American Legal System Flashcards
First law school was established at …
Harvard in 1815
How do you get to law school in the US ?
- Undergraduate - 4 years - any major
- LSAT Exam + High Undergraduate Grades
3,7 for a good law school
How many years do students study ?
3 years of law school = taught using the „Socratic method“
What degree do you receive when you graduate from a US law school ?
JD (Juris Doctorate)
How do you become a practicing lawyer ?
Pass the bar exam - each state separate exam
CLE
Continuing legal Education
The Bar
A. 1870 first bar association established in NY
B. 1878 American bar Association established
C. Each state has its own bar association, as do large cities , and many counties
D. The bar actively polices its own ranks
E. Discourages activities such as a ambulance chasing
F. Grievance committees = investigate complaints, may refer to the proper court
G. Can be suspended from practice or disbarred
H. Model Rules of professional conduct
Serious and less serious crime
Felonies Felony = serious crime 1 year and more
Misdemeanours misd = less serious 1 year and less
Elements of the US legal profession
- Advertising: has been legal since 1977; can be regulated by the bar
- Legal aid and other services
a. Legal aid is different than assignment by the court of counsel to represent a needy person in a criminal case
b. Pro bono
Contingent
Contingency free - no payment to lawyer unless you win the case, then the lawyer gets about 30% of the settlement or judgement if you win the trial
Fixed free
Fixed free - hourly charge, must be „fair and reasonable“
Common law
As distinguished from law created by the enactment of legislatures , the common law comprises the body of those principles and laws that have developed their authority solely through usages and customs
… is the heart of the common law
Case law
Cases are the primary source of law
Courts in common law countries attempt to decide cases on the basis of principles established in prior cases.
Judicial precedent
Central idea: “…” - “let the decision stand” is a central legal concept of the common law system
Stare decisis
Prior cases which are close in facts or legal principles to the case under consideration are called …
Precedents
A previous case on point in the jurisdiction of the court, handed down from the same court, or a court of equal or higher rank
Binding precedence
A rule of law established for the first time by a court for a particular type of case
The court is established precedent and is often referred to as a landmark case
The concept of equity (Eigenkapital)
Unique cornerstone (Eckstein) of the common law system
In England, two distinct court systems developed over time
The court of law = money damages
The court of equity = remedy to fit the situation, usually such thing as injections or specific performance
The distinguishing feature to the Angelo common law system. The jury is responsible for finding the facts of the case, while the judge determines the law
The jury system
Responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and ,asking a decision in accordance with the rules of law and their jury instructions
Peers of the accused
Jury
Judges the fact = who is telling the truth
Judge
Judge of the law
Formal structure, judge does not question, evidence admissibility central issue
Trial procedure
If not conflict, usually use …
In re = mental health, probate court, juvenile cases or child protection ( in re Ali)
Rules of evidence
Common law rules of evidence are founded on a concern that juries will misuse, or give inappropriate weight to unreliable evidence
Selection of judges
Common law, judges aren’t trained and nurtured separately like precious hot house flowers, as in the civil system, but are selected from already practicing and respected lawyers
Federal court system
Established by constitution- the judicial power of the US shall be vested in one Supreme Court and in such inferior courts as the congress may, from time to time, ordain and established
Jurisdiction (Rechtsprechung)
In order for a suit to be brought in a federal district court, it is necessary to show that the party has “standing“
The federal judicial system consists of the following courts
- District courts
- court of claims
- specialised federal courts
- court of appeal
- the Supreme court
District court
1 judge; have been set up on each of the 50 states; each of these courts, as a rule, has jurisdiction over a state or part of a state
Court of claims
1 judge; the court which suits against the government of the US are heard
Specialised federal courts
Tax, customs, trademark and patents, admiralty etc.
Court of appeal
In American law an essential right of am aggrieved Person in a legal proceeding is review of s court decision by a superior or appellate ( Berufungsverfahren ) court
Federal court of appeals = 5 or 6 judges
MostUS courts have replaced the writ of error with the filing of a …
Notice of appeal
Appellant, or plaintiff in error
Party bringing the appeal. The Appellee is the person who won the lower court decision, or at least whom gained a decision which is being appeal against
The Supreme Court
9 judges
In a few special cases the court will issue a writ of certiorari “cert”, which is a writ requiring a lower court to furnish records of a case to a higher court
Legislative branch ( Congress = House of Representative )
Constitution gives Congress power to pass legislation. A proposed law is called a bill, once it becomes law, it is a statue
Executive branch ( president )
Veto power sind Control over many regulatory agencies that established internal regulations that affect the citizens
Judicial branch and the power of judicial review
We will discuss this at length a later lecture, but the power of judicial review allows the Supreme Court to decide what is, or is not, constitutional
Other sources of law
If there is no specific statue, the common law and judicial precedent are used. These elements are essential of the American legal system, as the state and federal statue do not comes close to addressing the spectrum of rights and duties help by US citizens
Jurisdiction: the court must have…
- jurisdiction of the subject matter of the action
2. jurisdiction of the parties to the lawsuit
It is an essential requirement that the court obtain jurisdiction over the party!
Without jurisdiction on the parties, the court is powerless to settle a legal controversy. In order for the court to obtain jurisdiction over the defendant or a lawsuit, it is necessary that the defendant be personally present within the state so that he or she may receive service of a summons
Can gain jurisdiction over non-resident if:
- voluntarily accepts jurisdiction
- has real property in the state = attachment of property to assure appearance. Receives notice through substitute service or service by publication
- cars = special class = nonresident motorists passing through the state are generally deemed to have appointed the Secretary of State as their agent
Conflict of jurisdiction
Rarely a problem, basic rule of “comity”between the states.
Comity = the recognition that one state gives to the laws of another; not matter of right, but of courtesy
Small claims court
Handle minor damages. Tens were established during the depression of the 1930ˋs and is based on the Ancient Greek practice of allowing lay person to bring actions for minor disputes directly before a judge for immediate ( unmittelbar ) decisions
Civil law system, not common law ! Is the only state with a civil system, due to the french settlement of the region from the 16th to the 18the century
Luisiana
Much more codified, due to the fact that it had to replace the existing Spanish legal system
California
While the Dutch system was replaced with a common law system long before the American revolution, but the state law still reflects some Dutch legal influences, particularly in land law/real estate law
New York
