More reports from the W&L Law students spending two weeks in Germany for the Comparative Law Academy, which brings together American and German law students for a scholarly exchange on both countries’ legal systems.
May 11, 2011 – Leona Krasner
Guten abend! (Good evening!) Today was quite the busy day. Breakfast consisted of a croissant, fruit juice, and a side of reading for the day. The weather here in Giessen is amazing: warm and sunny in the afternoons and refreshingly cool come evening. Professor Miller, the other Washington and Lee students, and I took the scenic route to the law school so we could enjoy the beautiful flowers that were blooming in the gardens and park on the way. We managed not to get lost this time!
Our afternoon session centered around the European Court of Human Rights. We discussed the purpose, function, and need for this institution. A point of contention upon which we spent a considerable length of time was the skepticism that some felt regarding the effectiveness of decisions passed by this court because of a lack of the court’s enforcement mechanism. Still, we concluded that the court had a number of redeeming features. After a break during which we ate lunch and reviewed for the evening session, we reconvened, this time with the German law students. One Washington & Lee and one German law student are chosen to summarize, critique, and give opinions about the readings for the day, and I was today’s W&L speaker! I presented on Pierre Legrand’s text in which he discussed his belief that one must focus on the differences and not the similarities when comparing different nations’ constitutions. Professor Miller emphasized the fact that Legrand’s piece was one more essential tool in our arsenal of comparative legal tools.
Next, we all went to a house a ways off campus at which we enjoyed pizza and beer on the terrace and engaged in much-needed conversation about non-legal subjects. Several of the German girls had rather interesting thoughts about us American students, some of which, with a little coaxing, they decided to share with us. One said that our assigned reading assignments were so long, and the authors seemed to go on and on without getting to a main point. Yet we American students, she said, always seemed able to manage to find these elusive main points! We explained that we merely spoke with great conviction and made it our aim to convince ourselves and others that the points we selected to be the main points were, in fact, the main points. Everyone had a good laugh about that. Another German law student mentioned how friendly we were, and how much she liked this openess, for Germans, she said typically took some time to warm up to new people.
We then watched “The People v. Larry Flynt,” a movie that depicted the facts that surrounded a seminal U.S. constitutional case. I was speechless by the end – the notion that Flynt, who described himself as the lowest of the low, would appeal his suit all the way up to the Supreme Court so that everyone can have the freedom for which he was fighting was mind-blowing. The makers of the movie also deserve credit, for they perfetly molded Flynt: a morally reprehensible character who nonetheless convinces you to be cheering for him by the end of the film. The German law students appeared equally spell-bound. We sleepily made our way back to the hotel to rest up for another exciting day tomorrow!
May 12, 2011 – Douglas Dua
Guten Tag, America. It’s Day Five here in Giessen, Germany, and our intensive seminar in comparative legal education is coming along nicely. Today, we spent the morning learning about the European Convention on Human Rights in preparation for our upcoming weekend in Strasbourg, France, during which we’ll visit the European Court on Human Rights. This court is the institution entrusted with adjudicating disputes involving states party to the Convention. Toward the end of our early session today, we also began to touch on the extent to which Germany accepts international law within the corpus of its own federal law, which we labelled Germany’s openness to international law.
It turned out to have been with a special treat in mind that Professor Miller spent time on this last subject, as we were greeted today by a former justice of the German Federal Constitutional Court. This was a mind-blowing experience for me. We’ve been learning about the many differences between the American and German ways of doing things, and one of the most striking sources of contrast is in the way high court judges are treated in each culture. To be sure, a direct comparison of the German Constitutional Court and the American Supreme Court is not precisely correct; the American court is one of general jurisdiction, receiving final appeals over many substantive areas of law and also serving as the forum for finding answers to constitutional questions. The German court, on the other hand, serves only the latter function. There are other courts in the system over here that serve as final arbiters in non-constitutional, or “ordinary,” matters.
The other day, as we seven students and Professor Miller were walking from our hotel up to the German law school on the hill, we encountered a former justice of the German Constitutional Court on the street, right outside his office. Not much was said; a quick hello, and then we were on our way. There was none of the hushed awe that would have come from running into former Justice Stevens outside a 7-11 (which, incidentally, doesn’t exist in Germany). Today, when we spent a full hour and a half with another recently retired Constitutional Court justice after the morning preparation I mentioned earlier, the cultural explanation for this difference became a little clearer. In America, our Supreme Court justices (and some other judges) are rock stars. They sign names to their opinions, vote individually, and dissent noisily when they want to. American lawyers might well be able to name favorite justices, and they follow obsessively the personalities on the Court. While the Court itself means something to us, its doing so does not eliminate very separate and lively meanings for Justices Scalia, Roberts, and Kennedy. In Germany’s Constitutional Court, on the other hand, unanimity and a conscious effort to put the institution before the individuals are paramount concerns for justices. Dissents have not always been allowed, and even today they are extremely rare. Most decisions are unanimous, and opinions are written anonymously. There is no analogous rock star quotient to these high court judges.
So, when we sat today in our seminar room, passing around a half a dozen types of Haribo gummy candies and discussing the enforceability of European law in German courts with a former justice of the nation’s high Constitutional Court, my experience was a little shocking. My American proclivity to revere such a high-ranking judicial official, who once had an elite role shaping the meaning of an entire nation’s foundational legal document, kept me riveted and a little awestruck by what he was saying. And he is a sharp guy, too–his answers were insightful and the result of careful reflection. However, I couldn’t help wondering whether, to the Germans, he felt more like a partner at a large firm or a top law school professor–someone worthy of great respect for his accomplishments and abilities, but hardly a national celebrity or a wellspring of what might arguably be called a cult of personality. One of my W&L classmates managed to bring the conversation around to this gray area by asking the justice to reflect on his personal experience with the Constitutional Court. His response was notable mostly for its bashfulness; he actively sought to present the court as an institution above its constituent judges, and to downplay his own personal role. The whole exercise served to further illuminate for me the vast historical and cultural differences between our two nations.
On Friday, we will awaken early and board a train to Strasbourg for our visit to the European Court of Human Rights. Everyone in the group is excited for the brief visit to France and the chance to interact with officials at another high court. We are all here because we believe in the idea of international law and in the noble ends to which it can be put. A visit to a court that serves as a beacon for the enforceability of rules concerning the dignity of human beings worldwide is sure to be inspirational for all of us. Furthermore, we’ve been assured of plenty of opportunity to enjoy the Alsatian food and wine scene. We’ll have more updates tomorrow!