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Jurisdictonary PDF Print E-mail

Tips & Tactics

Making Courtroom Objections ... #2

If you want to win in court, you must learn how to make objections, and the time to learn is before you go to court. If you don't, the other side will take advantage of you, and the judge will be powerless to stop it ... if you don't object.

  READ THE CORRECT RULES AND REGULATIONS MANUAL CAREFULLY PRIOR TO ENGAGING IN A CASE AND CONSULT WITH AN ATTORNEY THAT SPECIALIZES IN THAT AREA OF LAW.

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Lawsuit Self-Help ... Step-by-Step PDF Print E-mail

Tips & Tactics

Making Courtroom Objections ... #2

If you want to win in court, you must learn how to make objections, and the time to learn is before you go to court. If you don't, the other side will take advantage of you, and the judge will be powerless to stop it ... if you don't object.

 

Read more...
 
External link to a directory of lawyers PDF Print E-mail

External link to a directory of lawyers

I removed the link to lawyers.com. There are many online directories of attorneys using search engine optimization to battle for the top spot. I don't think linking to one of them helps this article at all. -- DS1953 talk 21:01, 24 August 2006 (UTC)

How to Find a Lawyer and How to find an Attorney There should be Wikipedia articles on each of these two topics with suggestions to contact the local bar association as well as the professional bar association which covers the type of problem (for example the American Immigration Lawyers Association, the American Bankruptcy Institute, etc). The Wikipedia articles should link to this Attorney-at-Law article and to the Lawyer article as well as to Wikipedia articles on Bankruptcy, Immigration, etc. Some consumers will need this sort of help. I would try to set these up myself but am too new here to do this. ````

No, that would be against a ton of Wikipedia policies. Wikipedia is purely descriptive ("this is how something is") not prescriptive ("this is what you should do"). See Wikipedia:What Wikipedia is not, Wikipedia:Verifiability, and Wikipedia:Neutral point of view. Wikibooks is where "how-to" stuff goes. --Coolcaesar 02:48, 14 September 2006 (UTC)

Statistics on specialization and certification of specialties

I added some information on certification of specialists, using Texas as the example. One thing I am not sure of is: Of the 8,303 board certified specialists in Texas, are any considered inactive members of the Texas Bar ( i.e., are any part of the 11,000 inactive members, and not part of the approximately 77,000 active members)?

Also, for what it's worth, many thousands of the 77,000 active Texas Bar members are not currently engaged in the practice of law (i.e., they retain the active Texas Bar membership even though they're working in a field unrelated to law practice). Yours, Famspear 23:27, 22 September 2006 (UTC)

I am cleaning up this pigpen today

This article has been getting worse and worse over the past two years since it was split off from a section I originally drafted in Lawyer (trace the history back to 2004 if you don't believe me). I am at the library this afternoon with a pile of excellent books on the American legal profession, so I'm going to start fixing it. With citations. -- Coolcaesar 23:48, 2 December 2006 (UTC)

I am going to do a bit of fixing and cleaning myself, if you don't mind. I'm working on the WP:AR1 Legal articles project (se the Talk page under that rubric). Bearian 23:49, 10 April 2007 (UTC)
Feel free to clean it up. I've been much too busy with depositions to finish cleaning up this mess. --Coolcaesar 18:53, 13 April 2007 (UTC)

Neutrality

The phrase "Attorneys in private practice and small firms (who can't afford to litigate every little issue) v. big firms (who can)" is clearly POV in its wording. Tmrobertson 06:57, 12 February 2007 (UTC)

That's not POV; that's a cold economic fact. I will add a cite to one of the more pungent passages from Cameron Stracher's book Double Billing when I have the time. -- Coolcaesar 22:13, 17 February 2007 (UTC)

It is not the fact at all. Have you ever practiced law? You're basing this on some book? Furthermore, the bit about plaintiff's attorneys being only contingent is wrong. Who came up with this stuff????-- Davidwiz 20:23, 24 April 2007 (UTC)

You're implying that a statement based one's own practice of law would be better than something from a book. Wikipedia rules are just the opposite: an encyclopedia is not supposed to have first person research or expertise, but rather to bring together information from other authorities. To the extent that you think the information in this particular source is not settled fact, you should add a citation to an opposing source and document it as a controversy.

Please, please, please!! refrain to use the word "America" or "American" to make reference to the U.S.A. !!!, The U.S.A. is a country, but AMERICA is a continent that goes from Chile to Alaska...... the use of "America" for U.S. is only ignorance. —The preceding unsigned comment was added by 137.52.242.224 (talk • contribs). (on 3 April 2007, USA central daylight time)

Dear anonymous user at IP 137.52.242.224: The word "American," like many words in many languages, has more than one correct meaning.
American [ . . . ] adj. 1. Of, relating to, or characteristic of the United States of America, its people, culture, government, or history. American Heritage Dictionary, p. 102 (2d Coll. Ed. 1985) ;
American adj [ . . . ] 2. of or relating to the U.S. or its possessions or original territory. Webster's New Collegiate Dictionary, p. 37 (8th ed. 1976);
American [ . . . ] adj. 1. of, in, or characteristic of the U.S., its people, etc. Webster's New World Dictionary of the American Language, p. 44 (2d Coll. Ed. 1970).
The word "American" is properly used world wide in business, in law, in commerce, in science, in religion, in education, in virtually every aspect of human communication, to refer to the United States of America, and things and concepts related to the United States of America, and nothing that you or I say or write in Wikipedia or anywhere else will ever change this. This is a discussion page for the article Attorney at Law. Let's stay on topic. Yours, Famspear 02:33, 4 April 2007 (UTC)
PS: For an article covering the controversy about the use of the word "American," see the article entitled (what else?) Use of the word American. Yours, Famspear 03:06, 4 April 2007 (UTC)

I will be revising this article over the course of 2007

Now that I have got the Lawyer article mostly stabilized (with a few more minor issues to wrap up), I am thinking about cleaning up this article next.

Here are a few of my proposed changes:

  • Move to Attorney-at-law, the more common term
  • Research and footnote as many assertions as possible and delete all controversial assertions for which reliable, published sources are not readily available
  • Move a lot of detail to Legal education in the United States
  • Move a lot of detail to Juris Doctor
  • Restructure the section on the job of an attorney to more accurately reflect the differences in workflow between litigators and transactional lawyers, and between junior associates versus senior associates, of counsel, and partners

Any one have a problem with these proposals? This will take me a few months. --Coolcaesar 07:20, 1 May 2007 (UTC)


These all sound like good ideas to me. I've been cleaning up a bit of the text drafting over the past day or so -- I think it needs a lot of work. I mean, frankly, something that is being drafted by lawyers should read like pristine text, and this isn't really there yet. Novaseeker 14:07, 23 June 2007 (UTC)

jdfg

at the begining cant it just simply say what an attorney basically is, i didnt know what one was and I went here but it didnt help. Can't it just say that if your too sick to make a decision then they do or what ever it is

It's a bit too complicated for that. The intro already summarizes an incredibly complex topic quite well (although some of the later paragraphs still need work). -- Coolcaesar 17:30, 30 May 2007 (UTC)

Economic Position Of Attorneys Section Ignores Economics

This section is trying to say something about supply and demand, but seems to ignore the economic definition of supply and of demand as well as the Law of Supply And Demand. Since one of the statements is attributed to an ABA study, I assume there really is something to say here, but as it stands, it is gibberish, so I hope someone familiar with the facts can fix it.

The ABA said one third of demand wasn't met? Unless there are price caps I don't know about, the supply will always meet the demand. Maybe the ABA used some arbitrary criteria for of who deserves legal services and a third of those deserving couldn't afford it? Just guessing.

It also suggests that the fast-growing supply of lawyers to do high-priced legal services has caused a surplus of lawyers. Supply growing faster than demand cannot cause that all by itself; the market always clears in the long run. If there are large numbers of lawyers looking for work, it can only be due to the price not having adjusted itself yet -- i.e. those lawyers are erroneously still asking old-supply prices or the employers are erroneously assuming they have to pay old-supply prices. That's a temporary thing and the article should make that clear if that is in fact the situation.

Bryan Henderson 03:47, 2 July 2007 (UTC)

Media Image section: not very encyclopedic

I don't like the Media Image section at all. I'd just delete most of it, but maybe it's just me, so I'll just describe my feelings toward it to add to those of others who may come later:

The section reads like cheerleading for the legal profession, and a defense to an imagined insult. Every line of it gives reasons to appreciate lawyers; nothing remotely critical of lawyers appears.

I don't agree that the media, in general, portrays lawyers as the section claims. Certainly some TV shows and movies do. Any generalization about how the media as a whole portrays lawyers cannot be factual enough to put here. If there were a citation to a respected authority, I might accept such a generalization.

People work hard in all professions, and entertainment shows misrepresent lots of them. People know that. There is nothing noteworthy in how hard an attorney's job is to justify space here.

Something that would be useful is simply an objective breakdown of what the job entails (and there is another section already for that). But not as a rebuttal to a nonspecific argument from somewhere in the media that the job is something else.

Bryan Henderson 04:05, 2 July 2007 (UTC)


"Trial attorneys (who argue the facts, such as Johnnie Cochran) v. appellate attorneys (who argue the law, such as David Boies)" Trial attys don't argue the law? wtf? They argue both. Facts are meaningless without THE LAW. Whoever wrote this is a moron-- not a lawyer.

I have finally started my long-planned rewrite project

After thinking about this for over a year, I have started my long-planned rewrite of this article. Like my successful rewrite of Lawyer, I am working on an extremely dramatic revision (preserving as much useful text as possible) on a temporary subarticle of my talk page. Then next I will dig up lots of sources so that practically ever assertion will be backed up by a reliable source. Then I will do a couple more revisions for style and then overwrite the entire article with my new version. Unfortunately, because I am also busy with dozens of other priorities (like taking depositions), my revision will probably take at least six months to complete. But this is to give everyone a heads-up so they know what's going on when the entire article gets replaced down the road. -- Coolcaesar 17:29, 18 August 2007 (UTC)

Officially it's "attorney-at-law" with hyphens

...or so says Black's Law Dictionary. Anyone have a substantial reference that says otherwise? If nobody comes up with one for a few weeks, this entry should probably be moved to " Attorney-at-law". There is already a page of that title now, which had a redirect to "lawyer" instead of here - which is an even worse imprecision - I changed that one to redirect here in the meantime. - Reaverdrop 01:42, 5 February 2006 (UTC)

I concur that the correct usage is with hyphens. I am also appalled at how bad the text of this article has become since someone split it off the Lawyer article (as anyone can see from the history of the Lawyer article, I originally drafted much of this text for that article). Now that I have thoroughly researched and rewritten Lawyer, I may have to fix this one next!
Here is what I am planning to do in a few weeks: (1) Change unlicensed practice of law to unauthorized practice of law, which is the dominant usage among professional responsibility experts; (2) Move all the U.S.-related stuff to Lawyers in the United States; (3) Move all the Indian-related stuff to Lawyers in India; and (4) rewrite this article as a very general and brief article about attorneys at law in general and how that usage died out in the U.K. and many Commonwealth nations (because the position of solicitor was seen as more prestigious) but became the dominant usage in the United States and several other nations where the legal profession fused early on. Anyone have any objections? -- Coolcaesar 01:01, 8 March 2006 (UTC)

Deleted material regarding Juris Doctor

I have deleted language asserting that the Juris Doctor degree does not confer the title of "doctor." The article on Juris Doctor has been infected with this kind of material for some time. Let's leave it out of the article on Attorney at Law.

I'm going to make an assertion here: There is no such thing as a doctoral degree that does not confer the title of doctor. To state otherwise is in my opinion nonsensical. The edit wars on these kinds of things in the Juris Doctor or related articles detracts from the reliability and reputation of Wikipedia in my view. Let's keep this encyclopedic.

And let's keep edit wars about whether a particular doctoral degree "really" is or is not a doctoral degree out of the article on Attorney at Law. Please leave that battle -- if (sigh....) it has to be fought -- in some other place than in this article. Yours, Famspear 20:20, 4 August 2006 (UTC)

This is really just hatred against lawyers in the common law countries. In most civil law countries, it is commonly accepted that a lawyer is a "Doktor". In the US, it's the non-lawyer PhDs who resent the idea that U.S. lawyers, with their three years of grad school, have the same academic gravitas. I would bot object to including this in the entry. Excluding it seems to me to be an exercise is capitulation. Novaseeker 02:50, 23 June 2007 (UTC)

External link to a directory of lawyers

I removed the link to lawyers.com. There are many online directories of attorneys using search engine optimization to battle for the top spot. I don't think linking to one of them helps this article at all. -- DS1953 talk 21:01, 24 August 2006 (UTC)

How to Find a Lawyer and How to find an Attorney There should be Wikipedia articles on each of these two topics with suggestions to contact the local bar association as well as the professional bar association which covers the type of problem (for example the American Immigration Lawyers Association, the American Bankruptcy Institute, etc). The Wikipedia articles should link to this Attorney-at-Law article and to the Lawyer article as well as to Wikipedia articles on Bankruptcy, Immigration, etc. Some consumers will need this sort of help. I would try to set these up myself but am too new here to do this. ````

No, that would be against a ton of Wikipedia policies. Wikipedia is purely descriptive ("this is how something is") not prescriptive ("this is what you should do"). See Wikipedia:What Wikipedia is not, Wikipedia:Verifiability, and Wikipedia:Neutral point of view. Wikibooks is where "how-to" stuff goes. --Coolcaesar 02:48, 14 September 2006 (UTC)

Statistics on specialization and certification of specialties

I added some information on certification of specialists, using Texas as the example. One thing I am not sure of is: Of the 8,303 board certified specialists in Texas, are any considered inactive members of the Texas Bar ( i.e., are any part of the 11,000 inactive members, and not part of the approximately 77,000 active members)?

Also, for what it's worth, many thousands of the 77,000 active Texas Bar members are not currently engaged in the practice of law (i.e., they retain the active Texas Bar membership even though they're working in a field unrelated to law practice). Yours, Famspear 23:27, 22 September 2006 (UTC)

I am cleaning up this pigpen today

This article has been getting worse and worse over the past two years since it was split off from a section I originally drafted in Lawyer (trace the history back to 2004 if you don't believe me). I am at the library this afternoon with a pile of excellent books on the American legal profession, so I'm going to start fixing it. With citations. -- Coolcaesar 23:48, 2 December 2006 (UTC)

I am going to do a bit of fixing and cleaning myself, if you don't mind. I'm working on the WP:AR1 Legal articles project (se the Talk page under that rubric). Bearian 23:49, 10 April 2007 (UTC)
Feel free to clean it up. I've been much too busy with depositions to finish cleaning up this mess. --Coolcaesar 18:53, 13 April 2007 (UTC)

Neutrality

The phrase "Attorneys in private practice and small firms (who can't afford to litigate every little issue) v. big firms (who can)" is clearly POV in its wording. Tmrobertson 06:57, 12 February 2007 (UTC)

That's not POV; that's a cold economic fact. I will add a cite to one of the more pungent passages from Cameron Stracher's book Double Billing when I have the time. -- Coolcaesar 22:13, 17 February 2007 (UTC)

It is not the fact at all. Have you ever practiced law? You're basing this on some book? Furthermore, the bit about plaintiff's attorneys being only contingent is wrong. Who came up with this stuff????-- Davidwiz 20:23, 24 April 2007 (UTC)

You're implying that a statement based one's own practice of law would be better than something from a book. Wikipedia rules are just the opposite: an encyclopedia is not supposed to have first person research or expertise, but rather to bring together information from other authorities. To the extent that you think the information in this particular source is not settled fact, you should add a citation to an opposing source and document it as a controversy.

====

Please, please, please!! refrain to use the word "America" or "American" to make reference to the U.S.A. !!!, The U.S.A. is a country, but AMERICA is a continent that goes from Chile to Alaska...... the use of "America" for U.S. is only ignorance. —The preceding unsigned comment was added by 137.52.242.224 (talk • contribs). (on 3 April 2007, USA central daylight time)

Dear anonymous user at IP 137.52.242.224: The word "American," like many words in many languages, has more than one correct meaning.
American [ . . . ] adj. 1. Of, relating to, or characteristic of the United States of America, its people, culture, government, or history. American Heritage Dictionary, p. 102 (2d Coll. Ed. 1985) ;
American adj [ . . . ] 2. of or relating to the U.S. or its possessions or original territory. Webster's New Collegiate Dictionary, p. 37 (8th ed. 1976);
American [ . . . ] adj. 1. of, in, or characteristic of the U.S., its people, etc. Webster's New World Dictionary of the American Language, p. 44 (2d Coll. Ed. 1970).
The word "American" is properly used world wide in business, in law, in commerce, in science, in religion, in education, in virtually every aspect of human communication, to refer to the United States of America, and things and concepts related to the United States of America, and nothing that you or I say or write in Wikipedia or anywhere else will ever change this. This is a discussion page for the article Attorney at Law. Let's stay on topic. Yours, Famspear 02:33, 4 April 2007 (UTC)
PS: For an article covering the controversy about the use of the word "American," see the article entitled (what else?) Use of the word American. Yours, Famspear 03:06, 4 April 2007 (UTC)

I will be revising this article over the course of 2007

Now that I have got the Lawyer article mostly stabilized (with a few more minor issues to wrap up), I am thinking about cleaning up this article next.

Here are a few of my proposed changes:

  • Move to Attorney-at-law, the more common term
  • Research and footnote as many assertions as possible and delete all controversial assertions for which reliable, published sources are not readily available
  • Move a lot of detail to Legal education in the United States
  • Move a lot of detail to Juris Doctor
  • Restructure the section on the job of an attorney to more accurately reflect the differences in workflow between litigators and transactional lawyers, and between junior associates versus senior associates, of counsel, and partners

Any one have a problem with these proposals? This will take me a few months. --Coolcaesar 07:20, 1 May 2007 (UTC)


These all sound like good ideas to me. I've been cleaning up a bit of the text drafting over the past day or so -- I think it needs a lot of work. I mean, frankly, something that is being drafted by lawyers should read like pristine text, and this isn't really there yet. Novaseeker 14:07, 23 June 2007 (UTC)

jdfg

at the begining cant it just simply say what an attorney basically is, i didnt know what one was and I went here but it didnt help. Can't it just say that if your too sick to make a decision then they do or what ever it is

It's a bit too complicated for that. The intro already summarizes an incredibly complex topic quite well (although some of the later paragraphs still need work). -- Coolcaesar 17:30, 30 May 2007 (UTC)

Economic Position Of Attorneys Section Ignores Economics

This section is trying to say something about supply and demand, but seems to ignore the economic definition of supply and of demand as well as the Law of Supply And Demand. Since one of the statements is attributed to an ABA study, I assume there really is something to say here, but as it stands, it is gibberish, so I hope someone familiar with the facts can fix it.

The ABA said one third of demand wasn't met? Unless there are price caps I don't know about, the supply will always meet the demand. Maybe the ABA used some arbitrary criteria for of who deserves legal services and a third of those deserving couldn't afford it? Just guessing.

It also suggests that the fast-growing supply of lawyers to do high-priced legal services has caused a surplus of lawyers. Supply growing faster than demand cannot cause that all by itself; the market always clears in the long run. If there are large numbers of lawyers looking for work, it can only be due to the price not having adjusted itself yet -- i.e. those lawyers are erroneously still asking old-supply prices or the employers are erroneously assuming they have to pay old-supply prices. That's a temporary thing and the article should make that clear if that is in fact the situation.

Bryan Henderson 03:47, 2 July 2007 (UTC)

Media Image section: not very encyclopedic

I don't like the Media Image section at all. I'd just delete most of it, but maybe it's just me, so I'll just describe my feelings toward it to add to those of others who may come later:

The section reads like cheerleading for the legal profession, and a defense to an imagined insult. Every line of it gives reasons to appreciate lawyers; nothing remotely critical of lawyers appears.

I don't agree that the media, in general, portrays lawyers as the section claims. Certainly some TV shows and movies do. Any generalization about how the media as a whole portrays lawyers cannot be factual enough to put here. If there were a citation to a respected authority, I might accept such a generalization.

People work hard in all professions, and entertainment shows misrepresent lots of them. People know that. There is nothing noteworthy in how hard an attorney's job is to justify space here.

Something that would be useful is simply an objective breakdown of what the job entails (and there is another section already for that). But not as a rebuttal to a nonspecific argument from somewhere in the media that the job is something else.

Bryan Henderson 04:05, 2 July 2007 (UTC)


"Trial attorneys (who argue the facts, such as Johnnie Cochran) v. appellate attorneys (who argue the law, such as David Boies)" Trial attys don't argue the law? wtf? They argue both. Facts are meaningless without THE LAW. Whoever wrote this is a moron-- not a lawyer.

I have finally started my long-planned rewrite project

After thinking about this for over a year, I have started my long-planned rewrite of this article. Like my successful rewrite of Lawyer, I am working on an extremely dramatic revision (preserving as much useful text as possible) on a temporary subarticle of my talk page. Then next I will dig up lots of sources so that practically ever assertion will be backed up by a reliable source. Then I will do a couple more revisions for style and then overwrite the entire article with my new version. Unfortunately, because I am also busy with dozens of other priorities (like taking depositions), my revision will probably take at least six months to complete. But this is to give everyone a heads-up so they know what's going on when the entire article gets replaced down the road. -- Coolcaesar 17:29, 18 August 2007 (UTC)

 

Common law

From Wikipedia, the free encyclopedia

Jump to: navigation, search

In common law legal systems, the law is created and/or refined by judges on a case-by-case basis. When there is no authoritative statement of the law, common law judges have the authority and duty to "make" law by creating precedent. [1] The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an "ideal" common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will resolve the matter itself, with reference to general legal guidelines. Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.

In practice, common law systems are considerably more complicated than the "ideal" system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between constitutional law, common law, statutory law and regulatory law also give rise to considerable complexity. However, stare decisis, the principle that similar cases should be decided according to similar rules, lies at the heart of all common law systems.

Common law legal systems are in widespread use, particularly in those nations which trace their legal heritage to England, including the United Kingdom , the United States, most of Canada, and other former colonies of the British Empire.

Contents

[hide]

Primary definitions

There are three main connotations for to the term common law, and several historical ones worth mentioning:

1. Common law as opposed to statutory law and regulatory law: This connotation distinguishes the authority that promulgated a law. For example, in most areas of law in most jurisdictions in the United States, there are "statutes" enacted by a legislature, "regulations" promulgated by executive branch agencies pursuant to a delegation of rule-making authority from a legislature, and common law or " case law", i.e. decisions issued by courts (or quasi-judicial tribunals within agencies). This first connotation can be further differentiated, into (a) laws that arise purely from the common law with no express statutory authority, e.g. most criminal law and procedural law before the 20th century, and even today, most of contract law and the law of torts, and (b) decisions that discuss and decide the fine boundaries and distinctions in written laws promulgated by other bodies, such as the Constitution, statutes and regulations. See statutory law and non-statutory law.
2. Common law legal systems as opposed to civil law legal systems: This connotation differentiates "common law" jurisdictions and legal systems from " civil law" or "code" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" just as are statutes. By contrast, in civil law jurisdictions (the legal tradition that prevails in most of the world), judicial precedent is given less weight, and contributions by scholars are given more. For example, the Napoleonic code expressly forbade French judges from pronouncing the law. [2]
3. Law as opposed to equity: This connotation differentiates "common law" (or just "law") from "equity". Before 1873, England had two parallel court systems, courts of "law" that could only award money damages and recognized only the legal owner of property, and courts of "equity" that could issue injunctive relief and recognized trusts of property. Most United States jurisdictions have merged the two courts, with exceptions noted in "Common Law Systems," below. Additionally, even before the separate courts were merged together, most courts were permitted to apply both law and equity (though under potentially different laws of procedure). Even so, the distinction between law and equity remains important in (a) categorising and prioritizing rights to property, (b) determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "common law" claim [3]) or whether the issue may be decided by a judge (issues of what the law is, and all issues relating to equity), and (c) in the principles that apply to the grant of equitable remedies by the courts.
4. Historical uses: In addition, there are several historical uses of the term that provide some background as to its meaning. The English Court of Common Pleas dealt with lawsuits in which the king had no interest, i.e. between commoners. Additionally, from at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice. The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit. The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions. These definitions are archaic, their relevance having dissipated with the development of the English legal system over the centuries, but they do explain the origin of the term.
 
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Attorney at Law PDF Print E-mail
An attorney at law (also known simply as an attorney or lawyer) in the United States is a person licensed to practice law by the highest court of a state or other jurisdiction. Alternative terms include attorney-at-law and attorney and counselor (or counsellor) at law.

The American legal system has a united (or fused) legal profession, and does not draw a distinction between lawyers who plead in court and those who do not. Many other common law jurisdictions, as well as some civil law jurisdictions, have a separation, such as the solicitor and barrister/advocate split in the United Kingdom and the advocate/civil law notary split in France. There is also no delegation of routine work to notaries public or their civil law equivalent in the American system.

Comparison: attorney-in-fact and attorney-at-law

Broadly speaking, an "attorney" is one who acts on behalf of another person in some capacity. An "attorney-in-fact" is akin to an agent who acts on behalf of another person, typically with respect to business, property, or personal matters. Such an agent does not have to be licensed to practice law and may not need to have any license at all.

By contrast an attorney-at-law, or lawyer, is a person trained and licensed by a relevant jurisdiction to practice law: to represent clients in legal matters and to give legal advice. In the United States, the term attorney, standing alone, generally refers to this meaning rather than "attorney-in-fact".

The term "attorney-in-fact" is mostly seen in the context of someone representing another person's interest in business negotiations or regarding signature pages on documents where the person signing is doing so on the basis of a power of attorney. The term power of attorney generally relates to an attorney-in-fact, not an attorney-at-law. Alternative titles for "power of attorney" type documents in non-U.S. jurisdictions include the French "Pouvoir" and the German "Vollmacht".

Comparison: attorney-at-law and Attorney General

The term Attorney General is used to designate the chief law enforcement officer of a state or other political jurisdiction. The attorney general is a lawyer who represents the government, prosecutes criminal cases, defends the government from lawsuits against it, and brings civil lawsuits to enforce consumer protection, antitrust, and other laws.

Comparison to older U.S. terminology and non-U.S. terminology

In common law jurisdictions outside the United States (e.g., England, Canada, Australia), attorney is incorrect as a general term, and lawyer or solicitor is used instead. However, in these areas, the specific terms crown attorney, power of attorney, and Attorney General, are used. In intellectual property, the term patent attorney is commonly used.

In earlier times, some states, as well as the U.S. Supreme Court, maintained a divided legal profession, as can still be found in the United Kingdom, consisting of attorneys (who practised in courts of equity), solicitors (who practised in courts of law) and barristers, also known as counsel, whom solicitors and attorneys instructed to appear in the higher courts. In deference to this practice, when an attorney at law is admitted to practice in some states, his or her certificate of admission bears the title Attorney and Counsellor-at-Law in recognition of his inheritance of both of these roles.

Some attorneys use the post-nominal Esq., the abbreviated form of the word Esquire.

The job of an attorney

Once admitted to practice by the highest court of a state (a function sometimes administered by the state's bar association), an American attorney may file legal pleadings and argue cases in any court of that state (federal courts, usually require a separate admission), provide legal advice to clients, and draft important legal documents such as wills, trusts, deeds, and contracts.

In some states, real estate closings may be performed only by attorneys, even though the attorney's role in a closing may involve primarily notarization of documents and disbursement of settlement funds through an escrow account.

Practicing law includes interviewing a client to identify the legal question, analyzing the question, researching relevant law, devising legal solutions to problems, and executing such solutions through specific tasks such as drafting a contract or filing a motion with a court.

Most academic legal training is directed to identifying legal issues, researching facts and law, and arguing both the facts and law in favor of either side in any case.

Media images

Contrary to the media image of attorneys, a great deal of litigation and regulatory legal work is spent doing research in a law library or in an electronic database like Westlaw or LexisNexis. Few television programs and movies accurately portray the hours surrounded by a pile of books or printouts which form the core of the occupational life of many attorneys in these practice areas.

One occasional exception is the television program Law & Order, which sometimes shows the main characters researching at a computer late into the night (always using Westlaw, due to a contract between Westlaw and the show's producers). Some episodes also show lawyers keeping a small rack of clothes in their office for those times when research lasts all night and the character does not have time to go home to change.

Another notable portrayal of the profession was the series Murder One which focused on the lawyers (and the law office) as central characters. The Practice did as well, but its accuracy may be questionable.

Movies and television also generally show attorneys focused on a single case. Most litigators have many cases in progress at any given time. Each case has deadlines that must be carefully monitored and court dates which one must not forget.

In litigation, attorneys spend much time discovering the facts of the case to develop a "theory of the case" that integrates facts and law in a way most favorable to their client.

In addition, many attorneys specialize in activities that never involve them in litigation, such as writing legal opinion letters, advising clients, structuring business transactions, negotiating and drafting contracts, preparing tax strategies, or preparing and prosecuting filings with government agencies such as the Internal Revenue Service, the Securities and Exchange Commission, or the Patent and Trademark Office. Such attorneys rarely appear in court.

Many American attorneys limit their practices to specialized fields of law. Often dichotomies are drawn between different types of attorneys, but these are neither fixed nor formal lines. Examples include:

  • Plaintiff v. Defense Attorneys (some attorneys do both plaintiff and defense work, others only handle certain types of cases, like personal injury, business, etc.)
  • Transactional (or "office practice") attorneys (who negotiate and draft documents and advise clients, rarely going to court) v. litigators (who advise clients in the context of legal disputes both in and out of court, including lawsuits, arbitrations and negotiated settlements)
  • Trial attorneys (who argue the facts, such as Johnnie Cochran) v. appellate attorneys (who argue the law, such as David Boies)
  • Outside counsel (law firms) v. in-house counsel (corporate legal department)

Despite these descriptions, most states forbid or discourage claims of specialization in particular areas of law unless the attorney has been certified by his or her state bar [1] or state board of legal specialization. Other states allow indirect indications of specialization (in forms of advertisements such as "our practice is limited to . . .") but require that the lawyer state that he or she is not certified by a state board of legal specialization in the advertised practice area. Patent attorneys are allowed to advertise their specialization in all jurisdictions, since registration for patent law is administered by the United States Patent and Trademark Office (USPTO) instead of a state-level body.

Some states grant formal certifications recognizing specialties. In California, for example, bar certification is offered in family law, appellate practice, criminal law, bankruptcy, estate planning, immigration, taxation and workmen's compensation. Any attorney meeting the bar requirements in one of these fields may represent himself as a specialist. Similarly, Texas formally grants certification of specialization in the following fields: administrative law; business bankruptcy law; civil appellate law; civil trial law; consumer bankruptcy law; consumer & commercial law; criminal law; estate planning & probate law; family law; health law; immigration & nationality law; juvenile law; labor & employment law; oil, gas & mineral law; personal injury trial law; real estate law; tax law; and workers' compensation law. [2]

The vast majority of lawyers practicing in a particular field may typically not be certified as specialists in that field (and state board certification is not generally required to practice law in any field). For example, the State Bar of Texas (as of mid 2006) reported 77,056 persons licensed as attorneys in that state (excluding inactive members of the Bar) [1], while the Texas Board of Legal Specialization reported, at about the same time, only 8,303 Texas attorneys who were board certified in any specialty. [3] Indeed, of the 8,303 certified specialists in Texas, the highest number of attorneys certified in one specific field at that time was 1,775 (in personal injury trial law). Despite the relative large number of lawyers that presumably would handle divorce, adoption and child custody matters, Texas reported that of 77,056 attorneys, only 697 in the entire state were certified in family law (which is, arguably, the applicable specialty).

Specialization in patent law is administered by the Office of Enrollment and Discipline of the USPTO, which imposes stringent requirements for applicants to become registered as patent attorneys or patent agents.

About half of American attorneys work solo or in small firms[ citation needed]. See law firm. There are also many midsize firms, with anywhere from 50 to 200 attorneys, and since the 1970s, some law firms have merged to form giant "megafirms" with 1,000 attorneys or more.

Control of cases

An American attorney licensed in each applicable court may in a few cases control and argue his or her case at each level of the judiciary through its entire lifecycle. A notable example of this is the Brown v. Board of Education litigation, where the same trial team handled the case from start to finish at the U.S. Supreme Court. However, cases which advance to the appellate level, particularly to the U.S. Supreme Court, are often re-assigned to experienced appellate practitioners or firms.

Education and training

Almost all U.S. jurisdictions require successful completion of a bar exam to be licensed as an attorney. All but a few of those states which require a bar exam also require the applicant to have taken a degree in professional law from an accredited law school. Most require it to be an American professional doctorate in law. A few states accept foreign law degrees. In addition to this formal education, attorneys in most jurisdictions must complete regular Continuing Legal Education (CLE) requirements.

The State of Washington has a separate Law Clerk program under Rule Six of the Washington Court Admission to Practice Rules. A college graduate of good moral character may be accepted into the four-year Rule Six Law Clerk program, obtain employment in a law firm or with a judge for at least 30 hours a week, and study a proscribed Course of Study under a tutor. After successful completion of the Rule Six Law Clerk program, a law clerk may take the Washington State Bar Exam and, upon passing, will be admitted as an attorney into the Washington State Bar Association.

The degree earned by prospective attorneys in the United States is generally a Juris Doctor (J.D.), or Doctor of Jurisprudence. Historically, law was an undergraduate subject in the United States, as it still is in most other Anglophone countries, for which the LL.B. (Bachelor of Laws) or other undergraduate degree (e.g., Cambridge awards the 'Bachelor of Arts in Law' or B.A.L.) was conferred. This undergraduate degree was followed by the LL.M. or Master of Laws and, where the LL.B. is still awarded, the highest degree is often still the LL.D. or Doctor of Laws. In the United States, however, the LL.B. was elevated to the graduate school curriculum starting in 1896 (Harvard), as a second Bachelor's degree; and then replaced by the professional doctorate in law - the J.D. or D.Jur. (when the degree is conferred in English) starting in 1902 (University of Chicago). By the end of the twentieth century, all ABA-accredited American law schools had replaced the LL.B. with the J.D./D.Jur.

The content of the J.D./D.Jur. curriculum is substantially the same as for a LL.B. curriculum, except that study for the doctoral level degree builds upon prior undergraduate education whereas the LL.B. is still an undergraduate degree, even in those few countries where it is conferred at graduate level as a second Bachelor's degree. As a professional doctorate, people who hold the J.D./D.Jur. are fully entitled to call themselves "Doctor," though most do not bother. The label "doctor" is an academic tradition, but the tradition in the American legal profession is to call all attorneys "Mr." or "Ms." regardless of their academic qualifications. A litigator with a Ph.D., a M.D., an Ed.D., a Psy.D., as well as a J.D. would still be addressed "Mr." or "Ms." while she or he was making an oral argument before the U.S. Supreme Court.

The LL.M., however, continues to be offered in the United States, sometimes as a type of specialist post-doctoral degree and sometimes as a legal Master's degree in U.S. law for non-U.S. educated attorneys with the LL.B. or other non-U.S. law degree. Many non-U.S. lawyers who have an LL.B. or other non-U.S. law degree come to study in the United States to obtain an LL.M. degree in comparative law, in order to familiarize themselves with U.S. common law, and to enable themselves to take the bar exam in New York or California, both of which allow foreign attorneys with such degrees to take the exam. Some of these lawyers end up practicing law in the U.S., while many of them return to their home countries and use their U.S. LL.M. and bar admission as a gateway to advising international clients. Among U.S. lawyers, the most common use of the LL.M. degree currently is to acquire an advanced level of expertise in a specific legal discipline, such as tax law. American law schools are very slowly beginning to address the situation of advanced academic law degrees by creating explicitly post-doctoral degrees, like the S.J.D. or J.S.D. (Scientiae Juris Doctor or Doctor of the Science of Law).

The Paul M. Hebert Law Center at Louisiana State University in the U.S. now offers a joint J.D. (Juris Doctor) / B.C.L. ( Bachelor of Civil Law) over 7 semesters (instead of its previous 6-semester program for the J.D. alone) in recognition of the increased Louisiana civil law component of the new program.

The highest law degree obtainable in the United States is the S.J.D., or Scientum Juris Doctor, literally "doctor of juridical science". This degree is also known by the abbreviation J.S.D. at some U.S . schools, e.g. NYU Law School and Columbia Law School. The degree should not be confused with the "doctor of laws" degree, or LL.D., which is usually, but not always, awarded for honorary purposes.

The S.J.D. or J.S.D. degree is very rarely awarded, and is generally only sought by attorneys holding exceptional credentials and a desire to enter legal academia. The degree is generally only offered at the very top law schools, which typically accept only 4 or 5 students into their program each year. Admission is limited to those who have achieved their J.D. and LL.M. degrees with distinction. Successful applicants usually have already published significant scholarly legal articles in their proposed area of study, and many have legal teaching experience prior to entering the program.

Law students in court

Some courts allow law students to act as "certified student attorneys" after the satisfactory completion of their first year of law school and the completion of particular second- and third-year courses with subjects such as evidence. Many states allow students to argue in front of a court as a certified legal intern (CLI), provided they meet certain prerequisites, such as having completed at least half of their law education, having taken or be taking the law school's ethics class, and being under the supervision of a qualified and licensed attorney.

This concept was somewhat misrepresented in the movie Legally Blonde, where the protagonist Elle argues before a jury. Although Elle was under the supervision of an attorney, no state would allow a student still completing the first year of law to argue a case in court. However, it is reminiscent of "teen court" programs that are expanding around the USA. In these programs, it is not law students, but high school students, that argue cases before a judge and sit on juries to decide penalties to other high school students who have agreed to be tried by the teen court in exchange for bypassing the regular court and having no criminal record created in the process, even if they are found responsible for a crime by the teen court. The punishment often includes community service, including sitting on juries in upcoming cases.

Illinois: The 711 license

In Illinois a student currently in good standing who has earned credits that represent at least three-fifths of the credits required for graduation may be eligible for a 711 license (based on Illinois Supreme Court Rule 711). A 711 license allows a student to: (1) Counsel with clients, negotiate in the settlement of claims, and engage in the preparation and drafting of legal instruments. (2) Appear in the trial courts and administrative tribunals subject to the following qualifications: (i) Appearances, pleadings, motions, and other documents to be filed with the court may be prepared by the student or graduate and may be signed by him with the accompanying designation "Senior Law Student" or "Law Graduate" but must also be signed by the supervising member of the bar. (ii) In criminal cases, in which the penalty may be imprisonment, in proceedings challenging sentences of imprisonment, and in civil or criminal contempt proceedings, the student or graduate may participate in pretrial, trial, and posttrial proceedings as an assistant of the supervising member of the bar, who shall be present and responsible for the conduct of the proceedings. (iii) In all other civil and criminal cases the student or graduate may conduct all pretrial, trial, and posttrial proceedings, and the supervising member of the bar need not be present. (3) He/She may prepare briefs, excerpts from the record, abstracts, and other documents filed in courts of review of the State, which may set forth the name of the student or graduate with the accompanying designation "Senior Law Student" or "Law Graduate" but must be filed in the name of the supervising member of the bar.

A JD graduate of the College of Law may qualify for a 711 license if s/he (1) has not yet had an opportunity to take the first Bar examination scheduled after s/he graduates, or (2) has taken the Bar exam but has not received the results, or (3) has taken and passed the Bar examination but has not yet been sworn in as a member of the Illinois bar.

A 711 license is not available for a student working for a private law firm. The license is available for work with (1) a legal aid bureau, legal assistance program, organization or clinic chartered by the State of Illinois or approved by a law school approved by the American Bar Association. (2) the Office of the Public Defender, or (3) a law office of the State or any of its subdivisions.

Unlicensed practice of law

Some states provide criminal penalties for (1) falsely holding oneself out to the public as a lawyer, and (2) the unauthorized practice of law by a non-lawyer.

A person who has a J.D. degree but is not admitted to a state bar is not a lawyer, and cannot legally engage in the practice of law. In most states, even the practice of law by an "out-of-state" lawyer is considered the unauthorized practice of law within that state. Exceptions are sometimes made when the out-of-state lawyer is permitted temporarily to practice within the state pro hac vice or in some cases as in-house counsel for corporations.

In addition, a few areas of law, such as patent law, are mandated by the U.S. Constitution to be strictly under federal jurisdiction. In this case, state courts and bar associations are not allowed to restrict the practice of that field of law, and a patent attorney may freely advise clients as to patent matters anywhere in the jurisdiction of the United States with impunity, without regard to state court or bar association rules. Furthermore, prior to November 15, 1938, individuals could become registered as "patent attorneys" with the PTO without ever passing a state bar exam or going to law school. That status was grandfathered for patent attorneys registered prior to that date. This represents a holdover to the traditional meaning of the term "attorney" as "agent" or "attorney-in-fact". There are still some living patent attorneys who became registered as patent attorneys before that date, as far back as 1934. Today, a non-lawyer can take and pass the patent bar , but he or she would be considered a patent agent.

In some jurisdictions, the definition of the practice of law is quite strict; persons have been successfully prosecuted for publishing do-it-yourself will forms and for representing special education children in federal proceedings as specifically allowed by federal law.

Paradoxically, some jurisdictions will allow a non-attorney to sit as a judge, usually in lower courts or in hearings by governmental agencies, even though a non-attorney may not practice before these same courts. Similarly, in a jurisdiction where a judge is elected by the people, the judge often need to be licensed to practice law or trained in any particular way. Likewise, the U.S. Constitution does not provide any such requirement for a U.S. Supreme Court justice or other federal judge, although no non-lawyer has ever been appointed as a federal judge.

American attorneys' attire

Unlike their counterparts in other common law jurisdictions, American attorneys are not required to wear wigs, robes or any other items of court dress when they appear in court. They are expected to wear contemporary business suits.

The one exception is the United States Solicitor General, who traditionally argues before the U.S. Supreme Court in 19th-century attire, including a "morning coat" with tails.

Attorneys in the United States do not usually have to adhere to a strict color code garb and can argue their cases wearing business suits. However, judges in the United States and Canada have occasionally been reported, even very recently, to order that a lawyer is not dressed appropriately and must return at a later date in proper attire – and to issue the lawyer a fine as if the lawyer had failed to show up for the hearing. [2]

Alternatives to the practice of law

Because an accredited legal education generally provides a strong understanding of not only the substance of the law, but also an advanced analytical approach to the use and ramifications of the law, many professions, other than the practice of law, promote or require those with legal educations. As a result of overcrowding in the legal profession, the desire to achieve better work/life balance, and disenchantment with the legal profession, many attorneys are leaving the Bar to pursue these other professions that take advantage of the attorney's legal education. In some instances, graduates of law school who either cannot be admitted or who decide not to bother to be admitted to a state bar, enter these various professions.

Alternative careers that seek legally educated employees include:

In these fields, law degrees are useful (and sometimes mandatory, such as in the case of policy analysts and legislative drafters) qualifications for a job.

See also

Notes

  1. ^ See factsheet entitled "State Bar of Texas Facts," from www.texasbar.com.
  2. ^ While this is true, from ancedotal evidence, a citation is needed from the CPR.

External links

United States

Retrieved from "http://en.wikipedia.org/wiki/Attorney_at_law"

Officially it's "attorney-at-law" with hyphens

...or so says Black's Law Dictionary. Anyone have a substantial reference that says otherwise? If nobody comes up with one for a few weeks, this entry should probably be moved to " Attorney-at-law". There is already a page of that title now, which had a redirect to "lawyer" instead of here - which is an even worse imprecision - I changed that one to redirect here in the meantime. - Reaverdrop 01:42, 5 February 2006 (UTC)

I concur that the correct usage is with hyphens. I am also appalled at how bad the text of this article has become since someone split it off the Lawyer article (as anyone can see from the history of the Lawyer article, I originally drafted much of this text for that article). Now that I have thoroughly researched and rewritten Lawyer, I may have to fix this one next!
Here is what I am planning to do in a few weeks: (1) Change unlicensed practice of law to unauthorized practice of law, which is the dominant usage among professional responsibility experts; (2) Move all the U.S.-related stuff to Lawyers in the United States; (3) Move all the Indian-related stuff to Lawyers in India; and (4) rewrite this article as a very general and brief article about attorneys at law in general and how that usage died out in the U.K. and many Commonwealth nations (because the position of solicitor was seen as more prestigious) but became the dominant usage in the United States and several other nations where the legal profession fused early on. Anyone have any objections? -- Coolcaesar 01:01, 8 March 2006 (UTC)

Deleted material regarding Juris Doctor

I have deleted language asserting that the Juris Doctor degree does not confer the title of "doctor." The article on Juris Doctor has been infected with this kind of material for some time. Let's leave it out of the article on Attorney at Law.

I'm going to make an assertion here: There is no such thing as a doctoral degree that does not confer the title of doctor. To state otherwise is in my opinion nonsensical. The edit wars on these kinds of things in the Juris Doctor or related articles detracts from the reliability and reputation of Wikipedia in my view. Let's keep this encyclopedic.

And let's keep edit wars about whether a particular doctoral degree "really" is or is not a doctoral degree out of the article on Attorney at Law. Please leave that battle -- if (sigh....) it has to be fought -- in some other place than in this article. Yours, Famspear 20:20, 4 August 2006 (UTC)

This is really just hatred against lawyers in the common law countries. In most civil law countries, it is commonly accepted that a lawyer is a "Doktor". In the US, it's the non-lawyer PhDs who resent the idea that U.S. lawyers, with their three years of grad school, have the same academic gravitas. I would bot object to including this in the entry. Excluding it seems to me to be an exercise is capitulation. Novaseeker 02:50, 23 June 2007 (UTC)

External link to a directory of lawyers

I removed the link to lawyers.com. There are many online directories of attorneys using search engine optimization to battle for the top spot. I don't think linking to one of them helps this article at all. -- DS1953 talk 21:01, 24 August 2006 (UTC)

How to Find a Lawyer and How to find an Attorney There should be Wikipedia articles on each of these two topics with suggestions to contact the local bar association as well as the professional bar association which covers the type of problem (for example the American Immigration Lawyers Association, the American Bankruptcy Institute, etc). The Wikipedia articles should link to this Attorney-at-Law article and to the Lawyer article as well as to Wikipedia articles on Bankruptcy, Immigration, etc. Some consumers will need this sort of help. I would try to set these up myself but am too new here to do this. ````

No, that would be against a ton of Wikipedia policies. Wikipedia is purely descriptive ("this is how something is") not prescriptive ("this is what you should do"). See Wikipedia:What Wikipedia is not, Wikipedia:Verifiability, and Wikipedia:Neutral point of view. Wikibooks is where "how-to" stuff goes. --Coolcaesar 02:48, 14 September 2006 (UTC)

Statistics on specialization and certification of specialties

I added some information on certification of specialists, using Texas as the example. One thing I am not sure of is: Of the 8,303 board certified specialists in Texas, are any considered inactive members of the Texas Bar ( i.e., are any part of the 11,000 inactive members, and not part of the approximately 77,000 active members)?

Also, for what it's worth, many thousands of the 77,000 active Texas Bar members are not currently engaged in the practice of law (i.e., they retain the active Texas Bar membership even though they're working in a field unrelated to law practice). Yours, Famspear 23:27, 22 September 2006 (UTC)

I am cleaning up this pigpen today

This article has been getting worse and worse over the past two years since it was split off from a section I originally drafted in Lawyer (trace the history back to 2004 if you don't believe me). I am at the library this afternoon with a pile of excellent books on the American legal profession, so I'm going to start fixing it. With citations. -- Coolcaesar 23:48, 2 December 2006 (UTC)

I am going to do a bit of fixing and cleaning myself, if you don't mind. I'm working on the WP:AR1 Legal articles project (se the Talk page under that rubric). Bearian 23:49, 10 April 2007 (UTC)
Feel free to clean it up. I've been much too busy with depositions to finish cleaning up this mess. --Coolcaesar 18:53, 13 April 2007 (UTC)

Neutrality

The phrase "Attorneys in private practice and small firms (who can't afford to litigate every little issue) v. big firms (who can)" is clearly POV in its wording. Tmrobertson 06:57, 12 February 2007 (UTC)

That's not POV; that's a cold economic fact. I will add a cite to one of the more pungent passages from Cameron Stracher's book Double Billing when I have the time. -- Coolcaesar 22:13, 17 February 2007 (UTC)

It is not the fact at all. Have you ever practiced law? You're basing this on some book? Furthermore, the bit about plaintiff's attorneys being only contingent is wrong. Who came up with this stuff????-- Davidwiz 20:23, 24 April 2007 (UTC)

You're implying that a statement based one's own practice of law would be better than something from a book. Wikipedia rules are just the opposite: an encyclopedia is not supposed to have first person research or expertise, but rather to bring together information from other authorities. To the extent that you think the information in this particular source is not settled fact, you should add a citation to an opposing source and document it as a controversy.

Please, please, please!! refrain to use the word "America" or "American" to make reference to the U.S.A. !!!, The U.S.A. is a country, but AMERICA is a continent that goes from Chile to Alaska...... the use of "America" for U.S. is only ignorance. —The preceding unsigned comment was added by 137.52.242.224 (talk • contribs). (on 3 April 2007, USA central daylight time)

Dear anonymous user at IP 137.52.242.224: The word "American," like many words in many languages, has more than one correct meaning.
American [ . . . ] adj. 1. Of, relating to, or characteristic of the United States of America, its people, culture, government, or history. American Heritage Dictionary, p. 102 (2d Coll. Ed. 1985) ;
American adj [ . . . ] 2. of or relating to the U.S. or its possessions or original territory. Webster's New Collegiate Dictionary, p. 37 (8th ed. 1976);
American [ . . . ] adj. 1. of, in, or characteristic of the U.S., its people, etc. Webster's New World Dictionary of the American Language, p. 44 (2d Coll. Ed. 1970).
The word "American" is properly used world wide in business, in law, in commerce, in science, in religion, in education, in virtually every aspect of human communication, to refer to the United States of America, and things and concepts related to the United States of America, and nothing that you or I say or write in Wikipedia or anywhere else will ever change this. This is a discussion page for the article Attorney at Law. Let's stay on topic. Yours, Famspear 02:33, 4 April 2007 (UTC)
PS: For an article covering the controversy about the use of the word "American," see the article entitled (what else?) Use of the word American. Yours, Famspear 03:06, 4 April 2007 (UTC)

I will be revising this article over the course of 2007

Now that I have got the Lawyer article mostly stabilized (with a few more minor issues to wrap up), I am thinking about cleaning up this article next.

Here are a few of my proposed changes:

  • Move to Attorney-at-law, the more common term
  • Research and footnote as many assertions as possible and delete all controversial assertions for which reliable, published sources are not readily available
  • Move a lot of detail to Legal education in the United States
  • Move a lot of detail to Juris Doctor
  • Restructure the section on the job of an attorney to more accurately reflect the differences in workflow between litigators and transactional lawyers, and between junior associates versus senior associates, of counsel, and partners

Any one have a problem with these proposals? This will take me a few months. --Coolcaesar 07:20, 1 May 2007 (UTC)


These all sound like good ideas to me. I've been cleaning up a bit of the text drafting over the past day or so -- I think it needs a lot of work. I mean, frankly, something that is being drafted by lawyers should read like pristine text, and this isn't really there yet. Novaseeker 14:07, 23 June 2007 (UTC)

jdfg

at the begining cant it just simply say what an attorney basically is, i didnt know what one was and I went here but it didnt help. Can't it just say that if your too sick to make a decision then they do or what ever it is

It's a bit too complicated for that. The intro already summarizes an incredibly complex topic quite well (although some of the later paragraphs still need work). -- Coolcaesar 17:30, 30 May 2007 (UTC)

Economic Position Of Attorneys Section Ignores Economics

This section is trying to say something about supply and demand, but seems to ignore the economic definition of supply and of demand as well as the Law of Supply And Demand. Since one of the statements is attributed to an ABA study, I assume there really is something to say here, but as it stands, it is gibberish, so I hope someone familiar with the facts can fix it.

The ABA said one third of demand wasn't met? Unless there are price caps I don't know about, the supply will always meet the demand. Maybe the ABA used some arbitrary criteria for of who deserves legal services and a third of those deserving couldn't afford it? Just guessing.

It also suggests that the fast-growing supply of lawyers to do high-priced legal services has caused a surplus of lawyers. Supply growing faster than demand cannot cause that all by itself; the market always clears in the long run. If there are large numbers of lawyers looking for work, it can only be due to the price not having adjusted itself yet -- i.e. those lawyers are erroneously still asking old-supply prices or the employers are erroneously assuming they have to pay old-supply prices. That's a temporary thing and the article should make that clear if that is in fact the situation.

Bryan Henderson 03:47, 2 July 2007 (UTC)

Media Image section: not very encyclopedic

I don't like the Media Image section at all. I'd just delete most of it, but maybe it's just me, so I'll just describe my feelings toward it to add to those of others who may come later:

The section reads like cheerleading for the legal profession, and a defense to an imagined insult. Every line of it gives reasons to appreciate lawyers; nothing remotely critical of lawyers appears.

I don't agree that the media, in general, portrays lawyers as the section claims. Certainly some TV shows and movies do. Any generalization about how the media as a whole portrays lawyers cannot be factual enough to put here. If there were a citation to a respected authority, I might accept such a generalization.

People work hard in all professions, and entertainment shows misrepresent lots of them. People know that. There is nothing noteworthy in how hard an attorney's job is to justify space here.

Something that would be useful is simply an objective breakdown of what the job entails (and there is another section already for that). But not as a rebuttal to a nonspecific argument from somewhere in the media that the job is something else.

Bryan Henderson 04:05, 2 July 2007 (UTC)


"Trial attorneys (who argue the facts, such as Johnnie Cochran) v. appellate attorneys (who argue the law, such as David Boies)" Trial attys don't argue the law? wtf? They argue both. Facts are meaningless without THE LAW. Whoever wrote this is a moron-- not a lawyer.

I have finally started my long-planned rewrite project

After thinking about this for over a year, I have started my long-planned rewrite of this article. Like my successful rewrite of Lawyer, I am working on an extremely dramatic revision (preserving as much useful text as possible) on a temporary subarticle of my talk page. Then next I will dig up lots of sources so that practically ever assertion will be backed up by a reliable source. Then I will do a couple more revisions for style and then overwrite the entire article with my new version. Unfortunately, because I am also busy with dozens of other priorities (like taking depositions), my revision will probably take at least six months to complete. But this is to give everyone a heads-up so they know what's going on when the entire article gets replaced down the road. -- Coolcaesar 17:29, 18 August 2007 (UTC)

Officially it's "attorney-at-law" with hyphens

...or so says Black's Law Dictionary. Anyone have a substantial reference that says otherwise? If nobody comes up with one for a few weeks, this entry should probably be moved to " Attorney-at-law". There is already a page of that title now, which had a redirect to "lawyer" instead of here - which is an even worse imprecision - I changed that one to redirect here in the meantime. - Reaverdrop 01:42, 5 February 2006 (UTC)

I concur that the correct usage is with hyphens. I am also appalled at how bad the text of this article has become since someone split it off the Lawyer article (as anyone can see from the history of the Lawyer article, I originally drafted much of this text for that article). Now that I have thoroughly researched and rewritten Lawyer, I may have to fix this one next!
Here is what I am planning to do in a few weeks: (1) Change unlicensed practice of law to unauthorized practice of law, which is the dominant usage among professional responsibility experts; (2) Move all the U.S.-related stuff to Lawyers in the United States; (3) Move all the Indian-related stuff to Lawyers in India; and (4) rewrite this article as a very general and brief article about attorneys at law in general and how that usage died out in the U.K. and many Commonwealth nations (because the position of solicitor was seen as more prestigious) but became the dominant usage in the United States and several other nations where the legal profession fused early on. Anyone have any objections? -- Coolcaesar 01:01, 8 March 2006 (UTC)

Deleted material regarding Juris Doctor

I have deleted language asserting that the Juris Doctor degree does not confer the title of "doctor." The article on Juris Doctor has been infected with this kind of material for some time. Let's leave it out of the article on Attorney at Law.

I'm going to make an assertion here: There is no such thing as a doctoral degree that does not confer the title of doctor. To state otherwise is in my opinion nonsensical. The edit wars on these kinds of things in the Juris Doctor or related articles detracts from the reliability and reputation of Wikipedia in my view. Let's keep this encyclopedic.

And let's keep edit wars about whether a particular doctoral degree "really" is or is not a doctoral degree out of the article on Attorney at Law. Please leave that battle -- if (sigh....) it has to be fought -- in some other place than in this article. Yours, Famspear 20:20, 4 August 2006 (UTC)

This is really just hatred against lawyers in the common law countries. In most civil law countries, it is commonly accepted that a lawyer is a "Doktor". In the US, it's the non-lawyer PhDs who resent the idea that U.S. lawyers, with their three years of grad school, have the same academic gravitas. I would bot object to including this in the entry. Excluding it seems to me to be an exercise is capitulation. Novaseeker 02:50, 23 June 2007 (UTC)

External link to a directory of lawyers

I removed the link to lawyers.com. There are many online directories of attorneys using search engine optimization to battle for the top spot. I don't think linking to one of them helps this article at all. -- DS1953 talk 21:01, 24 August 2006 (UTC)

How to Find a Lawyer and How to find an Attorney There should be Wikipedia articles on each of these two topics with suggestions to contact the local bar association as well as the professional bar association which covers the type of problem (for example the American Immigration Lawyers Association, the American Bankruptcy Institute, etc). The Wikipedia articles should link to this Attorney-at-Law article and to the Lawyer article as well as to Wikipedia articles on Bankruptcy, Immigration, etc. Some consumers will need this sort of help. I would try to set these up myself but am too new here to do this. ````

No, that would be against a ton of Wikipedia policies. Wikipedia is purely descriptive ("this is how something is") not prescriptive ("this is what you should do"). See Wikipedia:What Wikipedia is not, Wikipedia:Verifiability, and Wikipedia:Neutral point of view. Wikibooks is where "how-to" stuff goes. --Coolcaesar 02:48, 14 September 2006 (UTC)

Statistics on specialization and certification of specialties

I added some information on certification of specialists, using Texas as the example. One thing I am not sure of is: Of the 8,303 board certified specialists in Texas, are any considered inactive members of the Texas Bar ( i.e., are any part of the 11,000 inactive members, and not part of the approximately 77,000 active members)?

Also, for what it's worth, many thousands of the 77,000 active Texas Bar members are not currently engaged in the practice of law (i.e., they retain the active Texas Bar membership even though they're working in a field unrelated to law practice). Yours, Famspear 23:27, 22 September 2006 (UTC)

I am cleaning up this pigpen today

This article has been getting worse and worse over the past two years since it was split off from a section I originally drafted in Lawyer (trace the history back to 2004 if you don't believe me). I am at the library this afternoon with a pile of excellent books on the American legal profession, so I'm going to start fixing it. With citations. -- Coolcaesar 23:48, 2 December 2006 (UTC)

I am going to do a bit of fixing and cleaning myself, if you don't mind. I'm working on the WP:AR1 Legal articles project (se the Talk page under that rubric). Bearian 23:49, 10 April 2007 (UTC)
Feel free to clean it up. I've been much too busy with depositions to finish cleaning up this mess. --Coolcaesar 18:53, 13 April 2007 (UTC)

Neutrality

The phrase "Attorneys in private practice and small firms (who can't afford to litigate every little issue) v. big firms (who can)" is clearly POV in its wording. Tmrobertson 06:57, 12 February 2007 (UTC)

That's not POV; that's a cold economic fact. I will add a cite to one of the more pungent passages from Cameron Stracher's book Double Billing when I have the time. -- Coolcaesar 22:13, 17 February 2007 (UTC)

It is not the fact at all. Have you ever practiced law? You're basing this on some book? Furthermore, the bit about plaintiff's attorneys being only contingent is wrong. Who came up with this stuff????-- Davidwiz 20:23, 24 April 2007 (UTC)

You're implying that a statement based one's own practice of law would be better than something from a book. Wikipedia rules are just the opposite: an encyclopedia is not supposed to have first person research or expertise, but rather to bring together information from other authorities. To the extent that you think the information in this particular source is not settled fact, you should add a citation to an opposing source and document it as a controversy.

====

Please, please, please!! refrain to use the word "America" or "American" to make reference to the U.S.A. !!!, The U.S.A. is a country, but AMERICA is a continent that goes from Chile to Alaska...... the use of "America" for U.S. is only ignorance. —The preceding unsigned comment was added by 137.52.242.224 (talk • contribs). (on 3 April 2007, USA central daylight time)

Dear anonymous user at IP 137.52.242.224: The word "American," like many words in many languages, has more than one correct meaning.
American [ . . . ] adj. 1. Of, relating to, or characteristic of the United States of America, its people, culture, government, or history. American Heritage Dictionary, p. 102 (2d Coll. Ed. 1985) ;
American adj [ . . . ] 2. of or relating to the U.S. or its possessions or original territory. Webster's New Collegiate Dictionary, p. 37 (8th ed. 1976);
American [ . . . ] adj. 1. of, in, or characteristic of the U.S., its people, etc. Webster's New World Dictionary of the American Language, p. 44 (2d Coll. Ed. 1970).
The word "American" is properly used world wide in business, in law, in commerce, in science, in religion, in education, in virtually every aspect of human communication, to refer to the United States of America, and things and concepts related to the United States of America, and nothing that you or I say or write in Wikipedia or anywhere else will ever change this. This is a discussion page for the article Attorney at Law. Let's stay on topic. Yours, Famspear 02:33, 4 April 2007 (UTC)
PS: For an article covering the controversy about the use of the word "American," see the article entitled (what else?) Use of the word American. Yours, Famspear 03:06, 4 April 2007 (UTC)

I will be revising this article over the course of 2007

Now that I have got the Lawyer article mostly stabilized (with a few more minor issues to wrap up), I am thinking about cleaning up this article next.

Here are a few of my proposed changes:

  • Move to Attorney-at-law, the more common term
  • Research and footnote as many assertions as possible and delete all controversial assertions for which reliable, published sources are not readily available
  • Move a lot of detail to Legal education in the United States
  • Move a lot of detail to Juris Doctor
  • Restructure the section on the job of an attorney to more accurately reflect the differences in workflow between litigators and transactional lawyers, and between junior associates versus senior associates, of counsel, and partners

Any one have a problem with these proposals? This will take me a few months. --Coolcaesar 07:20, 1 May 2007 (UTC)


These all sound like good ideas to me. I've been cleaning up a bit of the text drafting over the past day or so -- I think it needs a lot of work. I mean, frankly, something that is being drafted by lawyers should read like pristine text, and this isn't really there yet. Novaseeker 14:07, 23 June 2007 (UTC)

jdfg

at the begining cant it just simply say what an attorney basically is, i didnt know what one was and I went here but it didnt help. Can't it just say that if your too sick to make a decision then they do or what ever it is

It's a bit too complicated for that. The intro already summarizes an incredibly complex topic quite well (although some of the later paragraphs still need work). -- Coolcaesar 17:30, 30 May 2007 (UTC)

Economic Position Of Attorneys Section Ignores Economics

This section is trying to say something about supply and demand, but seems to ignore the economic definition of supply and of demand as well as the Law of Supply And Demand. Since one of the statements is attributed to an ABA study, I assume there really is something to say here, but as it stands, it is gibberish, so I hope someone familiar with the facts can fix it.

The ABA said one third of demand wasn't met? Unless there are price caps I don't know about, the supply will always meet the demand. Maybe the ABA used some arbitrary criteria for of who deserves legal services and a third of those deserving couldn't afford it? Just guessing.

It also suggests that the fast-growing supply of lawyers to do high-priced legal services has caused a surplus of lawyers. Supply growing faster than demand cannot cause that all by itself; the market always clears in the long run. If there are large numbers of lawyers looking for work, it can only be due to the price not having adjusted itself yet -- i.e. those lawyers are erroneously still asking old-supply prices or the employers are erroneously assuming they have to pay old-supply prices. That's a temporary thing and the article should make that clear if that is in fact the situation.

Bryan Henderson 03:47, 2 July 2007 (UTC)

Media Image section: not very encyclopedic

I don't like the Media Image section at all. I'd just delete most of it, but maybe it's just me, so I'll just describe my feelings toward it to add to those of others who may come later:

The section reads like cheerleading for the legal profession, and a defense to an imagined insult. Every line of it gives reasons to appreciate lawyers; nothing remotely critical of lawyers appears.

I don't agree that the media, in general, portrays lawyers as the section claims. Certainly some TV shows and movies do. Any generalization about how the media as a whole portrays lawyers cannot be factual enough to put here. If there were a citation to a respected authority, I might accept such a generalization.

People work hard in all professions, and entertainment shows misrepresent lots of them. People know that. There is nothing noteworthy in how hard an attorney's job is to justify space here.

Something that would be useful is simply an objective breakdown of what the job entails (and there is another section already for that). But not as a rebuttal to a nonspecific argument from somewhere in the media that the job is something else.

Bryan Henderson 04:05, 2 July 2007 (UTC)


"Trial attorneys (who argue the facts, such as Johnnie Cochran) v. appellate attorneys (who argue the law, such as David Boies)" Trial attys don't argue the law? wtf? They argue both. Facts are meaningless without THE LAW. Whoever wrote this is a moron-- not a lawyer.

I have finally started my long-planned rewrite project

After thinking about this for over a year, I have started my long-planned rewrite of this article. Like my successful rewrite of Lawyer, I am working on an extremely dramatic revision (preserving as much useful text as possible) on a temporary subarticle of my talk page. Then next I will dig up lots of sources so that practically ever assertion will be backed up by a reliable source. Then I will do a couple more revisions for style and then overwrite the entire article with my new version. Unfortunately, because I am also busy with dozens of other priorities (like taking depositions), my revision will probably take at least six months to complete. But this is to give everyone a heads-up so they know what's going on when the entire article gets replaced down the road. -- Coolcaesar 17:29, 18 August 2007 (UTC)

 

Common law

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In common law legal systems, the law is created and/or refined by judges on a case-by-case basis. When there is no authoritative statement of the law, common law judges have the authority and duty to "make" law by creating precedent. [1] The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an "ideal" common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will resolve the matter itself, with reference to general legal guidelines. Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.

In practice, common law systems are considerably more complicated than the "ideal" system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between constitutional law, common law, statutory law and regulatory law also give rise to considerable complexity. However, stare decisis, the principle that similar cases should be decided according to similar rules, lies at the heart of all common law systems.

Common law legal systems are in widespread use, particularly in those nations which trace their legal heritage to England, including the United Kingdom , the United States, most of Canada, and other former colonies of the British Empire.

Contents

[hide]

Primary definitions

There are three main connotations for to the term common law, and several historical ones worth mentioning:

1. Common law as opposed to statutory law and regulatory law: This connotation distinguishes the authority that promulgated a law. For example, in most areas of law in most jurisdictions in the United States, there are "statutes" enacted by a legislature, "regulations" promulgated by executive branch agencies pursuant to a delegation of rule-making authority from a legislature, and common law or " case law", i.e. decisions issued by courts (or quasi-judicial tribunals within agencies). This first connotation can be further differentiated, into (a) laws that arise purely from the common law with no express statutory authority, e.g. most criminal law and procedural law before the 20th century, and even today, most of contract law and the law of torts, and (b) decisions that discuss and decide the fine boundaries and distinctions in written laws promulgated by other bodies, such as the Constitution, statutes and regulations. See statutory law and non-statutory law.
2. Common law legal systems as opposed to civil law legal systems: This connotation differentiates "common law" jurisdictions and legal systems from " civil law" or "code" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" just as are statutes. By contrast, in civil law jurisdictions (the legal tradition that prevails in most of the world), judicial precedent is given less weight, and contributions by scholars are given more. For example, the Napoleonic code expressly forbade French judges from pronouncing the law. [2]
3. Law as opposed to equity: This connotation differentiates "common law" (or just "law") from "equity". Before 1873, England had two parallel court systems, courts of "law" that could only award money damages and recognized only the legal owner of property, and courts of "equity" that could issue injunctive relief and recognized trusts of property. Most United States jurisdictions have merged the two courts, with exceptions noted in "Common Law Systems," below. Additionally, even before the separate courts were merged together, most courts were permitted to apply both law and equity (though under potentially different laws of procedure). Even so, the distinction between law and equity remains important in (a) categorising and prioritizing rights to property, (b) determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "common law" claim [3]) or whether the issue may be decided by a judge (issues of what the law is, and all issues relating to equity), and (c) in the principles that apply to the grant of equitable remedies by the courts.
4. Historical uses: In addition, there are several historical uses of the term that provide some background as to its meaning. The English Court of Common Pleas dealt with lawsuits in which the king had no interest, i.e. between commoners. Additionally, from at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice. The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit. The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions. These definitions are archaic, their relevance having dissipated with the development of the English legal system over the centuries, but they do explain the origin of the term.
 
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I,__________________________________________________________designate and appoint:
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 to be my agent for health care decisions and pursuant to the language stated below, on my behalf to:

(1) Consent, refuse consent, or withdraw consent to any care, treatment, service or procedure to maintain, diagnose or treat a physical or mental condition, and to make decisions about organ donation, autopsy and disposition of the body;
 (2) make all necessary arrangements at any hospital, psychiatric hospital or psychiatric treatment facility, hospice, nursing home or similar institution; to employ or discharge health care personnel to include physicians, psychiatrists, psychologists, dentists, nurses, therapists or any other person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care as the agent shall deem necessary for my physical, mental and emotional well being; and
 (3) request, receive and review any information, verbal or written, regarding my personal affairs or physical or mental health including medical and hospital records and to execute any releases of other documents that may be required in order to obtain such information.

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Effective Time

This durable power of attorney for health care decisions shall become effective (immediately and shall not be affected by my subsequent disability or incapacity or upon the occurrence of my disability or incapacity).

Revocation

Any durable power of attorney for health care decisions I have previously made is hereby revoked. (This durable power of attorney for health care decisions shall be revoked by an instrument in writing executed, witnessed or acknowledged in the same manner as required herein or set out another manner of revocation, if desired.)

Execution

Executed this date___________________, at city_______________________________, State___________

___________________________________________________
 (Principal)
 

This document must be: (1) Witnessed by two individuals of lawful age who are not the agent, not related to the principal by blood, marriage or adoption, not entitled to any portion of principal's estate and not financially responsible for principal's health care; OR (2) acknowledged by a notary public.

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 Witness

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 Address

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 Address

 
 
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An attorney at law (also known simply as an attorney or lawyer) in the United States is a person licensed to practice law by the highest court of a state or other jurisdiction. Alternative terms include attorney-at-law and attorney and counselor (or counsellor) at law.

The American legal system has a united (or fused) legal profession, and does not draw a distinction between lawyers who plead in court and those who do not. Many other common law jurisdictions, as well as some civil law jurisdictions, have a separation, such as the solicitor and barrister/advocate split in the United Kingdom and the advocate/civil law notary split in France. There is also no delegation of routine work to notaries public or their civil law equivalent in the American system.

Comparison: attorney-in-fact and attorney-at-law

Broadly speaking, an "attorney" is one who acts on behalf of another person in some capacity. An "attorney-in-fact" is akin to an agent who acts on behalf of another person, typically with respect to business, property, or personal matters. Such an agent does not have to be licensed to practice law and may not need to have any license at all.

By contrast an attorney-at-law, or lawyer, is a person trained and licensed by a relevant jurisdiction to practice law: to represent clients in legal matters and to give legal advice. In the United States, the term attorney, standing alone, generally refers to this meaning rather than "attorney-in-fact".

The term "attorney-in-fact" is mostly seen in the context of someone representing another person's interest in business negotiations or regarding signature pages on documents where the person signing is doing so on the basis of a power of attorney. The term power of attorney generally relates to an attorney-in-fact, not an attorney-at-law. Alternative titles for "power of attorney" type documents in non-U.S. jurisdictions include the French "Pouvoir" and the German "Vollmacht".

Comparison: attorney-at-law and Attorney General

The term Attorney General is used to designate the chief law enforcement officer of a state or other political jurisdiction. The attorney general is a lawyer who represents the government, prosecutes criminal cases, defends the government from lawsuits against it, and brings civil lawsuits to enforce consumer protection, antitrust, and other laws.

Comparison to older U.S. terminology and non-U.S. terminology

In common law jurisdictions outside the United States (e.g., England, Canada, Australia), attorney is incorrect as a general term, and lawyer or solicitor is used instead. However, in these areas, the specific terms crown attorney, power of attorney, and Attorney General, are used. In intellectual property, the term patent attorney is commonly used.

In earlier times, some states, as well as the U.S. Supreme Court, maintained a divided legal profession, as can still be found in the United Kingdom, consisting of attorneys (who practised in courts of equity), solicitors (who practised in courts of law) and barristers, also known as counsel, whom solicitors and attorneys instructed to appear in the higher courts. In deference to this practice, when an attorney at law is admitted to practice in some states, his or her certificate of admission bears the title Attorney and Counsellor-at-Law in recognition of his inheritance of both of these roles.

Some attorneys use the post-nominal Esq., the abbreviated form of the word Esquire.


Read more...
 
Basic principles of common law PDF Print E-mail

Basic principles of common law

Common law adjudication

In a common law jurisdiction, several stages of research and analysis are required to determine what "the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given, and determines what "the law is". Then, one applies that law to the facts.

The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast, the legislative process is very difficult to get started: legislatures do not act until a situation is totally intolerable. Because of this, legislative changes tend to be large, jarring and disruptive (either positively or negatively).

Interaction of statute and common law

In common law legal systems (connotation 2), the common law (connotation 1) is crucial to understanding almost all important areas of law. For example, in England and Wales and in most states of the United States, the basic laws of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods [4], or the criminal law [5]), other written laws generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the common law (connotation 1). To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. To consider but one example, the First Amendment to the United States Constitution states " Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" – but interpretation (that is, determining the fine boundaries, and resolving the tension between the "establishment" and "free exercise" clauses) of each of the important terms was delegated by Article III of the Constitution to the judicial branch [6], so that the current legal boundaries of the Constitutional text can only be determined by consulting the common law.

In common law jurisdictions, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law case law and custom, and so may leave a number of things unsaid. For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. ( Codification is the process of enacting a statute that collects and restates pre-existing law in a single document - when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.) In reliance on this assumption, modern statutes often leave a number of terms and fine distinctions unstated -- for example, a statute might be very brief, leaving the precise definition of terms unstated, under the assumption that these fine distinctions will be inherited from pre-existing common law. For this reason, even today American law schools teach the common law of crime as practised in England in 1789, because the backdrop of centuries-old English common law is necessary to interpret and fully understand the literal words of the modern criminal statute.

By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly – that is, limited to their precise terms – because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism ).

Where a tort is rooted in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.

The role of treatises and academic writings - one of several contrasts between common law and civil law

In many subject matter areas, legal treatises compile common law decisions and state overarching principles that, in the author's opinion, explain the results of the cases. However, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases.

This is one of the "cultural" differences between common law and civil law jurisdictions (connotation 2): in civil law jurisdictions, the writings of law professors are given significant weight by courts. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is. [7] When common law courts rely on scholarly work, it is almost always only for factual findings or for policy justification, but the court's legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary.

Common law as a foundation for commercial economies

This reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is common law to give reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful. This ability to predict gives more freedom to come close to the boundaries of the law. [8] For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply. In contrast, in non-common-law countries, fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult. Thus, in jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance must often leave a bigger "safety margin" of unexploited opportunities.

History of the common law

England before 1600


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Common law originally developed under the inquisitorial system in England during the 12th and 13th centuries,[9] as the collective judicial decisions that were based in tradition, custom and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts . The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.

Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity ( trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system – citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.

Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, which is where a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. By this system of precedent, decisions 'stuck' and became ossified, and so the pre-Norman system of disparate local customs was replaced by an elaborate and consistent system of laws that was common throughout the whole country, hence the name, "common law."

Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. Eventually, Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry's behalf. Whether Henry actually intended to bring about the assassination of Becket is doubtful, but there is no question that at the time of the murder, the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen. The murder of the Archbishop, who was immediately venerated as a martyr and later as a saint, gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes (see also Constitutions of Clarendon).

In spite of this setback, judge-made common law endured for centuries as the primary source of criminal and civil laws throughout the realm. Later, after Parliament acquired legislative powers, statutory law began to limit the scope of the common law in some areas. Even today, however, common law retains its status as an essential element of the British legal system.

The Common Law in the colonies and commonwealth – Reception statutes

Following the American Revolution, one of the first legislative acts undertaken by each of the newly independent states was to adopt "reception statutes" that gave legal effect to the existing body of English Common Law. [10] Some states enacted reception statutes as legislative statutes, while other states received the English common law through provisions of the state's constitution.

For example, the New York Constitution of 1777[11] provides that:

" [S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. "

Alexander Hamilton emphasized in The Federalistthat this New York constitutional provision expressly made the common law subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." [12] Thus, even when reception was effected by a constitution [13], the common law was still subject to alteration by a legislature's statute.

The Northwest Ordinance, which was approved by the Congress of the Confederation in 1787, guaranteed "judicial proceedings according to the course of the common law." Nathan Dane, the primary author of the Northwest Ordinance, viewed this provision as a default mechanism in the event that federal or territorial statutes were silent about a particular matter; he wrote that if "a statute makes an offence, and is silent as to the mode of trial, it shall be by jury, according to the course of the common law." [14] In effect, the provision operated as a reception statute, giving legal authority to the established common law in the vast territories where no states had yet been established.

Over time, as new states were formed from federal territories, these territorial reception statutes became obsolete and were re-enacted as state laws. For example, a reception statute enacted by legislation in the state of Washington requires that "[t]he common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state." [15] In this way, the common law was eventually incorporated into the legal systems of every state except Louisiana (which inherited its civil law system from France).

A similar statute exists in Article 8 of the Basic Law of Hong Kong.

1870 through 20th Century - Merger of Law and Equity


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As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens .

In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict.

In the United States, parallel systems of law (providing money damages, heard by a jury if either party so requests) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The United States federal courts procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new Federal Rules of Civil Procedure combined law and equity into one form of action, the "civil action." Fed.R.Civ.P. 2. The distinction survives to the extent that issues that were "common law" as of 1791 (the date of adoption of the Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.

Delaware and New Jersey still have separate courts of law and equity, for example, the Court of Chancery. In many states there are separate divisions for law and equity within one court.

Common law legal systems

Common law      Mixed system using common law
     Common law      Mixed system using common law

The common law constitutes the basis of the legal systems of: England and Wales, Northern Ireland, the Republic of Ireland, federal law in the United States and the states' laws (except Louisiana), federal law in Canada and the provinces' laws (except Quebec civil law), Australia (both federal and individual states), New Zealand, South Africa, India, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries (except Malta and Scotland and the Canadian province of Quebec)). Essentially, every country which has been colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that had been formerly colonised by other nations, such as Quebec (which follows French law to some extent), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law, except in the state of Goa which retains the Portuguese civil code. Nicaragua's legal system also is a mixture of the English Common Law and the Civil Law through the influence of British administration of the Eastern half of the country from the mid-1600's until about 1905, the William Walker period from about 1855 through 1857, USA interventions/occupations during the period from 1909 to 1933, the influence of USA institutions during the Somoza administrations (1933 through 1979) and the considerable importation between 1979 and the present of USA culture and institutions.

The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system.

The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for example, in matters of criminal law, commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s)).

Scotland is often said to use the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages). Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic (or 'mixed') legal systems operate in Quebec, Louisiana and South Africa.

The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)

The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherland -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.

The United States federal government (as opposed to the states) has a variant on a common law system. United States federal courts only act as interpreters of statutes and the constitution (to elaborate and precisely define the broad language, connotation 1(b) above), but, unlike state courts, do not act as an independent source of common law (connotation 1(a) above). Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution. In 1938, the U.S. Supreme Court in Erie Railroad Co. v. Tompkins 304 U.S. 64, 78 (1938), overruled earlier precedent[16], and held "There is no federal general common law," thus confining the federal courts to act only as interpreters of law originating elsewhere. Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution. Later courts have limited Erie slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests. See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government); Texas Industries v. Radcliff, 451 U.S. 630 (1981) (without an express grant of statutory authority, federal courts cannot create rules of intuitive justice, for example, a right to contribution from co-conspirators); see also International News Service v. Associated Press, 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding, but that is one of the handful of federal common law actions that survives today). Except on Constitutional issues, Congress is free to legislatively overrule federal courts' common law. [17]

 
Works on the common law PDF Print E-mail

Works on the common law

William Blackstone as illustrated in his Commentaries on the Laws of England.
William Blackstone as illustrated in his Commentaries on the Laws of England.

The definitive historical treatise on the common law is Commentaries on the Laws of England , written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law.

While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice Oliver Wendell Holmes Jr. published a short volume called The Common Law which remains a classic in the field. Unlike Blackstone and the Restatements, Holmes' book only briefly discusses what the law is; rather, Holmes describes the common law process.

In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, etc.), edited by the American Law Institute, collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law, and are considered highly-persuasive authority, just below binding precedential decisions. The Corpus Juris Secundum is an encyclopedia whose main content is a compendium of the common law and its variations throughout the various state jurisdictions.

Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and previous court decisions. The legal writings used are called Institutional Texts and come mostly from the 17th, 18th and 19th centuries. Examples include Craig, Jus Feudale (1655) and Stair, The Institutions of the Law of Scotland (1681).

Footnotes

  1. ^ Marbury v Madison, 5 U.S. 137 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.")
  2. ^ The differences between common and civil law jurisdictions are gradually becoming smaller, as common law jurisdictions enact statutes that cover areas formerly left to the common law, and civil law courts give increasing weight to precedent. Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, Corte suprema di Cassazione, Italy, 1982), in which the European Court of Justice holds that questions it has already answered need not be resubmitted, see ¶ 4. This brought in a distinctly common law principle into an essentially civil law jurisdiction. As the ECJ continues to follow this precedent and assumes that its rulings have precedential value, the distance between civil law and common law jurisdictions are shrinking.
  3. ^ "In Suits at common law ... the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."
  4. ^ E.g., Uniform Commercial Code, Article 2, on Contracts for the Sales of Goods
  5. ^ Model Penal Code as adopted in several states, for example, New York's Penal Law
  6. ^ Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2125, 29 L.Ed.2d 745 (1971) (a government-sponsored message violates the Establishment Clause if: (1) it does not have a secular purpose; (2) its principal or primary effect advances or inhibits religion; or (3) it creates an excessive entanglement of the government with religion.)
  7. ^ At least in the U.S., practicing lawyers tend to use "law professor" or "law review article" as a pejorative to describe a person or work that is insufficiently grounded in reality or practicality - every young lawyer is admonished repeatedly by senior lawyers not to write "law review articles."
  8. ^ See, e.g., Yeo Tiong Min, " A Note on Some Differences in English Law, New York Law, and Singapore Law" (2006). This is not to say that common law is better in every situation. For example, civil law can be clearer than case law when the legislature has had the foresight and diligence to address the precise set of applicable facts in a particular situation. For that reason, civil law statutes tend to be somewhat more detailed than statutes written by common law legislatures – but, conversely, that tends to make the statute more difficult to read. As a practical matter, no civil law legislature can ever address the full spectrum of factual possibilities in the breadth, depth and detail of the case law of the common law courts of even a smaller jurisdiction.
  9. ^ See The Development of Crime in Early English Society, Clarence Ray Jeffery, The Journal of Criminal Law, Criminology, and Police Science, Vol. 47, No. 6. (Mar. - Apr., 1957), pp. 647-666.
  10. ^ Glenn Lammi and James Chang, " Michigan High Court Ruling Offers Positive Guidance on Challenges to Tort Reform Laws" (December 17, 2004).
  11. ^ New York Constitution of 1777 via Avalon Project at Yale Law School.
  12. ^ Alexander Hamilton, Federalist 84 (1788).
  13. ^ Ironically, one of the first acts of many of the newly-independent states was to give effect to the law of a foreign sovereign.
  14. ^ Nathan Dane, 6 General Abridgment and Digest of American Law §182, art. 5, 230 (Cummings, Hilliard & Co. 1823).
  15. ^ Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835 (9th Cir. 2001).
  16. ^ Swift v. Tyson, 41 U.S. 1 (1842). In Swift, the United States Supreme Court had held that federal courts hearing cases brought under their diversity jurisdiction (allowing them to hear cases between parties from different states) had to apply the statutory law of the states, but not the common law developed by state courts. Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law. Erie v. Tompkins, 304 U.S. 64 (1938). Erie over-ruled Swift v. Tyson, and instead held that federal courts exercising diversity jurisdiction had to use all of the same substantive laws as the courts of the states in which they were located. As the Erie Court put it, there is no "general federal common law", the key word here being general. This history is elaborated in federal common law.
  17. ^ Milwaukee v. Illinois, 451 U.S. 304 (1981)

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Legal systems of the world

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World distribution of major legal traditions

The three major legal systems of the world today consist of civil law , common law and religious law. However, each country (see State (law) ) often develops variations on each system or incorporates many other features into the system.

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Civil law

Civil law is the most widespread system of law in the world. It is also known as European Continental law . The central source of law that is recognised as authoritative are codifications in a constitution or statute passed by legislature , to amend a code. Civil law systems mainly derive from the Roman Empire , and more particularly, the Corpus Juris Civilis issued by the Emperor Justinian ca. 529AD. This was an extensive reform of the law in the Eastern Empire, bringing it together into codified documents. Civil law today, in theory, is interpreted rather than developed or made by judges. Only legislative enactments (rather than judicialprecedents) are considered legally binding. However, in reality courts do pay attention to previous decisions, especially from higher courts.

Scholars of comparative law and economists promoting the legal origins theory usually subdivide civil law into three distinct groups:

A comprehensive list of countries that base their legal system on a codified civil law follows:

Country Description
Flag of Albania Albania The Civil Code of the Republic of Albania, 1991 really [1]
Flag of Angola Angola Based on Portuguese civil law
Flag of Argentina Argentina The Spanish legal tradition had a great influence on the Civil Code of Argentina, basically a work of the Argentinean jurist Dalmacio Vélez Sársfield, who dedicated five years of his life on this task. The Civil Code came into effect on January 1, 1871. Beyond the influence of the Spanish legal tradition, the Argentinian Civil Code was also inspired by the Draft of the Brazilian Civil Code, the Draft of the Spanish Civil Code of 1851, the Napoleonic code and the Chilean Civil Code. The sources of this Civil Code also include various theoretical legal works, mainly of the great French jurists of the 19th century. It was the first Civil Law that consciously adopted as its cornerstone the distinction between i. rights from obligations and ii. real property rights, thus distancing itself from the French model.

The Argentinian Civil Code was also in effect in Paraguay, as per a Paraguayan law of 1880, until the new Civil Code went in force in 1987.

During the second half of the 20th century, the German legal theory became increasingly influential in Argentina.

Flag of Andorra Andorra Courts apply the customary laws of Andorra, supplemented with Roman law and customary Catalan law. [1]
Flag of Armenia Armenia
Flag of Aruba Aruba Based on Dutch civil law
Flag of Austria Austria The Allgemeines bürgerliches Gesetzbuch (ABGB) of 1811
Flag of Azerbaijan Azerbaijan
Flag of Belarus Belarus
Flag of Belgium Belgium Influenced by the Napoleonic Code
Flag of Benin Benin
Flag of Bolivia Bolivia Influenced by the Napoleonic Code
Flag of Bosnia and Herzegovina Bosnia and Herzegovina
Flag of Brazil Brazil Derived from the Portuguese civil law
Flag of Bulgaria Bulgaria
Flag of Burkina Faso Burkina Faso
Flag of Burundi Burundi
Flag of Chad Chad
Flag of the People's Republic of China People's Republic of China based on civil law system; derived from Soviet and continental civil code legal principles.
Flag of the Republic of the Congo Republic of the Congo
Flag of the Democratic Republic of the Congo Democratic Republic of the Congo
Flag of Côte d'Ivoire Cote d'Ivoire
Flag of Cambodia Cambodia
Flag of Cape Verde Cape Verde Based on Portuguese civil law
Flag of the Central African Republic Central African Republic
Flag of Chile Chile The Spanish legal tradition exercised an especially great influence on the civil code of Chile. On its turn, the Chilean civil code influenced to a large degree the drafting of the civil codes of other Latin-American states. For instance, the codes of Ecuador (1861) and Colombia (1873) constituted faithful reproductions of the Chilean code, but for very few exceptions. The compiler of the Civil Code of Chile, Andrés Bello, worked for its completion for almost 30 years, using elements, of the Spanish law on the one hand, and of other Western laws, especially of the French one, on the other. Indeed, it is noted that he consulted and used all of the codes that had been issued till then, starting from the era of Justinian.

The Civil Code came into effect on January 1, 1857. Its technique is regarded as perfect; it is distinguished for the clarity, logic and cohesiveness of its provisions. As mentioned by Arminjon, Nolde, and Wolff ('Traite de droit comparé', Paris, 1950-1952) Andrés Bello may be regarded as one of the great legislators of mankind. The influence of the Napoleonic code is great; it is observed however that e.g. in many provisions of property law, the solutions of the French code civil were put aside in favor of pure Roman law.

Flag of Colombia Colombia Civil code introduced in 1873. Nearly faithful reproduction of the Chilean civil code
Flag of Costa Rica Costa Rica First Civil Code (a part of the General Code or Carrillo Code) came into effect in 1841 ; its text was inspired by the South Peruvian Civil Code of Marshal Andres de Santa Cruz. The present Civil Code is into effect since January 1st, 1888, and reveals the influenced by the Napoleonic Code and the Spanish Civil Code of 1889 (from its 1851 draft version).
Flag of Croatia Croatia Kazneni zakon RH- Great influence of Austro- Hungarian law system
Flag of Cuba Cuba Influenced by Spanish and American law with large elements of Communist legal theory.
Flag of the Czech Republic Czech Republic
Flag of Denmark Denmark Scandinavian-German civil law
Flag of the Dominican Republic Dominican Republic
Flag of Ecuador Ecuador Civil code introduced in 1861. Nearly faithful reproduction of the Chilean civil code
Flag of El Salvador El Salvador
Flag of Estonia Estonia
Flag of Finland Finland
Flag of France France Based on the Napoleonic code (code civil of 1804)
Flag of Equatorial Guinea Equatorial Guinea
Flag of Ethiopia Ethiopia
Flag of Gabon Gabon
Flag of Guinea Guinea
Flag of Guinea-Bissau Guinea-Bissau
Flag of Georgia (country) Georgia
Flag of Germany Germany The Bürgerliches Gesetzbuch of 1900
Flag of Greece Greece The Greek civil code of 1946, highly influenced by the German civil code of 1900 ( Bürgerliches Gesetzbuch); the Greek civil code replaced the Byzantine-Roman civil law in effect in Greece since its independence (Πομική Διάταξη της Ανατολικής Î§Î­Ï ÏƒÎ¿Ï… Ελλάδος, Legal Provision of Eastern Mainland Greece, November 1821: 'Οι Κοινωνικοί Πόμοι των Αειμνήστων Î§Ï Î¹ÏƒÏ„Î¹Î±Î½ÏŽÎ½ Î‘Ï…Ï„Î¿ÎºÏ Î±Ï„ÏŒÏ Ï‰Î½ της Ελλάδος μόνοι Î¹ÏƒÏ‡Ï Î¿Ï…ÏƒÎ¹ κατά το Ï€Î±Ï ÏŒÎ½ εις την Ανατολικήν Î§Î­Ï ÏƒÎ¿Î½ Ελλάδα', 'The Social [i.e. Civil] Laws of the Dear Departed Christian Emperors of Greece [referring to the Byzantine Emperors] alone are in effect at present in Eastern Mainland Greece')
Flag of Guatemala Guatemala Guatemala has had three Civil Codes: the first one from 1877, a new one introduced in 1933, and the one currently in force, which was passed in 1963. This Civil Code has suffered some reforms throughout the years, as well as a few derogations relating to areas which have subsequently been regulated by newer laws, such as the Code of Commerce and the Law of the National Registry of Persons. In general, it follows the tradition of the roman-french system of civil codification.

Regarding the theory of 'sources of law' in the Guatemalan legal system, the 'Ley del Organismo Judicial' recognizes 'the law' as the main legal source (in the sense of legislative texts), although it also establishes 'jurisprudence' as a complementary source. Although jurisprudence technically refers to judicial decisions in general, in practice it tends to be confused and identified with the concept of 'legal doctrine', which is a qualified series of identical resolutions in similar cases pronounced by higher courts (the Constitutional Court acting as a 'Tribunal de Amparo', and the Supreme Court acting as a 'Tribunal de Casación') whose theses become binding for lower courts.

Flag of Haiti Haiti Influenced by the Napoleonic Code
Flag of Honduras Honduras
Flag of Hungary Hungary
Flag of Iceland Iceland Based on Germanic traditional laws and influenced by Medieval Norwegian and Danish laws.
Flag of Italy Italy Based on codified Roman law, with elements of the Napoleonic civil code ; civil code of 1942 replaced the original one of 1865
Flag of Japan Japan Modeled after European (primarily German) civil law system. Japanese civil code of 1895.
Flag of Latvia Latvia Largely influenced by Germany, medium influences from Russian and Soviet law.
Flag of Lebanon Lebanon Modeled after French civil law
Flag of Lithuania Lithuania Modeled after Dutch civil law
Flag of Luxembourg Luxembourg Influenced by the Napoleonic Code
Flag of Macau Macau
Flag of the People's Republic of China (China)
Based on the Portuguese strand of the continental tradition, itself much influenced by Germany; also influenced by the law of the PRC
Flag of Mexico Mexico "The origins of Mexico's legal system are both ancient and classical, based on the Greek, Roman and French legal systems, and the Mexican system shares more in common with other legal systems throughout the world (especially those in Latin America and most of continental Europe)..." From: http://www.mexonline.com/lawreview.htm Jaime B. Berger Stender Attorney at Law author, Tijuana, B.C., Mexico
Flag of Mongolia Mongolia
Flag of the Netherlands Netherlands Influenced by the Napoleonic Code
Flag of Norway Norway Scandinavian-German civil law. King Magnus VI the Lawmender unified the regional laws into a single code of law for the whole kingdom in 1274. This was replaced by Christian V's Norwegian Code of 1687.
Flag of Panama Panama
Flag of Paraguay Paraguay The Paraguayan Civil Code in force since 1987 is largely influenced by the Napoleonic Code and the Argentinian Code
Flag of Peru Peru
Flag of Poland Poland The Polish Civil Code in force since 1965
Flag of Portugal Portugal Influenced by the Napoleonic Code and later by the German Civil Law
Flag of the Republic of China Republic of China (Taiwan)
Flag of Romania Romania Based on the Napoleonic Code
Flag of Russia Russia
Flag of Slovakia Slovakia
Flag of Slovenia Slovenia A Civil Law system influenced mostly by Germanic and Austro-Hungarian law systems
Flag of Spain Spain Influenced by the Napoleonic Code
Flag of Sweden Sweden Scandinavian-German civil law. Like all Scandinavian legal systems, it is distinguished by its traditional character and for the fact that it did not adopt elements of Roman law. It is indeed worth mentioning that it assimilated very few elements of foreign laws whatsoever. It is also interesting that the Napoleonic Code had no influence in codification of law in Scandinavia. The historical basis of the law of Sweden, just as for all Nordic countries, is the Old German law. Codification of the law started in Sweden during the 18th century, preceding the codifications of most other European countries. However, neither Sweden, nor any other Nordic state created a civil code of the kind of the Code Civil or the BGB.
Flag of Switzerland Switzerland The Zivilgesetzbuch of 1908 and 1912 (obligations; fifth book)
Flag of Turkey Turkey Modeled after the Swiss civil law (Zivilgesetzbuch) of 1907; this has been a conscious choice of Kemal Atatürk, the founder of the modern Turkish state, in order to abolish the Islamic law (Sharia), aiming at westernizing the country
Flag of Slovakia Slovakia
Flag of Uruguay Uruguay
Flag of the Vatican City Vatican City
Flag of Vietnam Vietnam Communist legal theory and French civil law
 
Common law PDF Print E-mail
King John of England signs the Magna Carta

Common law and equity are systems of law whose sources are the decisions in cases by judges. Alongside, every system will have a legislature that passes new laws and statutes, however these do not amend a collected and codified body of law. Common law comes from England and was inherited by Commonwealth of Nations countries, and almost every former colony of the British Empire (Malta and Scotland being exceptions). The doctrine of stare decisis or precedent by courts is the major innovation and difference to codified civil law systems.

Common law is currently in practice in Ireland , United Kingdom (excluding Scotland), Australia, India , South Africa, Canada (excluding Quebec), Hong Kong and the United States (excluding Louisiana) and many more places. In addition to these countries, several others have adapted the common law system into a mixed system. For example, Pakistan, India and Nigeria operate largely on a common law system, but incorporate religious law.

In the European Union the Court of Justice takes an approach mixing civil law (based on the treaties) with an attachment to the importance of case law. One of the most fundamental documents to shape common law is the Magna Carta[2] which placed limits on the power of the English Kings. It served as a kind of medieval bill of rights for the aristocracy and the judiciary who developed the law.

Country Description
Flag of Antigua and Barbuda Antigua and Barbuda based on English common law
Flag of Australia Australia based on English common law
Flag of the Bahamas Bahamas based on English common law
Flag of Barbados Barbados based on English common law
Flag of Belize Belize based on English common law
Flag of Bhutan Bhutan
Flag of the British Virgin Islands British Virgin Islands based on English common law
Flag of Canada Canada based on English common law, except in Flag of Quebec Quebec, where civil law system based on French law prevails
Flag of Dominica Dominica based on English common law
Flag of England Flag of Wales England and Wales
Flag of the United Kingdom (UK)
primarily common law, with early Roman and some modern continental influences
Flag of Fiji Fiji based on English common law
Flag of Ghana Ghana
Flag of Myanmar Myanmar based on English common law
Flag of Grenada Grenada based on English common law
Flag of Hong Kong Hong Kong
Flag of the People's Republic of China (China)
principally based on English common law
Flag of Ireland Republic of Ireland based on Irish law prior to 1920, which was itself based on English common law
Flag of Jamaica Jamaica based on English common law
Flag of Kiribati Kiribati based on English common law
Flag of the Marshall Islands Marshall Islands based on U.S. Law
Flag of Nauru Nauru based on English common law
Flag of New Zealand New Zealand based on English common law
Northern Ireland
Flag of the United Kingdom (UK)
based on Irish law prior to 1920, which was itself based on English common law
Flag of Palau Palau based on U.S. Law
Flag of Saint Kitts and Nevis Saint Kitts and Nevis based on English common law
Flag of Saint Vincent and the Grenadines Saint Vincent and the Grenadines based on English common law
Flag of Tonga Tonga based on English common law
Flag of Trinidad and Tobago Trinidad and Tobago based on English common law
Flag of Tuvalu Tuvalu based on English common law
Flag of Uganda Uganda based on English common law
Flag of the United States United States Federal court system based on English common law; each state has its own unique legal system, of which all but one (common Louisiana's, which is based on the Napoleonic Code ) is based on English common law
 
Religious law PDF Print E-mail

Religious law

Main article: Religious law
Aleppo Codex: 10th century Hebrew Bible with Masoretic pointing

Religious law refers to the notion of a religious system or document being used as a legal source. The use of religion for public law has a static and unalterable quality, precluding amendment through legislative acts of government or development through judicial precedent.

The main kinds of religious law are Halakha in Judaism, Sharia in Islam, and Canon law in some Christian groups. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country's legal system.

The Halakha is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. No country is fully governed by Halakha, but two Jewish people may decide, because of personal belief, to have a dispute heard by a Jewish court, and be bound by its rulings. Sharia Law governs a number of Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia Law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law.

Canon law is not religious law, properly speaking, because it is not found in revelation. Instead, it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual sitation of the church. Canon law regulates the internal ordering of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Canon law is amended and adapted by the legislative authority of the church, such as councils of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church, and the British Parliament for the Church of England.

[edit ] Pluralistic systems

[edit ] Civil law and common law

Country Description
Flag of Botswana Botswana South African law (a mixed system) transferred uno acto through a proclamation of reception
Flag of Cameroon Cameroon
Flag of Cyprus Cyprus Based on English common law (Cyprus was a British colony 1878-1960), with admixtures of French and Greek civil and public law, Italian civil law, Indian contract law, Greek Orthodox canon law, Muslim religious law, and Ottoman civil law.
Flag of Guyana Guyana
Flag of Israel Israel Originally (1948) based on English common law; in the process, influenced by German civil law—for instance, between 1962 and 1981, the Knesset issued twenty (20) wide-ranging laws, which were clearly influenced by European continental law, and were in the form of codes. Religious law plays a role, especially in matters of personal status and family law, and judicial and legislative decisions take into account Jewish law ( halakhah) on occasion.[3]
Flag of Lesotho Lesotho South African law (a mixed system) transferred uno acto through a proclamation of reception
common Louisiana
Flag of the United States (U.S.)
Based on the French Napoleonic Code; the modern legal system of the state of Louisiana has its origin in the Louisiana Purchase (i.e. the sale of Louisiana—not coterminous with the present eponymous state—by Napoleon to the United States of America in 1803), while federal laws (based on common law) are in effect in Louisiana as well.
Flag of Malta Malta Initially based on Roman Law and eventually progressed to the Code de Rohan, Code Napoleon with influences from Italian Civil Law. English common law however is also a source of Maltese Law, most notably in Public Law
Flag of Mauritius Mauritius
Flag of Namibia Namibia South African law (a mixed system) transferred uno acto through a proclamation of reception
Flag of the Philippines Philippines Based on Spanish law; influenced by U.S. common law after 1898 Spanish and Philippine-American Wars.
Flag of Puerto Rico Puerto Rico
Flag of the United States (U.S.)
Based on Spanish law; influenced by U.S. common law after 1898 (victory of the U.S. over Spain in the Spanish-American war of 1898 and cession of Puerto Rico to the U.S.)
Flag of Quebec Quebec
Flag of Canada (Canada)
After the defeat of the French in the battle at the Plains of Abraham , the British allowed them to keep their language (French ), their religion (Roman Catholicism), and their legal system ( civil law). However, as Quebec is part of the Canadian Confederation, English-based laws applied at the federal level are in effect in Quebec also.
Flag of Saint Lucia Saint Lucia
Flag of Scotland Scotland
Flag of the United Kingdom (UK)
based on Roman and continental law, with common law elements dating back to the High Middle Ages
Flag of the Seychelles Seychelles
Flag of South Africa South Africa An amalgam of English common law and Roman-Dutch civil law as well as Customary Law.
Flag of Sri Lanka Sri Lanka An amalgam of English common law, Roman-Dutch civil law and Customary Law
Flag of Swaziland Swaziland South African law (a mixed system) transferred uno acto through a proclamation of reception
Flag of Thailand Thailand
Flag of Vanuatu Vanuatu
Flag of Zimbabwe Zimbabwe South African law (a mixed system) transferred uno acto through a proclamation of reception

Civil law and religious law

Country Description
Flag of Algeria Algeria
Flag of the Comoros Comoros
Flag of Djibouti Djibouti
Flag of Egypt Egypt Based on Islamic law and French civil law system
Flag of Eritrea Eritrea
Flag of Indonesia Indonesia Based on civil law of Holland and adat (cultural law of Indonesia)
Flag of Morocco Morocco Based on Islamic law and French and Spanish civil law system

Common law and religious law

Country Description
Flag of Bahrain Bahrain
Flag of Bangladesh Bangladesh
Flag of Brunei Brunei
Flag of The Gambia Gambia
Flag of India India based on English common law, separate personal law codes apply to Muslims, Christians , and Hindus
Flag of Malaysia Malaysia based on English common law, and sharia law applies to Muslims
Flag of Oman Oman
Flag of Pakistan Pakistan based on English Common Law, some Islamic Law applications in inheritance . Tribal Law in FATA
Flag of Qatar Qatar
Flag of Singapore Singapore based on English common law

Systems by geography

Despite the usefulness of different classifications, every legal system has its own individual identity. Below are groups of legal systems, categorised by their geography. Click the "show" buttons on the right for the lists of countries.

[show ]
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Law of Africa
Sovereign states Algeria Â· Angola Â· Benin Â· Botswana Â· Burkina Faso  Â· Burundi Â· Cameroon Â· Cape Verde  Â· Central African Republic  Â· Chad Â· Comoros Â· Democratic Republic of the Congo Â· Republic of the Congo Â· Côte d'Ivoire (Ivory Coast)  Â· Djibouti Â· Egypt Â· Equatorial Guinea  Â· Eritrea Â· Ethiopia Â· Gabon Â· The Gambia Â· Ghana