FCIL-SIS Civil Law Workshop Recap: The Role of Cases in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments

FCIL-SIS Workshop: Demystifying Civil Legal Systems for a Common Law Audience: Historical Traditions, Modern Developments, and Practical Research & Instruction Applications

Recap: The Role of Cases in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments by Xavier Beauchamp-Tremblay

By Melissa M. Hyland

U.S. law students are always equal parts fascinated and baffled by the role of cases in civil law jurisdictions. If there isn’t a formal tradition of stare decisis, does it at least still happen in practice? How do the courts ensure consistency in their decisions? What do the judicial opinions look like in these jurisdictions?

Xavier Beauchamp-Tremblay, President and CEO of CanLII and an attorney trained in the civil law system of Québec, discussed these very questions in his presentation, “The Role of Cases in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments.” He based the presentation on an article he co-authored with Antoine Dusséaux for Slaw, Canada’s Online Legal Magazine: “Not Your Grandparents’ Civil Law: Decisions Are Getting Longer, Why and What Does It Mean in France and Québec?”.

Beauchamp-Tremblay began by discussing Aldo v. Yellow, 2007 QCCS 5050, a Québec case in which shoemaker Aldo alleged that discount competitor Yellow was copying its shoe styles. Aldo was unable to argue trademark infringement, and they had no legal recourse under either copyright or patent law. Aldo attorneys thus crafted a legal argument based on the French theory of “parasitic competition.” In responding to this argument, Beauchamp-Tremblay found himself researching in French case law, and he was immediately struck by the obvious differences between case law in Québec and France. French judicial opinions were short – usually no more than a page in length – and contained very little in the way of factual description or legal reasoning. As Beauchamp-Tremblay knew from experience, case law in many Québec courts tended to more closely mirror judicial opinions from common law jurisdictions. According to Beauchamp-Tremblay, one possible explanation for this difference was that Quebec’s legal tradition was not “purely civil law,” but rather fell somewhere in between the common law and civil law traditions.

After joining CanLII, Beauchamp-Tremblay more closely studied the nuanced differences in judicial opinions from Québec courts. He sampled 400 cases from each year between 2003-2017 and measured the average length (in terms of number of characters) of the opinions. He also tracked “citation density,” the average number of cited decisions in the opinion, over the same period of time.

Graph of Length 2003-2017 showing rising numbers for QCCA, QCCQ, QCCS

Density 2003-2017 showing general increase except one dip for QCCA, QCCQ, QCCSThe findings of this study were quite impressive: the length of decisions in Québec’s lower courts increased by about 40% and in the appellate court by 20%. Citation density in the courts’ decisions also showed a marked increase over the same period. A similar study by Antoine Dusséaux of French courts produced similar results. Judicial opinions in these two civil law jurisdictions were getting longer and including more citations in support of legal arguments – characteristics traditionally only seen in opinions authored by common law judges.

The data collected by both Beauchamp-Tremblay and Dusséaux suggests that something is having an effect on the length and density of judicial opinions in both Québec and France. Beauchamp-Tremblay concluded his presentation by proposing several possible reasons for these changes, including increased access to the law, more complex legal and evidentiary issues in the cases, and judges writing more of their own opinions.

Slide - Text: Possible Causes: Increasing complexity of cases, More self-represented litigants, More evidence to discuss as a result of our current "data boom" New gen of judges more comfortable with word processing/writing their own judgments, But what if

Slide text: Possible causes: Globalization, Transnational courts (e.g. European Court of Human Rights, European Court of Justice), Influence of Common LawBeauchamp-Tremblay also explicitly noted that Cour de cassation, one of the highest courts in France, formally announced that it was changing its model for judicial opinions and now drafts judgments more akin to the style of Québec courts. Both Beauchamp-Tremblay and Dusséaux attribute this change to a recognition by French judges that they are writing for a larger audience these days – attorneys who like lengthier opinions, international readers in the EU and beyond, and the general public who now has increased access to the law online.

Do the changes in case law from these civil law jurisdictions indicate that they are moving closer to the common law? Beauchamp-Tremblay answered this question with an emphatic no – civil law judges are not legally bound by precedent and stare decisis does not exist in these jurisdictions. However, civil law judges are certainly taking more time to explain their reasoning, and their citations to case law indicate that they are aware of the persuasiveness of past decisions. The form and content of case law in civil law jurisdictions might be changing, but the underlying legal framework remains much the same.




One response to “FCIL-SIS Civil Law Workshop Recap: The Role of Cases in Mixed and/or Civil Jurisdictions: Historical Traditions and Modern Developments

  1. Pingback: Top 20 Posts of 2020 | DipLawMatic Dialogues

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