Legal Culture in the United States: An Introduction

Kirk Junker

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317245544
• Edition: 1
• Topic: Jura
• Subtopic: Rechtsvergleich

For law students and lawyers to successfully understand and practice law in the U.S., recognition of the wider context and culture which informs the law is essential. Simply learning the legal rules and procedures in isolation is not enough without an appreciation of the culture that produced them.

This book provides the reader with an understandable introduction to the ways in which U.S. law reflects its culture and each chapter begins with questions to guide the reader, and concludes with questions for review, challenge and further understanding. Kirk W. Junker explores cultural differences, employing history, social theory, philosophy, and language as "reference frames, " which are then applied to the rules and procedures of the U.S. legal system in the book's final chapter. Through these cultural reference frames readers are provided with a set of interpretive tools to inform their understanding of the substance and institutions of the law.

With a deeper understanding of this cultural context, international students will be empowered to more quickly adapt to their studies; more comprehensively understand the role of the attorney in the U.S. system; draw comparisons with their own domestic legal systems, and ultimately become more successful in their legal careers both in the U.S. and abroad.

1

The Goal: Knowing the Soul and Spirit of U.S. Legal Culture through the Experience of the Common Law

1.1 Framing Issues

1.How might the spirit of professional legal practice in a legal culture differ from the spirit of professional legal practice in another legal culture?

2.Through what method can one learn what the spirit of legal practice is within a particular legal culture—in this case the legal culture of the United States?

In this book, a lawyer or student will have the opportunity to explore the comportment by which the U.S. lawyer approaches the law, and recognize that the process of study in the common law is not to memorize a list of norms. The common law lawyer is an advocate, and the legal process is one of partisan advocacy, not neutral inquiry. This very fact changes everything about the way in which lawyers inside the legal system use and avoid the legal system in their culture. This fact also changes the expectations that citizens have of their legal system. As U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. famously said of the common law, “the life of the law has not been logic; it has been experience.”¹ If this is true, the student who wishes to learn the law is confronted with a problem: One can study logic from a book or a website, but how does one study experience? This is a great challenge even to the U.S. student of law, who begins his or her study from the perspectives of general cultural experience and formal education prior to law school.² Although one might expect that the experience of U.S. culture at home may be an advantage to the student of U.S. law, it could also be a hindrance to that student’s self-reflection by fostering unexamined prejudices. Either way, it is of course difficult for the foreign law student who must study a legal system that claims that its life is experience, when that student does not have the shared culture from which to know that experience. This book attempts to make that sense of shared experience a bit more recognizable to the non-native by exploring various aspects of U.S. legal culture.³ In a “post-factual”⁴ age, education must teach judgment, not only facts, and I hope to enable students to recognize the basis from which the U.S. lawyer exercises judgment.

For the reader to understand the focus of this book’s topic—U.S. legal culture—one can raise a simple question: How can a person predict the outcome of a conflict? In the common law system, the experience of judges and lawyers is to some extent recorded in case decisions. Those recorded experiences help to predict the outcome of conflicts with sufficiently similar facts and law. But that record, enabling the doctrine of stare decisis to be put into practice, provides limited help to one needing to predict a legal outcome. In addition, the individual experiences of the judge or lawyer, drawn from memory that is woven into the full texture of psychological fabric, guides him or her in daily practice. Experience is formally recognized in the system, as demonstrated in the U.S. federal judiciary, where the measure of practice experience qualifies one to be a judge, either officially through local bar association recommendations to voters, or unofficially in the cultural values expressed in voting patterns. Among the various U.S. state judiciaries, some states appoint judges and others elect them. And when judges are appointed, those who make the appointments (governors for state courts and the U.S. president for federal courts) also rely on the experience of the judicial candidate as the evidence upon which to choose.

Insofar as legal systems are designed to provide method, process and substance to conflict resolution, we ought to be able to look to the legal system to answer the question of how one can predict the outcome of a conflict. In the study of law, a student is presented with mechanical processes that, when taken together, form a type of social science by which the student can predict a conflict’s resolution within a given legal system. But these mechanics do not enable the lawyer to predict with anywhere near the certainty of the natural sciences, where the physicist, chemist or engineer, using mathematical extrapolation and prediction, can send a satellite into a useful orbit, calculate the forces and materials needed for a bridge to carry trains, or bind materials stably together in extreme temperatures and pressures. The prediction of human behavior is weak in comparison. Yet there certainly is a desire to call at least part of the legal process “predictable,” and there is evidence that some prediction is possible.

Nevertheless, despite this desire and evidence, there is also much that is not predictable. Take for example the U.S. constitutional law professor who is explaining U.S. Supreme Court decision-making in which the Court develops various “tests” to determine whether the conduct in question has violated some section of the U.S. Constitution. These tests have names based upon the factors that the Court believes should be included when interpreting particular sections of the constitution. So, for example, when determining whether the federal government has expressed an interest in maintaining jurisdiction over a matter that shares jurisdiction with the states, the Court has invented the “countervailing federal interest test.” Under that test, even when a state has indicated that it wishes to exercise jurisdiction over the subject matter, a court may find that the federal government has indicated that its interest in the matter is sufficiently countervailing to keep jurisdiction before the federal courts. Other tests used by the U.S. Supreme Court include those known as “the strict scrutiny test” and “the rational basis test,” just to name a few. In the law school classroom, just when the student thinks that he or she sees how the court invents and applies these tests, the student reads a new case and applies what seems to be the applicable test, only to be told by the professor that the student is wrong because in this case, “the court invented a new test applicable to such facts.” The novice student will cry “foul!—arbitrary decision method!” thereby insisting the entire process is not scientific because it cannot offer the predictability of the physicist. Could a legal scholar or judge—or perhaps more importantly, the parties’ lawyers—have predicted this new test or new application? Maybe. Most important here is to see that the professors’ sense that they know is not due to practices of mechanical legal analysis (more on this when we return to mechanics in Chapter 9), but due to a feel for the law, or what one might call “local legal knowledge.” Used in this sense, the word “local” can mean as broad as the United States or as local as a small town, depending on the sense of cultural identity that one has. It is cultural knowledge—to be more precise, legal cultural knowledge—that is unconsciously acquired through the experience of study and practice.⁵ The local person in that culture knows it without trying—maybe even unwillingly. But to understand that legal culture, this local knowledge acquired through experience is essential. In a 1991 address to the Allegheny County Bar Association, U.S. Federal District Judge Donald E. Ziegler opened by saying:

The practice of law in Western Pennsylvania has been marked for generations by civility, restraint, mutual respect and a sense of professionalism. The unwritten rules of professional conduct were passed from preceptors, experienced lawyers and law firms to young lawyers to preserve the traditions of the Allegheny County Bar Association.⁶

Judge Ziegler is pointing out here that even within formal civil, criminal, or ethical rules of practice, a lawyer practices discretion. The discretion may come in the form of not filing an opposing motion even if technically one can or in the form of notifying an opponent of an intended action, even though one is not required to do so. The pattern of discretion cannot be predicted from the rules themselves, but, if at all, from observation of practice in actual cases. For an outsider, this local knowledge can be studied and must be studied and acquired in order to be able to predict the resolution of the conflict. The way in which we might “know” the local sense of the law could be through customary practices, including customary law, or more interestingly through rule-following behavior that could not be predicted from legal rules alone.

Sometimes rule-following behavior becomes formal custom. For the Viennese philosopher, Ludwig Wittgenstein, “[t]‌o follow a rule is to act or make a decision in accordance with communal practice and is established as such by training and regularity of use. Wittgenstein wants to argue that rule-following is customary.”⁷ Rule-following, in this sense, means neither obedience to the law due to fear of punishment, nor due to a desire to follow a norm. Furthermore, rule-following in this sense is not obedience to the law due to a shared understanding of the rationality of the law as applied. Rule-following means obedience to the law as a habit without asking why. Habits provide their own psychological, social and perhaps even economic comforts and advantages. Looking forward to the historical reference frame (Chapter 4), one would see that in history, this sense of custom comfortably fits among the recognized sources of law:

[I]‌t used to be said, and not long ago, that there are four sources of law: legislation, precedent, equity, and custom. In the formative era of the Western legal tradition there was not merely so much legislation or so much precedent as there came to be in later centuries. The bulk of law was derived from custom, which was viewed in the light of equity, (defined as reason and conscience). It is necessary to recognize that custom and equity are as much law as statutes and decision, if the story of the Western legal tradition is to be followed and accepted.⁸

Custom has been recognized as a source of law in civil law, common law and other jurisdictions. At its base are the common elemen...