I suppose this means Luttig is now off the "short list"
mschor at suffolk.edu
Thu Dec 22 09:03:00 PST 2005
While it is certainly true that institutions play a key role in sustaining economic growth, I am not so sure that the common law qua is the key to development. Underdevelopment is a knotty problem, to say the least. A more important difference between civil and common law than the role of precedent might well be judicial recruitment. Nations with relatively weak administrations delegated considerable power to independent common law judges whereas nations that sought to retain more power in central government delegated considerably less power to civil law judges. The bureaucratic recruitment of civil law judges may ensure a certain level of competence but there is a price in terms of judicial independence. There is a positive correlation between economic development and decentralized power and a negative correlation between growth and overcentralization (as the collapse of overly centralized economies in Eastern Europe and Latin America in the 80s amply demonstrates). T!
he difference between common and civil law is, however, too weak a reed to explain the failures of statist economies.
The argument that the US (or the common law) does the best job of protecting human rights is also troubling particularly given the rather expansive emergency powers exercised by this administration. The nations of Europe, most of which lack the common law, are pretty nice places to live.
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On Thu, 22 Dec 2005 11:20:07 am EST Frank Cross wrote:
To amplify on Douglas Edlin's post, judicial activism and reliance on
precedent and their centrality to the common law system have been
demonstrated time and again to be productive of greater economic wealth in
a nation and higher levels of human rights protection.
The absence of significant reliance on precedent would be an economic
catastrophe for business and free enterprise in general. If you think
people gripe about the tort system today, imagine what would happen if
there were no precedents on which business could plan. And that "perhaps"
associated with res judicata is pretty scary.
At 09:44 AM 12/22/2005, Douglas Edlin wrote:
>The suggestion of replacing the Anglo-American common law system with a
>civil law model has been made before: by Bentham in England and by David
>Dudley Field and William Sampson in the U.S. (and more recently by Gordon
>Tullock). It's important to consider that we would be giving up not just
>some decisions by 'activist' judges, we would be jettisoning the legal
>tradition of the English-speaking world.
>JMHACLJ at aol.com wrote:
>>In a message dated 12/21/2005 11:53:50 P.M. Eastern Standard Time,
>>zimmermi at shu.edu writes:
>> With Judge Robinson bailing on the
>> FISA court, there is an emerging pattern that the federal court
>> system has
>> had enough from this administration.
>>Well, one does not often have the chance to quote Robert Byrd with a
>>straight face. But if the "federal court system" whatever that is, "has
>>had enough from this administration" then Fie on them!
>>Judges are in place under the Constitution, it had seemed to me, only to
>>determine, in actual cases and controversies, the issues presented to
>>them in such cases. While there are many politicians in the judicial
>>ranks, they are not in charge of policy, either foreign or domestic. If
>>they feel that they have been ill-used, then, in the course of deciding
>>actual cases and controversies and without doing harm to the
>>constitutional order, let them do what the law and the Constitution
>>require of them.
>>I vow, if I am ever put in charge of drafting a federal constitutional
>>provision in this area, judges will be barred from issuing opinions in
>>writing, from cabal behavior in backrooms, from scheming in the study.
>>They'll sit on the bench, hear the argument, ask the questions, and
>>announce judgments and rulings from the bench. No precedential value
>>will be permitted to be accorded in any subsequent litigation (perhaps
>>excepting those cases in which true collateral estoppel or res judicata
>>principles apply) to a former decision of a court.
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>Douglas E. Edlin
>Department of Political Science
>P.O. Box 1773
>Carlisle, Pennsylvania 17013
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McCombs School of Business
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Associate Professor of Law
Suffolk University Law School
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