The United States Legal System

Transcription

1 The United States Legal System

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3 The United States Legal System an introduction fourth edition Margaret Z. Johns Rex R. Perschbacher Carolina Academic Press Durham, North Carolina

4 Copyright 2016 Margaret Z. Johns and Rex R. Perschbacher All Rights Reserved eisbn Library of Congress Cataloging-in-Publication Data Names: Johns, Margaret Z. Perschbacher, Rex R., Title: The United States legal system : an introduction / Margaret Z. Johns and Rex R. Perschbacher. Description: Fourth Edition. Durham, North Carolina : Carolina Academic Press, [2016] Includes bibliographical references and index. Identifiers: LCCN ISBN (alk. paper) Subjects: LCSH: Law--United States. Classification: LCC KF385.J DDC dc23 LC record available at Carolina Academic Press, LLC 700 Kent Street Durham, North Carolina Phone (919) Fax (919) Printed in the United States of America

5 Contents Acknowledgments ix Chapter 1 Introduction to United States Legal Education The History of Legal Education The Apprenticeship System The Academic Model The Nature of Legal Education Langdell s Harvard Model Practical Professional Training Late Twentieth-Century Developments Early Twenty-First-Century Developments Legal Education Today The Academic Context of Legal Education Skills and Clinical Instruction Teaching Values and Ethics in Law School Tuition Costs and Law School Rankings Discussion Questions 34 Chapter 2 Introduction to the United States Legal Profession The Regulation of Lawyers The Number of Lawyers The Gender and Racial Diversity of the Bar Gender Diversity Racial Diversity The Settings in Which Lawyers Practice Historical Overview Sole Practitioners and Small Firms Middle-Sized and Large Firms (a) Middle-Sized Firms (b) Large Firms In-House Counsel 63 v

6 vi CONTENTS Lawyers for the Government (a) Lawyers in the Judiciary (b) Lawyers for Local Governments (c) Lawyers for State Governments (d) Lawyers for the Federal Government (e) Making Ends Meet in Public Service Public Interest Lawyers (a) The Historical Antecedents (b) Lawyers for the Poor (c) Advocates for Group Legal Rights 77 Chapter 3 Introduction to the United States Legal System Multiple Sovereignties Federalism Substantive Law Areas of the Multiple Sovereigns The Federal Government United States Constitution The Three Branches of Government (a) The Legislative Branch (b) The Executive Branch (c) The Judicial Branch (d) Separation of Powers The State Governments State Court Structure Parallels and Contrasts to the Federal System Areas of State Law Continuing Evolution of the Common Law Two Features of the United States Judicial Process The Doctrine of Stare Decisis The Merger of Law and Equity The Overlap and Complexities Discussion Questions 125 Chapter 4 Introduction to Statutes and Statutory Interpretation Approaches to Statutory Interpretation The Literal Rule The Golden Rule The Social Purpose Approach Canons of Construction Plain Meaning 132

7 CONTENTS vii United States v. Locke 133 Notes and Questions 135 Dissent to United States v. Locke 138 Notes and Questions Ejusdem Generis ( Of the Same Kind ) Noscitur a Sociis ( It Is Known by Its Companions ) Expressio Unius ( The Mention of One Thing Excludes Other Things ) Narrow Construction of Penal Statutes Broad Construction of Remedial Statutes Specific Statutes Take Precedence Over General Statutes 144 Strawberry v. Albright 144 Notes and Questions Dueling Canons Legislative Intent The Legislative Process Legislative History 149 Wisconsin Public Intervenor v. Mortier 149 Notes and Questions 153 Concurring Opinion in Wisconsin Public Intervenor v. Mortier 155 Notes and Questions The Retroactivity Problem 163 Martin v. Hadix 166 Notes and Questions 171 Chapter 5 Introduction to Cases and Case Analysis Reading Cases Evolution of the Common Law 180 Sidwell v. McVay 180 Notes and Questions 182 Mirand v. City of New York 183 Notes and Questions 187 Regents of the University of California v. Superior Court of Los Angeles County 188 Notes and Questions Stare Decisis The Retroactivity Problem 201 Douglas v. Ostermeier 203 Notes and Questions 212

8 viii CONTENTS Chapter 6 Putting It All Together 217 Obergefell v. Hodges 217 Notes and Questions 247 Glossary 249 Index 257

9 Acknowledgments I wish to thank Margaret, the wonderful students at King Hall, and my wife and colleague, Debbie, for her help and support. Rex R. Perschbacher Teaching Introduction to Law is a wonderful experience thanks to the terrific first-year students at King Hall. I shall always be grateful to them. I also want to thank Rex for all his work in developing this course and these materials and making the project a pleasure. Many thanks to the folks at Carolina Academic Press who are always so professional and supportive. And finally my thanks to my friends and family, especially Bob and Daisy. Margaret Z. Johns ix

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