The Common Law in the US - Article Example

Comparative Legal System Do you think that the common law in the US differs greatly from that of England and Wales' If, so how' What are the reasons for this' Common law in the US does not differ greatly from that of England and Wales. This is because common law in the United States is still influenced by English law (which is a formal art term which describes the law that is in force in England and Wales), as it provides the basis for numerous legal traditions and policies in the US. English law is regarded as a common law rather than a civil law system (i.e. there has been no major codification of the law, and judicial precedents are binding as opposed to persuasive). Although devolution has accorded some degree of autonomy to Wales politically, it still doesn't have and sovereign powers of law-making, thus the legal system administered through criminal and both civil courts remains unified. During the early centuries, the judges and justices were responsible for adapting the Writ system to meet everyday needs, and the application of a mixture of common sense and precedent in order to create a body of internally consistent law. For example, the Law Merchant began in the Pie-Powder Courts (a corruption of the French "pieds-poudr's" or "dusty feet", meaning ad hoc marketplace courts). "As Parliament developed in strength, and subject to the doctrine of separation of powers, legislation gradually overtook judicial law making so that, today, judges are only able to innovate in certain very narrowly defined areas. Time before 1189 was defined in 1276 as being time immemorial." (English law English law. http://en.wikipedia.org/wiki/English_law) According to Mary Ann Glendon, "Reception of a legal system depends upon the fusion of the local culture with that of the settling nation ... Where a cultural assimilation has occurred, the English common law has shown remarkable capacity for adaptation." (Mary Ann Glendon et al 1999) During the British Empire, Britain exported its legal system to various countries in the Commonwealth of Nations, including the United States, and many aspects of the British legal system have persisted since the withdrawal of the British. English law before the Independence Wars still has an influence on the law in the United States, and English law provides the basis for some American policies and legal traditions. Many states that were formerly subject to English law (such as Australia) continue to recognise a link to English law - subject, of course, to statutory modification and judicial revision to match the law to local conditions - and decisions from the English law reports continue to be cited from time to time as persuasive authority in present day judicial opinions. For a few states, the British Privy Council remains the ultimate court of appeal (English_law http://www.smso.net/English_law) Similarly, because the UK remains a strong international trading nation, "international consistency of decision making is of vital importance, so the Admiralty is strongly influenced by Public International Law and the modern commercial treaties and conventions regulating shipping" (http://www.nationmaster.com/encyclopedia/English-law) As former colonists of Great Britain, the Founding Fathers of the United States tended to adopt much of the British legal system. The United States, Great Britain and Wales all have a law that is made by courts (common law) rather than laws handed down by a monarch or some other central governmental authority such as a legislature. The jury, a panel of ordinary citizens chosen to decide a case, is an integral part of our common-law system. Use of juries to decide cases, is a distinguishing feature of the American legal system. Few other countries in the world use juries as we do in the United States. Over the centuries, many people have believed that juries in most cases reach a fairer and more just result than would be obtained using a judge alone, as many countries do. Because a jury decides cases after "deliberations," or discussions, among a group of people, the jury's decision is likely to have the input from many different people from different backgrounds, who must decide as a group what is right (Mary Ann Glendon et al,1999) In the United States, Great Britain and Wales alike, Juries that decide disputes among private citizens are used in civil cases, and for deciding criminal cases that have been brought by the government alleging that an individual or a particular group of individuals have committed crimes. Juries are selected from the citizenry in the U.S and then they receive summons, and are required to appear for jury selection by court order. "Panels," or consisting of set numbers, of jurors are called for each case requiring a jury. The judge assigned to the case oversees the jury selection for the case. In some states, prospective jurors are questioned by the judge; in others, the jurors are questioned by the lawyers who would be representing the disputing parties, under rules dictated by state law. In the United States, and Great Britain, the Parties to a Civil Trial include the: Plaintiff. The plaintiff is the person who begins the suit. In the complaint, the plaintiff states, or alleges, that he or she was injured by the conduct of another. The plaintiff usually is represented by a lawyer. Defendant. The defendant is the individual sued by the plaintiff. The defendant usually is also represented by a lawyer. The defendant disputes the statements, or allegations, in the plaintiff's complaint or may admit the allegations, but argue that he or she has a valid defense to the claims such as self defense. The Judge. The judge decides which disputed facts (evidence), may be presented to the jury. The judge also tells the jury in "jury instructions" what the applicable law is. The judge decides the issues of law (see the glossary) in the case. The Jury. The jury is a group of ordinary citizens selected to decide the case. A jury usually is made up of a group of six or twelve individuals, depending on state law. In most states, a jury must reach a unanimous verdict. That is, all members of the jury must agree with the decision. Some states allow for less than a unanimous verdict in some civil cases. If less than the required number of jurors agree, then the jury is a "hung jury." That means that the jury was unable to reach a decision. In that case, the case can be tried again. Witnesses. Witnesses must have specific knowledge of what happened. Witnesses are generally not allowed to present hearsay testimony (such as gossip). Expert witnesses may not know the specific facts in the case but may use their specialized knowledge to help the jury understand complex evidence, such as the degree of intoxication that results from drinking certain amounts of liquor. The Bailiff. The bailiff is a court officer charged with keeping order in the court and helping the jury. A bailiff also may oversee custody of prisoners while in court during criminal cases. (http://www.jura.uniduesseldorf.de/aal/AAR/SoSe04/einf_text6.pdf) One of the main problems during the early centuries was the challenge to produce a system that had operational certainty and predictability. The highest appellate court in the United Kingdom is the House of Lords. The House of Lords has judicial members called Lords of Appeal or Law Lords. The decisions of the House of Lords are binding on every other court in the hierarchy, and the courts have an obligation to apply the rulings of the House of Lords as the law of the land. In the United States, and in Great Britain, the lower courts are bound by the Court of Appeal. Also, since joining the European Union, European Union Law has direct effect in Great Britain, and any decisions reached by the European Court of Justice also bind the courts in Britain. In Britain, the House of Lords, in addition to having a legislative function has a judicial function as a court of last resort within the United Kingdom. Her Majesty's Court of Appeal is the second most senior court in the English legal system (with only the judges of the House of Lords above it) The European Union is unique among international organizations in having a complex and highly developed system of internal law which has direct effect within the legal systems of its member states (http://www.jura.uniduesseldorf.de/aal/AAR/SoSe04/einf_text6.pdf) Another reason for the Similarity between the common law in the US and that of England and Wales, is that the UK remains a strong international trading nation, and since international decision making is of vital importance, modern commercial treaties and Public International Law have a strong influence on the Admiralty. Is it desirable for Alternative Dispute Resolution (ADR) to have an increased role in the English Civil Justice system' Why would this be an advantage or a disadvantage' Discuss providing examples for your answer. Increasing the role of Alternative Dispute Resolution (ADR) in the English Civil Justice system would be advantageous because it is better for claimants and their advisers to opt for alternative dispute resolution in appropriate cases. It is also in line with the policy of the Government which encourages potential litigants to avoid the use of the litigation process as much as possible. The Times Law report on Tuesday 8thJanuary 2002 covered the case of Cowl and Others v.Plymouth City Council. The Appeal Court was considering an appeal against the High Court's decision to reject an application for Judicial Review to quash a decision by the City Council to close a residential care home. A significant factor in the appeal being dismissed was the applicants' failure to take up an offer of use of a statutory complaints procedure, or to consider other methods of Alternative Dispute Resolution. The Appeal Court made the point that insufficient attention was paid to the paramount importance of avoiding litigation wherever possible (English law English law. http://en.wikipedia.org/wiki/English_law) Lord Woolf also suggested that in some cases, courts may have to hold hearings at which various disputing parties can talk about the steps that they have taken to ensure dispute resolution without having to involve the court, especially when both sides are acutely aware of the advantages of using alternative dispute resolution processes. Alternative dispute resolution processes can enable disputes to be resolved in a way that would give satisfaction to the disputing parties and the general public, thereby saving time, unnecessary expenses and undue stress Nowadays, it is important to have a good knowledge of Alternative Dispute Resolution, in order to make sure that any failure to adopt it is indefensible, especially in situations involving public funds. Although these comments were made in the context of judicial review cases, it will be interesting to see whether they are taken up by the courts in cases generally. Court of Appeal Cowl and Others v. Plymouth City Council Before Lord Woolf, Lord Chief Justice, Lord Justice Mummery, and Lord Justice Buxton Judgement December 14th2001 Times Law Reports January 8th2002 Most DISPUTE RESOLUTION services are not designed for resolution of disputes between businesses and consumers (B2C) Most of the DISPUTE RESOLUTION services that are available to consumers are oftentimes disproportionately expensive for a typical retail transaction. Also, a lot of DISPUTE RESOLUTION providers do not provide sufficient evidence about the impartiality of their dispute resolution scheme, or of the outcome of the cases. "Alternative dispute resolution has greatly expanded over the last several years to include many areas in addition to the traditional commercial dispute; mediation has become an important first step in the process." (http://www.weblaw.edu.au/display_resource.phtml'rid=217) Most Dispute Resolution services also fail to give adequate incentives for compliance with DISPUTE RESOLUTION results even though most DISPUTE RESOLUTION providers can be found easily online by simply searching the web, and most of them clearly provide information about their services. Therefore there is a need to promote an early settlement culture, by way of educating the public, legal advisors, court staff, members of the legal profession, and also the judiciary. There should be appropriate funding for the mediation process and the regulation and training of mediators. Alternative dispute resolution (ADR) processes represent many processes through which potential litigants can resolve their disputes. A lot of disputes involve people that have known one other for some time, for example, co-workers, neighbors, relatives, or friends. It is also possible to refer selected felonies to mediation or dispute resolution centers with court approval, and the peoples consent. However, in cases involving child abuse, domestic violence, or other complex and serious issues, Mediation is not an option. All through the UK new mediation schemes are being set up to deal with disputes between parents and Local Education Authorities about provision for children with special educational needs (SEN). One such scheme has been set up by Enquire, the national advice service for special educational needs in Scotland. The service has been taking referrals since May 2001. Five local authorities are taking part in the pilot: Argyll and Bute, Stirling, Glasgow, EastDunbartonshire and South Lanarkshire. (http://www.asauk.org.uk/fileLibrary/pdf/adrup4.pdf) It is desirable for Alternative Dispute Resolution (ADR) to have an increased role in the English Civil Justice system because of the need to consider Alternative Dispute Resolution processes before entering the judicial process. Recently, a judgement handed down by the Court of Appeal laid emphasis on the need for claimants and their advisers to take alternative dispute resolution into consideration whenever appropriate. In the case of Cowl and Others v.Plymouth City Council, as covered by The Times Law report on Tuesday January 8, 2002, where The Appeal Court had to consider an appeal against a High Court decision to turn down an application for Judicial Review to quash a City Council decision to close down a residential care home. A significant factor in the appeal being dismissed was the applicants' failure to take up an offer of use of a statutory complaints procedure, or to consider other methods of Alternative Dispute Resolution. The Appeal Court made the point that insufficient attention was paid to the paramount importance of avoiding litigation wherever possible. Lord Woolf suggested that in similar cases, courts might need to hold inter-parties hearings "at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the court". "Particularly in the case of such disputes, both sides must by now be acutely conscious of the contribution alternative dispute resolution could make to resolving disputes in a manner that both met the needs of the parties and the public, and saved time, expense and stress (Dicey & Morris 1993) Today, there is sufficient knowledge about Alternative Dispute Resolution processes to ensure that failure to adopt Alternative Dispute Resolution processes is inexcusable. Promoting a culture of early settlement by educating the general public and legal advisors would be an advantage, and would help to increase the role of Alternative Dispute Resolution (ADR) in the English Civil Justice system. Recently, Anthony Glaister, a CEDR mediator published a report of a survey of trends in mediation. The survey focused on the year 2000, and included some interesting findings. According to that survey, Mediations in the area increased by 35% from the first to the second half of the year (from 90 to 124) which was broadly in line with national trends towards increased use of mediation in commercial disputes Most mediators were appointed by request by both parties to a commercial mediation scheme such as CEDR or the ADR Group 80% of the mediators appointed as a result of these agreements between the parties were lawyers. Out of the 214 mediations monitored, 142 stemmed from existing litigation (http://www.asauk.org.uk/fileLibrary/pdf/adrup4.pdf.) Alternative dispute resolution processes like mediation also aim to resolve disputes about issues concerning school placement, exclusion from school, providing for children that have special educational needs, provision of respite care and transportation, and as with any mediation, participation is voluntary, with all information disclosed during mediation held as confidential. Using Alternative Dispute Resolution also saves Time: A dispute often can be settled or decided much sooner with ADR; often in a matter of months, even weeks, but bringing a lawsuit to trial on the other hand, can take a year or more. Using Alternative Dispute Resolution also saves Money: When cases are resolved earlier through ADR, the parties may save some of the money they would have spent on attorney fees, court costs, and experts' fees. Alternative Dispute Resolution can also increase control over the Process and the Outcome. In ADR, parties typically play a greater role in shaping both the process and its outcome. In most ADR processes, parties have more opportunity to tell their side of the story than they do at trial. Some ADR processes, such as mediation, allow the parties to fashion creative resolutions that are not available in a trial. Other ADR processes, such as arbitration, allow the parties to choose an expert in a particular field to decide the dispute (Dicey & Morris 1993) It is desirable for Alternative Dispute Resolution (ADR) to have an increased role in the English Civil Justice system because they help in alleviating some of the pressure on the court system. "In Alternative Dispute Resolution (ADR), the informal dispute resolution process, each involved party mutually agrees to meet with a professional third party to constructively and efficiently resolve their dispute rather than go to court"(English law). Through ADR, the parties are encouraged to engage in negotiations that promptly lead to the resolution of their dispute. References Mary Ann Glendon et al,(1999) Comparative Legal Traditions Beale, Joseph H. A Treatise on the Conflict of Laws Dicey & Morris (1993) The Conflict of Laws 12th edition English law (retrieved from http://www.nationmaster.com/encyclopedia/English-law) English law - Wikipedia, the free encyclopedia(http://en.wikipedia.org/wiki/English_law) English law (http://www.smso.net/English_law) http://www.academy-experts.org/mediaadr.htm http://www.adrgroup.co.uk/voice/Mediation%20an%20employers%20guide.html http://www.asauk.org.uk/fileLibrary/pdf/adrup4.pdf http://www.jura.uniduesseldorf.de/aal/AAR/SoSe04/einf_text6.pdf Read More