INTRODUCTION TO AMERICAN LAW (LAW5HAL)

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INTRODUCTION TO AMERICAN LAW (LAW5HAL). LA TROBE UNIVERSITY SCHOOL OF LAW: Global Business Law Professor Thomas Lundmark 10-12, 15-16 February 2010. Wednesday, 10 February 2010 morning session: historical background
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INTRODUCTION TO AMERICAN LAW (LAW5HAL)LA TROBE UNIVERSITY SCHOOL OF LAW: Global Business Law Professor Thomas Lundmark 10-12, 15-16 February 2010Wednesday, 10 February 2010 morning session: historical background reading assignment: Farnsworth pp. 1-13, Lundmark pp. 5-15, 53-55, 74-77 afternoon session: legal training reading assignment: Farnsworth pp. 15-35 Thursday, 11 February 2010 morning session: legal profession reading assignment: Farnsworth pp. 23-35 afternoon session: judicial systems reading assignment: Farnsworth pp. 37-45, Lundmark pp. 74-81, 85-86, 90-91 Friday, 12 February 2010 morning session: legislation reading assignment: Farnsworth pp. 61-81, Lundmark pp. 93-101, 105-106 afternoon session: case law reading assignment: Farnsworth pp. 47-60 Monday, 15 February 2010 morning session: civil procedure reading assignment: Farnsworth pp. 99-110, 115-117 afternoon session: constitutional rights reading assignment: Farnsworth pp. 147-155, Lundmark pp. 109-120 Tuesday, 16 February 2010 morning session: fundamental rights reading assignment: Lundmark pp. 160-168afternoon session: equal protection readingassignment: Lundmark pp. 169-175, 179, 184-200Common (Law) Lawyerslecture topicshistory of the professiontraining of lawyers in the USdress (wigs, gowns, morning coats)duty of candorHenry I (1068-1135)extended jurisdiction of royal courtssent (French-speaking) members of the small council as judges on circuitwho applied universal, i.e., ‘common’ law, lex communis in Latin, commune lei in Norman-Frenchto gain favour with Saxons, Henry married daughter of Malcolm III of Scotland and his Saxon wifebifurcated or "split" professionUnited Kingdom (barrister/solicitor)- (Scotland advocate/solicitor)IrelandNew ZealandAustralia (partly)fused professionUnited StatesCanadaAustralia (mostly)Ranulf de Glanvil (? - 1190)Commissioned Treatise on the Laws and Customs of the Kingdom of Englandfirst serious book on the common lawinfluenced by Roman law, but English in substancestandard textbook of English law until Bracton’s treatise1155-1187ruling class speak Frenchestablishment of primogeniture meant younger sons would mingle with the non-aristocratic, native population1167 Henry II banned English students from attending University of Paris1187 Oxford University foundedearly painting of Divinity Schools, OxfordHenry de Bracton, c. 1210-1268built on work of othersrational systematization of entire English lawexamples from caseslargely in terms of the ius commune, a combination of Roman and canon law taught at universitiesThe Year Booksunofficial, verbatim reports of legal proceedingsover 20,000 cases recorded1268 to 1535in French, the language of the courts1270 most of the new French vocabulary had been settledinns of court under the Edwards (1274-1377) lodging and mealslibrariesinstruction, including languageThomas More (later, of course) and others lecturers"third university"Thomas More (1478-1535)instruction in English lawLincoln's Inn, Gray's Inn, the Inner Temple, and the Middle TempleThe Temple was originally the English seat of the Knights Templarsdate from before the 14th c.educated as qualified apprentices (barristers) and were then allowed to practice lawAfter successful apprenticeship one might be conferred with the degree Sergeant-at-Law and no longer be an apprenticemid 14th century1348-50 Black Death kills 1/3 to ½ of population, reducing population to < 3 million1356 the "opening" of Parliament was conducted in English instead of French1385 English taught in the grammar schools in place of FrenchEnglish replaces Latin at schools, but not at Oxford and Cambridge1362 Statute of Pleading: all cases in court should be pleaded, showed, defended, answered, debated and judged in the English tonguelegal French began steady declineSTATUTE OF PLEADING (1362) 36 Edw. III c. 15STATUTE OF PLEADING (1362) 36 Edw. III c. 151387 Canterbury Tales,Geoffrey Chaucer (c. 1343 – 1400)18th century1704 Newton publishes "Opticks" in English1750 population of England estimated at 5.8 million1770 population of England estimated at 6.4 million1770 Cook discovers Australia1776 start of American revolution1788 British penal colony established in Australia1789 start of French Revolutionthroughout the 18th century about one fifth of the population were likely to be paupersCommon (Law) Lawyerslecture topicshistory of the professiontraining of lawyers in the USdress (wigs, gowns, morning coats)duty of candorlaw school rankingsU.S. News and World Reportscriteriareputationaverage GPAs and LSATsbar-passage ratejob placement upon graduationlaw school admissionsundergraduate major and grade point average (GPA)Law School Aptitude Test (LSAT)recommendations/connectionsexperience'diversity‘ is constitutional"college" Percentage of the population ages 25 to 64 that has completed at least a first university degree, by age group and country: 1999 SOURCE: Organization for Economic Cooperation and Development, Education at a Glance, 2001, table A 2.2b.av. College fees per semester (USA 2007-08)women and minorities in law schoolwomen 47% of law studentsminorities 22%Arabella Mansfield (1846 –1911)
  • 1869 admitted to practice law in Iowa
  • Considered first woman lawyer in US
  • 1870 census recorded five female lawyers
  • 1900 census records 1,010
  • Lutie A Lytle (1871-1950?)
  • 1898 First female law professor
  • Also first African-American
  • Central Tennessee College of Law
  • Same year Ellen Spencer Mussey and Emma Gillett founded co-ed Washington college of Law in DC (now American U)
  • Myra Bradwell (1831 - 1894)
  • 1855 apprenticed under her husband's supervision
  • 1869 passed bar exam in Illinois
  • Denied admission to practice and lost litigation
  • 1872 Illinois statute: “No person shall be precluded or debarred from any occupation, profession, or employment (except the military) on account of gender.“
  • 1890 admitted Illinois
  • 1892 admitted USSCt
  • Bradwell’s daughter also became a lawyer
  • Barbara Nachtrieb Armstrong (1890-1976)
  • 1913 graduated from UC Berkeley
  • 1915 Berkeley Law School
  • 1915-1919 practiced law in San Francisco
  • 1919 appointed first woman professor at a major US law school
  • 1921 PhD economics
  • Christopher Columbus Langdell
  • Introduced the case method in 1890
  • previous instruction had used treaties
  • Blackstone's Commentaries on the Laws of England
  • Commentaries on the Constitution of the US
  • Commentaries on American Law
  • “conceptualist” criticized as a “formalist”
  • law school curriculumundergraduate degree usually prerequisite6 semestersfirst two semesters usually prescribed, e.g.propertytortscontractscivil procedurecriminal lawconfers degree of Juris Doctor (JD)law school: practice-oriented aspectsmoot courtlegal writing classeslegal clinicslaw reviewsummer clerkshipspublished law school fees per yearcost of legal education 2008median annual tuition fees at private law schools $33,985 median annual at public law schools for in-state residents $15,621for out-of-state residents $26,436Scandal at Berkeley for admitting so few Californiansneed or merit-based grantspublic law schools 21%private 17%average amount borrowedpublic $71,436private $91,506job prospects90% find jobs within 6 months74% in positions requiring admission to practice8% in positions where JD was preferredlaw school rankingsadmissions criteriaLSAT – law school apptitude testGPA – grade point averagereputation in the professionlibrary, prof/stud ratio, etc.bar-passage ratefederal court practiceno federal barmust be sworn in by a federal judge to each federal courtbar examinationsmulti-state (all but two states)essay questionsmulti-state professional responsibility examination (all but three states)multi-state performance testdraft memorandums, write closing argument, summarize deposition, etc.required in 21 statesbar passage rates 2008Puerto Rico 44%California 54%New York 69%average 71%Montana 91%The Committee of Bar Examiners of The State Bar of CaliforniaGENERAL BAR EXAMINATION PASS RATE SUMMARYDate of Examination Total % Passed 2005 July 48.8 2005 February 40.0 2004 July 48.2 2004 February 35.3 2003 July 49.4 2003 February 37.3 2002 July 50.5 2002 February 33.4 2001 July 56.9 2001 February 37.3 2000 July 55.3 2000 February 40.0 1999 July 51.2 1999 February 41.1 1998 July 52.5 1998 February 40.0 1997 July 62.9 1997 February 48.8Even Top Lawyers Fail California Exam, THE WALL STREET JOURNAL December 5, 2005 Kathleen Sullivan is a noted constitutional scholar who has argued cases before the Supreme Court. Until recently, she was dean of Stanford Law School. In legal circles, she has been talked about as a potential Democratic nominee for the Supreme Court. But Ms. Sullivan recently became the latest prominent victim of California's notoriously difficult bar exam. Last month, the state sent out the results of its July test to 8,343 aspiring and already-practicing lawyers. More than half failed -- including Ms. Sullivan. Although she is licensed to practice law in New York and Massachusetts, Ms. Sullivan was taking the California exam for the first time after joining a Los Angeles-based firm as an appellate specialist. But it's unusual for the exam to claim a top-notch constitutional lawyer at the peak of her game. "She is a rock star," says William Urquhart, who last year recruited Ms. Sullivan to join his firm, Quinn Emanuel Urquhart Oliver & Hedges LLP. "Practically every lawyer in the U.S. knows who Kathleen Sullivan is." If anyone should have passed, Mr. Urquhart says, it is Ms. Sullivan. "The problem is not with Kathleen Sullivan, it is with the person who drafted the exam or the person who graded it." ABA
  • founded in 1878
  • campaign to establish uniform, minimal standards for law schools
  • until second half of 19th century, law schools were not parts of universities
  • presently 200 are approved
  • in 30 states only graduates of ABA approved law schools may take their bar examinations
  • ABA accreditation criteriaOrganization and administrationProgram of legal education, including professional skills and clinicsFacultyAdmissions and student servicesLibrary and information resourcesFacilities"reading law" in the USlaw office or apprentice program California, New York, Washington, Virginia, Vermont, Alaska, Maine, and WyomingRobert Houghwout Jackson (1892 - 1954)
  • Attorney General under FDR
  • prosecutor at the Nuremburg trials
  • US Supreme Court Justice
  • attended second year of two-year law school
  • entered the legal profession at 21 by "reading the law“
  • advanced degreesonly 2% of JD graduates enroll in such programs in order to- specialize in e.g. taxation, corporate finance, or intellectual property or- 'up-grade' their degreeonly 50 JSD degrees annuallyLLM programsvast majority of students are foreign lawyers10 states allow foreign LLM graduates to take their bar examinationCommon (Law) Lawyerslecture topicshistory of the professiontraining of lawyers in the USdress (wigs, gowns, morning coats)duty of candorlawyers' dresswearing of wigs from 1680smixed usage in Australia (e.g. not in the federal courts)Canada: no wigs, but gownssilk for queen's counsel in England and WalesSolicitor General of the United StatesCherie Booth QCwearing ceremonial robes and full-bottomed wig as Queen's Counsel at the Bar of England and Wales. lawyers' dressGOSAL, DILRAJ SINGH, B.A., J.D., LL.M. B.C. Barrister & SolicitorWashington State Attorney & Counselor-at-Law lawyers' dressCarl E. Person LLB Harvard Law School 1962NY bar admission 1962lawyers' dressCommon (Law) Lawyerslecture topicshistory of the professiontraining of lawyers in the USdress (wigs, gowns, morning coats)duty of candorCalifornia Business andProfessions Code §6068It is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state. (b) To maintain the respect due to the courts of justice and judicial officers. (c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense. (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.California Rules of Professional Conduct, Rule 5-200In presenting a matter to a tribunal, a member:(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.California Penal Code §127Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.Federal Rules of Civil Procedure Rule 11(b): By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.Precision Specialty Metals v. United States, 315 F.3d 1346 (5th Cir. 2003)Precision Specialty Metals v. United States, 315 F.3d 1346 (5thCir. 2003)"In an unpublished opinion, the Court of International Trade formally reprimanded the appellant Mikki Graves Walser, a Department of Justice attorney, for misquoting and failing to quote fully from two judicial opinions"Rule 11: "By presenting to the court … a … written motion, or other paper, an attorney … is certifying that to the best of the person’s knowledge, information, and belief, formed after any inquiry reasonable under the circumstances, … the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law""The effect of her doctored quotations was to make it appear that the weight of judicial authority was that 'forthwith' means 'a time reasonable under the circumstances.'” "She violated Rule 11 because, in quoting from and citing published opinions, she distorted what the opinions stated by leaving out significant portions of the citations or cropping one of them, and failed to show that she and not the court has supplied the emphasis in one of them."Precision Specialty Metals v. United States, 315 F.3d 1346 (5th Cir. 2003)
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