UCLA Journal of International Law and Foreign Affairs

This article suggests that comparative literature can gain valuable insights in turning to the design of legal norms. Building on and further developing the notional framework of Louis Kaplow with regard to rules versus standards, simplicity versus complexity, and structure ddecision-making versus free balancing, it introduces the rules-model and the standards-model as tools of comparative norm design. The article applies this approach in the area of criminal justice, comparing the systems of the United States and Germany. In doing so, it relativizes a common characterization of U.S. criminal justice as flexible and discretionary and of German criminal justice as rigid and rules-based. Indeed, a closer analysis of norm design in criminal procedure suggests quite the opposite: focusing especially on norms governing the exclusion of evidence, the impeachment of witnesses, sentencing, and plea bargaining, it will be possible to link the way in which the United States administers criminal justice to the rules-model and the German approach to the standards-model. Analyzing the respective vices and virtues of both models, the article further explains the described difference in norm design by reference to the prevailing concept of the judge: whereas the United States tends to underline the fallibility of judges, the German legal culture tends to idealize them. This comparative analysis harmonizes well with the broader context and can explain other areas of the law as well. Indeed, the proposed distinction of norm design (rules-model versus standards-model) can also explain differences in contract law and aligns with the common-civil law divide and dominant strains of legal thought in both countries. In addition, the diverging concept of the judge (fallible versus idealized) can be contextualized by reference to the differences in the structure of authority, the concept of individuals, and the philosophical heritage.