LEGALST 153 Lecture 5: Civil Law Institutions

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4 Feb 2017
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Civil Law Institutions
I. Courts
a. Generalizations and Idealizations
b. Not as separated from government as in common law
i. Private law vs public law distinction much more clear
ii. Role of law as state-building project
1. Courts are part of the project
iii. Part of state, not bar
iv. Judges bureaucratic, collegial (also prosecutors)
1. Efficiency and consistency important
c. Separation of court systems (Japan = exception)
i. Regular courts (four levels, no surprise)
1. Private (civil) disputes
2. Criminal cases
3. Cassation: legislative supremacy fiction and (sort of) appellate review
ii. Administrative courts (public law disputes)
1. Feh odel oseil d’Etat, ouil of state
a. Part of executive branch, elite troubleshooters
2. German model (specialized judiciary)
iii. Constitutional courts (since WWII)
1. France: council of state
iv. Specialized tribunals (social welfare, etc)
d. Limits to judicial review
i. Problem of legislative supremacy (France = administrative review)
ii. Separate from process of adjudicating a case
iii. Germany: constitutional court can only decide constitutionality (does not
adjudicate dispute)
II. Legal Procedure
a. Key difference: Jury not crucial for fact-finding
b. Will never embrace juries for admin. Matters
c. Trial process
i. Episodic: e.g. hearing every three weeks
1. Loes ude o ousel do’t eed eeything ready at once)
2. Lowers stake of trial itself (can see how trial is going, so may opt to
settle in the middle)
ii. American pretrial process wrapped into trial
iii. Judges iuisitoial ole: eualize paties, a it
d. Evidence and proof
i. Common law: jury decides fact
1. Evidence is presented orally in courtroom
ii. Civil law: bench trial (judge)
1. Less need for elaborate rules of evidence
2. Error on facts can be fixed
a. Judge can do research (more forgiving)
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