The aim of this paper is to discuss the most distinctive characteristics of the American legal system. In order to facilitate this discussion we will compare and contrast the Anglo-American adversarial system to the inquisitorial legal system of Europe. Our discussions will include a brief history of the emergence of the modern American legal system.
The American legal system has many distinctive features. We will not here attempt to survey all of these, but will instead look closely at those characteristics that we consider to be the most significant. In our opinion, these features are most important because they give the American legal system its uniqueness; they set the forum for any economic, legal or political relationships it engages in domestically and internationally. An analysis of any legal system must involve an examination of the historical circumstances from which that legal system emerged. This paper will therefore include a brief discussion of history of the American legal system.
In this course, we have reviewed many aspects of the U.S. legal system in comparative and historical perspective. Based upon the reading and our discussions, what in your view are the most important characteristics of the American legal system? What is most distinctive about the U.S. system? Explain those features and the reasons for your choice.
How would you compare these characteristics of the U.S. system to the equivalent features of your own legal system? Can you suggest any other approaches that would be helpful to an understanding of the U.S. system?
The colonization of the United States began in the 16th Century. The first settlers were not all English. In what is today known as Florida, they were Spanish; in Louisiana, French. The Dutch were the first to settle parts of New York. Consequently, the legal traditions and laws of some states of the United States still contain elements that draw from Civil Law tradition. The path of political and economic development, however, has been such that the Common Law tradition came to take over in American law.
The American Revolution did not bring about a comparable break with English practices. The connections with England did lessen, however, and American judges, jurists, and legislators began in a more independent fashion than previously to develop (using the received English law as a basis) legal institutions and doctrines that reflected the economic, political, and social realities of the new American society. Gradually over the years a distinctive American legal tradition has emerged. While still faithful in many aspects to the Common Law tradition, it developed original features and moved closer to the Civil Law tradition.
Federalism, the American Constitution, separation of Federal and State powers and Constitutional Review
The American Constitution was created in 1789 and is one of the most distinctive features of the American legal system. It made a clear distinction between the various branches of government and their respective jurisdictions. This separation of powers provides a system of shared power known which acts as checks and balances between the various branches of government.
Three branches of government were created in the Constitution. These are: the Legislative, the Executive, and the Judiciary branch. Each of these branches has certain powers, and each of these powers is limited. For example, the President appoints judges and departmental secretaries. But these appointments must be approved by the Senate. The Congress can pass a law, but the President can veto it. The Supreme Court can rule a law to be unconstitutional, but the Congress, with the States, can amend the Constitution.
The separation of Federal and state powers remains one of the most distinctive features of the American legal system. Among the nations that have been steady democracies since the end of World War II, the United States has been one of the few countries that has a chief executive who is elected independently of the legislature and is not, in any meaningful way accountable to the legislative branch. While the United States has always used this “presidential” model of government, very few other countries with stable, enduring democratic systems have done so. Instead, over history most other countries, such as France and Germany, have adopted more of a parliamentary model of government, whereby the chief executive is accountable to the legislative branch, rather than independent of the legislative branch.
As a consequence of this separation of Federal and state powers, the Unites States has national and state law, federal courts and state courts. Federal courts often decide cases based on state law, and within states there are often complex court structures which themselves have overlapping jurisdictions. Around this exists all sorts of complicated rules of civil procedure that have had to be developed in order to administer the allocation of cases to the various courts. As a result of these rules, a case can often be tried in one of two or more courtrooms. Due to this strategic advantage to one side or the other of having the case heard in a specific court, the parties often seek to exploit aspects of these procedural rules to their advantage. This in itself is a distinctive feature of the American legal system, and one that is non-existent in the civil law legal systems of Europe.
One of the most notable and recognizable elements of the American legal system is its robust system of constitutional review. This refers to the process by which a court invalidates the actions of another branch of government as being inconsistent with a higher law, and the other branch of government cannot do anything about it. This feature is particular to the legal system of the United States. As with the separation of powers between Federal and state government, constitutional review is unrivalled in any of the democracies of the western world.
The manner in which the United States has structured constitutional review is unique. Firstly, constitutional review is administered in generalist courts, which have jurisdiction over constitutional law as well as other bodies of law. Very few countries in the world have such a system of constitutional review in place that allows courts to address both constitutional and other legal issues. Secondly, the United States remains distinctive in spreading the power of constitutional review among a range of courts, rather than administering it in a single constitutional court (such as in Germany). Thirdly, even though more American courts have the ability to address constitutional issues, they can only address constitutional issues in the context of adversarial disputes. By contrast, many countries, such as Canada, France and Germany, have permitted constitutional issues to be put to their courts even when there is not a live, concrete dispute. Fourthly and finally, judges hearing constitutional cases have an enormous degree of official institutional independence. Unlike their European counterparts who operate within the inquisitorial legal system, American federal judges have life tenure, with no mandatory retirement age.
Common law system and the Supreme Court
The common law was received in the American colonies and adopted as the basis of American legal systems after the Revolution in the state and federal constitutions. In American practice, the common law is one of two legal systems (the other being equity), now merged in all jurisdictions including the federal, that are the basis of the American legal order.
American law has over the years established its own tradition, one which though connected in important ways with the Common-Law tradition and in a lesser degree with the Civil-Law tradition, has many uniquely American traits. They derive from institutions and conditions that are not replicated elsewhere. The U.S. legal system is, for the most part, derived from the English common law system in which previous case decisions are used as precedents and followed. Other countries such as France, have a code-based legal system in which case law is far less important.
To maintain its structure and to guarantee fundamental human rights, an independent judicial branch of government was created and formed a central part of the American legal system. The Supreme Court of the United States was thus called upon to serve, with the assistance of the lower courts, as the “balance wheel” of the federal system, protector of individual rights, and arbiter of the allocation of powers among the executive, judicial, and legislative branches of the federal government. The degree to which courts, especially the Supreme Court of the United States, establish the values and principles of American economic, social, and personal life is unmatched elsewhere. In its exercise of judicial review in particular cases, the Court sets precedents that apply to future cases. This can be contrasted to the legal systems of Europe where case law is not of paramount importance and where a civil code is adhered to.
Civil procedure, and litigation and contingency fees
American ideology makes civil procedure especially important. The importance of civil procedure is connected to broader American norms. This commitment to the ideal of procedural due process reflects the American belief in individualism which, in the legal context, promotes a formality designed to assure that every claimant will receive individualized justice. It also reflects the American cultural notion that there are supposed to be winners and losers, rather than compromise solutions. American procedural law has developed class action procedures that have no counterparts in the procedural law of Civil-Law jurisdictions and go well beyond the practices of most other Common-Law jurisdictions.
As a consequence of a regime of complex legal procedures that is so characteristic of the American legal system, ordinary citizens are less capable of handling their disputes on their own, and more dependent upon engaging the services of lawyers. Many think, for example, disputes over auto accidents and the purchase and sale of homes and apartments should be handled without lawyers. Yet, in most states in the Unites States the baffling procedures that now surround what could be simple matters force people to turn these problems over to lawyers.
Even sophisticated corporate executives are helpless before complex legal procedures known only to attorneys. Moreover, many of these executives quickly learn that losing or winning a case at the trial level rarely brings an end to their legal bills, because the losing side is typically able to assert that one procedural irregularity or another has fatally tainted the case and requires a re-trial. Indeed, a large number of cases are overturned on procedural technicalities.
Litigation also plays a much broader role in the United States than elsewhere. The U.S. system is noted for having many rules that are seen as favorable to plaintiffs. For example, each party to a private lawsuit pays its own legal fees and a loser does not pay a winner’s legal costs as in the United Kingdom. The American legal system is well known for its especially adversarial nature. A greater number of lawyers are in control of cases in the Unites States than any where else in the world.
It is an undisputed fact that the American legal system has relatively few judges available when compared with the amount of litigation. The idea of litigating to completion more than even a small share of cases is out of the question. Hence, the overriding objective of the judiciary is to get the lawyers to manage, and ultimately settle, cases themselves. It has consequently become critical to develop procedural arrangements that facilitate that process. This accounts for the complex discovery system that allows each side a level of access to each other’s documents and witnesses in advance of a trial. This in itself is astonishing to lawyers of other countries. What this effectively means is that lawyers have an enticement to abuse the discovery process, and that problem has required the development of additional multifaceted procedural measures intended to discourage such misuse.
In addition to the important and unique characteristics discussed above, courts within the American legal system permit a distinctive method of financing private lawsuits. U.S. courts allow lawyers to finance their clients’ cases on a contingent basis in return for the chance to receive 30-40 percent of any damages awarded. This contingency arrangement is often attractive to those who cannot afford to bring a lawsuit to assert their claims and means that plaintiff lawyers, who may or may not receive a windfall, have a financial interest in the outcome. Contingency fees also make litigation more likely.
Role of juries
Juries are much more widely used in the United States to decide cases and to resolve questions of fact. The American legal system has retained juries for civil trials, for both personal injury cases as well as complex commercial disputes. This is quite unlike other common law nations, such as Great Britain, Canada and Australia. Having juries, however, has required the U.S. to develop special procedures to govern precisely what jurors are permitted to hear and what they are permitted to decide. For example, the American legal system has sophisticated controls on what lawyers may say, how they may conduct themselves in the courtroom, and how witnesses may be handled, amongst many other procedures. We will discuss the role of juries in the American legal system in detail in the latter part of this paper.
Political Public Law
The American public law system is distinctive in how political it always has been and still remains in terms of the way officials with formal legal authority come to acquire their positions. Many American legal personnel usually either have to campaign themselves for their positions in competitive elections, or must petition the support of elected officials in order to acquire their positions. By contrast, many of the world’s other main legal systems feature more bureaucratic systems of appointment, where appointments are made based on a career of dedicated training and exceptional government service.
In the majority of other countries with successful criminal justice systems, legal personnel are professionalized bureaucrats, hired and fired in a civil service fashion. Unlike other legal systems around the world state judges in America are elected. Very few jurisdictions anywhere in the world feature direct elections of judges. Furthermore, federal judges, although not directly elected and instead appointed, are also political figures. In deciding who among the best of the American legal profession to nominate, the President of the United States often goes by who has the most political connections or experience. For example, Justice Stephen Breyer, an appointee by President Bill Clinton to the Supreme Court in 1994, was a close advisor to leading Democratic Senator Edward Kennedy. The control of judicial appointment is spread out more evenly among the different branches of government in other countries than in the United States. The result being appointed judges in other democracies seems to come from more judicial and less political backgrounds.
The Adversarial nature of the American legal system
One of the most distinctive features of the American legal system is its adherence to the adversarial system of law administration. The contemporary Anglo-American adversary system has gradually evolved over several hundred years. Early English jury trials were unstructured proceedings in which the judge might act as inquisitor or even prosecutor as well as fact finder. Criminal defendants were not allowed to have an advocate, call witnesses, conduct cross-examination, or present affirmative defenses. All types of evidence were allowed, and juries, although supposedly neutral and passive, were actually highly influenced by the judge’s comments and directions. In fact, before 1670, jurors could be fined or jailed for refusing to follow a judge’s instructions.
The late 1600s saw the advent of a true adversarial system in the United States. Juries took a more neutral stance, and previously non-existent appellate review became possible in certain circumstances. By the eighteenth century, juries assumed an even more independent position as they started operating as a restraint on governmental and judicial exploitation and corruption. The Framers of the Constitution recognized the significance of the jury trial in a liberal society by specifically establishing it in the Sixth Amendment as a right in criminal prosecutions.
The autonomous judiciary was somewhat slower in developing. Before the 1800s, English judges were still influenced by their ties with the Crown, and U.S. judges were often politically partisan. U.S. Supreme Court Chief Justice John Marshall, who served from 1801 to 1835, established the sovereignty and independence of the Supreme Court with his opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). This case established “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” (Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5 ). By the early 1800s, attorneys had also become important as advocates and presenters of evidence. Procedural and evidentiary rules were developed, which turned the attention of litigation towards dispute resolution rather than arguments on minor points of law. The fundamental pillars of the United States’ contemporary legal system had been established.
In the United States today the adversary system is applied and adhered to, not only because of the protection it accords the accused, but also because its competitive style of presenting evidence and argument is thought to produce a more accurate result than the inquisitorial alternative, where proof-taking in controlled by the judge. In accordance with this view, the judge who administers an apparently nonpartisan inquiry cannot truly keep an open mind to the case before him, and lacks sufficient motivations to do a proper job. The probability of conflict between the aims of achieving accurate results and maintaining high barriers to conviction is often denied. It is occasionally conceded, however, that such barriers, while they lessen the possibility of convicting an innocent person, also increase the possibility that the guilty may escape conviction. Hence, by keeping these barriers high, as required by the adversary system, the accuracy of outcomes in the total number of cases irrespective of the kind of error can well be decreased.
Another difference between the Civil Law systems of Europe and the Anglo-American legal system of the Unites States respects the manner in which the authoritative starting points for legal reasoning are set out. In the Civil Law, these are contained in legislation which, when general rules of private law are in question, takes the form of a code. In the Anglo-American legal system starting points for legal reasoning are found in judicial decisions (Common Law) and to a lesser degree, in statutes. Today, statutes play a larger role than in the past, but judicial decisions remain of central importance.
A further contrasting characteristic of the two legal systems concerns the style of legal analysis and thinking. Civilian jurists, for example, still state legal propositions more than do jurists in the Anglo-American Common Law tradition. Moreover, civilians also generally place greater value than do Common Law jurists on coherence and structure. The latter proceed in a more fact-specific fashion. The Common Law accordingly tends to place less weight on the administration of the law than does the Civil Law. More contrasts between the two systems can be seen in the judicial decisions rendered by Common Law courts and those rendered by Civil-Law courts. Decisions arrived at by the former, for example, offer far more explicit and complete explanation of the court’s reasoning than do their Civil Law counterparts. The opinion in a case is written by one judge and bears his name. Other judges are free to concur or dissent in separate and signed opinions. Other judges sitting on the same case are free to dissent. Unlike European courts, American courts do not face the outside world as a single authority that always speaks with only one, unanimous and anonymous voice.
Another stark difference between these two systems is that many litigation practices and tools accepted by the American adversarial system are almost entirely rejected elsewhere. For example, the unsuccessful party in a legal suit is not required to pay his opponents’ litigation expenses. The robust discovery available in American courts is not to be found elsewhere. Unlike most Civil Law systems, it is common legal practice for American lawyers to contact witnesses and talk at length with them before they give their testimony in court. Moreover, through direct and cross-examination American lawyers manipulate and control the flow, pace, and scope of the witnesses’ court testimonies.
In the Anglo-American adversary system, the parties to a dispute or their advocates square off against each other and assume roles that are strictly separate and distinct from that of the decision maker, usually a judge or jury. The decision maker is expected to be objective and free from bias. Rooted in the ideals of the American Revolution, the modern adversary system reflects the conviction that everyone is entitled to a day in court before a free, impartial, and independent judge.
Adversary theory holds that requiring each side to develop and present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict. The Anglo-American requirement of an impartial and passive fact finder contrasts with the requirements of other legal systems. For example, most European countries employ the inquisitorial system, in which a judge investigates the facts, interviews witnesses, and renders a decision. Juries are not held in high regard in an inquisitorial court, and the disputants are moderately involved in the fact-finding process.
The main emphasis in a European court is the search for truth, whereas in an Anglo-American courtroom, truth is secondary to the aim of reaching the fairest decision in the resolution of the dispute. It has been suggested that the inquisitorial system, with its goal of seeking and finding the truth, is a more just and equitable legal system. However, proponents of the adversary system maintain that the truth is most likely to emerge after all sides of an argument are put forward.
Supporters of the Anglo-American adversarial system also point out that the civil law inquisitorial system has its own deficiencies, including abuse and corruption. European judges must assume all roles in a trial, including those of fact finder, evidence gatherer, interrogator, and decision maker. Due to these sometimes conflicting roles, European judges may tend to prejudge a case in an effort to finalize it and dispose of it. Inquisitorial courts are far more indifferent to individual rights than are adversarial courts, and inquisitorial judges, who are government bureaucrats (rather than part of an independent judiciary), may identify more with the government than with the parties. Critics of the inquisitorial system say that it provides little, if any, check on government excess and invites corruption, bribery, and abuse of power.
A further argument for the Anglo-American adversary system is that the parties to a lawsuit are responsible for gathering and compiling all the evidence in the case. This forces them to develop their arguments and present their most compelling evidence, and also preserves the impartiality and passivity of the fact finder. The adversary process is governed by strict rules of evidence and procedure that allow both sides equal opportunity to argue their cases. These rules also help to ensure that the decision is based solely on the evidence presented. The structure of this legal system unsurprisingly encourages enthusiastic advocacy by lawyers on behalf of their clients, but the code of ethics governing the behavior of lawyers is intended to restrain the propensity to endeavor to win by any means.
There are no doubts that the American legal system has its unique and perhaps to some degree, questionable characteristics. The litigious and adversarial nature of the legal system of the United States has a vastly different structure to Europe’s bureaucratic legalism. The American legal system’s methods of litigation are more adversarial, unpredictable and costly, and its courts have a larger role in making and implementing public policy. Although the two legal systems share basic principles, they differ sharply in terms of laws, legal institutions, and legal style.
WHAT ARE THE ADVANTAGES AND DISADVANTAGES OF THE JURY SYSTEM?
A discussion regarding the advantages and disadvantages of the American jury system can not exclude some analysis of the historical origins of the modern version of this institution. We will discuss this briefly, enabling an understanding of its evolution to its contemporary version.
The American jury system has its deep roots in medieval England. As early as the 1100s, groups of twelve knights were assembled to resolve disputes over land titles and taxation. The group of twelve evolved into a jury, which had the power to give testimony and ask questions of the accused and accuser, as well as decide the merits of arguments and evidence.
By the 1400s the characteristic of the jury as an impartial decider of facts was well rehearsed. In 1670 the Bushel’s case established the principle that a juror can not be fined or imprisoned for acquitting a defendant. By the 1700s it became rule that a jury must decide a case purely on the facts before it during a trial, and not on any extrajudicial knowledge. That version of the jury institution was subsequently transported to the United States by English colonists.
Over the course of the 1900s, judges came into the jury picture. They gained power to control juries and juries’ roles became what they are today- hearing evidence and deciding the guilt or innocence of an individual. The institution of the jury is a fundamental part of American jurisprudence.
Advantages of the jury system
One of the many advantages of the American jury system is that defendants are given a trial that is fair and unbiased. The idea is that twelve persons representing a spectrum of society will be able to deliberate without prejudice to the outcome of the trial. Underpinning the institution of trial by jury is the belief that individuals will be able to plead their case in front of a group of their own peers. The right to a trial by a jury of one’s own peers is at the centre of those rights guaranteed to accused persons within the American legal system.
Another advantage of the jury system is that it upholds the worth of civic involvement, thereby promoting democratic values and principles of autonomy and independence by including ordinary citizens in the administration of government. It is believed that if individuals have a greater involvement in the running of their system, they are more likely to support the decisions of the courts, which rely in the first instance, on voluntary compliance with the decisions of those courts.
A further advantage of the jury institution is that juries are selected from a spectrum of the community. That is, the random selection process through which juries are formed should yield a jury that is diverse in gender, culture, race and educational background. This diversity results in varying points of views of the members of the jury, and is a key to the success of group dynamics of jury decision making.
Potential jurors are generally taken from voter-registration lists, while many states also use lists of registered drivers to widen the pool. Supporters believe that a more diverse jury more accurately reflects community values. The other side of the coin, however, is the risk of racial or gender polarity on jury panels. Numerous juries have split along racial or gender lines. One example of this is the Erik Menendez trial in Los Angeles in 1994. In that trial, the six men on the jury voted for a murder conviction, while the six women opted for a less serious manslaughter conviction. The result was a hung jury and retrial.
Supporters of jury systems maintain that trials by judge and jury rather than by judge alone bring about a fairer and more just result. That is, the jury as a group has wisdom and strength beyond that of individual members; that it makes up in common sense and experience what it lacks in training, and that the jury guarantees a new perception of each trial. Furthermore, jurors are accountable for the final decision they make at a trial as they must substantiate the basis for their decision. Ultimately, a judge has the authority to set aside a verdict if there is insufficient evidence to support it (with the exception of acquittal in a criminal case).
Another advantage of trial by jury is its effect on judicial independence. Since the outcome of trials is determined primarily by a panel of jurors randomly selected and representative of the diversity of a community, that society is more likely to be accepting of the outcomes. Jurors are also anonymous and easily forgotten about after a case is decided. Judges residing over cases come under greater scrutiny and criticism for making an unpopular decision, and this may have adverse effects on them personally and on their families. Jurors on the other hand, have no ongoing connection with the State and generally no political ambition, and are therefore fairly impartial.
Disadvantages of the jury institution
One of the questions surrounding the validity of trial by jury is that a juror’s competence comes into play when decisions have to be made about the trial. Opponents of the jury system argue that the judge- by training, experience and superior intelligence, is better able to understand law and fact than the laypersons drawn from a broad range of levels of intelligence without experience, and without sanctioned responsibility.
One of the many criticisms of jury trials is that they are time consuming and expensive. It is estimated that trial by jury takes about forty percent longer than bench trials. Lawyers take longer in presenting their cases and enforcing the rules of evidence is also time consuming. Unlike judges who are “professional listeners” jurors often need breaks in order to remain focused. The decision making process of juries is also long and drawn out. It is argued, however, that the length of a trial could be reduced by making sure that both the defense and prosecution are more prepared for their cases. The trials also become very expensive when the appeal process is put into play. Individuals have so many appeals which become very costly. This could be cut down if an individual was allowed simply one appeal instead of the several that they use at present.
Another area that has been a focus of controversy is the jury’s interpretation of the law. Critics complain that juries will not follow the law, either because they do not understand it or because they do not like it (whi
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