US LEGAL CULTURE - Review Questions
US LEGAL CULTURE - Review Questions
US LEGAL CULTURE - Review Questions
2. Social Order and Justice: Lawyers play a crucial role in upholding social order and justice. By representing
clients in legal matters, they ensure that individuals' rights are protected and that justice is served in cases of
disputes or conflicts.
3. Rule of Law: The legal profession reinforces the concept of the rule of law in society. Lawyers are essential in
interpreting laws, ensuring their proper application, and holding individuals and institutions accountable for their
actions.
4. Advocacy and Public Interest: Lawyers often engage in public interest work and advocacy to address social
issues and advance the interests of marginalized groups. They contribute to shaping public policy and legislation
to promote a more just and equitable society.
5. Influencing Legal Norms: Legal professionals, through their arguments and cases, can influence the
development and interpretation of legal norms. Their advocacy can lead to the evolution of laws to reflect
changing societal values and needs.
6. Mediation and Conflict Resolution: Lawyers serve as mediators and facilitators in resolving disputes, both
within and outside the courtroom. Their expertise helps parties find mutually beneficial solutions, contributing
to a harmonious society.
7. Legal Services Access: The availability of legal services and representation allows individuals from diverse
backgrounds to access justice. By ensuring legal representation for those who cannot afford it, lawyers
contribute to a more inclusive and fair society.
8. Impact on Business and Economy: Lawyers play a vital role in the business world, facilitating transactions,
protecting intellectual property, and advising on legal compliance. Their work shapes the business environment
and impacts economic growth and development.
9. Civic Engagement and Governance: Lawyers often engage in public service, holding positions in government,
policymaking bodies, and public interest organizations. Their involvement in governance and policy formulation
contributes to societal well-being.
In summary, the education, training, and practices of U.S. lawyers not only equip them with the necessary skills
and knowledge to function effectively within the legal system but also have broader implications for shaping
societal values, upholding justice, and promoting social welfare.
13. What are the requirements and options for non-U.S. law students to study and practice law in the U.S.?
Non-U.S. law students have the option to study and practice law in the U.S. by pursuing a Juris Doctor (JD)
degree from an accredited law school. Upon completion of the JD program, they can take the bar exam in the
state where they wish to practice. Some states allow foreign-trained lawyers to take the bar exam directly, while
others may require additional education or practice experience. Additionally, there are specialized LL.M.
programs designed for foreign law graduates to gain knowledge of U.S. law and qualify for the bar exam.
14. What are the key changes in the NextGen bar exam and the concerns related to law school funding and student
debt?
The NextGen bar exam introduces a two-part format with multiple-choice questions and practical skills
assessment. Concerns include rising law school costs, substantial student debt, and potential impact on career
choices and diversity in the legal profession. As students might opt for higher-paying jobs to repay their loans.
Additionally, high student debt could exacerbate diversity issues in the legal profession, as individuals from low-
income backgrounds may face more significant barriers in accessing legal education.
15. What are the variations in legal practice and admission to the bar in the United States?
In the United States, variations in legal practice and admission to the bar exist due to the country's federal
system, resulting in diverse state-specific rules. Each state has its own bar exam, licensing requirements, and
rules for legal practice, leading to differences in admission criteria and practice privileges for lawyers across
states. Additionally, some states offer reciprocity, allowing lawyers licensed in one state to practice in another
without taking a new bar exam, further contributing to variations in legal practice across the nation.
16. How does language influence the common law system and the study of law?
Language plays a significant role in shaping the common law system and the study of law. The development and
evolution of legal language have had a profound impact on the interpretation and application of laws. Legal
terminology, statutory interpretation, and the use of precedent all rely on language to convey meaning and
establish legal principles. Legal language serves as a tool for precise communication within the legal system. It
provides a framework for drafting legislation, writing court opinions, and formulating legal arguments.
17. What are the disciplines of law and their origins, and how do they relate to other disciplines?
The disciplines of law can be traced back to ancient Greece and Rome, where technê (practical knowledge) and
epistêmê (theoretical knowledge) were distinguished. In ancient Greece, there were no trained or educated
lawyers. Litigants would orally argue their cases before an adjudicative body, and professional orators could
provide assistance in preparing their speeches. Similarly, in ancient Rome, there were no lawyers as we
understand them today. Litigants would present their cases orally, with the help of a friend skilled in oratory.
However, specialization in oratory or legal study led to the creation of a separate class of people known as
jurisconsults, who focused on studying and understanding the law. In the Western tradition, the U.S. legal system
relies on common law and courtroom practices, while Germany emphasizes the study of legal texts. Law
intersects with anthropology, rhetoric, and philosophy, enriching its multidimensional nature.
18. How do civil law and common law approaches differ in studying legal systems, and what are the unique features
of U.S. law?
Sources of Law:
Civil Law: Relies heavily on written codes and statutes enacted by legislative bodies as the primary source of law.
Common Law: Relies on judicial decisions and precedents set by courts as the primary source of law, alongside
statutes.
Role of Judges:
Civil Law: Judges primarily apply the law to the specific case at hand, acting as neutral interpreters.
Common Law: Judges play a more active role in shaping the law through their decisions, establishing precedents
that guide future cases.
Inquisitorial vs. Adversarial System:
Civil Law: Follows an inquisitorial system, where judges take a more active role in investigating the facts and
issues of a case.
Common Law: Follows an adversarial system, where opposing parties present their cases, and judges act as
impartial referees.
Legal Education and Codes:
Civil Law: Legal education typically focuses on studying codes and statutes, emphasizing a systematic approach.
Common Law: Legal education emphasizes case law and the use of precedents to analyze legal issues.
Unique Features of U.S. Law:
Precedent: The common law tradition in the U.S. places significant importance on judicial decisions and the
principle of stare decisis, where lower courts follow the decisions of higher courts on similar issues.
Jury Trials: The U.S. legal system frequently employs lay juries, allowing citizens to participate in the
administration of justice and decide factual matters in both criminal and civil cases.
Federalism: The U.S. has a federal system of government, and as a result, there is a dual court system, with
separate state and federal courts, each with their jurisdictions.
Bill of Rights: The U.S. Constitution's Bill of Rights guarantees individual rights and liberties, providing a
framework for protecting citizens' freedoms.
19. What are the aspects of the German and U.S. legal systems, including federalism, courts, interpretation, and
jury trials?
Aspects of the German and U.S. Legal Systems:
Federalism:
German Legal System: Germany follows a federal system, with power divided between the federal government and
individual states (Länder). Each state has its legal jurisdiction and courts.
U.S. Legal System: The United States also follows a federal system, with authority shared between the federal
government and individual states. The U.S. Constitution delineates powers between the federal and state
governments.
Courts:
German Legal System: Germany has a dual court system, comprising ordinary courts (Ordentliche Gerichte) and
specialized federal courts (Bundesgerichte). The ordinary courts handle most cases, while federal courts deal with
constitutional and specific matters.
U.S. Legal System: The U.S. has a complex court structure, with federal courts and state courts. Federal courts
handle cases involving federal law, disputes between states, and matters involving parties from different states.
State courts deal with issues primarily concerning state laws and regulations.
Interpretation:
German Legal System: The German legal tradition emphasizes a systematic interpretation of the law. Courts typically
adhere strictly to statutory language and legislative intent.
U.S. Legal System: The U.S. employs a more flexible approach to interpretation, particularly in the common law
system. Judges consider precedents, legislative intent, and constitutional principles when interpreting the law.
Jury Trials:
German Legal System: Jury trials are relatively rare in Germany. Instead, most cases are decided by professional
judges or panels of judges.
U.S. Legal System: The U.S. has a strong tradition of jury trials in both criminal and civil cases. Lay juries composed
of citizens play a significant role in determining factual matters and delivering verdicts.
While both Germany and the United States have legal systems rooted in the Western tradition, they have distinct
characteristics, particularly in terms of federalism, court structure, methods of interpretation, and the role of jury
trials. These differences reflect the unique cultural, historical, and constitutional foundations of each country's legal
system.
20. What are the criticisms and comparisons of class action lawsuits in Germany, the European Union, and the U.S.?
Criticisms and Comparisons of Class Action Lawsuits:
Germany:
Criticisms: Class action lawsuits are not as common in Germany as in the U.S. Some critics argue that the German
legal system's emphasis on individual rights and the lack of a class action mechanism hinder access to justice for
large groups of individuals with similar claims.
Comparisons: Germany does have collective redress mechanisms, such as model declaratory actions, which allow
consumer protection organizations to seek declarations of illegality or liability on behalf of affected consumers.
However, these mechanisms differ from traditional class actions in the U.S. as they focus on declaratory relief rather
than individual compensation.
European Union (EU):
Criticisms: The EU legal system has been criticized for lacking a harmonized approach to class action lawsuits. Each
member state has its own rules and procedures for collective redress, leading to legal fragmentation and challenges
in cross-border cases.
Comparisons: The EU is working to establish a more uniform approach to collective redress through the Directive on
Representative Actions for the Protection of the Collective Interests of Consumers. This directive aims to provide
consumers with better access to justice and harmonize collective action rules across member states.
United States:
Criticisms: Class action lawsuits in the U.S. have faced criticism for excessive litigation costs, potential abuse by
plaintiffs' attorneys, and the possibility of large settlements that may not adequately compensate individual class
members.
Comparisons: The U.S. has a well-established class action system that allows large groups of individuals with similar
claims to seek redress collectively. Class action lawsuits have been instrumental in addressing consumer protection,
product liability, and civil rights issues, but they also generate debates over their efficiency and fairness.
Overall, the criticisms and comparisons of class action lawsuits in Germany, the European Union, and the U.S.
revolve around access to justice, legal harmonization, the role of collective redress mechanisms, and concerns
about potential drawbacks and benefits of these procedures in different legal systems.
1. What are some common discovery tools used in federal civil cases?
Some common discovery tools used in federal civil cases include interrogatories, requests for production of
documents, depositions, requests for admissions, and physical or mental examinations
2. How does discovery in a federal criminal case differ from a civil case?
Answered above!
3. Who can request physical or mental examinations and enter upon land with permission from the court?
In a federal civil case, with permission from the court, a lawyer can request physical or mental examinations and
enter upon land. The request for such examinations is typically made by one party (either the plaintiff or the
defendant) to the court.
4. What are some features of common law that make the distinction between ratio decidendi and obiter dicta
important?
Answered see above!
5. What are some prominent features of U.S. law that make it distinct?
Common Law System: The US legal system follows the common law tradition, which relies heavily on judicial
precedent and case law. Judges interpret statutes and apply existing legal principles to make decisions in specific
cases. This case-by-case approach contrasts with civil law systems found in many other countries.
Federalism: The United States is a federal system with a division of powers between the federal government and
individual state governments. This division impacts various aspects of law, including criminal law, family law, and
property law, as both federal and state laws can coexist and have authority within their respective jurisdictions.
Constitutional Basis: The US legal system is based on a written constitution, which is considered the supreme law of
the land. The US Constitution outlines the structure of the government, enumerates powers, and protects individual
rights. This emphasis on constitutional principles is a hallmark of the American legal system.
Bill of Rights: The first ten amendments to the US Constitution make up the Bill of Rights, which guarantees
fundamental individual rights and freedoms. These include the freedom of speech, religion, and the right to bear
arms, among others. The protection of these rights is a defining characteristic of US law.
Adversarial Legal System: The US legal system is characterized by its adversarial nature, where opposing parties
present their cases before an impartial judge or jury. Each side advocates for its position, and the judge or jury
determines the outcome based on the evidence and arguments presented.
Jury Trials: In many civil and criminal cases, US law allows for jury trials. This means that a group of ordinary citizens
is responsible for determining the facts of the case and reaching a verdict. Jury trials are considered a crucial part of
the American legal tradition.
Legal Profession: The legal profession in the United States is relatively autonomous and diverse. It includes a large
number of private attorneys, law firms, and legal organizations, contributing to the country's litigious culture.
Litigation Culture: The US has a reputation for being a litigious society, with a high number of lawsuits and legal
disputes. This litigation culture is partially influenced by the availability of contingent fee arrangements and class
actions, which make it easier for individuals to pursue legal claims.
Concept of Liberty: American legal thinking places a strong emphasis on individual liberty and limited government
intervention. The idea of personal freedom and limited state control is deeply ingrained in the American legal
tradition.
Flexibility and Adaptability: U.S. law is known for its ability to adapt to changing circumstances and societal needs.
Courts can reinterpret laws and precedents to address evolving issues and challenges.
Overall, these aspects collectively contribute to what is typically American about the US law, setting it apart from
legal systems in other parts of the world and reflecting the values and principles of the United States as a nation.
6. Who are the American Bar Association (ABA) and the Association of American Law Schools (AALS), and what
functions do they serve?
Answerd!
7. How does the beginning point of legal study differ between civil law and common law?
Civil Law: In civil law systems, the beginning point of legal study typically involves the study of comprehensive and
structured legal codes or statutes. These legal codes serve as the primary sources of law and cover a wide range of
legal topics, such as contracts, property, torts, and more. Aspiring legal students in civil law countries delve into these
codes to understand the legal rules and principles governing various areas of law.
Common Law: In contrast, the beginning point of legal study in common law systems focuses on the study of judicial
decisions and case law. Common law systems rely heavily on the doctrine of precedent, where prior court decisions
act as binding or persuasive authority in future cases. Aspiring legal students in common law countries study
landmark cases and court decisions to comprehend legal principles and how they are applied in specific factual
scenarios.
19. How do these features: the lay jury, plea-bargaining, contingent fee agreements, class actions, and lay juries
reflect U.S. legal thinking?
20. What is “the role of foundational subjects and of interdisciplinarity” in German legal education, according to
Michaels?
21. How do these features: interrogatories, requests for production of documents, depositions, requests for
admissions, physical or mental examinations, and entry upon land, reflect the differences in discovery between
civil and criminal cases?
22. What feature(s) of common law make the distinction between ratio decidendi and obiter dicta especially
important in a lawyer's or judge's application or rationale?
23. What is the role of foundational subjects and interdisciplinarity in German legal education, according to Ralf
Michaels?
24. What are the theoretical concerns and historical perspectives in the study of law and history?
The theoretical concerns and historical perspectives in the study of law and history encompass various aspects. Here
are some key points:
Theoretical Concerns:
Comparative Method: The study of law and history often involves the application of comparative methods to analyze
legal systems across different cultures and time periods. This approach helps identify similarities, differences, and
influences between legal traditions.
Constructing Narratives: The study of law and history involves constructing narratives that give meaning to past
events and legal developments. These narratives can vary depending on the historian's perspective, focus, and
interpretation of historical evidence.
Whig History: Whig history refers to an approach that presents history as a linear progression towards progress and
improvement. It can influence the interpretation of legal history by emphasizing the development of legal
institutions and principles over time.
Historical Reference Frame: The historical reference frame (HRF) is a framework used to analyze and understand legal
history. It involves examining the institutions, sources, errors, and available evidence in legal history.
Historical Perspectives:
Common Law Development: Understanding the historical development of common law involves examining its
origins, such as the influence of Roman law, the role of legal institutions, and the gradual accumulation of legal
principles through case law.
Comparative Legal Systems: Historical perspectives in the study of law and history often involve comparing different
legal systems, such as the civil law system and the common law system, to understand their origins, evolution, and
impact on societies.
Temporal Focus: Historical perspectives also consider the temporal focus of different ideologies and legal
interpretations. For example, conservatives may favor an "originalist" interpretation of the Constitution, while
progressives may favor a "living constitution" interpretation.
These theoretical concerns and historical perspectives shape the study of law and history by providing frameworks,
methods, and lenses through which legal developments and historical events are analyzed and understood. They
contribute to a deeper understanding of the relationship between law and society over time.
25. How did the legal profession develop in England from the 13th to the 19th centuries?
Emergence of Legal Professions: In the 13th century, legal professionals began to specialize in legal practice. Lawyers
were classified into two main groups: attorneys, who represented clients in the lower courts, and serjeants (later
known as barristers), who practiced in the higher courts.
Establishment of the Inns of Court: In the 14th and 15th centuries, the Inns of Court became important institutions
for legal education and training. These societies provided a structured legal education for aspiring lawyers,
combining theoretical knowledge with practical training.
Growth of Common Law: The development of the common law system during this period significantly influenced
legal practice. English courts relied on precedent and the accumulation of case law to establish legal principles and
rules.
Role of Serjeants and Barristers: The role of serjeants (barristers) expanded in the 16th and 17th centuries. They
became prominent advocates in the higher courts, gaining recognition for their expertise and legal knowledge.
Consolidation of Legal Practice: By the 18th century, the legal profession had become more organized and
established. The number of practicing lawyers grew, and the legal community developed its own norms, traditions,
and ethical standards.
Expansion of Legal Services: The 18th and 19th centuries saw a growing demand for legal services as commercial
activity and industrialization increased. Lawyers played essential roles in transactions, contracts, and property
matters.
Formation of Law Societies: In the 19th century, law societies were established to promote professional standards
and facilitate networking among lawyers. These societies played a crucial role in shaping the legal profession's
culture and identity.
Legal Education Reforms: During the 19th century, legal education underwent significant reforms. The Law Society
was founded in 1825, and in 1852, a legal examination system was introduced to ensure competence among aspiring
solicitors.
The Fusion of Legal Professions: Over time, the distinction between solicitors and barristers blurred, leading to a
more integrated legal profession. The Legal Practitioners Act of 1846 allowed solicitors to practice in the higher
courts, further advancing the fusion of legal roles.
Throughout this period, the legal profession in England evolved from an informal practice to a structured and
organized system. The development of legal education, the establishment of legal institutions, and the growth of
common law principles played significant roles in shaping the legal profession as we know it today.
26. What are the key changes in the NextGen bar exam and the concerns related to law school funding and student
debt?
The key changes in the NextGen bar exam include a shift towards more practice-oriented testing, incorporation of
new question formats, and the use of artificial intelligence. Concerns related to law school funding and student debt
revolve around the rising cost of legal education, potential financial burdens on students, and the need to address
access to justice issues.
27. What are the variations in legal practice and admission to the bar in the United States?
Admission by state: In the US, one cannot be admitted to practice law in the whole country, but only state by state
County-specific admission: Some states continue to require admission to each county separately.
Admission by fee: At least one state allowed admission by fee alone until the 1930s.
Diploma privilege: Until the 1980s, a student who completed legal study at West Virginia's only university was
automatically admitted to practice in West Virginia without a bar examination. This is still the case in Wisconsin, with
its two law schools.
Reading law with practicing lawyers: Some states, such as California, Vermont, Virginia, and Washington, still permit
students to "read law" with practicing lawyers in offices instead of attending law school.
Uniformity efforts: Proposals have been made to make state variations in admission to the bar more uniform.
ABA standards: The American Bar Association (ABA) has set standards for legal education, including requirements for
professional responsibility courses and experiential learning opportunities.
Bar examination: After completing law school or reading law, individuals must pass the bar examination of a specific
state to be admitted to practice law in that state.
Character and fitness determination: Applicants for bar admission must undergo a character and fitness
determination, which may include factors such as a clean police record, clean credit score, and letters of
recommendation.
Foreign legal consultants: Foreign lawyers who wish to practice law in the US have options such as obtaining an LL.M.
degree or becoming a foreign legal consultant, which requires meeting specific qualifications.
State-specific requirements: Each state may have its own additional requirements for bar admission, such as specific
coursework or additional examinations.
D.C. Bar admission: The District of Columbia Bar admits lawyers from other jurisdictions by application without
additional examination.
28. How does language influence the common law system and the study of law?
Language plays a significant role in influencing the common law system and the study of law in several ways:
Development of legal terminology: Language shapes the development of legal terminology and concepts. For
example, in England, the use of "law French" and later English in legal proceedings influenced the evolution of legal
language and the terminology used in common law.
Interpretation of statutes and case law: Language is crucial in interpreting statutes and case law. The meaning of
legal texts and precedents can be influenced by the interpretation of specific words, phrases, and grammar. The
choice of language used in legal documents can have a significant impact on the interpretation and application of the
law.
Legal education and communication: Language is essential in legal education and communication. Law students and
practitioners must understand legal concepts, principles, and doctrines, which are often conveyed through language.
Effective communication in the legal field relies on clear and precise language to convey legal arguments, contracts,
and legal opinions.
Comparative law and international legal systems: Language plays a role in comparative law and the study of
international legal systems. Understanding the language of different legal systems allows for the comparison and
analysis of legal principles and concepts across jurisdictions. Language proficiency is crucial for legal professionals
engaging in international legal practice or studying foreign legal systems.
Legal culture and traditions: Language is intertwined with legal culture and traditions. The use of legal language and
terminology reflects the historical development and cultural context of a legal system. Different legal cultures may
have distinct linguistic characteristics that shape the way law is practiced and understood.
29. What are the disciplines of law and their origins, and how do they relate to other disciplines?
The disciplines of law and their origins can be traced back to ancient Greece and Rome. The study of law in these
civilizations was not separate from other disciplines but was intertwined with rhetoric, philosophy, and political
science.
Legal Anthropology: Legal anthropology examines the relationship between law and culture, studying how different
societies create and enforce norms and rules. It draws on anthropology, sociology, and cultural studies to understand
the social and cultural context of law.
Legal History: Legal history focuses on the development of legal systems over time. It examines the historical origins
of legal concepts, institutions, and practices. Legal history draws on historical research methods and often intersects
with other disciplines such as history, political science, and sociology.
Jurisprudence: Jurisprudence, also known as legal philosophy, explores the nature, purpose, and principles of law. It
examines questions of justice, ethics, and the foundations of legal systems. Jurisprudence draws on philosophy,
ethics, and political theory.
Comparative Law: Comparative law involves the study of different legal systems and the comparison of their
principles, structures, and practices. It aims to understand the similarities and differences between legal systems
across different jurisdictions. Comparative law draws on legal analysis and often intersects with international
relations and cultural studies.
Constitutional Law: Constitutional law focuses on the study of constitutions, their interpretation, and the principles
of government. It examines the relationship between the government and individuals, as well as the distribution of
power within a state. Constitutional law draws on political science, history, and philosophy.
Criminal Law: Criminal law deals with offenses against society and the punishment of individuals who commit crimes.
It examines the elements of criminal offenses, the principles of criminal liability, and the procedures of criminal
justice. Criminal law intersects with sociology, psychology, and criminology.
Civil Law: Civil law governs the relationships between individuals and deals with private disputes. It includes areas
such as contracts, torts, property, and family law. Civil law draws on legal analysis and often intersects with
economics and social sciences.
International Law: International law governs the relationships between states and other international actors. It
includes areas such as international human rights, international humanitarian law, and international trade law.
International law draws on political science, international relations, and diplomacy.
30. What are the different discovery tools used in civil cases?
Interrogatories: Written questions sent by one party to another, which must be answered under oath. They are used to
gather specific information about the case.
Requests for Production of Documents: A party can request the opposing party to produce relevant documents, such as
contracts, emails, or financial records, for inspection and copying.
Depositions: Oral testimony given under oath by a witness or a party to the case. Attorneys have the opportunity to ask
questions and gather information directly from the deponent.
Requests for Admissions: One party can request the other party to admit or deny certain facts or the authenticity of
documents. This tool helps narrow down the issues in dispute.
Physical or Mental Examinations: With permission from the court, a party can request an examination of the opposing
party's physical or mental condition by a qualified expert.
31. How does discovery in a federal criminal case differ from a civil case?
Limited Discovery Tools: In a federal criminal case, the available discovery tools are more restricted compared to civil
cases. Certain tools commonly used in civil cases, such as interrogatories and requests for admission, are not available in
criminal cases.
Prosecution-Driven Discovery: In a federal criminal case, the prosecution has the primary responsibility for gathering and
disclosing evidence to the defense. The defense generally has limited access to the government's evidence and relies on
the prosecution's duty to disclose exculpatory evidence (Brady material).
Witness Depositions: Depositions of witnesses are not a routine part of discovery in federal criminal cases. Depositions
are generally only permitted to preserve testimony or upon leave of the court.
Grand Jury Secrecy: Matters occurring before a grand jury, including witness testimony and evidence presented, are
generally kept secret under Federal Rule of Criminal Procedure 6(e). The defense does not have automatic access to
grand jury materials.
Focus on Trial Preparation: Discovery in a federal criminal case is primarily focused on trial preparation rather than
facilitating settlement negotiations, as is often the case in civil litigation. The defense typically seeks discovery to
challenge the government's case and prepare a defense strategy.
32. What makes the distinction between ratio decidendi and obiter dicta important in common law?
Binding Precedent: The ratio decidendi, or the legal reasoning and principles applied by the court to reach its decision,
forms the binding precedent that must be followed by lower courts in similar cases. It establishes the legal rule that
governs future cases.
Predictability and Consistency: The ratio decidendi provides clarity and predictability in the law by setting a precedent
that guides future decisions. It ensures consistency in the application of the law and promotes fairness and equality.
Stare Decisis: The principle of stare decisis, which means "to stand by decided cases," is a fundamental principle of
common law. It requires courts to follow the ratio decidendi of higher courts, promoting stability and reliability in the
legal system.
Distinguishing Precedents: The distinction between ratio decidendi and obiter dicta helps in distinguishing between the
essential legal principles that are binding and the incidental or persuasive statements made by the court. It allows courts
to determine which parts of a previous decision are relevant and authoritative in a particular case.
Legal Certainty: By focusing on the ratio decidendi, courts can provide clarity and certainty to the parties involved in a
case and the legal community at large. It helps in determining the legal rights and obligations of individuals and
promotes confidence in the legal system.
In summary, the distinction between ratio decidendi and obiter dicta is crucial in common law as it determines the
binding precedent, promotes consistency and predictability, ensures adherence to the principle of stare decisis, aids in
distinguishing precedents, and contributes to legal certainty.
33. What are the objects of study in the context of legal culture?
This area explores the historical, cultural, and societal factors that shape a particular legal system. It examines how
cultural norms, traditions, and values influence the development and functioning of the legal system.
34. What is unique about U.S. law?
36. What is the role of foundational subjects and interdisciplinarity in German legal education?
In German legal education, foundational subjects and interdisciplinarity play a significant role. Foundational subjects
refer to the core areas of legal study, such as constitutional law, civil law, criminal law, and administrative law. These
subjects provide students with a comprehensive understanding of the legal system and its principles.
Interdisciplinarity, on the other hand, involves the integration of legal studies with other disciplines, such as philosophy,
sociology, economics, and political science. This interdisciplinary approach aims to broaden students' perspectives and
enable them to analyze legal issues from various angles. It helps students develop critical thinking skills and understand
the social, economic, and political contexts in which the law operates.
The emphasis on foundational subjects and interdisciplinarity in German legal education reflects the holistic approach to
legal studies in Germany. It recognizes that law cannot be studied in isolation but must be understood in relation to other
disciplines and societal factors.
Providing fair and democratic access to the courts for legal redress: The social problem is how to ensure that citizens
have equal access to the legal system and can seek justice and redress for their grievances.
Reflecting and shaping societal values: Legal education plays a role in shaping societal values by emphasizing the rule of
law, constitutional principles, and individual rights. It also reflects societal values by incorporating interdisciplinary
perspectives and promoting ethical conduct.
Preparing students for the practice of law: Legal education should equip students with the necessary knowledge, skills,
and ethical grounding to effectively practice law and serve their clients.
Critiques and problems of legal education: There are ongoing debates and critiques regarding the cost of legal education,
the effectiveness of teaching methods, the need for practical skills training, and the lack of diversity in the legal
profession.
What are the issues for the historical reference frame in legal education?
The issues for the historical reference frame in legal education include:
What are the issues for the language reference frame in legal education?
Language Proficiency: Legal education requires a high level of language proficiency as legal professionals need to
understand and communicate complex legal concepts accurately and effectively.
Legal Terminology: The legal field has its own specialized terminology, which can be challenging for students and
practitioners to grasp, especially for those who are not native speakers of the language.
Interpretation and Ambiguity: Legal texts, including statutes and case law, often involve nuanced language and
interpretation. Ambiguities in language can lead to different understandings and potential disputes over legal issues.
Translation Challenges: In multilingual legal systems, translating legal texts accurately can be difficult, as legal concepts
may not have direct equivalents in other languages.
Language Barriers: For international students studying law in a foreign language, language barriers can pose challenges in
fully understanding complex legal concepts and engaging in legal discussions.
Legal Writing Skills: Legal education places significant emphasis on legal writing, which requires precision, clarity, and
adherence to legal conventions. Language proficiency is crucial for effective legal writing.
Access to Legal Education: Language barriers may limit access to legal education for individuals who are not proficient in
the language of instruction, potentially affecting diversity and inclusion in the legal profession.
Cross-Cultural Communication: In an increasingly globalized legal landscape, legal professionals often need to
communicate with colleagues, clients, and counterparts from diverse linguistic and cultural backgrounds.
What are the issues for the philosophical reference frame in legal education?
The role of legal education in shaping the philosophical foundations of law
The relationship between law and morality
The debate between legal positivism and natural law theory
The exploration of different theories of justice and their implications for legal education
The examination of legal reasoning and the use of logic in legal education
The consideration of ethical dilemmas and professional responsibility in legal education
What are the issues for the disciplinary reference frame in legal education?
The issues for the disciplinary reference frame in legal education include:
The study of legal doctrine and its application in practice
The examination of legal institutions and their role in shaping the legal system
The analysis of legal reasoning and argumentation
The exploration of legal research methods and sources of law
The consideration of legal ethics and professional responsibility
The understanding of legal principles and theories
39. How does the lay jury function in the practice of law?
The lay jury functions in the practice of law by serving as a fact-finding body and making determinations of truth based
on the evidence presented during a trial. The jury's role is to determine which facts among those presented are true, and
their decision is crucial in reaching a verdict. The judge instructs the jury on the connection between the facts and the
law through jury instructions, which serve as a bridge between the judge's interpretation of the law and the jury's
determination of the facts.
The lay jury has a long history and is guaranteed by the U.S. Constitution. The Sixth Amendment guarantees the right to a
jury trial for state crimes, while the Seventh Amendment preserves the jury for common law cases that would have
received a jury in England. The lay jury is composed of citizens who are selected from a jury pool and undergo a process
of voir dire, where they are questioned by the lawyers for each party. Once the jury is empaneled, they listen to the
evidence presented by witnesses and parties and make determinations based on the facts presented.
The use of lay juries varies across different countries. Approximately two-thirds of the world's countries use some form
of lay participation, with juries being the most commonly used form. However, the use and form of lay participation vary
by geography and legal tradition. For example, Belgium uses juries in most serious criminal cases, while in Canada,
decisions of the jury in criminal matters may be appealed by both the defendant and the state. In the United States,
decisions of the jury in criminal matters may only be appealed by the defendant.
Overall, the lay jury plays a crucial role in the practice of law by determining the facts of a case and reaching a verdict
based on the evidence presented during a trial. Their function is to apply the law to the facts and make determinations
of guilt or innocence
What are some key features of the US legal system that distinguish it from other legal systems around the world?
The cultural fabric of the United States, characterized by factors such as abundant land, opportunities for individual
success, and an independent spirit, has shaped the needs and values of its population over time. This cultural
background has influenced the development of the US legal system and its emphasis on individual rights and freedoms.
Another distinctive feature of the US legal system is the prominent role of the jury trial. While not every trial in the US
involves a lay jury, the concept of a jury trial is deeply ingrained in American legal culture. The jury trial allows for active
participation of the public in the legal system, reflecting the desire for citizen involvement beyond just voting for
lawmakers. This participatory aspect sets the US legal system apart from many other legal systems around the world.
Furthermore, the US legal system is characterized by its federal structure and the division of powers between the federal
government and the individual states. Unlike many other countries, the US states are not merely administrative units of
the federal government but are considered independent entities with their own legal systems. Each state has its own
substantive laws, and lawyers are licensed to practice in only one state, highlighting the distinctiveness of each state's
legal system within the larger framework of US law.
In summary, the American legal system is shaped by the cultural and historical context of the United States, with an
emphasis on individual rights and freedoms, the active participation of the public through jury trials, and the federal
structure that recognizes the autonomy of individual states
Some key features of the US legal system that distinguish it from other legal systems around the world include:
Common Law Tradition: The US legal system is based on the common law tradition, which relies heavily on judicial
precedent and the interpretation of statutes by courts.
Adversarial System: The US legal system follows an adversarial system, where opposing parties present their cases before
an impartial judge and/or jury, and the judge or jury determines the outcome based on the evidence and arguments
presented.
Federalism: The US legal system operates under a federalist structure, where power is divided between the federal
government and individual state governments. This division of power allows for a dual court system, with federal courts
and state courts having their own jurisdictions.
Written Constitution: The US legal system is guided by a written constitution, which serves as the supreme law of the
land and outlines the powers and limitations of the government.
Jury Trials: The US legal system places a strong emphasis on the use of juries in both criminal and civil cases. Lay persons
serve as jurors and play a crucial role in determining the facts and reaching a verdict.
Legal Education: Legal education in the US typically involves completing an undergraduate degree followed by a Juris
Doctor (J.D.) degree from an accredited law school. This differs from some other legal systems where a law degree is
pursued at the undergraduate level.
These features contribute to the distinctiveness of the US legal system and set it apart from other legal systems around
the world.
How does the use of lay juries in the United States impact the administration of justice?
Representation and Community Participation: Lay juries allow for the participation of ordinary citizens in the legal
process, ensuring that the decision-making body reflects the diversity and perspectives of the community. This promotes
a sense of fairness and legitimacy in the justice system.
Fact-Finding: Lay juries play a crucial role in determining the facts of a case. They listen to the evidence presented by
witnesses and parties, assess credibility, and make determinations based on the facts presented. This fact-finding
function helps ensure a fair and accurate assessment of the case.
Checks and Balances: Lay juries act as a check on the power of judges and prosecutors. They provide an independent
assessment of the evidence and the law, ensuring that the accused receives a fair trial and protecting against potential
biases or errors.
Public Confidence: The use of lay juries enhances public confidence in the justice system. It demonstrates that decisions
are not solely in the hands of legal professionals but are made by a group of peers who represent the community. This
promotes trust and legitimacy in the outcomes of trials.
Community Education: Serving on a jury provides an opportunity for citizens to learn about the legal system, its
processes, and the rights and responsibilities of individuals within it. This civic education fosters a better understanding
of the justice system and promotes informed citizenship.
Overall, the use of lay juries in the United States contributes to a fair and participatory justice system, ensuring that
decisions are made by a diverse group of citizens and promoting public trust and confidence in the administration of
justice.
What is the role of legal education in shaping the development of legal professionals in the United States?
How does the US legal system incorporate interdisciplinary perspectives in the study and practice of law?