Land Without Plea Bargaining: How the Germans Do It

The present Article demonstrates the error of this universalist theory of plea bargaining by showing how and why one major legal system, the West German, has so successfully avoided any form or analogue of plea bargaining in its procedures for cases of serious crime. The German criminal justice system functions without plea bargaining not by good fortune, but as a result of deliberate policies and careful institutional design whose essential elements are outlined in Part I. Part II addresses the American claims that a clandestine plea bargaining system lurks behind veils of German pretense

Land Without Plea Bargaining: How the Germans Do It

The present Article demonstrates the error of this universalist theory of plea bargaining by showing how and why one major legal system, the West German, has so successfully avoided any form or analogue of plea bargaining in its procedures for cases of serious crime. The German criminal justice system functions without plea bargaining not by good fortune, but as a result of deliberate policies and careful institutional design whose essential elements are outlined in Part I. Part II addresses the American claims that a clandestine plea bargaining system lurks behind veils of German pretense

Comparative Civil Procedure and the Style of Complex Contracts

Among businessmen and lawyers familiar with commercial practice in complex transactions on both sides of the Atlantic, it is a common observation that a contract drafted in the United States is typically vastly more detailed than a contract originating in Germany or elsewhere on the Continent. My purpose in this paper is to inquire into the causes of that notable difference in the style of contracting. The Belgian legal writer Georges van Hecke discussed this subject in a stimulating paper that is now a quarter-century old. He illustrated the phenomenon with an anecdote. He told of a transaction in which an American company and a European company were planning to affiliate by exchanging shares. The lawyers for the American firm drafted two contracts to embrace the transaction. The combined drafts ran about 10,000 words in length. The European businessman had no prior experience with American lawyers, and when presented with the elephantine American drafts he was so shocked that he nearly renounced the deal. Thereupon it was decided to start over, and the European businessman arranged for his lawyer to prepare a counterdraft. The result was a document of 1400 words. It was found by the American party to include all the substance that was really needed, and it was readily executed by both parties and adequately performed

The Historical Origins of the Privilege Against Self-Incrimination at Common Law

This essay explains that the true origins of the common law privilege are to be found not in the high politics of the English revolutions, but in the rise of adversary criminal procedure at the end of the eighteenth century. The privilege against self-incrimination at common law was the work of defense counsel. Part I of this essay discusses the several attributes of early modem criminal procedure that combined, until the end of the eighteenth century, to prevent the development of the common law privilege. Part II explains how prior scholarship went astray in locating the common law privilege against self-incrimination in the wrong events and in the wrong century

The Twentieth-Century Revolution in Family Wealth Transmission

The decline of probate has another dimension that has not been well understood. Fundamental changes in the very nature of wealth have radically altered traditional patterns of family wealth transmission, increasing the importance of lifetime transfers and decreasing the importance of wealth transfer on death. In this article I shall be concerned with private-sector wealth. Into the eighteenth century, land was the dominant form of wealth. The technological forces that broke up older family-centered modes of economic organization called forth two new forms of private-sector wealth. One category is what we today callfinancial assets - that is, stocks, bonds, bank deposits, mutual fund shares, insurance contracts, and the like - which now comprise the dominant form of wealth. The other great form of modem wealth is what the economists call human capital. It is the skills and knowledge that lie at the root of advanced technological life. The main purpose of this article is to sound a pair of themes about the ways in which these great changes in the nature of wealth have become associated with changes of perhaps comparable magnitude in the timing and in the character of family wealth transmission. My first theme, developed in Part II, concerns human capital. Whereas of old, wealth transmission from parents to children tended to center upon major items of patrimony such as the family farm or the family firm, today for the broad middle classes, wealth transmission centers on a radically different kind of asset: the investment in skills. In consequence, intergenerational wealth transmission no longer occurs primarily upon the death of the parents, but rather, when the children are growing up, hence, during the parents\u27 lifetimes. My other main theme, developed in Part III, arises from the awesome demographic transformation of modem life. For reasons that I shall explore, those same parents who now make their main wealth transfer to their children inter vivos are also living much longer. The need to provide for the parents in their lengthy old age has put a huge new claim on family wealth, a claim that necessarily reduces the residuum that would otherwise have passed to survivors. A new institution has arisen to help channel the process of saving and dissaving for old age: the pension fund. The wealth of the private pension system consists almost entirely of financial assets. I shall emphasize a distinctive attribute of pension wealth, namely, the bias toward annuitization. When wealth is annuitized, virtually nothing is left for transfer on death