Law study abroad

Different Accents in Law

The legal systems of Britain and the United States share a heritage in common law. Then why are they so different from each other?

Some years ago, professor A.E. Dick Howard was engaged in that particular pleasure of poking around in the old book store in London in this case not far from Gray's Inn when he happened upon an incredible treasure.

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"I managed to find a first edition of Blackstone's Commentaries from 1765," recall Howard, who teaches constitutional law at the university of Virginia in Charlottesville. "I couldn't believe my good fortune."

Blackstone's Commentaries was a sensation in Britain's 13 American colonies, which otherwise struggled without resources to apply an often unwritten common law inherited from the mother country on the other side of the Atlantic.

The publication of the Commentaries only a few years before those colonies gained their independence in many ways marked the pinnacle of British influence on American law. "On a different continent, American law began to develop its own face," Howard says.

As George Bernard shaw once noted, England and America are "two countries separated by the same language." And that notion holds true for jurisprudence, a well. The two nations share the history, language and values of the common law, but with distinct accents.

In some ways, current developments are bringing the British and U.S. legal professions closer than ever. Mergers and growing competition among law firms in both countries, along with the demands of an increasingly global economy are fostering more strategic alliances and transactional standardization. To some extent, each country's legal system is experimenting with elements drawn from its counterpart across the ocean.

If anything, U.S. lawyers are playing catch-up with their British counterparts in the global market place. "American firms are scrambling around the world," says Geoffrey C. Hazard Jr. of Philadelphia, a law professor at the University of Pennsylvania and a director emeritus of the American Law Institute. British firms are rapidly internationalising, and they still have connections from the old empire days, and we don't."


Further splits possible
But there also are powerful forces that may drive legal systems further apart. "Going forward, because of the European union, the divergence may grow," says lawyer who is a member of the planning committee for the London sessions of the ABA Annual meeting that will be held July 15-20.

All other countries in the European Union, of which the United Kingdom is a system, Tang notes. As Britain draws closer to the Continent, its legal systems also may evolve to confirm with EU structures.

"To grasp the similarities between the U.S. and compare with a civil law country, Judge Patrick E. Higginbothham of the 5th U.S. Circuit Court of Appeals in Dallas. "The civil law creates a court system that is quite different. When you take the worldview, England and the States are at least in the same pastures."

But within that pasture here still are many different strains. The British structure of law, for example, is based on acts of parliament, but there is no construction. In a critical departure from that structure, not only is American law government based squarely on the Constitution, but U.S. judge are empowered to rule on the constitutionality of legislation. In Britain, juries do not hear civil cases. In retaining the jury systems for civil as well as criminal cases, "Americans may be more British than the British," says professor Arthur Miller of Harvard Law School. Miller is an academic adviser for a book on the common legal heritage of the United States and Britain coming out this summer in conjunction with the ABA Annual Meeting.

There are other distinctions between the two systems, in terms of substantive law and procedure.

British rules limit discovery in litigation, and there are no class actions and no private enforcement of public laws. Meanwhile, U.S. courts and lawyers have to deal with a far more complicated government system "the most complicated in the world," says Higginbotham with a federal structure overlaying 50 state jurisdictions.

Seeking a sense of community
Where the British clearly still reign, at least in the minds of lawyers in their former American colonies, is in the realm of traditional professional values. "American lawyers are in search of regaining a sense of community with one another," says Roberta Cooper Ramo of Albuquerque, N.M., a past president of the ABA who chairs the London 2000 planning Committee. "Over there, the profession is small in number, and they still have that sense of community."

The reputation of British lawyers for collegiality and professionalism emantes largely from their courts and the tradition of trail lawyers to congregate their offices London's four Inns of Court, for instance, have been in existence since the 13th century.

In Britain, litigation duties are split between solicitors, who prepare cases, and barristers, who carry them forward in the courtroom, where respect and civility are the standard. Barristers still don their characteristic wigs and gowns, something American lawyers see only in the popular prints depicting British law that decorate their office walls.

But that distinctive image leaves an impression. Barristers are regarded worldwide as remarkably "articulate, quick and clever," says Benjamin R. Civiletti, a former U.S. attorney general now in private practice in Baltimore.

civiletti's assessment is widely shared by other members of the U.S. bar. "American lawyers entertain a mystique about the British bar," says Howard.

British trail lawyers are very impressive in their wigs and gowns. Barristers are uncommonly articulate and electrifying."

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