Thursday, July 17, 2008

Teaching Civil Law Students About the Common Law; Teaching Common Law Students About the Civil Law

Brostoff_teresaLegal_writing_institute_logo_5Teresa Brostoff and Ann Sinsheimer presented on how to teaching international students about common law reasoning using civil law cases.

They described how their original course in English for Lawyers (designed for students entering LL.M. programs in the United States), and adapted it for students with broader backgrounds and needs beyond preparing for a U.S. law school graduate program.

Sinsheimer_ann They wanted their students to draw upon similarities between civil and common law systems, and to identify skills that could transfer across legal systems.  They used a decision of the European Court of Justice and a decision of the U.S. Supreme Court to make this connection.  Both courts are of general jurisdiction, both are final decision-making bodies, both reference precedent, and both use analogical reasoning.  They found an immigration decision from each court, and compared how to brief cases (preparing a permanent record of what the student read, and enabling close analysis of the cases).  The exercise worked well with their civil law students in Europe.

And guess what?  Ann and Theresa figured out that U.S. students could also benefit from the same type of comparative law exercise.

They noticed that students in the U.S. and in other countries learned primarily about their domestic law without regard to global legal principles.  They recognized that global legal practice demands that our students understand other legal systems and their methods of legal analysis.  They also noted that students discover some of these distinctions between common law and civil law:

  • The roles of the court in each system (law maker versus dispute resolver)
  • The institutional versus practical uses of precedent
  • Uses of inductive versus deductive reasoning
  • Use of the facts and uses of analogy
  • Roles of scholars and secondary authority in each system (in civil law countries, the scholars are definitive on what the law is; courts and lawyers look to study scholars rather than court decisions).

They distributed an international contract problem (which they have shared on the idea bank) on whether the term "natural foods" could include genetically modified food.  This international open memorandum problem produced many positive outcomes for their students:

  • awareness of and respect for other legal cultures
  • basic knowledge of similarities and differences between civil and common law reasoning
  • exposure to international legal research
  • increased interest in international legal practice.

There were also some challenges in having first year U.S. law students working on international and foreign law issues:

  • beginning law students may struggle to compare common law and civil law given their limited time in law school
  • researching in two different systems can cause student panic
  • research may be more difficult given language barriers
  • issues must be simple enough for students to handle with some confidence

The legal writing field is truly global.  The audience for this presentation was filled with other international experts in our field (Debbie Lee, Kelly Brest van Kampen, Eric Easton, Jill Ramsfield, Nina Hovarova, and many, many others from the United States, Spain, Costa Rica, Singapore, and other nations).  LWI conferences should really have a dedicated track for international and foreign issues -- there is much to discuss, share, and learn here.

Mark E. Wojcik, The John Marshall Law School - Chicago

P.S. Click here for information on the next Global Legal Skills Conference, to be held in June 2009 at Georgetown University Law Center.

http://lawprofessors.typepad.com/legalwriting/2008/07/teresa-bro-stof.html

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