German Joys

The Old Bailey Online

In a perfect fusing of two of my favorite things in the world -- technology and criminal justice, an English university has just digitized and put online the "Proceedings of the Old Bailey", London's central criminal court, for the years 1674-1834.  The Proceedings are short reports of criminal trials geared toward a popular audience.  The website's authors call the over 100,000 trial descriptions "the largest body of texts detailing the lives of non-elite people ever published."

On this day in 1742, for instance, we read that: "Christopher Peterson, otherwise Jack the Sailor, was indicted with one William Briers, for stealing an Oil-Skin Bag, and seventeen Pound Weight of Tea, the Property of William Barton, out of the Shop of the said William Barton." In his defense, the prisoner had this to say: "I have nothing at all to say. I leave it in your Hands, my Lord. I have no Friend in the World." Verdict: Guilty. Sentence: Death. Fortunately, "The Jury recommended him for Mercy," which would generally mean his sentence would be commuted to something like whipping or branding, or possibly "transportation" to Australia or the U.S.

Commercial Bail Bonds in the U.S.

In the latest of an occasional series on aspects of the U.S. justice system that are unique in the world, Adam Liptak of the New York Times looks at commercial bail bonds:

Here as in many other areas of the law, the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States has charted a distinctive and idiosyncratic legal path.

Bail is meant to make sure defendants show up for trial. It has ancient roots in English common law, which relied on sworn promises and on pledges of land or property from the defendants or their relatives to make sure they did not flee.

America’s open frontier and entrepreneurial spirit injected an innovation into the process: by the early 1800s, private businesses were allowed to post bail in exchange for payments from the defendants and the promise that they would hunt down the defendants and return them if they failed to appear.

After reading the article, I found myself -- to my surprise -- of two minds about the practice of commercial bail bonding.  The downside is, of course, that people have to pay a non-refundable fee in order to enjoy their freedom before their trial.  Forty percent of them end up not being convicted of anything, but that doesn't mean they get their fee back.  Most of the people paying these fees are also of very modest means.

On the other hand, the system seems to do a pretty good job of making sure that most people (1) spend most of the time before their trial outside of jail; and (2) show up for court at the appointed time.  European countries, in which options for avoiding pretrial detention are much more limited, often draw criticism from human rights groups for excessive pre-trial detention; in fact, this is a recurrent issue within and beyond Germany -- see here, here and here (g).  I'm not pointing any fingers or drawing any policy conclusions (yet), but it's worth thinking about.

Law Across Language Barriers

Jane Stapleton makes a good point about the difficulty of doing comparative law in other languages  here (pdf).  Speaking of English-speaking lawyers and scholars who analyze foreign-language concepts or institutions, she asks:

[H]ow confident can a domestic practitioner or judge be that it is the output of these foreign lawyers that are put up for translation into English? This problem is especially acute in Code systems where certain academic commentaries on tort law both within and outside the Civil Code have influence and authority far beyond any academic materials in English-speaking jurisdictions.... The fact that, whereas the English legal tradition treats judges as the senior partners in law-making, the Continental tradition recognizes legal academics in this role, partly explains why some Continental jurists make statements that such and such is the “correct” “solution” to a legal issue. Such language can shock lawyers in common law jurisdictions where it is customary to couch normative arguments with greater reserve, unless they appreciate that these Continental lawyers seek to have their academic commentaries accepted as law. The legal cultural reasons for this difference in the role of jurists are fascinating in their own right, especially in comparison to U.S. and other common law systems.  But the point I want to make here is that of the six or so most authoritative and extensive commentaries on the German Civil Code and extra-code law of obligations, none has been translated into English. This means that English speakers do not have these texts available so as to provide the necessary foils for the one extensive text on German tort law that has been written in English.  Moreover, to my knowledge there are no other texts, written in English or in translation, that deal in detail with tort law in other foreign-language jurisdictions.