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• W2554413607 abstract "I. INTRODUCTION Allow me first to say what an honor it is to be invited to present Duke's first Herbert L. Bernstein Memorial Lecture. Herbert's death at Law School a little more than a year ago was a great shock not only to Duke Law School community but also to many friends he had in Germany. I knew him for nearly 40 years, and I am very grateful indeed for this opportunity to pay tribute to him and his contribution to law and legal education. When Dean Bartlett agreed to topic of my lecture she must have realised that letting a foreign lawyer touch upon American civil procedure would be a hazardous affair. Not only is a foreign lawyer who ventures into this field bound sooner or later to fall into error, but also he will expect you to forgive him and kindly put him right when he does so. Not only is he apt to rush in where local angels fear to tread, but also courtesy may require you to call his views original and refreshing when they are heretical or bizarre. There is one countervailing argument supporting choice of my subject, however, and that is that it was very dear to Herbert's heart. He and I discussed it on many occasions, and while we both felt that comparing machinery of civil justice in common law and civil law was a most challenging and interesting undertaking, we also agreed that it was a subject fraught with greater risks of fundamental misunderstanding of foreign law than those which beset comparative endeavours in substantive law. (1) Our shared interest in comparison of civil justice systems goes back to early 1960s when both Herbert and I were graduate students at University of Michigan Law School. All graduate students with a European Law background were given an introductory course on American Law. Procedure was an important subject of this course, and adversariness was held up to us as hallmark of American procedural system. The introductory course itself followed adversary model in that we were asked to read Roscoe Pound's celebrated article on Causes of Popular Dissatisfaction with Administration of Justice with its sharp attack on excesses of adversary system. (2) We were told that Jerome Frank had described American mode of trials as being based on what he called fight theory, a theory which in his view derives from origin of trials as substitutes for private out-of-court brawls and frequently ... blocks uncovering of vital evidence or leads to a presentation of vital testimony in a way that distorts it. (3) At time, however, this had no great impact on us. We were enthralled to watch lawyer-dominated civil and criminal trials at Ann Arbour Circuit Court on closed-circuit television in a viewing room at Law School. We also enjoyed moot court cases with their colourful and dramatic confrontation between partisan student advocates, and any lingering doubts about attractions of adversariness were dispelled by reading Earl Stanley Gardner, Raymond Chandler and Robert Traver's novel entitled Anatomy of a Murder. (4) For those of us who remained in contact with American law, however, a gradual process of disenchantment set in. Like most readers of Robert Traver's novel we were delighted by defendant's acquittal on basis of a successful plea of impaired mental capacity. But not-guilty verdict was based on facts supplied by defendant only after his lawyer had impressed upon him what type of fact would constitute that defence. Can it be right to allow or even require a lawyer to arm his client for effective perjury? There were other questions we asked. It is all very well to say that cross-examination is, in words of John Wigmore, the greatest legal engine ever invented for discovery of truth and that it is a most effective weapon to test dishonest witnesses and ferret out truth. (5) But isn't it a weapon equally lethal to heroes and villains? …" @default.
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• W2554413607 date "2009-01-01" @default.
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• W2554413607 title "Civil Justice Systems in Europe and the United States" @default.
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