M A S A R Y K U N I V E R S I T Y INTRODUCTION TO U.S. LAW AND LEGAL ETHICS Course Outline and Syllabus Visiting Professor Joseph F. Vosicky, Jr. Spring, 2010 Suggested Text: Fine, American Legal Systems: A Resource and Reference Guide, Anderson Publishing Co. Burnham, Introduction to the Law and Legal System of the United States, West [Publishing] Group Foonberg, How to Start + Build a Law Practice, American Bar Association Fox Legal Tender, (A Lawyer's Guide to Handling Professional Dilemmas), American Bar Association Morgan + Rotunda, Professional Responsibility Problems and Materials, Foundation Press CLASS #1 Monday, 19/4 11:10 ­ 12:40 Room No. 025 Common Law Tradition: ,,Stare Decisis" Legal Authority: Constitution, Statutes, Case Law Adversary System of Dispute Resolution Case Titles, Terminology + Briefing Structure of American Courts (Federal + State) Civil v. Criminal Division of Local Courts + Alternative Dispute Resolution Jurisdiction in Federal Court Civil Law: Tort + Contract (See, Addendum below) CLASS #2 Tuesday, 20/4 15:05 ­ 16:35 Room No. 133 How Federal Court Applies State Law + Interprets Statutes: AAR Aircraft v. Edwards Choice of Law and Finding the ,,Rule" or ,,Holding" of Court Due Process (5th + 14th Amendments to U.S. Const.) Jury Trials + Jury Demand -2Judges in American System (State v. Federal) Role of Judge in Court Relationship between Judges + Attorneys (Civility in Ct. Rooms) Judicial Mentoring + Continuing Legal Education CLASS #3 Wednesday, 21/4 16:40 ­ 18:10 Room No. 133 Attorney-Client Relationship Keeping Confidences, Maintaining Contact, Safeguarding Funds Billing Clients, Fee Disputes; In Re Pyzik (When a Big Law Firm Sends You a Case, Send It Back.) ,,Officer of the Court" ­ Fox's Legal Tender Admission to Bar (American + Czech) In Re Edward Loss Attorney Liability Insurance Liability of Law Firm for Its Lawyers ,,Himmel" Duty to Report Unethical Conduct In re Himmel, 125 Ill.2d 531 (1988) RPC Rule 8.3(a) with 8.4(a)(3) or (a)(4) Illinois Rules of Professional Conduct Skolnick v. Alteimer & Gray, 191 Ill.2d 214 (2000) Disciplinary Proceedings CLASS #4 Wednesday, 21/4 18:15 ­ 19:45 Room No. 133 The Practice of Law in U.S.: Big v. Little; Boutiques The Business of the Law Business: ,,Slip Sliding Away" ­ Fox Billable Hours, Profitability + Impact on Clients Conflicts of Interest (Withdraw or Alert Client in Writing) Morning Meetings + Mining the Gold ,,If You Think There Is a Problem, There Probably Is" Volunteerism in America; Rules for Radicals ­ Alinsky The Dance of Legislation ­ Redman Bar Association (Mandatory v. Voluntary) Ethnic Var Amicus Briefs; Constitutional Law Com. of Chicago Bar CLASS #5 Thursday, 22/4 8:00 ­ 9:30 Room No. 133 Consumer Protection Laws and Foreclosure: Westbankv.Maurer,276 Ill.App.3d 533 (2d Dist., 1995)(LendingPractices, Conflicts, Fees) GMAC v. Wilson v. Woodfield (Counterclaims + 3rd Parties) In re Foreclosure Cases Public Policy; ,,Bulldogs Never Give Up" -3,,It's a Matter of Style" ­ Importance of Reputation Lawyers Shouldn't Make Themselves the Issue Consider the Big Picture, Don't Sweat the Little Stuff Mrs. Sala's Rule; ,,You Can't Be Hung for What You Don't Say" CLASS #6 Thursday, 22/4 9:35 ­ 11:05 Room No. 133 Lawyer as a Candidate for Public Office Citizens United v. Federal Election Commission Pullen v. Mulligan, 1990 Illinois Supreme Court Bush v. Gore, 2000 ADDENDUM BASIC CONCEPTS OF AMERICAN JURISPRUDENCE A. Summary of Basic American Legal Principles 1. Impact of Precedent ­ Principle of "Stare Decisis" 2. Court Hierarchy 3. Jurisdiction 4. Mandatory/Binding versus Persuasive Authority 5. Primary versus Secondary Authority 6. Dual Court System 7. Interrelationship Among Various Sources of Law B. What is Common Law? 1. Common Law as Differentiated from Civil Law 2. Case Law a. Case Law May Be of Several General Types: (1) Pure Decisional Case Law (No Statutes or Const. Pt.) (2) Case Law Based on Constitutional Provisions (3) Case Law Based on Statutory Provisions b. Subsequent Case History c. Subsequent Case Treatment C. American Judicial System: System Based on Advocacy + Actual Controversy 1. Threshold Issues Designed to Preclude Advisory Opinions Standing ­ Parties Must Have Actual, Cognizable, Usually Pecuniary or Proprietary Interest in Litigation -4Finality ­ On Appeal or Agency Review, Action by Trial Court or Administrative Body Must Be Final + Have Real Impact in Parties Exhaustion ­ Parties Must Have Exhausted All Trial Ct./Administrative Remedies Ripeness ­ Dispute Is a Current Controversy Which Has Immediate Effect Not Hypothetical Mootness ­ Dispute Still Alive + Unresolved; Circumstances Have Not Changed No Political Question ­ Courts Stay Out of Non-justiciable Disputes Between Other Two Branches of Government 2. Courts Generally Confine Themselves to Dispute Presented for Resolution 3. Tendency to Avoid Constitutional Issues When Possible D. Institutional Roles in American Legal System 1. Attorney (Officer of Court, Zealous Advocate, Avoid Conflicts of Interest, Required to Deal Fairly + Honestly with Court + Opposing Attorneys) 2. Judge (Final Arbiter of the Law + Sometimes of the Facts) 3. Jury (Decides (Finds) the Facts) E. Sources of Law Constitution (Federal + State) Statutes (Federal + State) Rules, Regulations, Orders (Federal + State) Executive Orders + Proclamations Case Law/Common Law Secondary Sources: Treaties American Law Reports Restatements Hornbooks Law Reviews Legal Encyclopedias F. Use of Precedent ­ Principle of "Star Decisis" 1. Stare Decisis ­ Means "Let [the Prior Decision] Stand" 2. Rationale: Judicial Economy Fairness to Parties (Fundamental Fairness) Predictability Check on Arbitrary Behavior 3. Applies Only if Precedent is "Binding" or "Mandatory" -5- 4. Two Main Factors a. Jurisdiction (State Court or Federal Court) b. Court Hierarchy (Trial, Appellate, Highest Court) 5. Additional Factors to Consider in Applying Stare Decisis a. Similarity of Legal Issues b. Similarity of Facts c. More Recent Precedent Has Greater Value d. Whether Precedent Came from Leading Court e. Whether Precedent (Opinion) Was Well-reasoned 6. Analogizing and Distinguishing Principles of "Star Decisis" 7. Deviations from "Stare Decisis" (Binding/Persuasive Authority) G. Federal and State Systems 1. Federal Courts Have Jurisdiction to Hear Cases Involving: 2. State Courts Can Hear Any Cases, Even Where Federal Court Has Jurisdiction, Except Where Federal Statute Expressly Requires Federal Court: Admiralty, Patent, Copyright, or by Implication ­ Antitrust Level Federal Courts State Courts (Highest) I. U.S. Supreme Court State Supreme Court II. U.S. Court of Appeals Intermediate Courts 13 Circuit Courts (Frequently Called -11 Geographical Circuits Appellate Court) -District of Colombia Circuit -Federal Circuit for Specialized Matters (Lowest) III. U.S. District [Trial] Courts Trial Courts ­ Sometimes (94 Separate Dist. Courts) Called Circuit Courts H. Relative Priority of Sources of Law: Hierarchy of Authority 1. Federal Law a. U.S. Constitution b. Federal Statutes c. Federal Rules + Regulations d. Federal Cases (Decisional Law) 2. State Laws There are several principles of law that must be considered when dealing with an issue of state law. Although a comprehensive examination of these complex rules is beyond the scope of this presentation, the basic rules are as follows: -6(a) Federal Supremacy Federal law prevails over conflicting state law. State law may not be inconsistent with federal law. Nor may there be state laws covering areas that have been preempted, or fullycovered bya federal statutory scheme. (b) "Erie Doctrine" (Rule of Law from Erie Railroad Co. v. Tompkins, 304 U.S.64 (1938)) Federal courts will apply state "SUBSTANTIVE" law (for example, TORT CASES + CONTRACT DISPUTES) and federal "PROCEDURAL" law when state law creates the cause of action. (c) Choice of Law Issues A federal court deciding which state's law to apply to a state claim will use the choice of laws rules of the state in which the federal court sits. Apart from the above considerations, the following hierarchy of authority would apply to state sources of law: (1) State Constitution (2) State Statutes (3) State Rules + Regulations (4) State Cases (Decisional Law) Adapted from, Fine, American Legal Systems: A resource and Reference Guide, Anderson Publishing Co., 1997 (Chapter I.).