The US Legal System - Assignment Example

U.S. Legal System Name Institution Date Question I I agree with this view. United States legal system has three distinctive features. Basically, the constitution of U.S. provides for a state of law, a democracy that forms the foundation of individual rights. The constitution also gives a room to enforce these rights. The United States separation of powers differentiates the government form more convectional parliamentary structures. The constitution has created a powerful federalist system that has a key role within the legal life of United State. Evidently, the role of the U.S Constitution is most visible in the formal legal system. The areas constituted within the constitution include torts and contract, criminal law, basic corporate in addition to partnership law among others. Moreover, there are active debates regarding what federalism stands for and this consists of “laboratory of the states” as well as the fact that it is more suitable to solve problems close home instead of solving them within the national capital. The constitution guarantees all Americans individual rights which include individual property rights and several “negative” rights against the state. Interestingly, the rights do not include positivist rights found in the other constitutions (Brophy, 2006). Essentially, laws established by judges through decisions within particular cases are referred to as the common law. The case-by-case decisions were used repeatedly in comparable case and hence become customary or common to everyone living under the court of law’s authority. The common law utilized within the United States began in England and was compiled within the 18th century. The English common law was assimilated by emigrants and it came from the Old Country to the American colonies. Following the American Revolution, English common law turned out to be the basis for legal processes in United States. Currently, the legal system in United States is founded on the Anglo-American common law. Statutory law, which is the written law that was passed by a legislature, takes precedence over the common law. Nevertheless, most statutes are mostly using common law and judges interpret the laws using common laws. Federal common law is not there since federal government works basing on the written constitution, where citizens pass on power to the government. Nonetheless, judges apply the common law to cases that involve individuals from diverse states when no federal fits a specific case (Horwitz, 2004). The legacy of the common law is very pronounced in several areas within the United States. Noticeably, the common law structure regularly emphasizes the historical development of legal concepts since both students and lawyers do analysis of older cases in order to establish if it is still pertinent to present societal requirements or if incremental change is required. Comparatively, the countries using civil law have higher understanding of the law structure than those using common law structures (Michael, 2005). The third aspect that characterizes the United States legal structure is its participatory nature. Participatory culture implies that people in United States are ready to look for solutions to their own affairs and also answers to their own questions instead of delegating those matters to professionals within the field. For instance, Americans can establish their own schools, write down their restaurant guides, and take part in “on-the-job” training and also decide so many things by themselves. Probably, such experience is characteristic for a nation with a front line history, where the true professionals were needed to do their best (Michael, 2005). The experience of United States within the legal and political field shows the wide-ranging cultural trend to participation. After the Second World War, the law school turned out to be effective field in preparation of lawyers; prior to that, several individuals became lawyers through “reading the law” which implies they worked for a practicing lawyer prior to being admitted to the bar. On the contrary to their civil law contemporaries, several laws within United States have practiced law and also they basically taught in fields they did not have satisfactory skills; they just taught because a law faculty needed a particular course to be taught (Michael, 2002). Government officers normally display a similar background and this is based on their participating within the life of the nation and not entirely in preparing for public office. Most judges have practiced law, either in private practice, as a government lawyer or in another way. Practically, every judge has some political experience. In regard to federal judgeships, most are nominated after taking part in bar association or other public activities, and after this they are supposed to be confirmed by the Senate of United States. Several state judges are elected and therefore very much component of the political procedure (Michael, 2002). Furthermore, the public takes part within both legal and political process. The contribution of the public to the legal system starts with its constitutional foundation. This explains why the constitution of United States starts with the words “We, the People…” likewise; the Tenth Amendment to the United States constitution offers that powers not handed over to the government by the constitution is on the states or on the citizens themselves. Further than this constitutional grant, the citizens take part in both political and legal process in different ways, the most evident being through voting. Nevertheless, public participation goes beyond this. Through written as well as oral communication to officeholders, voters take part in the political process at a level not practiced in most European nations. For instance, in the courts, the public contributes using the jury procedure, the right to which the constitution and state constitutions warrant in numerous cases, both civil and also criminal. Accordingly, many individuals who do not take part in politics work in public office for a time. Still the political party system, takes part as candidates outside the normal circle of party activists come to the forefront probably more regularly that do their equivalents within other nations. In this legal field, as in cultural ones, the United States culture puts emphasis on participation (Michael, 2005). Where Congress endorses a statue that does not agree with the constitution, the Supreme Court has the powers to render the law unconstitutional and therefore declare it void. Particularly, a statute doesn’t ebb routinely just because it has been declared unconstitutional: it is supposed to be deleted through a successive statute. Numerous federal as well as state statutes have stayed on the books for a long time after they were declared unconstitutional. Nevertheless, under the principle of stare decisis, no reasonable lower court will implement an unconstitutional statute, and if a court implements such a statute, the Supreme Court reverses such enforcement. On the other hand, if a court declines to implement a constitutional statute; where such constitutionality has explicitly recognized in former cases, will risk setback by the Supreme Court (Michael, 2002). Judicial opinion is very important and used often in United States and this is what makes common law structures to be extremely significant. Therefore, common law system is a major contributor to the forceful commercial systems within United States. Since common law is there to provide considerably exact guidance on nearly all matters, parties can foretell if a planned action has the likelihood of being lawful or against the law. The ability to foretell gives a lot of freedom to be close to borders of the law. For instance, several saleable contracts are more reasonably resourceful, and generate more affluence since the parties are already aware that the planned arrangement is nearly unquestionably legal. Newspapers, bodies having religious affiliation and financed by taxpayers and also political parties may get reasonably comprehensible guidelines on the borders whereby their freedom of expression rights are applicable (Michael, 2005). Comparatively, in countries that do not use common law, and have jurisdictions with extremely weak reverence for precedent, for instance United States Patent Office, are determined again every time they come up, rendering constancy as well as prediction more complex and also making legal processes far much lengthened than required since parties can’t depend on written laws as consistent guides. For the laws that are not powerfully committed to a big body that acts as the model, parties have less a priori regulation and should regularly have a larger “safety margin” of vacant prospects, and ultimate decisions are arrived at just after the parties have spent a lot of finances on legal issues. This is the reason behind there is standard preference of the law of the State of New York within business agreements. Business contracts constantly comprise of a “choice of law clause” in order to minimize ambiguity (LaPiana, 2006). Owing to record of New York as the country’s business center, New York common law is deeply established in prediction not present within other laws. Likewise, businesses are regularly established under Delaware corporate law and also business agreements allied to corporate law matters comprise of a Delaware choice of law clause, owing to the established law organization within Delaware on these matters. Contrary, some other authorities have adequately established law bodies to ensure that parties do not have bona fide stimulus to opt for the law of a foreign jurisdiction, for instance Wales and the state of California, though not still completely established parties without correlation to the jurisdiction select that regulation. The main idea in every case is that saleable parties look for certainty as well as straightforwardness within their contractual affairs, and often select common law jurisdiction with a strong common law body to get that outcome (Michael, 2002). Equally, when litigating commercial disputes resulting from unpredictable torts, some jurisdictions attract extraordinarily a high number of cases, due to the predictability afforded by the intensity of former determined cases (Michael, 2002). Generally, the constitution of United States, the common law system, in addition to the participatory culture within the U.S are three key aspects that characterize its legal structure and offer rich opportunities for comparing and contrasting other legal structures worldwide (LaPiana, 2006). QUESTION II (B) Court decisions are the source of law in United States legal whereas the civil law system depends on statutes established by the legislature or administrative organizations. As a result, the judges are involved in application of the law but do not create the laws in civil law system. Nonetheless, in common law, both lawyers and judges use a more casuistic approach to legal thinking (Michael, 2005). Judges are responsible for creating a common law system steadily by deciding one case at a time building of law founded on the joint wisdom of other judicial decisions. The different approach can result into judges and lawyers within common law system to handle practical administration of the law while the legal professionals within a civil law system mostly preserve the statutory body as an articulate whole. Moreover, the disparities between the civil and common law systems display themselves through dispute resolution process. Normally, disputes within a common law structure are solved using an adversarial system. The two conflicting parties examine, collect and also present the proof and arguments before a passive fact finder. Practically, judges just arbitrate to promise that the adversaries have equivalent opportunities to present their proof and arguments to the fact finder. Contrary, for the civil law system, judges have more control over the extent and direction of the proceedings. Resolving the disputes turns out to be more inquisitorial than adversarial. The lawyers inquire and make legal arguments and they also gather evidence and present it (American Bar Association, 2005). A senior judge in American legal system tackles special cases for governmental bodies while they are on retirement but they practice part time. Junior judges within American legal are referred to as magistrates even if in federal court of the U.S, they are known as magistrate judges. Magistrates are selected on case-by-case basis. People who are responsible for reporting to executive branch official are known as administrative judges and they make initial determinations about issues like compensation at work, eligibility for government benefits, regulatory issues as well as immigration determinations (American Bar Association, 2005). The judges whose authority is derived from contracts between parties to a disagreement and not a governmental organization are known as arbitrators. In general, they do not get the honorific outlines of address and also they lack the representative trappings of an openly appointed judge. Nonetheless, it currently common for numerous retired judges to hold the position of arbitrators and they regularly write their names just like the judges who are not yet retired (Lawrence, 2006). Unlike several civil nations that have some courts whereby judges panelists with almost equivalent status comprising of both lawfully trained professional judges as well as lay judges who do have legal training and aren’t professional judges, the American legal system clearly differentiates career judges and lay individuals taking part in making rulings on cases of jurors who are a part of a judges. Most judges in United States have professional qualifications as lawyers. The judges who are not lawyers in United States are normally elected and a characteristically either justices of the peace or proletarian judges in jurisdiction courts. A judge who is not a lawyer has similar rights and duties as a lawyer who is a judge having the position and also handled in the same way (American Bar Association, 2005). Lawyers in America have been given a very important role in forming the American government. As a result, lawyers have acted in response through molding the government of America and also laws from the time they are established. Actually, the key author of the declaration of independence, Thomas Jefferson, was a lawyer. The main reason why there is an integrated colonial reaction to British occupation of Boston and therefore the revolutionary war, John Adams, was lawyer. There are also other lawyers who have been actively involved in the development of United States (American Bar Association, 2005). Therefore, it is not supposed to be surprising that the framework of the legal system is evident within the fundamental documents of the revolution and the fundamental documents forming the United States. At present, lawyers are still carrying on this tradition of public service with their influence within the executive branches of the government as well as the state and federal legislatures that formed the legal system in United States. Lawyers who work within the public service are responsible for guiding people and business firms through the legal system of United States. The controlling component of the law in addition to the legal profession have a played a very important role in the society and hence has spawned so much public interest regarding the lawyer’s role (Michael, 2005). The so much loyalty of the lawyers to their clients, to the court or to the administrative bodies before which they practice and generally to the society, offers significant problems of inherent interest to all. Lawyers are so much scrutinized because these important roles of the lawyers and juries have resulted to the criticism and mistrust of lawyers throughout the history. The legal structure within United States has done a lot to be in a position to regulate itself, in order to ensure that distrust does not take place (Lawrence, 2006). Essentially, the role of the lawyer within the United States as follows; a lawyer belongs to the legal fraternity, represents his or her clients, an official of the legal structure and also a public citizen with a special duty of providing excellent justice. As the delegate of his/her clients, the lawyer carries out several functions; as the advisor, the lawyer offers the client with well-versed understanding of the lawful rights and duties the client and also explains their realistic implications. As the advocate, the lawyer tirelessly affirms the position of the client under the rules of challenger system. On the other hand, as the negotiator the lawyer tries to have a beneficial outcome for the client but at the same time remains consistent with the necessities of honest transactions with other people. Still, as an assessor, the lawyer takes action by evaluating the legal affairs of the client and reports undertakings to the client or others. Apart from the representational duties, the lawyer can be a third party neutral whereby he or she is the non-representational figure and has the responsibility of assisting the parties in resolving a dispute or any other issue (Deborah, 2005). Some rules are only applicable to lawyers who serve as third party neutrals. Moreover, there are some regulations that are applicable to attorneys who do not practice law. For instance, a lawyer who commits fraud while doing business is bound to face the law for being involved in dishonesty, fraud, or misrepresentation. Also as an American citizen, a lawyer is supposed to try to improve the law, improve access the legal structure, improve justice administration and also improve the quality of services provided by the legal fraternity. A lawyer is supposed to seek further knowledge about the law for the sake of the clients, use that knowledge in changing and reforming the law and also work to reinforce legal education. Moreover, the lawyer is supposed to educate the public and instill confidence regarding the rule of the law as well as justice system since legal institutions within a constitutional democracy is dependent on accepted taking part and support to sustain their authority (American Bar Association, 2005). A lawyer is also supposed to care about the weaknesses in justice administration and also should acknowledge that the poor and at times people who aren’t poor can’t afford enough legal aid. Consequently, all lawyers ought to dedicate their professional time in addition to resources and make use of civic pressure to make sure that there is equality for everyone to access justice even for those facing both financial and social barriers because they can’t pay for or secure enough legal counsel. The lawyer assists the legal line of work in practicing its functions and also helps the bar to control itself within the public interest (Lawrence, 2006). Furthermore, lawyers have a significant duty of preserving the society. The attainment of this duty necessitates an understanding by lawyers of their association to the United States’ legal structure. The regulations of professional conduct, when suitably applied define that rapport. These principles show not just the need of enthusiastic representation for clients within the adversarial common law system of U.S and also the need of the lawyer to have integrity. If these elements and characteristics lack among lawyers, the legal system of United States would function almost as effectively as the current one does (Horwitz, 2004). The reason why there are so many lawyers in United States is because legal services are so competitive. Lawyers as well as their firms have become very competitive. What’s more, non-lawyers of late have turned out to be increasingly more competitive with lawyers, as more non-lawyers bodies have gotten into the legal service market and also the number of non-lawyer services has risen enormously. In 19th century, so many people who were not formally trained in law assisted other with legal issues within the courts. Close to 20th century, the American Bar Association embarked on making lawyers professions with the notion that this would increase status and in turn make more fees. To achieve this, the Association formed a code of ethics and asked states to seek minimum educational requirements and get a professional bar examination for everyone who wanted to be a lawyer ((Michael, 2002). By late 1920s, most states had complied and too make law school more productive, more was required to enhance the professional image of the lawyers. After 1929 stock market crash, lawyers faced tough times and as a result the ABA started pushing for monopoly among lawyers. But regrettably, instead of defining law practice in understandable languages to everyone, ABA regulations gave all lawyers the power to implement lawyer monopoly through case-by-case base. Obviously, this did not go well with non-lawyer practitioners since they could not practice law (James, 2002). As the great depression worsened, lawyers who faced declining legal business compelled criminal prosecutors as well as state judicial authorities to go to court to completely do away with lawyer practitioners. Judges who were more interested in supporting their professional colleagues outlawed non lawyers from tackling all issues, regarding the activities they had done for a very long time, comprising of real estate closing, offering tax advice and also bargaining insurance settlements. By the time the Second World War started, the lawyers had fruitfully established a legal monopoly that would remain steadily and advantageously within their league for a long time and as a result reforming legal arena turned to be very complex (Gary, 2003). The civil justice system makes use of a court appointed lawyer to collect the information from all parties and also witnesses and such a lawyer cannot get attached to any side of the case. The lawyer who collects information does not have an axe to drudge in the result. Such a lawyer utilizes his judgment and leaves redundant thwarting details out of the public record at trial and the lawyer has no interest in making use of the threat of extra lawsuits to get the preferred outcome. Because the lawyers appointed by the courts are more privileged in terms of reputation and also enjoy discretion, witnesses are always willing to give their true and valid testimonies (American Bar Association, 2005). The forgoing system presents a great deal for rationalizing American civil justice system. There are several barriers that hinder implementation of such approach and the biggest one being the legal profession which is deeply engrained in traditional procedure and deep cynicism for change within the process. There is monopoly among lawyers and a more effective and more precise legal system would try to lower the billable hours within a lawsuit as this would make ultimate arbitration of cases more available to average citizens who are currently to reduce the high cost of proceedings involved in the process (Holmes, 2004). Even if clients have discovered numerous safe ways to obtain high quality legal information at favorable prices, lawyer affiliations like the ABA are still for the idea that it’s only who are supposed to offer Americans with legal information and services. For example, some few years ago, a committee of lawyers which was being supported by the Texas Supreme Court attempted and failed to outlaw self-help law products printed by Nolo and others from Texas bookstores and also libraries. Currently, the ABA is trying to outshine even this tremendous anti-competitive effort by trying to re-impose its professional monopoly. Owing to their big numbers after a time lawyer impact becomes a subtle thing. In United States at present, there are very many lawyers and this can also be attributed to subsidized law schools where a very high number of lawyers graduate every year (Posner, 2005). References Brophy, L. (2006). Reason and Sentiment: The Moral Worlds and Modes of analysis of Antebellum Jurists." Boston University Law Review, Vol. 1/79:1161–1213. Holmes, O. (2004). The Path of the Law." Harvard Law Review. Vol. 2/ 10:457–478. Horwitz, J. (2004). The Transformation of American Law, 1780– 1860. New York: Oxford University Press. Karsten, P. 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