The structure, methodology, and institutions of common law systems differ considerably from those of the civil law traditions of continental Europe, South America, and parts of Asia. Some of these differences include the central role of case law, the methods for analyzing courts’ decisions to determine their holdings, the reach of precedent and res judicata, and the concept of equity. In the United States in particular, the structure of the American court system and the conduct of trials are quite distinct from what many of us may be familiar with. The regulatory competition among common law, civil law, and other legal traditions shapes the evolution of the world’s economy and has a profound impact on the practice of transnational lawyers. It is therefore crucial to get acquainted with those models and critically appraise their areas of convergence and divergence.
This course seeks to provide students with an introduction to the main tenets and methods of common law, with a particular focus on the disciplines governing torts and contracts. These disciplines are of special importance to business lawyers, and will constitute the basic platform required for most of the specialized courses offered during the LL.M. year. We will begin by tracing the divergent historical evolutions of the Anglo-Saxon and the continental European legal systems, with a view to understanding the origin of the great divide between them. Next, we will explore the core differences between civil and common law, such as those concerning the structure of legal sources, the value of precedent, the meaning of stare decisis, and the interplay between judge-made and statutory law. We will also compare the formalist tone of civil law judicial decisions with the policy-oriented reasoning of UK and US judges.
The course will then proceed to the basics of tort law. In that context, we will discuss the distributive functions of torts and refer to possible policy alternatives. We will then unravel the central notion of negligence, which constitutes the basis for ascribing liability to a tortfeasor, and explore corollary concepts such as res ipsa loquitur, strict liability, liability for defective products, and joint and several liability. Next, we will discuss causation, i.e. the link that connects a tortious conduct to its effects on the victim or their property. As part of this discussion, we will draw a key distinction between ‘cause in fact’ and ‘proximate cause’. Finally, we will examine the remedies available to the victims of torts, including compensatory and punitive damages, and will review the court and jury procedures governing tort cases.
Turning to the common law of contracts we will first analyze the distinction between enforceable and unenforceable promises. Next, we will study the process of contract formation (agreement and consideration) and the reasons that may make a contract invalid (legal incapacity, duress and undue influence, mistake, misrepresentation, unconscionability, violations of the Statute of Fraud). Moving from the physiology to the pathology of contractual relationships, we will focus on the justifications for non-performance (impossibility, impracticability, frustration, force majeure, modification, rescission, anticipatory breach) and the cases of breach of contract. Finally, we will analyze the choice of remedies and the peculiar construct of ‘quasi-contracts’.
- Instructor: Tommaso Soave