Using Civil Law to Teach Analogical Reasoning in the Common Law Ann Sinsheimer And Teresa Brostoff University of Pittsburgh School of Law

Similarities and Differences Between Judicial Decisions in Common Law and Civil Law Systems The Role of the Court: The Role of the Court: ● neutral arbiter v. active investigator ● separate branch of government v. dispute resolution body ● following precedent v. case by case decision-making

Stare Decisis and the Civil Law Binding precedent of common law v. practical scheme of following precedent in civil law Binding precedent of common law v. practical scheme of following precedent in civil law

The Role of the Holding in a Case Use of legal principles extracted from U.S. cases in subsequent legal reasoning v. negative answer questions in civil law Use of legal principles extracted from U.S. cases in subsequent legal reasoning v. negative answer questions in civil law

Role of the Facts Common law judicial reliance on facts to determine legal principles v. civil law reliance on abstract legal principles to apply to the facts Common law judicial reliance on facts to determine legal principles v. civil law reliance on abstract legal principles to apply to the facts Factually contextualized rules not common to both systems Factually contextualized rules not common to both systems

Role of Analogy References to specific facts v. references to cases putting forth a legal theory. References to specific facts v. references to cases putting forth a legal theory.

Role of Distinguishing When can common law and civil law courts depart from past legal precedents? When can common law and civil law courts depart from past legal precedents?

Inductive v. Deductive Reasoning Common law courts reason inductively Common law courts reason inductively Civil law courts reason deductively Civil law courts reason deductively

Role of Scholars Legal scholarship can be persuasive to a court in common law systems Legal scholarship can be persuasive to a court in common law systems Legal scholarship is the primary method of understanding court decisions in many civil law countries Legal scholarship is the primary method of understanding court decisions in many civil law countries

Barriers to Student Learning Uncertainty of how to distinguish between the two systems Uncertainty of how to distinguish between the two systems Prior learning styles and understanding of legal reasoning Prior learning styles and understanding of legal reasoning

Our Decision to Use Civil Law to Teach Common Law Original course designed for students entering U.S. law programs. Original course designed for students entering U.S. law programs. Later courses included students with diverse needs and with less incentive to learn particularly about U.S. case law. Later courses included students with diverse needs and with less incentive to learn particularly about U.S. case law. Students, however, maintained a desire to learn legal English and common law reasoning Students, however, maintained a desire to learn legal English and common law reasoning

Learning Theory Cognitive learning theory sees learners as active participants who bring their view of the world to the learning process (Arp 1993). Cognitive learning theory sees learners as active participants who bring their view of the world to the learning process (Arp 1993). Situated cognition theory suggests that learning takes place within concrete situations (Anderson et.al. 1996). Situated cognition theory suggests that learning takes place within concrete situations (Anderson et.al. 1996). Source of motivation for learning depends upon meeting learners’ expectations (Kemp et. al. 1994). Source of motivation for learning depends upon meeting learners’ expectations (Kemp et. al. 1994). Students learn by seeing connections to what is already familiar (Romiszowski 1981; Hayes 1996). Students learn by seeing connections to what is already familiar (Romiszowski 1981; Hayes 1996).

Applying cognitive theory to modify our course Identify skills that are generalizable across legal systems. Identify skills that are generalizable across legal systems. Draw upon expertise as lawyers in their home countries to understand the new context of common law reasoning. Draw upon expertise as lawyers in their home countries to understand the new context of common law reasoning. Focus on similarities in the reasoning in U.S. Supreme Court decisions and European Court of Justice decisions. Focus on similarities in the reasoning in U.S. Supreme Court decisions and European Court of Justice decisions.

Comparing the ECJ and the U.S. Supreme Court National court v. transnational court National court v. transnational court Both courts of general jurisdiction Both courts of general jurisdiction Final decision-making body for states or member nations Final decision-making body for states or member nations Supremacy of each court’s decisions Supremacy of each court’s decisions

European Court of Justice and Its Increasing Use of Precedent Developing body of case law Developing body of case law Move from short, authoritative decisions to longer, more case specific rhetoric Move from short, authoritative decisions to longer, more case specific rhetoric Counsel required to specify precedent and describe it and its relevance for the court Counsel required to specify precedent and describe it and its relevance for the court

Singh & Knauff The Queen v. Appeal Tribunal et Surinder Singh--Preliminary ruling (ECJ) Issue: “Where a married woman who is a national of a Member State has exercised Treaty rights in another Member State by working there and enters and remains in the Member State of which she is a national for the purposes of running a business with her husband, do Article 52 of the Treaty of Rome and Council Directive 73/148 of 21 May 1973 entitle her spouse (who is not a Community national) to enter and remain in that Member State with his wife?” Issue: “Where a married woman who is a national of a Member State has exercised Treaty rights in another Member State by working there and enters and remains in the Member State of which she is a national for the purposes of running a business with her husband, do Article 52 of the Treaty of Rome and Council Directive 73/148 of 21 May 1973 entitle her spouse (who is not a Community national) to enter and remain in that Member State with his wife?” Holding: Article 52 of the Treaty and Council Directive 73/148/EEC require a Member State to grant leave to the spouse to enter and reside in its territory. Holding: Article 52 of the Treaty and Council Directive 73/148/EEC require a Member State to grant leave to the spouse to enter and reside in its territory. Knauff v. Shaughnessy--federal question (S.Ct.) Issue: “May the United States exclude without hearing, solely upon a finding by the Attorney General that her admission would be prejudicial to the interests of the United States, the alien wife of a citizen who had served honorably in the armed forces of the United States during World War II?” Holding: The exclusion of the alien wife, a war bride, was affirmed. The procedures authorized by Congress was due process so far as an alien denied entry is concerned.

Principles revealed ECJ Upholds freedom of movement within the EU. Upholds freedom of movement within the EU. Supremacy of EU law over Member State. Supremacy of EU law over Member State. S.Ct. S.Ct. Upholds the concept of national borders and the ability to regulate immigration in the interest of national security; Upholds the concept of national borders and the ability to regulate immigration in the interest of national security; Executive and legislative ability to regulate immigration. Executive and legislative ability to regulate immigration.

Discussion Points for the Classroom Reliance on enacted law by both the e ECJ (treaty and directive) and the S.Ct. (constitution, legislation, executive proclamation). Reliance on enacted law by both the e ECJ (treaty and directive) and the S.Ct. (constitution, legislation, executive proclamation). Supreme Court, although within a common law tradition, will not expand power to review determination of political branch. (Are they acting like a civil law court?) Supreme Court, although within a common law tradition, will not expand power to review determination of political branch. (Are they acting like a civil law court?) ECJ upholding individual right in freedom of movement. (Are they viewing themselves as a protecting individual rights?) ECJ upholding individual right in freedom of movement. (Are they viewing themselves as a protecting individual rights?). ECJ is protecting integrity of EU, allowing freedom of movement within EU States. ECJ is protecting integrity of EU, allowing freedom of movement within EU States. ECJ preserves rights of EU over Nation State: What if Mr..Singh was outside the EU and not moving within the EU? ECJ preserves rights of EU over Nation State: What if Mr..Singh was outside the EU and not moving within the EU? Supreme Court is protecting borders of the U.S. by excluding an alien who is not yet within U.S. borders. Supreme Court is protecting borders of the U.S. by excluding an alien who is not yet within U.S. borders. Supreme Court preserves rights of legislative and executive branch, but not addressing power of a state government to regulate immigration: What would happen if a State attempted to make a law denying an alien entry into the State? Supreme Court preserves rights of legislative and executive branch, but not addressing power of a state government to regulate immigration: What would happen if a State attempted to make a law denying an alien entry into the State?