Like a first meeting with an estranged uncle, my introduction to American law has been a timid process. There is a certain sense of familiarity; they use English concepts, are a common law country at heart and use the jargon of law, even if they missed the rash of modernization in language that is all the vogue in reforming English law (the left the United Kingdom 250 years too early to benefit). At the same time certain parts of it are inexplicably alien, and some so estranged that this law student finds himself amazed that intelligent judges behave in such a manner.My first real brush with American law was Lawrence v. Texas 539 U.S. 558 (2003), a high profile case at the time that was cited in before the Hong Kong High Court in Leung TC William Roy v. The Secretary of Justice HCAL 160/2004. That case, which had considerable play in the media, and which I was fortunate to watch the arguments in, was about a provision of the Crimes Ordinance which made it illegal for a male under 21 years old to engage in homosexual intercourse with another male, but a heterosexual male or lesbian older then 16 was not restricted by the provisions in the same manner. Naturally this was held to be unjustified discrimination in contravention of the Basic Law and the Bill of Rights.
The facts in Lawrence v. Texas are of a similar enough mould with a Texas statute that prohibited intercourse between two males in private regardless of age. The question specifically dealt with was whether this provision violated the due process clause of the American constitution which prevents any state from enacting any laws that violate the rights given to individuals under the Federal Constitution.
Now it wasn’t the nature of the acts being protected that had me in a tizzy as much as the language of the Court and the tone of its judges. This was the Supreme Court, the single most important court in the continental Unites States and perhaps the court that was most significant in developing the power of constitutional documents to entrench and protect the fundamental rights of people. This was a court that had boasted the likes of Oliver Wendell Holmes Jr. as its Chief Justice as well as men like Howard Taft, notable for being the only person to be a judge, then the President of the United States, and then the Chief Justice of the Supreme Court. I expected erudite scholarship that was nuanced and accessible designed to unveil the law making process and show the rightness of the decision reached.
What I got was an opinion designed to be obscure, pedantic, technical and difficult from the majority [Judge Kennedy delivered the opinion of the court]; an opinion that was broad based, reasoned, internationalist and comprehendible from Sandra Day O Connor; and what can only be considered a bitter and angry rant from Anton Scalia that actually didn’t say a word about the case at all, but was viciously targeted at arguing the case must be an analogy with Roe v. Wade 410 US 113, and if this case was decided in favor of the majority, then Roe had to be reversed as well. What’s more he seemed to take it as a personal insult that O Connor had the nerve, the impudent audacity, to dare cite cases from foreign jurisdictions in the Supreme Court as evidence of what the common practice of most of the western world was when interpreting provisions of fundamental human rights and applying them to personal and sexual morality.
It was amazing to read. In the House of Lords (The UK’s top court) it would be unthinkable for a judge to actually criticize the opinion of a colleague so openly. If there was disagreement it would be noted, perhaps in a very English way, by a sentence. Commonwealth cases are cited often and increasingly there is a desire to look at the case law of the other common law jurisdictions, especially Canada and Australia (which was considered to be especially useful as they had a separate Court of Equity until the 1970s). The difference in tone was striking, none of the polite and reasoned formalism of English law, but an open argument of the essentially political dynamics that underlie law in the United States and the essential public policy concerns that are approached only in a circuitous manner in the UK.
Discussions with Kirk, one of the people I was working with at the time and a graduate of the law school at the University of Texas, revealed to me that this was actually the norm in decisions of the USSC. They always wrote obscurely, fought like tigers, and bickered like children, while deciding the most important cases in a country vast and significant.
More recently I’ve started to study Competition Law (known as Antitrust in the USA) in the hope that Hong Kong will soon enough see such a law of its own to break up the cartels that control our notionally free economy. As an area of law created in the United States, dedicated to protecting the American ideal of vigorous competition as being beneficial to the humble consumer and capable of promoting the growth of a state of the art modern economy, it has become necessary to read a lot of American case law to get to grips with the way the law has evolved.
From this I learned that this tendency to vagueness, over-complication, love of incessant jargon and constant personal bickering is something that existed in the Justices of the court since at least the inception of the Sherman Act in 1915 and seemed entrenched and expected in decisions of the Supreme Court. These faults, which is what I perceive them to be, in their opinions seemed to flow from an early date, and perhaps have conditioned the expectation of American lawyers. It has contributed significantly to the esoteric nature of legal practice in the USA, of that I have no doubt.
I’ve also started slowly investigating for myself the creation/evolution debates (deserving a post of its own later) and as part of that I read the recent case of Kitzmiller v. Dover 400 F.Supp.2d 707 (M.D. Pa. 2005) which held that teaching Intelligent Design in public school biology classes violates the Establishment Clause of the First Amendment to the Constitution of the United States because intelligent design is not science and “cannot uncouple itself from its creationist, and thus religious, antecedents.” It was a judgment that I found many interesting aspects in. These were more in the approach of the court to the delivering an opinion and in the style with which the opinion was written rather then with its actual decision. From my limited experience of American judges Judge John E. Jones III is far more erudite then his peers and capable of writing with clarity and precision.
What struck me as odd were the fact that he used footnotes. Judges in the UK derivative legal world just don’t do that. Their judgments are comprehensive from within. All the relevant information is packed into the main text. Subsidiary points are decided in the main text as the narrative move along. Almost everything that is moved by Judge Jones, and I presume his contemporaries as well into its own section below the end of page line is instead something that is considered to be part of the main decision and an important step in reading the essential financial decision. Authorities are cited in the main text, the arguments of the parties are dealt with in the main text and the effect of previous lower court decisions is also discussed in the main body.
The second odd thing that I found was the tendency for the judge to extensively refer to the testimony of witnesses and to footnote and indicate where exactly in documents he was lifting quotations from. These might be in witness statements, complaints, defenses, the affidavits of expert witnesses and so on. They were all meticulously cited and facts were always referred to their source.
An English court does nothing of the sort. It never quotes individuals. When it does, it prefers to quote the Barristers arguing the case who are usually identified by the law report. References to the exact words of other participants are exceedingly rare. When the judge speaks himself, he speaks with all the authority of his office, his status and his position as an esteemed servant of the Crown and as a personal embodiment of Justice herself. His word is literally the law, and considered to be absolutely true. A judge who adduces a statistic into his judgment does not reference it, does not tell you the source or why it was mentioned at trial (unless relevant to the point he’s trying to make). It is presumed self evidently true because a robed and bewigged incumbent of the Bench has stamped upon it his authority.
It’s strange to encounter American law, because it feels so familiar and so inexplicably different at the same time, a taste of sweet and sour. It is our most famous notion of justice, spread wide by Hollywood and Television. Most people know of the laws of the USA, even when they are absolutely ignorant of their own because they’ve watched Ally McBeal, The Practice or CSI. It pervades most constitutional law, is a dominant force in Human Rights law and Commercial/Financial Law. For all that though, there is a distinct exotic flavor to it that makes it sit not just right in my mind. It looks, acts, tastes and smells like law, but it doesn’t intuitively feel like what law should feel like. Its participants don’t behave like lawyers or judges. Yet they clearly are lawyers and judges, in perhaps one of the most mainstream legal traditions in the world. It’s been an interesting introduction but as a student, I’m glad I grew up in the UK’s legal tradition.