Chapter 1 Introduction to American Law 35 results (showing 5 best matches)
- Some contemporary historians have described the twentieth century as the “American” century. A recent case argued in the Supreme Court case, involved copyright. Jack Valenti, the president of the Motion Picture Association, was quoted in the press as touting the contribution that the celluloid industry has made both to the American Gross Domestic Product and to the otherwise dreadful balance of payments situation of the United States. Yet another American export has been even more important. And it is neither McDonald’s or Coca–Cola; it is the American legal system, or to be more precise American legal ideas, American jurisprudence, the American approach to law. Like it or not, intended or otherwise, American law casts a giant shadow over international commercial affairs. That is not to say that it has no competitors, or that other legal orders have capitulated to this jurisprudential imperialism. After all other countries make movies, junk food and soft drinks: they do not seem to...
- This volume does not aim to be a compendium of laws. Rather it proposes to introduce its reader to the foundations of American jurisprudence; how the American system of law approaches the making of legal rules, and how it engages in both dispute prevention and resolution. It strives to reveal American law’s subtext, the shared understanding about the law that American lawyers have digested. Upon assimilating this background, lawyers in America can find, understand, use, and argue law. The latter lesson is well-learned, because above all law in American society is rarely fixed, and law is usually in the process of argumentation. Once the code is cracked, the rudiments of American law understood, the determination of individual principles can be discerned quite easily, and a foreign lawyer can be invited into the dialogue.
- In addition to international law courses, comparative law has also been a prominent part of the American law school curriculum since the 1930s. While legal orders should and probably do reflect, as Savigny argued in the nineteenth century, their national culture and spirit, “national” legal systems have borrowed actively and passively from one another for about as long as they have been in contact. It is for this reason that connection between legal orders has long been the object of historical study.
- Once upon a time there were many laws. Foremost amongst English laws, there was the royal law, the common law. It was both a legal system and an amorphous body of principles of substantive law, and to the extent it was applicable to a very different economic and social order, it crossed the Atlantic with the colonists, though in it its most rudimentary form. But there were in England other forums and other laws, church courts, borough courts, and local courts. America continued to function “in English ways” for lack of viable alternatives. English law in the colonial period, both the common law and statute, was perhaps less complex than in the mother country, and it became deeply ...and secular morality to varying extents in various colonies. Likewise, diversity with respect to forum and substantive law applied has always been a part of the English legal system. When other European settlers came to the American continent, they brought with them Dutch and Spanish, and of course...
- Perhaps my case for the predominance of American law is overstated. Yet given the number of overseas lawyers who take LL. M. degrees in the United States, it seems apparent, at the very least, that many non-American lawyers do indeed deem American law worth learning. And rest assured that the reverse is the case as well; interest in the law of other jurisdictions is not a one-way street. Just as American law is relevant to aspiring overseas lawyers, foreign law is studied by American law students, who study abroad in droves. Moreover, non-American law is integral to the curriculum of American law schools. European Union law, for example, is widely taught, and has become critical area of law for American lawyers. Likewise, there is considerable interest in the commercial law of Japan. With the economic power of China looming, can courses and programs in Chinese law be far behind? As trite as the term now seems, legally speaking, we inhabit a global village.
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Chapter 2 The Sources of Law and Common Law Reasoning 20 results (showing 5 best matches)
- Contrary to the views of American law students, judges, past and present, just don’t make the law up as they go along. Post is good chap; Pierson a scoundrel; verdict for Post. The judges in the case did what judges in modern America do: they looked for the law. The American legal system has sources of law, and judges must ferret them out. The highest source of law in the United States, proclaimed in Article VI, is the Constitution of the United States itself, as well as laws and treaties of the United States adopted pursuant to the processes set out in the Constitution for enactment and ratification; they are proclaimed to be the supreme law of the land. Unhappily for the judges in
- Of course there was a moral dimension to the case. Did not Pierson’s conduct run counter to prevailing ideas of morality? Wasn’t he really a thief? American law is also comprised of a philosophy that incorporates societal as well as economic values. So both legal theory and jurisprudence are a staple of American legal reasoning, and American legal education.
- Not yet. New York is, and indeed all states, save Louisiana, are (and even judicial reasoning in Louisiana follows the American model), of course, common law jurisdictions. We must now confront this awkward term, mentioned in the first chapter, but where definition was studiously avoided, and at least try to explain its meaning. The common law is both a set of legal rules and system of analysis. It was forged in the English royal courts in what is often referred to as the Middle Ages, where it began as a dialogue between judges and lawyers, the judges themselves generally drawn from the elite of the legal profession. The substantive common law was seen as a basket of principles that could be applied to resolve actual disputes between kingdom’s subjects. Just what these principles were, and how they were found is difficult to divine. Reason, natural law, logic, customs, previous decisions, and statute all were used by the litigants to argue their cases in the royal court, and...
- All these issues, legal, economic, societal, clash in many cases that have come before American courts, and continue to grace the halls of justice. But of course, not all cases are decided by recourse to Barbeyrac, or even the various strands of logic that support the common law. Today most cases allocating rights in property probably would be decided by statute. Much common law has been reduced to statutes, and they are drafted with reasonable specificity, though perhaps not quite like a code. But statutory interpretation also can be influenced by the sort of policy concerns that were in play in . Legislatures ponder some of the same issues in drafting laws. These multifarious concerns render the study of American law a very complicated, but a very interesting intellectual exercise.
- Having operated largely under common law before the Revolution, the newly-created states received it into their private law to the extent that it was not inconsistent with statutes and newly created state constitutions. In the course of the following century, the common law was “Americanized,” that is to say the same dynamic processes of legal reasoning that was employed to create, and then to elaborate upon, the common law in England continued. The argument of lawyers and judges in cases between parties transformed the received common law into a body of principles more consistent with economic and social conditions and aspirations of America. Because private law was state law, the several states might adopt rules of decision that varied, again due to the very different economic and social realities of the several states. Likewise, the nineteenth century witnessed the rise of a nascent
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Chapter 13 Administrative Agencies and Their Law: The Fourth Branch of American Law 18 results (showing 5 best matches)
- A generation ago, an introduction to American law could safely skirt administrative law, that part of law’s kingdom that concerns the variety of rulemaking powers and decision-making processes undertaken by the wide array of administrative agencies of both federal and state government. But the structure of the American legal system has changed in the course of the twentieth century. More is demanded of government, and administrative agencies (defined for the purposes of this chapter as the authority of government, other than the Congress/State Legislatures, the President/State Governors and the courts) have been established to oversee a wide variety of governmental functions. Both the number of governmental administrative agencies and their significance in ordering American life and the law has expanded, requiring a student with aspirations to expertise in American law to acquire a basic understanding of the mélange of legislative, executive, and judicial rules that are bundled...
- The administrative agency is an anomaly in the American legal system. Because it makes, then implements law, and finally applies it, the administrative agency may seem at first blush tyrannical in a republican form of government, seemingly “unchecked” and “unbalanced” in a legal order that is structured to limit governmental authority through the concept of separation of powers. Even the brake on agency conduct through Congressional and Executive oversight seems less than robust. Likewise, judicial review of administrative actions seems unduly deferential to the administrative agency’s judgment.
- As noted earlier, separation of powers, a division of labor amongst the branches of government, a legislature that makes the laws, an executive that enforces the laws, and a judiciary that interprets them when disputes between parties arise, characterizes the American legal system. In large measure, the administrative agency, be it regulatory (like the Securities and Exchange Commission or the Environmental Protection Agency), or one responsible for social welfare (like the Social Security Administration or the Federal Emergency Management Agency) may appear to be a compendium of all three “branches.” Most administrative agencies appear to legislate, because they make binding rules pursuant to grants of authority to do so by Congress (or for state agencies, state legislatures). But they also enforce laws and their own rules, and set governmental policy. Finally, they adjudicate disputes that arise in their discrete areas of competence.
- Administrative law is a vast and complex subject, as diverse as the agencies themselves. It raises a variety of issues that may only be glossed in an introduction to American law. Agencies have been created that regulate conduct, business or individual, and dispense government welfare. Some are independent of, while others are creatures of, the executive branch. Almost no American is beyond the reach, directly or incidentally, from this very powerful fourth branch of government.
- Many explanations can be offered to explain the rise of what has been called the “administrative state.” Like much of American law, efficiency considerations underlie many of them. There are practical limitations upon the ability of the legislature to articulate comprehensive norms with requisite specificity; policy goals can more easily be set by statute, while leaving to specialist agencies the authority to fill in the precise, and oft-times technical details of regulatory or social welfare programs. Moreover, the administrative agency is generally delegated its powers in a specific field; its officials should therefore be able to develop the particular expertise required to undertake their prescribed role. Indeed, bestowing upon a single unit the panoply of public functions may minimize the duplication inherent in complex modern multi-level governments. Ideally, administrative agencies are also non-political; though agency heads are often appointed by the president (and therefore...
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Chapter 15 Conclusions: The American Bar 18 results (showing 5 best matches)
- How does one conclude a book introducing the American legal system to lawyers trained in other systems? Our odyssey can best close with a discussion of the profession which has created much of it over the course of American history: the lawyers.
- Just like the republic itself, the legal profession would probably be unrecognizable to its founders. The law is a major American service industry. The law is a significant transaction cost included, consciously or otherwise, in the price paid for goods and other services. Theorists can ponder whether American society can or should continue to build-in such charges into its economic order.
- If diversity can be said to characterize American law, the same can be said of the profession. The profession is unified: there is no distinction between those who advise clients and those who appear in court; those who draft contracts and those that undertake other legal work. American lawyers undertake many tasks and the context in which they labor runs the gamut from sole practitioner to that of associate and partner in multi-office national and/or international law firm employing hundreds (and indeed thousands) of lawyers. Corporations employ lawyers as in-house counsel to serve as the corporation’s legal advisor. In addition to the private sphere, many lawyers labor in the public sector. Government, federal, state and local, employs lawyers, both criminal and civil. Of course, judges are appointed or elected, usually from senior members of the bar. The poor are likewise served by government-sponsored lawyers. And there are, of course, law professors, who selflessly dedicate...
- What may be staggering to the non-American are the shear numbers of lawyers in the United States. Board a jumbo jet, indeed even a smaller 767 airplane, and the statistical probability is that at least one lawyer will be traveling with you. Somewhere in the realm of 1 out of every 250 Americans can claim to be a lawyer, a proportion that has fallen dramatically each year as the roughly 200 American law schools graduate tens of thousands (about 40,000 to be more precise) of law students per year.
- Time machines unavailable, one may only speculate on the trajectory of the legal profession. Depending upon personal proclivities, the observer of the past may envision long-term continuity or drastic change for the future. Technology, in particular computer-based legal research has greatly changed the practice of law. The computer is a double-edged sword: it is easier to find the law; but there is so much law that is now readily accessible. Competition amongst providers is greater than it has ever been, due in part to more lawyers chasing clients, but the ongoing commercialization of American society certainly has had an effect.
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Chapter 14 International Law In the American Legal System: Is It Really There? 30 results (showing 5 best matches)
- Although issues of nationality are relatively straightforward with respect to persons, defining a national is not always clear-cut for business entities: for example, is a foreign-based subsidiary of a United States corporation subject to American law? American law has long so maintained. For the purposes of trade embargoes, American law has treated foreign subsidiaries of American corporations as American nationals on the grounds that they are largely controlled by domestic management; American law enforcers have demanded their compliance with American legal restrictions, even when by so doing the subsidiary is required to violate the domestic law of their situs.
- The extra-territorial reach of domestic American law has long been of interest to foreign lawyers: to what extent can American law prescribe norms that govern conduct abroad; and under what circumstances can claims by foreigners over non-American transactions be entertained in American courts. Before addressing this issue, a brief discourse on the territorial application of American law is in order.
- Domestic law, of course, is primarily calculated to apply to legal actors going about their business within national geographic boundaries. Yet it has long been accepted that national law may control the conduct of nationals abroad. An example in American law is the Foreign Corrupt Practices Act which bars American corporations from bribing officials of foreign governments in order to receive contracts. Likewise, in the well-known case, United States anti-trust laws were held to cover agreements between American corporations and foreign entities entered into abroad if they have anti-competitive effects within national borders. Recently, non-United States flagged cruise ships were subjected to provisions of the Americans with Disabilities Act.
- To the American lawyer, however, it is the status of international law as a source of law, the subject of this chapter, which explains the resolution of this, and other legal disputes that mix domestic practice with international law. The interplay between the two has become increasingly critical, because disputes raising international law have, according to Associate Justice Breyer, become a much larger proportion of the Supreme Court’s docket, and presumably the same can be said of the lower Federal courts. The observed trend likely has more to do with private transnational transactions than it does with disputes involving the American government as a legal actor. America’s economic interests range globally, and there is an increasingly wide array of other nations that are formidable international business competitors with whom Americans deals. Globalization has far greater impact on the legal order than a McDonald’s restaurant unhappily placed in France.
- So American law is expansive in its approach to whom and for what conduct its substantive laws can control. An issue ancillary to the reach of the law is the range of its courts: the extent to which non-American defendants can be subjected to the jurisdiction of an American forum. This issue is not a novel one for America’s federal system. American courts face this problem in purely domestic situations, when a defendant resident in one state is summoned to appear before the courts of a sister state. The governing rule in both contexts is the same: the “minimum contacts” test. Because it is unlikely that a defendant summoned to appear in an American court had no contact with the jurisdiction, the application of the “minimum contacts” rule analyzes the character of the link: was the entity purposely directing business towards or “targeting” clients or customers in the forum state? If so, a sufficient nexus is established to proceed.
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Chapter 10 Criminal Law: (Much) Crime and (Severe) Punishment In Modern America 42 results (showing 5 best matches)
- Fear and fascination with crime therefore go hand-in-hand in the contemporary American imagination. Yet criminal law is a branch of American law as well as culture, and many of the themes developed in other chapters, in areas of private law, also obtain for the criminal law. In particular, both state and federal government inhabit the same space in crime’s kingdom, as they do in other areas of the substantive and procedural law. Though criminal acts are more frequently prosecuted in state courts under state law than in the federal system, there is numerous errant conduct that constitute both state and federal crimes, and there are also a number of discrete federal crimes, particularly the so-called “white collar crimes.” Each state has its own criminal law embodied in a criminal code, though the substantive variation amongst the jurisdictions is relatively modest. Indeed many states have adopted in whole or in part the Model Penal Code (hereafter MPC) promulgated by the American Law...
- Yet in large measure, the substantive American criminal law probably resembles the criminal law of other societies. Perhaps with the exception of the recent focus on “white-collar crime,” those acts singled out for punishment in America are probably also crimes elsewhere. It is with respect to penalties and the treatment of prisoners that America criminal law has gone its own way. Another realm where practice diverges is in the area American law labels “criminal procedure,” the way in which alleged criminals are apprehended by the police and tried in the courts, the subject of the next chapter.
- By the standards of most industrialized nations, America is a violent society. Recent events in New Orleans demonstrate that, when the system of law enforcement is strained, civil society totters on the verge of collapse. Precisely why America diverges from the international norm with respect to criminality is unclear. Whether it can be attributed to the lack of an effective welfare safety net or its stark individualist bent, Americans must eventually come to realize that the national approach to the issue of crime has failed, and that crime is a problem that demands attention. The response thus far, and a largely unsuccessful one, has been to increase the number and types of criminal offences and to meet violence with harsh penalties, to some extent placing America outside the mainstream of current thoughts on controlling levels of aberrant behavior.
- Likewise, though the substantive law of crime in both the federal system and in most states is statutory rather than “judge-made,” there is reasonable play in the language creating offences, justifications, and excuses (indeed in some states and the federal system the latter two are common-law) to allow judges ample latitude in making the law by “interpreting” the law.
- And art imitates life. Crime drama is a staple of American cinema, theatre, and fiction. In addition, the television series provides a veritable immersion course in police crime detection practice. Likewise, the broadcast of both live trials and taped excerpts abound, as well as the dramatized versions based loosely on actual cases; aspiring lawyers can receive more than a mere introduction to both the criminal law and trial practice on the airwaves.
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Outline 72 results (showing 5 best matches)
- Chapter 14. International Law in the American Legal System: Is it Really There?
- Chapter 13. Administrative Agencies and Their Law: The Fourth Branch of American Law
- Chapter 3. The American Constitutional System: Allocation of Governmental Powers
- Chapter 7. American Tort Law: Venerable Common Law on the Eve of Reform?
- And Finally American Law: Diversity
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Chapter 9 America’s Business Is Business: and Business Lawyers Govern The Show 69 results (showing 5 best matches)
- The law governing labor unions is largely federal law, the National Labor Relations Act of 1935, legislation adopted during the Great Depression, though some states regulate industries exempt from the Act and from other Federal law. The American labor relations system it has generated has some distinctive aspects that differ from those of many other industrialized countries. The first is that unions have no intrinsic right to represent workers; the right of unions to represent workers in a particular firm is determined by an election supervised by the National Labor Relations Board in which management participates. Secondly, much union representation of workers is local and piecemeal: a union’s bargaining authority is created and exercised on factory-by-factory basis, or even trade-by-trade within a factory. But these “local” unions generally are connected to national unions (like the American Federation of Labor and the Congress of Industrial Organizations—the AFL–CIO) that...
- Our odyssey through the extensive realm of American business law illustrates that, despite the free-market rhetoric that often characterizes the American political dialogue, most aspects of business are subject to significant regulation by federal or state government. This is particularly the case for publicly-owned corporations whose practices come under heavy scrutiny to protect investors. Though a large number of Americans own shares in publicly-traded corporations, shareholder democracy is the exception rather than the rule. The thrust of securities regulation is to ensure that the investors get what they have bargained for, that the corporations whose shares or debt that they have purchased have fully and honestly disclosed their financial positions. Recent events suggest that this particular mission has not been fully accomplished.
- The law of employment discrimination is a very vibrant area of American labor law. Title VII of the Civil Rights Act of 1964 bolstered by the Civil Rights Act of 1991 covers all employers with 15 or more employees, and prohibits discrimination based on race, color, religion, and gender, though not bias on the grounds of sexual orientation. Age-based discrimination is prohibited by the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990 prevents employers from discriminating against otherwise qualified workers based upon “physical or mental impairments.” Each act sets its own particular standards, and its own enforcement proceedings. The logic underpinning anti-discrimination legislation is once again “efficiency:” excluding otherwise qualified workers on economically “irrational” (that is to say on the basis of some prejudice) grounds limits the pool of available labor, and therefore raises the costs of providing goods and services. Moreover...
- Given the options discussed above, it is likely that one or the other will suffice in forming your budding law practice. But for more grandiose business schemes, the corporate form may be necessary. Corporations are distinct legal entities, and therefore have financial liability independent of their shareholders. Shareholders own shares of the corporation, stakes which represent ownership in the business entity, but they are not personally liable for its debts. Corporations own property, and can sue and be sued in their own name and right. Corporate law is largely (though not exclusively) state law, though (as we shall see) many aspects of securities law are federal. The law of the state in which the entity is incorporated controls its governance, even though it may operate its business in other states. Because its law was “corporate friendly” early on, many large corporations are incorporated in the small American state of Delaware, which has as a consequence ...its common and...
- Most business entities employ workers, and therefore managers and their lawyers require a basic knowledge of labor and employment law to run their enterprises. Compared to many other advanced economies, American labor markets are “flexible,” and employment law seems decidedly in its approach to the regulation of the employment relationship. In the absence of expressed contractual provisions, employment is general considered to be “at will,” which means that either side of the employment relationship is able to terminate it without cause. Once again, “efficiency” rationales are offered to support this regime of scant regulation; it leaves both sides free to look elsewhere: if the current relationship does not suit either side’s requirements, the employee can seek a more satisfactory job, and the employer can look for a better worker. To the extent it is required, the market, exponents of the system argue, will offer any necessary protections to workers (since they have been more...
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Chapter 6 Contract and Commercial Law: A Promise Is A Promise (Maybe) 59 results (showing 5 best matches)
- Having sketched the basics of American contract law, our attention may now shift to interrelated aspects of law clumped together under the term “commercial law.” The UCC itself highlights the interrelationship between contract law and commercial law in its introductory comment, which is paraphrased here. Commercial transactions generally begin with a contract for sale, but that sale may also include a payment in whole or in part by check drawn on a bank. Ultimately the check will be negotiated and pass through the banking system for collection. The purchase may be financed over time. Part of the purchase price may remain unpaid, and be subject to some form of security interest in the goods. The goods are either shipped or stored, and are covered by a bill of lading or warehouse receipt or both. Alternatively, the entire transaction may be undertaken pursuant to a letter of credit. While a full treatment of issues arising out of complex commercial transactions is beyond the scope of...
- So from freedom to contract, American law has moved towards the protection of parties to commercial transactions, particular those whom the law regards as weaker. While this transition is most visible in consumer transactions, some UCC provisions also protect merchants. Courts may set aside contract terms between merchants as “unconscionable,” and terms like “good faith” and “fair dealing” in the context of commercial transactions have tempered freedom to contract. The balance between parties seems more strained in the area of security interests, where the law favors creditors over debtors. But arguably the efficiencies that the system of secured transactions engenders can redress the balance, because debtors are given freer and cheaper access to the credit that is so vital in contemporary American society.
- This chapter covers two interrelated areas of American private law. Contract law governs the formation, performance, and termination of consensual private agreements. It often overlaps with its partner, commercial law, the area of the jurisprudence that governs business transactions. Contract law had a long, and quite complicated development in English courts in the later middle ages, and one which was fairly well-entrenched by the time of the American Revolution. Its basic principle was to allow parties to bargain freely, and to award money damages for failure to perform a promise; however, under exceptional circumstances, the law might order a party to an agreement to perform it according to the agreed terms. This governing principle still obtains (with some modification) in modern American contract law.
- Modern American law has merged the two, contract and commercial law, in part through the promulgation of the Uniform Commercial Code (hereafter UCC), adopted in whole or in part by all 50 states. Part of the UCC deals with the sale of goods, and therefore covers a large swath of contract law, while other chapters of the Code deal with more sophisticated commercial matters, such as secured transactions and negotiable instruments. Other statutes, state and federal, govern areas of contract law, for example, consumer protection law and the law governing consumer credit. Still the common law remains well-ensconced in contract law, particularly because of the prestige of successive Restatements of the Law of Contracts (compendia of the common law of contract which articulate basic principles of American law, though they are not themselves law), and venerable treatises by learned commentators (like Corbin and Farnsworth), and common law principles. Thus the reasoning processes explored in...
- Before undertaking this formidable task, a word first about the aims of American contract and commercial law is required. Commercial affairs in modern societies are governed largely by private agreement. Because most forms of human discourse, words and conduct, are open to various interpretations, contract law is required to provide the legal framework for making sense of commercial dealings when the terms of an agreement reached are subject to dispute. But contract law largely provides default rules; it generally applies only in the absence of terms, of clear undertakings in the contract. As such, contract law ought to comport with the parties’ reasonable expectations and advance certain societal values. As to the latter, perhaps the paramount one in America’s economic order is freedom to contract. Yet as we shall see, in a number of areas, the principle has been eroded.
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Acknowledgements 5 results
- I have been blessed with wonderful teachers; I have learned both from my elders (some sadly departed), and from those who constitute the future of the law teaching profession, my young colleagues at Tulane. While directing summer schools in Siena and Cambridge, this English legal historian learned American constitutional law, civil procedure, and evidence from two masters of the federal bench in New Orleans, the Honorable Morey L. Sear, late Chief Judge of the Eastern District of Louisiana, and his colleague and friend, the Honorable Martin L.C. Feldman. In the same unlikely venues, I learned American legal history from the ‘Chief,’ the Honorable William H. Rehnquist, camped beside students, listening to him talk about the institution that he loved, the Supreme Court of the United States.
- I wrote this book because I thought I had something interesting to say about American law to both foreign lawyers and aspiring American law students. But as I worked through the various chapters, I realized that I also had a lot to learn about the subject in which I claimed expertise. Like our kin who work with the law in the so-called ‘real world,’ academic lawyers also practice law; we never really know it; all we do is to continue to learn about it and marvel at its complexity. So even though I have been at the podium for better than a quarter of a century, writing this book has been a learning experience for me.
- My wife Adriana and my daughter Lisa deserve more than thanks for tolerating a person who thinks of little else but the law, past and present, and who runs the household like a classroom. I dedicate the book to Lisa, with the following reverie. As a young lad growing up in suburban New York, I once visited the Ford plant in Mahwah, New Jersey. Bits of cars would pass down the various conveyors, and every so often a yellow one would be assembled, destined for what I regarded as the worst of fates for an automobile, a New York City taxicab. The human equivalent, I reckon, is for a baby to roll down the line and be allocated to a law professor. She has more than met the challenge, and I love her dearly.
- At the other end of the demographic spectrum, I must have bewildered the ‘new’ generation of colleagues at Tulane, those hired in the twenty-first century, Felice Batlan, Chris Cotropia, Onnig Dombalagian, Jonathan Nash and Rafael Pardo, with barrages of specific questions about the law in their areas of expertise. While they no doubt viewed the interrogation as a rite of passage for tenure, it was merely to make sure that I got much of what follows right.
- Colleagues also read individual chapters and made useful additions and corrections. Michael Collins and Jancy Hoeffel took a double dose, as did my cousin Arthur Bonfield of the University of Iowa, who certainly must hold the record for the amount of red ink that graced a single page of typescript. Harvey Couch, Steve Griffin, Dan Posin, Brooke Overby, Mark Wessman, and Anne Woolhandler could only bear single draft chapters. Danielle Babashaw provided excellent research assistance, and would no doubt have done more had not a potent young lady called Katrina played havoc with her senior year at Tulane.
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Chapter 5 The American Civil Trial: Ritualized Combat 39 results (showing 5 best matches)
- Because the defendant has been able to dismiss the case on the grounds that there is no legal basis, only, at least arguably, cases in which facts and law give rise to a legal claim will go forward. At this point, the close of the first phase of federal civil litigation, both sides have a sketch of the others side’s case. With that knowledge, each side can assess the risk of going forward. If plaintiff’s case is weak, she may withdraw it because the potential return (a verdict in her favor with significant monetary damages) is less than cost of litigation; in the American system, in most cases, each side bears its own attorney’s fees. Likewise, if defendant has a weak case, she may decide to settle in order to avoid adding litigation costs to the amount of the plaintiff’s claim. Both sides may, of course, agree on a settlement figure.
- A page of history once again is useful, this time in comprehending the fundamental goals and the structure of modern civil procedure in American courts. The Federal Rules of Civil Procedure were adopted in 1938 in response to existing civil practice, modeled on the English pattern, a system that was exceedingly complex. So-called “common law” procedure was governed by the writ system, which mandated particular “forms of action” for different claims, and directed varying modes of pleading, process, and proof depending on the writ selected. Even in its more basic form transmitted to the colonies, and thereafter Americanized, common law pleading and procedure was an arcane art form that set numerous traps for the uninitiated and the unwary. Cases might be won (or lost), not on the merits, but on the skill (or lack thereof) of lawyers well-versed in the esoteric art of pleading.
- To conclude, the pattern of trial in the federal system is calculated to allow parties to a dispute the opportunity to have it resolved in court according to prevailing notions of due process in the American system of jurisprudence. State court practice is similar, though it differs around the edges. Both systems grind slowly, and are costly, perhaps with the hope that the parties will find it more efficient to settle than to litigate, and there are a variety of points at which settlement can be pressed by the judges. But ultimately, everyone is permitted a day in court if he or she so chooses, and to have much of the outcome determined by a jury of “peers.” Some may marvel at how a technically advanced society continues to abide by a centuries old process by which important decisions are made by juries comprised of a school-teacher, two truck drivers, a hair dresser, etc. A contradiction, perhaps, but to some extent the jury is merely another aspect of democratic decision-making in...
- While common law pleading gave way to more simplified “code pleading” in most jurisdictions, the Federal Rules are decidedly less complicated than both of these predecessors. The modern system based on the Federal Rules of Civil Procedure seeks to simplify, if not level, the procedural playing field. While no civil procedure system is without complexity, at least to the uninitiated, formality is minimized. In the first place, writs are abolished, so that the procedure, process and mode of proof are uniform, and do not vary depending on the basis of the dispute. Moreover, the pleadings are straightforward. Plaintiff in the complaint and defendant in the answer merely tell their respective stories: plaintiff briefly sets out the basis of the cause of action; defendant the facts or legal defense that absolves her of legal responsibility. In later stages of the process, facts alleged will be substantiated by evidence, and supporting law will be argued, and
- Pre-trial motions and maneuvers completed, the trial itself transpires in unremarkable fashion. Both sides are afforded an opportunity to present their cases in summary form in opening argument. Plaintiff then presents her case by calling witnesses and introducing documentary evidence. Witnesses are examined and then cross-examined by defense counsel. When the plaintiff rests her case, the defense follows on in similar fashion. Judges may also question witnesses, but they do so infrequently in jury trials. Both sides then have the opportunity for “summation;” counsel for each side in turn summarizes the case presented, attempting to cast their legal theory as the more plausible explanation when admissible evidence is properly considered. The judge then instructs the jury on the applicable law. In our case, the judge would present the state law .... The jury would then withdraw, deliberate in private until it reached a verdict, which in Federal court must be unanimous; their... ...the...
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Chapter 7 American Tort Law: Venerable Common Law on The Eve of Reform? 60 results (showing 5 best matches)
- To conclude, we have observed in this sketch of tort law the manner in which American society allocates risks of injury, and how it developed a regime for the compensation for losses. Not all injuries are compensable in tort, but for those that are the measure of damages may be generous, and include non-economic losses. Moreover, from a legal culture that did not recognize liability for injuries sustained by the use of a defective product, American tort law (though its particular nuances may vary state-by-state) now generally imposes a standard of strict liability for products. The result may often be to increase the development and testing period for products to minimize the potential that a defective product will engender a law suit.
- Like most political issues involving the law, there is another side to the picture drawn by the exponents of tort law reform. Arguably, the defenders of the current system counter, a longstanding imbalance is merely in the process of being redressed. Prior to the last half-century, American products liability law (and medical malpractice law) was decidedly favorable to the manufacturers (and to the doctors). Trial lawyers, the responsible party for the current situation (the devil incarnate—at least so the right would argue), worked long and hard, re-weaving the common law in order to protect individuals from dangerous products (and incompetent doctors). While the costs of jury verdicts to the producers of dangerous products are no doubt high, so they should be; deterrence is a longstanding basic principle of American tort law. Those who engage in conduct without due regard to its effects on others must be economically sanctioned. Tort
- Tort law is generally state law, and it is largely, though not exclusively, common law. Thus the law that we shall explore in this chapter may vary by jurisdiction, though specific local differences are usually modest in scope: the details rather than broad principles change as state lines are crossed. Like other areas of the common law, American tort law evolved over the centuries; indeed the process of evolution began long before there was an America. Torts or trespasses to persons and property emerged early in medieval English courts. The common law of torts, like the common law of contracts, was received into American law after independence, and then “Americanized,” largely through litigation, and thus by judicial consideration, interpretation, and invention.
- A number of preliminary points need to be made before the broad outline of tort law is addressed. The first, and the most crucial, is that American tort law is presently under siege. Many on the right of the current political divide regard the damages awarded in tort cases, particularly in the area of products liability, as gravely injuring the economic performance of key areas of American industry, and undermining its international economic competitiveness. Accordingly, it is argued that the sums levied against producers and awarded to private individuals for pecuniary losses (usually for pain and suffering and as punitive damages) sustained go well beyond the amounts required to redress the economic lost suffered by the injured party.
- There is a moral as well as an economic component to the American law of torts. Certainly the objective of tort law is to compensate for injury caused by the acts of others. But it is the “unreasonable” conduct of the tortfeasor that gives rise to civil liability. By implication, then, tort law sets acceptable guidelines for human conduct and for the treatment of fellow human beings (and their property rights), and then economically sanctions those individuals who do not adhere to them.
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Chapter 12 A Bill of Rights For All Seasons 49 results (showing 5 best matches)
- The protection of individual rights in American constitutional law is a vast and fascinating subject that can only be glossed in a handful of pages. The mind may boggle at the simple fact that a handful of passages added to the Constitution in 1791, and only very modestly supplemented in the intervening years, provides a framework of human rights for twenty-first century American society. To justify the current situation by saying (as many Americans do) that these provisions have served us well is to ignore the very lengthy history of racial discrimination that marked and marred the first two hundred years of the American experiment in government.
- The more immediate question is not the past, but the future: whether the safeguards and the process of elaborating them are sufficient for present-day American society; and whether judgments over the extent of individual liberties ought to be in the hands of unelected judges who interpret rather vague notions like “the equal protection of the laws.” The rub is to find an alternative that better might serve the American people. It would not be an easy matter to forge a consensus on the place of government in the lives of ordinary people. Until that daunting task is undertaken, human rights law in the United States is governed by the present prevailing notion of an eighteenth century understanding of the extent to which government ought to keep its very large nose out of the daily life of its citizens.
- Because the Constitution establishes a process for amending its provisions, other safeguards have been added. In particular, the post-Civil War Amendments (Thirteenth through Fifteenth) abolished slavery, guaranteed citizens of the United States the “equal protection of the laws,” and provided the right to vote to all American citizens regardless of race.
- A number of American colonies were established as refuges for persecuted religious minorities. In response to British practice, the framers sought to create a state without a formally-recognized religion. The First Amendment (“Congress shall make no law respecting the establishment of religion…”) was designed to build a wall between church and state. Both freedom of religion—the right to worship without government interference—and freedom from religion—that government (which has been read to apply to all levels of American government, federal, state, and municipal) would not be used to advance particular religion beliefs are within First Amendment protection.
- That was then; over two centuries have since passed. No document drafted in the last years of the eighteenth century can easily address the current civil liberties concerns of twenty-first century Americans. But the Bill of Rights, though it has fewer guarantees than more modern charters of liberty (for example, the European Convention on Human Rights), preserves religious liberty, provides for free expression of ideas, tempers criminal law enforcement, and protects both personal privacy and private property.
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Chapter 3 The American Constitutional System: Allocation of Governmental Powers 37 results (showing 5 best matches)
- No summary of American federalism would be complete without a consideration of judicial review. Most crucial issues raising federalism and separation of powers concerns are ultimately decided in the Federal courts. The delineation of powers between state and Federal government, and the determination of whether a branch of the Federal government has overstepped the bounds of its constitutional authority are normally determined in the American system by federal judges.
- Just as the peculiarities of American federalism can be traced to our colonial heritage, the American wrinkle on separation of powers likewise belies the founders’ wariness of unbridled executive power. Though there is talk from time to time of an “imperial presidency,” and the executive is generally the face of American government as projected on the international stage, successive presidents during the second half of the twentieth century have been required to come to terms with the limitations that the Constitution has placed on executive power through the allocation of certain powers to Congress and the courts.
- Let us return to Congressional power. Article 1, Section 8 sets out the law-making authority of Congress, the legislator in the American system, and lists its competency in a scant 18 clauses. Some of the enumerated powers seem today quite mundane; for example, in Clause 7 Congress is granted the power “To establish Post Offices and Post Roads.” Others seem more formidable. Six clauses deal with the establishment and maintenance of the armed forces (Clauses 11–16), and another group address financial matters such as collecting taxes, borrowing, and coining money (clauses 1, 2, and 5). Congress also has powers in specific areas of international concern, most notably the power to declare war (Clause 11).
- However, the president is clearly the single most powerful manifestation of American government, and the only officer of the Federal government that is elected by the entire electorate, albeit indirectly. The president is the only American politician who can claim a mandate from the people of the United States, and presents a stark contrast to the head of government in most parliamentary systems. There is, of course, a quaint contradiction here, because in fact only 538 members of the Electoral College actually cast votes directly for the president. Voters in individual states elect members of the College who are pledged to vote for one or the other candidates for president. Because the number of members of the Electoral College from each state is calculated by adding the number of Congressman (which vary by population) and Senators (two per state), smaller states have a disproportionate influence in the Electoral College. The 2000 presidential election illustrated this point,...
- The Constitution empowers the president to conclude treaties with foreign states, checked by the constitutional provision that they be subject to ratification by two-thirds of the Senate. The status of treaties in American law will be discussed in a separate chapter, but suffice it to say at this juncture that treaties are accorded the same status as federal statutes: upon ratification, treaties, like statutes, are the supreme law of the land. Thus treaties are deemed to be self-executing, unless by their terms they require implementing legislation. Co-equal status can be a double edged sword: a subsequently adopted statute that conflicts with the terms of a treaty will repeal the inconsistent provisions of the treaty. Moreover, Congressional enabling legislation can specify that the legislation rather than the treaty is the source of rights and obligations in domestic law. An example is the implementation of the Berne Convention on Copyright in which Congress makes clear that the...
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Chapter 8 American Property Law: Plenty of Old Wine In Both New and Old Bottles 77 results (showing 5 best matches)
- Of property, Sir William Blackstone, the eighteenth century commentator on the Laws of England commented that nothing captures the imagination of people as the sole dominion that individuals exercise over land and goods. While the desire for dominion over property also drives modern American property law and its theory (as it may have eighteenth century English society and its colonial American progeny on the verge of independence), the old wine, modern American property law focuses not only upon the owner’s dominion over property (the old bottles—sometimes referred to quaintly as the “bundle of sticks” that constitutes ownership), but also upon the limitations mandated by law on ownership rights. From air quality standards to zoning, property law with respect to land is as much about restrictions upon the use and enjoyment of property, the newer bottles, as it is upon protection of rights therein. Thus, as absolute as private property rights should be in ...America, the primacy of...
- Like the American law of property, this sketch has ranged widely. Property law creates rights and defines their extent. This process can best be illustrated in the case of intellectual property rights. But when our consideration turned to real property, we observed that while the law establishes private rights, much property law, common law, statutory law, and the Constitution, imposes limitations upon its exploitation. While nothing may indeed capture our imagination like property, whether those dreams will come true is heavily dependant upon whether they are consistent with a vast body of regulatory law.
- While adverse possession sounds like little more than theft, American law has long protected the occupiers of land against the claims of others. After all, much land in America was “adversely” possessed from the native Americans, and in a frontier society with little formal record-keeping, possession might be protected for the same reason that my student’s right in her casebook was recognized: what greater interest can be demonstrated?
- Anglo–American common law accords a possessor a right as against all but the “title holder” or “true owner,” and protects the interest of the prior possessor (my student in the hypothetical) against a subsequent possessor (me). If you lifted the book from me, I could bring an action for its return, even though I do not own it. This notion of a hierarchy of rights in personal property was articulated (and can be illustrated) in the case of , which came before the Court of Kings Bench in 1722. The facts are as follows: a chimney sweep’s “boy” (probably the small lad who really climbed the chimney brush in hand and actually did the dirty work) found a ring on a public street; he took it to a goldsmith for appraisal, and was informed by the goldsmith that it was worth three half-pennies; he had a suspicion that the ring was worth more, and demanded it back; the smith returned the socket, but without the jewel. The sweep brought an action in trover (a common law form of action) seeking
- American patent law protects the creator, the inventor of the concept, and one may apply for a patent even before having produced a completed working model of a device. Such an inventor has priority, even over another who has subsequently produced a working model, so long as she continues to work diligently on reducing her novel concept to a model.
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Chapter 11 Criminal Procedure: The “Long and Winding Road” From Apprehension of Criminals To Their Release 58 results (showing 5 best matches)
- Though relatively few in number, most arrests having resulted in the charges being dropped or pleaded out, criminal trials provide the most dramatic moments in American law. Who can forget the words of one of America’s premier trial lawyers, Johnnie Cochran, O. J. Simpson’s brilliant defense counsel, who, blood-stained glove in hand, uttered the now-famous rhyme, “If it doesn’t fit, you must acquit.” High profile or not, the criminal trial is the American adversarial system at its pinnacle, where freedom or imprisonment are at stake, and where a life itself may be on the line. Of course, most criminal trials are decidedly more mundane affairs, and progress without much excitement; nevertheless, the potential for high drama is always present when prosecution lock horns with defense counsel in criminal court.
- This chapter outlines criminal procedure in American courts. It charts the “long and winding road” mapped out by the criminal justice system for each criminal act allegedly committed, from the initial criminal investigation undertaken by the police through to post-conviction relief. Apprehension of a suspect, the filing of the criminal complaint by the prosecutor, the pre-trial aspects of the criminal case, the criminal trial, and the post-conviction phase, including sentencing, appeals, probation, and parole are visited along the way.
- What makes the process complicated (and perhaps uniquely American) is the United States Constitution. The Fourth, Fifth, and Sixth Amendments directly address criminal procedure. The Fourth Amendment boldly proclaims:
- The American criminal trial is adversarial. Each side prepares its case independently. Because the defendant is presumed to be innocent, the prosecution presents its case-in-chief first, and must prove each element of the crime alleged beyond a reasonable doubt. If at the end of its presentation, the prosecution has failed to make a case (that no reasonable jury could convict on the case presented), the defendant can move to dismiss the charge. If the judge denies the motion, the defense proceeds with its case. The prosecutor may then present a rebuttal case, limited to countering defense evidence. Each side presents its closing argument, summarizing its own case, and usually, disparaging the one put forward by the other side. Thereafter, the judge instructs the jury on the law, and the jury retires to reach its verdict behind closed doors. The jury’s verdict must be unanimous, and if it is unable to reach a verdict, the jury is said to be “hung,” resulting in a possible retrial if...
- Another exception to the warrant requirement pertains to automobiles. If the police stop a car because they suspect criminal activity, they may search the car and occupants, if they have probable cause that some illicit activity is or had occurred. Whether this exception, and a rather broad one (given the attachment of Americans to their cars) is based upon the “exigent” circumstances doctrine, or the fact a car is mobile and can be moved out of the jurisdiction if the police are required to obtain a warrant, the exception is a very broad one. It trumps the conflicting expectation of privacy argument that the occupants believe they have. The police may even move the car to a crime lab to undertake a more extensive search than would be possible on the streets.
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Chapter 4 The American Judiciary: Guardians of The Constitution 18 results (showing 5 best matches)
- This chapter addresses in more detail the guardians of the American Constitution, the judiciary. It focuses on the Federal bench for two reasons. The first is that it is more likely that foreign lawyers will find themselves in Federal court rather than in state courts. Second, the two systems, state and federal broadly parallel each other; once understanding of the Federal courts is achieved, it is a simple matter to learn the nuances that separate it from state court systems. That said lawyers litigating cases in United States courts generally prefer to have the cases heard in Federal court, in part because they perceive the level of judging to be far more informed and even-handed.
- There are three levels of Article 3 courts: District Courts; Courts of Appeal; and the Supreme Court. Unlike some other legal systems, there are no separate courts to entertain the constitutionality of Federal law. Each court hears both criminal prosecutions and civil disputes.
- Recent history suggest that process of appointment of judges is becoming more controversial, because presidents now seek to appoint individuals who share a variety of beliefs about the role of the judiciary in the American constitutional system and positions on particular emotive issues that are before the Federal courts. The higher the judge is on the judicial ladder, the greater the stakes. The Supreme Court is, of course, the ultimate flash point, because of its position as the final arbiter of the meaning of the Constitution. There is talk about so-called “litmus tests:” the president will only put forward judges who will, for example, vote to over-turn ; and Senators of the opposite side of the political spectrum will only vote to confirm those who would reaffirm the judgment. But the late Chief Justice Rehnquist, a formidable historian in his own right, has reminded us in his writings on the history of the United States Supreme Court that we have been here before. Controversy...
- While the judiciary provides a check on the powers of the two other branches, the Constitution has balanced judicial powers by vesting a modicum of control over the bench by Congress and the President. Although the Constitution establishes a framework for the Federal judiciary and its jurisdiction, it leaves Congress considerable leeway in structuring the bench. Article 3, Section 1 vests the “judicial Power of the United States … in such inferior Courts as the Congress may from time to time ordain and establish.” Jurisdiction will be touched on in more detail below; suffice it to say at this juncture that there are two primary bases of Federal jurisdiction: first, cases that arise under the Federal Constitution and Federal laws; and second, controversies “between Citizens of different states”. Thus Congress has created, and has ongoing power to continue to create, additional Federal courts. Also, the Senate must confirm the President’s nomination of Article 3 Federal judges, after...
- Article 3 of the Constitution created the Federal judiciary, and its terms suggest that the framers intended the judges to be independent actors. In the first place, Article 3 Federal judges are the only governmental officials who serve for life. The only way to remove an Article 3 judge is to impeach her for “Treason, Bribery, or other high Crimes and Misdemeanors.” This renders Article 3 judges free to deliver unpopular decisions without the fear of retaliation through removal from office, a practice not unheard of in England in the seventeenth and eighteenth centuries. Second, in order to insure that Article 3 judges were free from a lesser means of discipline, the Constitution also provided that the salary of Federal judges “not be diminished during their Continuance in office.” These two provisions, security of tenure and remuneration, insure that the Federal judiciary can fulfill its role in the Constitution’s scheme system of checks and balances, as a monitor of, and... ...the...
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Index 184 results (showing 5 best matches)
Copyright Page 3 results
- Thomson/West have created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson/West are not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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West’s Law School Advisory Board 12 results (showing 5 best matches)
- Publication Date: April 5th, 2006
- ISBN: 9780314150165
- Subject: Introduction to U.S. Law
- Series: Nutshells
- Type: Overviews
- Description: This book, suitable as a primer for foreign LLMs — or as an introductory survey for American students of both procedural and substantive law — is a comprehensive, though concise, survey of the American legal system — its structure and its methodology.