A Student-Friendly Guide to Move from Civil Law to U.S. Common Law
In a little less than 200 pages, this book provides an overview, including exercises and examples, of legal education and law practice in the United States, highlighting differences with civil law jurisdictions to prepare lawyers and law students from those jurisdictions to study and practice law in the U.S. The text is heavily annotated with sources for additional, detailed information if the reader desires.
Chapter 1 Excerpt – Overview of American Common Law
There are four key differences between a civil law jurisdiction and a common law jurisdiction: (1) the legal authority used in a legal analysis, (2) the structure of the legal analysis, (3) the language and structure of legislation (codified law), and (4) the legal education methodologies.
Regarding the first two differences, "legal analysis" refers to the logic / reasoning used to answer a legal question, and "legal authority" refers to the sources of law needed to answer a legal question. Both civil law and common law jurisdictions have constitutions, which are considered the highest legal authority in the jurisdiction. In a civil law system, legal authority additional to the constitution is the code, and the principle means for legal analysis relies on deductive reasoning.
In contrast, legal authority in a common law system includes both primary authority (the source of the law) and secondary authority, which discusses, describes, and analyzes the law (e.g., treatises and periodicals). Legal analysis in a common law system includes inductive, deductive, and comparative reasoning. These concepts of legal authority and legal analysis are discussed more thoroughly in Chapters 2 (Sources of Legal Authority & Researching Law) and 5 (Legal Logic, Legal Rules, and Legal Analysis), respectively...
Stare decisis translates literally to "let it [the prior decision] stand." It refers to the common law’s reliance on "precedent" cases to decide future cases. A "precedent case" is an earlier court decision in a particular jurisdiction, from a higher (appellate level) court and that addresses the same legal question currently before a court.
Once a higher court has decided a case in a certain way, future cases in that jurisdiction addressing the same legal issue – and with similar legally relevant facts – should be decided the same way. This gives the common law predictability. When the facts of that later case are materially different (different in a legally significant way) from the precedent case(s), the result would be different; however, this different result has not overruled or ignored the precedent because the court would have applied the same legal rule; it is the different facts that cause the result to be different.
Chapter 2 Excerpt – Sources of Legal Authority and Researching Law
Lawyers in the United States use both primary and secondary authority to find and evaluate the laws needed to answer a client’s legal questions and to provide that client with legal advice – drawing conclusions regarding how the laws apply to a client’s factual situation and recommending options and strategies the client should consider in resolving those legal questions. Section B below describes the types of primary and secondary authorities. Section C provides a brief overview of the purpose and form for legal citation in the U.S., and Section D provides a brief overview of the research process in U.S. common law.
Chapter 3 Excerpt – Law School Education in the United States
There are two distinct modes to deliver information to students. One method, often referred to a "magisterial," focuses on transmitting information and knowledge from the teacher to the students, primarily through lectures by the teacher, although the students are often required to read materials to supplement the lectures... The goal for the students in this magisterial system is a mastery of the knowledge imparted from the teacher. Success for the students in this mode is frequently dependent on memorization of the material and the students’ ability to anticipate what are the "expected" answers to exam questions.
The second mode to deliver information to students relies on dialog (discussion) between and among the teacher and the students. In this mode, the teacher is seen as a facilitator of student learning. The students are required to read assigned materials prior to class so they can actively participate in discussions about these materials during class... The goal for students in this mode is the development of skills discerned through the dialog about the pre-assigned materials... These skills can then be synthesized and applied to future situations likely having both similarities and differences from the precise situation given in the reading materials (most often cases). Success for the students in this dialog mode depends on the students’ abilities to adapt these skills and apply them to the novel situations, as a lawyer would analyze and apply the law to a client’s case. When students are tested, they are usually given a novel legal situation or problem and asked to analyze it and apply the applicable law.
Chapter 4 Excerpt – Legal Rhetoric and Legal Writing
"Rhetoric" refers to "the study of writing or speaking as a means of communication or persuasion." ... To bring "rhetoric" into the current technological world, rhetoric is "the operating system" underpinning argumentation, not merely an app to generate legal arguments... Legal writing in the United States is reader focused; it places the burden for clarity on the writer...
Though there is no exhaustive list of the characteristics of good legal writing, the main goals for an excellent legal document – as well as for all legal communication – is four-fold: (1) the writing must be accurate, (2) the writing must be clear, (3) the writing must be easy to read and understand after reading the document only one time, and (4) the writing must also be concise. This last characteristic – conciseness – often creates great tension with the first three characteristics. While this tension can arise for both native and non-native English speakers, it can be especially difficult for non-native English speakers who are also struggling with cultural differences in rhetoric.
Chapter 5 Excerpt – Legal Logic, Legal Rules, and Legal Analysis
"Thinking like a lawyer" – that’s the phrase all law students hear throughout their legal educational experience – but what exactly does that mean? Primarily, it means lawyers must think "logically." They must be able to support their conclusions consistent with the jurisprudence in their jurisdictions so they can wisely advise their clients and successfully argue to a court on behalf of their clients. So how does a lawyer accomplish this?
(The chapter then provides materials describing inductive and deductive reasoning, followed by definitions and examples of legal rules, standards, burdens, and presumptions. The chapter concludes with a description of the structure for legal analysis in the United States.)
Chapter 6 – A Lawyer’s Work Product – Common Law and Civil Law Examples
(This chapter then takes the same legal issue and provides an office memorandum and a motion brief from a U.S. jurisdiction and court documents from a German (civil law) jurisdiction. These examples illustrate the concepts and principles defined and described in the previous chapters.)
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