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ANGLAIS Introduction - Legal English : the English needed by both law students at French universities and beyond and

by French and foreign law professionals, while performing legal functions and in a professional context, for - understanding and explaining - foreign legal systems - administrations and procedures - drafting legal documents - appearing before a court - dealing with clients and citizens - liaising and socialising - reading contracts, pieces of legislation and papers - presenting research papers at conferences, etc. - This part of the course = a toolbox - Focused on the discourse of law in English - Law = a type of discourse - References = not just to the UK and US legal systems - Screen captures and videos available on Dokeos - http://edu.u-bordeaux4.fr or through the "ENT" Plan Time permits, there will be 8 chapters in this part. - Chapter 1 : Law studies - Chapter 2 : Legal professions - Chapter 3 : Constitutions - Chapter 4 : Tort - Chapter 5 : Courts - Chapter 6 : Sanctions, punishments and penalties - Chapter 7 : Laws - Chapter 8 : Instruments of international law - Chapter headings may change Chapter 1 : Plan I) Law studies in France 1) The Baccalaureate and after 2) Law studies without the Baccalaureat 3) Law at University Institutes of Technology 4) From undergraduate to Master 5) The honours systems 6) Subjects II) Law studies in English-speaking countries and beyond 1) Colleges in the US and in Great Britain 2) UCAS 3) Types of law degrees 4) Subjects

I) Law studies in France 1) End of high school degree General, technological or vocational Pupils/students with/without honours former pupils faculty : subdivision of a university Actually degrees may be awarded or granted with or without honours. 2) French students do not need to have obtained the Baccalaureat to register in a law faculty. There are alternative routes. There's the basic legal qualification which is la capacit en droit. This is to allow those people who do not have Baccalaureat to study law, provided they have obtain a 2-year qualification. Most people who take this route work during the day. Evening classes. DAEU : the basic general qualification. Students have the same rights than those who passed the Baccalaureat. 3) Law at University Institutes of Technology - = IUTs - Sometimes on delocalised sites of universities - They deliver two-year diplomas - Difference between a degree and a diploma - A qualification 4) From undergraduate to Master - Students take a first, then a second, then a third year of Bachelor's degree - Six examination sessions - Before graduation : undergraduates; after: graduates - On graduation, they may take a first year of Master's degree - Then they need to apply for a second year of Master's degree - Admission to Master's easier when they have passed their degrees with flying colours - After the Master's degree, doctorate or PhD - The doctorate allows to be admitted to lawyer school (CFPA or CRFPA) without taking the examination - The doctorates also leads to international management posts - International executives - Lecturing posts in law, senior lecturers, associate professors, professors - French doctorates = currently very much competitive - Tuition fees : almost negligible - Let us compare tuition fees in France and in the UK - Tuition fees in the UK are capped - For 2011-2012 3,375 pounds (about 4,000 euros) - This does not include living expenses, accomodation, stationery, the cost of a computer - A European-wide debate - Who shall bear the brunt of the cost of higher education ? - The taxpayer ? Students themselves ? Parents ? - UK cap of tuition fees has been raised from 3,375 to 9,000 pounds (10,000 euros)

- http://www.education.gouv.fr/cid11/le-cout-d-une-scolarite.htlm 5) The honours system - Summa cum laude = mention TB in the US at university - Magna cum laude : mention bien - Cum laude : mention assez bien UK, Australia, Canada, India, Ireland, South Africa, Nigeria, etc. : different - First-class honours (1.0) - Second-class honours upper division (2.1) - Second-class honours lower division (2.2) - Third-class honours - Ordinary, pass degrees 6) Subjects - Two semesters - Two units a semester but varies from one university to the other - lectures - law basics - tutorials (TD) - More interaction with lecturers than in large amphitheatres II) Law studies in English-speaking countries and beyond - Cf presentation on youtube - Target obviously international (non-EU) students - The most profitable for the university - A graduation ceremony - A gown and a mortar - One or several subjects combined - Flexibility of the law - Mock-trial mooting 1) Colleges in the US and in the UK - in the UK : either an entity within a university or the first 3 years at university - in the US : either 2 or 4-year HEI (community colleges, which deliver Associate degrees ; transfer to a regular university is possible) or the first 3 years at uiversity. 2) UCAS - University and Colleges Admission System - UK - A charitable organisation - centralises application procedures - Degree courses offer combinated subjects - Applications are done ahead of the beginning of the academic year - Students choose 5 degree courses maximum - In one or several universities - Universities process applications

- A National Admissions Test for Law, or LNAT - It concerns 8 major UK universities - This is to make admission criteria more transparent 3) Types of degree - In the UK, 3 types of Bachelor's degrees in law : BA, LIB and BSc - Three or four years - Bachelor of Arts (BA) - Bachelor of law (LIB), considered more "professionally-orientated" - Bachelor of Science (BSc) - Upon graduation, one may take a Master's degree, then possibly a PhD - In the US : students may study law at university, right from their first year, or enter a law school upon graduation - To enter a law school : a satisfactory mark record, LSAT + often other procedures - These may include essays, examination of references, work experience, ethnicity - Scholarships or grants available - The higher the grades, the lower the school and the more chances to obtain a scholarship - About 200 accredited law school prepare to the bar examination - In Canada and Australia : J.D. - Three years of study - In Canada, the LSAT is required to enter law schools - Therefore, outside the UK, the 6 or 7-year professional degree in law is called the J.D. 3) Subjects - Cf Bristol university - http://www.bristol.ac.uk/law/ugdegrees/ugproginfo/llb-law.html - Law of contract, law of tort (crimes et dlits), law and State, constitutionnal rights, criminal law - Rights is different from law - Il the UK, terms, not semesters - Graduation ceremony Chapter 2 : Legal professions I) Legal professions in France - Jurist (in France and in the US): anyone with a degree in law - Work in law firms, legal departments, independently, in the judicial system Elsewhere (NOT France and the US): a jurist = a judge - in France (article 28 of law 90-1259 of December 31 1990): being a jurist enables to counsel clients 1) Avocat : usually "lawyer" - Recruited upon examination organised locally - They represent and defend clients - No English word for "justiciable" (a person subject to trial) - Legal aid for those eligible - "Avocats" set their fees themselves - The president of the bar presides over the local chapter of the bar association - Lawyers are independent

2) Notaire : notary (-ies) - The word "notary" is country-neutral - "Solicitor": only in certain Commonwealth countries such as the UK, Ireland, Canada, Australia, New Zealand - This is the word used by the International Union of Notaries (http://uinl.net) - They "notarise" or perform "notarisation" (UK spelling) - They deal with prenuptial agreement (prenup or prenupt), residential and commercial conveyancing and registration, contract drafting, business engagements, transactions, successions, etc. - A notarial office - notary's clerk (clerc de notaire), legal secretaries, trainee notaries (stagiaires) and apprentices and accountants - in France 7 years of study are necessary 3) Huissiers : Bailiffs - Swom officers - They see to the execution of court orders - This includes servicing legal documents - Repossession (the confiscation of goods) - Evictions - Authentify documents - Collect debts - Issue / send court summons (convocation comparatre) - No English word meaning "auxiliaire de justice" - A Master's degree in law - A two-year paid apprenticeship at a bailiff's office (tude d'huissier) - Training is organised by the chamber of bailiffs - Trainees take a diploma - Holders of a basic legal certificate with ten years of experience may also take the diploma (without a Master's degree). 4) "Magistrat" a) Magistrats as judicial officers - They make decisions regarding the application of law but they include notaries - National School of the Judiciary in Bordeaux b) Magistrats as public officers - Not included in the word "judge" - Public prosecutors, generam prosecutor, financial prosecutor - assisted by deputy prosecutors (avocats gnraux) and assistant prosecutors (substituts) - Decide to conduct a preliminary inquiry - May ask an examinig judge (juge d'instruction) to carry out a more formal judiciary investigation - Present the cas at trial to either the Bench (le parquet) or to a jury 5) "Juriste d'entreprise": corporate lawyer

- Or company lawyer, or corporate attorney (US) - They may deal with contract law, accounting, tax law, intellectual property rights, etc. 6) Professeur de droit: law professor but other options exist II) Lawyers in English speaking countries and on the international scene 1) Lawyer as "avocat" - In the UK, "lawyer" includes barristers, solicitors, clerks and even judges and authors of legislation - Barristers traditionally plead - Solicitors are in contact with clients - In practice, the distinction between barristers and solicitors is blurred - In the United States, lawyer = attorney - In Canada : there are common law advocates (=sometimes called lawyers) and civil law advocates (not lawyer). Both use the term "barrister and solicitor" as well as advocate - In Australia, both terms solicitor and barrister exist and the word lawyer is a synonym of both 2) Advocates - ="lawyer" in Indian English - =barrister in Scotland, South Africa, Scandinavia, Israel, Pakistan, the Channel Islands and Isle of Man BUT NOT in England - An advocate is also someone who pleads a cause without being a lawyer 3) Attorneys - There are attorneys-at-law (=lawyers) and attorney generals (="garde des Sceaux") - Attorneys-at-law provide counselling, draft documents (wills, trusts, contracts, etc.) 4) Barristers and solicitors - Barristers specialise in pleading, represent litigants - Solicitors have access to clients - In practice, the distinction is blurred - There are pros and cons to maintaining a split system - Pros: two legal advisers instead of one ensures that clients are properly defended + they are independent + they are specialised, which makes trials more professionally-run - Cons : they may be too specialised + the more legal advisers, the higher the costs 5) Judges - They conduct trials impartially, hear the witnesses, examine evidence, issue a ruling - They interpret the law - Their powers, functions and training of judges depend on their jurisdiction - They commonly wear black or read robes and sit on a platform called the bench during trials - Cf Judge Judy 6) Magistrates - In civil law systems (France, Italy, Belgium) the terme encompasses all types of judges and

prosecutors - In England and Wales, some are also known as justices of the peace (JPs). - Others are district judges employed by the Ministry of Justice - These deal with minor offencies - They can only sentence for 6 months for one offence and twelve months consecutively for 2 offences - They can also give a maximum fine of 500 pounds - In Australia magistrates deal with minor law matters previously heard by the federal court in cases involving administrative law, bankruptcy, consumer protection, trade practices, human rights and copy rights - They also deal with family law (divorce, custody, contact of the children, property division upon divorce...) - In the US the word magistrate refers to any independent judge or judicial officer - In general the word magistrate refers to people who hear cases involving minor offences - In India magistrates may also judge criminal offences 7) Paralegals - In the US they are also called legal assistants - They perform research tasks, documentation, they carry out legal writing for various governments, agencies, law firms, estate agents and private companies Chapter 3 : Constitutions - This chapter aims at helping describe in English some linguistic features of the French constitution and those of foreign constitutions I) The French constitution - It is entitled the Constitution of October, 4th 1958 - This the constitution of the 5th Republic - Each Republic has had its own constitution - Keeps evolving - It currently comprises a preamble and 17 titles wich are subdivisions - Title XVII which is the chapter for the environment has been repealed but is nevertheless present in the constitution. It simply does not have constitutional value 1) The contents of the French constitution - Some titles begin with "on". - When it introduces a notion : "on". An institution : "the". Except for the EU : "on" - 2 titles are not introduces with either on or the : "Parliament" and "transitional provisions relating to New Caledonia" 2) Preamble - "Shall" indicate the strongest possible commitment III) UK Constitution - Acts of Parliament - Treaties

- EU law - Conventions - Works of authority from constitutionalists (such as Bagehot Dicey) - Parliament comprises the monarch, the House of Lords and the House of Commons - Parliament has illecutionary power - Parliamentary sovereignty 1 - Magna Carta - oldest source - isssued 1215 - Latin - Great Charter - 3 clauses valid today out of 63 - starts with recitals - Foresters : in charge of protecting venison. Forest : royal prerogative. It comprises heath, grassland, wetland. The King chose his hunting lands. - Forest law also applied to places happened to be located - harsh punishments towards those who had committed offences within the forest. - fuelled resentment from the villagers - it was felt that land was confiscated - Feudal barons make him relinquish some of his powers. These powers included arbitrary detention The law of the land was declared above the law of the King so that free men could be punished only through it. Magna carta affirmed the importance of the "due process of law". This concept of the law of the land can be found also in the American constitution. 2) The habeas corpus A summons to bring a prisoner unto court so that it could be checked whether the detainer has authority to keep the person in jail. A writ. It can be petitioned by the prisoner themselves or by someone acting on their behalf. The court then decides whether the prisoner should be kept in jail , if the court has authority to do it or released The right to petition for habeas corpus guarantees the liberty of the subject against arbitrary detention. But it does not guarantee that there will be a trial because in some jurisdictions and cases there might be legal detention without a trial. The habeas corpus can be suspended in case a state of emergency is declared. The habeas corpus includes the name of the prisoner, the identity of the detainer, the time, date and place of the court hearing and the issue dealt with by the court (why the prisoner deems the emprisonment is unlawful). The habeas corpus was passed by parliament in 1679 as a safeguard against possible arbitrary detention. It was suspended during the first and second world wars and in 1971 because of IRA. It is believed that the fact of suspending the habeas corpus has fuelled support for the IRA. Suspended again in 2001 through the anti-terrorism crime and security act, to allow for the detention of persons suspected of terrorism but who could not be prosecuted. 3) The bill of rights In the 70 th and 80th centuries, there was a struggle between the locations of power : parliament and the monarch regarding foreign policy, taxes and the army. The bill of rights was passed after the english civil war. Charles I abdicated in 1649. King James II

abdicated in The full title of the Bill of Rights is "an Act Declaring the Rights and Liberties of the Subject and settling the succession of the crown. Unlike magna carta, it is written in english. The recitals list the wrongdoings of the monarch and why it was considered necessary to limit his powers. The rights contained in the Bill of Rights apply to all Englishmen but also to jurisdictions across the Commonwealth realmes (sovereign states the head of which is the monarch). The UK, Canada, Australia, New Zealand, Jamaica, Belize, Papua New Guinea... There are 16 states. The bill of rights sets basic rights for all englishmen which are : 1) the law and the monarch remain distinct ; the king or queen has no right to set up new courts or act as a judge. 2) In the bill of rights, no taxation without representation (new taxes have to be agreed on by parliament). 3) Church courts are illegal. Only civil courts are legal. 4) Citizens may petition the monarch without being prosecuted. 5) The consent of parliament is necessary to maintain a standing army in time of peace 6) People enjoy the right to have arms for their own defence, as allowed by the law. The monarch will not interfere in this right. 7) Freedom of speech and debate : this extends to parliament whose proceedings will not be questioned or impeached in any court. 8) No crual or unusual punishment can be imposed nor any excessive bail.

American Law and Institutions Sabrina Srac serac.sabrina@gmail.com F249 Sur Dokeos chercher L1 DROIT/ANGLAIS - American Law and Institutions dans Langues http://langues.u-bordeaux4.fr Onglet Documentation sur l'ENT : Robert et Collins

Lecture n1 : The birth of a nation 1) The US as a British colony 2) Troubles with England : the American Revolution 3) The Declaration of Independance 4) The first United States of America 5) The US Constitution 1) The US as a British colony - The US is a former British colony wich faced different waves of immigration before its independence (traders and merchants, persecuted Puritans and aristocrats (South) in the 17th century. - Immigrants were organized in settlements (colonies) that were created in the name of the King of England. But the great distance and difficulties af communication between the colonies and England resulted in a near autonomy. Assemblies discussed and were making the main decisions. American colonists had to adapt the laws to their special circumstances. The common features (=characteristics) of these colonies : - Because of the difficult living conditions, the colonies were nearly autonomous (from the Crown and also from one another) and self-governed, and also very diverse. - Higher standard of living than in Europe (different climate, religion and size) - For Protestants : reading the Bible was important. => Well-educated people - Important influence of French and English philosophers (John Locke and Montesquieu) - Very sensitive taxpayers, always discussing the limits of authority, suspicious of Westminster (the English Parliament) and especially suspicious of the way England was spending the money (wars in Europe)

=> A new breed of citizens. Shared values with England, but at the same time, became the product of an American experience. 2) Troubles with the British Crown : the American Revolution - Problems between the British Crown and its American colony because of political and economic issues. - Westminster needed money (wars) and trade with the colonies flourishing (fur, tobacco...), so there was a lot of revenue to extract from them for the Crown. - American colonists refused to pay new taxes without having some form of representation in the English Parliament - "No taxation without representation" - Parliament refused to concede the constitutional point and persisted in trying to extract revenue from the North American colony. Tried to impose a whole range of different taxes (The Tea Act, 1773). - The Tea Act : the most decisive turning point => "the Boston Tea Party" (According to the Tea Act : any tea that remained on a ship in a US port for 20 days could be seized by customs officials and sold, and a portion of the sale price could be used to pay the taxes due). The Americans successfully avoided this tax by preventing any ships (carrying tea) from entering their ports. - In December 1773, a ship managed to enter. => difficult decision of either allowing the precedent of taxation and parliamentary supremacy to be established, or taking far more agressive action to avoid the establishment of a precedent. - On December 19th, the leaders of Massachussetts decided to destroy the tea by throwing it overboard. - Parliament => an unacceptable escalation of colonial resistance to its authority and, in 1774, passed a series of repressive measures, known as the Intolerable Acts (by the Americans) and the Punitive Acts (by England) : - The port of Boston was closed - The right to jury trial was suspended - Local representatives in Massachussetts were replaced by royal appointees - American colonists were forced to quarter British troops... - These Acts didn't succeed in stifling the colonists. Quite the contrary, they served to galavanize and unify the thirteen colonies : they formed the first deliberative body to represent themselves as a whole, known as the Continental Congress. - On July 4, 1776, the Declaration of Independence was signed (they used other countries as examples - Holland, Poland... wich had recently become independent - and also because they could be recognized as an independent nation by other countries - like France - and get military support as such). - Congress then set about drafting a formal document declaring the independence of the 13 American colonies (now called the "13 united States of America") : the Declaration of Independence. 3) The Declaration of Independence - It is divided into 5 sections : introduction, preamble, indictment, denunciation and conclusion. - The introduction announces the purpose of the declaration wich is to break from GB. - The preamble offers the philosophical basis for the right of revolution, wich draws its language directly from the final chapter of John Locke's Second Treatise of Government (1690), it provided a philosophical justification for the overthrow of tyrannical government. - The indictment lists the charges against the King . - The denunciation condemns the British people for not helping the cause of their fellowmen in America.

- Finally, the conclusion declares that the 13 colonies are now "free and independent states" and have effectively joined the community of nations. Extract from the Declaration of Independence - "We hold these ... Safety and Happiness." (sur Dokeos). 4) The First "United States of America" : The Articles of Confederation - Before independence, various states had begun drafting and ratifying their own constitutions. - Between 1776 and 1780, most of the newly independent states adopted new constitutions to preserve the rights and liberties they had always had as Englishmen, but which were unwritten in the English Constitution. - In 1777, the Continental Congress drafted the "Articles of Confederation", which gave shape and structure to the first "United States of America" : "a perpetual Union" of 13 independent, sovereign states. This choice of union : a weak confederation of sovereign states. Most aspects of government were left to the states, delegating very limited powers to the union government. -In the early years of the Confederation (after the end of the war with Britain in 1783) : a series of crises erupted that revealed the inadequacies of the Confederation (trade disputes between bordering states, and the issue of taxation). 2 groups emerged - the Federalists, (James Madison, Alexander Hamilton, John Adams and George Washington) : convinced that the US wouldn't survive without a stronger national government. - the Anti-Federalists (Robert Yates, Richard Henry Lee, George Clinton) : against a stronger government because it would create a distant central power divorced from local need and democratic accountability, leading to a renewed tyranny like that of the British Empire. - A Convention was called by Congress in the summer of 1787, "for the sole purpose of revising the Articles of Confederation". - A lot of debates arose and a few compromises had to be reached. The most successful one was "The Great Compromise" (also known as the "Connecticut Compromise") where a bicameral legislature was adopted with a lower house in which the states would be represented proportionally according to population, and an upper house in which the states would be represented equally. - After at least a year of intense devates, a new form of government emerged : to preserve order and security, as well as financial stability, a greater weight was placed on the sovereignty of the national government by creating a strong executive and judiciary branches to help check and balance the power of democratically elected legislatures. - A new Constitution was drafted to balance and limit the federal government. The Constitution was signed in 1787, but went into force in the spring of 1789. Its substance and meaning have continued to be the source of controversy and struggle, with periods of more or less intensity, until the present day. 5) The US Constitution - Its several principles - necessity to establish 3 separate powers (the executive, legislative and judicial branches) - These branches are separate from one another. The powers given to each are delicately balanced by

the powers of the other 2. Each branch serves as a check on potential excesses of the other 2. - The Constitution stands above ALL laws, executive orders and regulations. - All men are equal before the law and are equally entitled to its protection. All states are equal and none can receive special treatment from the federal government. - Within the limits of the Constitution, each state must recognize and respect the laws of the others. - State governments, like the federal government must be republican in form, that is to say with final authority resting in the people. - The people have the right to change their form of government by legal means defined by the Constitution. - For the Constitution to be approved by the country, 9 states out of 13 needed to vote in its favor. - In order to convince the 4 remaining states, another document was added : the Bill of Rights (the 1st 10 amendments to the Constitution). - After 2 years of discussion between Federalists and Anti-Federalists, all the states accepted the Constitution and Bill of Rights and elected their 1st president (Georges Washington). The US : a federal republic The federal government (the US Constitution, the US Supreme Court, the Executive and the US legislature) The 50 states (with their own constitution, their own executive (Governor), their own legislature and their own Supreme Court). Lecture 2 : The US Constitution Introduction The Constitution : a short and vague document. The founding fathers wanted to leave enough leeway for future generations to interpret the text and adapt it to new and unexpected circumstances. Drafted at the Constitutional Convention in Philadelphia in 1787 and ratified by June 21, 1788, and implemented in 1789. It established the 3 branches of government, limits the powers of each branch and also guarantees the basic freedoms of US citizens. 1) The content of the Constitution 3 parts : the Preamble, the 7 articles and the 27 amendments. The structure of the text underlines the principle of the separation of powers and the establishment of a checks and balances system. Though brief, the concise 7 Articles are rich in guidelines and functional precepts for both federal and state government action and activity. The Preamble It presents the different aims of the Constitution which are : - to form a more perfect union - to establish justice - to ensure domestic tranquility - to provide for the common defense - to promote the general welfare - to secure the blessings of liberty and posterity

The role of the government : protect the individual and collective liberties of US citizens. Article I : This Article deals directly with the US legislative branch known as Congress, establishing a bicameral entity with a Senate and a House of Representatives. Lists the rules to be followed to vote a law as well as the limits to the power of Congress. Article II Deals with the executive branch (the Presidency). The US : 1st country to create the office of President as head of a modern republic. The role of the Pdt : to enforce national law as presented in the Constitution and enacted by Congress. Article III Deals with the judicial branch wich possesses the inherent powers of interpreting law a posteriori, a power known as judicial review (since Marbury vs. Madison, 1803) : power to declare unconstitutional all laws and acts emanating from the federal government. Extended to state laws (with Fletcher vs. Peck, 1810). Guarantees trial by jury in all criminal cases, defines the crime of treason. Also defines and describes the court system, including the US Supreme Court. Article IV guarantees a republicanform of governmentfor each individual state and provides for the admission of new states. Article V lays out the procedure for amending the US Constitution. For an Amendment to be proposed in Congress, a two-thirds (2/3) majority in both Chambers (or a two-thirds majority vote by state legislatures) is required. For an Amendment to be added to the Constitution, three-fourths (3/4) of the states must ratify it. An Amendment can be repealed by another, following the same aforementioned process (it only happened once, when the 21th Amendment was ratified to repeal the 18th Amendment). Article VI contains the supremacy clause which states that the Constitution and the laws and treaties of the US are to be "the supreme laws of the land". This establishes a hierarchy of laws with a specific statusfor each level and puts the US Constitution on top of the pyramid. Article VII presents the process for the ratification of the Constitution. 2) The Amendments A) The Bill of Rights (the 1st 10 Amendments) An integral part of the Constitution, resulted from a compromise between the Federalists and antiFederalists in the 18th century. The purpose of the initial 10 Amendments was to curtail (=limit) federal power and above all inscribe into the Constitution the rights and freedoms of citizens and the states they live in. At the beginning, when the US Constitution was ratified and implemented, individual state governments were not required to abide by the provisions of the Bill of Rights. Only the federal government was submitted to its provisions. After the Civil War (1861-1865), the 14th Amendment was ratified (1868)

which guaranteed due process of law to any citizen and state. Important Amendments and their provisions : - The First Amendment contains the principles of freedom of religion, speech, the press, peaceful assembly, and petition to the government. - The 4th Amendment protects citizens from unreasonable searches and seizures of their person and/or property without necessary warrants or legal justification. The 4th, 5th, and 6th Amendments contain procedural safeguards. - The 5th Amendment provides various guarantees of due process of law for citizens, including recourse to a grand jury, protection against double jeopardy and self-incrimination, and just compensation for private property taken for public use. - The 6th Amendment provides a number of procedural safeguards in accusatorial and trial contexts. It also declares the right to have access to free legal counsel. - The 8th Amendment prohibits excessive bail and cruel and unusual punishment. - The 10th Amendment declares that powers that are not delegated to the federal government by the Constitution (nor prohibited by it) are reserved to the states or to the people. B) Subsequent Amendments - The 13th Amendment abolished slavery. - The 14th Amendment extended all the rights and safeguards included in the Bill of Rights to all citizens (including slaves). No state can infringe on the rights of any citizens without due process of law. C) The interpretation of the Constitution 2 schools/theories of constitutional interpretation : - the theory of original intent (also known as originalism) : For them, the Constitution has a fixed and accepted meaning. There is an acceptance of what the Constitution meant to say at the time of its ratification. This approach is based on the view that the judge should interpret the Constitution based on what people living at the time of its adoption would have said to bo THE acceptable significance of the text. - the theory of the Living Constitution takes the opposite point of view => the Constitution is NOT a fixed, rigid or static document ; quite the contrary, it is a living, breathing document capable of being newly interpreted in light of unprecedented evens and acts. Judges who adopt an originalist approach are said to interpret laws with judicial restraint, while the others interpret them with judicial activism. Conclusion The longevity of the US Constitution is due to its extreme flexibility. It is a fundamental document which lays out the basic protections for citizens, states and the federal government by clearly organizing the different powers. It belongs to a Common Law system where the Constitution and laws are understood in the light of the different court decisions (especially the Supremer Court) on particular cases. Lecture 3 : Federal institutions

The 3 branches of government 1) The Legislative branch The role of Congress is to make laws. A bicameral legislature with 2 Chambers : the Senate and the House of Representatives. A) The House of Representatives 435 members : proportional representation depending on the population + 5 additional members (1 Representative for the District of Columbia and 4 delegates from US territories which are members of the House, but not part of the Union and cannot vote - Porto Rico, the island of Guam, the Samoa Islands, the Virgin Islands). - Eligibility : to be at least 25 years old + a US citizen for 7 years and living in the state where elected. - Mandate : Elected for 2 years, every even years (2008, 2010, 2012...). All the Representatives are being re-elected at the same time. However, it doesn't mean that there is no continuity, around 90% of the Representatives are re-elected. - Representation : Each state is represented according to its population. Every 10 years, there is a census. However, a 1929 law limits the number of Representatives to 435 to avoid getting a huge number of Representatives. B) The Senate 2 senators per state => 100 Senators - Eligibility : At least 30 years old, a US citizen for 9 years and living in the state where elected. - Mandate : Elected for 6 years. But every 2 years, a 1/3 of the Senate is re-elected in odd/uneven years => a very good stability in the Senate. C) The powers of Congress Congress is at the heart of national politics, it is the main body which legislates. HOWEVER, the founding fathers were very much afraid of tyranny, so they made the prerogatives of Congress very clear. The powers of Congress are enumerated in Article I, section 8 of the Constitution : - to lay and collect taxes - to coin money - to declare war - "to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers..." = the "elactic clause". The explicit (=enumerated) powers of Congress - A strong financial power : not a single dollar can be spent without Congress consent. - It can also regulate commerce, has power over federal courts, as well as some responsibilities in Foreign Affairs, a power it shares with the President. It can create an Army and declare war. However, since 1789, the US has been involved in around 170 armed conflicts and Congress only declared war 5

times. The implied powers of Congress The last section of Article I, section 8 (the elastic clause) gives a greater, non-written power to Congress to vote any law it deems necessary (some polemics). The non-legislative powers - Congress has the power to impeach any federal official (Article I, section 2) - the power to ratify treaties - the power to propose amendments to the Constitution - the power to confirm nominations - the power to elect the President in case of lack of majority. System of checks and balances Cf schma sur Dokeos 2) The Executive branch A) Introduction Since the beginning of the Republic, Americans have been suspicious of a strong presidency. - Eligibility : To be elected, a candidate must be at least 35 years old, born American, living in the US for 14 years. - Mandate : Elected for 4 years through the Electoral College, for 2 terms max. B) The powers of the Pdt The office os the US President : one of the strongest in the world. The legislative powers of the Pdt : - presides over the federal government - makes sure that laws are respected (Article II, section 3) - can veto a bill (his veto can be overcome by the 2/3 of each Chamber) - can also propose a bill. Most of the bills actually come from the Executive - also at the head of a political party, which means that he can influence public opinion which can, in turn, influence the legislature. The judicial powers of the Pdt : - can appoint all of the important officials, (the federal judges, including those of the US Supreme Court, though they need to be confirmed by the Senate). - can also grant pardons for federal crimes (now generally a sentence reduction). Foreign affairs

- in charge of relations between the US and Foreign nations. - appoints ambassadors, Secretaries (= ministers) and consuls (to be confirmed by the Senate). - with his Secretary of State (= minister of Foreign Affairs), he implements a Foreign Affairs policy. He also negociates treaties with foreign nations (these treaties become law when ratified by 2/3 of the Senate). C) The constraints and limits to the Presidential power : - Congress can overcome the Pdt's veto, which is a serious limit to the Pdt's power - Another limit is Impeachment. Used 3 times : - Andrew Johnson was the 1st US pdt to go through this process in 1866, but was acquitted with only one vote from the Senate. - In 1974, Richard Nixon resigned before the end of the process (Watergate). - In 1998, the House of Representatives voted in favor of Bill Clinton's Impeachment, but the Senate acquitted the Pdt (Monicagate : the Pdt lied under oath). - The limits imposed by bureaucracy : A heavy and large bureaucracy is an obvious limit. Though the Pdt has the power to appoint key members in any administration, the weight and delay of administration is a serious impediment to quick action. - The limits imposed by federal courts : Federal courts have the power to limit the power of the Pdt. The US Supreme Court decision Marbury Vs. Madison (1803) legally established the possibility to appeal any decision or action of the Pdt. But as the 20th century showed, though federal courts have this power, they rarely use it, even if the Pdt's actions are unconstitutional (cf Bush administration). - The media and public opinion : - Without a favorable public opinion => difficult for a pdt to implement anything. Losing confidence can have adverse effects. - The media can exercise a stronf pressure on the Pdt => the Pdt is subject to a strong influence. => The US Presidency is paradoxical : the Pdt is both strong and weak. D) The role of the Pdt : Greatly increased since the signing of the Constitution for many reasons. - 1st, the growing importance of the US on the international scene put the US Pdt at the forefront of major world events. - Next, the increasing importance of administrative offices => the Pdt nearly delivers opinions on all areas. - Finally, the Pdt can now directly appeal to the public through a direct use of the media (TV, radio and the Internet...) : the link between the President and the public is tighter than ever. The major roles of the Pdt : - Crises manager : in cases of conflicts, riots, disasters or catastrophes, the Pdt is supposed to manage the situation. - A national symbol and leader : unifies the country and embodies the American Dream ; at the head of politics and diplomacy, he is at the origin of most of the legislative initiatives and US policies. - Conciliator : reconciles different interest groups and creates political alliances.

- Administrator : at the head of 400 advisers and consultants (forming the EOP (Executive Office of the Pdt)) and 15 Secretaries of State (=ministres). E) The Vice President Eligibility : at least 35 years old, a US resident for 14 years. Elected with the Pdt on a ticket. Constitutionally speaking, his role is to replace the Pdt in case of death, resignation, or impeachment. Article I, section 3 stipulates that the VP presides over the Senate. He has no vote, except in cases of perfect equality. He also presides over the official counting of votes during the Presidential elections (just a formal ceremony). His role is thus very limited. Until recently, the VP had a backstage role, but under Dick Cheney, the VP took on a more central role. 3) The judicial branch - The US court system consists of 2 separate and interacting jurisdictions : one at the federal level and one at the state level. This double structure : workable because of the supremacy clause (Article VI) => the laws (or treaties...) passed by Congress take precedence over any state constitution or law. - The US court system divided into 3 types of courts : A) Article III courts B) Article I courts C) Special courts (The US Court of Federal Claims and The US Court of International Trade) A) Article III courts : => they derive their power from Article III of the Constitution which provides for a Supreme Court and the lower level of federal judicial structure. All federal judges are elected for life or for a fixed term by the Pdt, with the advice and consent of the Senate, and hold office "during good behavior" => federal judges can only be removed from office through impeachment and conviction by Congress of "Treason, Bribery, or other High Crimes and Misdemeanors". The federal judiciary is a 3-tier system, a sort of pyramid with th US Supreme Court at its apex, then 12 circuit courts of appeals and lastly 94 district courts. First level : US District Courts : 94 districts courts in the US. Trial courts of the federal judiciary : jurisdiction in cases where a federal law, the Constitution or treaties apply. Both civil and criminal cases at first instance. 2 types of juries : trial juries (or petty juries) and grand juries. Second level: the Circuit Courts of Appeals - 12 circuits of appeals (11 + D.C.). For each circuit, there is a Federal court of appeal, called the circuit court of appeals, for ex. the Courts of Appeals for the First Circuit. - Circuit justices decide on errors of law (or mistakes of law), and finding of facts (or issues of facts) established at first instance. No juries in these courts. - US circuit courts of appeals have appellate jurisdiction and hear appeals from district courts in their

circuits. Also hears specialized appeals dealing with patent law and decisions rendered by the Court of International Trade and the Court of Federal Claims. Third level : The US Supreme Court The Supreme Court (alson known as the High Court / the Court / the Highest Court of the Land or by the acronym SCOTUS). - The ultimate arbiter of the Constitution. The importance of the Constitution in all areas of American law cannot be emphasized enough. - So, the fact that SC's interpretations of this fundamental instrument are binding precedents for all American courts, combined with the power of judicial review, confers on this Court substantial power over all other branches of federal (and less importantly state) governments. The SC's jurisdictions - It has original jurisdiction in cases affecting ambassadors, public ministers, and in lawsuits where a state (or more) is a party. Original jurisdiction means that a case can be heard for the 1st time. In these cases, the SC acts like a trial court (deciding both on facts and law). However, the use of this jurisdiction is extremely limited and rarely used (less than 200 cases since the SC was created in 1789). - But it is primarily an appellate court. With Marbury vs Madison (1803) and Martin vs Hunter's Lessee (1816) : the Court was entrusted with maintaining the consistent and orderly development of federal law. - One of the most important questions during presidential elections is : what will be the imprint of the future president on the US Supreme Court ? One of the main stakes for a President is to manage to appoint one or several justices. - Justices : appointed by the Pdt, have life tenure. 8 associate justices + 1 chief justice. The appointment is made with the advice and consent of Congress which is given or withdrawn after a procedure called confirmation hearings, undertaken by the Senate Judiciary Committee. - Cf 2 schools of thought (original intent vs Constitution as a Living Document). Current composition of the SC : Chief Justice : John G. Roberts (appointed by G.W. Bush, 2005) Associate Justices : Antonin Gregory Scalia (appointed by Ronald Reagan, 1986) Anthony Kennedy (appointed by Ronald Reagan, 1988) Clarence Thomas (appointed by George H.W. Bush, 1991) Ruth Bader Ginsburg (appointed by Bill Clinton, 1993) Stephen Breyer (appointed by Bill Clinton, 1994) Samuel Alito (George W. Bush, 2006) Sonia Sotomayor (appointed by Barack Obama, 2009) Elena Kagan (appointed by B. Obama, 2010) Procedures to appeal to the SC : - direct appeal : these have been greatly limited, today, the SC rejects 90% of direct appeals. - Writs of certiorari : someone can submit a writ of certiorari (latin for "to be informed of", or "to make more certain"), but the Court has the discretion to refuse to review the case (discretionary power). One essential condition for granting revision is that the petitioner has exhausted all other legal remedies. And of course, the issue must involve a federal question of substance. 4 of the 9 justices must vote in favor

of the writ for it to be accepted (= the Rule of Four). Of the 7,000 appeals or writs they receive every year, they only review 90/100 of them. The general procedure of the SC : - After the decision to accept a case, oral arguments are scheduled and both sides submit legal briefs presenting the different legal arguments that the Court will study. The parties must also supply all court records of prior procedure (on the record arguments). 30-minute hearings are held for each side. - Deliberations - Then, the justices give their decisions => Opinions Opinions : - Majority opinions : by at least 5 members. There may be other opinions written. They don't have to agree with one another. - Concurring opinions : a justice might agree with the outcome but may not fully agree with the legal reasoning used to arrive at it. In this case, the justice may write his own opinion explaining his own legal reasoning for the outcome. - Dissenting opinions : the justices may disagree with the outcome of a case and write such an opinion to have their voices heard. => The practice of not speaking in "only one voice" makes it difficult sometimes to see the legal points. However, opinions (and especially dissenting opinions) are extremely well-written documents which offer a large quantity of legal knowledge or doctrine for judges, lawyers, and law students. B) Article I courts : Article I of the Constitution defines a certain number of areas which fall within the scope of the federal government (bankruptcy, finance and banking, organizing the military, and intellectual property). Congress set up courts to regulate and punish infringements on federal laws : - Magistrates Courts - Bankruptcy Courts - The US Court of Appeals for the Armed Forces - the US Tax Court - the US Court of Appeals for Veteran Claims C) Special courts (the US Court of Federal Claims and the US Court of International Trade Jurisdiction of Federal Courts : - The federal question : Federal courts have jurisdiction in cases involving the Constitution, federal laws and treaties. This does not mean that state courts are not allowed to interpret the Constitution but, if they do, their decision is not final and can be reviewed by the federal courts. It is clear that federal courts and state courts have areas of concurrent jurisdiction. Lecture 4 : State Institutions As you know, each state has its own government, its own court system, and its own constitution. Most states are divided into 3 branches, very much like the federal government. cf Dokeos, prsentation des 3 pouvoirs

State court systems : - There are more than 50 different court systems, they were created by either the Federal Constitution or state constitutions. - Roughly, a three-tier system. 90% of legal cases in the US go through state courts. cf Dokeos, General Organization of State Courts Lowest level : Trial courts : (limited jurisdiction and general jurisdiction) : all kinds of names : courts that we see on TV. Both for criminal cases and civil cases. A jury, witnesses, evidence hearings for the trials of general jurisdiction... - If you lose your case, you can appeal to an intermediate court (the Court of Appeals) Intermediate level : the Court of Appeals : - do not try cases (no jury, no witnesses, no evidence hearing). An appeal heard by a panel of 3 judges, listen to the oral arguments from lawyers and read trial transcripts (=> on the record arguments). - The goal of these courts is to check whether the trial judge made a reversible error, it is here "to police" the trial judge, to fix any problems and make sure that each party had a fair trial. If you lose at that level, you can try the State Supreme Court. Highest level : State Supreme Court : - The CA and SC are appellate courts (=/= trial courts) :only deal with "on the record arguments". But function of the SC is different from the Courts of Appeals. - However, the role of the SC is not just to fix routine errors (role of the CA), they have total discretionary power : they DON'T HAVE TO listen to any case. Their role is not just to fix errors, it is to set the law in their jurisdiction and to make it clear to lower courts, especially when several courts of appeals reached different decisions on similar cases (= when there is a split of authority). - They run the entire judicial system : whatever they say binds every court in their jurisdiction, it is the ultimate arbiter of what the law means. How do federal and state courts interact ? - People usually think that the US SC is the ultimate legal resort (a US saying : "if you loseat the US SC, your only appeal left is to God"). - However, it is wrong to assume that if you lose at the State Supreme court, you can go to the US Supreme court, there is a wall between the State and federal levels. They are 2 different and separate systems. The US SC can only review state cases involving federal law ; otherwise, it is not possible. For most matters, the highest courts are State SC. - Federal courts have limited jurisdiction, only 2 types of cases : - diversity of citizenship cases (parties coming from different states) - federal questions (US Constitution, treaties or US laws). So, the jurisdiction of state courts extends to all cases which do not fall within the exclusive jurisdiction of federal courts. State and federal courts have concurrent jurisdiction on some diversity of citizenship c ases (when less than 75,000$ is claimed for damages in civil cases) and in nearly all federal questions. So, plaintiffs can decide which court is best for them (= a process called "forum shopping"), considering such things as the proximity of the court, and differences in the judges or jury panel. Lecture 4 : Criminal Law and Procedure - In the US : most crimes are defined at local and state levels. May be significant differences from 1 state to another : some have death penalty or have "three strikes" statutes ("3 strikes and you're out"),

while others do not. - A key concept of the US procedure is the adversarial system : the interests of both parties must be balanced and each must have a fair say with the possibility to challenge one's opponent. => the rules of criminal procedure aim at ensuring due process of law, in relation to the rights of the defendants. Most of the protections => 4th, 5th, 6th, 8th Amendments. State crimes vs federal crimes : - State crimes : In most states, crimes are divided into 2 major categories : - felonies : (serious crimes for which the defendant may incur a prison sentence of more than a year or death) : - violent crimes (murder, sexual assault, rape, robbery...) - property crime (burglary, larceny, arson, forgery...) - misdemeanors : (non-serious or petty crime for which you can get a sentence of less than one year and/or a fine). Some states (like California) have a 3rd category : wobblers. A wobbler is a crime that the judge has discretion to make either a misdemeanor or a felony. - Federal crimes : - In accordance with the Constitution, federal crimes are offenses whose consequences extend beyond state boundaries or otherwise affect the nation at large. - Power to investigate federal crimes has been conferred to the FBI. The list of specific federal crimes involves: assaulting federal employees, counterfeiting or smuggling illegal firearms to racketeering, drug conspiracies or sexual exploitation of children in interstate commerce. Crimes committed on US property or against federal agents come under federal jurisdiction. 1) Pre-trial procedure - In criminal cases, the state brings an action against a defendant or a co-defendant for committing an offense. The whole process starts with the work of the police and is subject to statutory and constitutional safeguards. a) Police proceedings : - Police have power to enforce the law and investigate crimes but many constitutional restrictions govern the way they carry out their duties. - "Probable cause" to believe that criminal activity has occured is required to make a lawful arrest under the Constitution. The police can only arrest people when they have good reasons to suspect them of criminal activity. Mere hunches or unreliable information do not satisfy probable cause. A person cannot generally be arrested for failing to answer police questions in the absence of probable cause. - However, a police officer can carry out a "stop and frisk" when there is "reasonable suspicion" that criminal activity is going on. The reasonable suspicion standard is easier to meet than probable cause. - If a person is placed in custody, the police must give that person a Miranda warning. If police overlook that rule, any evidence given by the defendant will be considered "fruit of the poisonous tree" and be inadmissible at trial. - This requirement refers to a US SC decision (Miranda vs Arizona, 1966) which established a number of rights that police must read to a suspect immediately upon arresting them : "You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to a lawyer and to have that lawyer present during any questioning. If you cannot afford an attorney, one will be provided for you. If you choose to talk to the police officer, you have the right to stop the interview at any time."

- These requirements reflect specific clauses of the 5th and 6th Amendments. Unreasonable searches are prohibited by the 4th Amendment. Although a few exceptions have been recognized, a search is valid only as long as police have probable cause to think that evidence will be found, or if a warrant has been issued by a judge. - Charges : - When a suspect has been arrested, an arrest report is sent to the prosecutor, who represents the state and usually has to decide whether or not to charge the case. At a local level, public prosecutors are generally called State Attorneys or District Attorneys (D.A.s). - Arrested people must be arraigned (=brought before a judicial officer) as soon as possible so that they may be informed of their rights and a date be set for a hearing. - Bail : Rule against excessive bail => 8th Amendment. Bail refers to the security which can be given for release of a defendant prior to trial on promise that the defendant will appear in court when ordered to do so. Granting or denying a bail application and setting the amount of bail are decisions made by the judge at the arraignment. If bail is granted and the defendant appears in court, the money will be refunded (10% will be kept). Conversely, if the defendant fails to appear, the court keeps the bail money and issues an arrest warrant against the defendant. - Plea Bargain : During the initial stages of the prosecution, the state may offer the defense either a lesser charge or a lesser sentence in exchange for a guilty plea and sometimes other conditions. When arraigned, the defendant is asked to - enter a plea of guilty or not guilty. - or a 3rd option known as "no contest" (nolo contendere) = if the accused does not challenge the facts but does not admit guilts. Difference between a guilty plea and nolo contendere : the former bars the possibility of denial in any other proceedings involving the same act. A plea bargain is a sort of contract in which each party must comply with the duties of their side of the deal. That's why a breach may lead to the cancellation of the bargain. 2) Preliminary hearing and pre-trial motions : - After arraignment : possible for the parties to bring pre-trial motions before the judge. These motions raise questions about the scope of the case and about evidence that can be used or witnesses that can be heard. - The defense can bring a motion to dismiss the charges when they believe that the prosecution's case is too weak or legally questionable. - Both sides have to provide the evidence they will present in court, they have to show their cards before the trial. So-called "unfair surprises" in the course of trial are contrary to the concepts of fairness guaranteed by the adversarial system => the disclosure phase. - After this disclosure phase, parties may file pre-trial motions, especially asking the judge to rule against the admissibility of a given piece of evidence. Ex : the defense in a drug case can bring a motion tu suppress incriminating evidence under the 4th Amendment's searches and seizures rules, when evidence has been obtained through unlawful means => an exclusionary rule can be invoked. (other motions possible : motions for discovery of evidence, motions to exclude a witness, motions for a change of venue...).

Jury selection : - Not all cases are tried by jury (No jury for petty offenses or minor federal offenses). - While the US Supreme Court and Courts of Appeals do not use juries, federal District Courts and state trial courts do. They depend on jurors, who are randomly selected from a pool of registered voters and people with driver's licenses to ensure a cross-section of the population. Being selected in this way is known as being summoned. When summoned, a juror must complete a questionnaire to determine if there is any reason he or she can be disqualified from serving. - A summoned juror will not automatically have to serve on a jury. However, he or she will likely have to go to the courthouse and undergo a process called voir dire, where judges and lawyers question potential jurors to determine if they're fit to serve and if they will be impartial jurors. People with past experience with the alledged crime, knowledge of either party or who have obvious prejudices may be prevented from serving. - There are two types of juries on which private citizens may be called to serve. A trial jury, also known as a petit jury, is made up of six to 12 people for a civil trial and 12 people for a criminal trial. A grand jury is a panel of 16 to 23 people who determine whether there is "probable cause" to charge someone with a crime. - If the case goes to trial before a jury, the defense and the prosecution both take part in the process of jury selection (voir dire) through the exercise of challenges allowing them to reject potential jurors. - There are 2 types of challenges you can use to try to form an impartial jury. - A peremptory challenge usually refers to a right for the defense and prosecution to reject, without giving any reason, a certain number of potential jurors who appear to have an unfavorable bias. They are limited in number. - A challenge for cause (not limited in number) refers to the right to reject a potential juror by giving a reason. 3) Trial procedure Schma - The trial begins with the parties' opening statements. The prosecution is heard first and presents its perspective on the case, what it intends to establish, and the evidence it plans to use against the defendant. It is then the turn of the defense to make its introduction speech. - The prosecution calls its witnesses. - The defense may cross-examine each witness. - Then, it is the turn of the defense to present its witnesses for examination and cross-examination. - When the evidentiary phase completed => closing arguments. The judge then instructs the jury as to the legal rules they need to follow in making their decision. - When the jury returns from its deliberations, the jury foreperson announces the verdict : either guilty as charged, or guilty on some of the charges, or guilty of a lesser offense, or not guilty. - When a jury has failed to agree on a verdict, it is called a hung jury and the outcome is a mistrial. A mistrial occurs when a trial cannot be carried to completion because of a procedural flaw or a hung jury => the case can be retried or the charges dismissed. - When the defendant is convicted, the case moves on to the sentencing phase. - Acquittal is final in the US. Sentencing phase : - All issues relevant to the determination of the sentence (background of the offender, any prior convictions, and the circumstances of the offense...) => use of mitigating factors/circumstances

- A very broad range of sentences is available to courts : - fines - community service - a probation sentence - a deferred or suspended sentence - mandatory sentence - cumulative sentence - life sentence - life sentence without parole - capital punishment / death penalty... Schma sur Dokeos qui reprend toutes les tapes de l'arrestation jusqu' la peine. Post-trial procedure : - The losing party may file for an appeal. The likely outcome will be 1 of the following 4 options : - the lower court's decision may be affirmed. - the case may be remanded = when the case is sent back to a lower court for a new trial. - The judgment or opinion may be vacated = when a higher court replaces a lower court's decision with its own : the previous opinion/judgment has then never existed and cannot be used as authority when deciding similar future cases. - The lower court's ruling may be reversed. Lecture 5 : Civil Law and Procedure - Civil law deals with tort : libel, trespass, injury (intentional or by negligence), and breach of contract. - It includes : contract law (sales of goods, employment, loaning of money, providing of services), tort law (rights and duties between parties, not bound by a contract), real estate law, family law, intellectual property and business law. Civil law is primarily concerned with monetary compensation known as damages. - In a civil case : the plaintiff sues the defendant to enforce a private right or to seek compensation for some harm/loss. So, a civil case is about who is liable (= responsible) for the plaintiff's injuries/loss. Differences between criminal law and civil law : - criminal case : the state (represented by the District Attorney) wants to punish someone for breaching public peace =/= civil case : between private parties to get compensation for some harm, done wilfully or by negligence Sometimes both at the same time (a muggler) - "The burden of proof" : - in a criminal case : the prosecution needs to prove the guilt of the defendant "beyond reasonable doubt" => if you lose : jail time and /or criminal record. - in a civil case : you need "preponderance of evidence" (51% of certainty) => if you lose, you lose money Procedure : - Before taking a case to court => a demand letter seeking an out-of-court resolution of the dispute. If the plaintiff wants to proceed through a formal court action => file a formal complaint stating clearly the cause of action and the nature of the claim. - A summons is then served on the defendant. The response may be an admission of liability or a

denial of the facts, and even sometimes counterclaims against the plaintiffs. This initial step is called pleadings (=defining the scope of the lawsuit and the exact legal issues raised). - a pre-trial conference called by a judge if the parties fail to agree on the issues of the case. Sometimes, cases can be solved at that moment. - If not => discovery and investigation phase = meant to obtain facts and info : includes depositions. It also includes an expert discovery phase (with expert doctors...), if necessary. - The huge majority of civil lawsuits filed in the US (90%) are settled before the actual trial, usually through some form of Alternative Dispute Resolution (ADR) such as mediation, arbitration, or out-ofcourt settlement negotiations. - A settlement can be reached by the parties at any time following the beginning of a civil action. - If there is a trial, pre-trial motions possible (cf criminal law) Trial : - A judge or a jury must decide whether the defendant is liable for the harm sustained by the plaintiff on "preponderance of evidence". - Same as in a criminal case (each party presenting the case, examination and cross-examination of witnesses, jury verdict...). However, there is no plea bargain(ing) in civil law. The post-trial procedure (appeals) procedure is the same as for criminal law. Lecture 6 : Legal practice in the US - Legal education : - The practice of law is controlled by the 50 states and their respective bar associations. - To study law => 1st, get an undergraduate degree, usually a Bachelor's degree of Arts (BA) or Bachelor of Science (BS) (=4 years of college - 2 years of general required classes + 2 years of specialization with a major) => then, you apply to a law university program and take the standardized LSAT (Law School Admission Test). - It usually takes 3 years of full-time work to receive a law degree, known as Juris Doctor (JD) => take the bar examination in a state. Upon admission to the bar, lawyers normally take an oath declaring their obligation to the courts, to the state and federal gvts as officers of the court. They must register with the court to receive their license to practice. - Legal practice and profession US lawyers are qualified for all professions in law (they may choose between different careers). They can be : - corporate counsels (or in-house counsels) if they work as employees for corporations/businesses - prosecutors if they work for the gvt - judges (chosen by nomination or elected after several years of experience) - law professors - work in private practices as sole practitioners or in a law firm - What do lawyers do ? Their tasks may include : - to investigate facts, interview, and prepare witnesses, - to do legal research and maintain professional and legal ethics, - to advise, give legal advice, counsel,

- to litigate (ie, appear in court, plead, advocate), - to prepare written pre-trial pleadings, assist and prepare cases for trial, - to draft legal documents or legal instruments (such as wills or real estate transactions), - to negotiate with opposing counsel. - Fee arrangements : - Flat fee : a negotiated fee for specifically defined work (ex. uncontested divorce) - Hourly fee : the most typical fee (depends on the amount of time spent on a case and use of extra staff...) - Referral fee : a lawyer may transmit your case to another lawyer and ask for a portion of the total amount billed by the lawyer who takes the case - Retainer fee : a down payment (= a fixed sum) to reserve the lawyer's services - Statutory or fixed fee : fees set by a legislative body or a court - Contingency fee : the fee depends on the result of the case. If the case is won, the lawyer gets paid. Risky for the lawyer.