A Different Box

The latest fad in the business world — especially hi-tech — is to encourage people to “think outside the box.”

This works only if you first have some notion of what “the box” is. “The box” is the way people usually think about a situation, a problem, or an industry.

Thinking outside that box is harder and more unusual than you might assume. Indeed, the very people who ask you to “think outside the box” are often quite unreceptive to proposals that seem to fall outside their “boxes.”

Like some lawyers I know.

Back when I was a law prof, I joined some criminal defense lawyers on a junket to France, Russia, Sweden, and Hungary. We went to examine how these foreigners handled criminal prosecutions under their “inquisitorial” system (sometimes called the “European” or “continental” system) — which is quite different from ours.

My American colleagues were shocked by what they saw. “What? You don’t tell suspects their Miranda rights? And no juries?? You call this a justice system?!”

The brains of these guys were firmly locked in the American box, and pretty much unable to think outside it. They truly believed that Moses brought Miranda and the right to jury trial down from Mount Sinai, and any society that did not recognize this was unworthy of being called “civilized.” They concluded that the inquisitorial system had not evolved much beyond the Spanish Inquisition.

I later learned, however, there’s no evidence that Europeans convict the innocent or acquit the guilty any more than we do. (When asked which system he would prefer, one prominent legal scholar quipped: “If I were innocent, I’d rather be tried in Europe. But if I were guilty, I’d prefer to be tried in America.”)

Before the trip, I knew quite a bit about the American criminal justice system, having taught criminal law, criminal procedure, and constitutional law for several years. But I knew little about the European system. When I returned, I resolved to change that. The trip had piqued my curiosity.

So I studied the few materials on comparative criminal procedure available in English, and ended up teaching “Comparative Criminal Procedure” at various overseas universities (Bologna, Oxford, Haifa, Nanjing, Paris, etc.).

What really grabbed me about the subject was how much I could learn about my own system by comparing it with someone else’s. You can’t really understand the forest in front of you unless you’ve already viewed some other forests.

For example, in the European “box,” juries are rarely used. An Istanbul judge once asked me, “You Americans allow lay people to decide your legal cases! Do you also let them pilot your commercial airplanes?” Good question. It shook up my assumptions. And it made me reflect hard on whether juries are better than judges. (My ruminations on this and similar issues led me to write a play/law review article toying with the fantasy of O.J. being tried in a European court. See Moskovitz, The O.J. Inquisition: A United States Encounter With Continental Criminal Justice, 28 Vanderbilt Journal of Transnational Law 1121 (1995).)

What about appellate work? We take our current practices pretty much for granted, occasionally tinkering around the edges — word limits on briefs and the like. But only rarely do we examine the fundamentals.

While in London a few years back, I dropped in at the Royal Courts of Justice, on The Strand. The Court of Appeal was hearing arguments in a civil case, so I sat and watched. And watched. And watched! After a couple of hours, I got hungry — but the lawyers and judges were still going strong. As I left to eat, I asked the bailiff if arguments usually lasted this long. He nodded, “Sometimes they go on for days.”

What’s going on here? Unlike our oral arguments, the British presiding judge had no red light to punch telling the advocate that his precious little 15 or 30 minutes has expired. Everyone — lawyers and judges — just go on and on until they run out of things to say.

On closer examination, it turns out that what I saw was just one piece of an appellate system that is based on premises quite different from ours.

More on this in some upcoming blog posts.

by M.A.T. Legal Director Myron Moskovitz