1. So we've talked about the use of press releases and summaries who and why the courts might be
doing this and I've suggested as well. We've talked about how this means that the Supreme
Courts throughout the world are aware that they're in competition for with one another to be used
as file or materials by other courts. All right, so they're very conscious of their position in the
international marketplace and I have a nice word in English for this they Going to be the sinus
you'll of for other courts and the word sinus your Cyn OSU our e-sign isyou means a personal
thing at the center of attention or admiration. So the court wishing to be a sinus your for other
courts issues, press releases and summaries Cyn. OSU Oh of Slovak. It's pretty rare word right
about I like interesting words that word literally means the dog's tail. It comes from the
constellation of the dog's tail, right? So it's a bright light shining up there and to be the center of
admiration and when you think someone's showing off at a party next time you you can say to
them stop trying to be the sinus your of the party, right? There's somebody who wants to be the
center of attention. So in terms of traditional techniques, we have also discussed today the
question of citation by President, whether that's inside the decisional outside the decision, but
another question I'm going to raise now is whether judges site legal Scholars. So that's a question
of form. Form is important. Alright, it's not for me. It's very informative about content as well.
So in common law decisions, the judges will cite both Preston other court rulings which may be
influential May bind or may distinguish, but they also cite explicitly legal Scholars opinion. Now
in France, this is not a legal tradition to do its top part of legal toxic to do this. So the Kodak has
a CEO will not cite Scholars inside. Side inside their judgments. I mean whereas I believe so can
you help me here, please in Germany, that's the quartzite legal Scholars or not. Sometimes it
does certain ports will do that. So there again, thank you for confirming that that shows that the
citation of legal Scholars is not something that is just done in common law jurisdictions. These
questions are much more complex and more nuanced than people will leave have us lead to
Billy. Does does the judge do the German people? Slight pause stencil art they do. Thank you
very much. And is it the Constitutional court on or they just the ordinary August Justice of the
Supreme Court cancer. So in Germany will thank you you could have helped me before so thank
you very much in a jar of the German High Court, which is called. Thank you very much sites
both legal Scholars and also prep German precedent. So there we have a beautiful perfect
example. All of a civilian jurisdiction using techniques which are generally associated with
common law. To definitely help to answer we everything that's great because we can just you
know cut. We can destroy that received wisdom idea. It's not a question of whether we're
common law civilian law. It's much more complex than that. And so we have to look at the and
that's why we need to carry out detailed in-depth investigations which involves a fine paintbrush
and that's a broad paintbrush. We need sick description. Otherwise, we're missing lots of things.
All right, so The presence of the reference to Legal Scholars opinion is done extremely implicitly
in Coda Castle judgment some legal Scholars say I can recognize a sentence for my PhD thesis.
He's all right, but if only the author can recognize a sentence or a phrase from his or her PhD
thesis that's not good enough because it's not, you know, a parent or visible to anyone else.
Right? And so the explicit reference to scholarly writings is something which is a question of
transparency about attributing sources and giving recognition to the person who came up with
this idea. And of course if you are legal scholar in a country where sources are cited explicitly, I
think I've mentioned this little academics can feel very proud when they are cited by the Supreme
Court sort of like, you know that notches up my impact on the world, right or you know, I've
been cited by the Supreme Court off which you know that it makes them feel happy, but that's
2. just an ego trip. Anyway, so the length of judgment is the length of judgment is a very important
factor to look into we've examined how so if we look at Lawrence in Texas. This is a 49 page
judgment the decision of the Supreme Court, which is rendered extremely quickly in a matter of
weeks the Can't you know whether the provocation was lawful or unlawful had to be decided
very quickly because if it was declared unlawful, which it was partnered, we're back to sitting
again and that was a 25 page document that I think was rendered within a week of the Court
sitting so, you know, they had very short amount of time and they worked very hard the cour de
cassation judgments tend to be Three four five six pages on maximum. I don't know but not very
long often two pages. What about the considered time? How long are those decisions and how
long are they? Decisions of the Court proceeded up
A longer than the cour de cassation, but I mean not more than 10 pages, right? Or not as long as
ten Pages could we say something like that or 10 pages maximum? So of course that's just a
rough estimate doesn't matter very much. One of the questions that's linked to the length of
judgments is the amount of litigation that they're caught is going to have to consider. So the
Supreme Court's of The UK and USA and Canada, I believe as well, but correct me if I'm wrong.
There is a big filtering system that goes on so the court is are going to be those called sooner. Hit
cases per year. So now I'm going to talk about the UK Supreme Court with no short my figures
here. It tears between 80 to a hundred cases per year. The Decisions that the cour de cassation
has made in the past. They're trying to kind of reinforce their filtering system. But in the past the
Aquatic astacio, here's between 20 and As of 20 and 30,000 I have to set five times because the
number is just so extraordinary like true decisions some of which are half a page. Because there
isn't because the filtering system is not nearly as drastic and and everybody has the right to
appeal to the court of session. Although now, they brought in some filtering mechanisms for
their fairly recent. So it's a bit inevitable that the decision is going to be half a page long and that
this is all dematerialize that often. There aren't any you know loan. There aren't any hearings the
everything's done by paperwork, right? So that affects Has a big knock-on effect on the length of
the judgment and the way in which it's it's written so we know that the college has shown that
there will be a high Potter who will present a draft statement to the court and the court will sit
and decide and adopt one of the draft Excellence, which is already been prepared. Well written
according to a formula so it doesn't take too long. So The user-friendly is so our long judgments
user friendly or not is Citation using your question transparency. Does it help people reading it?
Is it easier to read a long judgment if you are not a trained in law than reading a Excellent Some
people say the loan documents are more confusing than the short ones. But if the salt ones are a
bit like a labyrinth and puzzle then are easy to decipher either. So, you know, all of these
questions are pretty complex. There are there's no easy answer to that. At so another point we
can raise here is how authoritative our judgments. Now is there or authoritative Lewis a question
which lies in the eye of the beholder? So is this a question of legal culture or culture? Right. So if
we have a unanimous decision which has been issued by the court as we do in France, for
example, when we don't know which drugs thought what right we just have the Judgment
presented as being a collective decision does not make it more authoritative because there is no
controversy which is apparent or visible. Is a decision which is a close call for three three to less
authoritative by virtue of the fact that the dissenting voice has been expressed or not. Is it good to
express dissenting opinions? Because it represents League of the pluralistic voices of the
community and Society and shows us that you know, no question is simple and that it's very
3. common for there to be dissent or disagreement as the justices of the Supreme Court of Canada
showed us yesterday in that film.
So You get you know, 50 or academics into the same room. You're going to have 50 different
opinions, right? It's kind of rare for people to lots and lots of people to agree with one another.
So does our perception of how authoritative the government is depend on your own legal
mentality. So when you were used to just looking at French chocolates or German judgment or
judgment or Canadian duct segments or wherever else you come from? All right, did your view
of what the decision was doing? And how was formulated and has that changed now that you've
looked at the way other courts Express their decisions therapy? Give dissenting. It's so just a few
about Authority and authoritativeness change. Once we can see the panoply of different forms of
judgments.
It's question. The last point I had on my list of questions today was about activist and non activist
judicial law making So the expression judicial lawmaking is considered to be Frightening to
some people depending on which legal tradition and culture they come from some people in
France will say to me. What are you talking about? Ruth judges do not make the law. Because
we all know that case law is so it's pronounced is a sorcerer. Scuffle is a sterile while I'm not
going to go into it. I'm not going to contest that judges make law but when we're comparing help
judges throughout the world make your we can notice that some of them are more activist more.
Some of them are bolder. Some of them are left. Applaud timorous. That's an expression from
London and he talks about timorous Souls who don't who are afraid to make the law. All right.
Some of them are more or less inclined to go towards. Competency which is considered to be the
belong to the legislator but judges do make law and of course depending on the court in which
they're sitting and the relationship with that court with other courts, etc, etc. And depending on
the cohabitation between the legislature and the Judiciary all those questions are interlinked and
they would affect the extent of what we can call judicial activism. It's another Point here that
actually wasn't that I've just thought of now is about a whole via and their way to me were how
do you say it's about prospective over? So certain courts are for does everybody know what
prospective overruling is so prospective prospective overruling is when a court says I'm going to
change the law. I'm going to overall but for the future only so the rule I'm laying down in this
case will not apply to the dispute and the parties before it because of legal certainty. They
thought You know how it was when they dispute happened, but I'm going to make it an
overruling which will change the law for the future. And so that respects the principle of legal
certainty but also changes the orientation of the case law for the future and prospective
overruling is something which is recognized for example by the core deceased Easter decor. The
sorry their fathers is that the European Court over no court of justice of the European Union. I
have to think about how to say it, right? Pride It's recognized by the US Supreme Court. It's not
recognized by the UK Supreme Court. I don't have prospective overruling as weaponized in. You
have not you look like you you look like the answer to that question was no, right? You've never
heard the term before so I think the answer then would be no, all right and prospective
overruling, right? And and and so the college has your has discussed it. There was a big report
about the question. It's called the behavior. Mama l'avenir. There was a big comparative law
report issued by the court of cassation and participated in some of the expert opinions for that
report. And I think that was I think it was 2004 never right? All right, there was a report called
the mercy report said right. I can't remember what the college has. Does Dakota concession to
offer Via Mobile Avenue. I think when coats do they sometimes do it only for the they do it in
4. certain areas of the Lost another Are the legal certainty question? Does anyone have a view on
that? Do you know have you ever seen a cold against us your decision, which is are available for
that. That is a tricky question, right? Because is it Farrah to change the law in the future so that
you don't understand the settled acceptance of the case law up till then or is it unfair to say I'm
going to change the law in the future, but you haven't changed it for the dispute that's you know
intended the change. All of those questions are linked to there's a legal transplants question
because prospective overruling was actually That's by the Supreme Court of the USA in a case in
the 1930s. All right, there's a legal for months question. And there's also a legal functionalist
question though. Is there a functional equivalent? All right. If so, there you go. We thought in
you know a number of approaches to examine the question, of course. Now that was a bit of a
wasn't overview. I will not comment on my what I've just been doing there. I've given you a kind
of vast array of different decisions about different areas of law, which I did on purpose because
you know, I told you I don't want to just stick to one particular area of the law. It would have
been easier for me if I just done, you know private law right, but I chose not to make my life. I
hope that hasn't made your life difficult to but so we have come to the end today of a number of
questions linked to form and you can see that it's informative and revealing to examine questions
of form and style in relation both the legislation and judicial practice and decision-making and
that you can just learn a lot from from the Enterprise that we've just Entered into so that brings
me to the end of that and I seem to have done pretty well on my timing today. So next week we
will be doing a A week of conclusion and about critique. So, you know looking at the various
critic that we can make of comparative law and once again bringing back everything that we've
already done. So it'll be like conclusion in preparation for revision revision. So next week will be
the beginning of Revision in some ways because we'll be going back to revisit things that we've
already examined. I will bring more try and tie up. Sweat and then the week after that we will do
revision revision revision. All right, so in week 11 when I'm going to ask you. I'm going to ask
you I've given you the test question to come to class with your answers to the revision person.
I've given to you and we'll talk about exam technique and we'll do the question together. Alright,
have a good day. Thank you very much everybody.
