England and America: the comparative law thread

[nerdanel]

Fair enough - but the discussion features topics like devolution and parliamentary sovereignty, which are relevant to the UK as a whole.

[nerdanel]

I'll post my notes from the lecture I went to later, but I wanted to ask Aravar, L_M, or anyone else who knows the answer to explain this to me:

Why do UK judicial decisions - e.g. of the House of Lords - routinely feature separate opinions from each judge even where many of the concurring opinions contain significant redundancy? Have the courts considered the possibility of issuing a single opinion signed by all the judges (or a majority of judges), with concurrences and dissents issued only where especially necessary to make additional points? If so, why has this practice been rejected?

From my outsider's perspective, the current approach seems redundant and potentially confusing. It becomes much more complicated to discern exactly what the holding(s) of the court endorsed by a majority of judges were. It also makes opinions considerably longer than they would otherwise be, probably to the detriment of public access to judicial decisions (the public is much more likely to be scared off from reading a 90-150 page decision than, say, a 30 page consolidated decision). What am I missing?

[Aravar]

I'llWhy do UK judicial decisions - e.g. of the House of Lords - routinely feature separate opinions from each judge even where many of the concurring opinions contain significant redundancy? Have the courts considered the possibility of issuing a single opinion signed by all the judges (or a majority of judges), with concurrences and dissents issued only where especially necessary to make additional points? If so, why has this practice been rejected?

From my outsider's perspective, the current approach seems redundant and potentially confusing. It becomes much more complicated to discern exactly what the holding(s) of the court endorsed by a majority of judges were. It also makes opinions considerably longer than they would otherwise be, probably to the detriment of public access to judicial decisions (the public is much more likely to be scared off from reading a 90-150 page decision than, say, a 30 page consolidated decision). What am I missing?

I think it's more a feature of the kind of cases you are studying: they are bound to be some of the meatier decisions. In most cases , especially Court of Appealwhere there are only thre judges there is normally a leading judgment with two "I agrees". some judgments are expressed to be the judgment of the whole Court.

Off the top of my head I can think of only three recent House of Lords Judgments in my field which represent the criticism you are making: Royal Bank of Scotland v. Etridge, Stack v Dowden, and JA Pye v Graham (whcih you may come across in a human rights context). I think it is done partly because the issues are complex and partly out of judicial comity, such as where a unanimous decison of the Court of Appeal is being overturned. Lloyd's Bank v. Rosset is a counterexample, where the space in the report in the Appeal Cases takes up more space than the judgment of Lord Bridge which is agreed with by the rest of the Court.

[Aravar]

It seems the Supreme Court are already listening to you Nerdanel . They've just delvered their judgment in Manchester City Council v. Pinnnock, which deals Article 8 (Human Rights Act) rights in some housing claims. Lord Neuberger has delivered a speech which is expressed to be the judgment of the whole Court (of nine).

[nerdanel]

Thanks for the heads-up, Aravar - and in that case, I already like the UK Supreme Court. Would you know, the US Supreme Court has never listened to any suggestions I've made to them in internet fora (except, hmm, expanding the concept of effective assistance of counsel in the criminal context to require advising clients of the immigration consequences of pleading guilty... - I'm sure that was because they'd seen my rants on that subject.)

Anyway: your explanation makes sense. Although my focus here is mainly international/comparative, I'm deliberately taking a domestic human rights law class, because I feel that I should have some UK-specific knowledge to show for my year here. Virtually everything we're reading is House of Lords/UK Supreme Court, with a bit from the Court of Appeal. And yes, it's all fairly high-profile stuff - the course opens with a focus on national security/terrorism. So it's fair that the judges would wish to express their own perspectives, but I still wish they would consolidate their points of agreement.

Of course, sometimes that leads to convoluted outcomes too - you could always end up with this:

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined, and in which STEVENS, J., joined as to Part II-A. O'CONNOR, J., and SCALIA, J., filed concurring opinions. STEVENS, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed a dissenting opinion, in which SOUTER and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion

(That's the caption preceding the US Supreme Court's decision in the famous 2001 takings case of Palazzolo v. Rhode Island)

Whether that is any clearer than the approach of everyone just writing their own opinion is, I suppose, up for debate. (One of my former colleagues, speaking about reforming the US system, has made the argument that we should not permit the Supreme Court to issue 5-4 or plurality decisions; he thinks that if the Court were forced to lock themselves in a proverbial room and work towards consensus, they could achieve at least 6-3 decisions in virtually every case. I wouldn't mind if they were to give that a try for a term, because I think there would be value in the justices sacrificing some philosophical "purity" in exchange for the Court speaking with a clearer voice. Because that is my position on the US system, I asked the question on the UK one.)

[nerdanel]

It seems the Supreme Court are already listening to you Nerdanel . They've just delvered their judgment in Manchester City Council v. Pinnnock, which deals Article 8 (Human Rights Act) rights in some housing claims. Lord Neuberger has delivered a speech which is expressed to be the judgment of the whole Court (of nine).

Aravar, I also wanted to note in this regard that my frustrations with the House of Lords format make me particularly pleased with the decisions of the European Court of Human Rights (format/syntax-wise). I find their decisions to be put much more plainly and succinctly, and I appreciate their custom of concurring or dissenting only when necessary.

I note, however, that as a common law-trained attorney, I'm still not fully certain how to weigh their decisions as, essentially, "non-precedent precedent". Several of my professors have criticized the UK courts for reading ECTHR decisions as "binding precedent" (particularly as regards domestic application of the HRA) when the ECTHR (heavily influenced by the civil law tradition) does not view its own decisions as precedent in the common law sense. So perhaps my confusion on this point is shared by some of the Lords. As I delve deeper into the Article 2 and 3 decisions (right to life; right to be free from torture/inhumane and degrading treatment), I find the inconsistencies in the Strasbourg court's decisions to be rather frustrating, and the court's failure to view itself as responsible for reconciling conflicting precedents to be ... difficult. To the extent that this reflects a civil law approach, it is difficult for me to understand why it is preferable to the common law approach.

[Túrin Turambar]

I freely admit that I know very little of the ins and outs of how the Continental Civil Law system functions. Interesting that both the U.S. and Canada have some experience at reconciling higher court judgements from common-law courts in civil-law courts (in Louisiana and Quebec respectively) but I know of no cases where the reverse happens. Of course, the institutions of the E.U. aren't the same as the institutions of a federal government.

[Voronwë the Faithful]

As I delve deeper into the Article 2 and 3 decisions (right to life; right to be free from torture/inhumane and degrading treatment), I find the inconsistencies in the Strasbourg court's decisions to be rather frustrating, and the court's failure to view itself as responsible for reconciling conflicting precedents to be ... difficult.

I would choose a different word, though perhaps one that I would not allow to be used on this messageboard.

[Aravar]

nerdanel, I'm afraid that I read the ECHR decisions pretty infrequently, so I've never had to reconcile any conflicts. My practice is mainly property based and the only ECHR decision I've read in any detail recently is Pye v. UK (arising from the HL decision in Pye v. Graham) on limitation periods relating to real property.

[nerdanel]

Has anyone read the late Lord Bingham's 2010 book, "The Rule of Law"? (I'm imagining that the most likely candidates would be Aravar and L_M, if anyone.) I just read it and wouldn't mind discussing it if anyone else is familiar with his argument. He essentially advocates a "thick" conception of the rule of law. His default formulation of the rule of law is probably not particularly controversial: in his view, it requires that all persons and authorities within the state, public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (usually) in the future and publicly administered in the courts; any departure from this principle should be closely scrutinized.

However, he then suggests eight sub-principles, of which two are substantive and potentially controversial: that the rule of law is substantive, mandating adherence to fundamental international human rights law norms (for the UK's purposes, as expressed in the ECHR) and compliance with international law. He then goes on to indict, in his generally measured fashion, the US's and the UK's failings as regards this substantive conception of the rule of law with respect to the war on terror and national security issues. I thought it was a good read, written straightforwardly and briefly enough to be accessible to non-lawyers.

That said, the "rule of law" as an overarching principle of law is new to me. Bingham points out that it is cited surprisingly often by the US courts, but ... I'm not sure that it arises in American legal practice in quite the same way. The function that the "rule of law" seems to serve within the UK system is to establish the constitutional construct that all people and entities are subordinate to the law and must conduct their affairs in compliance therewith. The principle seems easiest to grasp when viewed in light of England's gradual subjugation of the Crown to the rule of law, from Magna Carta to the Glorious Revolution and beyond. And it exists in some tension with the model of parliamentary sovereignty, as Bingham acknowledges that many of his colleagues have argued (though he himself denies that the two are incompatible). In contrast, even if we (Americans) refer to the principle of "rule of law" in passing, I don't think it's a concept to which we could give meaning apart from our codified Constitution. That is the rule of law that binds us, it seems to me, and it is the only document that the US government really seems to credit as being able to restrain its actions. (In view of the US government's shameful behavior in the "war on terror" over the past decade, whether it has really considered itself restrained by even the Constitution is a separate, debatable point.)

For this reason, it is interesting to me to mull Bingham's concept of a "rule of law" that incorporates a core of international human rights norms and a mandate to comply with international law. I'm not sure that his view is broadly accepted within Britain, and it certainly would not be accepted in the US -- but query whether it should be. It is interesting to consider the effect that Bingham's argument would have, if accepted, on the domestic behavior and foreign policies of both countries' governments. I'd be interested in you guys' thoughts.

(with apologies for any misunderstandings of the UK constitutional system in this post ... I'm trying to figure it out piece by piece, but it's mostly an extracurricular activity given the international focus of most of my coursework)

[Túrin Turambar]

I'm afraid I parted company with legal academia when I graduated in 2008. Well, not afraid, actually, as I think I've made abundantly clear in this thread so far . So I've never heard of Lord Bingham or his 2010 book. We did some readings on the rule of law by British authors, but obviously Australian Law Schools prefer books or articles on contemporary topics written by Australians. I may offer an opinion later.

[nerdanel]

Fair enough. I figured that it was a long shot that anyone had read it, particularly as it is so new.

I arrived in England shortly after Lord Bingham passed away, so this is a time when he is very much in the legal (academic?) consciousness, with many tributes and homages everywhere. He is discussed in superlative terms, with some British opining that he is their greatest judge of his time (would be curious to hear Aravar's thoughts on that claim, actually). I don't know a lot about him so far, but I like much of what I've seen. In his opinions that I've read, he comes across as measured, thoroughly committed to human rights, nonetheless committed to a restrained view of the judiciary's role, proudly British in his recognition of his country's/tradition's finest points, and yet unapologetic in his willingness to critique his own country's flaws. (Because I feel he is intellectually honest in his criticisms of his own country, I find reading his criticisms of US human rights violations quite palatable.) He also come across as someone having a deep but non-naive enthusiasm for the law and its transformative potential; I often identify with his sentiments in this regard. I recognize that I've seen a limited snapshot of his human rights jurisprudence, and I'm not yet well-positioned to evaluate his overall merits as a judge. But based on my reading of his decisions so far, I was fairly ready when I picked up his book yesterday to take his contentions quite seriously.

If this "rule of law" conception is part of Australian jurisprudence, I'd be equally interested in hearing your thoughts on how the rule of law plays out in your country, as well as any contrasts you perceive to the US or UK legal systems.

[ToshoftheWuffingas]

As an ordinary citizen I understand that 'the rule of law' is our equivalent of your Constitution. No one (theoretically) is above it and it was the point upon which we chopped off a king's head. In practice many bodies, the police included, operate with scant regard for it. But toleration for abuses only goes so far. It is one part of the network of rules, understandings, obligations and restraints that allows our society to work and it most surely dates back to the Anglo Saxon settlement.

[Aravar]

I don't know who I would put at the top. I am not sure that Lord Bingham has featured so much in judgments in my field: it is more Lords Hoffman, Goff and and Browne-Wilkinson.

I haven't read the book, you've reminded me of its existence and I will try to get hold of it.

The rule of law is fundamentally that everyone is subject to the law: the old sayingthat there is no one above the king save God and the law, because it is the law that makes him king.

It is also about predictiability, that those in power have to follow rules in the exercise of power, and cannot act on a whim even where there is a discretion. these are the fundamental points underlying judicial review, that in the exercise of power there should be no egregiously unreasaonble exercise, the power sohuld be used for proper purposes and relevant matters should be taken into account. Power should not be exercised arbitrarily.

I would not go so far to say that those with power act with scant regard to the law.

[nerdanel]

One issue that often comes up in comparative law is whether one country's courts should cite in their decisions to other countries' precedents. This often arises in many of the areas that I'm most interested - human rights/fundamental rights jurisprudence, construction of international conventions, etc. I came to England expecting that I would answer this question with a resounding "Yes." I have been a fan of Justice Anthony Kennedy's arguments on the subject. Kennedy argued to the New Yorker:

Kennedy offers a more tactical reason to cite foreign law. “Let me ask you this,” he said to me from across a lacquered coffee table in a Chinese-themed sitting room at the Schloss. “Why should world opinion care that the American Administration wants to bring freedom to oppressed peoples? Is that not because there’s some underlying common mutual interest, some underlying common shared idea, some underlying common shared aspiration, underlying unified concept of what human dignity means? I think that’s what we’re trying to tell the rest of the world, anyway.” In other words, Kennedy believes that by invoking foreign law the United States Supreme Court sends an implicit message to the rest of the democratic world that our society shares its values. “The European courts, in particular the transnational courts, have been somewhat concerned, and some feel demeaned, that we did not cite their decisions with more regularity,” he said. “They cite ours all the time. And, basically, they were saying, ‘Why should we cite yours if you don’t cite ours?’ ” He went on, “If we are asking the rest of the world to adopt our idea of freedom, it does seem to me that there may be some mutuality there, that other nations and other peoples can define and interpret freedom in a way that’s at least instructive to us.”

Indeed: when I read UK and ECTHR jurisprudence, these courts routinely and un-self-consciously cite United States decisions as persuasive authority supporting their conclusions - despite the fact that we usually do not give them the same consideration. I must admit that I understand Justice Kennedy's point, psychologically speaking. When I read a British or European decision that states that an American decision (that I usually am very familiar with) has bolstered their conclusion, I feel good about that. I feel as though our countries are on the same page, committed to the same objective of vindicating human rights. Particularly given that laypeople in these parts (whether British, EU, or Commonwealth) tend to refer freely to America as "uncivilised" and "barbaric," it is particularly meaningful to me when the British courts reach a human rights decision that they characterize as "joining the decisions of other civilised nations" - and cite American decisions prominently among those that they are joining.

Despite these moments of affection, watching other courts attempting to "respect" or "honor" our judiciary's conclusions has made me feel that we in the United States should not follow their lead. My skepticism has nothing to do with the substantive merits of the decisions that these European courts are reaching. I agree with most of them.

At this point, I have two chief reservations:

1. The European courts cite to the decisions of our federal circuit courts as though they reflect the state of "American" law. They often seem to be unaware of circuit splits and may cite the minority circuit view as the "American" position. For instance, on one question of American law, the Ninth Circuit had taken a minority position. It was rejected by the Board of Immigration Appeals (BIA) and virtually every other circuit to consider it. In time, the Ninth Circuit itself "harmonized" its disfavored decision with the remainder of American precedent. Yet, throughout this process, the European courts continued to cite the earlier Ninth Circuit decision as evidence of the state of American law - even when it was no longer the law even of the Ninth Circuit. The House of Lords recognized that the decision was no longer good American law six years after it had been superseded even in the Ninth Circuit. The European courts seem either not to understand, or to think it not worth troubling with, the process of Shepardizing or cite-checking our cases to make sure that they are still good law (and are not the subject of a circuit split) before they cite them. It may be that the UK courts enjoy greater success (accuracy) when citing to the decisions of Commonwealth courts, but their mediocre level of accuracy with respect to American decisions concerns me.

Similarly, I have in front of me the House of Lords' October 2006 decision in the case of K and Fornah, a case that dealt with construction of the Refugee Convention's phrase "membership in a particular social group." In deciding whether a family could be a "particular social group," they cited favorably to the Ninth Circuit's 2005 decision in Thomas v. Gonzales. The only problem? SCOTUS had vacated and remanded that decision six months earlier, in the April 2006 case of Gonzales v. Thomas, holding that the Ninth Circuit lacked the administrative law authority to answer that question before referring it to the BIA. The Ninth Circuit's overruled decision could not have been cited for its substantive holding in any US court -- but was given persuasive weight by the UK's highest court.

2. The immediate response to this complaint, of course, is "Fine - why don't we only cite decisions from each country's highest court?" I have become skeptical of this approach as well due to nearly the reverse issue. In the US academic literature on human rights, it is very common to cite with frustration to the more favorable decisions of the European courts. "England is doing this, so why can't we?" is a frequent complaint. These academic complaints often take the form of citing only the decisions of the UK House of Lords/Supreme Court (and decisions of similar standing in Australia, New Zealand, etc). And I'm learning in my research here that that approach suffers from another flaw: seminal, court-of-last-resort decisions do not long reflect the state of the law in the other country. After the highest court has weighed in, the law will inevitably be channeled by the work of the lower courts and tribunals, sometimes in a very different direction than the highest court's decision would lead a reader to believe. So I've read many US papers that contend that a particular form of asylum relief is broadly available in the UK, based on two seminal House of Lords decisions. But the moment I started reading about how the UK Court of Appeal and the Asylum and Immigration Tribunal/Immigration and Asylum Chamber had practically limited those decisions, I realized that the state of UK immigration law was nowhere as generous as the US academic literature had claimed.

In order to draw accurately from another country's jurisprudence, then, much more is involved than simply citing to a high-profile decision (that may or may not still be good law or commonly accepted in the jurisdiction of origin). The decisions of the UK courts (and the ECTHR), so far, do not seem to me to reflect the required level of nuance. And, to be honest, their decisions are often far more detailed and thorough (not to mention, very, very long ) than the corresponding American decisions. I really can't imagine the American federal courts taking the time to educate themselves adequately about even one other country's legal framework (let alone several) as would be required to engage in meaningful comparative law jurisprudence. The UK courts are clearly not doing this either. Under these circumstances, I find it very difficult to advocate that we should follow the UK courts' lead.

[Túrin Turambar]

To reply briefly, it seems to me that it should depend on circumstance. Looking to foriegn law for guidance on solutions to particular legal problems is a good thing. Similarly, in cases where a particular law in two jurisdictions is close enough to be readily comparable then the decisions of higher courts in that jurisdiction should certainly be considered. But foriegn precedent should not, I think, be weighed as heavily as domestic, or held to be any way binding. I am not all that much of a believer in universal international law. It's a bit different within the Commonwealth because our legal traditions are so close, but even then I wouldn't want the High Court of Australia to simply ape what the Supreme Courts of Canada or New Zealand do without considering the facts from a position of Australian statutory and constitutional interpretation and Australian tradition, policy and general legal background.

[Voronwë the Faithful]

In case anyone was wondering where they went, the posts about Michelle Bachmann were moved to the 2012 Presidential Election thread

[nerdanel]

Here's another example of why I increasingly disagree with the use of comparative jurisprudence in reaching constitutional or human rights conclusions. It seems to be completely impossible for the relevant courts to get the foreign law correct. I'm currently reading State v. Makwanyane, the landmark 1995 case in which the South African Constitutional Court abolished the death penalty under their fledgling constitution.

Now, they cite many, many jurisdictions' decisions in support of their reasoning. At one point they decide to consider California law, noting:

The death sentence has also been held to be cruel or unusual punishment and thus unconstitutional under the state constitutions of Massachusetts and California. The California decision is People v. Anderson. Capital punishment was held by six of the seven judges of the Californian Supreme Court to be "impermissibly cruel" under the California Constitution which prohibited cruel or unusual punishment. Also, it degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.

They are certainly correct that the Supreme Court of California struck down the death penalty in 1972. However, they missed the part where Californians overruled that decision via Proposition 17, which amended the state constitution to provide that the death penalty is not cruel or unusual punishment. In 1972. California today has the largest death row in the United States.

Again, comparative jurisprudence in theory seems like a great idea. But over and over again, it seems as though various nations' highest courts can't so much as manage to fact check whether the foreign cases they are using are still good law. It is rather embarrassing to have a 1995 decision that fails to take note of a development in the relevant jurisdiction in 1972. And this just seems par for the course, internationally speaking, in citing foreign caselaw.

[Voronwë the Faithful]

California today has the largest death row in the United States.

Really? Larger than Texas? Is that just because we are so slow to actually carry out the sentences?

Again, comparative jurisprudence in theory seems like a great idea. But over and over again, it seems as though various nations' highest courts can't so much as manage to fact check whether the foreign cases they are using are still good law. It is rather embarrassing to have a 1995 decision that fails to take note of a development in the relevant jurisdiction in 1972. And this just seems par for the course, internationally speaking, in citing foreign caselaw.

In theory, that is not a reason to oppose the use of comparison jurisprudence, just an indictment of endemic incompetence. I agree that people shouldn't miscite foreign law (any more than they should miscite domestic law) and if they just can't get it right, they should avoid it altogether. But there is no reason why they shouldn't be able to get it right. At least not on that level. I mean, it's once thing to miss some obscure point, but that is such an obvious and ridiculous mistake that ... words are failing me.

[nerdanel]

Really? Larger than Texas? Is that just because we are so slow to actually carry out the sentences?

Oh yes, much larger than Texas. We're not even close. Here are the current numbers for you:

In March 2011, Texas had 315 offenders on death row.

In the same month, California had 712 offenders on death row.

In theory, that is not a reason to oppose the use of comparison jurisprudence, just an indictment of endemic incompetence. I agree that people shouldn't miscite foreign law (any more than they should miscite domestic law) and if they just can't get it right, they should avoid it altogether. But there is no reason why they shouldn't be able to get it right. At least not on that level. I mean, it's once thing to miss some obscure point, but that is such an obvious and ridiculous mistake that ... words are failing me.

Yes, but it is certainly a practical problem. See my above posts for recent examples from the British jurisprudence. You're right that on a theoretical level it should be possible to research the relevant cases correctly. But, having spent the past year reading international and comparative jurisprudence, it is extraordinary to me how often they manage to get our American jurisprudence wrong. And I assume that unless foreign jurists are particularly bad at reading US jurisprudence, there are errors in citing other countries' jurisprudence as well, that I don't have the knowledge to catch.

Even if these errors were corrected, there would still be the second concern I highlighted in my post from a couple of months ago: citing only the large, seminal decisions from a particular country seems to be a pretty good way of misstating the reality on the ground in that country. The way that lower courts and administrative tribunals implement the seminal high court decisions may mean that the day-to-day judicial reality in the country is far different than the seminal decision would lead you to believe. Doing meaningful comparative law analysis requires taking account of what happened after a seminal decision. That's incredibly time-consuming and nuanced - and is almost never attempted by courts engaging in a comparative law exercise. To be straightforward, I think Scalia is correct that they are usually just citing random foreign cases to support what point they want to make, anyway. The South African and British examples in this thread, and the others like them, have certainly heightened my sympathy for his point of view.