, but if you take UK version of adversarialism, that's the norm.
56:39You could find the same, not roughly than in France or the Netherlands or Germany. Criminal procedure is a little bit more varied. Again, if you look at continental Europe, you wouldn't perceive that big of a difference,
57:00but if you look at I don't know, there was a movie about Mexican criminal procedure a couple of years ago. When I when I saw it, I thought, wow, maybe this is what people mean when they talk about the civil law cliche in criminal law cases, but I can tell you that's just very far from what's happening,
57:19has been happening in Europe for a very long time. That's just to say that I'm not again, the point, I'm not denying that there are lots of differences between systems around the world. It's just that they don't line up with this civil common law of division. We have time for one more question and then Dr. Spamann, we have a gift for you.
57:38You will not guess what it is [BACKGROUND] [LAUGHTER] that here, and then we'll all go out to [inaudible] to have some food and beverages and continue the celebration, so one last question. As someone who studied both under a civil law and now under a common law system, I'm just wondering,
57:59as you have a lot of your research shows, it seems that judges do to some extent, something pretty similar. How is it that law school is teaching a very different way, and how does it end up converging this in the same thing. That's a very good question. Again, first thing to say about that is that US law school is a complete outlier.
58:19Until recently, the United States was the only place where law school was a graduate education. Now we've got some experiments with this in Korea and Japan. That already is a big difference from the United States, but then let's take England. Yes, you have something like a case law method. Not really.
58:40I mean, they actually have lectures in a way that we do not, they actually have treatises in a way that we here do not. Yes, they have cases, but then again, so do the French, like in French, even when I was a student, does now, this was three years ago, [LAUGHTER] there is a Campania of cases that are established part of the legal education and you actually spend
59:00a little time discussing those cases in a French legal university. Therefore, I don't expect that to match out different, but let me say one more thing about France because it's the difference that has nothing to do with the common law civil law division, but actually, I think profound implications for how French lawyers think.
59:21French lawyers are the leftovers. They're the people who didn't make it into the elite institutions. If you're an elite French, you go to the [inaudible] Those are all engineering schools and then there's one, the ENS, which is a more broader scope but not law. Anybody who becomes a lawyer in France is actually someone who didn't make it.
59:41For the longest time, I thought that my classmate in the LLM was an exception that for some weird family reasons, he had chosen to become a lawyer until he then confessed to me at some point that he actually he tried the entrance exam to the [inaudible] and he didn't make it. [LAUGHTER] You get a very different selection of people like here we train the elite,
1:00:02but the equivalent of training the elite here can't be a French law faculty in a university because they don't train the elite. The elite study somewhere else, and different people, different self-image. Yeah. That does very French, Netherlands, not like that.
1:00:23You can go from country to country and you can look at how the selection works and what they do there and it just differs from country to country. All right Dr. Spamann, now the moment you've been waiting for. Yes. Please approach the secret gift. [LAUGHTER] Please unveil what is underneath,
1:00:44yes, right there. That is for you. There is your chair. [APPLAUSE]