More on Liptak’s Criminal Justice Exceptionalism: Making a Case for Comparative Law?

by Peggy McGuinness

As I blogged about here, Adam Liptak has a terrific occasional series (“American Exception”) in the NYTimes examining common features of the US criminal justice system that are quite at odds with the approaches of other democracies. Liptak’s piece today examines the felony murder rule — a rule we adopted from the English common law, but which has in recent years been abolished in most other common law jurisdictions. Again, the focus of exceptionalism here — as with life sentences for juvenille offenders and the death penalty — is not so much that the US criminalizes behavior that others protect, but rather that the US system of punishment is out of step with the rest of the world.

I am not a comparative law scholar — though I often find myself explaining to my colleagues what comparative law is and how it is different from public international law. If, as a comparative law colleague at another school once told me, the value of studying other legal systems is to gain “critical distance” from the U.S. system, it strikes me that comparative criminal law would be a great place to start. This may be counterintuitive, particularly at state school where our graduates go on to populate the offices of the public defenders, prosecutors and attorney general, and thus appear only focus on state criminal law and constitutional criminal procedure. But it is precisely because many of our grads will control the levers of political power and the machinery of the state criminal justice system that they might usefully learn from how other states and countries handle the same questions of crime and punishment. I’d be interested to hear what OJ readers think about the value of teaching comparative law at non-elite schools.

One Response

  1. I fully support efforts to teach comparative law at non-elite schools for a couple of reasons.

    1. Finding how others deal with similar types of problems helps one understand that one is dealing with a rule in a given setting that is not immutable but is truly a choice. For example, relief through damages first as opposed to specific performance in contracts.

    2. Given the deepening of contact with international trade in the United States, the deepening of knowledge of other legal systems is important to help our graduates be able to compete.

    3. There is a tendency for firms to outsource knowledge of other legal systems by overlooking Americans in favor of foreigners who come from countries with comparative law as part of the fundamental legal training. This is another example of firms doing things on the cheap. The effect is to reinforce international hierarchy between elite graduates of elite schools around the world as opposed to allowing access to the knowledge and that level to talented persons who are not part of said elites. The law school can help redress that imbalance.

    4. Comparative law is fun and a wonderful gymnastic task for the brain.

    5. It opens students to language nuances too and what words mean when trying to cover similar but not identical legal topics (bonne foi and good faith, beyond a reasonable doubt and conviction intime, etc). It is a way to become open to other legal cultures.

    6. It prepares Americans of more diverse backgrounds to work in internatioanl commercial arbitration – a subject that I love. See The Color Line in International Commercial Arbitration: An American Perspective in ARIA 2004.

    7. It helps counteract efforts to make a virtue of ignorance of foreign laws and I hope will make American graduates who, if made judges, will be better judges then the ones we have now in dealing with foreign law.



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