This book begins with a simple premise – law school is not primarily about teaching legal doctrine, but about helping law students on their way to becoming great lawyers. Knowing and applying legal doctrine is part of what lawyers do, but it’s a poor lawyer who fails to understand that the job involves much more. Put broadly, the job involves solving – often by anticipating and avoiding – client problems, and doing so in an ethical way that recognizes and honors the lawyer’s duties not just to the client but to the system of justice and to society at large.

     Because we think law school is about forming great lawyers, we’ve designed this textbook according to a vision of how great lawyers practice and are trained. We think great lawyers are:

     Holistic. This involves situating legal rules and legal process in a larger framework. Formal laws and institutions are just one way to resolve disputes and influence behavior, and sometimes even when successful legal resolutions are achieved other problems arise that make the legal win a less than a desirable overall solution. Great lawyers understand how legal processes fit into a bigger picture.

     Strategic.  This also involves understanding legal rules within a strategic perspective. While law and legal process is and should be so much more than a competitive game (justice matters), nonetheless there is a craft that can be applied to help clients. Great lawyers use rules strategically to help clients fairly achieve legitimate goals, and we try to show you how.

     Transnational. This textbook was written for use with international students. Almost all STL students are either PRC nationals or, even if exchange or LL.M. students, mostly from countries other than the USA. While we believe US Civil Procedure is extremely relevant to lawyers worldwide, we also feel that the focus and emphasis should change for those less likely to be engaged in US litigation (a circumstance often true for US law students as well, but less easy to predict in the US). Finally, in the modern world, solving client problems increasingly requires awareness of the variety of competing legal systems that can be applied – or at least learned from – and to the extent it is consistent with a course focused primarily on a deep dive into one system we take a comparative look at different systems.

     Culturally and Socially Competent. Great lawyers are much more than technically competent. Career success depends upon soft skills that are not measured, and generally not well taught, in the traditional law school curriculum. Despite that, great lawyers have well developed soft skills. They can work well as members of or leaders of teams, they can communicate clearly in a range of settings, and they are mindful of the challenges that arise from trying to have both a satisfying life and success in a difficult profession. Transnational lawyers – which at our school means everyone – also need cultural competence. They need to understand and honor other cultural traditions, and to be prepared to operate as a kind of cultural translator when the need arises.

     Technically Proficient. While legal technical proficiency is far from enough, it still matters. Lawyers must know how to interpret a statute and carefully read a case. In the common law tradition, they must be able to distinguish dicta from holdings, and know why the difference matters. They must not be thrown off by technical terms unique to legal settings. They must know how to conduct research, and how to access the tools that practicing lawyers use to pursue new questions. While they won’t have the answer to every legal question at their fingertips, they must know enough doctrine to recognize when an issue is presented and when changing facts require changing strategies.

     Ethical. Law is a profession, and not just an occupation. While pretty much everyone recognizes that law has not proved immune to the fiscal pressures affecting other jobs, the fact remains that to function as a fully formed lawyer requires forming a professional identity, and a professional identity involves more than revenue generation. We think these issues need to be confronted early and often, and try to incorporate them at appropriate places in this course.

     Resilient and Grounded. Legal practice can be a difficult way to make a living. Lawyers often work extremely long hours, immersed in corporate or personal problems that their clients find too difficult to handle on their own. Studies have shown that lawyers are much more prone than the general population to depression, alcoholism, and other stress-related physical and mental disorders. At the same time, legal practice can be rewarding as lawyers use their skills to improve the plight of their clients or to improve society as a whole, or to find ways to solve problems that had seemed insoluble. Great lawyers find a way to have a balanced life and to maintain their physical and mental health. Developing a professional identity that fits your values is an important step toward both establishing necessary limits and resilience.

     [We recognize that some of you, by original design or the force of events as they unfold, will not end up as lawyers, great or otherwise. That's ok. We frame this in terms of being great lawyers because, after all, this is a law school, but almost all of what makes a great lawyer also makes a great teacher or great civil servant or great investment banker. We won't be disappointed if you choose a career other than law. We will be disappointed if you decide being great isn't worth the bother.]

     To the extent we could, we have designed this course to address all those issues.

   This course has been designed as a complete, immersive course in U.S. Civil Procedure for students who will in many cases - probably most, perhaps almost all - not once practice in a U.S. courtroom. Over the years, some students have openly wondered: Why? More precisely, Why should I care?

   The assumption underlying that question is that for someone practicing in China, or, indeed, any other non-U.S. jurisdiction, U.S. procedural law will not ever matter. These students often assume that Civil Procedure is about litigation, and that any litigation they will ever be personally involved in will be in the courts of their home country or in arbitration settings.

   These assumptions miss the mark, especially for those who will emerge from law school to practice in a globalized 21st Century world. First, Civil Procedure is not just about litigation. At a practical level, it is about business planning, because understanding the reach of the U.S. courts and the consequences of being caught within that reach will bear on many business decisions. Beyond that, at an intellectual level, Civil Procedure is the first year course that focuses on the sometimes unusual structure and operation of the U.S. government, and whether students end up as diplomats or international lawyers, understanding that structure at a sophisticated and nuanced level is necessary for good decision making.

   Most generally, by exploring the reach of not just U.S. law but also international law such as treaties that bear on process as well as soft law that can affect behavior, we start an exploration of what is called by some "legal pluralism" or by others "polycentric governance." The idea that one country's law is all that applies to a given situation is out of date in a globalized economy. Actions taken in one country have impacts in many others, and those impacts lead to regulation across national borders. This is a trend that will not go away in your lifetimes, and understanding it as well as being able to discuss with sophistication whether a given assertion of state power across borders is legitimate or illegitimate, typical or extraordinary, are part of being a great lawyer in a globalized world. We will explore legal pluralism and polycentric governance both as they operate within the U.S. federal system - which has subjected citizens to overlapping bodies of law from the beginning - as well as its operation internationally. We believe that those young lawyers who understand this at a deep, nuanced lawyer will have a meaningful and durable competitive advantage over those who lack such an understanding.

   In order to make this more than academic, we often refer to major U.S. litigations that involve Chinese companies. You will see that poor, and perhaps uninformed, decisions made by these companies, sometimes at the point of starting business relations with the U.S. and other times at the point of making litigation decisions, had significant negative impact for those companies. A better understanding of U.S. procedural law might have led to different, better outcomes.

   We begin with what it means to be a lawyer. Lawyers operate within ethical and legal constraints that do not apply to other occupations. Understanding what these constraints are and why they matter not just to lawyers but to society is an important part of understanding any part of the US legal system.

     We then address culture. We do that in large part because this book is designed for a classroom in which the vast majority of the students will not be from the US or intimately familiar with US culture beyond what is portrayed in the media. Law has deep cultural roots – at some level, legal norms are a kind of cultural software. We look at research which has explored cultural and cognitive differences in Asian and Western cultures, and then provide a quick introduction to US culture and history. You are free to disagree with any of what is presented, but to function across cultures will require you to develop your own mindful and intentional approach to cultural issues.

     We then turn to conflict. We begin with conflict because law, and different kinds of law, and different processes to enforce law, all arise as ways to deal with conflict. Conflict is pervasive and unending. Conflict occurs in all human cultures, and even in non-human groups.

     Conflict does not always mean battle. Conflict can arise from two different perspectives on an event or a situation, which can create opportunities for mutual gain as much as losses. The issue with conflict thus becomes how to most productively resolve it.

     There are many ways to resolve conflict, of which laws and legal process are just one. These include submission to cultural norms, discussion, negotiation, mediation, group resolution including political processes, arbitration, non-governmental establishment of group norms, and formal governmental laws enforced by formal government provided procedures. While lawyers are identified with formal laws and formal procedure, in reality typical lawyers will over the course of their lives and careers resolve disputes through many if not all of these methods that do not involve legal process. Understanding what legal process is and when turning to it makes sense requires understanding how it fits into this larger picture of resolving disputes.

     Our first doctrinal module therefore is one either reached at the end of most US courses, or, quite often, not quite reached at all, Alternative Dispute Resolution. We do it this way because of our emphasis on strategy, and based on our belief that addressing client needs should not lead blindly to doctrinally driven solutions.

     Our second doctrinal module goes to the end of the formal process – remedies, enforcing judgments, and appeals. This, again, is not the normal sequence but is driven by a desire to alert students to the importance of strategic considerations. The first rule of warfare is to define the objective. Courts have extensive power to provide relief, but that power is not unlimited - they cannot restore broken relationships, or issue orders that are beyond their geographic or legal power. Understanding the relief available – especially in transnational settings – will drive strategic choices. Much legal analysis yields uncertain results, and understanding what has to happen before a wrong decision by a trial judge can be challenged will, again, drive strategic decisions made at the outset, not the conclusion, of a matter. Again, reflecting our transnational setting, we look at transnational enforcement of judgments, specifically looking at how US courts approach enforcing judgments obtained abroad.

     Only then do we go where many traditional textbooks start, which is the formal commencement of litigation. We don’t think litigation should ever be commenced until the alternatives have been examined and the possible outcomes understood, and we try to drive that point home in the way we structure the course.

     Government-sponsored and hosted litigation (that is, government-run court systems), while not the only way to resolve conflicts, is one that gives lawyers a special role. In most jurisdictions, including the United States, only licensed lawyers can represent litigants in most courts (although litigants can always represent themselves). Understanding the formal litigation process is a core competency of lawyers, and one that we will dive into in depth.

     Even in the commencement of litigation, we flip the way most books handle it, placing service of process before the issue of personal jurisdiction. We understand that, analytically speaking, the court’s power over a party is a preliminary analytical issue going to the power of the court that should be resolved before the court gets into merits issues or other rules of process. At the same time, we’ve taught Civ Pro long enough to recognize that the issue of personal jurisdiction can be confusing to students (and, one might fairly conclude, to justices of the US Supreme Court).

     We thus start with the somewhat less troubled area of service of process. Here, in comparison to most US textbooks, we spend a little extra time looking at service on overseas defendants. We think that increasingly that will be core for anyone, but it certainly is core for anyone representing foreign-based defendants. After covering the rules we turn to the broader Constitutional concept of notice and right to a hearing.

     Knowing how process is made and how the Constitutional right of notice sets limits that cannot be ignored allows to move to our next topic, personal jurisdiction. We again find the strategic prism important for this topic. Personal jurisdiction is the hook that draws foreign defendants into US courts. You cannot competently represent overseas defendants who do any foreign trade without understanding when and how those defendants might become subject to the US legal process.

     That concludes what is covered in the first semester.

      In the second semester, we will turn to other issues covered in a typical civil procedure course in volume two of this textbook.

     Quarter Two begins with Subject Matter Jurisdiction. SMJ is important because this doctrine controls whether a federal forum exists for a claim, but for our purposes it is even more important because it reflects and illustrates the limited scope of institutional powers under the United States Constitution. We will learn that under the Constitution the United States government is a government of limited powers, and that the federal government as a whole and each branch of the federal government has only those powers that have been granted to it in the text of the Constitution. SMJ deals with whether a federal court has power under the Constitution to hear a case.

     We will then turn to venue and forum non conveniens. Assuming that the court has power under the Constitution to hear a case, these doctrines looked to whether a given court is an appropriate location for the resolution of the controversy. For non-US litigants, forum non conveniens can matter because on occasion the proper forum for a dispute is not in the United States at all, leading to dismissal of the lawsuit.

     Our next topic will be choice of law, within which we will look both at horizontal choice of law (say, Chinese law versus United States law, or Texas versus California law) and also at a form of vertical choice of law (federal or state law) known as the Erie doctrine. Very often in litigation an important issue is which law should be applied to the dispute, and in the United States this can become especially complicated when the choice lies between a federal rule and a state rule.

     We will move somewhat quickly through topics related to the stating and construction of a lawsuit – pleading and joinder. We will then look at aggregate litigation, including class action litigation, which is a way to increase the scope of litigation that is somewhat – albeit not completely -- exceptional to the US. Understanding the nature and scope of class action penalties will be important for non—US nationals who may find themselves advising non—U.S. companies doing business in the United States.

     We then look at discovery and case management, with discovery being another aspect of US litigation which is somewhat exceptional. In the United States, litigants are given substantial (but not unlimited) power to require other parties to produce information, even when that information is otherwise private or confidential. Again, understanding the nature of US discovery and the consequences that can flow from failing to comply with discovery obligations is important to non--US attorneys representing clients with activities in the United States.

     We then look at two ways to resolve the case, judgments and adjudication without a trial and trial itself. You will learn that in the United States very few cases actually proceed to a full trial, but we will cover doctrines such as summary judgment, right to a jury, and the process of a jury trial. Even though trials have become somewhat rare in the United States, the possibility of trial shapes the entire litigation process and so must be understood.

     Finally we look at claim and issue preclusion, which look at what effect should be given to judgments that have been rendered. You will be interested to learn that non-US judgments might have preclusive effect, as might in some circumstances disposition of a claim through arbitration. This will conclude our quarter two coverage and the course as a whole.

     In both semesters we will make reference from time to time to a major litigation, the Chinese Drywall cases. We feel these cases help illustrate how and why US Civil Procedure matters for non-US parties and lawyers, and use it to illustrate many of the litigation processes. We also bring in when appropriate other cases involving Chinese parties, which again help illustrate the transnational application of U.S. procedural laws.

PREAMBLE:  A LAWYER'S RESPONSIBILITIES

[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

[3] In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.

[4] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

[5] A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.

[6] As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

[7] Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.

[8] A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.

[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

[10] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

[11] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

[12] The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.

     What does it mean to be a lawyer? In this course, you will be asked to think strategically. You need to understand from the outset that your professional status – and the duties and responsibilities that go along with that – will shape the strategic options available to you.

     Our first reading is the preamble to the US Model Rules of Professional Responsibility because that preamble is a good, and much thought about, statement of what the lawyer’s role involves. You will note three roles peculiar to lawyers – a representative of clients, an officer of the legal system, and a guardian of justice. To act as a fully formed lawyer, you need to be mindful of each of those roles. As you read along, you will note duties of honesty that apply even to your personal life, a duty to treat others with civility and respect, and a duty of competence.

     These roles and duties can impact strategic choices of the type covered in this course.  Filing a lawsuit or raising a defense for the sole purpose of harassment might seem to be an effective strategy in some cases – but it would not be compatible with your duties as a lawyer. Time might be saved by plagiarizing someone else’s work without attribution for a brief, but that also is dishonest and might also lead to disciplinary issues.  It might be tempting to shade the truth or to claim knowledge of facts that have not been established in a filing or a pleading, but, again, such would not be compatible with your duties as a lawyer.

     At the same time, lawyers owe a duty to their clients, and must represent them faithfully. At times, that will involve discomfort for you and others. Nothing in this preamble or the entire set of rules says that lawyers must be go along with the flow people. As the Preamble notes, conflicts can arise from the various roles a lawyer must play.

     As the Preamble makes clear, the role played by lawyers is not simple or linear. Unlike business people, lawyers cannot fall back on a rote "the client is always right" approach, nor can lawyers be unmindful of how what they do impacts society as a whole. A lawyer who views law as being solely a means to a healthy income or social prestige misses much of the point. At the same time, lawyers who wish to be employed must within the ethical constraints be mindful of client preferences and be attentive to client needs. At STL you will return in other settings to the ethical context of lawyering, both in classes that cover the topic directly and in doctrinal courses - such as this one - where ethical issues come into play. 

     We cannot stress enough the urgency of addressing, early and often, the question of what kind of lawyer you want to be. By that, we don't mean what area of practice, but what kind of professional identity you will adopt. Coming to grips, as clearly as possible, with the full depth of what it means to be an ethical, productive lawyer will impact not just your career, but your personal happiness. 

     The ethical duties of a lawyer touch on and control all professional actions of a lawyer - and even a lawyer's personal life. Everything from keeping confidences to not taking clients who will create duties that conflict with duties owed to other clients to acting civilly apply to all areas of professional practice. The duty of honesty applies even outside of professional life. Dishonest or illegal actions with no connection to legal practice that raise doubts about whether a lawyer should be in practice can and have on occasion provided a basis for terminating a lawyer's right to practice.

     In this course we focus on litigation, and hence look especially at those duties that most directly touch on lawyers in litigation. The US system, compared to many other systems worldwide, allows the lawyers to direct the course of a lawsuit and to handle many aspects of it outside the direct supervision of the trial judge, and this in turn puts special stress on the duty of lawyers to act ethically. Here are some of the duties that might apply to lawyers in US litigation:

      - Actions cannot be taken in bad faith solely to harass the other side or delay the case. In practice, it's hard to establish that something was done solely for bad reasons, but it's quite easy to damage a relationship with a trial judge by taking actions that push this boundary.

      - Documents and objects that are legitimately subject to discovery requests must be provided to the other side if properly requested, even if providing them is harmful or even disastrous to your client's case.

      - When making a legal argument, a case known to the lawyer that is directly on point in the controlling court must be brought to the attention of the court hearing the argument, even if that case is not brought up by the other side and contradicts the position being argued by the lawyer.

      - The treatment not just of clients but of opponents, opposing counsel, third parties such as witnesses, and opposing parties are all subject to constraints and limits imposed by the ethical rules.

      - Ethical duties to other clients, including former clients no longer represented by the attorney or her firm, can prevent a lawyer from even taking on a representation.

     This list is illustrative, not exhaustive. We will touch on some of these duties during the course of the course. Others will be addressed when you fulfill the Professional Responsibility requirement. At this stage the point to remember is that attorneys are subject to ethical duties, which necessarily will channel and constrain how they act. Crossing ethical boundaries can lead to many kinds of attorney discipline - whether imposed directly by the court, by the authority that licenses lawyers to practice, or via litigation such as malpractice actions. Short of that, actions that cross or even push ethical boundaries can exact a reputational cost on the attorney involved. If a judge comes to believe that an attorney in practice before her cannot be trusted to act ethically, persuading that judge to take any actions that require trust can become immensely more difficult.

      The following, heavily-redacted opinion illustrates both the costs to the system and the potential costs to the lawyers when ethical rules are not followed. We will visit the specific bases for sanctions more in Quarter Two, but the point at present is to remind you that in the US system depends on attorneys acting in compliance with ethical rules.

     As you go forward, make a habit of being able to answer the following questions about each and every case (you may be asked in the classroom to answer them while all are listening):

     1.         From which court did the opinion come? (For example, a trial court or an appellate court? Is it in a state court or a federal court?)

     2.         Overall, what is the lawsuit about that the opinion arises from? Who is the plaintiff? Who is the defendant? What relief is the plaintiff seeking from the defendant?

     3.         What is the issue the court is asked to decide in this opinion? Who brought the issue to the court for decision, and by what procedural device? (Pro Tip - In this course, we are likely to be much more concerned about 'what procedural device' than in your other courses, even when whether it was the correct procedural device is not the controlling issue in the case.) What were the options the court was deciding between?

     4.         What response did the non-moving party make to the issue presented to the court?

     5.         How did the court rule on the issue? If the court is an appellate court, what rulings occurred in the court or courts below?

     6.         What legal authority was presented to the court on the issue? What is the source of the legal authority (case, statute, Constitution, mix of the above)? Did the parties present different legal rules or did they argue for different interpretations of the same rule?

     7.         What facts were essential to the ruling the court reached?

     8.         Always be able to state the IRAC analysis - The Issue presented, the legal Rule that was applied by the court, the Application of the rule to the facts, and the Conclusion.

          a.         Always be able to state what the rule of law is that is established or applied in the case. Keep in mind that the court's language might be broader than the facts, and in a common law system only the necessary language is part of the holding (more on this later).

          b.        What changed facts would lead to a changed result as the rule is applied? 

     9.         Be able to turn to the pertinent sections of the case when asked - be able to cite the cases relied on, the important facts, etc..

In Re Snyder

No. 84-310.

Argued April 16, 1985

Decided June 24, 1985

Burger, C. J., delivered the opinion of the Court, in which all other Members joined except Blackmun, J., who took no part in the decision of the ease.

Chief Justice Burger delivered the opinion of the Court.

     We granted certiorari to review the judgment of the Court of Appeals suspending petitioner from practice in all courts of the Eighth Circuit for six months.

     I

     In March 1983, petitioner Robert Snyder was appointed by the Federal District Court for the District of North Dakota to represent a defendant under the Criminal Justice Act. After petitioner completed the assignment, he submitted a claim for $1,898.55 for services and expenses. The claim was reduced by the District Court to $1,796.05.

     Under the Criminal Justice Act, the Chief Judge of the Court of Appeals was required to review and approve expenditures for compensation in excess of $1,000. 18 U. S. C. § 3006A(d)(3). Chief Judge Lay found the claim insufficiently documented, and he returned it with a request for additional information. Because of technical problems with his computer software, petitioner could not readily provide the information in the form requested by the Chief Judge. He did, however, file a supplemental application.

     The secretary of the Chief Judge of the Circuit again returned the application, stating that the proffered documentation was unacceptable. Petitioner then discussed the matter with Helen Monteith, the District Court Judge’s secretary, who suggested he write a letter expressing his view. Petitioner then wrote the letter that led to this case. The letter, addressed to Ms. Monteith, read in part:

“In the first place, I am appalled by the amount of money which the federal court pays for indigent criminal defense work. The reason that so few attorneys in Bismarck accept this work is for that exact reason. We have, up to this point, still accepted the indigent appointments, because of a duty to our profession, and the fact that nobody else will do it.

“Now, however, not only are we paid an amount of money which does not even cover our overhead, but we have to go through extreme gymnastics even to receive the puny amounts which the federal courts authorize for this work.. We have sent you everything we have concerning our representation, and I am not sending you anything else. You can take it or leave it.

“Further, I am extremely disgusted by the treatment of us by the Eighth Circuit in this case, and you are instructed to remove my name from the list of attorneys who will accept criminal indigent defense work. I have simply had it.

“Thank you for your time and attention.” App. 14-15.

     The District Court Judge viewed this letter as one seeking changes in the process for providing fees, and discussed these concerns with petitioner. The District Court Judge then forwarded the letter to the Chief Judge of the Circuit. The Chief Judge in turn wrote to the District Judge, stating that he considered petitioner’s letter 

“totally disrespectful to the federal courts and to the judicial system. It demonstrates a total lack of respect for the legal process and the courts.” Id., at 16.

     The Chief Judge expressed concern both about petitioner’s failure-to “follow the guidelines and [refusal] to cooperate with the court,” and questioned whether, “in view of the letter” petitioner was “worthy of practicing law in the federal courts on any matter.” He stated his intention to issue an order to show cause why petitioner should not be suspended from practicing in any federal court in the Circuit for a period of one year. Id., at 17-18. Subsequently, the Chief Judge wrote to the District Court again, stating that if petitioner apologized the matter would be dropped. At this time, the Chief Judge approved a reduced fee for petitioner’s work of $1,000 plus expenses of $23.25.

     After talking with petitioner, the District Court Judge responded to the Chief Judge as follows:

“He [petitioner] sees his letter as an expression of an honest opinion, and an exercise of his right of freedom of speech. I, of course, see it as a youthful and exuberant expression of annoyance which has now risen to the level of a cause. . . .

“He has decided not to apologize, although he assured me he did not intend the letter as you interpreted it.” Id., at 20.

     The Chief Judge then issued an order for petitioner to show cause why he should not be suspended for his “refusal to carry out his obligations as a practicing lawyer and officer of [the] court” because of his refusal to accept assignments under the Criminal Justice Act. Id., at 22. Nowhere in the order was there any reference to any disrespect in petitioner’s letter of October 6, 1983. 

     Petitioner requested a hearing on the show cause order. In his response to the order, petitioner focused exclusively on whether he was required to represent indigents under the Criminal Justice Act. He contended that the Act did not compel lawyers to represent indigents, and he noted that many of the lawyers in his District had declined to serve. He also informed the court that prior to his withdrawal from the Criminal Justice Act panel, he and his two partners had taken 15 percent of all the Criminal Justice Act cases in their district.

     At the hearing, the Court of Appeals focused on whether petitioner’s letter of October 6, 1983, was disrespectful, an issue not mentioned in the show cause order. At one point, Judge Arnold asked: “I am asking you, sir, if you are prepared to apologize to the court for the tone of your letter?” Id:, at 40. Petitioner answered: “That is not the basis that I am being brought forth before the court today.” Ibid. When the issue again arose, petitioner protested: “But, it seems to me we’re getting far afield here. The question is, can I be suspended from this court for my request to be removed from the panel of attorneys.” Id., at 42.

     Petitioner was again offered an opportunity to apologize for his letter, but he declined. At the conclusion of the hearing, the Chief Judge stated:

“I want to make it clear to Mr. Snyder what it is the court is allowing you ten days lapse here, a period for you to consider. One is, that, assuming there is a general requirement for all competent lawyers to do pro bono work that you stand willing and ready to perform such work and will comply with the guidelines of the statute. And secondly, to reconsider your position as Judge Arnold has requested, concerning the tone of your letter of October 6.” Id., at 50.

     Following the hearing, petitioner wrote a letter to the court, agreeing to “enthusiastically obey [the] mandates” of any new plan for the implementation of the Criminal Justice Act in North Dakota, and to “make every good faith effort possible” to comply with the court’s guidelines regarding compensation under the Act. Petitioner’s letter, however, made no mention of the October 6, 1983, letter. Id., at 51-52.

     The Chief Judge then wrote to Snyder, stating among other things:

“The court expressed its opinion at the time of the oral hearing that interrelated with our concern and the issuance of the order to show cause was the disrespect that you displayed to the court by way of your letter addressed to Helen Montieth [sic], Judge Van Sickle’s secretary, of October 6, 1983. The court expressly asked if you would be willing to apologize for the tone of the letter and the disrespect displayed. You serve as an officer of the court and, as such, the Canons of Ethics require every lawyer to maintain a respect for the court as an institution.

“Before circulating your letter of February 23,1 would appreciate your response to Judge Arnold’s specific request, and the court's request, for you to apologize for the letter that you wrote.

“Please let me hear from you by return mail. I am confident that if such a letter is forthcoming that the court will dissolve the order.” Id., at 52-53. (Emphasis added.)

     Petitioner responded to the Chief Judge:

“I cannot, and will never, in justice to my conscience, apologize for what I consider to be telling the truth, albeit in harsh terms. . . .

“It is unfortunate that the respective positions in the proceeding have so hardened. However, I consider this to be a matter of principle, and if one stands on a principle, one must be willing to accept the consequences.” Id., at 54.

     After receipt of this letter, petitioner was suspended from the practice of law in the federal courts in the Eighth Circuit for six months. 734 F. 2d 334 (1984). The opinion stated that petitioner “contumaciously refused to retract his previous remarks or apologize to the court.” Id., at 336. It continued:

“[Petitioner’s] refusal to show continuing respect for the court and his refusal to demonstrate a sincere retraction of his admittedly ‘harsh’ statements are sufficient to demonstrate to this court that he is not presently fit to practice law in the federal courts. All courts depend on the highest level of integrity and respect not only from the judiciary but from the lawyers who serve in the court as well. Without public display of respect for the judicial branch of government as an institution by lawyers, the law cannot survive. . . . Without hesitation we find Snyder’s disrespectful statements as to this court’s administration of CJA contumacious conduct. We deem this unfortunate.

“We find that Robert Snyder shall be suspended from the practice of law in the federal courts of the Eighth Circuit for a period of six months; thereafter, Snyder should make application to both this court and the federal district court of North Dakota to be readmitted.” Id., at 337. (Emphasis added.)

     The opinion specifically stated that petitioner’s offer to serve in Criminal Justice Act cases in the future if the panel was equitably structured had “considerable merit.” Id., at 339.

     Petitioner moved for rehearing en banc. In support of his motion, he presented an affidavit from the District Judge’s secretary — the addressee of the October 6 letter — stating that she had encouraged him to send the letter. He also submitted an affidavit from the District Judge, which read in part:

“I did not view the letter as one of disrespect for the Court, but rather one of a somewhat frustrated lawyer hoping that his comments might be viewed as a basis for some changes in the process. . . . Mr. Snyder has appeared before me on a number of occasions and has always competently represented his client, and has shown the highest respect to the court system and to me.” App. 83-84. (Emphasis added.)

     The petition for rehearing en banc was denied.3 An opinion for the en banc court stated:

“The gravamen of the situation is that Snyder in his letter [of October 6, 1983] became harsh and disrespectful to the Court. It is one thing for a lawyer to complain factually to the Court, it is another for counsel to be disrespectful in doing so.

“. . . Snyder states that his letter is not disrespectful. We disagree. In our view, the letter speaks for itself.” 734 F. 2d, at 343. (Emphasis added.)

     The en banc court opinion stayed the order of suspension for 10 days, but provided that the stay would be lifted if petitioner failed to apologize. He did not apologize, and the order of suspension took effect.

     We granted certiorari, 469 U. S. 1156 (1985). We reverse.

II.

A

     Petitioner challenges his suspension from practice on the grounds (a) that his October 6, 1983, letter to the District Judge’s secretary was protected by the First Amendment, (b) that he was denied due process with respect to the notice of the charge on which he was suspended, and (c) that his challenged letter was not disrespectful or contemptuous. We avoid constitutional issues when resolution of such issues is not necessary for disposition of a case. Accordingly, we consider first whether petitioner’s conduct and expressions warranted his suspension from practice; if they did not, there is no occasion to reach petitioner’s constitutional claims.

     Courts have long recognized an inherent authority to suspend or disbar lawyers. Ex parte Garland, 4 Wall. 333, 378-379 (1867); Ex parte Burr, 9 Wheat. 529, 531 (1824). This inherent power derives from the lawyer’s role as an officer of the court which granted admission. Theard v. United States, 354 U. S. 278, 281 (1957). The standard for disciplining attorneys practicing before the courts of appeals is set forth in Federal Rule of Appellate Procedure 46:

“(b) Suspension or Disbarment. When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, he will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show good cause, within such time as the court shall prescribe, why he should not be suspended or disbarred. Upon his response to the rule to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court shall enter an appropriate order.” (Emphasis added.)

     The phrase “conduct unbecoming a member of the bar” must be read in light of the “complex code of behavior” to which attorneys are subject. In re Bithoney, 486 F. 2d 319, 324 (CA1 1973). Essentially, this reflects the burdens inherent in the attorney’s dual obligations to clients and to the system of justice. Justice Cardozo once observed:

“‘Membership in the bar is a privilege burdened with conditions.’ [An attorney is] received into that ancient fellowship for something more than private gain. He [becomes] an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.” People ex rel. Karlin v. Culkin, 248 N. Y. 465, 470-471, 162 N. E. 487, 489 (1928) (citation omitted).

     As an officer of the court, a member of the bar enjoys singular powers that others do not possess; by virtue of admission, members of the bar share a kind of monopoly granted only to lawyers. Admission creates a license not only to advise and counsel clients but also to appear in court and try cases; as an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court, and for depositions and other pretrial processes that, while subject to the ultimate control of the court, may be conducted outside courtrooms. The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice.

     Read in light of the traditional duties imposed on an attorney, it is clear that “conduct unbecoming a member of the bar” is conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and “the lore of the profession,” as embodied in codes of professional conduct.

B

     Apparently relying on an attorney’s obligation to avoid conduct that is “prejudicial to the administration of justice,” the Court of Appeals held that the letter of October 6, 1983, and an unspecified “refusal to show continuing respect for the court” demonstrated that petitioner was “not presently fit to practice law in the federal courts.” 734 F. 2d, at 337. Its holding was predicated on a specific finding that petitioner’s “disrespectful statements [in his letter of October 6, 1983] as to this court’s administration of the CJA [constituted] contumacious conduct.” Ibid.

     We must examine the record in light of Rule 46 to determine whether the Court of Appeals’ action is supported by the evidence. In the letter, petitioner declined to submit further documentation in support of his fee request, refused to accept further assignments under the Criminal Justice Act, and criticized the administration of the Act. Petitioner’s refusal to submit further documentation in support of his fee request could afford a basis for declining to award a fee; however, the submission of adequate documentation was only a prerequisite to the collection of his fee, not an affirmative obligation required by his duties to a client or the court. Nor, as the Court of Appeals ultimately concluded, was petitioner legally obligated under the terms of the local plan to accept Criminal Justice Act cases.

     We do not consider a lawyer’s criticism of the administration of the Act or criticism of inequities in assignments under the Act as cause for discipline or suspension. The letter was addressed to a court employee charged with administrative responsibilities, and concerned a practical matter in the administration of the Act. The Court of Appeals acknowledged that petitioner brought to light concerns about the administration of the plan that had “merit,” 734 F. 2d, at 339, and the court instituted a study of .the administration of the Criminal Justice Act as a result of petitioner’s complaint. Officers of the court may appropriately express criticism on such matters.

     The record indicates the Court of Appeals was concerned about the tone of the letter; petitioner concedes that the tone of his letter was “harsh,” and, indeed it can be read as ill-mannered. All persons involved in the judicial process— judges, litigants, witnesses, and court officers — owe a duty of courtesy to all other participants. The necessity for civility in the inherently contentious setting of the adversary process suggests that members of the bar cast criticisms of the system in a professional and civil tone. However, even assuming that the letter exhibited an unlawyerlike rudeness, a single incident of rudeness or lack of professional courtesy— in this context — does not support a finding of contemptuous or contumacious conduct, or a finding that a lawyer is “not presently fit to practice law in the federal courts.” Nor does it rise to the level of “conduct unbecoming a member of the bar” warranting suspension from practice.

Accordingly, the judgment of the Court of Appeals is

Reversed.

Justice Blackmun took no part in the decision of this case.

     In Re Snyder assumes and suggests very much about the role of US lawyers in litigation.

     First, let's look at the issue of how U.S. lawyers are regulated. As a member of a state bar, a lawyer will be regulated by the state under which his or her license is obtained. That state will have rules of conduct that will be binding. If the lawyer becomes admitted to federal district court, the lawyer will additionally be subject to any rules of conduct promulgated by Congress or that Court. Similarly, if the lawyer is admitted to the Court of Appeals, the appellate rules and any rules of the circuit will be binding. Finally, and not unimportantly, you will note that the Court affirms that courts have "inherent power" even aside from rules to regulate those lawyers that practice in front of them.

     You will also notice in In Re Snyder an expectation, but not a requirement, that lawyers will from time to time assist courts by accepting the referral of indigent clients who cannot afford representation. The Court of Appeals seemed aggrieved that Snyder was refusing to accept any more appointments, but as noted there was not any actual requirement that  practice in any of the courts involved required that a lawyer accept such referrals. You will also note a more general expectation that lawyers will be engaged with helping the system of justice, civil and criminal, to function.

     You will also note restrictions on how lawyers treat judges - and some lesser restrictions on how judges treat lawyers. If lawyers are excessively rude and contemptuous, courts have power to deal with that, and the sanctions can be substantial. While there was an issue in this case as to what courts the Court of Appeals could suspend Snyder from practicing before, and dispute as to what conduct triggered the Court's ability to impose that sanction, there is no questioning of the principle that if a lawyer acts sufficiently disrespectfully to a court that court can suspend the lawyer's right to practice before them.

     In the United States, the First Amendment generally protects freedom of expression, and there is no doubt that a citizen could express similarly derogatory opinions about, say, the operation of the Department of Motor Vehicles, without fear that as a direct consequence his privilege to drive a vehicle would be revoked. Even though In Re Snyder reverses the lower court here, it nonetheless seems clear that different facts could have led to a different result. As In Re Snyder suggests, it matters greatly here that Snyder was a lawyer. Conduct that would be unaddressable from a member of the public becomes addressable when the person involved is a member of the bar of that court. Take a minute to think through the reasons that might be true, and what that suggests about the special role of lawyers.

     The net of it is that lawyers, unlike many service providers, do not just serve their clients. They are expected to also serve the system of justice. They are considered 'officers of the court,' and as such cannot (without risk of punishment) take actions that interfere with the proper functioning of the system of justice.

     We will explore this more later in the course, and in your time at STL you will explore it still more deeply in a course that meets our Professional Responsibility requirement. For now, keep in mind that being a lawyer is not just any job. It involves a public purpose. While sanctions can attach to failures to meet the duties that arise from that purpose, more fundamentally you should begin to internalize the idea of being a professional and not just a service provider. 

     As you read this case, the first in this course, you undoubtedly came across some terms you did not understand. For example, did you ask yourself what the court meant by terms such as "subject to waiver as well as tolling when equity so requires.”

     There is an easy way to get a definition for terms of legal art such as "waiver" and "tolling." It is easily accessible to you thanks to the Westlaw subscription that all STL students enjoy. The resource I recommend is Black's Law Dictionary, which can be accessed as one of the Secondary Sources available in Westlaw. 

     Below are specific directions for getting to Black's Law Dictionary. Please get in the habit of looking up unfamiliar technical terms as doing so will save you much time in the long run - put differently, if you try to wing it, you may get confused and fail to understand what is going on. I have also created a step-by-step video guide which can be obtained from the reference desk in our library.

     How to navigate Westlaw to Black’s Law Dictionary

     Whenever you encounter an unfamiliar term in your textbooks, the best solution is to look it up in the Black’s Law Dictionary. Today we go through a convenient way to navigate Westlaw to Black’s Law Dictionary.

     Step one - Sign in the Westlaw Edge website

     Go to the Westlaw Edge (www.westlaw.com) and turn to the sign in page.

     Enter your valid username and password, then click the “sign in” spot.

     Step two – Find the Black’s Law Dictionary Page

     There are two ways to get to the Black’s Law Dictionary page. The first one is to use the “secondary resources” spot and the second one is to direct enter the “Black’s Law Dictionary” into the searching box on the homepage.

     1.         The “secondary resources” spot approach

     2.       Click the “secondary sources“ spot on the homepage.

     In the right part of this page (under the title Tools & Resources), we can easily find Black’s Law Dictionary.

     2.       The direct approach

     Directly enter “Black’s Law Dictionary” in the search box. And then click the “Black’s Law Dictionary” under the title “Content Pages”.

     Through those two methods, we would get exactly the same page – The Black’s Law Dictionary Page.

     You can save time in the future by making Black's Law Dictionary a 'favorite' so that it appears under the favorites tab.

     Step three – Use the Black’s Dictionary to Find Out the Accurate Definition of Terms

     After finding the Black’s Law Dictionary page, the only thing you need to do is to enter the term into the searching box or the dictionary term box below and then click the search spot. Here we take the term “in rem” as an example.

     Enter “in rem” into the searching box on the Black’s Law Dictionary page. And then click the search spot. Please notice there are also many useful connectors and expanders on the right column that we can easily use.

     Then find and click the term “in rem” among the searching result page.

     Now we get the full definition of the term “in rem”.

     That's how Westlaw can bring you to the Black's Law Dictionary access provided by STL. Given that the study of American law involves many terms that are unfamiliar even to native English speakers, this is a tool that you can use in all your courses at STL.

     Clients rarely come to lawyers with questions so one dimensional as "what is the holding of this case" or "what does this statute mean?" More often, they come in with questions that involve identifiable law but allow for non-linear solutions. For example, a client might say, "For business reasons, we need to change how our product is distributed in the United States, and are considering acquiring Company Y which has a strong distribution network in the United States. What legal issues might arise?" The questions might be even vaguer. For example, "I'm no longer getting along with the co-founder of my company. What options do you suggest?"

     As we hope is clear by now, litigation is only one of many tools that might be used to meet a client's needs. Sometimes, however, it is the appropriate tool. That said, as you go forward in this course, try to think at every juncture, "What was the underlying problem that the client faced? How did litigation fit into addressing that problem?" 

     Seeing Civil Procedure issues not just as technical rules, but through the prism of helping the client address a need, is an important step forward in thinking like a lawyer. Your job is to solve problems. Understanding law is a tool you use to solve problems, not the service or the product itself. Understanding that your role is to serve clients is essential, and second only to your ethical responsibilities. 

     For those who think that in the end they might not want to be a Great Lawyer, but instead become a Great Something Else, this point is even more important. The skills of problem-solving and critical thinking that you will develop through this approach are of broad application.

     Culture is a deep issue and one much subject to abuse. Discussions of culture can quickly degrade to sharing of stereotypes, and those stereotypes can reflect unfounded prejudices of many kinds.

     At the same time, the idea that there are cultural differences seems to us to be true. Those who cross cultural borders naively often come to regret their failure to think critically about the issue of culture. As future transnational lawyers, the burden is on you to form your own approach to working effectively across borders, and that will require starting to develop a mindful approach as soon as possible.

     The readings on TWEN are assigned for you to approach critically, not blindly. Our goal is not to win you to any one view of cultural issues, but to nudge you toward developing a high level of cultural competence, and to inform you that in today's world cultural competence is an important part of any transnational lawyer's tool kit.

     Readings on TWEN

     Please refer to the short selections from Richard Nisbett's Geography of Thought that are on TWEN. Full copies of the book are available in the library if you wish to dig deeper into Nisbett's ideas.

     Notes on Nisbett

     There are a number of criticisms that can be made of Nisbett’s work, and especially the more speculative parts as he tries to explain the results of the research he has conducted. You should bring your own critical faculties to bear. Can Nisbett be accused of engaging in some form of Orientalism? (See Edward W. Said, Orientalism. For a legal application of the concept of westerners viewing eastern cultures and laws through their own values and interests, see Teemu Ruskola, Legal Orientalism). Even if once true, do and will Nisbett’s insights still apply as globalization shifts cultural norms? (Put differently, would Nisbett’s arguments apply to you in the same way they might apply to your grandparents?). The point is not to accept Nisbett’s ideas blindly, but to use them as a launching point for your own thinking, as you proceed through a multicultural education experience, of the nature and importance of cultural differences, especially as applied to legal issues and processes.

     Be aware, as you continue on the path towards being a great lawyer, that the cultural competence that should be developed in a transnational program is likely to be an important part of what makes you stand out. 

     If Nisbett is right, which is to say if his characterization of Western thinking as being largely about establishing and defining categorical boundaries is true, then western legal thinking is an exaggeration or extension of western thinking in general. Much of what you will encounter in the first year of your J.D. curriculum involves reducing complex fact patterns to ‘operative’ facts and placing those facts in the correct analytical category.

     We now proceed to some short readings that discuss the nature of the common law analytical process. It is been our experience, as well as that of others, that as on point as these readings are, they are often not fully appreciated by students who are just starting out in their common law legal education. We encourage you to reread these later in the year and throughout your career, and to think about whether or not they ring true with the experience you have by then accrued.

     Please refer to the short reading from Frederic Schauer's Thinking Like a Lawyer that is available on TWEN. The complete book should be, again, available in multiple copies in the library for your further reference.

     While we want you to focus mindfully on the kind of thinking peculiar to US law and US law schools, because you will have to master it, we don't want to go further without noting that this approach is subject to criticism. It can be dehumanizing to strip context from human situations to the degree called for by US legal analysis.

     As one scholar has observed:

[I]t is interesting that the legal language taught in the United States also has a double edge. On the one hand, the approach to legal reading found in law school classrooms offers students a potentially liberating opportunity to step into an impersonal, abstract, and objective approach to human conflict. On the other hand, erasing (or marginalizing) many of the concrete social and contextual features of these conflicts can direct attention away from grounded moral understandings, which some critics believe are crucial to achieving justice. Moreover, this step out of social context and emotion provides the law with a cloak of apparent neutrality, which can conceal the ways that law participates in and supports unjust aspects of capitalist societies. This approach also gives the appearance of dealing with concrete and specific aspects of each conflict, thereby hiding the ways that legal approaches exclude from systematic consideration the very details and contexts that many would deem important for making just moral assessments.

Elizabeth Mertz, The Language of Law School: Learning to "Think Like a Lawyer"

     Exclusive or excessive reliance on the kind of analytical thinking required in law school can also interfere with being a great lawyer. A divorce lawyer, for example, who responds only analytically and never emotionally to a client's story will have a hard time building a trusting lawyer client relationship, By the same taken, a transnational lawyer approaching major transnational litigation without awareness of how the operative facts might be understood differently in different cultural settings may have limited usefullness. Remain aware that western analytical thinking should be an important part of your skill set, and is what we teach and can test at STL, but it should never be confused with the complete skill set. 

     In the article linked below as part of the required reading for this course, Professor Solum looks at the ways legal norms can be declared. Different approaches can be adopted for different reasons - how predictable we want the norm to be in advance, how much we want to empower the judge to get the fairest result in applying the norm, how complex we expect the situation to be, and to whom we wish to delegate the power to make the decision as to who should prevail.

     If we wish to establish norms for allowing or excluding vehicles in the park, here are ways that seem consistent to use with Professor Solum's categories:

• No vehicles in the park that have four wheels, weigh over 500 kilos, and have an engine.
• No vehicles in the park that are likely to disturb the peace of others or have a high risk of causing injury to others.
• People should use the park in a way that allows others to enjoy the park safely as well.
• Excluded from the park are trucks, cars, vans, motorcycles, motor scooters, electric bikes, and other similar vehicles.
• The park service is directed to use its discretion to exclude from the park all vehicles and conveyances that would create a risk of injury or disturb others in their use of the park.

     Think about these various ways to declare legal obligations. We will return to this concept from time to time during the course.

    You must read Professor Solum's discussion of the various ways legal norms are stated. It's a basic concept for you to have a command of as you progress through STL on your way to being an accomplished lawyer.

     We recommend that you explore the Legal Theory Lexicon a bit – it is a very high-quality, free resource that engages with a range of important legal concepts in a sophisticated but very clear way. It can be helpful to you in many courses besides this one.

https://lsolum.typepad.com/legaltheory/2017/12/legal-theory-lexicon-rules-standards-principles-catalogs-and-discretion.html/

      Professor Solum's Legal Theory Lexicon may not be accessible in China without a VPN due to the platform it is hosted on. The required article (and any other required reading in the course not included in this text) is also posted on TWEN.

     An average US law student has deep knowledge of both US history and US governmental structure by the time she or he reaches law school. Popular culture, family lore, courses at every level of school, and even just day to day life help familiarize students with these themes. 

     American Culture: US History and Governmental Structure

     The same is not necessarily true for international students. Some have extraordinary levels of knowledge, perhaps higher than that of the average US law student, while others either have little overall knowledge or, more commonly, important gaps that can create mistaken impressions. 

     Time prevents a deep exploration, but to "level the playing field" just a bit we will spend some time in the classroom giving a highly compressed overview of these issues. 

     Some Key Points on U.S. History

     Some key takeaways for your consideration:

     The colonies that later became the basis for the original 13 United States were part of a larger wave of European colonies throughout the Americas, involving many European nations. We won't have time to dive into the many moral and political questions arising from colonization, and this is a rich area for further exploration.

     The British colonies in North America were not, prior to the American revolution, a unified entity, but a collection of individual colonies, each with separate charters and separate governance. Indeed, there were many British colonies in and near North America - in Canada, Bermuda, The Bahamas, and the Caribbean - that did not become part of the United States.

     Because they were independent of each other, each of the colonies viewed themselves as separate sovereignties. This idea of states as sovereigns has had important repercussions in American political and legal history.

     Human chattel slavery played a central role in the development of the United States, and the consequences of this practice reverberate throughout US history. Most dramatically, the Civil War turned on the issue of slavery, but even in contemporary times the history and consequences of slavery play a role.

     Industrialization also played a role in the development of the United States, and bore both on the the kind of governance that was needed and the kind of governance that was possible.

     The Civil War marks a sharp dividing line in US history. After the war, the supremacy of the federal, central government was unquestionable, and the post war amendments had the effect of further strengthening the power of the federal government versus the individual states.

     Another thread in US history has been immigration. There have been multiple waves of immigration into the US, and each wave has had an impact both on contemporary domestic politics and the longer term nature of the country.

     The US has grown geographically over time. Be familiar with how and when the geographic scope of the United States changed.

     As the US grew geographically, industrialized, and urbanized, the government evolved to address the nation that arose from its frontier and agrarian beginnings. A modern administrative state grew on top of the original government structure, with the demands of that kind of government sometimes uncomfortably interacting with the original design.

     While at STL you will spend much time, directly and indirectly, addressing US governmental structure. Some of that will come in this class. Issues of governmental structure and competing sovereignties will play an important role when we study personal jurisdiction later this quarter. Later on the course we will take a deep look at how power to hear disputes is divided between the federal courts and the state courts. 

     Again, in class, we will take a quick, overview look at US governmental structure in an effort to bring those of you without a deep background in US governance up to speed. In the meantime, some of the takeaways:

     The US system of government is based on a written document, the US Constitution. While not totally without precedent, the idea of a government of the people created and defined through a written document was a significant innovation in governance when it was adopted. While many governments have written Constitutions today, in many cases they do not have the same effect as the US Constitution, which to this day remains the ultimate source of authority and can substantially limit political actors.

     The US government created under the Constitution is a federal system, which means that power is split between the central, federal government, and that of the individual states. Some areas are reserved to the federal government; others, even today, are in the hands of the states. This makes the US different from unitary governments where the central government ultimately has direct control over local governments.

     Put somewhat differently, the idea of states as independent sovereignties runs deep in US history and US law. While the steady expansion of federal power through interpretation of such clauses as the Fourteenth Amendment and the Commerce Clause gives the federal government a much bigger scope than it had in 1788, it remains true that every exercise of federal power must be justified by reference to some clause in the Constitution that grants the federal government power. States have their own spheres of authority, which even if theoretically challengeable under a full reach of federal authority, as a practical matter remain areas of state control. A full discussion of this complex polycentric system of governance is beyond this course. That said, much of what we do in this and other courses will make no sense at all to those who do not have some basic understanding of how states and the federal government interact.

     It is worth saying again to make sure the point come across - the federal government is a government of limited power. Only those powers granted to the central government under the Constitution are legitimate areas where it can act. While judicial interpretation has expanded the reach of the federal government under grants of authority such as the commerce clause, at least in theory and occasionally in practice, that reach is not unlimited.

     Even within the federal government, power is allocated between the legislative branch (the Congress), the executive branch (the President and the organs of government under his direction), and the courts. Again, unlike in a unitary state, the power of any single governmental actor is limited. The President, for example, has extensive, even awesome, power, but in the end there are areas beyond his or her control. The President, for example, might wish to agree to a new treaty or impose a new law, but those actions are beyond what he or she is able to do on their own.

     The structure of the US government reflects a concern the founding fathers had about the rise of a tyrannical ruler. They felt that dispersed power created a system of "checks and balances" that would limit the ability of a would-be tyrant to consolidate power. The motivation anticipates the dictum of the 19th Century British writer, Lord Acton, who famously wrote, "Power tends to corrupt, and absolute power corrupts absolutely." For better or worse, in the US system no single individual and no single institution has absolute power.

     The states and the federal government have different spheres of activity and power, even though these spheres are sometimes overlapping and even duplicative. The federal government, for example, is the level at which foreign treaties are formed, and also where patents are registered. States typically have effective control over items such as licenses to operate automobiles or trucks, and also through city and county subdivisions operate most kindergarten through high school public school systems. Many areas, from business regulation to taxation, involve participation at both levels. It can get complicated (funding, for example, can extend federal influence into areas traditionally handled by the states, and federal forbearance can leave states in effective control even if the federal government could preempt their actions) but most US law students enter law school with a certain practical understanding of the lines of division. They would understand, for example, that a driver's license is obtained from a state government and a passport from the federal government. 

     There are federal courts, and each state has its own court system. To a significant degree (more on this in quarter three), the kinds of cases the different court systems can hear overlap when we are talking about civil (as opposed to criminal) law. A few federal law areas are reserved exclusively to the federal courts (for example, patents); in most cases the state courts can hear and decide cases based on federal law unless the defendant acts to 'remove' the case to federal court. In some but not all cases the federal courts can hear civil cases arising from state law.

     Someone who has grown up in America is likely to have a basic albeit imprecise understanding of what kinds of governmental activities happen in the federal government and what kinds of governmental activities happen at the state level. Pay attention to the slides that go into this.

     We've started with some subjects that might seem off point to you, but they are critically important for laying a foundation for law school and life as a professional. Just as any building needs a sound foundation to be stable, these matters are designed to frame and underpin your legal studies.

     Your goal in law school should not be just to learn law, but to begin your progress toward being a great lawyer.

      Being a great lawyer involves legal skill, but it involves much more. Great lawyers don't just answer legal questions; they solve problems that have some kind of legal connection. The sooner you internalize that you must become a problem solver, not a memorizer of law, the better.

     Your career as a lawyer will require a commitment to ethical conduct. At any time, the choices open to you as you seek to represent a client - and even to some extent the choices open to you in your personal life - will be channeled in part by your ethical duties.

     One of those duties, as we see in In Re Snyder, is to respect and protect the system of justice, which implies respectful treatment of all parties but especially judges. That said, lawyers may nonetheless strongly and firmly disagree with actions and decisions made by judges.

     For all lawyers, but especially transnational lawyers, cultural awareness and competence is one of the skills of being a great lawyer. Don't feel obligated to accept others' conclusions and be aware of misleading stereotypes, but do begin forming your own cultural awareness. 

     As you launch into a deep study of western law, be aware that western law reflects western cultural and social norms, and the methods of legal analysis used in the common law tradition draw on western modes of interpreting the world. Be aware that in the JD courses here at STL you will usually be expected to play by western rules, even if you agree with those who find that approach narrowing and unhelpful.

     US law cannot be understood fully without some understanding of US history. We've given a quick overview in class but ongoing reading in this area will serve you well.

     Understand that the US government is a federal government created through and based on the written document of the US Constitution. The Constitution operates to limit the concentration of power, with power shared between the states and the federal government. We will try to develop a more nuanced understanding of the sometimes difficult concept of state sovereignty as the course proceeds, but understand from the outset that states are viewed to some degree as having independent sovereignty so that power is shared between them and the federal government. The federal government is one of limited (but extensive) powers, and any exercise of federal power must be based on a grant of power in the Constitution. Even within the federal level, power is dispersed within the federal government between the three branches of legislative, executive, and judicial power. 

     Remember: Every student at STL has all the abilities necessary to be a great lawyer. Always aim high.