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Vive La Difference

By James M. Beck and Mark Herrmann

We are in Normandy, France today, scene of one of the key events of the 20th Century - D-Day (6 June 1944). Operation Overlord involved enormous planning and sacrifice, and it's hard to visit this land without being overwhelmed by awe and gratitude. This is also the place where Joan of Arc was burnt at the stake, and where the Bayeux tapestry tells the story of William the Conqueror, who brought Norman rule but, sadly, no crème brulee recipes, to England. Our thoughts are far from drug and device law.

Nevertheless, amidst the hedgerows and Calvados, we reflect on some of the features of French product liability law that are, to our American eyes, strange and tantalizing:

- limited discovery
- no trial by jury
- experts, if used at all, are chosen by judges, not the parties
- no discovery rule to evade the statute of limitations
- no class actions
- no market share liability
- no contingency fees
- no punitive damages

Some of the above items are gross simplifications, so consult a French lawyer before doing anything serious. Anyway, since we are not so far from Giverny, it doesn't seem wrong to be somewhat impressionistic about the nuances of French law. French civil law has many similarities to the German legal system, which our Trusts & Estates professor (John Langbein) called the Mind of God Revealed to Man. We wouldn't go quite that far, but there are obviously a lot of features that would make our lives easier and more rational.

Nevertheless, we get used to certain things. Familiarity breeds comfort more often than contempt. It's embarrassing to admit, but every time we go to Europe we visit McDonald's at least once. (Where else can you get decent ice cubes in a drink?) Is it possible we'd actually miss predatory, class action contingent fee lawyers, strumpety, know-everything plaintiff experts, outrageous emotional appeals to juries, and E-discovery?

It's a thought we Camembert.

Full post as published by Drug and Device Law on July 19, 2010 (boomark / email).