Comparing Common Law &
Civil Law Legal Traditions
• What constitutes a “legal tradition?”
How do we recognize a “legal tradition?”
• How do we distinguish a legal system from
a legal tradition?
• What sorts of features should countries
that share a legal tradition have in
common?
Common
Law
Tradition
Civil Law
Tradition
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Li v. Yellow Cab Co.
• Facts:
• Procedural history:
– What happened at trial?
– What was the prevailing rule?
• Contributory vs. comparative negligence
• Issue: Whether to change the rule
• Holding:
– CA Sup Ct adopts comparative negligence
– So what? Why does this matter?
Who benefits?
• Interest of insurance companies
• Is it easier for judges than legislators to go against
entrenched business interests?
• Remember that judges are popularly elected
• Rationale / Reasoning
– Majority (Sullivan)
– Dissent (Clark)
La Mutualite Industrielle v. Epoux Charles
• Facts:
• Procedural History:
– Trial court decision
– Intermediate court decision
• Decision by Cassation Court:
Does this court side with the trial or appellate ct?
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• How does the role of the judges differ
between the US and French cases?
• What is the controlling source of law in
each case?
• How are the two opinions different?
How can we explain the differences in
style? Who is the audience for the US
opinion? For the French opinion?
Role of Legal Culture
• Kagan argues that US has distinctive legal
culture that he labels as “adversarial
legalism.”
• Key qualities:
– Tendency to sue to resolve disputes
– Key actors in dispute resolution are litigants &
their lawyers (not judges or state officials)
– Organization of state is characterized by
fragmented authority and weak hierarchical
control
• Consequences of adversarial legalism
for participants:
– Process is very costly
• Time, money, knowledge
– Lack of certainty to process
• Is Kagan right that adversarial legalism is
more likely to arise in US than elsewhere?
Why?
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Kagan’s argument:
Organization of
Dec-making
Authority
Decision-making style
Informal
Formal
Hierarchical
Expert or
political
judgment
Bureaucratic
Legalism
Participatory
Negotiation /
mediation
Adversarial
Legalism
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