Globalization of Law Practice, In Ways We Don't Expect
For most of us, the concept of a "global law practice" conjures up images of a high-priced, international mega-firm, whose lawyers criss-cross the globe, representing corporate clients in complex business transactions. But as this week's blawgosphere posts bears out, international considerations are now infiltrating traditionally domestic practice areas, like criminal, personal injury or family law.
Earlier this week, the Supreme Court, by a 6-3 ruling in Medellin v. Texas, held that the President does not have the authority to order states to relax their criminal procedures to obey a ruling of the International Court of Justice. As described here at Scotus Blog, the ruling does not rule out the potential that a World Court ruling might supersede domestic law. Rather, the Court's decision focuses on the unlawful nature of the President's attempt to effectively "make law," by binding the state court to the World Court ruling without adequate authorization from the Constitution or Congress.
Adam Liptak's New York Times article describing European courts' discomfort with the notion of punitive damages generated a good deal of discussion around the blogs. Liptak's article describes an Italian court that refused to enforce an Alabama judgment against an Italian company because the award included punitive damages -- a concept offensive to Italian notions of justice. And it's not just Italy; as Liptak shows, many other European countries are uncomfortable with the idea of juries awarding punitive damages.
New York Personal Injury Lawyer Eric Turkewitz isn't surprised by the differing approaches to punitives by European countries and the United States. He writes:
Why the difference [in attitudes about punitives]? I think it's easy. America was founded from the time of the Revolution on limiting the power of government. The political tension between those that want larger government and those that want smaller is seen to this day, and will likely be seen so long as the republic exists. It is seen every time the issue of taxes is broached, for example, because larger government means more payments to government employees, and the money has to come from somewhere.
While I don't profess to be a scholar of European governments, I think most would agree that they are significantly more interventionist in the private lives of the people than here. You see that in nations that restrict free speech or grant universal health care, as two examples. Our notions of freedom are not always the same as elsewhere. Intervention means not only larger government with larger powers. It also means higher taxes to pay for it. So wrongdoing is handled by the government, which the people pay for...
So we could, in theory, create criminal penalties to take the place of civil wrongs, and spend much more on criminal prosecutions of those wrongs as they do elsewhere. But we have to pay for that, and money has to come from somewhere if you care about fiscal responsibility. Or we could let the private sector regulate itself by empowering people to bring the wrongdoers to court themselves, and let the private sector handle the costs. And the public, instead of paying, receives not only the benefits of stopping reckless conduct, but the financial benefits by taxing the punitive damage award.
However, Dan Markel at Prawfs Law Blawg suggests that if the United States adopted Markel's proposal of casting punitive damages as an intermediary sanction, problems with foreign enforcement might decline. Finally, Dustin Arnette at the Tort Law Journal of Ohio points out that the domestic and foreign views on punitive damages are in flux. Arnette notes that U.S. courts are moving to impose stricter limits on punitive damages, while some countries like Spain, Canada and Australia are not hostile to the notion of punitive damages, and have enforced American judgments for punitives in their courts.
Even family law is going global these days, as David Starks points out in this comprehensive piece, The Globalization of Family Law, from the recent issue of the GP Solo Newsletter. Starks explains how global considerations impact issues such as the drafting of a prenuptual agreement and resolving child custody disputes.
Do you know of any other unexpected practice areas where global considerations come into play? Let us know in the comments below.
Posted by Carolyn Elefant on March 27, 2008 at 02:30 PM | Permalink
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