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Bridge to the Online LL.M.

Bridge to the Online LL.M.

Hey, there. The purpose of this video is to provide some explanation. I'm trying to help you to build a bridge from your previous legal background to the online LL.M. program that you have decided to pursue. All of you are either graduates from a law degree or you are a current law student, so this means that you have already some legal knowledge. Many of you may come from civil law jurisdictions, so I hope that this presentation might be useful for you.

So let me begin. You have my email there, in case you wanted to reach me out. And here you have also the features of this lecture. But let me begin with this that might be important, the importance of the comparative approach. I would like to stress this point because one of the things that you'd like to get from the online LL.M. is the importance of a comparative perspective.

I know that you are going to get deep in US law, which is perfect, but never forget the comparative approach. This will give you the possibility of this back and forth from civil law to common law, and common law to civil law, back and again. In other words, your brain will be trained to do some kind of legal transplant. So what is the legal transplant are? So legal transplant are the migration from legal institution from one legal system to another. All right? That's a legal transplant. This is a technical concept developed by a professor in the US named Alan Watson.

This is not easy because as you can imagine, it is not that you can just move a legal institution from one legal system to another one and just start working. It depends on a lot of variables including legal culture. So understanding a comparative approach will help you to realize when legal transplant are occurring, and also will provide you with a good flavor whether that transplant might be successful or not. So this will open career opportunities if you're interested in policy development.

Now, let me begin with a little bit of the foundational basis, the legal reasoning. Okay? So one challenge that you can have, especially if you are coming from a civil law system, is that you realize that, well, the structure of courses are different. This is not the way that you usually pursue a course in during your law degree. The professors explains things differently. They usually don't quote only the statute, but they are also a lot of case law, and basically they are explaining through case law, okay?

So this is because the difference between the common law and the civil law and how common law attorneys and how common law legal education system is structured, and how the civil law attorneys and the civil law legal education system is structured. So basically, there is a huge different way in reasoning. In the common law, the way of reasoning is inductive. So you have a lot of case law, and from the case law, you can derive the rule. In the civil law, you usually are deductive. Basically, you have a concept most of the time in a code like civil code, commercial code, criminal code, and then you need to interpret the concept and bring it down to the specific case law, okay?

So you have abstract norms in the civil law system. While in the common law, they are very much concrete. An easy way to verify what I'm telling to you here is pick up any law from a civil law country and compare with any statue drafted in the US and you will realize that most of the time statues in civil traditions or laws, they are shorter than in the US, okay? They are more abstract. Another thing that is going to have an impact in your way to approaching the understanding of the US legal system is the stare decisis rule. In the civil law tradition, we don't have that, okay? The stare decisis basically will teach you or you will learn that case law is binding, okay? That's why you must know your case law. There are going to be exceptions, and it depends. It might depend on the area of law, but the rule is that case law matters in common law tradition.

So when you start learning about the US legal system, probably in the first course that you pursue on the online languages introduction to the US legal system, the Law 4000 Course you will learn about authorities. So the word might be confusing. Like you are learning about mandatory, mandatory authority, persuasive authority. Well, don't get stressed on that one. It's easy because you have already learned it. The thing is that you have already learned it with a different name, which are sources of law. Anybody coming from a civil law system in the first course in introduction to law, or maybe what we call civil law one. We'll learn about sources of law. So we'll learn about the law, custom case law, and opinion from legal scholars. We called that doctrine.

Now, this is pretty much the same on which you will learn when you have the authorities. What you are learning is which of those sources are going to be mandatory and which are going to be just persuasive. The same way that in the civil law system, you learned which sources were mandatory for your country and which were persuasive. So for example, in a civil law country, case law most of the time, there might be some exception, is persuasive. The judge usually is not bound by a case law. A precedent. It's not the case in common law. It's not the case in the US. That's why many times you will see that some case law is going to be included as mandatory authority. But for example, take law. What we call law in the civil law system, in the US legal system, you will learn bout statues, statues are mandatory like law in the civil law tradition.

So there's not such a big difference in here, all right? So perhaps there is just more the terminology that you need to get used to than a real difference. What you need to be aware of is that what will change is which sources are mandatory and which sources won't be mandatory compared with your own home country system.

So there are some challenges that many civil law students have faced when especially coming from civil law countries, as I said. So here are some of those challenges. So let's begin with the challenge number one, okay? Federalism. The interplay between federal law and state law. Well, in order to understand this, you need to take a look on mainly two things. First, am I coming from a federal country or a unitary country. In different countries, civil jurisdiction countries, you can have federal countries or unitary countries. So that's up to you. But even if you are coming from a federal country, you might find differences with the US legal system. So what is this thing about federalism? Basically, you have two layers. So you have the federal level and the state level. So for those of you coming from a federal system, you already learned that, okay, there's different layers of competencies, let's put it this way.

Now, something that you must know and is essential that you pay attention to this is who owns jurisdiction on each matter. Now, even for those civil laws, civil law attorneys coming from federal countries, you might find challenging to understand what is jurisdiction of the federal government and what is the jurisdiction of the state government. And this is because in the United States, the states retain a lot of power compared with other federal systems around the world.

So state law is really important. So just to give you an example, even in federal countries, sometimes you have only one criminal law or only one corporate law, only one contract law. But if you take a look on the states, well, they will explain to you towards change from state to states. Contracts change from state to states. Corporate law change from state, family law, too. So why is that? Well, basically because this is state jurisdiction, states did not delegate that to the federal government. All right? So this is something for you to keep in mind when you are learning about federalism. This is going to be very important, so that then you can determine which is mandatory authority and persuasive authority, what we just mentioned once before.

So here is challenge two, and this is something that students usually have some time of headache. So there are no need for you to have a headache. The IRAC, okay? So I know that for most of you coming from civil tradition, this is the first time that you are going to address this thing. IRAC, you have not learned IRAC at law school. This is not the way that legal writing is taught in civil traditional countries. So what is IRAC, it's a technique. It's the technique about how to structure legal writing. So you don't have to panic on this. The only thing that you need to know first is that this is a technique. And any technique, you will master the technique by practicing.

So what IRAC stands for basically, as I said, is a technique for legal writing that helps you to make clear points. So you need to make a clear point of what the issue is at stake, which rule you will apply in order to solve the issue. How are you going to analyze the situation using the rules, considering the issue given, and which conclusion you will arrive.

Remember that professors in the US legal system course will teach you this, so they will be there for helping you on going through the IRAC. And so, here's some advice about how to perform this considering that you are coming from a different legal tradition. So the first thing, and I would say the most important thing you need to do is read carefully the fact pattern that you are given in order to solve an IRAC exercise. Why is this important? Well, probably English is not your first language. So technicalities matter here. So I mean, you are not wasting time if you are reading carefully. Now, once you have read carefully, then you need to ask yourself like in your home country, which is the legal questions to be solved.

This is the issue. When you read case law in civil countries, the professors ask you, okay, which is need to be decided in this case, this is the issue. That's the legal question. Which sources? You will use in order to solve that issue. Then you have the rule or rules for perhaps you have multiple rules. Because you have to use multiple sources. All right? Now you need to link the rule with the issue, and how are you going to do this?

You need to understand that the rule is going to address the issue in order to provide you with an answer. Now, when you are addressing the issue using the rule, you are performing your analysis. Now, the analysis is the time, the moment in which you explain why you're using that rule to solve that issue. So you need to be clear and you need to provide arguments and counter-arguments. So that you can make a very strong case saying why this rule is solving that issue. Finally, once that you perform your analysis and you provide arguments and counter-arguments, you will reach a solution. That's your conclusion. Conclusions usually are pretty short. Everything that you have to say, usually it's said in the analysis section. So I hope that these tips might be useful for you through your first course in the online LL.M. That will be all on my end, and I would like to thank you for your attention, and we will see you soon. Take care.

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Online LL.M. Program

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