ss 2007us-recht i dr. karin linhart, ll.m. 1 einführung in das us-amerikanische recht i ss 2007 dr....

SS 2007 US-Recht I Dr. Karin Linhart, LL.M.

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Einführung in das US-amerikanische Recht I

SS 2007 Dr. Karin Linhart, LL.M. (Duke)


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Map of the US today


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US Law in Practice

A client enters your office and asks for legal advise. He is German and has bought a CD player in the US which turned out to be defective.

1. What court? (International jurisdiction)a. International treaties?b. National law

2. What law? (Applicable law)a. International treaties?b. National law

3. How and where to enforce the judgement?a. Enforcing a German judgement in D/in the USb. Enforcing a US judgment in D/in the US


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US legal system

Federal state 51 legal systems (50 state, 1 federal)

Legal tradition: Common Law (based on English Law) Civil Law in Louisiana


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The notion „Common Law“

Common Law Civil Law (Common) Law Equity Common Law Statutory Law

Other Common Law-countries: England/ Wales, Ireland, Canada (except Quebec),

Australia, New-Zealand, South Africa (hybrid), India, Nigeria


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US Legal History

Historical cornerstones Legal traditions in the New World Reception of English common law Development of US (common) law


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Historical cornerstones -1-

1492 Christopher Columbus 1607 Pilgrim Fathers reach Jamestown,

Virginia („Mayflower“) Immigrants come from England, Ireland

and Italy, Germany, Poland and in the 20. Century increasingly from China.

Reasons: Political and religious persecution and unemployment


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Historical cornerstones -2-

War against England Boston Tea Party („No taxation without

representation“) 1776 Declaration of Independence 1787 Constitution signed and submitted to

Congress 1789 Constitution comes into effect and

George Washington becomes the first President of the United States of America


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Four legal traditions

New England States were English colonies Louisiana was French Many Germans lived in Pennsylvania and

Virginia Parts of Texas, New Mexico, Arizona and

California Spanish

What legal tradition should the new United States of America follow?


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Reception of English common law

In the territories (colonies) of the British Empire English common law was applied (17th/18th century)

Blackstone, Commentaries on the Laws of England (1765-1769)


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Why English Common Law?

Language Most people of English descent Easy access to literature and precedents Precedents easier to transmit and to apply

(Legislation takes a long time to be passed) Most lawyers were trained in England Traditionally in the US more trust is given to

a local judge and jury than to the government


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Development of US-American (Common) Law

1820-1840 James Kent and Joseph Story: (American) „Commentaries“

English common law was subject to changes due to particularities in the New World

At the latest since the Civil War (1862-65) English precedents have significantly lost their influence in the US

But: Important features are still the same in English and US Law (terminology, methodology, legal thinking and reasoning, style of legal documents)


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George Washington


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US (Common) Law

The Development of US Common Law The rise of legislation The Supremacy Clause Federal Law/State Law Supremacy Clause v. Amendment X


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Sources of law

Federal Law State Law Common Law Statutory Law


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Federal and state sources of law

Federal level: US Constitution United States Code (USD) Case law interpreting statutes

State level: State constitutions Statutes Common law Uniform laws and restatements


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Federal Law/State Law

U.S. Const., Amendment X:

„The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.“

=> Exclusive jurisdiction/shared (concurrent) jurisdiction


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The Supremacy Clause

U.S. Const. Art. VI:

„This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United Sates, shall be the supreme law of the land; …“


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Supremacy Clause v. Amendment X

Legislative jurisdiction condition for Supremacy of Federal Law

Rule: legislative power with the statesException: legislative power expressly

delegated to Congress or prohibited to the states by the Constitution


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United States Code No „Gesetzbuch“ in the German

sense Codification of the general and permanent laws of the United States Federal Law 50 Titles E.g. arbitration, bankruptcy,

copyrights, crimes and criminal procedure, civil procedure, patents

Legal Information Institute (LII) of Cornell University United States Code online

=> Copy


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Federal Statutes

E.g. in the areas: Copyright (exclusive federal jurisdiction) Antitrust Workers‘ compensation Bankruptcy

See U.S. Code P: Notion „statute“ can also only mean one

or few provisions integrated into an existing statute or code


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State Law - general

Contracts, torts, family law, law of succession is predominantly state law (statute or case law/common law)

Problem: Differences within state laws bad for interstate-commerce

Uniform Codes and Model Acts (statutory law)

Restatements (common law)


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State Law – Statutory Law

Uniform Codes and Model Acts National Conference of

Commissioners on Uniform State Laws (NCCUSL)

Need implemetation by states Most famous example: UCC


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Traditional common law areas of law

Contracts Torts Property Family law Trusts and wills (inheritance law)


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State Law – Common Law

Restatements American Law Institute (ALI) since

1923 Collection of common principles in the

(state) law of the 50 states Not binding


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Legal Sources Primary Sources of Law (binding)

Constitutions Statutes Cases

Secondary Sources (persuasive) Dictionaries Legal Encyclopedias Law Review Articles (Periodicals) Treatises and Hornbooks Restatements


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The Doctrine of Precedent

What is a precedent? What part of a precedent is binding? Judicial decisions in the US


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Judicial decisions in the US

No given structure One judge writes majority opinion Others can write concurring or

dissenting opinions


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Common Law: What is a precedent?

Decision of a higher court of the same jurisdiction

U.S. Supreme Court decisions binding for all other courts


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What part of a precedent is binding?

Only holding (ratio decidendi) is binding

Holding: Parts of a court decision that are necessary for the decision of the case

NOT so-called obiter dicta


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Finding a precedent

Digests Summaries Word Index Key numbers (400 topics – subtopics) Table of Cases volumes

Corpus Juris Secundum Treatises, Hornbooks, Articles Westlaw, LEXIS/NEXIS


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Localizing a precedent (of a federal court)

U.S. Supreme Court

U.S. Reports (U.S.)Supreme Court Reporter (S.Ct.)Lawyers Edition (L.Ed.)

U.S. Courts of Appeals

Federal Reporter (F., F.2d, F.3d.)Federal Appendix (Fed. Appx.)

U.S. District Courts Federal Supplement (F.Supp.)


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Analysing a precedent

1. Procedure

2. Facts3. Issue(s)4. Rules applied5. Holding6. (Concurring and/or dissenting opinions?)


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Finding a Federal Statute Slip laws

Individual pamphlets Published by the U.S. Printing Office

Session laws All slip laws of one legislative session Published in „Statutes at Large“

Code 50 laws of permanent and general nature Published in U.S.C. and U.S.C.A.


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Interpretation of a Statute

Literal interpretation Predominant method of interpretation in

common law countries: = „Literal Rule“ Historical interpretation

Significant use of legislative materials in the U.S.

Systematic interpretation Almost unimportant

Teleological interpretation Less important than for civil law countries


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Secondary Materials

Dictionaries: Black‘s Law Dictionary Online legal dictionary

Legal Encyclopedias: Corpus Juris Secumdum (C.J.S.) American Jurisprudence 2d (Am.Jur.2d) American Law Reports, A.L.R. (Analysis of

selected cases) Restatements


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Citation

The Bluebook Published by Harvard Law Students Decisive for citations in legal articles and law schoolexams


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Analysis of a legal problem

IRAC-Rule I ssue R ule A pplication C onclusion


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Leo: Online dictionary (http://dict.leo.org)


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Online legal dictionary (http://dictionary.law.com/)


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Westlaw


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http://www.findlaw.com


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http://www.law.cornell.edu/

ss 2007us-recht i dr. karin linhart, ll.m. 1 einführung in das us-amerikanische recht i ss 2007 dr....

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