The Influence of Comparative Procedure in the United States

Abstract

Comparative law, especially the study of legal institutions and procedures, should be ranked among the most illuminating branches of legal science. When teaching a course that emphasizes comparative procedure, I remind students of the justification that was given them when they were asked to learn Latin in school: We study Latin to learn English. So with comparative law. American law students are not training to become lawyers or judges in Berlin or Paris. The purpose of comparative study is to help understand what is distinctive (and problematic) about domestic law. Study the European civil-service judiciary, for example, and you will be forced to ask why in the Anglo-American legal systems we construct our judiciary so differently: Why do we select our judges so much later in their professional careers? Why do we recruit our judges exclusively from the ranks of practicing lawyers rather than training them as a career magistracy? Why is political partisanship still so prominent in judicial selection in the United States? Foreign example teaches you about your own system, both by helping you ask important questions, and by suggesting other ways. Comparative procedure is, therefore, a profoundly interesting and instructive discipline. I have been asked to report to the International Association of Procedural Law on the influence of that comparativeprocedure in the Unites States. My report is short and sad: The study of comparative procedure in the United States has little following in academia, and virtually no audience in the courts or in legal policy circles.