Beyond the Bench: Understanding US Legal Culture - March 2025

Summary

Highlights

• Professor Cords emphasizes the dynamic and evolving nature of US legal culture, influenced by changes in society. 🌟
• The lecture explores the origins of US law, deeply rooted in English common law traditions. 🇬🇧
• Highlighted is the significant role of judges and judicial interpretations in shaping the law. 👩‍⚖️
• Discussions include the complex interplay between federal and state laws in the US system. 🏛️
• The interactive session draws comparisons between the US legal system and international legal frameworks. 🌍

Key Takeaways

• US legal culture is a dynamic mix of laws and cultural values, evolving continually to adapt to societal changes. 📜
• The US judiciary plays a critical role in interpreting laws, often exercising significant power compared to other countries. ⚖️
• Precedent, or prior judicial decisions, heavily influences current legal interpretations, but can be overruled or distinguished. 🏛️
• There are always opportunities for improvement and change in the US legal system, reflecting its ever-evolving culture and society. 🔄
• The relationship between federal and state laws is complex, involving shared powers and sometimes conflicting legislation. 🤔

Overview

Chapters

• 00:00 - 03:00: Introduction to ASU Master Class and Topic This chapter introduces the ASU Master Class, emphasizing its purpose of bridging students from partner universities worldwide with researchers and professors from Arizona. It acts as an introductory section to set the stage for what participants can expect from the course.
• 03:00 - 05:00: Presenter Introduction and Presentation Overview This chapter introduces the presenter and outlines the topics for the presentation. It includes acknowledgments to sponsors and contributors, such as State University and Cintana Education, and thanks toara for translation services. The focus of the master class is on understanding the foundations and cultural aspects of US law.
• 05:00 - 11:00: Defining Legal Culture The chapter titled 'Defining Legal Culture' is introduced in a lecture format by presenter Laura Courtz. She plans to speak for approximately 30 minutes followed by a Q&A session. Participants are encouraged to use the Q&A box for submitting questions. The session is recorded for academic purposes and offers language support in Spanish through the globe icon feature.
• 11:00 - 18:00: Sources of US Law The chapter titled 'Sources of US Law' is presented by a professor from Sandra de O'Connor College of Law at Arizona State University. The professor intends to share a screen for a presentation and expresses enthusiasm about the session.
• 18:00 - 27:00: Common Law and Statutory Law Interaction The speaker expresses gratitude for the opportunity to discuss their passion for law and legal culture, aiming to communicate and share this enthusiasm with the audience. The goal of the talk is to provide an understanding of the distinct features of U.S. legal culture, starting with a big-picture overview.
• 27:00 - 30:00: Development of Common Law The chapter focuses on the development and uniqueness of US legal culture rather than on specific laws or areas of law. It highlights the distinct aspects of the US legal system by exploring its traditions and the key sources that have shaped its development.
• 30:00 - 40:00: The Role of Stare Decisis and Court Structure The chapter titled 'The Role of Stare Decisis and Court Structure' explores the concept of legal culture in the United States. Legal culture is defined as the collective ideas, attitudes, values, opinions, and expectations that Americans have towards the law and their legal system. The discussion aims to unravel how these societal perceptions influence legal principles such as stare decisis and the structural dynamics of courts.
• 40:00 - 45:00: Limits on Stare Decisis and Legal Culture Flexibility The chapter discusses the concept of 'stare decisis,' which refers to the legal principle of determining points in litigation according to precedent. It explores the limitations of this principle and the flexibility within the legal culture in the United States. The chapter emphasizes that the legal culture is composed of everyone involved in the law-making process, including judges, lawyers, and legislators. These individuals, who are part of the legal culture, possess their own attitudes, values, and opinions about the laws, which influence how laws are interpreted and enforced.
• 45:00 - 55:00: Precedent and Judicial Decision Making The chapter titled 'Precedent and Judicial Decision Making' begins with a discussion on legal culture, distinguishing it from the law itself. An example provided is the United States, which has a federal constitution serving as a legal document containing laws. Furthermore, the chapter alludes to other supportive elements in the legal framework, hinting at an exploration of how precedents influence judicial decisions beyond just written laws.
• 55:00 - 70:00: Comparison with Other Legal Systems The chapter discusses how a legal system is not just made up by the constitution and legal documents, but by the rules in context which define the legal culture. This culture forms the operational legal system influencing everyday life. The chapter underscores the dynamic nature of legal culture, emphasizing that it is continually evolving and adapting.
• 70:00 - 84:00: Legal Questions and Modern Challenges This chapter discusses the dynamic nature of legal interpretation in relation to the evolving societal and cultural contexts. It highlights that lawmakers, judges, and lawyers interpret and shape laws based on the system's current state, which itself is continuously changing. Therefore, laws and their interpretations are not static but are influenced by the ongoing development of society.
• 84:00 - 103:00: Federal and State Legal Systems The chapter discusses the concept of legal culture in the United States, emphasizing that it is neither static nor uniform. It points out the differences in legal culture over time and highlights the lack of a cultural consensus. The adversarial nature of the U.S. legal system is noted as a contributing factor to the diversity in legal culture.
• 103:00 - 118:00: Conclusion and Q&A Session The chapter titled 'Conclusion and Q&A Session' discusses the role of litigants in driving legal decisions and the progress of the law. It highlights that courts handle issues with significant conflict and debate, illustrating how interpretations of the law can vary widely due to cultural differences.

Beyond the Bench: Understanding US Legal Culture - March 2025 Transcription

• 00:00 - 00:30 Okay, everyone. Well, it is time to get started. So, we're going to go ahead and get started. Thank you very much for coming to today's ASU master class. The goal of ASU master classes is to connect students from our alliance partner universities around the world to researchers and professors from Arizona
• 00:30 - 01:00 State University so that you can learn from them no matter where you are. A sincere thank you to Cintana Education for their sponsorship of these lectures and toara for providing Spanish translation. In today's master class, we are talking about the law in the United States. What are the foundations underpinning US law and what is helpful to know about the way legal culture works in the United
• 01:00 - 01:30 States. Our presenter Laura Courtz will speak for about 30 minutes and then we'll have time for some questions. Please use the Q&A box to submit your questions. This lecture is being recorded and will be available to your professors later. Remember, if you want to hear this webinar in Spanish, just click the globe icon. Now, let's welcome Professor
• 01:30 - 02:00 Cords, who is a professor at Sandra de O' Connor College of Law at Arizona State University. Thanks again for joining us today, Professor. The rest of the time is yours. Well, thank you so much. I'm going to go ahead and share my screen so you can see my presentation. I am so excited to be here with you all today. All right. Um,
• 02:00 - 02:30 so welcome everybody. Thank you so much for the opportunity to speak with you all today. Uh, I'm very passionate about the law and legal culture. So, it's a real pleasure to be able to communicate that and share that passion with all of you. So as we get started, I do want to give a bit of a big picture overview of what I'll be talking about today. So my goal today really is to give you an understanding of some of the distinct features of US legal culture and
• 02:30 - 03:00 tradition. So what is US legal culture? What separates it maybe from or makes it distinct maybe from other countries and other legal systems. Um what this is not is a lecture on US law itself. Um so I'm not going to be focusing in on any particular area of law or any particular law itself. Um instead my focus is on US legal traditions, the development of our law and key sources of our
• 03:00 - 03:30 law. So in terms of the topic of today's talk, what is legal culture? What do I mean when I talk about legal culture? Well, legal culture can be defined as the ideas, attitudes, values, opinions, and expectations that people in the United States hold with respect to the law and the legal system. And when I talk about people in the United States, I'm talking both about the
• 03:30 - 04:00 general public, anyone who is living, working in the United States, and specifically as well about the people making, enforcing and interpreting the laws. So this includes judges, lawyers, legislators. All of these people are themselves part of the legal culture. And all of these people themselves hold attitudes, values, and opinions about the laws. A couple of points to note about
• 04:00 - 04:30 legal culture. As I mentioned or alluded to at the beginning, legal culture is distinct from the law itself. So for example, in the United States, we have a federal constitution, the United States Constitution. That is a document of laws. It is a legal document that provides the laws, some of the laws under which we live. But we also have a US constitutional
• 04:30 - 05:00 system which is those laws, those rules in context. So while the constitution and other laws and legal documents set out the rules, those rules in context are what make up our legal culture. Those rules and context are what make up the actual system under which we live. Another important thing to note about legal culture is it is constantly evolving. It's not static. And that's
• 05:00 - 05:30 because society and culture itself is constantly evolving. So the people that are involved in making and interpreting the laws do so from the perspective of the system in which those laws are embedded. And because that system's always changing, interpretations of the law change, too. The judges and the legislators and the lawyers that work on these laws are themselves the product of
• 05:30 - 06:00 current legal culture, which might look different from legal culture a hundred years ago. The other thing I want to make sure that I emphasize is that although I'm talking about legal culture or a legal culture, there's no cultural consensus. Um, US legal culture is not uniform. And I think this is especially true given that our legal system in the United States is adversarial in nature. In
• 06:00 - 06:30 other words, when a judge is issuing a decision or when um when we're moving the law forward, that is driven that process is driven by litigance. Courts hear and decide issues about which there is significant conflict and debate. And so one person's interpretation of the law might look very different from another's and that's because our culture itself is not
• 06:30 - 07:00 uniform. And so we have a very active judiciary in the United States. So now that we know a bit about legal culture, I want to take a moment and think about where our laws actually come from in the United States. So the US has a federal system of government made up of one national government and 50 state governments. And the US constitution which is one of our key
• 07:00 - 07:30 legal documents allocates power between the state and the national governments and it establishes the basic framework for our governmental system. So we have this one federal document that sets all of this out and then each of the 50 states have their own constitution which establishes the framework for that state's government and each state makes and enforces its laws independently of other
• 07:30 - 08:00 states. So for example I live in Arizona. Arizona has very different laws than our neighboring state, California, about things like how fast you can drive on the roads or where and how you can buy alcohol. So even though each state has its own laws and makes and enforces its own laws, all states are subject to the overriding authority of federal law.
• 08:00 - 08:30 Federal law includes the US Constitution, that document I've been mentioning, but also federal statutes passed by the US Congress and any treaties that the US enters with other countries. So this means that a state, again going back to Arizona where I live, Arizona for example, could not pass a law in violation of the Constitution or another federal law. So if the federal government for example passes a law and says in the United
• 08:30 - 09:00 States the legal drinking age is 21, Arizona can't decide on its own that no in Arizona the legal drinking age is 18. It can't do that. The federal government would be said to have preempted Arizona's law since the federal government already has a law establishing a rule in this area. And so Arizona as a somewhat lesser government, for example, the state of Arizona cannot contradict a federal law that's already
• 09:00 - 09:30 in existence. So as I mentioned, the constitution allocates power between the state and national governments in the way that I just described, but it also sets out the three branches of our government. So executive, legislative, and judicial are our three branches. The executive branch enforces the law. Um the legislative branch is the one that creates statutory law and the judicial branch really does
• 09:30 - 10:00 two things. So I have on this slide that it issues case law which it does but that case law has two different effects. So that case law might interpret other sources of law like the statutes, like the constitution, but that case law also could develop the law itself, move the law forward. And so the judicial branch, in addition to interpreting
• 10:00 - 10:30 other sources of law, also creates its own law. This is common law or sometimes what you hear referred to as case law. And so my main focus today is on the judicial branch. So the judicial branch and let me actually let me go back to the slide for a second. So as I mentioned it develops the law in at least two ways. And what's important about this is that both of these ways occur in the context of resolving particular
• 10:30 - 11:00 disputes. So, in other words, the judicial branch is not some kind of roving branch of government that goes out and looks for laws to interpret um or looks for gray areas to clear up. Litigants, parties that are in a dispute, bring that dispute to court, and then ask the court, please help us clarify this law or develop this law or move this law forward. And so both state and federal courts in the United States contribute to the
• 11:00 - 11:30 development of constitutional and statutory law by interpreting the text of these laws and then applying those interpretations to the facts of specific disputes. So this means that our laws in the United States get clarified and interpreted in context in the context of the particular disputes in which they arise. But we also, this is hearkening back to our roots in the English judicial system. American courts have adopted and
• 11:30 - 12:00 continue to develop a substantial body of common law independent of the legislature. So this is judge-made law that applies to issues not addressed by the constitution or by any statute. In the US, state courts are actually the primary sources of common law. State courts do the most work in terms of developing the common law, but federal courts also develop and apply a what's called a federal common law in a few restricted fields. Um, and they can
• 12:00 - 12:30 also fill in statutory gaps when the US Congress so intends. So many principles in many areas of the law, including contract law, which is one of my specialties, find their actual source in the body of common law rather than in any particular statute. But common law and statutory law are always
• 12:30 - 13:00 interacting. So at the state level, a state legislature can modify or even completely replace the state's common law rule by enacting a statute. And in whole fields of law, state legislators have actually replaced much of the common law. So for example, criminal codes are very common in the United States. Um, so it's very common for a state legislature to enact a
• 13:00 - 13:30 criminal code, a set of rules for how we how the state deals with criminals. And so they don't want to leave that those legislators don't want to leave that area primarily to the judges. They want to instead give the judges essentially a rulebook to play by when criminals encounter the judicial system. But that doesn't mean even though we have a criminal code, uh that doesn't mean that common law didn't influence
• 13:30 - 14:00 the development of that criminal code. So many times in the United States, statutory rules might just restate the common law. So the legislature might look at the common law and say, you know what, we think that this principle is so important, we should put it into a law, and so we're just going to restate it. even if they don't completely restate it, the statute might be influenced by the common law. So common law is often lurking in the background of a
• 14:00 - 14:30 statute. In addition, in the United States, even if we have a criminal code or a commercial statute or some kind of legislation, that legislation is generally not intended to be comprehensive. And so common law, common law rules, common law principles can fill in any gaps in statutory law. So really, although we talk about the US as a common law system, it's really kind of a
• 14:30 - 15:00 hybrid in some ways. The statutes provide the legal rules on the issues to which they apply and the common law applies to gaps within and between statutes. And so I have an example of that on this slide. So this is a an excerpt from the uniform commercial code which is a statutory law that has been passed by the 50 states. It's a state law. Um and it regulates a lot of
• 15:00 - 15:30 commercial transactions. But right in that first section of the Uniform Commercial Code, it explicitly says unless displaced by the particular provisions of this act, unless this act displaces particular common law, the common law shall supplement its provisions. And so I'm a big fan of metaphors. And what I like to to to use to think about all of this is the metaphor of the common law as the ocean.
• 15:30 - 16:00 It's very peaceful metaphor. So if you think of the common law as the ocean, you can think of each judicial opinion as a wave on the surface of the ocean. Each judicial opinion is announcing or clarifying a point of law. And if you look at a bunch of these judicial opinions together, you can see patterns emerging in the law. Just like if you look at the ocean and you see waves within a wind pattern, you can see patterns there.
• 16:00 - 16:30 statutes because they overrule or modify the common law. In our metaphor, statutes are islands that displace portions of the ocean surface. But that doesn't mean that the common law is not there. The common law ocean is flowing around and between the statutory islands, filling in the gaps between the islands. And that's because the common law applies to the extent that a statute has not displaced common law rules. And if you look at the development of US
• 16:30 - 17:00 law over time, if we go back to the 1850s or so, we can see that at that time, most of the US, most of US law was common law. Most of US law was developed by the courts. But if you fast forward to today, you can see we now have many many more statutes, codes, and other sources of the law that displace the common
• 17:00 - 17:30 law. And even though we have a much more comprehensive statutory system in the US today than we did say 150ome years ago, you can see that there's still a lot of ocean in this picture. which means that there's still a very important role for common law to play. So how does common law actually
• 17:30 - 18:00 develop? So in the US, previous court decisions can influence or even dictate the result in a dispute currently before a court. And it can be very complex to figure out what the legal effect of a previous decision is or should be on a current dispute. However, that's what judges have to do every day. How much do their prior decisions
• 18:00 - 18:30 impact or affect or give the answer to the dispute before them today? And you'll often hear the phrase, it's a Latin phrase, star decisis. Star decisis is sort of like a shorthand for the rules that judges use when they are deciding an issue. So under the doctrine of star decisis, each court tries to decide each
• 18:30 - 19:00 case before it consistently with its own previously published decisions. um its previously published decisions are called its precedent. So precedent is previous court decisions that influence or maybe even dictate the outcome in a current case. Now, a court is strictly bound by the president of a higher court that reviews
• 19:00 - 19:30 its decisions, but it's only bound if that higher court's president addressed essentially the same question that the lower court is deciding. So, why do we have this adherence to precedent? Why does that matter? Well, judges adhere to precedent for a couple of reasons. One is to promote efficiency. If a judge is facing a dispute or a legal issue, and that issue
• 19:30 - 20:00 has already been previously settled, the judge doesn't have to revisit it. The judge doesn't have to go through an entire process of reasoning. The judge can just say, you know what, this question has been answered by another court decision. Here's the answer. Another reason judges adhere adhere to precedent is to facilitate transactions. So again I mentioned that contracts contract law is one area that I specialize in. When two parties enter into a contract in the United States, um
• 20:00 - 20:30 the goal at least is that they have some certainty and predictability in the law that regulates those transactions because they can look and see how the courts have decided various disputes relating to contract law in the past and they can rely on those past decisions to structure their own behavior in their current transaction. And then finally, judges adhere to precedent to satisfy the belief, whether that's a moral belief, a social belief,
• 20:30 - 21:00 a cultural belief, but to satisfy the belief that people in like circumstances should be treated alike. But I've already mentioned that US legal culture is not static. And so the tricky question is what happens when existing precedent no longer reflects the best policy or analysis for the world in which we currently live. And so before I get to the answer
• 21:00 - 21:30 to that question, I want to briefly talk about uh detour a minute and talk about our court system so that you can kind of understand a little bit about how this works. So in the United States, most state court systems um really have uh sort of two initial u points of contact with people. So there are courts of limited jurisdiction which hear disputes on limited matters um like domestic relations or traffic violations or civil
• 21:30 - 22:00 disputes that are uh low dollar amounts. So those courts are sort of specialized. They're not represented on this chart because they really just hear sort of specialized low stakes often issues. All other disputes are tried in branches of a trial court of general jurisdiction. That's that state trial court on the lower left side of the chart. Typically, a dispute between two
• 22:00 - 22:30 parties starts in state trial court. That's the first point of contact that litigants have with the court system. If necessary, parties can appeal their dispute to the state appellet court. That's the next level of review. And then to the state supreme court. And in most states, the final decisions of the state trial court are reviewed by the state appellet court or sometimes the state supreme court.
• 22:30 - 23:00 And if a litigant gets to the state supreme court and they are disappointed with the result they got out of the state supreme court, they can take one further appeal um if the question that they're disputing is a question of federal law. So they can appeal up to the United States Supreme Court, the highest court in the land, if they need to. our federal courts. So the the portion in the middle of the chart, our
• 23:00 - 23:30 federal courts are set up in a very similar way to our state courts. At the federal level, the main trial courts are called United States District Courts with some exceptions, disappointed litigants. So if you get a result you don't like from that district court, you can appeal from a judgment of the district court to one of 13 US circuit courts of appeals. And again, if you lose in the circuit court, you can appeal to the United
• 23:30 - 24:00 States Supreme Court. Now, it should be kept in mind that the United States Supreme Court accepts only a small fraction of cases. So, they don't accept every case that's appealed to them. They get to pick and choose because there's only nine justices. There's one court. Um, and they would be completely overloaded if they heard every uh case that litigants were asking them to hear. Um, but you always have the ability to ask the court to hear your dispute. It just may or may not grant
• 24:00 - 24:30 review. And then finally, I did want to just point out, I won't dwell on this, but we do have, this is on the right side of the chart, we do have a number of tribal courts in the United States, and that is because Native American tribes are sovereign entities. Um, so we do have uh tribal trial courts and tribal appellet courts and tribal supreme courts. Um but each tribe each sovereign tribe has its own court system. So my main focus is going to be on US uh state and federal courts sort
• 24:30 - 25:00 of the general the left hand side of the chart. All right. So now that we know a little bit about court structure let's loop that back in with star decisis. So star decisis does not apply fully to the decision-making of the court that creates the president. Um this is particularly true in appellet courts. So the courts of appeals. An appellet court can depart from its own prior rulings
• 25:00 - 25:30 although this is unusual. But if you're a trial court or a lower court within a system, a court system, star decisis is a lot less flexible. Precedent on the same issue is binding on the lower courts for which the creating court acts as a court of review. And so lower courts have to follow the precedent of their higher courts. That means they have to apply
• 25:30 - 26:00 that precedent as controlling authority unless they can distinguish it and I'll talk about distinguishing in a minute. One thing to note about star decisis is it's a really one directional system. So a star decisis does not require a court to follow the precedent of lower courts within the same court system. Star decisis also doesn't require a court to follow the precedent of lower courts or sorry of any courts outside
• 26:00 - 26:30 the court's own system. So for example, although the Arizona trial court is bound by decisions of the Arizona Supreme Court, which is the highest court in our state, the Arizona Supreme Court is not bound by the decisions of other Arizona courts. Nor is the Arizona Supreme Court bound by the decisions of the California Supreme Court. However, even if the president of
• 26:30 - 27:00 another court is not binding on the deciding court, the court is still free to consider the president as persuasive authority and to choose to follow it. So, for example, let's say the Arizona Supreme Court is facing an issue that it's never had to deal with before. It might look over at California's decisions to see if the California Supreme Court has ever dealt with this issue and maybe the California Supreme Court has precedent on this issue. So
• 27:00 - 27:30 the Arizona Supreme Court can look at that precedent and can say, "Yeah, we think this president is great. We're going to do what California does. We're going to follow that decision." Or the Arizona Supreme Court might look at the California Supreme Court's decision and say, "No, this is crazy. I don't want to follow this decision. this doesn't make any sense and that is okay too. So courts over time develop the law incrementally as they decide individual
• 27:30 - 28:00 disputes on specific facts. So if you going back to my first metaphor before I get into metaphor 2, if you think about each published written court opinion, it adds another wave to the sea of common law or another tree on a statutory island. But another way to think of this is to think of each published judicial decision as adding another brick of precedent to an entire wall of case law. And so when courts adhere to precedent,
• 28:00 - 28:30 when they follow the rules of star decisis, they build on a foundation created by these other judicial bricks that have been laid in previous decisions. But in a world where our legal culture is always changing, if you as a court just adhere to precedent without questioning it, that could have the effect of retaining outdated or maybe even unsound legal rules. And we don't want that because
• 28:30 - 29:00 we're trying to build a really strong wall. And a wall that keeps getting built on a flawed foundation will eventually fall. And so we do have limits on star decisis to help us be responsive to changes in legal culture and to help us strike the proper balance between consistency and rigidity in the law. So a court can distinguish a prior decision if that prior decision addressed a significantly different
• 29:00 - 29:30 dispute from the issue before the court. If a decision is distinguished, even if that prior decision was issued by the same court or by a higher court in the same system, that prior decision doesn't control the result in the case now before the court. So for example, let's say that a court was faced with the dispute over whether somebody has a right to privacy in their car. And let's say that there is precedent, there's an existing decision saying that someone has a right to
• 29:30 - 30:00 privacy in their home. The court that is facing the dispute about the car might choose to distinguish the prior decision about privacy in the home because a home is sufficiently different from a car such that different expectations of privacy could apply. Now sometimes a court's own precedent can't be distinguished from the dispute currently before the court.
• 30:00 - 30:30 So in my private previous example, let's say that the the court was facing another dispute about privacy in the home. If there's case law about privacy in the home already on the books, that case law will normally apply. That's star decisis. But in special circumstances, a court may reject its own precedent as authority for the dispute and in doing so, it overrules that precedent. So again, ordinarily the court would be
• 30:30 - 31:00 bound by controlling precedent. But if a court has created precedent, in exceptional circumstances, it might refuse to follow that otherwise controlling precedent. And in so doing, it overrules its prior decision and substitutes new precedent in its place. And so again, if you think about precedent as forming a wall of bricks, we might say that a court could change the direction of its own brick work, but only if it has a good reason to do so. And so what does a good reason look
• 31:00 - 31:30 like? What are these exceptional circumstances where a court can change course and overrule precedent? In general, courts might feel justified in overruling their prior decisions if those decisions are outdated in light of intervening changes in law and society. Right? If our culture has changed and a court looks at this its decision, its own decision, prior decision, and says, "Look, this doesn't make sense anymore in light of
• 31:30 - 32:00 where society is, it might overrule its precedent." Um, another exceptional circumstance might be if those prior decisions have come to be viewed as hopelessly flawed again because society has changed so much because the culture has changed. And so in this way you can see how changes in culture influence the development of the law. And so just a few more words on analogizing and distinguishing precedent. So if you can if you imagine
• 32:00 - 32:30 parties litigating in a court, that court might be faced with several possible situations. It might have precedent of its own that's on point, but the reasoning of that previous decision is outdated, maybe no longer in line with current thinking or public policy. And if that's the case, the court might reject or overrule its own precedent on the grounds that that precedent was pretty obviously flawed in light of modern thinking. A court might also have precedent
• 32:30 - 33:00 that's, you know, sort of on point. Maybe it's maybe the court resolved a prior dispute that's similar to the issue but not exactly the same. And so that's where the court has to do a lot of work in figuring out whether this precedent is analogous, whether it's similar or whether it can be distinguished. Or a court might be facing what we call an issue or a question of first impression. an issue for which there is no precedent, there's nothing relevant on point. And in that
• 33:00 - 33:30 case, a court has to use its own reasoning to decide the dispute. And so the the thing to kind of remember is figuring out whether precedent is analogous, distinguishable, whether it's relevant or not, you have to pay attention to the reasoning underlying the prior decision. It might be that the case that the judge is dealing with and the previous case are so different that the reasons for the
• 33:30 - 34:00 result in the previous decision don't apply to the current case. And if that's the case, we say this precedent is distinguishable. Conversely, even though a prior decision doesn't clearly resolve a current case because of differences between the two cases, many of the reasons for the result in the previous decision might apply equally to the current case. And if that's the case, the prior case, although not clearly controlling, we say it's analogous to
• 34:00 - 34:30 the current case in a way that could justify the same legal result in both. So let's go back to that case I mentioned earlier where a court's trying to decide if someone has a right of privacy in their car. I already mentioned that a court could distinguish previous precedent about privacy in a home because a home and a car are different. Maybe we think someone has a greater right to privacy in their home than in their car since a car could be parked in a public place, but a home you can't move it. But I could also make the
• 34:30 - 35:00 argument that the precedent about privacy in the home is analogous to the case about privacy in a car because a home and a car can both be private property. And so, as you can see, the process of either restricting or extending the application of precedent in relation to a new dispute, it's not an exact science. The determination of whether a previous decision supports an outcome in a new case implicates deeply held values
• 35:00 - 35:30 of the judges who have to interpret and apply the precedent. Again, law and legal culture are virtually inseparable here. And so the flexibility in judges applying star decisis illustrates I think a more general characteristic of our legal system. Our legal system is characterized by uncertainty and indeterminacy. Although some questions about the law or its application to facts do have certain
• 35:30 - 36:00 answers, the most interesting ones, the most interesting legal questions and the ones that tend to be litigated are the ones to which the answer is uncertain prior to final judicial determination. Um, and there's this great quote, I don't have the whole quote up here because it was too long to put on a slide. Um, but but it's a great quote by Professor Gary Watt who says, "Look, there's is never only one answer to a legal dispute. A case with only one right answer is rare and the outcome of a case often depends in large part on
• 36:00 - 36:30 the fact that the parties run out of courts that can hear their cases. The nature of our law in this legal system is not really scientific. It's more like a roulette roulette wheel uh where the nature of the outcome is determined at the point that the wheel stops spinning. And from the perspective of a judge and a a lawmaker, the nature of law is a living conversation. And it just happens that
• 36:30 - 37:00 the conversation has to stop sometimes. So what this all means is that if you're a law student or a lawyer, your main job is not to figure out what the right answer is to any particular legal question. Your main job is to identify issues um matters that are reasonably in dispute either about the facts or about the law and to recognize and develop arguments that can be persuasively advanced on either side of a dispute.
• 37:00 - 37:30 And that to me is the fun about being a law student and being a lawyer. It's wrestling with issues and being comfortable that there isn't a right answer in most cases. Even if a right answer shows up because a court has finally decided the issue, that right answer could turn into a wrong answer if social and cultural expectations change over time. And that evolution is a key characteristic of US law and legal
• 37:30 - 38:00 culture. So I'm going to stop here to take your questions. Um, thank you so much for listening and I look forward to questions from the audience. Thank you so much, Professor Cords. What an amazing presentation. And I'm sure our audience is thinking hard about my goodness, you know, I have all these questions. Where do we even begin? So, I will start out um with a few questions here about um the US legal system in
• 38:00 - 38:30 comparison to other legal systems around the world. So you know that of course our our audience today is entirely international and um I'm sure everybody is trying to you know assimilate and say okay what does this what would this look like in Mexico right or or how could we transfer this knowledge to our context. So my first question for you is um when the United States was founded as as a
• 38:30 - 39:00 country, which legal system did it, um copy, right, or did it gain inspiration from? Yeah. So it's a great question. So I think I mentioned it really briefly, but the US took a lot from England, which makes sense because we were originally an English colony. Um so we imported a lot of our laws. um and the way we think about things from England. That said, I think we've, you know, we've now been
• 39:00 - 39:30 separated from England for several hundred years and so we have gone off on our own, but we really share a lot of our roots in English principles. And if you look at those very very early cases when judges were deciding issues around the sort of the time of the birth of our country um they looked to England and to English law and English cases to help them decide the issues before them. So really our law is very closely tied or at least
• 39:30 - 40:00 initially was very closely tied to England and the English system. Fantastic. Well, thank you so much for your answer. Um I will go on to the next question um from our audience members. But before I do, I would like to draw um audience members attention to our screen up here. Um if you would like to get a participation badge for today's master class. Um you will get one uh if you registered for this webinar with your
• 40:00 - 40:30 school email. Okay? So, if you registered with your email from your university, you will get a participation badge. Um, if you do not get one, please email asu supports centana.com or contact this WhatsApp number to ask questions about the badges. Okay. So, um, Professor Cords, our next question is, uh, audience member Jose asks, "How do the US legal system, how does the US
• 40:30 - 41:00 legal system differ from its southern neighbor in Mexico, and how does this help both parties engage in legal system processes that can govern them both like in case of foreign affairs?" Yeah. So, I think there's a lot of significant differences between the US and Mexican legal systems. Um, I'm not an expert in Mexico's legal system, but my understanding, my brief understanding is that Mexico does have a civil law system. Um, so we have, as I
• 41:00 - 41:30 mentioned, a common law system where our, um, our judges decide cases and thereby create precedent. Um, Mexico, I believe, uses a more civil law system which is based on code. Um that again doesn't mean that there isn't any work for their judges as I'm sure you are all familiar uh those of you in Mexico right judges do have to apply existing law but there's not that same um uh presidential
• 41:30 - 42:00 value of the case law that's developed in Mexico. Um so I I think the US law overall is more reliant on cases. Um, and I think that's a big thing for us all to think about in terms of, you know, understanding each other's law and legal culture. I think a lot of times when I speak to students internationally, especially from students with a civil law country, they can be sort of shocked at how much power our judges have relative to our
• 42:00 - 42:30 legislature. Um because even though our legislature of course has a great deal of power in creating statutes, the judges ultimately are interpreting that stat those statutes and those interpretations evolve as I mentioned over time. And so I think it can be quite shocking to for to read a case that maybe is seen as a significant departure from maybe what the legislature had enacted a hundred years ago. Um, and so I think in terms of, you
• 42:30 - 43:00 know, us thinking about how, uh, how we can better, you know, just really getting a better understanding of the differences between civil law and common law, um, you know, we still have some shared foundations. We hopefully all still, you know, place a lot of value in the law. But I think what shocks or tends to surprise a lot of people I speak to internationally and especially those from civil law countries is just how much our law can change without there being a new statute promulgated
• 43:00 - 43:30 and that is both a blessing and a curse. Um, you know, I think in some ways it's great because it allows for a lot of flexibility, but in some ways the court and the legislature are sort of continually playing catch-up with each other in a way that I think in civil law countries I suspect anyway that may not be the case. Um, and so I think to me doing things like this is a wonderful way to sort of understand each other's legal systems and hopefully understand how they work and then therefore get a
• 43:30 - 44:00 better sense of how we can work together. Fantastic answer. Thank you so much for that. Um, great. So I will go ahead and move on to our next question. But before I do, I would like to draw everyone's attention to our screen once more. Um, please go ahead and scan this QR code with your phones and um, if you would be so kind as to fill out a survey about today's webinar as we continue to answer
• 44:00 - 44:30 our next questions from the audience. Okay. So, um, Professor Cords, our next question from an anonymous attendee in the audience says, "What happens if a state declares full autonomy and begins to make decisions independent and contrary to the federal court?" Great question. Um, and it is, uh, definitely something to think about. So, um, basically the the way that our legal system is set up that really the state
• 44:30 - 45:00 really would not get very far. Um because we do have in our system of government, you know, we do give the states a fair amount of freedom, but we also say to the states if as as I mentioned I think before, if the federal government has promulgated a law, you as the state cannot enact a law that contradicts it. And so the way this would work is if a state enacted a law that was contradictory to a federal
• 45:00 - 45:30 government law, um it would go up through it would be resolved and addressed through our court system. Um so presumably someone in the state or maybe someone from out of state would sue maybe even the federal government would sue and would say you can't do this. The federal law is this. The state law is something different. you can't have these contradictory laws. And then the court would say, "Yep, that law is null and void. It is preempted by the
• 45:30 - 46:00 federal law." Um, and so this doesn't happen uh it doesn't I should say it doesn't happen blatantly very often that you know a state decides, oh, we're just gonna pass our own laws regardless of what the federal government says and we're we're not going to listen. Um but preeemption issues actually come up a fair bit because sometimes it's not clear whether the federal government has spoken in a particular area. So the
• 46:00 - 46:30 federal government might pass a law but it might not be clear the uh sort of the scope of that law might not be clear. And so sometimes you will see states passing laws to try and sort of test the limits of that federal law. And again, this all gets resolved in our court system with the court saying either, "Nope, that law is preempted by the federal government. It's invalid. It's like it never happened." Or the court saying, "Well, actually, this is okay
• 46:30 - 47:00 because the federal law seems to stop at this particular place and the state law picks up where the federal law stops." Um, and so while you might think that, you know, I think a a pretty extreme event would be a state going completely rogue and just enacting its own laws willy-nilly, um, that doesn't tend to happen as much, but states do tend to test the boundaries of federal legislation, and they do that through their own laws and then through the court system. Fantastic answer. Thank you so much for
• 47:00 - 47:30 that. Um let's move on to our next question. Um so we have an anonymous attendee that's asking about tribal laws. So you had mentioned that um we have um Native American societies within the United States that are sovereign nations. How how are their lies laws applied? Yeah. So tribal law is really internal to federally recognized Native American
• 47:30 - 48:00 Indian tribes which as I mentioned are so are considered sovereigns within the United States. So tribal law um it operates as well alongside federal and state laws. There is it is an extremely I I'd say in some ways complicated area of law and if you're interested um ASU in particular has a really great Indian law Native American law program that explores all of these nuances in a lot more detail than I could cover in in a
• 48:00 - 48:30 few minutes. Um but basically within tribal territories tribes have the ability to make laws that fully apply. So tribal law uh might concern things like criminal justice. It might have concern things like um civil matters as well. And it might concern things like who the law actually applies to. So tribal membership, right? Um who can become a member of who is a recognized member of a recognized tribe. Um so
• 48:30 - 49:00 tribes make these types of laws. They also um govern they they can pass laws governing the relationship between the federal government and state governments and tribes. Um so there's all sorts of all sorts of nuances to tribal law, but essentially tribes have the ability within their own territory to make these laws. Um, and then there are also laws
• 49:00 - 49:30 touching on tribes that um that are passed by other governments um that govern the relations between tribes and other governments in the United States. Fantastic. Excellent. Thank you so much. It is so interesting uh Dr. Cords. do find that um when people in other countries learn that that we that we do have this like separate system for Native American nations, it is um oftent times very surprising, right? And and
• 49:30 - 50:00 also very interesting. Yes, I think it's one of the really interesting and unique facets of our law. I wish like that could be a topic a webinar topic in and of itself though um because it really is a fascinating and intricate area but it is um something unique and I think important. Excellent. Well um we will go ahead and then move on to our next question here. So um Ulyses from the audience asks for you
• 50:00 - 50:30 in your personal opinion is the law in the US fine as it is or does it need to be changed? Is it the best it can be or are there always gaps for improvement? Oh, I think there are always gaps for improvement and this is I mean I this is one of the big reasons why I wanted to study law, why I practice law and why I teach law because I think there are always like as I mentioned at the
• 50:30 - 51:00 beginning US legal culture is always changing and so the law always needs to change. Um, it's not to say that we need to do a complete upheaval of our laws every every year or anything like that, but we always need to be thinking about how we can do better. One of the things that has stuck out at me throughout my legal career is how difficult it is to draft a good law. So, from a legislative perspective, how difficult it is to draft a law and to use language that
• 51:00 - 51:30 won't be misinterpreted some way down the line. Um and so I um in in my other area, one of my other areas of specialization is bankruptcy. And we have a bankruptcy code in the United States. So our bankruptcy law is primarily statutory. Um a lot of what I deal with is issues about language in the bankruptcy code and whether that language makes sense and whether that language uh you know makes sense in
• 51:30 - 52:00 light of today and the challenges today. Um, and I think that's one of the exciting things about being a lawyer is for me anyway, your job is never done because there's always improvements and always changes that can be made. Fantastic answer. Thank you so much. Um, before we move on to our next question, I do want to draw the audience's attention to our screen. I have yet another QR code for you all to scan um to register for our next uh webinar and
• 52:00 - 52:30 and that will be for April 9th at 8:00 a.m. U modern um um sorry Mountain Standard Time here in the US. Um so please um go ahead and register for this next webinar if you are interested. And I will repeat for those of you that um would like to watch this webinar again, your professors will be sent a recording of this webinar so you can view it again. Okay. Um All
• 52:30 - 53:00 right. So, uh Professor Cords, we're going to move on to the next question. Um so an anonymous attendee from the audience asks how does the changing uh of judges at all levels impact the legal decisions that reflect the evolution of society? Are judicial appointments solely dependent on the political party in power at any given time? Great question. So the answer is
• 53:00 - 53:30 as it's a great legal answer. It's complicated. So, um, as I mentioned, um, on that one or as you could see on that one slide that talks about the structure of our court systems. So, the ways in which judges are appointed, particularly state judges, which again are making are often doing the most leg work in terms of making common law, those judges um, their the way they get put on the bench
• 53:30 - 54:00 differs from state to state. So in some states it's a political process. They're elected. Um in some states they are appointed. In some states they are appointed and voters decide whether to retain them. Uh and so uh it can be and in some cases they have you know I think in all cases for state judges they have set terms. Um for federal judges um under article three of the constitution most federal judges um are appointed uh for
• 54:00 - 54:30 life terms. There's no end date. Um and this is because this is designed to insulate them from political pressure. They're not dependent on an election or on who's in office at any particular time. Uh as to whether they're, you know, as to whether they can continue into in their job. And this is designed to make our judiciary more independent. Whether it has the effect of doing that, I think is is subject to debate.
• 54:30 - 55:00 Particularly in the US these days, it's a hot topic of debate. um how you know how sort of independent our judges are, how free they feel to make decisions that don't go with the political climate of the times for example. But the basic idea at least at the federal level in many cases is these judges are supposed to be insulated from political influence. They are not supposed to be dependent on uh who's in the White House, who's the president um in terms
• 55:00 - 55:30 of you know their job security. Although they might be appointed at at a particular time by a particular government administration. Um the idea is because they have this what's called life tenure. Um they you know they are free to speak their minds. They are free to make their decisions in the way they think is best untainted from any political influence. Again this is the ideal that I'm describing. The reality is complicated and as I said this is a hot topic of debate I think um in the US
• 55:30 - 56:00 not just now but it has been for some time as to how politically insulated our judges truly are. Yeah great thank you thank you so much for your answer. Um the next question um from an an another anonymous attendee says um can certain um aspects of the constitution ever be changed such as things like birthright citizenship? Okay. Yeah, this is a really um this is
• 56:00 - 56:30 a really interesting question again in light of modern times. So I'll give you the the answer as as I see it and sort of what has been the standard answer. Um which is the US constitution can be changed. Um but change is not supposed to be easy. So in order for the US constitution to be amended is what we would call it. um an amendment has to be passed by either twothirds of both houses of Congress or proposed by a constitutional
• 56:30 - 57:00 convention called by twothirds of the states and then ratified by three4s of the states. Um, so you're supposed to get basically everybody on board, you know, twothirds, three4s, these are huge percentages um before you can amend the constitution. That said, right, so that's that's like sort of the formal amendment process. How do we go about formally changing or amending the constitution? That said, I think part of
• 57:00 - 57:30 what is a characteristic of US law, right, is this idea that the law the, you know, the the laws that are on the books are meant to adapt with the times. And so people's interpretations of the constitution of the what of the text of the constitution have differed with time. Um, that being said, I have yet to see um somebody uh coming out and
• 57:30 - 58:00 directly saying something that directly contradicts the Constitution. But lawyers, our job is to sort of find that play in the joint, find that flexibility, find those gaps in the law. This is making us sound really horrible, but sort of exploit those gaps to ar to to to craft creative legal arguments. And a lot of times I think this works really well and it helps us advance the law. Um, but I think at times it can also result in
• 58:00 - 58:30 arguments that are contrary to the intention of the law and the legal document that is at issue. And that's where we get into that territory where we're asking ourselves, are we making a change to the constitution or to the law? Are we actually changing it without going through that formal amendment process that we are supposed to go through? Thank you so much for your answer. U great. So
• 58:30 - 59:00 um unfortunately we never have enough time for all of the questions uh that are asked but I would like to thank everybody for coming our time with you. Professor Cords has come to an end. Uh but thank you so much for your time today audience. Thank you for your questions and um again this webinar will be available to your professors later as
• 59:00 - 59:30 of recording. Thank you everyone for coming. Take care and I'll see you next time. Thank you.