American Judicial Policy Deemed Superior in HLS Debate

Top legal scholars and practitioners from both sides of the Atlantic met in the Ames Courtroom at Harvard Law School (HLS) yesterday to debate American and British judicial policy.

About 150 people from the University and the community attended the event, in which legal experts from both countries debated the fairness of the two judicial systems.

The American team took top honors, winning three of the four cases presented.

The U.S. team was introduced by Massachusetts Speaker of the House Thomas M. Finneran, while the English team was introduced by Massachusetts Senate President Thomas F. Birmingham.

After listening to arguments from both sides, the audience chose the winning team Oxford style, by standing next to the flag of the country they supported.

"The crafty British devised [the Oxford style] to keep the audience awake," said Frank Moran of the Boston Bar Association.

The first case, which the U.S. won by a score of 85-54, asked whether a judge or a jury should award damages in a tort suit.

Commentator Akil Amar, a Yale Law School professor, asked the panel whether the United States should return to the British custom of allowing the judge to set the damage award.

"You might see an advantage if you don't trust your judges," said British lawyer Michael Hill, who argued against the American custom.

Although a judge may be smart, the combined intelligence of a jury may be greater, said Michael E. Mone, an American lawyer who defended the United States' system.

Because a jury already has the power to hand down a death sentence, Mone said, it should also be allowed to determine monetary awards.

In the second round, which the U.S. won 116-34, the panel debated whether defendants who do not take the stand in their own defense are implicitly admitting guilt.

Before 1898, commentator Lord Justice Swinton Thomas told the audience, defendants in England were not allowed to speak because they were usually uneducated and unrepresented.

Because innocent defendants want to clear their names, silence in court implies guilt, said Judge Brian Capstick, who represented the British view.

Speaking for the American side, noted criminal lawyer F. Lee Bailey Jr. '54 defended the 37-year-old U.S. law allowing silence for defendants.

The third round, in which Britain chalked up its only win (78-47), tackled extemporaneous opinions on the part of the judges in criminal appeals.

"Why delay? The result may be already clear," said Master Michael McKenzie, arguing for England.

HLS Professor Charles Ogletree disagreed. He said that extemporaneous decisions put "efficiency over justice."

"[It is] better to be accurate than to be swift," he said.

The last round, which the U.S. won 67-40, asked whether judges should have law clerks.

Massachusetts Supreme Judicial Court Justice Margaret H. Marshall, Harvard's former vice president and general counsel, said law clerks help speed cases along and bring "enthusiasm [and] new opinions."

Marshall said she is better able to express her ideas after they have been tested and challenged by her law clerks.

But, she said, she alone determines her decision on a case.

Judge James Rant of England argued the opposite.

"[It is] incompetent, lazy judges that concern me," he said

Marshall said she is better able to express her ideas after they have been tested and challenged by her law clerks.

But, she said, she alone determines her decision on a case.

Judge James Rant of England argued the opposite.

"[It is] incompetent, lazy judges that concern me," he said