Part One The United States is at once a very new nation and a very old nation. It is a new nation compared with many other countries, and it is new, too, in the sense that it is constantly being renewed by the addition of new elements of population and of new States. But in other senses it is old. It is the oldest of the "new" nations--the first one to be made out of an Old World colony. It has the oldest written constitution, the oldest continuous federal system, and the oldest practice of self-government of any nation.One of the most interesting features of America’s youth is that the whole of its history belongs in the period since the invention of the printing press. The whole of its history is, therefore, recorded: indeed, it is safe to say that no other major nation has so comprehensive a record of its history as has the United States, for events such as those that are lost in the legendary past of Italy or France or England are part of the printed record of the United States. And the American record is not only comprehensive; it is immense. It embraces not only the record of the colonial era and of the Nation since 1776, but of the present fifty States as well, and the intricate network of relationships between States and Nation. Thus, to take a very elementary example, the reports of the United States Supreme Court fill some 350 volumes, and the reports of some States are almost equally voluminous: the reader who wants to trace the history of law in America is confronted with over 5,000 stout volumes of legal cases.No one document, no handful of documents, can properly be said to reveal the character of a people or of their government. But when hundreds and thousands of documents strike a consistent note, over more than a hundred years, we have a right to say that is the keynote. When hundreds and thousands of documents address themselves in the same ways, to the same overarching problems, we have a right to read from them certain conclusions which we can call national characteristics.Part Two The American legal system, like the English, is methodologically mainly a case law system. Most fields of private law still consist primarily of case law and the extensive and steadily growing statutory law continues to be subject to binding interpretationthrough case law. Knowledge of the case law method as well as of the technique of working with case law therefore is of central importance for an understanding of American law and legal methodology.The Common Law is historically the common general law -- with supremacy over local law--which was decreed by the itinerant judges of the English royal court. The enforcement of a claim presupposed the existence of a special form of action, a writ, with the result that the original common law represented a system of "actions" similar to that of classical Roman law. If a writ existed (in 1227) a claim could be enforced; there was no recourse for a claim without a writ, the claim did not exist. This system became inflexible when the "Provisions of Oxford" (1258) prohibited the creation of new writs, except for the flexibility which the "writ upon the case" allowed and which later led to the development of contract and tort law.The narrow limits of the forms of action and the limited recourse they provided led to the development of equity law and equity case law. "Equity", in its general meaning of doing "equity", deciding ex aequo et bono, was first granted by the King, and later by his Chancellor as "keeper of the King's conscience", to afford relief in hardship cases. In the fifteenth century, however, equity law and equity case law developed into an independent legal system and judiciary (Court of Chancery) which competed with the ordinary common law courts. Its rules and maxims became fixed and, to a degree, inflexible as in any legal system. Special characteristics of equity law include: relief in the form of specific performance (in contrast to the common law award of compensatory damages), the injunction (a temporary or final order to do or not to do a specific act), the development of so called maxims of equity law which permeated the entire legal system and in many cases explain the origin of modern legal concepts. However, equitable relief regularly will lie only when the common law relief is inadequate. For instance, specific performance for the purchase of real property will be granted because common law damages are deemed to be inadequate since they cannot compensate the buyer in view of the uniqueness attributedto real property.As the common law, equity law became part of American law either through judicial acceptance or through express statutory provision. Today, both legal systems have been merged in many American jurisdictions (beginning with New York in 1848), with the result that there is only one form of civil suit in these jurisdictions as well as in federal practice. Only few States continue to maintain a separate chancery court. Nevertheless, the reference to the historical development is important because, on the one hand, it explains the origin and significance of many contemporary legal concepts (for instance the division of title in the law of property) and, on the other hand, it is still relevant for the decision of such questions whether, for instance, there is a right to a trial by jury (only in the case of common law suits, in other cases only before the judge). In addition, the differentiation will determine whether the "ordinary" common law relief of damages applies or whether the "extraordinary" equity remedy of specific performance is available."Case law"describes the entire body of judge made law and today includes common law and equity precedents. In imprecise and confusing usage the terms "common law" and "case law" are often used synonymously, with the term "common law" in this usage connoting judge made law in general as contrasted with statutory law. "Case law" always connotes judge made law, while "common law" in contrast--depending on the meaning intended--describes either the judge made law in common law subject matters or, more extensively, all judge made law.Part One：The Bar The regulation of the legal profession is primarily the concern of the states, each of which has its own requirements for admission to practice. Most require three years of college and a law degree. Each state administers its own written examination to applicants for its bar. Almost all states, however, make use of the Multistate Bar Exam, a day long multiple choice test, to which the state adds a day long essay examination emphasizing its own law. A substantial fraction of all applicants succeed on the first try, andmany of those who fail pass on a later attempt. In all, over forty thousand persons succeed in passing these examinations each year and, after an inquiry into their character, are admitted to the bar in their respective states. No apprenticeship is required either before or after admission. The rules for admission to practice before the federal courts vary with the court, but generally those entitled to practice before the highest court of a state may be admitted before the federal courts upon compliance with minor formalities.A lawyer's practice is usually confined to a single community for, although a lawyer may travel to represent clients, one is only permitted to practice in a state where one has been admitted. It is customary to retain local counsel for matters in other jurisdictions. However, one who moves to another state can usually be admitted without examination if one has practiced in a state where one has been admitted for some time, often five years.A lawyer may not only practice law, but is permitted to engage in any activity that is open to other citizens. It is not uncommon for the practicing lawyer to serve on boards of directors of corporate clients, to engage in business, and to participate actively in public affairs. A lawyer remains a member of the bar even after becoming a judge, an employee of the government or of a private business concern, or a law teacher, and may return to private practice from these other activities. A relatively small number of lawyers give up practice for responsible executive positions in commerce and industry. The mobility as well as the sense of public responsibility in the profession is evidenced by the career of Harlan Fiske Stone who was, at various times, a successful New York lawyer, a professor and dean of the Columbia School of Law, Attorney General of the United States, and Chief Justice of the United States.There is no formal division among lawyers according to function. The distinction between barristers and solicitors found in England did not take root in the United States, and there is no branch of the profession that has a special or exclusive right to appear in court, nor is there a branch that specializes in the preparation of legal instruments. The American lawyer’s domain includes advocacy,counselling, and drafting. Furthermore, within the sphere broadly defined as the "practice of law" the domain is exclusive and is not open to others. In the field of advocacy, the rules are fairly clear: any individual may represent himself or herself in court but, with the exception of a few inferior courts, only a lawyer may represent another in court. Nonlawyers are, however, authorized to represent others in formal proceedings of a judicial nature before some administrative agencies. The lines of demarcation are less clear in the areas of counselling and drafting of legal instruments, as for example between the practice of law and that of accounting in the field of federal income taxation. However, the strict approach of most American courts is indicated by a decision of New York’s highest court that a lawyer admitted to practice in a foreign country but not in New York is prohibited from giving legal advice to clients in New York, even though the advice is limited to the law of the foreign country where the lawyer is admitted. A foreign lawyer may, however, be admitted to the bar of one of the states and may, even without being admitted, advise an American lawyer as a consultant on foreign law.Part Two：Lawyers in Private Practice Among these fifteen lawyers in practice, nine, a clear majority, are single practitioners. The remaining six practice in law firms, which are generally organized as partnerships. Four or five of these six are partners and the others are associates, a term applied to salaried lawyers employed by a firm or another lawyer. This trend toward group practice is of relatively recent origin. Throughout most of the nineteenth century law practice was general rather than specialized, its chief ingredient was advocacy rather than counselling and drafting, and the prototype of the American lawyer was the single practitioner. Marked specialization began in the latter part of that century in the large cities near the financial centers. With the growth of big business, big government, and big labor, the work of the lawyer accomodated itself to the needs of clients for expert counselling and drafting to prevent as well as to settle disputes. The best lawyers were attracted to this work and leadership of the bar gravitated to persons whorarely if ever appeared in court and who were sought after as advisors, planners, and negotiators. Today the lawyer regards it as sound practice to be continuously familiar with clients business problems and to participate at all steps in the shaping of their policies. Major business transactions are rarely undertaken without advice of counsel.Part Three: House Counsel Out of every twenty lawyers, two are employed by private business concerns, such as industrial corporations, insurance companies, and banks, usually as house or corporate counsel in the concern’s legal department. The growth of corporations, the complexity of business, and the multitude of problems posed by government regulation make it desirable for such firms to have in their employ persons with legal training who, at the same time, are intimately familiar with the particular problems and conditions of the firm. In large corporations the legal department may number one hundred or more. The general counsel, who heads the office, is usually an officer of the company and may serve on important policy making committees and perhaps even on the board of directors. House counsel remain members of the bar and are entitled to appear in court, though an outside lawyer is often retained for litigation. However, it is the house counsel s skill as advisor rather than as advocate that is a valued asset. Constantly in touch with the employer s problems, house counsel is ideally situated to practice preventive law and may also be called upon to advise the company on its broader obligation to the public and the nation.Part Four：Lawyers in Government A parallel development has taken place in government and two out of twenty lawyers are now employees of the federal, state, county, and municipal governments, exclusive of the judiciary. Many of those entering public service are recent law graduates who find government salaries sufficiently attractive at this stage of their careers and seek the training that such service may offer as a prelude to private practice. Limitations on top salaries, however, discourage some from continuing with thegovernment. The majority serves by appointment in the legal departments of a variety of federal and state agencies and local entities. The United States Department of Justice alone employs more than two thousands, and the Law Department of the City of New York more than four hundreds. Others are engaged as public prosecutors. Federal prosecutors, the United States attorneys and their assistants, are appointed by the President and are subordinate to the Attorney General of the United States. State prosecutors, sometimes known as district attorneys, are commonly elected by each county and are not under the control of the state attorney general. As a rule, lawyers in government are directly engaged in legal work, since law training is infrequently sought as preparation for general government service. However, a small but important minority that constitutes an exception to this rule consists of those who have been appointed to high executive positions and those who have been elected to political office. Though the participation of lawyers in government has declined recently, for two centuries lawyers have made up roughly half of the Congress of the United States and of the state governors. These figures bear out the comment of Chief Justice Stone that, "No tradition of our profession is more cherished by lawyers than that of its leadership in public affairs."Lesson Three: Legal Education In 1983, over 125,000 law students were studying in more than 170 ABA accredited law schools including public law schools supported in part by government funds; private law schools supported by contributions from individuals and foundation funds; and local or national schools offering full time or part time legal study programs. As virtually the only way to prepare for membership in the legal profession, law schools in the United States fulfill several functions including professional training and socialization of future lawyers and screening and gatekeeping for entrance to the profession. Since there is no central institution where all lawyers practice, the only institutional experience which lawyers have in common is law school.The criticisms which range from "mild to caustic" of the way in which law schools have carried out these functions and of the functions themselves have been persistent, diverse and rooted in the historical and political development of the profession. These criticisms have focussed on the curriculum and the dominance of the case method; the distribution of power and prestige reflected in the hierarchy within and among the law schools; and the imbalance in terms of women and minorities in the student body and faculty in the law schools.Part One：Curriculum and the Case Method The traditional first year program offered in virtually all American law schools includes contracts, torts, property, criminal law and civil procedure. Duncan Kennedy has described the traditional first year curriculum as basically teaching the ground rules for late 19th century laissez faire capitalism. The second year and third year course expound the moderate reformist New Deal program and the administrative structure of the modern regulatory state. The peripheral subjects, if they are offered, include legal philosophy, legal history, legal process, and clinical education, a "kind of playground or finishing school for learning the social art of self presentation as a lawyer".However, as new areas of the law continue to develop in response to contemporary issues and problems, some law schools have expanded curricula to include courses and clinical programs in environmental law, housing and urban development, women s rights, health in the workplace, welfare rights and consumer protection. There are also increasing efforts to teach law in interdisciplinary contexts, drawing on other disciplines such as history, psychology, sociology, medicine, and economics.In teaching the traditional curriculum, law teachers in almost all the law schools use to some extent the case method or the Socratic method. Developed in the 1870s by Christopher Columbus Langdell at the Harvard Law School, the case method looked to thecommon law as the source of legal priniciples and focussed on the teaching of an abstract conception of the law as a science. The legal principles elicited were to be taught divorced from the "grubby world of practice--and also from politics, history, economics, and social contexts". This narrow formalistic approach was justified on the ground that it taught students how to state, analyze, evaluate and compare concrete fact situations thus developing their powers and skills of analysis, reasoning, and expression.However, this process of learning "how to think like a lawyer" has been criticized as having an adverse impact both on the students and the quality of future lawyering. Students, law teachers, and others have pointed to the alienation, anxiety, hostility and aggression caused by use of the case method or Socratic method. The narrow and destructive interaction of this dialogue, or often "nondialogue", contributes to the impairment of the ability to care about other people, a professional unemotionalism and cynicism on the part of law students. And it is not only the law students who suffer from this narrowing of their professional selves. The work of a lawyer involves continuous contacts with clients, associates, other lawyers, judges, witnesses, others affected by the law, and involves the lawyer s own goals, attitudes, performance, and sense of satisfaction.Part Two：Law School Hierarchy Duncan Kennedy has described the law schools as "intensely political places", characterized by a "trade school mentality, the endless attention to trees at the expense of forests." The law schools function as the institution for "ideological training for willing service in the hierarchies of the corporate welfare state". In the ranking and evaluation of students, students learn to accept their place in a hierarchy which is presented as just and inevitable and "so prepare themselves for all the hierarchies to follow". In the law teacher’s modeling of hierarchical relationships with students, colleagues, secretaries and support staff, students learn a particular style of condescension towards perceived inferiors and deference towards perceived superiors. And under thesubtle but intense pressure to conform to the "white, male, middle class tone" set by law faculties which are overwhelmingly white, male, and middle class, law students adapt, "partly out of fear, partly out of hope of gain, partly out of genuine admiration for their role models". In these ways, "legal education is one of the causes of legal hierarchy. Legal education supports it by analogy, provides it a general legitimating ideology by justifying the rules that underlie it, and provides it a particular ideology by mystifying legal reasoning. Legal education structures the pool of prospective lawyers so that their hierarchical organization seems inevitable, and trains them to look and think and act just like all the other lawyers in the system" .In addition to the hierarchy within the law schools suggested by Kennedy, other analyses of the law schools functions and relationship to the profession suggest the existence of a hierarchy among the law schools. The top dozen or so elite law schools occupy a position of power and prestige which is partially reflected in the professional career paths of their graduates and in the "old boy networks" connecting the law schools and the rest of the legal profession. The models of the "law school as the gateway to the American power elite became possible with the New Deal". Felix Frankfurter’s placement network for the "best and the brightest" into influential public policy positions during the New Deal in the 1930s was an early example of this kind of network. During his tenure at Harvard and later while on the Supreme Court, Frankfurter developed an "old boy network" which was intimately involved with the placement of many of the "elite" lawyers, all of whom were white and male, into public service. The typical Frankfurter recruit was "a graduate of Harvard Law School, politically liberal, usually ranked high in his class, and either an obvious product of upper class gentile culture or an obvious product of a radically different culture who was 'comfortable' in the upper class gentile world".In the current hiring practices of the major law firms and in the competition for judicial clerkships, and in the appointments to law faculties, the graduates of the elite schools continue to have an advantage over graduates of other schools. In arecent study of Chicago lawyers, Zemans and Rosenblum found that lawyers who attended "high prestige law schools and graduated in the top 20 percent of their classes were much more likely to practice in large firms and specialize in high prestige fields of law". In terms of appointments to law faculties, 60% of the legal profession’s teaching specialists are produced by fewer than 15% of the nation’s accredited law schools. These law teacher producer schools are mostly national, located in urban locations, and include schools such as Harvard, Yale, Columbia, University of Michigan, Chicago, New York University, Northwestern University, and Georgetown. If it is true that the full time faculty of the law schools "have a virtual monopoly on who will and will not enter the (legal) profession" and "on the power to mold future generations", then the existence of a hierarchy among the law schools suggests that an elite group of schools is primarily responsible for staffing the law schools, which in turn produce lawyers for the hierarchies within the profession.Lesson Four：Judicial System 司法系统Part One：CourtsThere are fifty-two separate court systems in the United States. Each state, as well as the District of Columbia, has its own fully developed, independent system of courts and there is a separate federal court system. The federal courts are not superior to the state courts; they are an independent, coordinate system authorized by the United States Constitution, Art. Ⅲ,§2, to handle matters of particular federal interest. The presence of two parallel court systems often raises questions concerning the relationship of the state and federal systems, presenting important issues of federalism. The United States Supreme Court, composed of nine justices, sits as the final and controlling voice over all these systems.Although a few states, such as Nebraska, have a two tiered system, most states, as well as the federal courts, are based on a three tiered model. That means that for any litigant there will be the opportunity to plead his case before a trial court and then, should he lose, there are two levels of appeal at which he ultimately may succeed. For example, in thefederal system the trial court is the United States District Court, of which there is at least one in every state. Many larger states are divided into two, three or even four judicial districts, depending on population, geography and caseload. There are ninety-four districts in the United States and each district court has one judge, or more commonly two or more. After an adverse judgment in the district court, a litigant may appeal to the United States Court of Appeals for the circuit in which the district court is located. There are eleven numbered intermediate appellate courts in the federal system, each including anywhere from three to ten states and territories. Additionally, there is a Court of Appeals for the District of Columbia, hearing appeals from the federal district court there, and one for the Federal Circuit, taking appeals from various specialized federal tribunals, such as the Claims Court. Each court of appeals has four or more judges who sit in panels of three to review district court decisions, as well as some decisions of administrative agencies. A losing litigant in the court of appeals may, in some cases, be able to obtain review by the United States Supreme Court. Cases in the state courts similarly may proceed through a trial court, a state appellate court, and then the state supreme court. If a federal constitutional question is involved the decision of the state supreme court may be reviewed by the United States Supreme Court. Since 1988, review by the Supreme Court in civil cases is discretionary; virtually all civil appeals as of right to the highest court have been abolished.Three tiered systems vary on the role which the highest court plays. The approaches taken reflect differing philosophies with regard to what the highest court should do. For example, in California only criminal cases in which capital punishment has been imposed are appealable as of right to the state supreme court. Similarly, in the federal courts, except in a few very limited circumstances, appeals to the United States Supreme Court are discretionary, by writ of certiorari. The Court decides for itself what are the most important questions that deserve its attention and will refuse to review decisions raising issues that it feels are not as crucial. In this way it supervises the administration of law by thelower courts on an ad hoc basis. At the other end of the spectrum, such as in New York, appeals to the state’s highest court are as of right in a great many cases provided for by statute. The primary function of the highest court in New York appears to be to assure that cases are correctly decided. It is necessary to check carefully the statutes of the system in which you are appearing to determine the specific rules regarding review by those appellate courts.Part Two：Judges Fewer than one in twenty of those admitted to practice law is a federal, state, county, or municipal court judge. Except for some inferior courts, judges are generally required to be admitted to practice but do not practice while on the bench. There is so little uniformity that it is difficult to generalize further than to point out three salient characteristics that relate to the ranks from which judges are drawn, to the method of their selection, and to their tenure.Judges are drawn from the practicing bar and less frequently from government service or the teaching profession. There is in the United States no career judiciary like that found in many other countries and there is no prescribed route for the young law graduate who aspires to be a judge, no apprenticeship that must be served, no service that must be entered. The outstanding young law graduates who act for a year or two as law clerks to the most distinguished judges of the federal and state courts have only the reward of the experience to take with them into practice and not the promise of a judicial career. While it is not uncommon for a vacancy on a higher court to be filled by a judge from a lower court, even this cannot be said to be the rule. The legal profession is not entirely unaware of the advantages of a career judiciary, but it is generally thought that they are outweighed by the experience and independence which American lawyers bring to the bench. Many of the outstanding judges of the country’s highest courts have had no prior judicial experience. Criticism has centered instead on the prevalent method of selection of judges.State court judges are usually elected, commonly by popular vote, but occassionally by the legislature. Popular election has been。
