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Civil law precedent Role of precedent in civil law General rule Exceptions Functional equivalent: Rota romana Some examples Louisiana (mixed system) Germany.

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Presentation on theme: "Civil law precedent Role of precedent in civil law General rule Exceptions Functional equivalent: Rota romana Some examples Louisiana (mixed system) Germany."— Presentation transcript:

1 Civil law precedent Role of precedent in civil law General rule Exceptions Functional equivalent: Rota romana Some examples Louisiana (mixed system) Germany (judicial-centric)

2 General rule “Civil law world does not regard judicial pronouncements as binding in subsequent cases.” (principal touchstone: common law vs civil law) Questions – Does this permit judicial/legal fluidity? (Jason) What about “legal certainty”? (David, Elizabeth, Lucas) Too much flexing with the times? (Kate, Caitlin)

3 Pop quiz Exceptions: A. Deviation from prior decision of highest court requires en banc decision B. Successive decisions become controlling C. Constitutional courts’ decisions have force of law D. Judge-made customary law is binding E. Received code includes extant high-court interpretations Match: (Caitlin) __ Germany __ France __ Italy __ Puerto Rico __ Mexico __ Brazil

4 Pop quiz Exceptions: A. Deviation from prior decision of highest court requires en banc decision B. Successive decisions become controlling C. Constitutional courts’ decisions have force of law D. Judge-made customary law is binding E. Received code includes extant high-court interpretations Match: __ Germany __ France __ Italy __ Puerto Rico __ Mexico __ Brazil

5 Pop quiz Exceptions: A. Deviation from prior decision of highest court requires en banc decision B. Successive decisions become controlling C. Constitutional courts’ decisions have force of law D. Judge-made customary law is binding E. Received code includes extant high-court interpretations Match: __ Germany __ France __ Italy __ Puerto Rico __ Mexico __ Brazil

6 Pop quiz Exceptions: A. Deviation from prior decision of highest court requires en banc decision B. Successive decisions become controlling C. Constitutional courts’ decisions have force of law D. Judge-made customary law is binding E. Received code includes extant high-court interpretations Match: __ Germany __ France __ Italy __ Puerto Rico __ Mexico __ Brazil

7 Pop quiz Exceptions: A. Deviation from prior decision of highest court requires en banc decision B. Successive decisions become controlling C. Constitutional courts’ decisions have force of law D. Judge-made customary law is binding E. Received code includes extant high-court interpretations Match: __ Germany __ France __ Italy __ Puerto Rico (David – curious transplant) __ Mexico __ Brazil

8 Pop quiz Exceptions: A. Deviation from prior decision of highest court requires en banc decision B. Successive decisions become controlling C. Constitutional courts’ decisions have force of law D. Judge-made customary law is binding E. Received code includes extant high-court interpretations Match: __ Germany __ France __ Italy __ Puerto Rico __ Mexico (5/split super-majority – Erika) (“super precedent” – Reid) __ Brazil

9 Pop quiz Exceptions: A. Deviation from prior decision of highest court requires en banc decision B. Successive decisions become controlling C. Constitutional courts’ decisions have force of law D. Judge-made customary law is binding E. Received code includes extant high-court interpretations Match: __ Germany __ France __ Italy __ Puerto Rico __ Mexico __ Brazil (sumula headnotes - Erika)

10 Civil law precedent What is the difference between “jurisprudence” and “doctrine”? What is the difference between “jurisprudence constante” and “stare decisis”? (Reid, Elizabeth, Jason, Erika, Caitlin) What is “vertical/horizontal” stare decisis? (David)

11 Rota romana

12 Ius commune: procedure permitting judge to consult “wise men” (legal experts) Papal auditors meet in room with “wheel” floor ornament Give statement of facts and conclusion / but no legal analysis Notes by auditors (decisiones rotae) highly persuasive in ius commune courts Opinion of Rota becomes “common doctrine” Rota qundoque rotat Any US parallel? (Reid)

13 Breedlove v. Turner (La. 1821) Facts: Issue: Holding: Analysis (6 defenses): Conclusion:

14 Breedlove v. Turner (La. 1821) Facts: Issue: Holding: Analysis (6 defenses): Conclusion: Breedlove hires attorney Turner to collect on bill of exchange given by Fletcher. Turner sues in New Orleans parish – wrong court. Breedlove then brings malpractice claim against Turner.

15 Breedlove v. Turner (La. 1821) Facts: Issue: Holding: Analysis (6 defenses): Conclusion: Did Turner wrongly disregard precedent of La. Sup Ct [Johnson v. Dunwoody (La. 1819)] that no jurisdiction in other than parish court where bill of exchange arose?

16 Breedlove v. Turner (La. 1821) Facts: Issue: Holding: Analysis (6 defenses): Conclusion: Rejects all six defenses – attorney must be aware of precedent or be responsible for the consequences.

17 Breedlove v. Turner (La. 1821) Facts: Issue: Holding: Analysis (6 defenses): Conclusion: Defense 1: Johnson v. Dunwoody (La 1819) was wrong. Correct interpretation allows suit in outside parish. Court: Even though change in court membership, case law still good.

18 Breedlove v. Turner (La. 1821) Facts: Issue: Holding: Analysis (6 defenses): Conclusion: Defense 2: Johnson v. Dunwoody (La 1819) is not law. Power to make law is legislative, not judicial. Court: News to us. We interpret legislative will, using analogies. Not bound to “obscure commentator” who lived centuries ago. Decide in “light of age” (But first a digression)

19 A digression … England: courts interpret statutes and create law France: “science of jurisprudence carried to great perfection” (referred to in doctrinal writings) Decisions of Court of Cassation 250 collections of arrets from Ancien Regime (reporters = arretistes) “Why else collect and preserve?” (and then some policy analysis) Stare decisis produces – Uniformity General acquiescence (rule of law) Predictability (“men not acquainted with their rights”) Transparency (decisions printed in reporters) Stare decisis induces judicial humility (otherwise judicial power unbridled)

20 A digression … England: courts interpret statutes and create law France: “science of jurisprudence carried to great perfection” (referred to in doctrinal writings) Decisions of Court of Cassation 250 collections of arrets from Ancien Regime (reporters = arretistes) “Why else collect and preserve?” (and then some policy analysis) Stare decisis produces – Uniformity General acquiescence (rule of law) Predictability (“men not acquainted with their rights”) Transparency (decisions printed in reporters) Stare decisis induces judicial humility (otherwise judicial power unbridled)

21 Breedlove v. Turner (La. 1821) Facts: Issue: Holding: Analysis (6 defenses): Conclusion: Defense 3-5: Refer doubtful cases to the legislature. Attorney immune when giving counsel. Attorney not fraudulent or neglectful. Court: No constitutional authority to refer (compare France). Attorneys not less, and perhaps more, responsible as counselor. Statute makes attorneys liable for neglect, including carelessness.

22 Breedlove v. Turner (La. 1821) Facts: Issue: Holding: Analysis (6 defenses): Conclusion: Defense 6: The attorney only committed an error of judgment. Trial court and dissenting appeals court judge thought there was jurisdiction. And other attorneys rally in support. Court: “No man is supposed to know any branch of the law perfectly” (the fix is in - Erika)

23 Breedlove v. Turner (La. 1821) Is Louisiana a “civil law” jurisdiction – Does court say it bound by code? (Lucas, David) does court explain conclusion? (Jason, Caitlin) are lawyers obligated to know case law? (Kate)

24 Civil law precedent Does it make sense for a civil law system NOT to have stare decisis? John Henry Merryman

25 Precedence in Germany German Civil Code: Debtor “in default” must pay interest, unless holds reasonable opinion that not in “default” What is “default”? Decision German Reichsgericht (1922): not reasonable if debtor holds view adversely determined by highest court

26 Obligation of lawyer to ascertain precedent Decision German Reichsgericht (1984): Facts: P held liable on pre- incorporation contract when acted on behalf of unregistered corporation (LLC). Issue: Is P’s lawyer negligent for not knowing of cases accepting “novation” theory – person acting for corporation released once corporation adopts contract? Holding: Yes, lawyer negligent for not knowing. Should have appealed erroneous lower court decision.

27 Neuerfasthof GmbH v. K (German Reichsgericht 1928 ) Mrs. K Neurfasthof GmbH land shares

28 Neuerfasthof GmbH v. K (German Reichsgericht 1928 ) Mrs. K Neurfasthof GmbH land shares M Corp mortgage gold

29 Neuerfasthof GmbH v. K (German Reichsgericht 1928 ) Mrs. K Neurfasthof GmbH land shares M Corp mortgage gold What’s really happened?

30 Neuerfasthof GmbH v. K (German Reichsgericht 1928 ) Facts: K transferred her land to a registered LLC set up by M Corp and got registered stock. M Corp obtained a mortgage on the land and gave a loan of kg of gold. K worries that M Corp will foreclose on mortgage and she will lose the land. She claims she was mentally insane (siphylis) when she transferred her land to the LLC. She wants the mortgaged canceled and the land returned to her. Issue: Can K have her land transfer rescinded on the theory she was mentally deranged? Relevant that land transferred in June 1923?

31 German Hyperinflation Number of German Marks to buy one ounce of gold Jan Sept Jan ,340 Sept ,201 Jan 19211,349 Sept ,175 Jan ,976 Sept ,381 Jan ,477 Sept ,439,000 Oct 2, ,631,749,000 Oct 9, ,868,950,000 Oct 16, ,969,072,000 Oct 23, ,160,552,882,000 Oct 30, ,347,070,000,000 Nov 5, ,700,000,000,000 Nov 30, ,000,000,000,000

32 German Hyperinflation

33 Neuerfasthof GmbH v. K (German Reichsgericht 1928 ) German Civil Code 138(2) … a jural act is void whereby a person exploiting the difficulties … of another causes to be granted to himself … pecuniary advantages which exceed the value of the consideration … disproportion obvious …. German Corporate Law (customary): Transfer of land to a registered corporation is binding since it is public act on which creditors rely. [many decisions – preservation of capital, public certainty] German Civil Code 826 One who intentionally injures another in a manner violating moral precepts is liable to the other ….

34 Some comparative law … Is Germany a civil law or common law country? (Why follow custom? David)


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