Курсовая работа: Legal system
Курсовая работа: Legal system
CONTENTS
INTRODUCTION.. 3
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.
THE LEGAL SYSTEM OF THE USA.. 13
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
CONCLUSION.. 26
LITERATURE. 27
INTRODUCTION
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.
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