Summary of Articles/Cases in Footnotes

Casebook Readings Summary of articles/cases in footnotes

Part01-Introduction

, footnote 19. (Paulina Castro - 06/04)

The American scheme of justice: the shift from a ‘civilized’ to an ‘American’ standard. Comments by Judge’s Wisdom in Melancon v. McKeithen, 345 F.Supp. 1025. at 1038.

In Melacon, Judge Wisdom’s addresses the issue of the American scheme of justice by pointing out that over the years, the Supreme Court has held most of the guarantees of the Bill of Rights to be requirements of due process. Judge Wisdom points out that in reaching this result, the Court has characterized the particular guarantee in question as one of the “fundamental principles of liberty and justice which lie at the base of all our civil system of jurisprudence . . . implicit in the concept of Anglo American ordered liberty, and fundamental to the American scheme of justice.”

Judge Wisdom stresses that the emphasis on the American scheme of justice seems to represent a shift from the notion that the Bill of Rights is part of the fundamental rights without which there could be no civilized system of justice. It is a shift toward pragmatic recognition of what is a fair trial in the kind of system that is developing here and now and for the future. [example?]

There is play in the joints for experimentation by states in their procedural processes. [example] There is less reliance on the literal language or the specifics of the Bill of Rights. Page 11, footnote 30. (Paulina Castro - 06/04)

R. H. Helmholz, Continental and Common Law: Historical Strangers or Companions?, 1990 Duke L.J. 1207

In anticipation to the formation of the European Union (EU), Helmholz wrote this article to contend that the intermingling of the civil law and common law systems that would result from the EU would not entirely be an innovation. Instead, such mix would constitute a return to a state of affairs that existed before the 19th century.

In addressing such issue, Helmholz points out that our ancestors, as lawyers, were familiar with international sources of law, that they borrowed from them, that they did so more than once in a great while, and that this borrowing was very important in the development of common law.

In making the argument that such civil law influence on common law jurisdictions would not be unprecedented, the article examines three important moments in the history of the common law: the granting of Magna Carta in 1215; the English constitutional struggles of the early 17th century; and the formulation of American jurisprudence during the early years of the American Republic.

With regards to the first moment, the granting of Magna Carta, influence of civil law occurred, for example, with real property and the testamentary freedom allowed by civil law and later on adopted by common law. Both, civil law and cannon law stressed the principle of testamentary freedom.

With regards to the second moment, the 16th and 17th century common law, Helmholtz points out how English lawyers in this time of growing sophistication and constitutional struggle made any use of or drew any inspiration from the civil law. In general terms, the common lawyers took a source, civilian in origin, and used it for their own purposes, and the result turned out to be quite different from what existed in the ius commune. Once planted in the common law, civil law doctrines quickly took on lives of their own. Suggestive of the time of Magna Carta, civilian rules were seized upon and applied to current legal problems. [give examples] The rules were changed in the process. The results in this formative era of the common law ranged from the legally fundamental to the ridiculous. However, the habit of mind that looked to Continental sources for ideas and help was common to both periods and to several areas of law.

With regards to the civil law in the early American Republic, Helmholtz selects three examples in which American lawyers found European traditions useful in shaping the law.

The first occurred in situations in which the common law was deficient and civil law was used as gap filler. In this regard, the author stresses the influence of Joseph Story whose work aimed towards the use of the works of civilians, to illustrate, confirm, and expand the doctrines of the common law. [examples?] Story did that and more expounding a variety of rules and principles drawn from the civil law, which he both saw, and wished to see, incorporated into the very substance of the jurisprudence of the American states.

A second instance of American usage of civil law happened where the common law cases were abundant and clear enough, but were (in the opinion of American judges) mistaken. Where common law rules were thought unsuitable to conditions in the new land, or considered contrary to principles of justice and utility, they were set aside in favor of better rules, and the civil law provided one likely source for better rules. [examples]

Finally, the civil law was widely regarded as a source of fundamental principles of reason and justice in the early republic. Civil law lawyers had much to say about natural rights and rights recognized under the law of nations. American lawyers knew of the ‘Natural Law School’ and sometimes judges called upon civil law when they needed justification for the court’s action in a hard case. [examples] Civil law provided a way to show that judge’s rulings were not harsh but instead were based in the application of universally admitted legal principles.

Therefore, Helmholtz concludes that the presence and influence of civil law in common law dates back to as early as the time of the Carta Magna, and thus, the intermingling of both legal systems that will likely occur as a result of the EU is no innovation. Instead it’s a return to the past.