|
Law in Contemporary Society
|
|
The complex path to becoming a lawyer with a dual legal culture.-- By StevenRaphan - 23 Feb 2024 When you contemplate what type of lawyer you want to be and part of the answer is to become one with a dual legal culture, it comes with many implications and challenges. In the journey to become a lawyer with a dual culture, one of the steps involves encountering a renewal in the way of learning law that must be quickly integrated. I was immediately struck by the unique nature of teaching in the United States. It involves a thorough examination of various cases, analyzing their contents in detail. First, the cases are analyzed, and then a certain logic is drawn from them. After several cases are individually addressed, an overall logic can be derived. In contrast, French legal education in lecture halls does not typically aim to delve into case details. Instead, certain principles are instilled in us, and the case law from which these principles are drawn will be enunciated subsequently. Ultimately, it appeared to me that this teaching method is entirely in harmony with the concept of common law which finds its basis in the particular to afterward establishing general principles. Additionally, there's a distinctive level of interactivity in lectures that differs from the approach in French law schools, which one must adapt to. Through this, I discovered how a law course can be constituted as much by the participation of the students as by the professor. Comparatively, French teaching methods offer fewer opportunities for discussing course material and our understanding of it with the professor. One of the difficulties in learning law in different countries and legal contexts is also that law is accompanied by deep codification and strict methods. While in my experience I have observed that on this point the law of two different legal systems converge, it remains that the content of this method and codification differs drastically. At this point lies a particular difficulty because there is no possibility of mixing or benefiting from each legal system as each of them claims to dictate a way of expressing legal language exclusive of any other. In the United States, CREAC is used, and bluebooking is essential and required for a brief or a memo, while in France it is necessary to use a two-part and two-sub-part plan and to structure each argument into 3 paragraphs in briefs. This is particularly difficult to accommodate because these are the basics of learning law in a law school and we are mechanically trained to use such a methodological plan without ever being able to break away from it. Suddenly having to think differently and apply writing standards that go against what has been the basis of your legal education is particularly challenging. However, the law contains some particularly universal elements. This allows to bridge the gap more easily because many points are quite similar in the way they are approached. In terms of learning and law school, subjects like torts or contracts will have a very similar foundation, which will help compensate for certain difficulties by already having a certain understanding of the concepts. As for the practice of law, it is interesting to note, for example, that in many aspects the practice of an M&A lawyer in France and in the United States will converge in many points. The structure of a deal and the various steps related to due diligence, the data room, and the implementation of conditions precedent will be quite similar. Most of the clauses that will be negotiated and analyzed in the articles of association of a company are also found in both systems, even though differences in regulations may change their application and implementation. Some may also be simply prohibited in one and not in the other. What is interesting to note in this context is that there is also facilitation in integrating certain concepts, which helps to alleviate the difficulties that the less universal aspect of law and its application may pose. However, this can also be a double-edged sword, as when you carry out a legal task related to the law of a country, it is necessary to fully embrace what the law of this country is made of. The risk is to mix knowledge and no longer fit within the framework of the legal system concerned. The dual legal culture, if well developed, nevertheless has the advantage of fostering open-mindedness and the development of intricate and innovative juridical thought patterns. Having been exposed to different ways of doing, whether in substantive law or methodology, can enable you to think differently and arrive at solutions that others may not necessarily perceive. In this sense, diversity is a strength that enriches your legal acumen by bringing forth a multitude of perspectives, approaches, and solutions to legal issues. However, the challenging tension between being slightly innovative and straying from the framework of law and legal thinking inherent in the country where law is practiced persists, making the use of plural knowledge a difficult exercise.The underlying assumption of this draft is that law school is about "the law." On that assumption, "the law" is either learned by inferring generalities from the specifics of cases or deducing the outcomes of hypothetical situations from general principles given by authorities. If that assumption is relaxed, however, and the subject of law school is lawyering, then the draft asserts that "lawyering," which is assumed to be about corporate control transactions for some reason, is pretty much the same everywhere because there are always term sheets and "data rooms," no matter what local regulations require. I think none of that is true. So the "complex path" set forth here is a midway between a multidisciplinary education in understanding social process, active listening, mind reading and artistic creation on the one hand, and a bureaucratic, sterile, non-dialogic proclamation of the legal principles evolved in the system of large-scale commercial slavery we call the Roman Empire, on the other. These aren't "two systems"—they are fundamentally conflicting understandings of what it means to be a lawyer and to do lawyer-things, as well as to be a teacher or a student, and to do learning. The primary task of the draft, from this point of view, is to dissociate these fundamental differences in order to print a bilingual business card. I recognize that these two outlooks are difficult to square. I think acting out the difficulty rather than ignoring it would be an even more important improvement. It might then be possible to decide which of the two law schools to drop out of. One of them is clearly inadequate. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
|
|
