Professor Kötz delivered the inaugural Herbert L. Bernstein Memorial Lecture in Comparative Law in 2002 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In order to highlight the similarities and differences in legal regimes between Europe and the United States, Professor Hein Kötz analyzes the German and American civil legal systems and, to a minor extent, the British civil legal system. Specifically, Kötz focuses on one of the distinguishing features of the American legal system, the civil jury, and its impact on the structure and flow of the civil court case. By targeting this feature of the American system, he highlights the differences in values held by each society, the impact these differing values have in altering fairly similar legal objectives, and the mechanisms that are created to fulfill these objectives, as well as the consequences of such mechanisms. Kötz shows how the American preference for a jury over a judge as the trier of fact for a civil trial greatly impacts a number of aspects of the trial, including discovery, the role of the judge, and the approach governing the introduction of expert testimony. This comparison puts into relief not only the differences between the two systems, but also the benefits and drawbacks of each. These differences are highlighted particularly well through the use of examples of solutions found within the legal systems to deal with unique problems – such as the American class-action suit.
Hein Kötz, Civil Justice Systems in Europe and the United States, 1 Center for International & Comparative Law Occasional Papers 1-16 (2009)