3 Tim Büthe and Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy (Princeton, 2011) 45.
4 Even if political influence is reduced, other non-substantive factors such as financial support and organizational motivation can affect outcomes. Büthe and Mattli, The New Global Rulers 45.
5 The proposals of this book, and particularly the Functional Thesis, are limited to adjudicatory settings. There are similar, though distinct, issues that arise regarding regulation of transnational legal practice more generally. For some proposals regarding regulation of transnational legal practice, see Catherine A.Rogers, ‘Cross-Border Bankruptcy as a Model for Regulation of International Attorneys’, in Making Transnational Law Work in a Global Economy: Essays in Honour of Detlev Vagts (Cambridge University Press, 2010); Laurel S. Terry, ‘Creating an International Network of Lawyer Regulators: The 2012 International Conference of Legal Regulators’, 18 The Bar Examiner (June 2013); Laurel S. Terry, et al., ‘Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology’, 80 Fordham L. Rev. 2661 (2012).
6 Alasdair MacIntyre, ‘What Has Ethics to Learn from Medical Ethics?’ 2 Phil. Exchange 37, 46 (1978).
7 This example is borrowed from Ted Schneyer’s insightful work, Ted Schneyer, ‘Moral Philosophy’s Standard Misconception of Legal Ethics’, 1984 Wis. L. Rev. 1529, 1534; see also Vincent Luizzi, A Case for Legal Ethics (1993) (arguing that lawyers’ norms are forged within a social practice and derived from role conceptions (the lawyer as advocate, negotiator, advisor, etc.) rather than from vague starting points such as John Rawls’ ‘original position’); Ted Schneyer, ‘My Kind of Philosopher: A Lawyer’s Appreciation of Joel Feinberg’, 37 Ariz. L. Rev. 10 (1995).
8 The term ‘advocate’, and its counterparts in other Western European languages (i.e., the French avocat and avoué, the Italian avvocata, the Spanish abogado, the Swedish advokat, or the Polish adwocacka) have common historical origins. See Linda S. Spedding, Transnational Legal Practice in the EEC and the United States 88 (1987).
9 Philip S.C. Lewis, ‘Comparison and Change in the Study of Legal Professions’ in Richard L. Abel and Philip S.C. Lewis, (eds.) Lawyers in Society, Volume Three: Comparative Theories (1989) 27–79, 32; see also Kelly Crabb, ‘Providing Legal Services in Foreign Countries: Making Room for the American Attorney’, 83 Colum. L. Rev. 1767, 1770 and n. 13, 1779–82 and nn. 62–82 (1983) (Note) (describing the various national designations for persons who perform legal functions).
10 For a more precise definition of the advocate’s role, see paras 7.33–7.35.
13 See Judith Resnik, ‘Tiers’, 57 S. Cal. L. Rev. 837, 839 (1984) (arguing that procedure has normative content reflected in the features of procedural models and the structure of decision-making). Other factors that affect the role of the attorney are rules of evidence and cultural traditions.
14 See Oscar G. Chase, ‘Legal Processes and National Culture’, 5 Cardozo J. Int’l & Comp. L. 1, 8 (1997); see also Geert Hofstede, Culture’s Consequences (Sage Publications, 1980) 25; Roger Cotterrell, ‘The Concept of Legal Culture’, in D. Nelken (ed.), Comparing Legal Cultures (Dartmouth, Aldershot, 1997).
15 See Chase, ‘Legal Processes and National Culture’ 9.
16 Mirjan R. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986) 11.
17 Joshua Karton, The Culture of International Arbitration and the Evolution of Contract Law (2013) 19.
18 See, e.g., Luxembourg Code of Civil Procedure, Art. 378; Portuguese Law on Voluntary Arbitration, Art. 10(1); Quebec Code of Civil Procedure, Art. 942.
19 Carrie Menkel-Meadow, ‘Ethics and Professionalism in Non-Adversarial Lawyering’, 27 Fla. St. U.L. Rev. 153 n. 49 (1999).
20 For example, in the United States, ‘[u]sually, by virtue of a statutory provision or a rule of court, a judge of a court of record is prohibited from practicing law’. 46 Am. Jur. 2d Judges § 48 (2004).
21 Jonathan R. Macey, Judicial Preferences, Public Choices, and the Rules of Procedure, 23 J. Legal Stud. 627, 630 (1994); Emerson H. Tiller and Frank B. Cross, ‘A Modest Proposal for Improving American Justice’, 99 Colum. L. Rev. 215, 216 (1999).
22 ‘[T]he law struggles mightily, and generally successfully, to prevent judicial forum shopping … In arbitration, by contrast, something akin to forum shopping—the search for a panel with the array of experience and skills sought by the parties—is not only permitted but encouraged.’ Francis O. Spalding, ‘Selecting the Arbitrator: What Counsel Can Do’, in What the Business Lawyer Needs to Know About ADR (Commercial Law and Practice Course Handbook Series No. 770, Practicing Law Institute, 1998) 351, 353.
23 In the United States, the principle has been held to preclude an old practice of calculating judges’ incomes based on the number of convictions they presided over. See Tumey v Ohio, 273 U.S. 510, 523 (1927) (concluding that under this arrangement, the judge would have a ‘direct, personal, substantial pecuniary interest’ in the outcome of the case).
24 See William W. Park, ‘Bridging the Gap in Forum Selection: Harmonizing Arbitration and Court Selection’, 8 Transnat’l L. & Contemp. Probs. 19, 50 (1999) (‘Presumably arbitrators will be more likely than courts to find jurisdiction, since arbitrators get paid if they hear a dispute.’); Julia A. Martin, ‘Arbitrating in the Alps Rather Than Litigating in Los Angeles: The Advantages of International Intellectual Property-Specific Alternative Dispute Resolution’, 49 Stan. L. Rev. 917, 967 (1997) (arguing that since arbitrators’ fees under the ICC rules are set based on ‘the complexity of the case, as reflected in the award’, arbitrators have ‘an incentive to write unnecessarily elaborate opinions’).
25 Gary B. Born and Ethan G. Shenkman, ‘Confidentiality and Transparency in Commercial and Investor-state International Arbitration’, in Catherine A. Rogers and Roger Alford (eds.), The Future of Investment Arbitration (Oxford University Press, 2009) 5.
26 See Richmond Newspapers, Inc. v Virginia, 448 U.S. 555, 581 n. 18 (1980) (concluding that the public has a qualified First Amendment right to access criminal trials).
27 Shirley S. Abrahamson and Robert L. Hughes, ‘Shall We Dance? Steps for Legislators and Judges in Statutory Interpretation’, 75 Minn. L. Rev. 1045, 1088 (1991) (noting that judges are ethically prohibited from engaging in political activities because ‘[t]he public expects the courts to work above the tangle of partisan politics’).
28 See, e.g., Schmitz v Zilveti, 20 F.3d 1043, 1048 (9th Cir. 1994) (tying an arbitrator’s obligation to investigate possible conflicts of interest to his status and ethical obligations as a lawyer); see also Geoffrey C. Hazard, Jr., ‘When ADR Is Ancillary to a Legal Practice, Law Firms Must Confront Conflicts Issues’, in 12 Alternatives to the High Cost of Litigation (1994) 147, 147 (‘Applying this rule [regarding conflicts of interest] to [mediation], a law firm engaging in ADR practice must observe the rules of ethics—particularly the rules concerning conflict of interest—in the ADR work and the other practice, considering them as a single practice.’); John Yukio Gotanda, ‘Setting Arbitrators’ Fees: An International Survey’, 33 Vand. J. Transnat’l L. 779, 801–6 (2000) (arguing that Model Rules 2.2 and 5.7 might apply to attorneys acting in the capacity of arbitrator).
30 Menkel-Meadow, ‘Ethics and Professionalism in Non-Adversarial Lawyering’ 183–4.
31 Menkel-Meadow, ‘Ethics and Professionalism in Non-Adversarial Lawyering’ 162; see also Carrie Menkel-Meadow, ‘The Lawyer as Consensus Builder: Ethics for a New Practice’, 70 Tenn. L. Rev. 63, 63–84 (2002) (analysing how the functional role of advocates differs from various dispute resolvers).
32 Lawyers’ duty of loyalty and tolerance for lawyers’ independence are not universal. For a comparative analysis of the attorney’s duty of loyalty, see Rogers ‘ Fit and Function in Legal Ethics: Developing A Code of Conduct for International Arbitration’, 23 Mich. J. Int’l L. 341, 368–70.
33 One attorney might be bound by two different sets of professional obligations—one when he or she is acting in the role of advocate and another when he or she is acting as a decision-maker. The multiplicity of ethical obligations is a product of the fact that ‘no one is ever an abstract moral agent’. Rogers, ‘Fit and Function in Legal Ethics’ 381.
34 See, e.g., Abram Chayes, ‘The Supreme Court, 1981 Term-Foreword: Public Law Litigation and the Burger Court’, 96 Harv. L. Rev. 4 (1982); Abram Chayes, ‘The Role of the Judge in Public Law Litigation’, 89 Harv. L. Rev. 1281 (1976); Owen Fiss, ‘The Social and Political Foundations of Adjudication’, 6 Law & Hum. Behav. 121 (1982); Owen Fiss, ‘The Supreme Court, 1978 Term-Foreword: The Forms of Justice’, 93 Harv. L. Rev. 1 (1979).
35 See Lon L. Fuller, ‘The Forms and Limits of Adjudication’, 92 Harv. L. Rev. 353, 369 (1978). As Jonathan Molot has pointed out, ‘[A]ny victory Chayes enjoyed over Fuller, and any defeat suffered by Fuller, was only partial. Chayes may have succeeded in discrediting Fuller’s arguments regarding the types of disputes courts could handle (which Fuller dubbed adjudication’s “limits”), but he did not discredit Fuller’s observations regarding the adjudicative process (which Fuller dubbed adjudication’s “forms”).’ Jonathan Molot, ‘An Old Judicial Role for a New Litigation Era’, 113 Yale L.J. 27, 36 (2003).
36 Fuller, ‘The Forms and Limits of Adjudication’ 369.
37 Fuller’s definition of ‘adversarialism’ is framed narrowly in terms of the uniquely US-style ‘partisan advocate’. While a dispute is, by definition, founded on adverse positions that must be advocated and advanced by the parties and their counsel, it is not necessarily true that that function must take the form of US-style ‘partisan advocacy’. The accentuation of a culturally defined adversarialism prevents Fuller’s definition from having cross-cultural, universal potency. One possible explanation for Fuller’s cultural blinders is that although he averred to be defining adjudication in ‘the very broadest sense’, he was really only attempting to define the meaning of adjudication within the framework of the US Constitution. See Fuller, ‘The Forms and Limits of Adjudication’ 353.
38 Fuller and many other scholars of procedure use the term ‘impartiality’, but in an imprecise way that conflates two distinct concepts: the moral agent’s role and the ethical requirements that derive from that role. The term ‘separateness’ connotes the status or role of a decision-maker in relation to the parties, whereas ‘impartiality’ connotes the resulting mental state or conduct that should flow from that status.
39 For example, like the term ‘impartiality’, the term ‘adversarialism’ has multiple connotations. Fuller and other more contemporary scholars of US procedure ascribe an intracultural meaning to the term, while comparativist scholars use the term to designate intercultural differences, particularly to contrast ‘inquisitorial’ systems on the Continent. The former uses ‘adversarial’ to designate the dialectic ideal underlying litigation as a form, whereas the latter uses the term to emphasize the fact that the parties, not the judge, controls the gathering of evidence and presentation of proofs. Compare Fuller, ‘The Forms and Limits of Adjudication’ 383 (‘It is only through the advocate’s [partisan] participation that the hearing may remain in fact what it purports to be in theory: a public trial of the facts and issues.’) with Francesco Parisi, ‘Rent-Seeking Through Litigation: Adversarial and Inquisitorial Systems Compared’, 22 Int’l Rev. L. & Econ. 193, 193 (2002) (‘Scholars of comparative civil procedure often contrast American and Continental European legal systems by reference to the distinctive functions fulfilled by judges and lawyers in the two legal traditions. A distinction is often drawn between “adversarial” and “inquisitorial” procedural systems.’). In elaborating a theory of adjudication, the term is used neither as an ideal nor a culturally defined preference, but as a descriptive heuristic of one of the ‘valued features’ of any adjudication, which can be amplified or muted in relation to other competing features as demanded by a particular adjudicatory system.
40 Fuller, ‘The Forms and Limits of Adjudication’, 366–69.
41 Many of these ‘additions’ actually derive from or can be found in Fuller’s writings on the subject. While Fuller’s descriptive formulations are useful, it does not necessarily follow that these formations derive from, or are inextricably linked to, the natural law theories as Fuller suggests. For a discussion of the natural law foundations of Fuller’s theories, see generally Robert G. Bone, ‘Lon Fuller’s Theory of Adjudication and the False Dichotomy Between Dispute Resolution and Public Law Models of Litigation’, 75 B.U. L. Rev. 1273, 1290 (1995) (arguing that Fuller ‘assumed there were natural principles that guided the ordering process’).
42 This feature is implicit in Fuller’s description of the products of adjudication, judicial decisions, as ‘authoritative determinations’, see Fuller, ‘The Forms and Limits of Adjudication’ 368, as well as some of his other writings. See Lon L. Fuller, ‘Collective Bargaining and the Arbitrator’, in Mark L. Kahn (ed.), Collective Bargaining and theArbitrator’s Role: Proceedings Of The Fifteenth Annual Meeting National Academy of Arbitrators (BNA, 1962) 29–33. See also Geoffrey C. Hazard, Jr., ‘From Whom No Secrets are Hid’, Tex. L. Rev. 1665, 1670 (1998) (‘[A]n adjudicative system by definition requires a principle of finality.’).
43 David B. Lipsky and Ronald L. Seeber, ‘In Search of Control: The Corporate Embrace of ADR’, 1 U. Pa. J. Lab. & Emp. L. 133, 133 n. 2 (1998) (suggesting that the basis for distinguishing mediation from arbitration is whether the process is non-binding or binding); David A. Newton, ‘Alternative Dispute Resolution in Australia’, in Karl J. Mackie (ed.), A Handbook of Dispute Resolution: ADR in Action (Rouledge. 1991) 231 (noting the use of the term ‘non-binding ADR’ to distinguish between adjudicative and non-adjudicative forms of ADR, arbitration belonging to the former category).
44 See Fuller, ‘The Forms and Limits of Adjudication’ 355 (noting that ‘certain problems by their intrinsic nature fall beyond the proper limits of adjudication’ though how these problems are to be defined remains even today a subject for debate).
45 cf. David Luban, ‘The Adversary System Excuse’, in David Luban (ed.), The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics (Rowman and Littlefield, 1983) 90 (defining the ‘adversary system’ as ‘a method of adjudication characterized by three things: an impartial tribunal of defined jurisdiction, formal procedural rules, and … assignment to the parties of the responsibility to present their own cases and challenge their opponents’) (footnote omitted).
46 Adjudication necessarily operates within a larger system because the other units are necessary to ensure enforcement of adjudicatory decision-making, and to ensure that adjudicatory decision-making operates within its prescribed jurisdictional limitations. While a system is required, the system does not need to satisfy all the technical requirements of a legal system, even if nonlegal systems of adjudication almost inevitably rest on underlying legal systems for enforcement. See David Charny, ‘Illusions of a Spontaneous Order: “Norms” in Contractual Relationships’, 144 U. Pa. L. Rev. 1841, 1841 (1996).
47 See generally Lynn M. LoPucki, ‘The Systems Approach to Law’, 82 Cornell L. Rev. 479 (1997) (offering various definitions of systems). The notion that adjudication produces jurisdictionally bounded decisions within a system distinguishes it from, for example, a mother’s decision, upon hearing competing arguments from her two children about which one is entitled to possession of a favourite toy. In his essay, Fuller seeks to include even this mode of decision-making in his definition of adjudication. See Fuller, ‘The Forms and Limits of Adjudication’ 353.
48 The definition of an adjudicator that emerges from my definition of adjudication illustrates even more precisely why parental resolution of a sibling squabble is not adjudication. The parent is not required to consider arguments from both sides or to render a reason-based decision. Surely a good parent would listen to both children, and would decide based on reasons, but parental decision-making is not founded on or defined by these requirements, whereas an adjudicator’s decision-making is. See Catherine A Rogers, ‘Regulating International Arbitrators: A Functional Approach to Developing Standards of Conduct’, 41 Stan. J. Int’l L. 53, 82 n. 165 (2005) and accompanying text. Those people who serve as adjudicators may perform other functions corollary to their adjudicatory functions, and those functions may carry their own ethical obligations. See generally, Murray L. Schwartz, ‘The Other Things That Courts Do’, 28 UCLA L. Rev. 438 (1981) (examining the non-adjudicatory activities of courts, including promulgating rules, appointing officers, and administering probate estates).
49 John Leubsdorf argues that the aim of judicial disqualification standards should be to ensure that judges are able to put aside personal considerations, are willing to listen, and are able to act as a clean slate. See John Leubsdorf, ‘Theories of Judging and Judge Disqualification’, 62 N.Y.U. L. Rev. 237, 280–90 (1987).
50 In this context, ‘fairness’ is used in a procedural sense to refer to an affirmative obligation to treat the parties equally as well as a negative obligation to avoid bias that would interfere with an adjudicator’s equal consideration of both sides. ‘Procedural fairness’ has many different connotations. In this sense, ‘procedural equality’ and its relationship to fairness is perhaps the most fundamental, what Professor Bill Rubenstein refers to as ‘equipage equality’, or equal opportunities for litigants to produce evidence and arguments. See William B. Rubenstein, ‘The Concept of Equality in Civil Procedure’, 23 Cardozo L. Rev. 1865, 1874 (2002). As Jerry Mashaw observes, even in the narrower sense of equality of procedural opportunity, ‘equality is a notoriously slippery concept, and its procedural implications are puzzling’. Jerry L. Mashaw, ‘Administrative Due Process: The Quest for a Dignitary Theory’, 61 B.U. L. Rev. 885, 899 (1981).
51 In an extreme example, a traffic judge had a coffee vendor, who the judge had concluded was selling ‘putrid’ coffee, brought to his chambers in handcuffs. Zarcone v Perry, 572 F.2d 52, 53 (2d Cir. 1978). The judge was charged with ethical violations for abusing his office and exceeding his jurisdiction. In re Perry, 53 A.D.2d 882, 882, 385 N.Y.S.2d 589, 589 (2d Dept.), appeal dismissed, 40 N.Y.2d 1078, 392 N.Y.S.2d 1029, 360 N.E.2d 964 (1976). The judge was ultimately removed from office and held civilly liable for violating the vendor’s constitutional rights.
52 ‘Conduct in excess of clearly defined limits of a judge’s authority may amount to misconduct requiring the disciplinary action be taken[.]’ 48A C.J.S. Judges §109 (2004).
53 See Christopher J. Peters, ‘Participation, Representation, and Principled Adjudication’, 8 Legal Theory 185, 185 (2002). Christopher Peters’ work links participatory features of adjudication with its legitimacy. Although he seeks to defend the law-making function of US judges, his arguments also help explicate the link between adjudicatory functions and obligations to preserve the system in which those decisions are made.
54 See generally Schwartz, ‘The Other Things That Courts Do’ (examining the non-adjudicatory activities of courts, including promulgating rules, appointing officers, and administering probate estates).
55 See Michelle T. Friedland, ‘Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech’, 104 Colum. L. Rev. 563 (2004) (discussing constitutional limitations on legislative restrictions regarding judicial campaigning).
56 Under 28 U.S.C. § 455(a), recusal is mandatory ‘in any proceeding in which [the judge’s] impartiality might reasonably be questioned’. The ‘appearance of impropriety’ standard originated as a means of protecting the legitimacy or perceived legitimacy of judicial institutions. In an interesting article, Professor Peter Morgan traces the modern rise of the appearance-of-impropriety doctrine to the Black Sox scandal of 1919, the writings of lawyer/novelist Henry Fielding, and the turmoil following Watergate. See Peter W. Morgan, ‘The Appearance of Propriety: Ethics Reform and the Blifil Paradoxes’, 44 Stan. L. Rev. 593, 594–5 (1992). Although subject to some criticism, the standard has some objective benefits in encouraging voluntary compliance with judicial outcomes. See Janice Nadler, ‘Flouting the Law’, 83 Tex. L. Rev. 1399 (2005) (reporting on the results of an experiment that empirically tested the ‘Flouting Thesis’ in which participants who were exposed to laws and legal outcomes that they perceived as unjust were more willing, as a general matter, to flout unrelated laws).
57 Fuller engages in a similar reasoning of the relationship between judicial functions and the obligation of impartiality. Fuller reasoned that from the office of judge ‘certain requirements might be deduced, for example, that of impartiality, since a judge to be “truly” such must be impartial. Then, as the next step, if he is to be impartial he must be willing to hear both sides’. Fuller, ‘The Forms and Limits of Adjudication’ 365. While Fuller identifies the link, this analysis reverses the causal connection, namely that the obligation of impartiality results from the functional necessity that a judge be willing and able to hear both sides.
58 As noted earlier, Professor Leubsdorf has recognized the link between ethical standards and role, albeit in the judicial context. See Leubsdorf, ‘Theories of Judging and Judge Disqualification’ 239. cf. M.D.A. Freeman, ‘Standards of Adjudication, Judicial Law-Making and Prospective Overruling’, 26 Current Legal Probs. 166, 181 (1973) (‘Every institution embodies some degree of consensus about how it is to operate. To understand the judicial role and apprise the legitimacy of judicial creativity one must explore the shared expectations which define the role of judge.’).
59 J. Robert Brown, Jr and Allison Herren Lee, ‘Neutral Assignment of Judges at the Court of Appeals’, 78 Tex. L. Rev. 1037, 1044 (2000).
60 As Leubsdorf has noted, ‘[t]o define what a judge is is to decide what a system of adjudication is all about’. Leubsdorf, ‘Theories of Judging and Judge Disqualification’ 237.
61 As I have explained elsewhere, the role of parties and their counsel in proceedings is a complementary counterpart to the judicial role. If the judge is assigned the role of questioning witnesses, as in civil law systems, attorneys’ role with regard to witness testimony is circumscribed to suggesting questions or adding minor clarifications. See Rogers, ‘Fit and Function in Legal Ethics’, 413–4.
62 For example, most democratic systems depend on a judiciary that is independent of other branches of government. In the international and ADR contexts, the question is more how decisions relate to the public government or governments. The Uniform Domain Name Dispute Resolution Policy (UDRP), for example, was expressly designed as a soft-law system that supplements but does not supplant national court adjudication of domain name disputes. Laurence R. Helfer and Graeme B. Dinwoodie, ‘Designing Non-National Systems: The Case of the Uniform Domain Name Dispute Resolution Policy’, 43 Wm. & Mary L. Rev. 141, 203 (2001).
63 This question inquires not only about the availability of appeal, but the standards under which review of an adjudicator’s decision will be evaluated.
64 For a discussion of the different normative goals of the US and civil law adjudicatory systems, and the link between those goals and countries’ cultural values, see Chase, ‘Legal Processes and National Character’, 17–18 (citing Geert Hofstede, Culture’s Consequences (Sage Pub. 1980) 25).
65 This insight is given its most potent expression by Professor Post, who postulates that lawyers are despised because they are our own ‘dark reflection’. Robert C. Post, ‘On the Popular Image of the Lawyer: Reflections in a Dark Glass’, 75 Cal. L. Rev. 379, 386 (1987). ‘We use lawyers both to express our longing for a common good, and to express our distaste for collective discipline. When we recognize that the ambivalence is our own, and that the lawyer is merely our agent, we use the insight as yet another club with which to beat the profession.’; see also Eugene R. Gaetke, ‘Lawyers as Officers of the Court’, 42 Vand. L. Rev. 39, 40–41 (1989) (acknowledging the conflicting duality of an attorney’s role); L. Ray Patterson, ‘Legal Ethics and the Lawyer’s Duty of Loyalty’, 29 Emory L.J. 909, 969 (1980) (noting that attorneys have primary obligations to clients, but also obligations as officers of the court).
66 See David B. Wilkins, ‘Who Should Regulate Lawyers’, 105 Harv. L. Rev. 799, 815–8 (1992).
67 The contradictory role of the lawyer advocate is arguably responsible for much of the public anti-attorney animus that has accompanied the profession in its march through the ages. For example, in a poll conducted by the National Law Journal, 42% of those surveyed disapproved of lawyers because either they ‘manipulate the legal system without any concern for right or wrong’ or they ‘file too many unnecessary lawsuits’. ‘What America Really Thinks About Lawyers’, Nat’l L.J., 18 Aug. 1986, S-3. Meanwhile, a combined total of 69% of those surveyed identified as the most positive aspects of lawyers either their ability to elevate their clients as their ‘first priority’ or their ability to ‘cut through red tape’. As Post observes, these statistics demonstrate that ‘lawyers are applauded for following their clients’ wishes and bending the rules to satisfy those wishes … [and] at the very same time condemned for using the legal system to get what their clients want, rather than to uphold the right and denounce the wrong’. See also Marvin Mindes, ‘The Lawyer as Trickster or Hero’, 1982 Am. B. Found. Res. J. 177.
68 See Catherine A. Rogers, ‘Fit and Function in Legal Ethics: Developing A Code of Conduct for International Arbitration’, 23 Mich. J. Int’l L. 341, 348–54 (2002).
69 For a discussion of universal prohibitions against bribing judges, see Rogers, ‘Fit and Function in Legal Ethics’, 361–62.
70 For a discussion of the universal understanding that attorneys cannot represent opposing sides in a single case, see Rogers, ‘Fit and Function in Legal Ethics’ 368 nn. 129–30.
71 Notwithstanding the supposed universality, and the linguistic similarities among translations of the term ‘advocate’, ‘[t]he question “who is a lawyer?” is posed by efforts to make comparisons across categories not corresponding to formal divisions on the national level’. Philip S.C. Lewis, ‘Comparison and Change in the Study of Legal Professions’, in Lawyers in Society, Volume Three: Comparative Theories 27, 32; see also Kelly Crabb, ‘Providing Legal Services in Foreign Countries: Making Room for the American Attorney’, 83 Colum. L. Rev. 1767, 1770 and n. 13, 1779–82 and nn. 62–82 (1983) (describing the various national designations for persons who perform legal functions).
72 Highly authoritarian and socialist regimes envision that lawyers, like all workers, are devoted primarily to the good of society and only minimally to clients, since more vigorous advocacy on behalf of a client might conflict with the collective good. Ethan Michelson, ‘The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work’, 40 Law & Soc’y Rev. 1, 30 (2006) (‘China’s socialist legality, by demanding that the law serve the interests of the state above all else … produces a fundamental conflict of interest between lawyers’ loyalty to the state and their loyalty to their clients.’). Charles F. Wolfram, Modern Legal Ethics (West Pub., 1986) § 1.2, 5 (describing the diminished obligations lawyers in Soviet countries owed to their clients).
73 As will be explained in the following section, this layout might describe the role assigned to lawyers in civil law systems.
74 At this level of generality, the term ‘civil law system’ does not represent any particular system, but instead a prototype or ‘ideal type’, to use Max Weber and Mirjan Damaška’s terminology. See Damaška, The Faces of Justice and State Authority 9. Despite its imprecision, the term is useful as a point of contrast with the US system, and a useful approximation of some of the key differences.
75 When comparing adjudicatory regimes, even the term ‘judge’ can be misleading since it is not a term that is universally assigned to the decision-maker. The most obvious exception is the jury. See Damaška, The Faces of Justice and State Authority 54.
76 The contrasting role of the judge in civil and common law systems has been called the ‘grand discriminant’ between the two systems. See John H. Langbein, ‘The German Advantage in Civil Procedure’, 52 U. Chi. L. Rev. 823, 830 (1985).
77 Mitchel de S.-O.-I’E. Lasser, ‘Judicial (Self-) Portraits: Judicial Discourse in the French Legal System’, 104 Yale L.J. 1325, 1334 (1995).
78 See Jonathan E. Levitsky, ‘The Europeanization of the British Legal Style’, 42 Am. J. Comp.L. 347, 379–80 (1994); see also John Henry Merryman, The Loneliness of the Comparative Lawyer—And Other Essays in Foreign and Comparative Law (1999) 187 (‘The work of the judge is … simple: he is presented with a body of principles built into a carefully elaborated systematic structure, which he applies to a body of specific norms whose meaning is readily understood and whose application is comparatively easy. The applicable norms need only to be identified and applied[.]’).
79 See Rene David and John E.C. Rierly, Major Legal Systems in the World Today (3rd edn. 1985) 142.
80 Lasser, ‘Judicial (Self-) Portraits’ 1334.
81 Katalin Kelemen, ‘Dissenting Opinions in Constitutional Courts’, 14 German L.J. 1345, 1371 (2013) (‘In continental Europe, ordinary judges, with a few exceptions, are still not permitted to state their dissent publicly, and constitutional judges, who attach a higher value to institutional loyalty than common law judges, are still quite reluctant to dissent.’).
82 See Mitchel de S.-O.-I’E. Lasser, ‘“Lit. Theory” Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse’, 111 Harv. L. Rev. 689, 695–99 (1998); see also Carl Baudenbacher, ‘Some Remarks on the Method of Civil Law’, 34 Tex. Int’l L.J. 333 (1999) (arguing that American scholars of civilian systems often confuse the ‘folklore’ of those systems with ‘reality’); Claire M. Germain, ‘Approaches to Statutory Interpretation and Legislative History in France’, 13 Duke J. Comp. & Int’l L. 195 (2003) (describing the range of interpretive methods used today by French judges).
83 Lasser affirms the vitality of the official portrait of the civil law judge by pointing to explicit provisions of the French Civil Code that prohibit judges from ‘making’ law, see Lasser, ‘Judicial (Self-) Portraits’ 1335. Lasser just denies that it is the only vision of the judicial function that operates in the French system.
84 See generally John Bell, ‘Principles and Methods of Judicial Selection in France’, 61 S. Cal. L. Rev. 1757, 1757 (1998) (using the French system to examine ‘different types of problems encountered during judicial selection in which the political or policy orientation of the individual judge may not always be a dominant feature’); David S. Clark, ‘The Selection and Accountability of Judges in West Germany: Implementation of a Rechtsstaat’, 61 S. Cal. L. Rev. 1795, 1818 (1998) (noting that France’s selection of judges is based upon ‘the needs of a particular type of judicial function’ and that Germany’s law schools focus on preparing students to become judges and that selection ‘contemplates … emphasizing democratic legitimation and neutral administration of justice’).
85 Charles H. Koch, Jr., ‘Envisioning a Global Legal Culture’, 25 Mich. J. Int’l L. 1, 37 (2003). For a classical articulation of judicial selection in civil law countries, see Arthur Taylor Von Mehren and James Russell Gordley, The Civil Law System: An Introduction to the Comparative Study of the Law, 2nd edn. (Little Brown & Co., 1977) 1148.
86 As one scholar explains, civil law judges advance in their careers from an apprenticeship supervised by senior judges, up through increasingly important courts based on their performance, which is evaluated and controlled by other judges in the form of a council. See Charles H. Koch, Jr., ‘The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems’, 11 Ind. J. Global Legal Stud. 139, 143 (2004).
87 Vivian Grosswald Curran, ‘Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union’, 7 Colum. J. Eur. L. 63, 100 (2001).
88 See Lasser, ‘Judicial (Self-) Portraits’ 1351.
89 Curran, ‘ Romantic Common Law, Enlightened Civil Law’, 76–77.
90 In what has been aptly heralded as a ‘unique collection of outstanding insights into judicial structures and legitimacy, legal theory and reasoning, and comparative law’, editors Neil MacCormick and Robert Summers have brought together a series of commentators who describe the reliance on precedent in European judicial decision-making notwithstanding the absence of formal obligation or authorization to do so. See also Thomas Lundmark, ‘Interpreting Precedents: A Comparative Study’, 46 Am J. Comp. L. 211, 224 (1998) (book review); see generally Neil MacCormick and Robert S. Summers (eds.), Interpreting Precedents: A Comparative Study (Dartmouth Pub. Co., 1997).
91 See Judith Resnik, ‘Managerial Judges’, 96 Harv. L. Rev. 374, 390, 425–427 (1982).
92 Any one of these hearings may dispose of the entire case. See Langbein, ‘The German Advantage in Civil Procedure’ 831. One demonstration of the extent of judicial power is that in France, it is often said there are no formal evidentiary rules. See Gerald Kock and Richard Frase (trans.), The French Code of Criminal Procedure (Fred B. Rothman & Co., 1988) 199 (describing and translating provisions regarding the introduction of evidence from the French Code of Criminal Procedure). While the absence of evidentiary rules may initially seem strange to an American lawyer, it is only because they are accustomed to the presentation of information to a lay jury. Even in the US, when parties agree to a bench trial, often the formal rules of evidence are relaxed. See Damaška, The Faces of Justice and State Authority 130 and n. 60.
93 As John Langbein describes, in the German system: The very concepts of ‘plaintiff’s case’ and ‘defendant’s case’ are unknown. In our system those concepts function as traffic rules for the partisan presentation of evidence to a passive and ignorant trier. By contrast, in German procedure the court ranges over the entire case, constantly looking for the jugular—for the issue of law or fact that might dispose of the case.
Langbein, ‘The German Advantage in Civil Procedure’ 830. Although the German judge is obviously much more active than the US version, the ‘inquisitorial’ role of the German judge in civil proceedings can be, and has been, dramatically overstated. See generally Ronald J. Allen, ‘Idealization and Caricature in Comparative Legal Scholarship’, 82 Nw. U. L. Rev. 785 (1988) (criticizing Langbein for overstating the role of the judge in German civil proceedings).
94 Conventional wisdom among German advocates is that a lawyer should be wary of putting more than three questions to a witness because to put more risks implying that the judge did not do a satisfactory job in initial questioning. See Chase, ‘Legal Processes and National Character’, 4–5. While the conventional wisdom is not always followed, it demonstrates the gravitational force of the judge’s power over fact gathering.
95 See Damaška, The Faces of Justice and State Authority 138 (noting that continental decision-makers are expected to conduct pre-hearing review of the files and are not presumed to come to the case with a ‘virgin mind’).
96 Langbein, ‘The German Advantage in Civil Procedure’ 832. To the extent that US judges engage in some of these tasks, they do so informally, and partially. See Resnik, ‘Managerial Judges’ 377. The divide between civil and common law systems is not always so stark. In Canada, judges have an obligation to assist the jury in summarizing and characterizing the evidence for them, as well as suggesting conclusions that might be drawn from certain evidence and warning the jury of the inherent unreliability of certain types of evidence. Judges may also express an opinion about what would be a reasonable range of damages. John P. Wright, ‘An American Visitor to a Canadian Court’, 4 Green Bag 2d 281, 285 (2001).
97 See also Damaška, The Faces of Justice and State Authority 120 (noting that when a judge ‘grills a witness testifying in favor of one disputant, the other may think that the official is assisting his adversary’).
98 In the United States there are strict prohibitions against ex parte communications, except in the most narrow, and extreme exceptions, such as special proceedings for extraordinary relief through temporary restraining orders, in camera inspections, and similar unusual procedural settings. Wolfram, Modern Legal Ethics 605–6.
99 See Terry, ‘Creating an International Network of Lawyer Regulators’ n. 159 (noting that ‘in many European countries ex parte contact with the court on “non-fundamental” issues is not prohibited’). For similar reasons, as argued elsewhere, European regulation of attorney conflicts of interest may be much less rigorous than regulation in the United States because of expectations that civilian attorneys, in performing their quasi-official role, would maintain professional independence from their own clients, thus reducing the threat of cross-client conflicts. See Rogers, ‘Fit and Function in Legal Ethics’ 390–1.
100 See Rene David and John E.C. Rierly, Major Legal Systems in the World Today, 3rd edn. (Stevens & Sons Ltd., 1985).
101 See David and Rierly, Major Legal Systems in the World Today 142.
102 See Rudolf du Mesnil de Rochemont, ‘Federal Republic of Germany’, in Dennis Campbell (ed.), Transnational Legal Practice (1982) 127.
103 See Costas K. Kyriakides and Anthony B. Hadjioannou, ‘Greece’, in Transnational Legal Practice 155.
104 See Kyriakides and Hadjioannou, ‘Greece’, in Transnational Legal Practice 155.
105 See Kyriakides and Hadjioannou, ‘Greece’, in Transnational Legal Practice 155.
106 Mary C. Daly, ‘The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by U.S. and Foreign Lawyers’, 32 Vand. J. Transnat’l L. 1117, 1150–1 (1999). These geographic restrictions have recently been lifted under compulsion from the European Union.
107 See Olga Pina, Note, ‘Systems of Ethical Regulation: An International Comparison’, 1 Geo. J. Legal Ethics 797, 809 (1988).
108 The texts of both the US and European code of professional responsibility (the Council of Bars and Law Societies of Europe (CCBE) Code) appear to be similarly committed to the principle of attorney ‘independence’, but the linguistic similarity masks deeply divergent views about what this duty requires. American attorneys also have an obligation of ‘independence’, but the term denotes independence from the state, whereas on the continent ‘independence’ refers primarily to attorneys’ relationships with their clients and other attorneys. Laurel S. Terry, ‘An Introduction to the European Community’s Legal Ethics Part I: An Analysis of the CCBE Code of Conduct’, 7 Geo. J. Legal Ethics 1, 46–8 (1993).
109 See Rogers, ‘Fit and Function in Legal Ethics’ 361–2 (explaining that creativity in legal argument is less tolerated in civil law systems and can be regarded as professionally irresponsible).
110 See David Luban, ‘Rediscovering Fuller’s Legal Ethics’, 11 Geo. J. Legal Ethics 801, 822 (1998) (citing Lon L. Fuller, ‘The Adversary System’, in Harold J. Berman (ed.), Talks on American Law (Random House, 1961) 30).
111 Exercise of professional judgment to temper client positions does not mean civil law laywers are less effective or less committed to clients. An exercise of adversarial restraint can be an effective tool in building credibility and attaining the high ground in an adversarial setting. In addition, it has been argued that ‘an adversarial lawyer transmits more facts that are unfavorable to her own client … [a]pparently [induced] to candor by the presence of an adversary’. Monroe H. Freedman, ‘Our Constitutionalized Adversary System’, 1 Chap. L. Rev. 57, 79 (1998) (citing E. Allan Lind et al., ‘Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings’, 71 Mich. L. Rev. 1129 (1973).
112 See Damaška, The Faces of Justice and State Authority 138.
113 Professor Reitz characterizes the difference as that US judges ‘view themselves as umpires between the contending parties, rather than [as German judges] government officials responsible for determining the truth of the allegations’. John C. Reitz, ‘Why We Probably Cannot Adopt the German Advantage in Civil Procedure’, 75 Iowa L. Rev. 987, 992 (1990).
114 Reitz, ‘Why We Probably Cannot Adopt the German Advantage in Civil Procedure’ 992.
115 Reitz, ‘Why We Probably Cannot Adopt the German Advantage in Civil Procedure’ 992 (footnotes omitted).
116 There are many cases in the United States in which arbitrators have been challenged on the grounds of bias or misconduct based on aggressive questioning of witnesses. Compare In Matter of Arbitration between Cole Publ’g Co., Inc. v John Wiley & Sons, Inc., 1994 WL 532898, *2 (S.D.N.Y. 29 Sept. 1994) (rejecting challenge to arbitral award that alleged arbitrator bias was evidenced by aggressive questioning of some witnesses and attempts to rehabilitate others, and that arbitrator acted more as an advocate than an impartial moderator), with Holodnak v Avco Corp., 381 F. Supp. 191 (D. Conn. 1974), aff’d in part, rev’d in part on other grounds, 514 F.2d 285 (2d Cir. 1975) (finding bias and vacating arbitral award based on arbitrator’s ‘badgering’ the complaining party at the time of the proceedings).
117 Rogers, ‘Fit and Function in Legal Ethics’ 392.
118 ‘[T]he Senate can serve as an important political check on the President’s power to appoint. Moreover, the political nature of the Senate’s role, like that of the President, helps ameliorate the “countermajoritarian difficulty.”’ Henry Paul Monaghan, ‘The Confirmation Process: Law or Politics?’ 101 Harv. L. Rev. 1202, 1203 (1988); see also Richard D. Manoloff, ‘The Advice and Consent of the Congress: Toward a Supreme Court Appointment Process for Our Time’, 54 Ohio St. L.J. 1087, 1102 (1993) (arguing that aggressive Senate review of presidential nominees may provide a valuable political check on judicial appointments).
119 This preference is most clearly expressed in the Public Litigation Model. While Fiss argues that judicial independence is necessary to protect fundamental rights, he simultaneously demands certain political inclinations of judicial decision-makers. See Owen Fiss, ‘The Supreme Court, 1978 Term-Foreword: The Forms of Justice’, 93 Harv. L. Rev. 1, 43–4 (1979).
120 Professor Koch reasons that the structure of the civil law judiciary, and particularly the vesting of both promotion and disciplinary decision-making in the hands of senior judges, may encourage junior judges to conform or ‘bias’ their decision-making to conform to the perceived preferences of senior judges. See Charles H. Koch, Jr., ‘The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems’, 11 Ind. J. Global Legal Stud. 139, 143–4, 147 and nn. 16 and 28 (2004).
121 As dissenting Justices Ginsburg, Breyer, and Stevens commented in their dissent to the majority opinion in Bush v Gore, ‘[a]lthough we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law’. Bush v Gore, 531 U.S. 98, 128–9 (2000) (Stevens, J., dissenting).
122 Notably, concern over political accountability does affect judicial selection in civil law countries for those judges whose functional role includes invalidating unconstitutional legislative decision-making. For example, Article 94(1) of the German Basic Law requires that half of the judges of the Federal Constitutional Court are elected by the Bundestag and half by the Bundesrat, and pursuant to Article 56 of the French Constitution, one-third of the French Cour di Cassassion are appointed by the President of the Republic, one-third by the President of the National Assembly, and one-third by the President of the Senate. These and other judicial selection processes are described in Gustavo Fernandes de Andrade, ‘Comparative Constitutional Law: Judicial Review’, 3 U. Pa. J. Const. L. 977, 986–7 (2001).
123 Curran, ‘Romantic Common Law, Enlightened Civil Law’ 100.
124 As one comparative law scholar explains:Common-law lawyers … fashion their arguments from a close study of prior cases. Their success as lawyers depends on persuading the judge in each case of the accuracy of the analogies they suggest between their client’s situation and that of the precedents they cite … and the [distinctions] from situations that arose in the precedents they hope to distinguish. The common-law lawyer’s task also is to persuade the judge that the lawyer’s interpretation of existing case law accurately reflects prevailing contemporaneous legal standards, and that the accumulated body of relevant precedents obliges the judge to rule in favor of the lawyer’s client… . Thus, common-law lawyers engage in complex factual triages, distinguishing as factually different and distant those cases whose outcomes would militate against their client’s interests…Curran, ‘Romantic Common Law, Enlightened Civil Law’, 76–77.
125 Historically, modern concerns about impartiality can be traced to the emergence in the seventeenth century of doubt about the ability or at least difficulty to reach ‘an objectively correct legal decision’, which caused people to go ‘to greater lengths to prevent extraneous motives from inhibiting the delicate feat’. Leubsdorf, ‘Theories of Judging and Judge Disqualification’ 249 (citing Barbara Shapiro, Probability and Certainty in Seventeenth Century England (Princeton, 1983) 190–1).
126 See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale, 1962) 16–23 (arguing that judges make law even though they are not elected or constrained in the same way legislatures are).
127 See generally Guido Calabresi, A Common Law for the Age of Statutes (Harvard, 1982) (arguing that the structure of the courts and the nature of the common law makes them better suited to resolve some policy issues than the legislature); Thomas W. Merrill, ‘Does Public Choice Theory Justify Judicial Activism After All?’ 21 Harv. J.L. & Pub. Pol’y 219 (1997) (suggesting that courts provide less expensive access to government than direct lobbying of the legislature).
128 Lon L. Fuller and John D. Randall, ‘Professional Responsibility: Report of the Joint Conference’, 44 A.B.A. J. 1159, 1160 (1958), quoted in Luban, ‘Rediscovering Fuller’s Legal Ethics’ 821.
129 See Luban, ‘Rediscovering Fuller’s Legal Ethics’ 821 (‘What Fuller claims is psychologically impossible turns out to be daily practice in civil law systems.’).
130 See Luban, ‘Rediscovering Fuller’s Legal Ethics’ 822.
131 See Catherine A. Rogers, ‘Gulliver’s Troubled Travels, or The Conundrum of Comparative Law’, 67 Geo. Wash. L. Rev. 149, 182–3 (1998).
132 As David Luban has explained in his more elaborated exposition on Fuller’s theories, ‘we can agree with [Fuller] that an adjudication should include all points of view without conceding that each point of view should be spin-doctored by an advocate to advance a party’s interest’. See Luban, ‘Rediscovering Fuller’s Legal Ethics’ 826 see also Bone, ‘Lon Fuller’s Theory of Adjudication’ 1307, n. 126 (describing Fuller’s conception of how the ‘process of partisan advocacy is likely to push lawyers in the direction of viewing their role, not in terms of persuasion or manipulation of doctrine, but instead in terms of “conveying to the court that full understanding of the case which will enable it to reach a wise and informed decision”’) (citing Lon L. Fuller, ‘Philosophy for the Practicing Lawyer’, in Kenneth I. Winston (ed.), Introduction to the Principles of Social Order (Duke, 1981) 282, 289–90). There are those who might contend, on the other hand, that Fuller’s hypothesis is supported in social scientific research that indicates that an ‘opponent of an adversarial lawyer transmits more facts that are unfavorable to her own client’, apparently induced to candour by the presence of an adversary. See Monroe H. Freedman, ‘Our Constitutionalized Adversary System’, 1 Chap. L. Rev. 57, 79 (1998) (citing E. Allan Lind et al., ‘Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings’, 71 Mich. L. Rev. 1129, 1136 (1973)).
133 For an extended discussion of the methodological problems raised in comparative law, see Rogers, ‘Gulliver’s Troubled Travels’ 162.
134 Andrew Huxley, ‘Golden Yoke, Silken Text’, 106 Yale L.J. 1885, 1924–5 (1997). The problems illustrated by Huxley’s example are exacerbated in comparing principles, rules, procedures, and doctrines instead of tangible and relatively simple objects, such as chalk and cheese. Legal rules, principles, and procedures exist in the larger context of a legal system’s framework. See Rogers, ‘Gulliver’s Troubled Travels’ 161–2 and n. 62.
135 See David Luban, ‘Rediscovering Fuller’s Legal Ethics’, 11 Geo. J. Legal Ethics 801, 807 (1998); Lon L. Fuller, ‘The Philosophy of Codes of Ethics’, 1995 Elec. Eng. 916, 917 (1955).
136 Daly, ‘The Dichotomy Between Standards and Rules’, 1262–63 (noting that ‘the Preamble to the [US] Model Rules emphasizes a lawyer’s obligation to the client’ in contrast to ‘the Preamble to the CCBE Code … [which] emphasizes a lawyer’s obligation to society’).
137 The US system stops short of treating witnesses as classical Rome did, expecting them not only to describe facts of the case, but also to express solidarity with, and advocate on behalf of, one party. See Damaška, The Faces of Justice and State Authority 28. While US witnesses do not technically ‘belong’ to one party, US attorneys approach litigation with a ‘proprietary concept of evidence’. See Mirjan Damaška, ‘The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments’, 45 Am. J. Comp. L. 839, 845 (1997). The formal status of witnesses as ‘neutral’ has little practical effect, except that it is used as a basis for opposing efforts by parties to prevent their opposition from speaking to non-party witnesses. See Wolfram, Modern Legal Ethics, § 12.4.3, 647.
138 Langbein, ‘The German Advantage in Civil Procedure’ 864; see also Reitz, ‘Why We Probably Cannot Adopt the German Advantage in Civil Procedure’ 994 (‘American courts could only adopt the German rule discouraging pretrial contact with witnesses by changing our cultural definition of the lawyer’s role.’).
139 The reason why there is no apparent obligation for an attorney to report client perjury or intent to commit perjury is that Continental systems distinguish sharply between the role of a party and that of a witness. Parties to an action are rarely permitted to testify because that would force the dubious choice between testifying against their own interest and perjuring themselves. See Damaška, ‘The Uncertain Fate of Evidentiary Transplants’ 842. The rarity of party testimony is probably responsible for the lack of attention to attorney obligations regarding client perjury.
140 Nicolò Trocker, ‘Transnational Litigation, Access to Evidence, and U.S. Discovery’, in R. Stürner and M. Kawano (eds.), Current Topics of International Litigation (Mohr Siebeck, 2009) 146, 156 (‘[European] codes of civil procedure of the 19th century strictly adhered to the principle nemo tenetur edere contra se, i.e. the principle that no party has to help her opponent in her/his enquiry into the facts.’).
142 See ‘International Law Practice in the 1990s: Issues of Law, Policy, and Professional Ethics’, 86 Am. Soc’y Int’l L. Proc. 272, 283 (1992). European lawyers may have added incentives to interpret these restrictions narrowly because they do not have the opportunity to seek client waiver and their decision cannot be challenged by a motion for disqualification, as is the American practice.
143 Compare Wolfram, Modern Legal Ethics, § 11.3.3, 604–06 (purpose of prohibition against ex parte communications with judge is to prevent communicating party from gaining unfair advantage), with Langbein, ‘The German Advantage in Civil Procedure’ 830 (describing how under German procedure the judge is not expected to be simply an impartial adjudicator, so there is little concern that improper influence will be exerted on or by the parties or that information communicated ex parte will endanger the validity of the result).
144 For a discussion of contrasting approaches to conflicts of interest in civil and common law systems, see paras 3.55–3.68.
145 Under this doctrine, an attorney who received a communication from opposing counsel with this designation must maintain the communication as confidential and is even prohibited from sending copies to his or her own client. See para. 7.60.
146 Damaška, The Faces of Justice and State Authority 143.
147 Damaška, The Faces of Justice and State Authority 143–4.
148 According to commentators, lawyer ethics in China are evolving from being ‘a state legal worker affiliated with the state-owned Office of Legal Advisor to being a legal practitioner authorized by clients or assigned by institutes to represent them; and reporting an increase in loyalty to the client in the Chinese legal profession’. Jack P. Sahl, ‘Forward: The New Era—Quo Vadis?’ 43 Akron L. Rev. 641 (2010).
149 See Chase, ‘Legal Processes and National Culture’ 19.
150 By maximizing the role of partisans who have obvious incentives to distort the truth in favour of their personal interests and by permitting parties to be witnesses on their own behalf, the US litigation model arguably prioritizes litigants’ right to a ‘day in court’ over the accuracy of the ultimate result. See Damaška, The Faces of Justice and State Authority 11; Chase, ‘Legal Processes and National Culture’ 19 (arguing that legal culture in Germany is more comfortable with authority, while in the American system the legal culture emphasizes party autonomy over the process as an expression of individualism and a commitment to due process); Jerold S. Auerbach, Justice Without Law? (Oxford University Press, 1983) 10 (arguing that ‘the dominant ethic [of American Society] is competitive individualism’ and linking that ethic to US legal institutions and processes).
151 For a summary of sources in this debate, see Chase, ‘Legal Processes and National Culture’ nn. 41–42.
152 See Geoffrey C. Hazard and Angelo Dondi, ‘Responsibilities Of Judges And Advocates In Civil And Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, 39 Cornell Int’l L.J. 59 (2006) (‘[I]n commercial litigation, this traditional contrast seems at least misleading, especially considering that the parties are generally sophisticated in business affairs, have real disputes about substantial and material matters, and tend to employ experienced advocates to represent them.’).
153 See, e.g., Linda S. Mullenix, ‘Lessons from Abroad: Complexity and Convergence’, 46 Vill. L. Rev. 1, 5 (2001) (‘[P]articularly in the realm of complex litigation, the American managerial judge has undertaken roles that are indeed converging with the civil law inquisitorial judge.’); Richard L. Marcus, ‘Reining in the American Litigator: The New Role of American Judges’, 27 Hastings Int’l & Comp. L. Rev. 3, 29–30 (2003) (noting that some countries ‘may be gravitating toward developments in litigation that make it more like America’s … [including] Japan [where] there is now some opportunity to do discovery; [meanwhile,] American procedure’s movement toward “greater judicial control over proceedings” makes it appear that “America is falling in line with the rest of the world”, though “there is likely still to be a gulf between the reality of the American lawyer and the experiences of lawyers elsewhere”’).
154 Even in moral philosophy, ethics cannot be analysed independently of social context. ‘[E]very moral philosophy offers explicitly or implicitly at least a partial conceptual analysis of the relationship of an agent to his or her reasons, motives, intentions, and actions, and in so doing generally presupposes some claim that these concepts are embodied or at least can be in the real social world.’ Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2d edn. (Notre Dame, 1984) 23.
156 See John M. Townsend, Overview and Comparison of International Arbitration Rules (Litigation and Administrative Practice Course Handbook Series, Practicing Law Institute, 2000) 817.
157 See, e.g., United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, art. 15(2) (1977) (permitting arbitrators to determine whether to hold hearings in the absence of party request).
158 Karton, The Culture of International Arbitration 19–24.
159 Karton, The Culture of International Arbitration 23–24.
160 See Tom R. Tyler et al., ‘Cultural Values and Authority Relations: The Psychology of Conflict Resolution Across Cultures’, 6 Psychol. Pub. Pol’y & L. 1138 (2000) (describing the effect of values of a population on their relation to authority, particularly individual reactions to conflict resolution either based on its substantive outcomes or on its treatment of them in the process); Resnik, ‘Tiers’ 839 (elaborating the normative content of procedural rules in relation to the ‘valued features’ of US culture).
161 See, e.g., Gerald Aksen, ‘Arbitration and Other Means of Dispute Settlement’, in David N. Goldsweig and Roger H. Cummings (eds.), International Joint Ventures: A Practical Approach to Working with Foreign Investors in the U.S. and Abroad, 2nd edn. (1990) 287 (citing distrust of opponent’s national courts as primary motivation for resorting to arbitration). A recent survey of participants in international arbitration bears this hypothesis out. Of those surveyed, 72% identified ‘neutrality’ and 64% identified enforceability as ‘highly relevant to their decision to arbitrate’. See Christian Bühring-Uhle, Arbitration and Mediation in International Business (Kluwer Law International, 1996) 45, cited in Christopher R. Drahozal, ‘Commercial Norms, Commercial Codes, and International Commercial Arbitration’, 33 Vand. J. Transnat’l L. 79, 95 n. 83 (2000). Other popular reasons were expertise available through arbitration (37%) and the unavailability of appeal (37%).
162 Until recently, the standard conception was that arbitration clauses ‘divested’ courts of jurisdiction. See, e.g., Philip J. McConnaughay, ‘The Risks and Virtues of Lawlessness: A “Second Look” at International Commercial Arbitration’, 93 Nw. U. L. Rev. 453, 473 (1999). More recently, this view has been called into question, particularly by the First Circuit: ‘The … modern view [is] that arbitration agreements do not divest courts of jurisdiction, though they prevent courts from resolving the merits of arbitrable disputes.’ DiMercurio v Sphere Drake Ins., PLC, 202 F.3d 71, 77 (1st Cir. 2000); see also Vimar Seguros y Reaseguros, S.A. v M/V Sky Reefer, 29 F.3d 727, 733 (lst Cir. 1994) (‘[A]n agreement to arbitrate does not deprive a federal court of its jurisdiction over the underlying dispute.’), aff’d, 515 U.S. 528 (1995); Morales Rivera v Sea Land of Puerto Rico, Inc., 418 F.2d 725, 726 (lst Cir. 1969) (holding that arbitration clauses are ‘not destructive of jurisdiction’).
163 See William W. Park, ‘Control Mechanisms in the Development of a Modern Lex Mercatoria’, in Thomas E. Carbonneau (ed.), Lex Mercatoria and Arbitration (1998) 143.
164 In the words of Alexander Hamilton, ‘An unjust sentence against a foreigner … would … be an aggression upon his sovereign as well as one which violated stipulations in a treaty or the general laws of nations.’ Clinton Rossiter (ed.), The Federalist No. 80 (1961), 476–7.
165 See Joseph F. Weis, Jr, ‘The Federal Rules and The Hague Conventions: Concerns of Conformity and Comity’, 50 U. Pitt. L. Rev. 903, 903 (1989) (analysing the sovereignty issues that are implicated and ‘pos[e] substantial problems in transnational litigation’).
166 See Gary Born, International Commercial Arbitration (Kluwer, 2014) 66.
167 See W. Michael Reisman et al., International Commercial Arbitration: Cases, Materials and Notes on the Resolution of International Business Disputes (1997) 1215 (‘[A]rbitral awards as a whole enjoy a higher degree of transnational certainty than judgments of national courts.’); see also Saul Perloff, ‘The Ties that Bind: The Limits of Autonomy and Uniformity in International Commercial Arbitration’, 13 U. Pa. Int’l Bus. J. 323, 325 n. 11 (1992).
168 W. Michael Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (1992) 11–13. This balance is established by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 [hereinafter the ‘New York Convention’ or the ‘Convention’].
169 Toby Landau, Composition and Establishment of the Tribunal, 9 Am. Rev. Int’l Arb. 45, 45 (1998) (‘It is often said that one of the central advantages of arbitration over litigation is the ability to choose one’s judge.’)
170 See Robert B. von Mehren, ‘Enforcement of Foreign Arbitral Awards in the United States’, (Litigation and Administrative Practice Course Series Handbook No. 579, Practicing Law Institute, 1998), 147, 152.
171 Most arbitral rules permit each party to select a ‘party arbitrator’, subject to objections by the opposing party about conflicts of interest. Once selected, the two party arbitrators then select a third arbitrator who will act as the ‘chairperson’ of the tribunal. The power to select the arbiter of the dispute is one of the most distinguishing features of arbitration and arguably the one that provides comfort enough for parties to relinquish their right to bring claims in their own courts. See Reisman et al., International Commercial Arbitration: Cases, Materials and Notes 541–72; see also V.S. Mani, International Adjudication: Procedural Aspects (Martinus Nijhoff Publishers, 1980) 16–17 (describing control over the composition of the tribunal as the ‘royal road’ that has lured sovereign nations into international adjudication).
172 Because the power of arbitrators derives from the arbitration agreement, arbitrators can only perform those powers delegated to them in the arbitration agreement. See Reisman et al., International Commercial Arbitration: Cases, Materials and Notes 1174–54.
174 Kristen Weisenberger, ‘Peace is Not the Absence of Conflict: A Response to Professor Rogers’ Article “Fit and Function in Legal Ethics”’, 25 Wis. Int’l L. J. 89, 90, 123 (2007) (arguing that international arbitration ‘has effectively harmonized the ethical rules regarding pre-testimonial communication with witnesses’). Damaška, ‘The Uncertain Fate of Evidentiary Transplants’ 847 (arguing that if civilian systems introduced cross-examination, fairness would require at least some ‘minimal degree’ of witness preparation). Pre-testimonial communication is also necessary in international arbitration because witnesses are often physically located far from theplace of arbitration. Bringing them to arbitration, if they could indeed be compelled, would be uneconomical and unrealistic unless there is some knowledge beforehand about what they might be able to contribute to an understanding of the issues in dispute. See Nicolas C. Ulmer, ‘Ethics and Effectiveness: Doing Well by Doing Good’, in Geoffrey M. Beresford Hartwell (ed.), The Commercial Way to Justice: Institute of Arbitrators (1997) 179.
175 See Berthold Goldman, ‘The Application of Law: General Principles of Law—The Lex Mercatoria’ in Julian D.M. Lew (ed.), Contemporary Problems in International Arbitration (1986) 124. See also Alan Scott Rau and Edward F. Sherman, ‘Tradition and Innovation in International Arbitration Procedure’, 30 Tex. Int’l L.J. 89, 92 (1995) (‘[I]nternational arbitration hearings are often something of an amalgam of the two traditions, with witness testimony frequently presented in affidavit or summary-statement form, and, when live testimony is presented, with limited cross-examination.’); Christian Borris, ‘The Reconciliation of Conflicts Between Common Law and Civil Law Principles in the Arbitration Process’ in Stefan N. Frommel and Barry A.K. Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration (1999) 13–14.
176 Andreas F. Lowenfeld, ‘Introduction: The Elements of Procedure: Are They Separately Portable?’ (1997) 45 Am. J. Comp. L. 649, 654 (‘By now, cross-examination by counsel is pretty well accepted in international arbitrations, and for the most part the continental lawyers have learned how to do it. Moreover, and almost as important, arbitrators have learned how to administer cross-examination…’); Julian D.M. Lew and Laurence Shore, ‘International Commercial Arbitration: Harmonizing Cultural Differences’ (1999) 54 Disp. Resol. J. 33, 34–35 (noting that when cross-examination is permitted in arbitrations, attorneys are encouraged, through strict time limits, to focus their questioning on the most important issues):
Even with these accommodations, lawyers from different countries approach cross-examination with different purposes and techniques. English barristers are ‘accustomed to conducting a painstaking cross-examination of a witness’s statement’, and American attorneys cross-examine on materials from depositions and direct testimony in an effort to undermine the witness’s credibility. By contrast, Continental practitioners focus more on questions that might elicit new information, rather than on raising questions about the witness’s credibility.
177 See Rau and Sherman, ‘Tradition and Innovation in International Arbitration Procedure’ 96–97 (citing René David, Arbitration in International Trade (1985) 296); Bernardo M. Cremades, ‘Overcoming the Clash of Legal Cultures: The Role of Interactive Arbitration’ in Lew, Conflicting Legal Cultures in Commercial Arbitration 161; Ambassador Malcolm Wilkey, ‘The Practicalities of Cross-Cultural Arbitration’ in Lew, Conflicting Legal Cultures in Commercial Arbitration 81.
178 Some countries have national laws that limit the nature of and manner in which discovery can be pursued in arbitrations. For example, article 184 of the Swiss Federal Act on Private International Law requires that the arbitral tribunal itself take evidence. Bundesgesetz uber das Internationale Privatrecht vom (enacted 18 December 1987, amended 1 January 2007), BB1 1988 I 5 (Switz.) <http://www.admin.ch/opc/de/classified-compilation/19870312/index.html>. Similarly, Section 1050 of the German Civil Procedure Code forbids arbitrators from ordering parties to disclose information and requires that they seek national court assistance in conducting discovery. See Code of Civil Procedure (promulgated 5 December 2005, amended 24 September 2009) § 1050 (Ger.) <http://www.gesetze-im-internet.de/englisch_zpo/englisch_zpo.html#p3511>.
179 See Rau and Sherman, ‘Tradition and Innovation in International Arbitration Procedure’ 92.
181 Damaška, ‘The Uncertain Fate of Evidentiary Transplants’ 847.
183 See International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration, Art. 4.3 (1999).
184 See International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration, Art. 4.3 (2010).
185 See paras 3.32–3.38. Under some readings, it may be regarded as even more permissive than some US jurisdictions.
186 Michael Schneider, ‘President’s Message: Yet another opportunity to waste time and money on procedural skirmishes: The IBA Guidelines on Party Representation’, 31:3 ASA Bull. 497, 498 (2013) (arguing that ‘one would have thought that there was no need to regulate [document exchange and disclosure] also in the Party Representation Guidelines’).
187 See, e.g., UNCITRAL Model Law, art. 12; Swiss Law on Private International Law, art. 180; English Arbitration Act, 1996, §24(1)(a); German ZPO, §1036(2); Belgian Judicial Code, art. 1690(1). A few sources attempt to draw distinctions, for example, by reasoning that while party-appointed arbitrators may be subject to different standards of neutrality, they must all be equally impartial and independent. Compare de Fina, ‘The Party Appointed Arbitrator in International Arbitrations—Role and Selection’, 15 Arb. Int’l 381, 386 (1999) (‘[T]here is some leniency in arbitrations as to the neutrality of a party-appointed arbitrator but there is no such leniency in the absolute requirement of impartiality and independence whatever the circumstances.’); with Tupman, ‘Challenge and Disqualification of Arbitrators in International Commercial Arbitration’, 38 Int’l & Comp. L.Q. 26, 49 (1989) (‘Unquestionably all members of the tribunal in international arbitration should be held to the same standard of independence, whether appointed by a party or not. The concept of a non-neutral arbitrator as it exists in some common law systems simply has no place [in international arbitration].’)
189 See Andreas Lowenfeld, ‘The Party-Appointed Arbitrator in International Controversies: Some Reflections’, 30 Tex. Int’l L.J. 59, 65 (1995) (discussing how party-appointed arbitrators must carefully consider the representations of the appointing party and also serve as translators of the parties’ legal culture).
190 Born, International Commercial Arbitration 2043.
191 Born, International Commercial Arbitration 2042.
192 Notably, pre-appointment interviews are not expressly included in any written procedural rules. Although it is a common practice, it is also a disputed practice. Those who oppose the practice label it as unethical, making it more difficult than other areas to separate procedure from ethics.
193 See also IBA Ethics, art. 5(1); AAA/ABA Code of Ethics, Canon III(B).
195 Van den Berg, ‘Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration’, in Mahnoush Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (2010) 824.
196 Van den Berg, ‘Dissenting Opinions’ 825.
197 Van den Berg, ‘Dissenting Opinions’ 832.
198 Van den Berg, ‘Dissenting Opinions’ 831.
200 Van den Berg himself makes this point, quoting French Scholar and delegate to the 1899 Hague Peace Conference Chevilier Descamps, who reasoned that dissenting opinions improperly create ‘the appearance of there being two judgments’. Van den Berg, ‘Dissenting Opinions’ 828.
202 The fact that these limits may rest on arbitrators’ subjective intent may raise practical questions about how improper dissents can be identified other than on a case-by-case basis.
205 IBA Guidelines on Conflicts, n. 6.