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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: I'm not bad. In pact, the reason why I'm actually doing pretty good is that this episode, Aughie gets to respond to a question I receive all the time. What is that question, Nia?
N. Rodgers: Where does law come from?
J. Aughenbaugh: Where does law come from?
N. Rodgers: Can I ask you a question?
J. Aughenbaugh: Sure.
N. Rodgers: You're going to talk about civil law and you're going to talk about criminal law, and you're going to talk about common law and you're going to talk about all those kinds of things.
J. Aughenbaugh: Yes.
N. Rodgers: If we make this podcast long enough, are we Common Law Podcast married? I've been thinking about that a lot lately [inaudible] you're now one of my longest relationships, I'm just saying.
J. Aughenbaugh: What Nia is referring to is that Nia and I both grew up in states that actually recognize a type of marriage, common law marriage. We will circle back around to that a little bit later on because today's episode is about British common law.
N. Rodgers: Where the United States gets hits law. We didn't just form a government. We don't have 1887. Wait.
J. Aughenbaugh: 1787.
N. Rodgers: 1787. Thank you. I got my dates all wrong there. 1787 proof Constitution, and by the way, here's all of our laws. We did not have a lawless state prior to that because we have always been under British common law, haven't we?
J. Aughenbaugh: Yeah. We're in the common law.
N. Rodgers: Except for Louisiana, which we can't talk about.
J. Aughenbaugh: Well, we'll actually briefly touch upon Louisiana. Anytime you talk about origins of law in the United States, you need to touch upon Louisiana simply because they are an outlier.
N. Rodgers: Fifty plus one.
J. Aughenbaugh: Which if you ever interact with somebody from Louisiana, they wear that as a badge of pride.
N. Rodgers: Because they're lunatics. We love them. They're great too but they're lunatics. But even Puerto Rico is under regular law and then you got Louisiana who's like, no, we don't think so. It's 50+1. Where does it begin?
J. Aughenbaugh: The colonies in the United States were created legally because of charters, which are basically contracts from the British Crown.
N. Rodgers: Two various religions generally speaking to various religious groups.
J. Aughenbaugh: Yes.
N. Rodgers: Group of quakers would say, we want this chunk of Pennsylvania.
J. Aughenbaugh: The Baptists in South Carolina, you got the Calvinists up in Massachusetts.
N. Rodgers: That's because they wanted to get out of England and away from the Church of England.
J. Aughenbaugh: Yeah, the religious persecution.
N. Rodgers: They were looking for a new space.
J. Aughenbaugh: As an element of each of these charters, the colonies had to follow British law.
N. Rodgers: I'm not surprised by that.
J. Aughenbaugh: What was British law?
N. Rodgers: This law at that point would have been a common understanding.
J. Aughenbaugh: Yes. It's known as common law. Basically, most nations today in here follow one of two major legal traditions, either common law or civil law. Common law arose in England during the Middle Ages and not surprisingly, got spread around the world in British colonies.
N. Rodgers: Or the empire upon which the sun never sets.
J. Aughenbaugh: Yes.
N. Rodgers: At one point England pretty much owned the globe.
J. Aughenbaugh: It had colonies spread around the world.
N. Rodgers: When you think about the Commonwealth and the Commonwealth nations even now, you're talking about a global enterprise.
J. Aughenbaugh: Whether it had been in Asia or Africa or the western hemisphere.
N. Rodgers: They were everywhere.
J. Aughenbaugh: They were everywhere. In contrast, you have civil law. Civil law developed in continental Europe at roughly the same time. Civil law gets spread because of.
N. Rodgers: The French.
J. Aughenbaugh: Spain and Portugal primarily, but all because of the French.
N. Rodgers: Spain and Portugal, big colonizing countries.
J. Aughenbaugh: Big colonizing countries. What is common law? Common law is generally uncodified.
N. Rodgers: Not written down.
J. Aughenbaugh: It's not written down. There's no comprehensive, if you will, a compiling of legal rules and statutes.
N. Rodgers: That would go by precedent then?
J. Aughenbaugh: Yes.
N. Rodgers: What's been decided before generally leads what comes after.
J. Aughenbaugh: That's right. How do you know what the law is? Because of court rulings which establish a precedent. These rulings are then applied in the future to similar cases.
N. Rodgers: That is exactly what we have.
J. Aughenbaugh: Yes. Because if you think about the Supreme Court.
N. Rodgers: Well, and almost every legislative law that we have comes out of a ruling nobody liked. They change.
J. Aughenbaugh: That's right.
N. Rodgers: They make a law. We have a little bit of written law. We have a little bit of civil law because we have the code.
J. Aughenbaugh: Yes. This is where, again, the United States in the late 1700s, early 1800s, Nia, is a really good example of how, yes, our framers, you could say we're bright and smart, and geniuses, etc, but they picked and chose from the buffet of what existed. Because in addition to the [inaudible]
N. Rodgers: Well, in true enlightenment form, you take the best of every system that you come across. You take a little bit of from Column A, a little bit from Column B, a little bit from Column C. We will have a lovely dinner.
J. Aughenbaugh: Yes.
N. Rodgers: This is people who eat chamin with their tacos, just saying.
J. Aughenbaugh: If you think about it, Nia, we have a mixture in the United States of both common law but also civil law because civil law is codified.
N. Rodgers: It's rules written down.
J. Aughenbaugh: It's rules written down. This idea that legislative bodies can pass laws, that's taken from the civil law tradition that you saw in continental Europe, because again, that was one of the main distinctions between England and their rival colonial powers in continental Europe. Again, it got that petty because we're different in England. Well, you guys are weirdos in England, we're going to actually have written laws. No, they didn't say weirdos, but nevertheless.
N. Rodgers: The Romans had written laws.
J. Aughenbaugh: Yes, Romans definitely had written laws. Let's talk about some other differences between common law and civil law. Now, in common law, common law typically functions as an adversarial system. You see this in both the United States and in Great Britain and in Canada, and many of the former British colonies. What do you mean by adversarial system? You basically have two opposing parties in front of a judge who moderates.
N. Rodgers: Each side argues.
J. Aughenbaugh: You have to convict.
N. Rodgers: Each side argues their points and they use whatever persuasive means they have, common sense and previous.
J. Aughenbaugh: Yes [inaudible]
N. Rodgers: Then the judge says or the jury in the case of the United States.
J. Aughenbaugh: Well, even in England, you still have juries. But it's a jury of [inaudible]
N. Rodgers: I've never been sued in England.
J. Aughenbaugh: But you have a jury of ordinary people. The ordinary people are supposed to act as a check on the system. Because the jury goes ahead and says, I think the prosecution was more persuasive, or I think the defense was or whatever the case may be.
N. Rodgers: Which juries are supposed to decide whether you've done something beyond a reasonable doubt?
J. Aughenbaugh: Doubt. That's right.
N. Rodgers: The word you get reasonable there is what do 12 people consider to be be reasonable?
J. Aughenbaugh: Reasonable.
N. Rodgers: You do 12 rather than two because 12 gives you a lot more perspective.
J. Aughenbaugh: You're supposed to persuade the collective, not necessarily just one or two people.
N. Rodgers: Exactly.
J. Aughenbaugh: Civil law, as we've already mentioned, is written down. It's codified. The legal systems, the legal codes get updated all the time. This is again a feature that you see in the United States. We're going to discuss this a little bit later on this spring about in civil legal systems, the body of law, the code is supposed to be updated. Frequently they aren't, but nevertheless. The code establishes what is or is not acceptable behavior. We've taken an element of the civil law system and we've applied it to our common law, if you will, tradition, because we see this in United States. The federal government has a whole bunch of laws. States have a whole bunch of laws. Local governments have a whole bunch of laws and they're all written down.
N. Rodgers: Which is why they will say to you in a court of law, ignorance is no defense before the law.
J. Aughenbaugh: That's right.
N. Rodgers: Because they're written down. You could go look.
J. Aughenbaugh: Yes. But unlike in common law, which is adversarial, in a civil law system, the judge not only acts like the judge as we know it here in the United States, but in a true civil law system, the judge actually establishes the facts of the case and then applies the relevant code to the facts.
N. Rodgers: [OVERLAPPING] There's a name for that in Australia and England, it's an inquiry of a specific kind that the judge does where the judge subpoenas people and gathers evidence.
J. Aughenbaugh: You see this more in civil law systems because it's not an adversarial system. It's known as an investigative system. They have so much trust in their government officials that they give both the judge and prosecutorial role to one person.
N. Rodgers: Which is because we wouldn't do that because we don't. We think the more people involved in this, the better. The more likely a just outcome if we involve a large number of people, relatively speaking into a court case.
J. Aughenbaugh: That's right. And in the civil system
N. Rodgers: [OVERLAPPING] That's why we also have wide open evidence laws in the United States in terms of what you can bring in to show for both sides. [OVERLAPPING] Both try to bring in as much evidence as we can so the jury has as full a picture of what's happened as possible so that they can hopefully bring about the best justice.
J. Aughenbaugh: That's why so many of the motions in the common law system in front of a judge are about what is or is not relevant evidence.
N. Rodgers: I'm so glad you brought that up. Can I bring up a quick thing?
J. Aughenbaugh: Yeah.
N. Rodgers: So we have we have these things called the Federal Rules of Civil Procedure, and the Federal Rules of Criminal Procedure. If you ever wonder who made the rules about how the court works, like how legal cases can be prosecuted, those are the rules for that. There are rules specifically about things like, you can't just slander the defendant in court. You can't just say, because this person is ugly and stupid they probably committed this crime. That's unacceptable.
J. Aughenbaugh: Because they're in the code, they are created by Congress.
N. Rodgers: A large body of theoretically representative people who would say, no, you can't bring that in. You can't bring in hearsay. That's one of my favorite things is I overheard in a bar this guy saying this about this other person. Well, that's Hearsay. Like he could have been saying anything about anybody that's not legal.
J. Aughenbaugh: In the hearsay rule is first taken from precedent, but then is put into the code by the legislature. This is yet another example of how we have mixed, combined the common law. We've taken a common law concept, the rule of hearsay, or more precisely, the rule prohibiting hearsay. Now we've codified it.
N. Rodgers: It's in the rules of the Court.
J. Aughenbaugh: It's in the rules of the Court.
N. Rodgers: What happens whenever you are watching a television show or a movie and the other person objects, they are objecting based on the the rules of civil procedure.
J. Aughenbaugh: Rules of criminal procedure. That's right.
N. Rodgers: Which means that lawyers, you don't have to know anything else except you got to know those. You have to be able in an instant to process that something is not acceptable because if you don't object, it stands. Even if it was not an acceptable thing to do, if you don't object, it stands.
J. Aughenbaugh: If you don't know those rules, you can't give good advice to your client because you're going to end up making an argument in a court and a judge is going to say, well, according to section, of the State's criminal procedure, that is unacceptable evidence. You may have gone ahead and set up your entire case defending your client on that [OVERLAPPING] evidence. [LAUGHTER] Again, that's the reason why I tell students who are thinking about law school, I hope you like procedure because you may end up taking a class each in Crim Pro, criminal procedure or Civ Pro, civil procedure, and they're just like. But I want to go ahead and argue cases. Yes. You can't argue cases unless you know.
N. Rodgers: By the by 95% of what you do is not arguing cases. Just for those folks who are considering going into law, who are listening to this podcast because you're amused by the idea of British common law, I'm just telling you, being a lawyer, solicitor, attorney, whatever you want to call those individuals esquire in the United States, is,.
J. Aughenbaugh: Counselor of law,.
N. Rodgers: Yes that's right, 95 percent of that is paperwork. Yes. You need to understand how to file the right paperwork at the right time with the right person in order to defend or prosecute a case. This whole thing of the Matlock moment where you sharkuse and all this other stuff that happens in movies.
J. Aughenbaugh: TV shows.
N. Rodgers: That totally is not how law works. Law is hugely about the mechanics. Are we going to be allowed to use this evidence? Are we going to be allowed to call this person? All these different things, before you ever get to the part where you get to actually do those things.
J. Aughenbaugh: That's right.
N. Rodgers: It is understanding whether you're going to be allowed to do those things or not.
J. Aughenbaugh: That's so much of what clients are hiring for is that you have a body of knowledge
N. Rodgers: You can navigate this system. [LAUGHTER]
J. Aughenbaugh: That's right. And it's a body of knowledge that is very complicated in United States because we do have a mixture of both common law precedent. So you need to know former court rulings in your case that apply to your case, but you also have to know how the code, civil law also applies to your case.
N. Rodgers: Can I ask a question about civil law?
J. Aughenbaugh: Yeah, go ahead.
N. Rodgers: If civil law, the countries or in this case the state Louisiana, where civil law is the general way that it goes. That is you can only follow what is written in the civil law.
J. Aughenbaugh: Yes. Judicial precedents don't matter as much civil.
N. Rodgers: Freedom or Judgment. There is, I read the law, the law reads in this way, and therefore I will punish in this way. It's pretty rigid, isn't it? In a strict civil law.
J. Aughenbaugh: Yeah. Those countries that developed civil law systems, one of their critiques of British common law, was that because there was so little written down, it was difficult to establish what was or was not acceptable behavior. Civil law systems end up putting everything into the code. That's why you find so many laws so much of the code in civil law systems so detailed ponderous, cumbersome because they try to envision not only all behaviors that are or are not acceptable, but all circumstances that may provide exceptions.
N. Rodgers: It's never acceptable to spit on the sidewalk except in the following.
J. Aughenbaugh: Situations. That's why, and that's one of the criticisms of civil law systems is that not only are the laws so lengthy, but they have so many sections with exceptions written into them that again, it requires an attorney simply because most people won't be able to read and understand what is or is not acceptable behavior. [LAUGHTER]
N. Rodgers: Does that slow those systems down?
J. Aughenbaugh: Oh my goodness. Yes.
N. Rodgers: If we think the court system in the United States is byzantine and slow is because we've never tried a case in India.
J. Aughenbaugh: Or again, if you're going to practice law, or if you're going to practice law in Louisiana, not only what you have to know is going to be different than in most of the states, but your body of knowledge potentially is going to be so much greater simply because it is predicated on the civil law system. That's why the Louisiana Bar Exam is so much different than pretty much the other 49 states in the United States.
N. Rodgers: Well, and I imagine being a judge there is a lot harder too, because you would need a vast breadth of knowledge of the law or you would take forever to research a question and come back with an answer. Yeah. What we have is a mix of those things.
J. Aughenbaugh: Yes, we do. Hey, not everybody is a fan, but it does reflect the fact that the United States.
N. Rodgers: We like some laws written down, but then we want to have some precedent in case we need. What we are trying to do is have the civil common law, or rather the civil law and instead of trying to come up with every single exception written into our law, we use common law to make exceptions.
J. Aughenbaugh: Yeah. Or vice versa. That's the thing about the United States. I've had attorneys who have gone ahead and say, I'm not going to rely on president. I'm going to go ahead and focus on the law passed by the Legislature. If you ask them why they're like because one benefits me more than the other.
N. Rodgers: Is there a compilation of British laws or British rules or British something? We have court reporters and they are a compilations of various court's rulings in the United States.
J. Aughenbaugh: The classic, if you will, compilation of British common law that existed before the United States was created as a country, was created by the well known British legal theorist William Blackstone. His commentaries on the laws in England in here. Blackstone still gets cited even today by the United States Supreme Court.
N. Rodgers: Blackstone's like, if you're doing historical research into legal questions in Britain, you have to look in there. It's one of those things.
J. Aughenbaugh: Well, think about this listeners in 2022, in the infamous Supreme Court ruling about the meaning of the Second Amendment, the Bruen case. Justice Clarence Thomas' majority opinion referenced Blackstone in his commentaries, about a half a dozen times.
N. Rodgers: Really? So he's not dead.
J. Aughenbaugh: In the lead dissent. I think it was maybe a jointly written dissent of Sotomayor, Kagan and Bruen. They also referenced Blackstone, but with different interpretations.
N. Rodgers: Oh, okay. Seems Blackstone is not as it were written in stone. I'm not trying to make a pun there.
J. Aughenbaugh: Blackstone's not dead. Existentially he might be, but never.
N. Rodgers: But some people's work lives on.
J. Aughenbaugh: Some people's work live on. By the way, it's not just Louisiana that has elements of civil law. Because you Louisiana got it from the French and the Spanish. But you also got to remember a big chunk of far southwest United States. Used to be part of Mexico. Mexico had been colonized by which European nation?
N. Rodgers: Spain.
J. Aughenbaugh: Spain. Spain had a civil law system. You see this, for instance, in California. California courts have this weird mix of where they issue decisions that are rooted in precedent, but it also might be precedent rooted in civil law. It's not just Louisiana.
N. Rodgers: What you're telling me is, don't be a lawyer. That's your first thing you're telling me.
J. Aughenbaugh: The students say that to me all the time. They're like Aughie, before I took class with you, I wanted to be a lawyer. Then I took class with you and I don't want to be a lawyer. I'm like, oh, no. I don't teach my classes to direct you into one career, profession or another. I'm just telling you if you're going to become a lawyer in the United States, depending on what law you focus on, your breadth of knowledge may have to be either extremely narrow or very broad.
N. Rodgers: The other thing is, and all kidding aside. If you're going to be a lawyer, what you have to do is be a person who learns all the time.
J. Aughenbaugh: Yes.
N. Rodgers: You will never achieve and now I know the law.
J. Aughenbaugh: That's correct.
N. Rodgers: Like that's just not going to happen.
J. Aughenbaugh: No.
N. Rodgers: If you're a person who needs to achieve something and have there be an ending, law may not be good for you.
J. Aughenbaugh: Correct.
N. Rodgers: Because it's constantly shifting ground a little bit, at least in the United States.
J. Aughenbaugh: Yes. Just be sure.
N. Rodgers: Where you get this mixture of common and civil you get precedent which changes all the time. Roasted until it didn't.
J. Aughenbaugh: We think about for instance, you practice law in a state and for decades, if not a century plus, a particular state law has been interpreted a certain way, so that's rooted in civil law. You have a law passed by the State Legislature. It's in the State Code. But then the State Supreme Court issues a new ruling, a new precedent.
N. Rodgers: A new interpretation.
J. Aughenbaugh: Interpretation of that law. You're going to have to learn that different now. If you're unwilling to do that, then being a lawyer might not be the career for you. Because in that's where, Nia, what you just said is really relevant. Because you have to keep on learning. You mentioned raw, nearly 60 years in the United States-
N. Rodgers: It stood more or less unchallenged. There were a few challenges.
J. Aughenbaugh: But you get a new precedent. The Dobbs case. But now that's requiring civil laws.
N. Rodgers: In all the states.
J. Aughenbaugh: States.
N. Rodgers: Just to change fixed [inaudible] nor revisited, whatever you want to call it.
J. Aughenbaugh: If you are an abortion attorney.
N. Rodgers: It's always been this way.
J. Aughenbaugh: Your practice covers multiple states. You now no longer have a single precedent. It might be different rules, different laws depending on the State in which your client is operating.
N. Rodgers: Side note, you take bars in different states because the laws are different and because applications can be different.
J. Aughenbaugh: Yes.
N. Rodgers: I have a friend who took the bar and there's what they call, I think, a tri state bar, which is Connecticut, New Jersey, New York.
J. Aughenbaugh: New York. That's right.
N. Rodgers: Because their laws are similar enough.
J. Aughenbaugh: Yes.
N. Rodgers: That you can take one for them. But then if you want to do Pennsylvania, that's a different bar.
J. Aughenbaugh: Yes.
N. Rodgers: If you want to do North Carolina, that's a different Virginia, that's a different bar. All the different bars. Depending on where you live, you have to go take the bar in that state. If you move to a new state, if you moved to California, crap, I got to take the California bar. Guess what? You're going to be studying like a crazy person.
J. Aughenbaugh: Yes.
N. Rodgers: Learning to unapply certain things and apply certain things differently so that you can pass the bar in that state because they don't want you trying to apply Connecticut law in California. It won't work. You will lose your clients will lose. That's bad service for your client.
J. Aughenbaugh: Yes.
N. Rodgers: Just as a side note, before we wrap up in the United States, what we are trying to get at with all of our legal system is the most just outcome possible, which is why even the worst defendants get a really good defense. If you get Ted Bundy is a client while he actually represented himself because he's a lawyer. But let's say you got, Jeffrey Domer as a client. Jeffrey Domer ate people. Like he was not a good human, but he still, under American law, deserved the best defense possible. They couldn't just say, he's pretty bad, I'll go ahead and do whatever you want. They couldn't say that of Jeff. They had to say, there are these mitigating circumstances and here's what, blah, blah, blah, blah, blah. We bring all this evidence in. Because they are trying to get him the best. Because in the adversarial system that you talked about at the beginning, both of the adversaries are supposed to put up the best case possible.
J. Aughenbaugh: Yes.
N. Rodgers: One of them does not roll over to the other. Even if they both agree that the client is a scum bag, they don't roll over because that's not how the American system works. We don't do that to people.
J. Aughenbaugh: Nia, to your point. I remember reading an interview, and I think it was the Washington Post, the New York Times did with the lawyer who represented the Boston Marathon Ramah.
J. Aughenbaugh: She was asked why she was defending him, and she was trying to get the verdict overturned to where he received the death penalty and she spoke to that. She spoke to that point to where my job is to not judge my client, but to force the government to explain to a jury why this person should receive the ultimate punishment. That was my job.
N. Rodgers: Because death cannot be undone.
J. Aughenbaugh: Yes.
N. Rodgers: You need to make a really good case for that.
J. Aughenbaugh: If the government's argument is that justice for the victims of that bombing requires that the perpetrator receive death, then my job in our system is to force them, to convince a jury that this would be the ultimate form of justice. She says, I take that my role seriously.
N. Rodgers: But she's not saying, because I love this guy. He's great.
J. Aughenbaugh: No.
N. Rodgers: She's not saying that at all. What she's saying is the government must meet the highest possible standard when the death penalty is involved because it is the one thing that cannot be undone. You can let people out of prison and give them money and say, we're really sorry, we shouldn't put you in prison or whatever. You can do all that stuff if somebody is still alive. But once you have put them to death, there's no recourse. There's nothing else. I don't know. I'm with her on that.
J. Aughenbaugh: We're going to post on our work.
N. Rodgers: If as a lawyer you can't do that. If you can't put up the fullest defense of your client, you have to step down like by the rules of the courts. You have to step down.
J. Aughenbaugh: We're going to put on a research guide, the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. Just to go ahead and show you the influence of civil law systems, and you need to know these rules if you're going to practice in federal court. Because depending on the case, whether it's a civil case or a criminal case you need to know those rules so you can give your client, if you're representing a defendant the best defense possible. But you also need to know those rules to force the government to play by the rules.
N. Rodgers: You don't want them introducing stuff and you letting it happen because you don't know the rule well enough to say, wait you can't do that.
J. Aughenbaugh: That's right. You want to make sure that the judge is overseeing the case appropriately, etc. Much of the law is about the process. That's why it reads the Federal Rules of Civil Procedure. That's why it reads the federal Rules of Criminal Procedure. If you're a good attorney you know these rules. Just like for instance if you're a good attorney and this reflects the common law tradition you know precedent.
N. Rodgers: Or if you don't, you've done a lot of research and by the time you get to the court, you know a lot of precedent. You don't have to know what to start with, but you need to know it at the Day 1.
J. Aughenbaugh: Yes.
N. Rodgers: You need to be able to walk into that court room and say I have a list and I know exactly what we're doing and what we're not doing. Can I ask you one more question?
J. Aughenbaugh: Sure.
N. Rodgers: I know this is a silly question, and you may not know the answer, but you may know the answer. What's up with the wigs in British, because they all still wear them even now. In Canada they wear those white wig thing.
J. Aughenbaugh: This comes from the middle ages and it is supposed to remove, if you will, the personable identity of the lawyers so that all will look the same.
N. Rodgers: Is that why they all wear matching Roby type things too?
J. Aughenbaugh: Yes.
N. Rodgers: It's basically it doesn't matter who's defending or who's prosecuting. The individual lawyer, doesn't matter. It doesn't matter if you go out and hire Alan Dershowitz?
J. Aughenbaugh: Yes.
N. Rodgers: Our super well known lawyer. That doesn't matter to the Court.
J. Aughenbaugh: The focus should be on the substance and not necessarily the individuals.
N. Rodgers: If you had a co tour show and you dressed all the models exactly the same, basically, that's what you're talking about. Got it. I just wondered about that because it's a legit thing. They still all wear the wigs. That's interesting. I wonder if the United States, because we are a country based in part on flamboyants, that should have been one of our founding principles, is that why we don't have that system. Why we have some people come to the court wearing $5,000 Brooks Brother ties with their $10,000 suits.
J. Aughenbaugh: I've interacted with enough judges to wear they would put. If they had their dress others, there would be dress codes for all the attorneys.
N. Rodgers: It would all be low key. Everybody here has to wear black. Nobody here gets to wear anything flamboyant. If you remember Johnny Cochran with all his jewelry and all his big flashy suits and all his amuse, he made a presence in the courtroom.
J. Aughenbaugh: But if you think about it, pretty much in every jurisdiction in the United States, judges have to wear a basic outfit.
N. Rodgers: That's true. They wear a robe. We've just gotten rid of the wig because they were itchy and hot.
J. Aughenbaugh: Most of the judges I've talked to are just like, they want to dress code because they don't want the focus to be on the lawyer and what they're wearing. The Defendant and what they're wearing. Yes.
N. Rodgers: There is by the way, a side note before we go away from this, I don't know if they do this in Britain, but they do this in the United States. Very few defendants in the United States, when they appear before a jury, appear in orange jumpsuits.
J. Aughenbaugh: That's right.
N. Rodgers: They're given regular clothes. They're brought into the courtroom in handcuffs but then those are taken off before the jury comes in, so that the jury does not see this person as a prisoner because they don't want that to set in their mind well they're already guilty.
J. Aughenbaugh: Yes.
N. Rodgers: Again, part of the system of trying to make it as fair as possible.
J. Aughenbaugh: You don't want the jury to prejudge simply based on their appearance.
N. Rodgers: Well, it's complicated, isn't it?
J. Aughenbaugh: Much of the law is, which probably explains a large chunk of my fascination and why I love teaching it so much.
N. Rodgers: To all the lawyers out there start with the Romans and work your way forward. Good luck with that.
J. Aughenbaugh: Yes. For your budding attorneys become well versed in civ pro and crim pro.
N. Rodgers: Get used to the idea that you will never stop reading enormous amounts of material. You know how Aughie gave you like 50 pages this week in your class, nothing. Nothing compared to what you will be reading. You need to get comfortable with the idea that you're going to read for the rest of your life.
J. Aughenbaugh: By the way, for any of our listeners who go to law school and graduate and wonder why it is a very customary gift for law school graduates to receive a bound copy of Blackstone's commentaries. Today's episode hopefully explains why that may be the case.
N. Rodgers: If you're one of our regular listeners and you're graduating from law school, let us know, email us because that's exciting and we want to celebrate you.
J. Aughenbaugh: Yes, we do. But anyways, thank you, Nia.
N. Rodgers: Thank you, Aughie.
You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.