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INTRODUCTION TO AMERICAN LAW (LAW5HAL). LA TROBE UNIVERSITY SCHOOL OF LAW: Global Business Law Professor Thomas Lundmark 10-12, 15-16 February 2010. Wednesday, 10 February 2010 morning session: historical background

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Professor Thomas Lundmark

10-12, 15-16 February 2010

Wednesday, 10 February 2010

morning session: historical background

reading assignment: Farnsworth pp. 1-13, Lundmark pp. 5-15, 53-55, 74-77

afternoon session: legal training

reading assignment: Farnsworth pp. 15-35

Thursday, 11 February 2010

morning session: legal profession

reading assignment: Farnsworth pp. 23-35

afternoon session: judicial systems

reading assignment: Farnsworth pp. 37-45, Lundmark pp. 74-81, 85-86, 90-91

Friday, 12 February 2010

morning session: legislation

reading assignment: Farnsworth pp. 61-81, Lundmark pp. 93-101, 105-106

afternoon session: case law

reading assignment: Farnsworth pp. 47-60

Monday, 15 February 2010

morning session: civil procedure

reading assignment: Farnsworth pp. 99-110, 115-117

afternoon session: constitutional rights

reading assignment: Farnsworth pp. 147-155, Lundmark pp. 109-120

Tuesday, 16 February 2010

morning session: fundamental rights reading assignment: Lundmark pp. 160-168

afternoon session: equal protection

readingassignment: Lundmark pp. 169-175, 179, 184-200

common law lawyers lecture topics
Common (Law) Lawyerslecture topics

history of the profession

training of lawyers in the US

dress (wigs, gowns, morning coats)

duty of candor

henry i 1068 1135
Henry I (1068-1135)

extended jurisdiction of royal courts

sent (French-speaking) members of the small council as judges on circuit

who applied universal, i.e., ‘common’ law, lex communis in Latin, commune lei in Norman-French

to gain favour with Saxons, Henry married daughter of Malcolm III of Scotland and his Saxon wife

bifurcated or split profession
bifurcated or "split" profession

United Kingdom (barrister/solicitor)

- (Scotland advocate/solicitor)


New Zealand

Australia (partly)

fused profession
fused profession

United States


Australia (mostly)

ranulf de glanvil 1190
Ranulf de Glanvil (? - 1190)

Commissioned Treatise on the Laws and Customs of the Kingdom of England

first serious book on the common law

influenced by Roman law, but English in substance

standard textbook of English law until Bracton’s treatise

1155 1187

ruling class speak French

establishment of primogeniture meant younger sons would mingle with the non-aristocratic, native population

1167 Henry II banned English students from attending University of Paris

1187 Oxford University founded

henry de bracton c 1210 1268
Henry de Bracton, c. 1210-1268

built on work of others

rational systematization of entire English law

examples from cases

largely in terms of the ius commune, a combination of Roman and canon law taught at universities

the year books
The Year Books

unofficial, verbatim reports of legal proceedings

over 20,000 cases recorded

1268 to 1535

in French, the language of the courts

1270 most of the new French vocabulary had been settled

inns of court under the edwards 1274 1377
inns of court under the Edwards (1274-1377)

lodging and meals


instruction, including language

Thomas More (later, of course) and others lecturers

"third university"

instruction in english law
instruction in English law

Lincoln's Inn, Gray's Inn, the Inner Temple, and the Middle Temple

The Temple was originally the English seat of the Knights Templars

date from before the 14th c.

educated as qualified apprentices (barristers) and were then allowed to practice law

After successful apprenticeship one might be conferred with the degree Sergeant-at-Law and no longer be an apprentice

mid 14th century
mid 14th century

1348-50 Black Death kills 1/3 to ½ of population, reducing population to < 3 million

1356 the "opening" of Parliament was conducted in English instead of French

1385 English taught in the grammar schools in place of French

English replaces Latin at schools, but not at Oxford and Cambridge

1362 Statute of Pleading: all cases in court should be pleaded, showed, defended, answered, debated and judged in the English tongue

legal French began steady decline

18th century
18th century

1704 Newton publishes "Opticks" in English

1750 population of England estimated at 5.8 million

1770 population of England estimated at 6.4 million

1770 Cook discovers Australia

1776 start of American revolution

1788 British penal colony established in Australia

1789 start of French Revolution

throughout the 18th century about one fifth of the population were likely to be paupers

common law lawyers lecture topics23
Common (Law) Lawyerslecture topics

history of the profession

training of lawyers in the US

dress (wigs, gowns, morning coats)

duty of candor

law school rankings
law school rankings

U.S. News and World Reports



average GPAs and LSATs

bar-passage rate

job placement upon graduation

law school admissions
law school admissions

undergraduate major and grade point average (GPA)

Law School Aptitude Test (LSAT)



'diversity‘ is constitutional


Percentage of the population ages 25 to 64 that has completed at least a first university degree, by age group and country: 1999 SOURCE: Organization for Economic Cooperation and Development, Education at a Glance, 2001, table A 2.2b.

women and minorities in law school
women and minorities in law school

women 47% of law students

minorities 22%

arabella mansfield 1846 1911
Arabella Mansfield (1846 –1911)
  • 1869 admitted to practice law in Iowa
  • Considered first woman lawyer in US
  • 1870 census recorded five female lawyers
  • 1900 census records 1,010
lutie a lytle 1871 1950
Lutie A Lytle (1871-1950?)
  • 1898 First female law professor
  • Also first African-American
  • Central Tennessee College of Law
  • Same year Ellen Spencer Mussey and Emma Gillett founded co-ed Washington college of Law in DC (now American U)
myra bradwell 1831 1894
Myra Bradwell (1831 - 1894)
  • 1855 apprenticed under her husband's supervision
  • 1869 passed bar exam in Illinois
  • Denied admission to practice and lost litigation
  • 1872 Illinois statute: “No person shall be precluded or debarred from any occupation, profession, or employment (except the military) on account of gender.“
  • 1890 admitted Illinois
  • 1892 admitted USSCt
  • Bradwell’s daughter also became a lawyer
barbara nachtrieb armstrong 1890 1976
Barbara Nachtrieb Armstrong (1890-1976)
  • 1913 graduated from UC Berkeley
  • 1915 Berkeley Law School
  • 1915-1919 practiced law in San Francisco
  • 1919 appointed first woman professor at a major US law school
  • 1921 PhD economics
christopher columbus langdell
Christopher Columbus Langdell
  • Introduced the case method in 1890
  • previous instruction had used treaties
    • Blackstone's Commentaries on the Laws of England
    • Commentaries on the Constitution of the US
    • Commentaries on American Law
  • “conceptualist” criticized as a “formalist”
law school curriculum
law school curriculum

undergraduate degree usually prerequisite

6 semesters

first two semesters usually prescribed, e.g.




civil procedure

criminal law

confers degree of Juris Doctor (JD)

law school practice oriented aspects
law school: practice-oriented aspects

moot court

legal writing classes

legal clinics

law review

summer clerkships

cost of legal education 2008
cost of legal education 2008

median annual tuition fees at private law schools $33,985

median annual at public law schools

for in-state residents $15,621

for out-of-state residents $26,436

Scandal at Berkeley for admitting so few Californians

need or merit based grants
need or merit-based grants

public law schools 21%

private 17%

average amount borrowed
average amount borrowed

public $71,436

private $91,506

job prospects
job prospects

90% find jobs within 6 months

74% in positions requiring admission to practice

8% in positions where JD was preferred

law school rankings44
law school rankings

admissions criteria

LSAT – law school apptitude test

GPA – grade point average

reputation in the profession

library, prof/stud ratio, etc.

bar-passage rate

federal court practice
federal court practice

no federal bar

must be sworn in by a federal judge to each federal court

bar examinations
bar examinations

multi-state (all but two states)

essay questions

multi-state professional responsibility examination (all but three states)

multi-state performance test

draft memorandums, write closing argument, summarize deposition, etc.

required in 21 states

bar passage rates 2008
bar passage rates 2008

Puerto Rico 44%

California 54%

New York 69%

average 71%

Montana 91%

The Committee of Bar Examiners of The State Bar of CaliforniaGENERAL BAR EXAMINATION PASS RATE SUMMARY

Date of Examination Total % Passed

2005 July 48.8

2005 February 40.0

2004 July 48.2

2004 February 35.3

2003 July 49.4

2003 February 37.3

2002 July 50.5

2002 February 33.4

2001 July 56.9

2001 February 37.3

2000 July 55.3

2000 February 40.0

1999 July 51.2

1999 February 41.1

1998 July 52.5

1998 February 40.0

1997 July 62.9

1997 February 48.8

even top lawyers fail california exam the wall street journal december 5 2005
Even Top Lawyers Fail California Exam, THE WALL STREET JOURNAL December 5, 2005

Kathleen Sullivan is a noted constitutional scholar who has argued cases before the Supreme Court. Until recently, she was dean of Stanford Law School. In legal circles, she has been talked about as a potential Democratic nominee for the Supreme Court. But Ms. Sullivan recently became the latest prominent victim of California's notoriously difficult bar exam. Last month, the state sent out the results of its July test to 8,343 aspiring and already-practicing lawyers. More than half failed -- including Ms. Sullivan.

Although she is licensed to practice law in New York and Massachusetts, Ms. Sullivan was taking the California exam for the first time after joining a Los Angeles-based firm as an appellate specialist.

But it's unusual for the exam to claim a top-notch constitutional lawyer at the peak of her game. "She is a rock star," says William Urquhart, who last year recruited Ms. Sullivan to join his firm, Quinn Emanuel Urquhart Oliver & Hedges LLP. "Practically every lawyer in the U.S. knows who Kathleen Sullivan is." If anyone should have passed, Mr. Urquhart says, it is Ms. Sullivan. "The problem is not with Kathleen Sullivan, it is with the person who drafted the exam or the person who graded it."

  • founded in 1878
  • campaign to establish uniform, minimal standards for law schools
  • until second half of 19th century, law schools were not parts of universities
  • presently 200 are approved
  • in 30 states only graduates of ABA approved law schools may take their bar examinations
aba accreditation criteria
ABA accreditation criteria

Organization and administration

Program of legal education, including professional skills and clinics


Admissions and student services

Library and information resources


reading law in the us
"reading law" in the US

law office or apprentice program

California, New York, Washington, Virginia, Vermont, Alaska, Maine, and Wyoming

robert houghwout jackson 1892 1954
Robert Houghwout Jackson (1892 - 1954)
  • Attorney General under FDR
  • prosecutor at the Nuremburg trials
  • US Supreme Court Justice
  • attended second year of two-year law school
  • entered the legal profession at 21 by "reading the law“
advanced degrees
advanced degrees

only 2% of JD graduates enroll in such programs in order to

- specialize in e.g. taxation, corporate finance, or intellectual property or

- 'up-grade' their degree

only 50 JSD degrees annually

llm programs
LLM programs

vast majority of students are foreign lawyers

10 states allow foreign LLM graduates to take their bar examination

common law lawyers lecture topics57
Common (Law) Lawyerslecture topics

history of the profession

training of lawyers in the US

dress (wigs, gowns, morning coats)

duty of candor

lawyers dress
lawyers' dress

wearing of wigs from 1680s

mixed usage in Australia (e.g. not in the federal courts)

Canada: no wigs, but gowns

silk for queen's counsel in England and Wales

Solicitor General of the United States

lawyers dress59
Cherie Booth QC

wearing ceremonial robes and full-bottomed wig as Queen's Counsel at the Bar of England and Wales.

lawyers' dress
lawyers dress61

B.C. Barrister & SolicitorWashington State Attorney & Counselor-at-Law

lawyers' dress
lawyers dress62
Carl E. Person

LLB Harvard Law School 1962

NY bar admission 1962

lawyers' dress
common law lawyers lecture topics63
Common (Law) Lawyerslecture topics

history of the profession

training of lawyers in the US

dress (wigs, gowns, morning coats)

duty of candor

california business and professions code 6068
California Business andProfessions Code §6068

It is the duty of an attorney to do all of the following:

(a) To support the Constitution and laws of the United States and of this state.

(b) To maintain the respect due to the courts of justice and judicial officers.

(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.

(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

california rules of professional conduct rule 5 200
California Rules of Professional Conduct, Rule 5-200

In presenting a matter to a tribunal, a member:

(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;

(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;

(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and

(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.

california penal code 127
California Penal Code §127

Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.

federal rules of civil procedure
Federal Rules of Civil Procedure

Rule 11(b):

By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

precision specialty metals v united states 315 f 3d 1346 5th cir 200370
"In an unpublished opinion, the Court of International Trade formally reprimanded the appellant Mikki Graves Walser, a Department of Justice attorney, for misquoting and failing to quote fully from two judicial opinions"

Rule 11: "By presenting to the court … a … written motion, or other paper, an attorney … is certifying that to the best of the person’s knowledge, information, and belief, formed after any inquiry reasonable under the circumstances, … the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law"

"The effect of her doctored quotations was to make it appear that the weight of judicial authority was that 'forthwith' means 'a time reasonable under the circumstances.'” 

"She violated Rule 11 because, in quoting from and citing published opinions, she distorted what the opinions stated by leaving out significant portions of the citations or cropping one of them, and failed to show that she and not the court has supplied the emphasis in one of them."

Precision Specialty Metals v. United States, 315 F.3d 1346 (5th Cir. 2003)