johns fmt 4/19/02 3:27 PM Page i The United States Legal System

Transcription

1 johns fmt 4/19/02 3:27 PM Page i The United States Legal System

2 johns fmt 4/19/02 3:27 PM Page ii

3 johns fmt 4/19/02 3:27 PM Page iii The United States Legal System an introduction Margaret Z. Johns Rex R. Perschbacher Carolina Academic Press Durham, North Carolina

4 johns fmt 4/19/02 3:27 PM Page iv Copyright 2002 Margaret Z. Johns and Rex R. Perschbacher All Rights Reserved ISBN LCCN Carolina Academic Press 700 Kent Street Durham, North Carolina Phone (919) Fax (919) Printed in the United States of America

5 johns fmt 4/19/02 3:27 PM Page v Contents Acknowledgments chapter 1 Introduction to United States Legal Education The History of Legal Education The Apprenticeship System The Academic Model The Nature of Legal Education Langdell s Harvard Model Practical Professional Training Legal Education Today Discussion Questions 22 chapter 2 Introduction to the United States Legal Profession The Regulation of Lawyers The Number of Lawyers The Gender and Racial Diversity of the Bar Gender Diversity Racial Diversity The Settings in which Lawyers Practice Historical Overview Sole Practitioners and Small Firms Middle-Sized and Large Firms (a) Middle-Sized Firms (b) Large Firms In-House Counsel Lawyers for the Government (a) Lawyers in the Judiciary (b) Lawyers for Local Governments (c) Lawyers for State Governments (d) Lawyers for the Federal Government Public Interest Lawyers (a) The Historical Antecedents (b) Lawyers for the Poor (c) Advocates for Group Legal Rights 58 chapter 3 I n trodu cti on to the United States Legal Sys tem Multiple Sovereignties 62 viii v

6 johns fmt 4/19/02 3:27 PM Page vi vi contents Federalism Substantive Law Areas of the Multiple Sovereigns The Federal Government United States Constitution The Three Branches of Government (a) The Legislative Branch (b) The Executive Branch (c) The Judicial Branch (c)(i) Court Structure 69 Trial Courts 69 Appellate Courts 71 Supreme Court (c)(ii) Federal Jurisdiction (c)(iii) Judicial Review (d) Separation of Powers The State Governments State Court Structure 83 Trial Courts 83 Intermediate appellate courts 85 Supreme courts Parallels and Contrasts to the Federal System Areas of State Law Continuing Evolution of the Common Law Two Features of the United States Judicial Process The Doctrine of Stare Decisis The Merger of Law and Equity The Overlap and Complexities Discussion Questions 102 chapter 4 Introduction to Statutes and Statutory Interpretation Approaches to Statutory Interpretation The Literal Rule The Golden Rule The Social Purpose Approach Canons of Construction Plain Meaning 108 United States v. Locke 108 Dissent to United States v. Locke Ejusdem Generis ( Of the Same Kind ) 116

7 johns fmt 4/19/02 3:27 PM Page vii contents vii Noscitur a Sociis ( It Is Known by Its Companions ) Expressio Unius ( The Mention of One Thing Excludes Other Things ) Narrow Construction of Penal Statutes Broad Construction of Remedial Statutes Specific Statutes Take Precedence Over General Statutes 118 Strawberry v. Albright Dueling Canons Legislative Intent The Legislative Process Legislative History 121 Wisconsin Public Intervenor v. Mortier 123 Concurring Opinion in Wisconsin Public Intervenor v. Mortier The Retroactivity Problem 137 Martin v. Hadix 140 chapter 5 Introduction to Cases and Case Analysis Reading Cases Evolution of the Common Law 154 Applebaum v. Kidwell 154 Isaacs v. Huntington Memorial Hospital Stare Decisis 163 Ann M. v. Pacific Plaza Shopping Center Continuing Evolution of the Common Law 177 Rosenbaum v. Security Pacific Corporation The Retroactivity Problem 186 Douglas v. Ostermeier 189 chapter 6 Putting It All Together Romero Facts Romero Procedure Romero Issue Separation of Powers Analysis Statutory Construction of the Three Strikes Law Retroactivity of the Romero Decision Disposition of Romero 220 Glossary 225 Index 231

8 johns fmt 4/19/02 3:27 PM Page viii Acknowledgments Many people contributed to this book in many ways. While space does not permit me to thank them each individually, a few deserve special mention. I wish to acknowledge and thank my research assistants, David Gross, Mike Reitzell, and Carrie Rosenbaum for their hard work and invaluable suggestions. Thanks to Tim Colton at Carolina Academic Press for his help on the manuscript. I m also grateful to my colleagues, friends, and family for their encouragement and support, especially Frank, Bob, and Hope. I m grateful to the UC Davis School of Law for its commitment to the Introduction to Law course and its support of this project. It was a great pleasure to work with Rex in developing these materials and teaching this course. Finally, I wish to thank our first-year students who have made teaching Introduction to Law a surprising, exciting, and altogether wonderful experience. Margaret Z. Johns I wish to thank Margaret and the wonderful students at King Hall. Rex R. Perschbacher viii