In What Every Law Student Really Needs to Know: An Introduction to the Study of Law (Aspen Publishers, 2009), Tracey E. George and Suzanna Sherry have written an excellent introduction to the American legal system. Although the book is designed to be read by individuals seeking to succeed in law school, I believe the text would be valuable for anyone looking to obtain a relatively quick introduction to our legal system.
The six chapters of this text total only 200 pages, but yet I would encourage every reader to read this book. Reading it over the course of a six week period rather than in a speedy fashion would allow the principles in each chapter to sink in--mostly because each chapter covers a distinct category of ideas worthy of mastery.
I am particularly attracted to this book because I think it can be used by various types of participants in the life cycle of our legal system, and through making this point, I will come to reveal the content of this text.
Chapter 3 the chapter most valuable to all. It is properly titled "the Structure of Our Legal System," explaining the nature of our adversarial system and the various layers of our court system. There are numerous critical facts presented in this chapter that remain relatively unknown and under-appreciated by law students. For one, many law students spend numerous hours studying the intricacies of federal civil procedure necessary to maintain the fairness of our adversarial court system, without thinking at all about any alternative systems, such as inquisitorial system, in place in many countries of the world. The chapter also illustrates the distinction between common law, often referred to a judge-made law, and civil law, which concentrates on statutory interpretation more than precedent.
Understanding these distinctions is critical to all participants in our legal system, and our legal system is often injured when participants don't fully appreciate them. The first set of participants who should read this chapter is the class of folks for whom this text is written, namely soon-to-be law students., whose understanding of the context within which substantive legal decision are made will shape their ability to manipulate the information provided them. Analogously, the owner of the firm for which I work has long held that law students should be made to read dissenting decisions and the legal briefs of the arguing parties. This would allow students to better appreciate the decisions judges must make, and the alternative legal approaches available to them. In short, it is hard to understand why methodologies and systems are as they are without examining alternatives.
Chapter 2,Government and Law discusses the structure of our government in a way that replicates what some of us learn in middle and high school, namely presenting the three branches of government, along with the role of administrative agencies and restatements of law,thus placing the judicial process in its greater context. Although the facts presented in chapter 2 replicate what might be taught at a younger age, the author's motivation to educate law students gives the reader the context needed to consider the structure of our government, as its relevant to case law.
Chapter 5, Legal Toolbox: Concepts serves as both a critical vocabulary lesson and a short introduction to various doctrines that affect how courts interpret facts and law, such as precedent, burdens of proof, and standards of review. I would advocate all individuals contemplating any more-than-isolated interaction with a judicial decision to review this chapter. Much of the chapter is devoted to explaining what it means for litigants and judges to consider what rules apply to a specific case and by what standard those rules will be judged. Appreciating the analytic process allows readers to agree and disagree with judicial opinions in a more nuanced way. Chapter 4 demonstrates how to review cases, and may be much more illuminating after reviewing chapter 5. Chapters 1 and 6 demonstrates how these concepts are applied during the law school experience, but anyone regularly interacting with lawyers might find both extremely illuminating.
In reviewing what I just wrote, I must now wonder what percentage of my readers are bored away by the content of this article. Indeed, the process of studying law, reviewing cases, and choosing which doctrines are relevant to a set of facts can seem particularly frustrating and unexciting, and perhaps completely removed from the original attraction to the legal process: to seek a moral and just resolution to problems. However, it would be impossible to establish a rule of law that could be applied fairly to millions without such a developed structure. Indeed, I invite any reader to consider how they would devise such a system. I venture to guess that any system devised will establish rules and standards for where the parties present their disputes, how they present their disputes, what standards will be used in evaluating the positions of the parties, and to what extent other judicial decisions would or would not impact the approach taken by the judge.
Most of us are cognizant of certain sets of participants in our legal process, namely litigants, attorneys, and judges, but the general public participates as well. The general public serves as jurors and potential litigants who must decide whether to employ the courts in their efforts to resolve disputes in which they find themselves. Trust in and knowledge of the courts greatly affect the priority individuals place in using the courts to resolve their disputes, over less noble and sometimes violent means.
Even when not litigants, lawyers, judges, or jurors, citizens play numerous roles essential to the system,which makes knowledge of the system critical for citizenship. Citizens influence the court system when they vote. In many jurisdictions, they vote for judges directly and in other jurisdictions, like in the federal system, they vote for executives and legislators that select the judges. Voters have similar influence over those who serve as Attorney Generals at the state and federal level, and thus effectively have a say over what approach the government takes to prosecuting criminal complaints.
Beyond this, voters impact what laws are passed either through direct referendum or through their selection of legislators and chief executives. Indeed, citizens greatly impact the judicial system when they lobby for certain policies, vote for particular candidates, and even when they engage in discourse about the legal process to their fellow citizens.
Elsewhere on this blog have I discussed the critical role a robust and trusted judiciary plays in a civil and trusted society. Indeed, we can only trust what we understand.
Furthermore, in a representative democracy, as earlier discussed, the citizens have a critical role in shaping policy and protocol. Therefore, understanding the judicial system is necessary for citizens to reasonable shape the judicial process. I have had many occasions to witness public opinion shaped by incorrect assertions or misunderstanding about the legal system, thus causing popular support for or against an unnecessary cause. A recent example might be the flurry of legislative support a few years ago for laws prohibiting the judiciary from relying on sharia law or other foreign law in deciding cases notwithstanding the lack of real world cases of American Judges making decisions contrary to the American legal system. I am suspect that there are many cases where the American public was up in arms over erringly alleged infractions by our judiciary. Such mistakes can only be addressed by substantive public education over our legal system and how it works.
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