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Bibliografische lnformation Der Deutschen Bibliothek
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Natlonalbibliografie;detaillierte bibliografische Daten sind im lnternet fiber
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Vorwort 6
WorterbuchEnglisch-Deutsch.. ..207
W6rterbuchDeutsch-Englisch.. ..399
Anhang ... . ... 603
Foreword ....... 7
Meaning of symbols 1T
Appendix .......603
INTRODUCTION TO THE AMERICAN LEGAL SYSTEM
by Prof. Dr. Frank Emmert, LL.M.1 and Professor Toni M. Fine, J.D.2
Contents
b) The Costs of Litigation, the Absence of Fee Shifting, and the Possibility of
Contingency Fees
c) Class Action Law Suits '
Vlll. Legal Education and the Legal Profession
1. From High Schoolto College to Law School
2. The American Bar Association
3. Legal Professionals
lK Finding American Law in Europe
Literature
be discussed in some detail in the next section dealing wlth precedent and the
principle of stare decr'sis.
The distinction between case law and statute law was of much more importance
histortcaily because neither the English nor the Arnerican system at first had stat-
utory legislation in areas such as tort law (unerlaubte Handlungen) or property law
(Sachenrecht). The resolution of disputes in these areas, therefore, required 'ludi-
cially created doctrine" - cas€ law - as the only alternative to denial of justice.
ln areas where there is legislation, by contrast, the relevance of case law ls more by
way of interpretation of the statutes. The same is true of case law interpreting the
U.S. Constitution, which reigns supreme in the U.S.legalsystern. And this is where
Anglo-American and Continental European law become more and more similar in
approach. What German lawyer would claim, for example, to understand the Ger-
man Civil Code (8GB) without the help of the Palandt or other commentarieVcase
law collections? While American lawyers may not resort to commentaries, they are
equally forced to look up case law to understand how statutes are applied in prac-
tice. The same development can also be observed with European Union law and its
interpretation by the European Court of Justice.
not really the same, for exampl€ because a law was changed; iii) the earlier case law
is not consistent, r'.e., some earlier decisions would favor the applicant, others
would favorthe defendant in the present case (although there are rules about more
recent and,/or higher court precedent having higher authority than older and/or
same levelcour.t decisions); iv) the precedent was not well-reasoned.
ln essence, therefore, ev€n a common law court can often escape the principle of
stare decisis by arguing one or more of the following:
- the facts are different
- the law has changed
- times have changed
- the earlier case(s) were decided wrongly, because...
That being said, let us look at precedent in continental European law. The notion
that judges on the Continent can interpret legislation without regard to earlier case
law is clearly enoneous. ln particular, if statutory law is not very detailed and/or
otherwise in need of interpretation to be applied to individual cases, courts and
judges would quickly come under attack and jeopardize their legitimacy if they
adopted their decisions without any regard to earlier decisions in similar casej,
ile., without explaining why they are adopting a different approach. Essentially,
therefore, the continental courts and judges are almost as much pressed to explain
that they do not follow an earlier case because
- the facts are different in the present case
- the law has changed
- times have changed
- the earlier case(s) were decided wrongly, because...
The remaining difference between Anglo-American law, where stare decrbls ap-
plies, and Continental European law, where it does not, is quite small, but impor-
tant: lf a continental European judge does not follow a precedent or the established
case law and does not explain why he or she does not "stay with the decision(s),,,
that alone does not justify/win an appeal.
3. Federal Law, State Law, and the Distribution of Legislative and Judicial
Authority
Fletcher and sheppard, in their book American Law in a Globat context, state that
"American law is basically state law." lndeed, when German lawyers study Arner-
ican law, one of the things that surprises us is the extent to whiah state law con-
tinues to exist in the united states and the extent to which the law may differ from
one state to another. Basically, most of private law (including contracts, torts, prop-
erty law, family law, but also commercial law and corporate law), as well as most of
criminal law, are first and foremost state law. There are, therefore, fifty different stat-
utes and systems of case law for the fifty states, plus the system and jurispru-
,dence for the District of columbia, i.e., the federal capital in washington D.c.,
and yet different systems for territories such as Puerto Rico. By contrast, federal
law is limited to those matters identified in the U.S. Constitution. These are matters
as to which national uniformity is necessary or highly desirable, such as issues of
immigration, intemational relations, war making powers, bankruptcy, and intellec-
tual property rights. This has far reaching consequences for the education and
practice of law. The prestigious law schools all cater to a nationwide population.
108
And there is hardly a textbook or casebook that focuses on the law of only one of
the fifty states. Every school and most books try to deal with ,,the law,' in the
abstraci. To take account of the differences between state laws, legal education
everywhere in America concentrates on fundamental or common principles which
are gleaned from leading cases frorn different states, rather than the German ap-
proach of careful and detailed interpretation of specific statutes with the help of
case law.
The American system of federalism, with limited powers expressly conferred upon
the federal government and all remaining powers resting with the several states,
requires fairly elaborate rules about the sharing of legislative and iudicial authority.
These rules are called "conflicts of law" rules, and rules about "jurisdiction." ln sub-
stance, they are not all that different from what we find in the European Union about
the sharing of legislative and judicial authority between the EU and its Member
States and among the different Member States.
ln the United States, the division of legislative authority between the federal govem-
ment and the state governments is determined by the U.S. Constitution, as inter-
preted by the U.S. Supreme Court. The Constitution itself and any legislation and
judicial decisions properly adopted pursuant to the Constitution are supreme over
any state laws, including the state constitutions.
The division of legislative authority among the several states is largely based on the
tenitoriality principle, Le., each state has authority over what is going on within its
territory regardless of the nationality or home state of the persons involved. The
personality principle is sometimes applied in federal law, which may regulate what
is done by or to Americans outside American territory but it is generally not used as
a basis for state.jurisdiction.
The jurisdiction of the courts of one particular state generally extends to any and all
cases that have a territorial link to that state (with the limited exception of subject
matters reserved for the federal courts, see below). This can easily lead to the
courts of several different states (potentially) having jurisdiction in a given case.
As a consequence, a good attorney may need to analyze a case under different
state laws before deciding where to bring it to court in the best interest of her client.
A judgment properly obtained in the courts of one state will subsequently be rec-
ognized.and enforceable in all other states under the "full faith and credit-clause" of
Article lV of the U.S. Constitution.
Jurisdiction of the federal courts may exist in parallel to jurisdiction of the courts of
one or more states. Generally, the federal courts can be called upon to hear cases
involving
r federal constitutional issues;
r federal statutory issues;
o "diversity cases", r'.e., disputes between residents of different states or between
an American and a foreign national, provided the amount in dispute exceeds
$ 75,000;
o "removal jurisdiction", i.e.,il a case was brought in the courts of a state other
than the home state of the defendant, it can be removed to the federal courts,
provided they also have (parallel) jurisdiction over the matter because it falls
under one of the above categories.
109
whole idea is to obtain a verdict that is exclusively based on the permissible evi-
dence and not in any way influenced by other factors that may or may not suggest
guilt.
2 Federal Statutes
Federal statutory law consists of laws passed by the United States Congress under
the procedures outlined by the U.S. Constitution. This includes passage of a bill by
a rnajority oJ both chambers of Congress. Occasionally, a federal statute can be
blocked from passage by a veto from the President (see Part U1.1. infral. A federal
statute is also subject for review by the federal courts and may be declared un-
constitutional. These are important elements of the separation of powers and
the system of checks and balances under the U.s. constitution, discussed in fur-
ther detail below.
3. State Law
The several states have legislative authority over all matters that are not expllcitly
reseled for federal legislation and those matters that are reserved for the federal
government but have not been fully dealt with by federal laws (yet) so as to preempt
state legislation. Within their proper legislative authority, the states determine them-
selves which matters they want to dealwith on the constitutional level, by legis-
lation, or by administrative regulation.
Most state courts are not only bound to respect the decisions of higher courts with-
in the same jurisdiction as mandatory authority but also those of other courts of the
same level within the same state. Again, in the absence of clear and unambiguous
mandatory law, they will resoft to any other court decisions (lower courts within the
same state, any state court of any other state, any federal courts) for persuasive
authority.
5. Secondary Sources
b) Commercial Publications
Commercial publications are generally similar to those in Germany and other Eu-
ropean countries. There are academic publications like treatises, textbooks, case:
books, and legal periodicals; there are dictionaries and encyclopedias of legal
terms and issues; and of course there is a rapidly growing number of sources
on the internet. Three differences to the situation in Europe shall be mentioned
briefly. First, the significance of casebooks for law school teaching and for legal
research is far greater than in Germany, which follows logically from the greater
113
reliance on case law. Second, and by contrast to the first observation, article-by-
article commentaries of statutory law (such as the Palandf for the 8GB), are virtually
unknown. Finally, the number and quality of legal periodicals is much higher than
what we find in Europe. While we find not much more than half a dozen high quality
legal periodicals ln Germany that rnore or less everyone should be aware of, the
number of such publications in the United States certainly exceeds one hundred.
The committee or sub-committee may receive input from lntemal and extemal ex-
perts in writing or ln public hearings and it may be assisted by the Office of Legis-
lative Counsel of the respective chamber ln the drafting of the actual legislation. At
the end of the procedure, the committee votes on the proposal and decides on one
of three possible outcomes: the bill may be reported favorably and sent to the entire
chamber for adoption, together with explanations about its legislatlve history cost,
purpose, etc; alternatively, a blll may be defeated in committee; finally, it may be
"tabled", Le., postponed until further,notice. The last-mentioned outcome is prob-
ably the most frequent.
lf a bill is approved by the respective committee of one house of Congress, it is then
brought before that entire chamber (r'to the floor"). At this stage, further discussion
may ensue and amendments may be made. Eventually, the chamberwill vote on the
proposaland if thebillissupported bya majority, itgoestotheotherhouseforasimilar
procedure, from scrutiny bytherespectivecommittee(s) to avoteonthefloor. Similar
or identical bills may and often do proceed through both chambers simultaneously.
lf both housespassanidenticalbillbymajorityvote, itgoesstraighttothe Presidentto
besigned intolaw. Thebillbecomes lawif signed bythe Presidentwithinten daysor, if
the President does nothing, the bill becomes law automatically after ten days when
Congress is in session. However, if the President vetoes the bill, it is sent backto Con-
gresswith an explanation oftheveto. ln suchacase, the billdies, unlessthe presiden-
tial veto is ovenidden by a two-thirds majority vote in both houses of Congress.
lf the two houses of Congress adopt different versions of the same bill, a confer-
ence committee has to look at the drafts and try to develop a mutually acceptable
compromise. This committee consists of members of both houses. lf they are suc-
cessful, the bill goes back for another vote on the floor of each house and if now
accepted in identicalform by majority of both houses, it can then proceed to the
President for signature (or veto).
& The Role of the President of the Unlted States and the Federal Govemment
The President of the United States is the chief executive officer of the United States.
duties, as outlined ln the Constitution, are to be Commander in Chief;to make
.His
treaties, with the advice and consent of the Senate; and to nominate and, with the
advice and consent of the Senate, appoint public ministers, consuls, ambassadors,
and all federal court judges. The President is elected for a term of four years, and he
miy run for re-election, but not beyond one second term.
Once elected, the President selects a cabinet. Each member of the cabinet is the
head of a department in the executive branch. Cabinet members include th6 Sec-
,retary of State (Aussenminister), the Secretary of Defense, the Secretary of the
Treasury, and the Attorney General (roughly Jusfi2mrntlster). ln addition to these de-
partments, the executive branch of the federal government includes a wide range
of so-called "independent agencies." These agencies are headed by collegial bo-
dies and supported by a large staff, most of whom are civil service employees and
whose employment does not vary with the curent administration.
The administration, writ large, has the job of executing or enforcing federal law as
seldown by Congress. Thls is accomplished primarilythrough rulemaking, investi-
gation, and enforcement activities.
1. Contract Law
The Restatement (Second) defines a contract as a promise, for the breach of which
the law provides a remedy. With few exceptions, American law will not enforce con-
tracts unless they are evidenced by some written document, which does not have
to be the contract itself. Another difference to Continental European law is the re-
quiiement of "consideration." Simply stated, American law will not enforce a prom-
ise unless some kind of consideration was agreed upon in return. ln most cases,
this is not a problem since the vast majority of contracts require payment in return
foi good or seruices. However, one kind of promise continues to create problems to
this day, namely the irrevocable offer. lf one pafty to an agreement promises not to
revoke an offer but does not get anything for this promise, it is generally not en-
forceable. One way of circumventing the problem is to pay a nominalsum - one
dollar-forthe inevocable offer. The Uniform CommercialCode (UCC)providesthe
option of making an offer inevocable by putting it down in writing. Courts have
ioccasionally enforced an offer merely on the ground that the other side relied
on it and made investments of time and money.
2. Torts
Similar to the German system ol "unerlaubte Handlung" ($ 823 8GB), U.S. law rec-
ognizes claims for compensation in cases where a wrong was done by one person
to another outside of a contractual relationship. Generally, such claims require that
the wrong was done intentionally (absichfiich), negligently (fahddssrg), or in the con-
116
text of a high risk activity where any kind of damage may have to be compensated,
even in the absence of any negligence. The tatter case is called "strict liability" or
"no-fault liability" in the U.S. (Gefilhrdungshaftung\, while the former two are based
on fault. The standard, whether or not a person acted negligently, is based on what
areasonable person would have done in the circumstances. This question, in turn,
is generally decided by a jury of lay persons, who also determine which elements of
damage should be compensated and by how much. The fact that many juries have
tended to favor the individual over large corporations or insurance companies,
combined with the fact that damages can be awarded not only for property dam-
age and medical expenses but also for pain and suffering, explains the occasional
judgment that makes headlines as far away as Europe, when very large sums of
money are awarded for seemingly strange incidents (for example, when a plaintiff
was awarded $ 160,000 in damages plus $ 2.7 million in punitive damages after she
bought coffee at a drive-thru McDonalds, put the cup between her legs, opened it
while driving to add sugar and milk, spilled the coffee, and burned herself, see Lie-
beck v. McDonald's Restaurants, No. CV-93-O2419 - N.M. Dist. Aug. 18, 1994).
While the U.S. system tends to award higher sums for comparable torts than, for
example, the German system, and some of these awards are genuinely unreason-
able, the U.S. system does have a number of strengths. ln combination with certain
features of procedural law, most notably, the American system provides access to
court even for persons who cannot afford to hire a lawyer and take their case to
court. These features will be discussed beloq in the context of procedural law in
civiltrials.
3. Property Law
Private property has a special significance for Americans. The Fifth Amendment to
the Constitution, part of the Bill of Rights, stipulates the trilogy of "life, liberty, [and]
property" that are the core freedoms in this country. Deprivations of property, in
particular real property, rnust not occur "without due process of law" and - if prop-
efty has to be taken for public use - there must be "just compensation." This differs
significantly from the treatment of property in the German Grundgesea and other
European constitutions that often emphasize that property entails obligations (So-
zialbindung).
This background needs to be kept in mind for any analysis of American property law
cases. Land owners can first of all object to the "taking" of their land, Le., the ex-
propriation, whether by the federal govemment or any state or local authority. They
also have remedies against trespassers, Le., unauthorized entrants, as well as nui-
sances originating from neighboring properties. One issue that remains hotly con-
tested is the question when a public regulation of land us€, for example in the form
of zoning regulations (Bauplanungsrecht) or environmental regulations; has such a
serious impact on a property that it constitutes a "taking" in the sense of the Fifth
Amendment and, therefore, must be compensated.
4. Commercial Law
The federal legislature does not have broad powers over commercial law. lt is
merely entitled to regulate "interstate commerce", Le., commercial transactions
that extend beyond the borders of one state. Theoretically, this power could be
117
Family law, as well as trusts and estates (Erbrecht), are also areas of
state lagis_
lative powers. Federal law impacts state law in two ways: Federal constitutional
law, in particularvia the Bill of Rights, is blnding upon the state legislatures,
courts,
and administrations. Furthermore, federal powers of taxation and-social
welfare are
of practical relevance in many family or estate cases.
of pages, even if the undedying transaction seems quite straightforurrard, and in-
clude obligations that would seem perfectly obvious to a German lawyer, for ex-
ample that each side should be honest and should not violate the principle of good
faith. Naturally, American attorneys have allthe standard clauses pre-formulated
on their computer harddisks and just copy-paste the relevant provisions into each
new contract. unfortunately, however, these so-called "boilerplate" terms do not
always fit and the lengthy documents alltoo often are not very carefully read. The
effortto avoid any kind of ambiguities at dllcost by having highty detailed provisions
in the contract is,then turned on its head and ambiguous or contradictory terms can
be imported involuntarily.
other surprising features of American law will be discussed below, when the stan-
dard civiltrial is described in some detailthrough its various stages.
V. Criminal Law
The common origins of English and Amerlcan criminal law lie in case law. Nowa-
days, at least in pad because of the principle nullum cimen sine lege, nulla poena
sine lege, criminal law is statute law. ln the United States, criminal law is also largely
state law and while most of the major crimes - felonies - are quite similarly defined
from one state to the other, the laws about minor crimes - misdemeanors - and
petty offenses can differ considerably. Notable differences between the states will
also be found with respect to the punishments prescribed for the different crimes.
some states quickly resort to jail sentences while others prefer fines, probation,
and other sanctions for less serious crimes. A bit more than half the states -
and this number is growing again in recent times - provides for the death penalty
for the most serious crimes. A certain degree of harmonization between different
state laws, in particular with regard to general principles of criminal law on issues
such as culpability, causation, justification, and responsibility, has been achieved
with the help of the Model Penal code, developed under the auspices of the Amer-
ican Law lnstitute.
Federal powers exist for interstate crimes, such as drug trafficking across state
borders, and for crimes committed on federal property. These powers also cover
national security concerns and are of particular importance with the cunent expan-
sion of laws against terrorism.
late courts and standing usually requires direct concern and exhaustion of all ad-
ministrative remedies.
ant has to compensats the plaintiff for his or her damages and by how much. ln a
criminal trial, the jury decidesthe question of guilt butdoes not prescribethe punish-
ment in the event of a conviction, with one important exception: only a lury can re-
commend a sentence of death in those jurisdictions in which it is permitted.
After the actual trial is over, three things can still happen. First, the losing party may
submit post-trial motions, ln particular a motion for judgment nov (non obstante
veridicto), that is for setting aside the jury's verdict as unreasonable, or a motion
for a new trial, for example if evidence was concealed by one party, or if there was a
mistake made during the trial. Second, the losing party may appeal the judgment to
the court of second instance. Finally, if the judgment becomes enforceable, the
winnlng party may need a writ of execution, i.e,, an additional court order, if the
losing pafty does not pay or otherwise perform voluntarily.
dential business data. This may go so far that some European countries, including
the tJnited Kingdom and Switzerland, forexample, have adopted blocking stahrtes
or laws that prohibit persons and companies undertheir jurisdiction from providing
certain kinds of documents or information in response to American extratenitorial
discovery.
lnternationally, the matter of discovery is govemed by the Hague Convention on the
Taking of Evidence Abroad in Civil or Commercial Matters of 't 8 March 1970 (http://
hcch.e-vision.nl/index-en.php?act=conventions.text&cid=82), yvhich is based on
voluntary collaboration, Le., more the Continental European approach. Negotia-
tions on a Preliminary Draft Convention on Jurisdiction and Foreign Judgments
in Civil and Commercial Matters, which would essentially extend the Lugano Con-
vention andlor Brussels I Regulation (Regulation 4412001) to the United States and
other interested non-European countries, are stuck precisely because of disagree-
ment on issues related to discovery and admissible evidence.
b) The Costs of Litigation, the Absence of Fee Shifting, and the Possibility of
Contingency Fees
While it is customary in the United States to oblige the losing party to pay the rel-
atively modest court fees, including the expenses for the jury, each side normally
has to pay his or her attorney's fees regardless of the outcome of the case. This
absence of fee shifting has important consequences. Since the court fees are in-
dependent of the amount of money requested or received, and each side has to
pay his or her own attorney's fees anyway, there is no disincentive against demand-
ing outrageously large sums of money. To give a practical example: lf a person is
injured in an accident at work and, as a consequence, permanently confined to a
wheelchair, a German attorney will seek one million Euro in compensation from the
employer if precedent indicates that this seems to be the obtainable amount forthis
kind of inlury. Should the German attorney seek 100 million Euro instead and still get
1 million Euro, she would have lost 99 Yo ol the claim and the plaintiff would be
required to pay all of the court fees and all of the regular attorney's fees of both
sides. ln the end, because the fees increase with the amount in dispute, the costs
of the proceedings would exceed the 1 million Euro award.
By contrast, no such thing can happen in America. Even if precedent would indicate
that the likely compensation for the injury will be around 1 million dollars, plaintiff's
counsel is likely to seek 100 million dollars in compensation. Even if only 1 million
dollars is awarded by the jury the court fees would be entirely placed on the losing
employer and the attorney's fees would be borne by each side separately. And
these fees would not be tied in any way to the amount of the initial claim.
Furthermore, the plaintitf may have entered into a contingency fee anangement with
his or her lawyer. Undersuch an agreement, the lawyer receives a cedain percentage
(usually between 20 and 40 %, depending on the amount of work and the amount of
moneyinvolved)of whatever sum of moneyshe can obtain for herclient. lmportantly,
the lawyer gets nothing if the client loses and the lawyer may even be stuck with the
court fees. Thus, the litigation can become virtually risk-free for the client.
The possibility of contingency fees is important for attorneys, who can make a lot of
moneyif theycanwin large,awardsfortheirclients. ln ourexample, if the juryshould
return an award of 10 million dollars forthe disabled plaintiff, the lawyer might get as
much as 4 million dollars. However, the contingency fee system also has benefits
123
for the clients, ln particular if they do not have enough money to hire experienced
and/or well-known attomeys and pay their court fees, etc., up front.
of the so-called Bologna reforms, r'.e., the introduction of bachelor and master de-
grees in the EU Member States, including Germany. However, some important dif-
ferences remain.
School children are segregated at an early age in Germany, usually after four years
of elementary school. Those who are more academically inclined - or who simply
had the highest grades - continue after grade 4 in high school (Gymnasium). Those
who are more practically inclined go to vocational school (Pea/schu/e). And those
who are at the lowest end of the grade spectrum and unable to pass the admission
tests eitherfor high school or for vocational school, essentially remain in elementary
school, although it is now called middle school (Mittelschule). All this happens
around the age of 9 or 10 and has far reaching consequences for future opportu-
nities, since in pdndfle only graduates of high school are admitted to higher edu-
cation at universities and universities of applied science (Fachhochschulenl. At
course, there are some exceptions and some children manage to switch tracks
or to obtain a high school diploma ((Fach)Abitur) after going to vocatlonal school,
but the basio distinction remains true for the large majority of students.
Since all law schools in Germany are at university level, only those 30 or so per cent
of children who graduate from high school are even eligible to pursue studies in.law.
On the other hand, the law schools - with one exception - are all public and do not
have the right to administer their own admission tests. ln effect, pretty much any
high schoolgraduate who is so inclined can study law in Germany and this is usual-
ly done right after high school. Until a few years ago, law school effectively took five
years, generating graduates with an average age of around 24.The average dura-
tion of law school has effectively been reduced to four years recently and, therefore,
graduates are even younger these days.
During law school, German students do not face very many and very difficult
exams. While there are significant differences from one federal state to the next,
the main examinations are at the end of the entire study program and cover every-
thing that should have been taught during those four years. With average failing
rates in the magnitude of SOVo and a limit of only one second attempt, the final
law school exams (Erstes Staatsexarnen) are daunting for most students, who tend
to spend the final year or even two years of their law studies in intensive preparation
for the final exams, often with the help of private tutors (Fepetitorien).
Once graduated from law school, most students continue their education with a
cycle of intemships in the public administration, courts, and private law firms. ln
parallel, they receive training in areas such as drafting of legal briefs and judgments.
Furthermore, the students, who are now called "Referendare" usually take prepar-
atory classes for the bar exam (Zweites Staatsexarnen).'After about two years of
rotating intemships, the students finally take the bar exam and - if successful- are
now considered fully qualified for any legal profession, including practice as attor-
neys, prosecutors, or judges.
The American system differs from the grgund up. All children are generally entitled
to proceed from elementary school (4 years) to middle school (4 years) and on to
high school (another 4 years). Although there are always some students who drop
out of the system and fail to graduate, the large majority of American students ob-
tains a high school diploma after lwelve years of schooling. Those 40-45 o/o who
want to pursue higher education then apply to one of more than 1,000 American
colleges or universities to study for a bachelor degree. This is usually another study
125
program of four yqars and can be divided in two years of more general
studies
(somewhat cornparable to the final two years of '|3-year high school programs
in Bavaria or Baden-whrttembergl and two years of specialized or profeslional
studies. The students usually have a choice of a number of different subjects
for the last two years of college, such as liberal arts, education, political science,
physics, etc. only a few colleges offer a specialization in law, whiih is then
called a
pre-law program because it does not provide a law degree but only a preparation
for law school. The majority of Americans do not pursu€ higher educaiion'beyond
the bachelor level.
,Those who want to go into law, however, apply to one or several of the approxi-
mately 190 law schools that are accredited by the American Bar Association and
thus able to confer the degree - called Junb Doctor (J.D.)- that entiges its bearer to
take a state bar exam and, if successful, to practice as attorneys. Most law pro-
grams are three-year programs and extremely demanding. students take
an aver-
age of 15 credits per semester for a total of 90 credits for graduation. One credlt
is
equivalent to one hour of in-class time every week over a term of 14 or 15 weeks. ln
addition to some 15 hours per week in the classroom, students have to prepare
enornous reading assignments, dozens of cases, and other projects every week.
ln class attendance is required and students are regularly called upon to demon-
strate their understanding of the cases and materials under discussion. professors
have not only name lists but seating charts with pictures and keep track of the per-
formance of each and every student. During and at the end of each course, there
are written exams and students obtain onlf credit for courses successfully com-
pleted. By contrast, at the end of the three-year law program, there are
no final
exams and no final theses requirements. There is, of course, the bar exam...
while both the German (and continental European) system(s) and the American
system of (higher) education have obvious strengths and weaknesses, there
are three important features in the American system that make it superior, at least
in our view:
1) children are not segregated at the early age of 9 or 10;
2) the colleges provide a broader education at high level and a specialization
besides law;
3) the law schools are much more efficient, they select their students from many
more applicants, and exercise high pressure on the students and teachers to
work hard every day, which in turn results in low failure rates.
Finally, the American system has one more feature that is at the same time an ad-
vantage and a disadvantage: students have to pay tuition for their higher educa-
tion. This can range from as little as $ 5-10,000 per year at public colleges to more
than $ 30,000 per year at the best private colleges and law schools. The olsadvant-
age of this system is not so much that only rich families can send their children to
university. First, there are many scholarship opportunities for top performing and/or
needy students. second, and more importantly, the large majority of students
nowadays finances their studies by taking loans from banks and specialized lend-
ing institutions. ln this way, higher education is generally open to everyone in spite
of the high cost. However, the disadvantage is that many students eveitually giad-
uate from law school with $ 100,000 and more in student loans that need to be re-
paid over time, and are thus forced to seek lucrative employment in large
commer-
126
cial law finns, even if they would be more inclined towards a job in the public ad-
ministration or in the non-profit sector.
while the high fees are not exactly popular with the students they do provide the
educational institutions with the means that are needed in the 21it century to pro-
vide a world-class education with the best available professors, modern, ciean'and
pleasant buildings and classroorns, the latest lTequipment, well-stocked
libraries,
plenty of individual attention for the students, and many more attributes
that one
will not easily find in Europe. Finally, the fact that the students pay a lot of money for
their education, also makes them demanding customers who will carefully select
their school in order to get the best value for their money and who will keep pushing
every slngle professor and every person in the administration to give theiivery beJt
every day. unsurprisingly, the open door and can-do policy in American law
schools is, therefore, probably the most important difference to their German
and continental European counterparts where students are often treated more
as a disturbance by the professors than as valued customers and colleagues.
3. Legal Professionals
As may be expected, we find American law school graduates in quite similar pro-
fessions as their German counterparts. The majority practices law as ,,Attorneys at
Law." Then there are judges and public prosecutors (staatsanwri/te), lawyers work-
ing as in-house counsel for larger corporations or public bodies, and a growing
number of lawyers in not-for-profit organizations.
A few differences to the Continental European systems shall be briefly mentioned.
. Attorneys are admitted to the bar in one or more states after having passed the
bar exam for this or these state(s), as well as the admission criteriJ of the state
bar association(s). More than 50,000 new law graduates pass the bar exams in
the fifty states each year and altogether there are over 1 million lawyers admitted
to practice in the United States.
o Lawyers can move between the different legal professions much more easily
than it is customary in Europe. For example, an attorney'may be appointed
to a professorship at a law school, return to private practice after some years,
and later in life become a judge. Academlcs may leave university to practice law
or take up judicial or political appointments. lncreasingly, lawyers manage to
fulfill more than one function simultaneously.
. Attorneys may work as single practitioners, or as associates or paftners in law
firms. About a quarter of all attorneys work in large law firms that employ several
127
hundred lawyers and have offices in ditferent cities and states of the U.s. and
abroad.
o Federaljudges are appointed by the President and have to be confirmed by the
senate. state court iudges at the lower levels are usually elected by the loCd or
state population, while judges at the highest state courts are increasingly ap-
,pointed by the respective governors.
o Judicialappointments are usually for a limited term of four to ten years. Theo-
retically, this could cause concem about the independence of the judges but in
practice sitting judges are usually confirmed in office if they seek re-appoint-
ment. Appointments to all federal courts and some of the state courts are for life.
o law teachers may be appointed straight out of law school. Many professors
never obtain more than the standard juris doctor, although an academic doc-
torate (Ph.D.) is nowadays an advantage for applicants. The first appointment
is usually on a "tenure track," a kind of probation period of some five to seven
years, during which the teaching and service record and the quantity and quality
of academic puhlications is monitored by other faculty rnembers. Upon suc-
cessful completion of this period, professors are tenured, i.e., appointed for life.
By contrast to German professors with Beamfenstatus, even tenured professors
can be removed from office if their performance becomes unacceptable.
the case-law of the other federal courts, is less readily available unless one has ac-
cess to Westlaw and/or LexiVNexis.
The constitutions and statutes, as well as other primary law sources of the several
states can be accessed "officially" via their respective government websites, for
example at http://www.leginfo.ca.gov/index.html. Again, Findlaw offers a conven-
ient alternative, albeit "unoffical", see http://www.findlaw.com/casecode/index.
html/statelaw.
Via Google and other search engines, other sources of American law can be found
quite easily, in particular the websites of various law schools and law libraries.'
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