учебный год 2023 / England-USA

amountsto a vast reservoirof outstandingacademicsand aggressive practisinglawyers.As regardsthe latter, the amountsat stakein the litigation and the consequent amount of their remunerationare powerfulincentivesto creativity.Brainstrustssuchas the American Law Institute, the Section of Corporation,Banking and Business Law of the American Bar Association and the S.E.C.-which

certainlydeserves being so classified-are crucibleswhich produce significantresults.72

In the writer's opinion, however, all these factors in creativity would be unable to producetheir beneficialeffects if the authority of precedent was in the United States what it is in England. A relaxed authorityallows the Americancourts to adjust the law to contemporaryconditions and expectations.73By contrast, some of the most basic principlesof English company law are still to be foundin cases decidedin the nineteenthcenturyor the beginningof the twentieth, Parliamenthavingstepped in orderto alleviatetheir

most unfortunateconsequences.

The outsiderto both Englandand the United States cannothelp being struckby a contrast.Englandmayprobablyclaimto have the best judiciaryin the world. As regardstheir judiciaryas on many scores, the motto of the United States could be borrowedfrom the

commercialslogan of a Frenchdepartmentstore: "Ontrouvetouta

la Samaritaine." can be found in the United States:the Everything

best and the worst; amongthe judges as in any other matters.The

averagelevel, however, is certainlymuchbelow that of the English judiciary.Still, the law appearsmore satisfactoryin substanceand often in a more satisfactorystate. Englishlaw may be an admirably adjusted machinery, but machinerymay work better with some

great difficulty in finding his way toward the desirable solution through precedents which are deemed immovable.The American judge is more willing to bulldoze his way and apply his energy to goingforward.Thismaynot be dignifiedanddoes not alwaysrequire great technicalcapacities,but it producesresults.It has the curious result that an American judge deciding a company case may be

2 On the importanceof sociological factors, see 0. Kahn-Freund,op. cit., note 1. 73For the reason for differing attitudes in English and American courts towards

precedent, see Goodhart, -"Caselaw. .." supra, note 1, pp.65-74; A. and S. Tunc, op.

cit., note 1, pp.166-174.

74 For an elaboration of our complaint and for other complaintsas regardsthe concept

and style of legislation, see A. Tunc, op. cit., note 2, pp.4-8.

7S This is also the lesson one may derive from Perryv. Sidney Phillipsand Son [1982] 1 W.L.R. 1297, noted A. S. Burrows(1983) 46 M.L.R. 357. How learned, but how indirectly related to Mr. Perry'smishap. Perhapscommon lawyersshouldread, not as a criticism,but

as a warning, Proudhon, Traitsdes droitsd'usufruit,d'usagepersonnelet d'habitation(2nd ed., 1836), Vol. 1, Preface, p.xviii. "La tete la plus rempliedes souvenirsd'arretsdivers, doit etre naturellemenatla plus vide d'idWessur les grandsprincipes du droitparce qu'elle

appartientd I'hommequi s'estfait une etude de ne penser que par les autres."CompareO. W. Holmes, "The Path of the Law"(1897) 10 Harv.L.Rev. 457, "It is revoltingto have no

better reason for a rule of law than so it was laid down in the time of Henry IV." Does the

new style of adjudicationrequiredby the House of Lords(supra, note 15) providethe type of leeway which seems necessary?This is far from certain.

closer than the English equity judge to what the latter used to be: an officerof the Crownwho, facinga certainsituation,decidedon

behalf of the Sovereignwhat equity required.It is certainlymore common in the United States than in England to find as basic reasoning:"thisparty'scontentionwould lead to such result. As a judge of equity, I cannotacceptit."76On the other hand, and again

by virtue of the relativityof the precedent'sauthority,a "progressive" rule, a rule which satisfies contemporaryexpectations, may

rapidlyspreadfrom one State to the others or, at least, to some or most of them. Thus, a single great judge, Chief Justice Traynor,

even though he presidedonly over the CaliforniaSupremeCourt,

in manyfields77-withoutgoingthroughthe ordealssufferedby Lord

Denning or some youngerjudges.

These reflectionsshould be concludedby apologies. If it is true

that no prophetis acceptablein his own country,the reformer'sfate is worse than the prophet's:he is usuallynot listenedto in his own country,andthereis no reasonwhyhe wouldbe welcomeelsewhere, pretendingto teach others what to do. As a lover and admirerof English law, I thought, however, that I might confess my sincere

belief: when a countryhas the privilegeof judgesof such qualityas England,it is a pity not to trustthem more and not to allow them greater freedom to adjust the law to contemporaryneeds and

While the English judge would undoubtedlyhave expectations.78

concern for the desirable stabilityof the law, he would probably make it clearerand more satisfactory.

ANDRE TUNC*

76 Compare also Regal (Hastings) Ltd. v. Gulliver[1942] 1 All E.R. 378, [1967] 2 A.C. 134, with Perlman v. Feldman, 219 F. 2d 173 (2d Cir. 1955). While the English decision,

on a sound principle, has for its unfortunateresult the return of part of the price to the

buyer who had agreed to pay it in full and does not deserve any restitution,the American one reaches the result: "plaintiffs. .. are entitled to a recoveryin their own right, instead

of in right of the corporation (as in the usual derivative actions), since neither . . . the buyersnor their successorsin interestwould share in any judgmentwhichmay be rendered.

Defendants cannot well object to this form of recovery, since the only alternative,recovery for the corporationas a whole, would subject them to a greatertotal liability."

7See M. O. Tobriner, "Chief Justice Roger Traynor"(1970) 83 Harv.L.Rev. 1769; G. E. White, The AmericanJudicial Tradition(1976), pp.292-316. Compare R. Traynor, "La Rude Vita, La Dolce Guistizia; or Hard Cases Can Make Good Law" (1962) 29

U.Chic.L.Rev. 223, 229-236.

78 For a more radical approach to the problem of "following"precedent, see W. T. Murphyand R. W. Rawlings, "After the Ancien Regime: The Writingof Judgmentsin the House of Lords 1979/80"(1981) 44 M.L.R. 617 and (1982) 45 M.L.R. 34.

Professorof Law, Universityof Paris I.