Major Writing Assignment #1 Legal Reasoning

1. Introduction

Legal systems around the world are the way they are today because of what happened many hundred years ago.  Legal systems were only a small part of what was implemented in new countries during the European colonization period.  If a major power such as Spain, France or Germany had control over a nation-state, the state would practice civil law.  Should a subject nation be controlled by England, as, what is now, the United States were, the system in practice would be common law. Therefore, currently, the system of law that the United States follows is common law. While there are many differences between the two systems, two such aspects that differ almost entirely are the process of preparing and selecting a judge for his or her career and the practice that revolves around precedential cases.

2. Judge Preparation and Selection

American judges are the tried and true, been-there-done-that lawyers who have mastered their craft and are believed to have learned how to rule over a courtroom rather than just argue within one. Converting experienced lawyers into judges sounds like an effective way of ensuring knowledge of the system and a guaranteed understanding of law and procedure, but that is not always the case. Civil law systems understand that legal advocacy is, while related, in many ways very dissimilar.  For this reason, the civil law judiciary is “a corps of specially trained professionals…. Who are educated as judges and usually serve that role throughout their professional lives. (Advantages of the Civil Law)” The entirety of the civil law judiciary is taught how to preside over a courtroom and everything, from the foundation to the details, about the law.

The selection and promotion, both, of the judiciary in the United States can be highly political and at the lower levels, is often determined by popular vote. State judges are elected by the citizens of the state and undergo little, if any, public vetting by the majority of the voters.  Essentially, the common law judges are first and foremost, lawyers.  After practicing as an attorney they can then, in its most simple form, attempt to run for a judgeship in their state. This form of election may lead to an air of informality and skepticism of competency among the voters.  At the other end of the spectrum, the Supreme Court, justices are nominated by the President of the United States and then questioned by the Senate.  While these judges are granted lifetime job security under Article III of the U.S. Constitution, the fact that they are nominated by a politically motivated president and approved by, again, a politically motivated senate, makes it difficult for Supreme Court justices to remain politically independent (Advantages of the Civil Law). By failing to be politically insulated, not only justices in the Supreme Court but state judges in lower courts may rule on a case, not for the facts of the case but, for personal benefit, as Schauer writes that “promotion potential is a factor in understanding lower federal court behavior. (Advantages of the Civil Law)  The process of selection and promotion should come from within the judiciary based on merit rather than outside nomination or popular vote.

The civil law model provides a system that remains politically independent because the judiciary is not nominated by politicians or elected by voters nor do they have anything to do with the political aspect of a nation.  Civil law judges control their own corps, grant their own promotions and assign judges to certain fields of law based on personal knowledge and understanding within the corps.  Common law judges should seek to be more politically insulated by following the methods of selection and promotion set forth by civil law nations.

3. The Practice of Precedence

In his book, Thinking Like a Lawyer, Fredrick Schauer writes, “The core principle of decision-making according to precedent is that courts should follow previous decisions – that they should give the same answers to legal questions that higher or earlier courts have given in the past.” This explanation is defining what is known as precedence or decisions from the past.  In the common law system, and therefore the United States legal system, it is often more important to remain committed to a decision made through precedence rather than to be right in an individual case.  This reasoning was put forth by Lord Edward Coke when he said, “It is better saith the Law to suffer a mischief than an inconvenience that may prejudice many.”  Is that true?  Is it better to listen to what another court said even if it may be the incorrect outcome in a specific case? What about the 6^th amendment guaranteeing citizens to a fair trial?

To understand these questions, we must understand the difference between non-binding and binding precedent.  A court may learn from or be persuaded by a similar case without following the actual holding of the case.  This is what is known as non-binding precedent.  For example, if a student studies for three hours before a test and gets an acceptable grade upon completion, the next time the student has a test, he or she will most likely study for three hours prior.  The student is not studying for three hours because he or she studied for three hours before, they are studying because that is sufficient time to achieve an acceptable grade on the test.  The student may still choose to study more or less than the three hours.  Similarly, in law, a decision may not be dictated by the existence of another case, but the existence may influence the judge to rule in a certain way because of a drawn connection or similarity.  Should the student case be transformed into a legal example, it would illustrate a scenario where the judge may use a prior case to assist in the ruling but may not necessarily be ruling from precedence.

Binding precedent becomes influential when, and only when, an attorney is able to successfully argue that the current case holds enough relevant similarity to the precedent case that the judge deems the precedent case to hold sway over the current case.  While this may sound easy, there is a lot of subjectivity that accompanies the definition of “relevant” similarity and while one attorney is arguing that there is enough similarity there is a just as talented opposing counsel member attempting to disprove your argument and prove there is no relevant similarities.  The strength of the two opposing arguments for and against a given precedential case is what keeps the system viable.  Neither side will concede to the other’s point until the judge’s final decision.  This means that in order for a case to be considered precedent and to be used as the reason a judge rules a certain way, it must be so similar that there is rarely a case of an individual receiving an unfair ruling based on precedent.

4. Conclusion

While the United States is operating under the common law system, there are some benefits to the civil law structure that should be taken into account.  The political dependency that is necessarily in the back of the common law judges’ minds should not be there and yet the system is not willing to adapt to create a corps of self-governing judges, as in a civil law nation.  While our judiciary may not be the most effective, the practice of precedent has a strong argument as it, overall, creates a more equal set of rulings.  The common law system is not a bad system, but neither is the civil law system. I believe that the United States is able to understand that there are benefits to both and, as a common law nation, we still manage to implement many features of civil law into our own combined system.