Buckley in National Post: Avoiding Excesses of American Legal Culture
In an op-ed appearing in Canada's National Post, Professor F.H. Buckley makes the case that despite a similar inheritance of British traditions and institutions, differences in civil procedure law between the U.S. and Canada are substantial, with Canada deriving the greater benefit.
Buckley cites a new book entitled The American Illness, edited by Buckley and published in June by Yale University Press, for its description of ways in which Canadian legal culture and procedures trump those of the U.S., including Canada's restrictions on the discovery process, abolition of civil juries, differences in legal ethics, and attitudes toward award of damages in tort cases.
"American academics are only now beginning to recognize the superiority of Anglo-Canadian contract law," says Buckley. "The idea that every bargain deserves its day in court, that a contract might be set aside when things turn out badly for one side after, say, commodity prices increase, and that judges know the minds of the parties better than the parties do themselves, has not proven as valuable for the American economy as it has for American lawyers."
"The American legal academy, especially that part that stubbornly defends the country's private law regime, is insular," Buckley writes. "It resists the world's judgment and ignores the fact that it has become the global outlier. It is in part because Canadians have rejected the idiosyncratic and wasteful legal doctrines of its neighbour that Canada, in little noticed ways, has become the fortunate country that it is."
A better country (with fewer lawyers), National Post (Canada), July 19, 2013. By F.H. Buckley.
"Trial lawyers intent on defending America’s high litigation levels sometimes argue that, were they lower, the nation would require a greater degree of regulation. But this assumes that litigation and regulation are substitutes: more of one, less of the other. That argument would be more persuasive if the regulatory burden were higher in Canada and other countries with lower litigation levels. That’s not the case, however. When first world regulatory regimes have been compared, American regulatory law stands out as more detailed, complex, legalistic and adversarial. Regulatory enforcement is 'by the book,' and severe criminal may be meted out on breach. Relative to similar countries, America has both more litigation and heavier regulation."