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Курсовик Profession in the USA. Regulation of the legal profession. Lawyers: parasites of the back of the American taxpayer. The legal profession for women: a problem of gender equality. The legal system of the USA. The principles of the USA System of justice.
Тип работы: Курсовик.
Предмет: Ин. языки.
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2. THE LEGAL SYSTEM OF THE USA 13
1. LEGAL PROFESSION IN THE USA 4
1.1 REGULATION OF THE LEGAL PROFESSION 4
1.2 LAWYERS: PARASITES ON THE BACK OF THE AMERICAN TAXPAYER?
1.3 THE LEGAL PROFESSION FOR WOMEN: A PROBLEM OF GENDER EQUALITY 11
2.1 THE MAIN PRINCIPLES OF THE AMERICAN SYSTEM OF JUSTICE 13
2.2 FACTS ABOUT THE AMERICAN LEGAL SYSTEM 16
2.3 CORRUPTION IN THE AMERICAN LEGAL SYSTEM 20
For centuries, the legal profession constituted an exclusive club of white, middle-class men. Although the last few decades have seen a dramatic increase in female and ethnic minority entrants, research shows that a successful legal career is far from being equally open to all. This raises the question whether affirmative action should be introduced by the legal profession.
A positive answer has implications extending beyond legal practice. This is because the advanced educational qualifications, and the intellectual and other skills required of entrants, which are thought to guarantee high quality services to clients, mean that appointing and promoting on merit is regarded as particularly important in professional and other skilled occupations.
Indeed, it can be argued that legal academics have a special duty to ensure that those they purport to admit to law school on merit and prepare for practice do not later find their career prospects hampered by their social background. In addition, for those wishing to ensure a more general acceptance of affirmative action, persuading the legal profession that it is just and practicable is a useful starting place, since lawyers are better placed than most occupational groups to secure an end to the current legal prohibition on `strong'1 forms of affirmative action.
The legal profession is morally and, as far as gender and race are concerned, legally obliged not to discriminate in distributing jobs and promotions. Currently the legal profession does so discriminate. Existing measures are unlikely to eradicate such discrimination even in the medium term. If appropriately designed and implemented, quotas and decision-making preferences can reverse patterns of exclusion. Consequently, unless there are strong countervailing considerations or insurmountable practical problems, they should be introduced into legal practice.
In the rest of this article we will speak about current situation and the existing problems in the legal profession and legal system in the USA.
1. LEGAL PROFESSION IN THE USA
1.1 REGULATION OF THE LEGAL PROFESSION
The legal profession is regulated at state level (and not at federal level) by the highest court of each state. A US attorney can practise and appear in the courts of the jurisdiction/state in which he/she was admitted. Attorneys may have rights of practice and audience in other States by virtue of rules which allow for admission pro hace vice. In addition, the rules of a number of State Bars in the US allow for "Admission on Motion", i.e. admission to another state without examination in the case of attorneys already qualified in other US states. The criteria for such admission differ from state to state, but usually involve minimum periods spent in practice.
The interim report, which was presented to the House of Delegates some years ago, makes recommendations easing the practice of law by US lawyers in states other than their state of admission. It also eases the position on the temporary practice of home law in the U.S. by Foreign Lawyers with a proposed amendment to its Model Rule for the Licensing of Legal Consultants. US State Bars fall into 2 categories:
1. Unified State Bars: membership is compulsory in order for an attorney to be able to practise; membership, therefore, serves the purpose of a practising certificate.
2. Non-Unified State Bars: membership is voluntary and as such, these bars have no regulatory powers.
On a national level, the profession is represented by the American Bar Association (ABA). Membership of the ABA is not compulsory, although it does have approximately 400,000 members. The ABA holds an annual meeting, which is the largest annual gathering of lawyers in the world, and is attended by approximately 12,500 international lawyers. The Law Society organises a programme of events at the ABA's annual meeting in order to raise awareness of the solicitors' profession and to facilitate contacts between English and Welsh solicitors and American attorneys.
Most states require a three year American law degree (Juris Doctor) in order to sit the State Bar examination. Some states recognise equivalent foreign legal qualifications or admittance to a foreign bar in an English common law jurisdiction but may require the applicant to take further courses in U.S. law at an ABA approved law school.
In some US States it is possible to practise as a Foreign Legal Consultant under home title (for instance as a solicitor). As a Foreign Legal Consultant, it is possible to advise on home country law and international law, but not to appear in court. The ABA commission on Multijurisdictional Practice referred to above has recently strongly encouraged those US States without a foreign Legal Consultants regime to introduce one.
One more type of regulation of the legal profession is self-regulation. Often self-regulation is seen as arising from the social institution of trust: a social contract between society and the profession mitigates the moral hazard problem arising from the information asymmetry. However, they recognize that safeguards are required, particularly to ensure that the profession does not operate as a cartel. They also feel that the various professions will act as watchdogs on each other.
Self-regulation may reduce the cost of the regulator acquiring information and makes adjustments to regulations easier. These benefits need to be compared to the potential efficiency losses due to the potential for cartel-like behavior. Even where regulation by a professional body is deemed an appropriate solution it has been argued that the public interest would be protected best by having a number of professional bodies in competition with each other.
Regulation may not be the only solution to the information asymmetry problem. Independent rating agencies have been suggested as a solution or the use of repeat purchasers to perform the agency function on behalf of infrequent purchasers. Competition can also generate its own quality signals.
The current state of the discussion in the conceptual literature is such that although some authors recognize the potential problem arising from the asymmetry of information between client and professional, considerable skepticism remains on whether traditional self-regulation is a solution to the problem or a source of even greater welfare loss.
Scientists have identified a number of instruments typically used by self-regulators of the legal profession which may work against the public interest:
(i) restrictions on entry;
(ii) (ii) restrictions on advertising and other means of promoting a competitive process within the profession;
(iii) restrictions on fee competition;
(iv) restrictions on organizational form.
A separate although connected literature has developed on restrictions on the nature of fee contracts between lawyers and clients.
1.2 LAWYERS: PARASITES ON THE BACK OF THE AMERICAN TAXPAYER?
Many critics accuse lawyers of making legal services an expensive luxury, and they challenged lawyers to re-think the way their services are provided and priced. In particular, there is an idea to stop billing by the hour and start charging by the case. Another initiative is that there is a need for ceilings, instead of an open-sky practice.
Criticism of lawyers' fees is almost as old as the profession itself and the present situation is no worse than before. But public tolerance has changed. Imagine if airlines charged on the same basis as lawyers: an hourly fee, with no guarantees of any limit and the price escalating as delays, bad weather and mechanical failures occurred.
What is to be done? Can the profession set its own house in order? The problem is not so much high fees in themselves; there's nothing wrong with charging a rich tariff to those who can afford it. After all, it is said, lawyers are selling a valuable commodity and are entitled to expect top-dollar remuneration.
But lawyers, unlike bankers, are not just another sector of the business world. They have sway over a legal system supposedly committed to social justice. And it is one of that system's virtues that justice is not for sale to the highest bidder. As long as lawyers are beyond the pocket of most citizens, it means social injustice.
Sadly, the legal profession too easily mistakes its own interests for those of the public. Allowing paralegals and others to offer more legal services might be a good start. A more practical, effective solution would be to let lawyers retain their monopoly, but only on the condition that they truly serve the public. This means that there must be more citizens and clients involved in running the profession, that lawyers must be answerable to someone other than themselves, that they pay for their monopolistic privilege by contributing a share of their fees to funding legal services for poorer litigants, and that fees are regulated for price as well as quality.
As long as access to justice depends on access to lawyers, society must oblige the legal profession to meet its public responsibilities - the leading one being that legal services must be genuinely available to all.
It is evident that the legal profession enjoys a special status because those who practice law and those who make the law are often the same people, The legal business has been turned into some kind of mystical hocus pocus over the years, and has been purposely made obscure, complicated, and difficult to understand, in order to force the public to consult lawyers. Entry into the profession has also been made more difficult than necessary so that there won't be too many people competing for the work.
The law belongs to the people is not a trade secret of lawyers and judges. The courts exist for the sole purpose of serving the people and for no other reason. They work for people. They do not rule them. But now lawyers become judges and judges are lawyers. They take care of themselves. Judges in America are above the law. Who's going to convict a judge? Another judge? Not hardly! Judges have immunity and generally can't be sued. They can get away with anything and they know it. Therefore if they decide to break the law or break the rules of court, they just do it. No one is there to stop them.
As with any other profession there is a possibility that there will be a few solicitors willing to turn a blind eye to suspicious activities where they will personally benefit, be it by additional fee income or an increased client base. But, this would not be the case for the vast majority of solicitors. And Law Society itself cannot dissolve the problem of “dirty hands”.
The system is supposed to be built on the idea of checks and balances where each branch of government has it's finger on the other two branches, so if one branch gets out of line the other two reel them back in. However, the judiciary is self regulating and only two of the three branches of government are part of the balance of power. Other than impeachment, the other branches have no control over the judiciary.
Judges are people's servants, not rulers. And this concept is supported in the Rules of the Supreme Court which states as follows: "The legal profession's relative autonomy carries with it special responsibilities of self government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar." from the preamble to Supreme Court Rule 4
We must always remember that the name says it all. When they cry like a stuck pig about what a great burden it will be on the legal community to have ethics imposed on judges and lawyers, we must never forget that the rights of the public take precedents over the profits of attorneys. The courts are not here to suck the wealth from society and give it to lawyers.
Having mentioned negative sides of the profession, we must admit positive ones. The Constitution establishes the fundamental right of access to the judicial system. The courts, as guardians of every person's individual rights, have a special responsibility to protect and enforce the right of equal access to the judicial system. If the courts have this special responsibility but no judicial police force to enforce their rulings, why is there general compliance? Two important reasons stand out: (1) public trust and confidence in the system overall, and (2) a strong commitment by the organized bar to work with the judiciary to establish and demand compliance of judicial decisions.
The organized bar has long recognized that it must speak out for the judiciary when it cannot speak out for itself. This is especially true during ongoing litigations, for example, when the press criticizes a judge's ruling, and because of the confidentiality of an ongoing case, the judge cannot explain his or her actions personally. The press may react by questioning not only the actions of the judge but his or her apparent unwillingness to respond. The organized bar is also in a position to help the public better understand the proceedings and the reasoning behind judges' rulings in an effort to inspire public confidence and generate thoughtful public debate.
The bar also works hard to provide trained advocates or counsel in civil matters. Though the right to counsel has been established in criminal cases, it is not guaranteed in civil matters.
An eminent writer has said: "It requires two workmen to make a lawyer, the Almighty and the man himself. The legal mind is the workmanship of God, and no power beneath His can create it. Not possessing it, no one ever became a successful lawyer; with it, no one ever failed if he earnestly tried." So we can see that such a gift is worth of paying money for it.
1.3 THE LEGAL PROFESSION FOR WOMEN: A PROBLEM OF GENDER EQUALITY
The Constitution of the United States is to woman as an Emancipation Proclamation, in that it erects no barriers, imposes no limitations, sanctions no discriminations on account of sex. Tacitly implying the perfect equality of man and woman as citizens, alike entitled to life, liberty and the pursuit of happiness, its very silence concerning the status of woman is an eloquent pleading in her behalf.
Woman has ever been one of the knottiest points of the law. At first, jurists thought to evade the issue by attempting to reduce woman to a ghostly nonentity; but, like Banquo's ghost, she would not "down" at the command of her Macbeth. Next she was concealed beneath the garb of legal fictions, and under the guise of vested rights smuggled through the departments of the blind goddess.
One link after another in the myriad chains which fettered her freedom and independence has been broken, until she is now not only recognized in legal procedure, but admitted into the very halls of justice, as an officer of the court, and permitted to participate in its proceedings. She may not only advocate her own rights, but may plead the rights of others. She has left in the rear her former colleagues-infants, idiots and the insane-and almost overtaken her rivals of the fifteenth amendment.
Such has been the breaking of dawn to woman, after her long civil night. The present century recognizes that the sphere of women is no longer a mooted question. Merit has no sex; and the meritorious lawyer, man or woman, who deserves success, who can both work and wait to win, is sure to achieve both recognition and reward.
Of the three so-called "learned professions" which are necessities of civilization, the legal profession has been perhaps the most reluctant to swing open its portals to admit in fellowship the former "pariahs" of legal procedure: nevertheless these majestic gates have in hundreds of cases responded to the reiterated taps of a woman's hand. The proportion of women engaged in the law is less than in the other professions is, in a measure, due to the peculiar requirements of the law. Woman may be the weakest in this profession, but in it she lifts with the longest lever the social and legal status of her sex.
Also it is no trifling education that is needed for successful competition in this profession. The ramifications of the law are infinite, and the successful lawyer must be versed in all subjects. The law is not a mere conglomeration of decisions and statutes; otherwise "Pretty Poll" might pose as an able advocate. A mind unadapted to investigation, unable to see the reasons for legal decisions, is as unreliable at the bar as is a color-blind person in the employ of a signal corps. The woman lawyer who demands an indemnity against failure must offer as collateral security not only the ordinary school education, but also a knowledge of the world and an acquaintance with that most abstruse of all philosophies-human nature. She must needs cultivate all the common sense and tact with which nature has endowed her, that she may adjust herself to all conditions. She must possess courage to assert her position and maintain her place in the presence of braggadocio and aggressiveness, with patience, firmness, order and absolute good nature; a combativeness which fears no Rubicon; a retentiveness of memory which classifies and keeps on file minutest details; a self-reliance which is the sin qua non of success; a tenacity of purpose and stubbornness of perseverance which gains ground, not by leaps, but by closely contested hair breadths; a fertility of resource which can meet the "variety and instantaneousness" of all occasions; an originality and clearness of intellect like that of Portia, prompt to recognize the value of a single drop of blood; a critical acumen to understand and discriminate between the subtle technicalities of law and an aptness to judge rightly of the interpretation of principles.
While America's sons sit at the feet of this divine Law, let not the daughters be unmindful of the peculiar position which they occupy. Woman has both felt the "power" and participates in the "care" of that law; therefore, her homage is due, and her voice needed with that of man to complete the harmony of the world.
2. THE LEGAL SYSTEM OF THE USA
2.1 THE MAIN PRINCIPLES OF THE AMERICAN SYSTEM OF JUSTICE
In a democratic society where the governed relinquish a portion of their autonomy, the legal system is the guardian against abuses by those in positions of power. Citizens agree to limitations on their freedom in exchange for peaceful coexistence, and they expect that when conflicts between citizens or between the state and citizens arise, there is a place that is independent from undue influence, that is trustworthy, and that has authority over all the parties to solve the disputes peacefully. The courts in any democratic system are that place of refuge. U.S. Supreme Court Chief Justice William Howard Taft stated in 1926 that "the real practical blessing of our Bill of Rights is in its provision for fixed procedure securing a fair hearing by independent courts to each individual."
A fundamental value in the American system of justice is that the stability of the society depends upon the ability of the people to readily obtain access to the courts, because the court system is the mechanism recognized and accepted by all to peacefully resolve disputes. Denying access to the courts forces dispute resolution into other arenas and results in vigilantism and violence.
The judicial systems of the United States are structured to ensure access to the courts and equal justice under law for all citizens. The U.S. Constitution and the constitutions of all 50 states contain specific articles on the judicial branch. The judicial systems of the United States are separate, coequal branches of government that maintain autonomy through their own structures, authorities, and rules. The principle of judicial independence, reflected in the federal and state constitutions and in American legal and political history, allows judges to make decisions based on the law and the facts of each case, rather than on popular opinion or political considerations.
The judicial systems of the United States include the federal courts and separate court systems for all 50 states, the District of Columbia, and five territories. These different court systems handle approximately 100 million cases per year, with the vast majority being heard in state courts. At the federal level, approximately 2,200 judges serve across the United States in the following capacities: justices of the Supreme Court, judges of the courts of appeals, judges of the district courts, bankruptcy judges, and magistrate judges. At the state level, approximately 31,000 judges serve on the bench, from the highest court down to local courts of limited jurisdiction.
Each state and territory has the authority to establish and operate its own court system. The structure of state court systems varies from state to state. Some states have "unified," or simplified, systems of only two or three levels, while others have multiple levels of court for different types of cases. Judges are selected by a variety of different methods in the states, including appointment by governors, popular election, and selection by the legislature. Terms of office for state judges range from four years to lifetime tenure.
When discussing the idea of access to the courts, mere access in the theoretical or legal sense is not enough; rather, it is the results that flow from the decisions made by the courts that give it meaning. For example, the value of "access" is evident when the courts decide that no one, especially those in positions of power, is above the law, or when access requires the right to counsel in cases where one's liberty is in jeopardy.
The practical application of the fundamental right to access the courts under the U.S. Constitution has been put to the test throughout the nation's history. It has been claimed and challenged by many.
Perhaps the importance of open access to the courts is best recognized in the criminal justice sector in cases involving the right to counsel. In the United States it has been established that, at least in criminal matters involving the loss of liberty, a person cannot be considered to have adequate access to justice unless the person is provided with legal counsel.
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