Lecture notes 2/22/23

COMPARING COMMON LAW AND CIVIL LAW

1. Civil law judges

a. Emphasis on a substantive truth: can be found through a methodical gathering and
analysis of the fact
b. They decide bc they’re a specialist
c. Not appointed
2. Common law is adversarial
a. Two opposing parties develop a theory
b. Gather evidence supporting it
c. Present it to others
d. Most convincing theory winds
e. Emphasis on procedure (dueling parties presenting diagnosis): produce the truth
by winning a competition of facts
f. Jury decided based on evidence
3. Comparison
a. Adversarial Common law
i. Judge referees presentation of evidence during a trial
1. Lawyers on each side decide what “facts” should be and how they
“fit” the law
2. judge/judge makes decision
b. Inquisitorial Civil law
i. Judge guides the collection of evidence over an inquiry
1. Decides what “facts” need to be known to figure out where the
case “fits” within the code
2. Judge makes the decision
c. 2 ways of discovering truth
i. common law
1. Competitive
2. Each party (prosecutors and defense) produces its own evidence
a. Drawback
i.
3. A lay jury will decide if they are convinced by the facts or not
ii. Civil law
1. “Monopoly”
2. One party (judge) has the interest to “solve” the legal question
3. An expert judge decides if they’re convinced by the facts or not
4. How much does it cost?
 a. Efficient: cost to tax payer; cost to everyone (private and public)
b. Common
i. People shoulder costs of producing evidence
1. Costs state (taxpayers) little
2. Cost to individuals depends on what they can afford
3. Jury only has parties’ evidence to decide from, which may be
asymmetrical
ii. High costs to state, but less private costs to parties
iii. Will gather the same evidence for everyone
5. Which will lead to the best outcome?
a. Produces the necessary evidence to determine the case
6. What are the incentives to produce evidence?
a. Civil
i. One party (judge) has the interest to “solve” the legal question
1. Drawback
a. Will producer “just enough” evidence to solve the case;
may underproduce
ii. An expert judge will decide if they’re convinced by the facts or not
1. Drawback
a. Will father the same evidence for everyone