JOHN HARRISON:
I'm John Harrison. I will be teaching some
of you in civil procedure. But first, we have a table
that seats only four people, and as a consequence, somebody
has to do two of these. And since I also
sometimes teach torts, I'll start by
talking about torts. And we'll tell you a story
involving another member of our faculty, also a graduate
of this law school, who will not be teaching you this
year because Professor Ryan is doing something on
the main grounds. But some years ago, he and
his family were in New Zealand and decided to go
bungee jumping. Has anybody here
been bungee jumping? Wow, and lived to tell the tale. Congratulations. There was a sign at the
bungee jumping were you, I guess, attached yourself
to the bungee cord, whatever it is, saying you must be
12 years old to do this. One of Jim and
Katie Ryan's sons, who was obviously not 12
but came up to bungee jump-- if that's the correct verb-- and was asked by the
attendant, are you 12? And the young Ryan said,
yes, obviously false. And the attendant said,
good on you, mate. Go ahead and bungee jump. I told that story a few
years ago in remedies class, and we all laughed. And one reason we all laughed
is because we had all had torts, and we all thought,
that would not happen in the United
States of America because the American
law of torts is somewhat more demanding than,
apparently, the New Zealand law of torts is. Well, we all knew that
because we'd all taken torts. What's torts? What is a tort? What is torts about? A tort is a civil wrong done by
one person, one private person, but to another private
person, that gives rise to a right of recovery. Notice, a civil wrong,
that is to say not a crime. Crime and torts to some extent
overlap with one another. There is some conduct
that is both a tort-- wrongful, giving rise to
a right to compensation-- and a crime. So you'll learn, probably, in
both torts and criminal law about battery, physically
striking somebody else, but both a tort and a crime. That's the basic idea
of what torts are. Torts fall into two
large categories, and one of the
interesting questions about the first
semester torts class is how much to do
with each category. Some of your torts
teachers will probably spend the entire semester or
almost the entire semester on one of the categories. The two are intentional torts-- where one person decides
to do something on purpose, to harm somebody
else, like battery. Two people get into an
argument, it turns into a fight, one of them slugs the other,
that would be battery. Also, as I say,
possibly a crime. That's done on purpose. The larger body of torts,
practically speaking, probably, are the torts of
accidents, things that happen not on purpose,
where one person harms another, causes another
some kind of injury, but didn't set out to do it. So some years ago, when
somebody backed into my car in the parking lot over here,
that was not on purpose-- I hope. That was-- [? "I'm ?] gonna
to get that [? car." ?] No, it was it was an accident. A large part, as I
say, I think probably the larger part of
the law of torts, at least as taught in the first
semester, a great deal of what you'll be dealing with
is the law of accidents. What happens when one person,
not trying to, injures another? There is, as you can imagine,
a large body of law about that. The master principle
of American tort law-- and there is an ongoing debate
about whether this principle is really better than its
primary alternative-- the master principle of
American tort law is negligence. That is the idea that people
are liable when they injure somebody else, when they
cause that kind of harm to somebody else, if and
only if they were negligent. Well, that's one of
those law buzz phrases. A lot of what you'll be
doing in the first semester is finding out what
the buzz phrases mean. It's very important to be
able to use the buzz phrases correctly, and that does
involve learning what they mean and thinking a lot about
what goes on behind them. Negligence, great word. What does it mean? It means-- and what I'm
about to say may sound like I'm explaining the obscure by
means of the more obscure-- negligence is creating an
unreasonable risk for somebody else, doing something that--
because lots of things create risks. Negligence, what gives
rise to liability, is an unreasonable risk. As you can imagine,
that concept requires some kind of unpacking. The master idea, or a
master idea, of tort law is possibly the
paradoxical notion that even though there
are accidents, and even though this large body of law
is about accidents, things that didn't happen on purpose,
it is nevertheless possible to regulate accidents. Well, how can that happen? Because although accidents
are not done on purpose, there are all sorts of things-- and this is about unreasonable
creation of risk-- there are all sorts of things
that create risks of accidents that are done on purpose. So the law of negligence
is overwhelmingly about precautions
against accidents-- what people could
have done but did not do because, in the cases that
come into court, of course, something bad happened, and
the plaintiff said, will say, there is something
this person who caused the injury could
have done but did not do-- an undertaken precaution,
a fundamental idea of the law of torts. The notion of requirement
of reasonable precautions makes the point that there are
precautions against accidents that would, indeed,
prevent them that are too strong to be reasonable. How to avoid anybody ever
getting hurt bungee jumping? Don't go bungee jumping. How to avoid anybody being
hurt in a traffic accident? Don't have cars. Probably overdoing it. Some risks-- life is like this. Some risks are
reasonable; some are not. The law of negligence is
about what is reasonable and what is not. And think again, now, about
the idea of negligence and the story I told about
Jim Ryan's son and the bungee jumping place in New Zealand. And the reason we
all laughed, we all laughed because
we thought, well, that wouldn't happen
in the United States because American tort law
is much more demanding than, apparently, the tort
law in New Zealand is. By that reasoning, you can
infer something about the tort, about the law of tort, from
what people actually do is based on an assumption-- which
is almost certainly true-- which is very important
in the law in general and in the law of
torts, that people do indeed respond to legal
rules if they know about them. And routinely-- not always-- they do know about them. One of the most important things
you'll do in the first semester is start thinking like that. Adopt what's sometimes called
the ex ante perspective. That is to say, before. Legislatures, courts, other
government decision-makers routinely evaluate
rules and possible rules by thinking about the
situation ex ante. But that is to say, using
the same kind of reasoning that we all implicitly
used when we laughed about the story about Jim Ryan,
asking, if this is the rule and people know it is the
rule, how will they behave? How will it affect
their behavior? Because one large point
of the law of negligence is to keep people from being
negligent by making them liable when they are negligent. All of that, which uses
the ex ante perspective, operates on the assumption
that the law, in fact, modifies people's behavior,
as it almost certainly does. Let me make another
point with that story about Jim Ryan and the bungee
jumping place in New Zealand. I got that-- and this is a
course you won't be taking in the first semester,
you'll probably take it later-- evidence. I heard that from Jim Ryan. I wasn't there. As far as I'm concerned, this is
what every watcher of cop shows knows as hearsay. And I kind of think that's
the way I remember the story, but maybe, although
they were spending the semester in New
Zealand, maybe, in fact, they'd gone to Australia. I don't know. Australians call
one another mate. I don't know if New Zealanders
call one another mate. So it's possible that I told the
story wrong, that in fact, it happened in Australia. But Australia, New
Zealand, basically interchangeable as
far as I'm concerned. [LAUGHTER] The important point for the
first year in all of law school being, a large part of what
goes on both in lawsuits and in the extensive preparation
process for lawsuits-- and now I'm giving you a little
prolepsis for when I'm back here to talk about civil
procedure in a couple of minutes-- a lot of that is
trying to figure out what happened at some
point in the past on the basis of
inadequate information. I kind of think that's the way
I heard the story from Jim Ryan. Maybe I'm wrong about that. Maybe Jim Ryan
recollected it incorrectly when he told the story. A lot of law is about
dealing with that problem. But one thing you'll
see as you read a lot of appellate opinions
decided by courts, higher courts, is they
just recite the acts as if, well, this
is what happened. They don't really know
that that's what happened, but there is a decision-making
process that was designed to get them the best possible
information about what happened, which, let's hope the
decision process is better than me sort of remembering what I
think Jim Ryan told me 10 or 15 years-- I'm absolutely, certain, that
the story is 100% correct-- or not. That, too, dealing
with uncertainty, with the difficulty
of excavating facts, another important
thing that goes on in law and, in
particular, that you'll see in the first-year
courses, but notably torts. The last thing I'll
say, again to use the bungee jumping story,
that's both about torts-- it's about precautions
against accidents. Let's hope somebody
looked at the bungee cord before Jim Ryan's son-- who is also here to tell the
tale, so apparently it worked-- before Jim Ryan's son
jumped off the bridge, or whatever it whatever it was. But notice, there was also
this transaction about, well, are you 12 years old or not? Yes I am. Obvious lie. And that is to say, one of
the points about tort law that, again, you'll deal
with is, to what extent are the parties, through
voluntary agreement, able to modify what would
otherwise be their obligations under the law of torts? If somebody says, yes,
I understand the risk, I realize there
is such a risk, I realize you did your best to
take care of the bungee cord, but maybe somebody
made a mistake-- if somebody says that and says,
I'm gonna go ahead and jump, will the bungee cord
people be liable or not? The presumption, when we all
laughed in my remedies class, was that New Zealand
probably allows people to modify their
obligations in tort through contract, through
voluntary agreements, more than, typically,
American tort law does. Let me say, I'm not suggesting
that the 10-year-old would have been able to
modify the obligations of the bungee people, but
probably Jim Ryan could, in New Zealand. Not so clear in
the United States, and one important
question substantively in the law of torts
is to what extent can that be modified by
agreement of the parties? Which means I have come right
to the line between torts and contracts, and George
Geis and contracts are next. [APPLAUSE] GEORGE GEIS: John,
that was a great segue. I couldn't have asked for it to
be put on my plate any better. My name is George Geis. I will be teaching contract law
to many of you this semester. And for many entering
law students, the study of contract
law, how should I put it, doesn't spark
joyful anticipation. [LAUGHTER] You may be thinking to
yourself, the last thing that I want to be
doing is poring over these long, complicated,
detailed agreements between banks and
credit card customers, or online vendors and
individual consumers. You might be saying, no one
reads those things anyway, so how come I have to do it now
as a first-year law student? Well, if you feel this
way, the good news is that you will likely
spend very little time in your first-year
class actually looking at long, detailed
contract provisions. That's not really
the central focus of what most first-year
contract classes are going to be looking at, so
don't worry about the fact that you may need
to dig into some of these long,
detailed contracts. Instead, the class in
contracts is mostly going to be dealing
with a different, more fundamental question. When are you legally
obligated to keep the promises that you make? When are you legally obligated
to keep promises that you make? If, for example, you turn
to your neighbor here, and you say, I promise
that I'll meet you tonight for dinner after this
orientation session is over, and you don't show up, then
that may not be very nice, but it's not a contract. Your neighbor is not going
to be able to go to you and use the power of the law
to sue you and say you breached a legal obligation
that you owe to me, therefore you've got to
pay me money, damages, or some other type of remedy. That's not the way that
contract law works. That's outside the
domain of contract law. On the other hand, as you
know from common sense, many, many, many
types of promises will lead to legal,
binding commitments. If you breach a contract,
and it's a real contract, then you might be
obligated under the law to compensate the party that
you breached that agreement to. Or in other words, you've got to
stand behind the legal promise that you made. And a lot of
contract law is going to be asking the
question of, why do we empower the law in this way? If you think about it, this is
a little bit of an unusual area for the law to step in. The law could deal with
lots of other things. It needs to worry
about preventing harms, or criminal activity. Why are we going to use
the power of the law to stand behind promises? And when are we going to use
the power of the law to stand behind these legal promises? That's the general
domain of contract law. Now, there are a number
of different ways to organize contract law, but I
think that most of your classes are likely going to talk about
three big questions, three big-picture questions
in contract law. And I want to go through
each of them at a high level, and then I'll come
back a little bit and offer some
subcontext for what you may get into in a bit
of a more detailed sense. The first big question is, do
you have a legally enforceable contract? As I said a minute ago, some
promises are not contracts. Some promises are contracts. The first big question
is just asking, do you have a legally
enforceable contract? If the answer is no, you're
going to be out of luck. You're not going to be able
to use the power of the law to stand behind that promise
or to discipline someone who's broken their promise to you. If the answer is
yes, then you're going to drop down to
big question number two. Big question number two
is, has the contract been successfully performed? Has the other side done
what they're supposed to do? If the answer to
that question is yes, then there's no problem. They made a promise,
it was legally binding, but they did what they
were supposed to do. No problem. If the answer to that
question number two is no, then you're gonna drop down
to big question number three. Big question number three is,
what's the remedy for breach? What do you get because the
party didn't do what they were supposed to do under the general
framework of contract law? . So let me go back, and I'll go
through each of those big three questions in a
little more detail. There are some other topics you
may talk about in contract law as well. It's a pretty vast domain,
and some professors will choose that to
cover a little bit of additional ground, but by and
large, it's such a vast domain that it's difficult to get
through more than those three big questions. So let me come back again
to big question number one, do you have a legally
enforceable contract? Well, unlike torts,
which is going to be imposed upon you no
matter whether you want to be in the system or
not, the law of contracts is generally going to
govern voluntary agreement, voluntary agreement. You don't have to
be in a contract, in most circumstances, unless
you want to be in the contract. And so in order to
figure out whether you have a legally
enforceable contract, usually you want to start
by asking whether there's been some agreement. Have you voluntarily agreed to
make a deal with somebody else? If so, then that's going to be
a first requirement in order to establish a legally
binding contract. But that may not be enough. We may both agree
that the Virginia Cavaliers are going to win all
their football games this year. And if do, that would be nice. But we haven't created
a contract, right? We just have a subsidiary
type of an agreement. So another big requirement
you need for a legal contract is some other legal basis,
some other legal basis for enforcing the agreement
or for taking the agreement into the domain of the law. You'll study something known
as bargain for consideration. That's the primary theory
that the law of contracts uses to decide whether
you've made a contract or whether you've
made something that's just a voluntary agreement
that's not legally enforceable. Bargain for consideration
is the main event, but it's not the
only legal theory. And there are some
other theories that you'll probably take a
look at in your class that are alternatives
that might still allow you to invoke
the power of the law under certain circumstances. Finally, in big
question number one, do you have a real contract, do
you have a legally enforceable contract, you're going to
look at a number of situations where everything looks pretty
good, there's an agreement, there's some other legal
basis for enforcing the deal, but something else is going on. There's a problem. We don't want the
power of the law to stand behind that
contract because there's some other problem. We've already seen one example
of that with our bungee jumping contract. We don't want
really young people to be able to enter
into binding contracts. So if my son decides that he
is going to sell the house to buy the new Xbox
video game system, that's not going to
be a legal contract because he's too young. He lacks capacity
to make a contract, even if everything
else looks pretty good. And there are lots
of other situations where there might be a problem
that the law has to deal with. If someone holds a gun
up to your head and says, sign this contract, and you
do, don't worry about it. You're going to have
a defense of duress, and it's not going to be
a real binding contract. It's not a voluntary agreement. The law recognizes that. But in your class,
you have to ask, what happens if something
just falls short of a gun to the head, and it's
more economic pressure, or slight threats
not to do business with someone in the future? I mean, that may, may
not cross the line. So those are the big
three sub-questions you'll look at under
big question number one, has there been a legally
enforceable contract? The second question
involves performance. Has the other side successfully
performed against the contract? Well, in order to
figure that out, you're going to need to
understand what the contract really encompasses. Words are sometimes
imprecise, and so a big part of big question number two
is contract interpretation, trying to understand what
the contract really involves. And you'll look at a number
of humorous situations where the parties may
think it meant this-- one side thinks it
means this, another side thinks it meant that-- and the court has to
figure out who's right, and therefore,
whether or not there's been a breach of the contract. There are some other topics
in big question number two, including different ways that
the parties can structure the risk of what the contract
involves, things like giving a warranty, giving
a condition, I promise to do this
only if this happens. And as you'll see, there's
lots of different flexibility in the way that you can write,
and structure, and enforce your contracts. Finally, you'll get the
big question number three. Suppose you have a contract. It hasn't been performed. What do you get? What do you get? Well, in contract law, normally
what you're going to get is money. You can't usually empower the
law to go to the other side and say, you made a
promise, you breached it, therefore I'm going
to force you to do it under the power of the law. Instead, you're normally
going to get money damages. They may have to
compensate you, but they're going to have to do
it with money and not with actual performance. But there are alternative
rules for calculating what those money
damages might look like, and sometimes,
you might actually get the power of the law
to be able to enforce the other side to perform. So big question
number three, that's where you're going to be
looking at there as well. And when you put all
those three together, right, I think you have a
pretty integrated system that basically allows
you, if you want to, to create an alternative or a
supplementary legal regime that can stand on top
of the base regime that we have in place in
disciplines like torts, and criminal law, and some
other things that are going to be a part of the
way that we live, no matter whether we
want them to be or not. Let me just make a couple
of other final points here. First off, your
study of contract law is going to span two
parallel universes. One is the common law
universe, and the other is Article 2 of the
Uniform Commercial Code. Why do I call them
parallel universes? Well, both of these universes
deal with contracts. The common law deals with
contracts that involve real estate or services. Article 2 of the
Uniform Commercial Code deals with contracts
that involve goods. And in most cases,
the law is actually the same in both
universes, and that's why you'll study them together. But in some cases, the
Uniform Commercial Code may diverge a little
bit from the common law, and by studying both,
it's going to allow you to have a perspective on how
these two different universes may treat certain
issues and allow you to decide or
to evaluate which system seems to get it better. In addition, the Uniform
Commercial Code is a statute. It's a statute. It's not common law. And what that means is that it
will give you an opportunity to study some statutory
interpretation, to study how the courts evaluate
what Congress or the state congress actually
meant when it enacted a certain provision under
the Uniform Commercial Code. So there's going to be-- that's sort of a preview
of some other topics that you might get a little
bit later on in your law school career. Second additional point, as
I alluded to a minute ago, contract law is
mostly state law. It's not-- there's not
federal law of contracts that governs the entire field
and preempts everything else, but rather, states are going
to make individual laws that are developed through
common law reasoning, and that means that
you will likely study the same issue
in multiple states and look at how different
courts in different states have handled the same
issues in a different way. That's going to, again, give
you a comparative basis. You can argue whether New
York has a better approach, or Virginia has a
better approach, or California has a
better approach as a way to further illuminate some of
the key tensions in contract law. Finally, contract
law, I think, can be understood as a bit
of a building block for other areas of law. Some people have even
alluded to contract law as being almost like
a set of private laws that a few individuals can make
among themselves if they want to supplement public legislation
that's applicable to everybody. And that means that
if you think about it, it's a really, really
flexible body of law. You can accomplish lots of
things with contract law. That means that it serves
as a basic building block for a lot of more
advanced business-related legal concepts, and that's
also the reason why you're going to be studying
contract law in the very first semester of law school. [APPLAUSE] ANNE COUGHLIN: Hi. It's really great
to see you all. My name is Anne Coughlin. I'll be teaching criminal law
to some of you this semester, and I look forward to having
the opportunity to get to know all of you at some point. It's challenging to
describe any course, I think, in 10 or 15 minutes,
but it was a good exercise for me to be thinking
about what exactly is it that our agenda is in
the criminal law context. And I'm going to try to give you
some basic guidance about what you should expect,
certainly in my class, but probably in
all of the classes, all of the criminal law
classes here as well. The first thing that
you want to keep in mind is that we call the first-year
course criminal law. It's a course in
substantive criminal law, or the law of crimes. And this is just a small piece
of the criminal justice system, or what you might think of
as the law enforcement system more generally. I should stop and say this is
an incredibly exciting time to be studying law. That's probably always true,
but it feels that way to me. And it's a very exciting
time to be thinking as new members of
a legal culture about the criminal
justice system. And the criminal justice system,
the law enforcement system, is in the news, I think, in
all seasons, in all eras, but right now, it's under
a great deal of pressure and a lot of scrutiny as
people from all different walks of life, political
and otherwise, are thinking about this system,
about ways to improve it, and so forth. So you're coming
into law school, and certainly into the
study of criminal law, at a really exciting
time, and all of us look forward to working
with you as you move forward and find your place. Now, for many of you, criminal
law won't be your cup of tea, and so I want to warn
you that you're not going to be studying what we
think of as criminal procedure. So this is a course in
substantive criminal law. You're going to be
thinking about how law defines crime, what
are the key ingredients of any criminal case. So you're really going to
be thinking about the case. Once a prosecutor
has decided, yes, I'm going to go ahead
and bring charges, what are the
essential ingredients that a prosecutor has to prove? What are the
elements, if you will, of the criminal cause of action? And then, of course,
you'll be thinking as well, from the perspective
of a defense lawyer, how can a defense
lawyer defeat or thwart the prosecutor's objective to
establish those ingredients? So what are the key
ingredients of every crime? This is a really important part
of the criminal justice system. It is the part that kicks off
the whole system, if you will. It is the alleged
presence of a crime that authorizes
police to start doing their work, and prosecutors,
judges, juries, ultimately prisons, and so forth. So it's a very important
piece, but just a piece. So you're going to be
thinking about questions like, what is the source
of crime definition, and then, what are the
ingredients that each crime has in common? As George Geis mentioned,
one of the things that's fascinating about
the United States is that there are 50 states,
and criminal justice is largely governed by state law. There is a federal
law of crimes. You'll know that federal
law has done a lot of work in certain areas-- think of drugs
crimes, for example-- but typically, the vast majority
of work in the criminal justice area is done by states. And you can immediately
see what the challenge is. Every state has its own penal
code, and they're not the same. There's some very
significant overlap, and you'll spend a good
bit of time focusing there, but it's impossible for us
to teach you criminal law comprehensively,
and it's not prudent for us to teach you the criminal
law of any specific state because you're going to leave
here and go and practice throughout the nation, and
potentially internationally. So instead, what we do is
we focus on what we call criminal law, the general part. What are the
fundamental ingredients that you can expect to find
in every criminal case? There are two. You have to have
conduct, something that counts as conduct,
from the perspective of the criminal law,
and then something that counts as mental state. And a good bit of
the semester you will spend focusing on
these two ingredients-- what do we mean by
conduct, and what do we mean by mental state? And that way, when you
go out and practice, you're going to know
what questions you have to ask in any criminal case. So those are the
fundamental ingredients that you'll be focusing
on, and then, too, many of the professors
focus on specific crimes so that you can
get to see how it is that these general
ingredients play out in the context of
particular crimes. Some of us cover
homicide, some of us cover homicide and sexual
assault, many of us cover attempt liability,
and some of us also think about the ingredients
for group criminality, and so forth. So you're going to get a
range of the general focus plus some specific focus. The other piece of the
course that most of us cover and delve into are
defenses to criminal liability. In cases where a
prosecution can establish that the criminal law
has been violated, are there contexts in which
we would relieve the culpable actor, or the allegedly
culpable actor, of liability? So here you'll be
thinking about defenses such as self-defense, duress,
and insanity, for example. So what are the conditions
in which the law decides, yes, this is a person who has
violated the criminal law, we are satisfied that the
technical requirements of the law can be proved up,
but there is some larger reason, some larger reason in
justice, for relieving the person of liability. So you'll be looking at those
kinds of questions as well. The course involves
a lot of really significant and difficult
normative questions. Some of us delve into those
questions more than others, but you'll need to be thinking
about questions such as, why do we do this? What is the point of
having a criminal justice system in the first place? As John mentioned in his
remarks, we have a tort system. Tort and crime have a
fairly substantial overlap in terms of the types of
harmful conduct that's covered. We could relegate many criminal
actions to the realm of torts. Why bring something
into the criminal realm as opposed to leaving
it in the tort realm? That's a really interesting
and difficult question, and one that, obviously, we're
all interested in because of the use, the devotion
of public resources to the criminal law area. Then another question
that's really important, that you might spend a
little time thinking about, is what do we punish? It turns out-- and of
course, this is something that's of great joy to
criminal law professors-- is that legislators
have been very busy criminalizing just about
everything that you do, right? So criminal law has become
incredibly expansive. What is the proper
scope, what should be on the list of
criminal prohibitions, is another fascinating
and difficult question that you may touch on
or at least be thinking about-- the justifications
for the system, and then what is it
that should be covered? The other thing that I
want to mention to you, too, is that the course
will set the stage for you to begin thinking about
even larger questions. And I alluded to some of
these in my earlier comments when I talked about the
fact that this class is a component of a complex
system in which there are a whole range of actors-- everything from police
to prison officials, right?-- that are playing
a role in the system. And so you'll want to
be thinking about some of those larger
questions as well. In the course, you're
going to be looking at an individual
appellate case, and you're going to be worrying about
questions like, well, was there a sufficient
voluntary act, or was the definition
of mens rea satisfied? And you'll be thinking in those
sort of narrow, internal terms. But you'll also want to-- or, you'll have occasion
in your legal career, or certainly in your law
school career, to step outside and to think about
broader questions. You'll remark that
in the United States, we incarcerate more people than
any other country in the world. We have the highest rate
of incarceration anywhere. That's really interesting. Why? What is it that contributes to
that pattern of incarceration? Then, of course,
you'll also remark, who is it that is in jail, right? Who is charged with a
crime, and who is not? Who gets a favorable
plea bargain? Think of all the attention
we've been paying to Jeffrey Epstein in the news. You know, who gets a
favorable plea bargain? Who does not? How does that work? And then, of course,
you'll need to be thinking about the very high
rates of incarceration of people of color. African-American men, black
and brown men tend to be-- are, not tend to be-- largely are overrepresented
in the prison population. Why is that? What are the forces
that contribute to those kinds of conditions,
and what, if anything, can substantive criminal
law do about it? Some of these things,
most of these questions, the latter questions
that I allude to, will be the subject
of criminal procedure courses, which you also we'll
have the opportunity to take. But substantive
criminal law, as I said, sets the stage for all
of these questions. We take for granted
there is a crime, and we're going
to investigate it, and then we need to be thinking,
of course, about the actors at the margin who have
the power to decide, should this case go to
trial or should it not? Thank you. [APPLAUSE] JOHN HARRISON: Well,
I'm back, this time to talk about the real
law part, civil procedure. As Anne said, in
criminal law, you will learn substantive
criminal law, not criminal
procedure, not the part that is the first
half of law and order. You will learn procedure
this coming semester in civil procedure,
and that, as I said, is the real law part in a
number of ways, one of which is that the assumption on which
the legal system rests that I mentioned is that people,
by and large, know something about their substantive
obligations. They know roughly, I'm not
supposed to commit arson. They may not know
it's called arson, but burning somebody else's
house down is a crime. They are assumed to know
something about there being a law of tort. They know, if I make
this kind of promise, I can be held to it. They know there's
a lot of contract. They are much less
likely to know, well, what happens if
something goes wrong? What is the procedure? How does the legal system, in
particular the judicial system, deal with it if
something goes wrong? That's what civil
procedure is about. Civil procedure is half of
that, and the other part is criminal procedure. And I'm going to
tell another story, but not just because I
like to tell stories. But one reason that I started
with the bungee jumping episode and that I'm going to tell you
what I'm about to tell you-- notice, I'm creating intolerable
suspense by not telling you the story and instead saying I'm
going to tell you the story-- is because a feature of the
American legal system and some of its relatives is that it
is very much about stories. It is about the facts
of particular cases. That's true both as
a pedagogic matter-- American law is
taught out of cases. Not all law schools throughout
the world work that way. American law schools did
not work that way so much 150 years ago, but they do now. The primary tool of learning
is appellate opinions, maybe because-- and this is sort of where
pedagogy and the substance of the law come together-- as you've heard, a large
part of American law is what's called common law. That is to say,
it's not statutory. It's nowhere written down. Where is it found? It is found in the
explanations that courts gave for the decisions they
made in particular cases on the basis of particular facts
that, as I said the first time, may or may not have happened,
but they did their best to find out what happened. Common law is based
on facts, which is to say in large measure
it is based on stories, on learning to understand
them, learning to tell them. So I'm going to tell
another story, which is yesterday-- and this
time, this is not hearsay. This is just
yesterday, so I hope I recollect it pretty well. Yesterday I had my car in
before its annual inspection. I walked down from my house
to a place where I could get the-- you'll learn
Charlottesville geography, toward what's called The Corner,
where I could get the bus to go down to where my car was and
happened to run into another member of our faculty-- another graduate of the
law school, as it happens-- who is also not going
to be teaching you because she, Liz
McGill, is being provost of the university. There are accusations
that the law school has taken over the university. I say nothing about that. I ran into Liz. We talked for we talked
for a few minutes. I hadn't seen her
since she came back to be provost-- she'd
been dean out at Stanford. And then went on my way, got
the bus, picked up my car. In the process from
going from the bus stop to picking up my car, I
went right past somebody on one of those
scooters who was going what seemed to me to be
an unreasonable speed, who did not, in fact, run into me. Interesting question,
was the person on the scooter being negligent? Was that an unreasonable risk? I think so, but of
course, I wasn't getting the benefit
of using the scooter, and unreasonable risks is about
both costs and the benefits. The person on the scooter did
not, in fact, run into me, so there was no tort. There may have been negligence,
but there was no tort. Then, once having
picked up the car, I went and picked up an
audio component that had just gotten a new power supply. Everything went fine. That is to say, I was operating
at the bottom of that triangle, the Great Pyramid. The Great Pyramid is pyramidical
because the up-down dimension there is about how much is the
government actively involved in what people are doing? At the base of
the pyramid, there are millions and
millions of things that happen every day that
are, to some extent, shaped by legal rules, like my
contractual relationship with the place that
inspected my car, my contractual relationship
with the people who fixed my processor,
gave it the new power supply, my potential accident
relationship with the person going by on the scooter. And routinely, down at
the base of the pyramid, people engage in what is called
self-application of the law. They have a rough
idea of what it is. Don't go to your neighbor's
house and set it on fire. That's arson. You're not-- so I
keep using arson because it's my favorite crime. You're not supposed
to commit arson. And routinely,
everything goes fine. As far as I know, everything
went fine with my car. I put the processor back
in place last night. It was working fine. The person with the
scooter, although engaged in astonishingly
irresponsible behavior, nevertheless did
not run into me. All that was people without
a lot of involvement in the government. There can be a lot more
involvement in the government as you move up the
triangle, the pyramid. Sometimes the government engages
in the kind of regulation that involves,
quite specifically, telling people what to do rather
than adopting general rules like the law of tort,
law of contract, criminal law that
people just adhere to. Then, toward the
top of the pyramid, the situations that
civil procedure and criminal procedure-- but I'm
talking about civil procedure-- the situations
where the government is so involved that the
court system gets involved. And that's the top
of the pyramid. And what I did with
the other drawing-- and from a lot of
law professors, many of them use
excellent PowerPoint, but there are a lot like me who
do nothing that's more useful than drawing completely
abstract and [? what is he getting at with those
drawings ?] on the blackboard? So one of the things
you'll learn in law school is how to make sense
of that sort of thing. At the top, that's-- the second one's sort
of the funnel, or cone, whatever it is, is kind
of the top of the pyramid turned on its side. And this time, the dimension
along the bottom is time. And that's about-- that's about
the situations where something goes wrong, where there
is a contractual dispute. Maybe there was some
confusion between me and the people who inspected
my car about just what repair work I had authorized to do. Maybe the person on the
scooter would have run into me. Sometimes, something goes wrong. And when something
goes wrong, there is a publicly-operated
dispute resolution system, and that's the court system. Civil procedure is about how
the court system actually makes decisions. It's about the tip of
the pyramid on its side. And there is a process. The process begins
before a lawsuit begins. If two people who have some
kind of legal relationship-- maybe they're strangers but
one says, you torted me; maybe they made a contract-- think that something has gone
wrong, usually, what happens is they begin to negotiate. They talk to one another. At some point, maybe, one
of them hires a lawyer. Let's hope so. Better yet, they
both hire lawyers. That's more beer for us. They negotiate, and maybe
they can work something out. Maybe they can't work
something out and one of them sues the other one. That's the point at which
the law of civil procedure kicks in. And what I'm going to do in
the next couple of minutes is describe the process
of a typical civil suit. And I'm going to talk
about this quite generally. One of the themes you've
heard is American federalism. Now, that applies both
to the substantive law-- there is substantive
federal criminal law, there is substantive
state criminal law-- and to the court systems. There are state courts
and federal courts. Most of the procedure
you'll learn will be that of
the federal courts because there is one system of
procedure, the federal rules of civil procedure. The state courts
are roughly similar. So somebody sues somebody else. What happens? First question is, and this
is an especially important question in federal court,
is this the right court for this lawsuit to go forward? There are rules of what
are called jurisdiction. Personal jurisdiction-- can this
court exercise authority over this defendant?-- and subject matter jurisdiction. Those rules are especially
important in the federal courts because the federal courts
have rather demanding rules, but they don't handle all cases. The state's courts generally
handle any case that comes in. Not true of the federal courts. Indeed, so not true
of the federal courts that there is an entire
other course about it called, oddly enough,
Federal Courts. Those questions
arise at the outset. Another question that
arises at the outset for a civil procedure
teacher is, where do I start? Do I start with
those rules, about is this the right
kind of court, rules of jurisdiction, personal
and subject matter-- which is one logical
place to start? Or do I start with
the life cycle of a lawsuit, the series of
moves that go on in a lawsuit? Some of your civil
procedure courses will start with jurisdiction. Some will start with the
life cycle of a lawsuit. Those of you who will be in
my civil procedure class, I'm going to give
away the big surprise, but we will start with the
life cycle the lawsuit, and then we will
get to procedure later in the semester. Having mentioned
procedure, I am going to talk about the life
cycle of a lawsuit for just a couple of minutes,
making the point that as a lawsuit proceeds,
one of the big things that's going on is the
parties are getting more and more information. There are then a
series of points at which the court
can decide something, or at which, as they've
had more information, the parties can settle the suit. Notice the fundamental
character of the law of contract in American law, once again. First point, plaintiff files
something called a complaint. This is federal terminology. Defendant files something
called an answer. They exchange information. And at that point, they
learn a lot about the facts. They learn something
about the facts, and they learn a lot about
their legal theories. And in particular,
the defendant learns something about the
plaintiff's legal theory. So there is a decision
juncture, either for the parties to settle now that they
know more, or for one of them to go to
the court and say, we can decide this
case right now. Not necessary to go on because
the plaintiff's legal theory is defective. In federal court, that would be
a motion to dismiss for failure to state a claim on which
relief can be granted under rule 12(b)(6) of the Federal
Rules of Civil Procedure. That's a juncture. Then comes the
most important part of lawsuits, because
this is the part that makes it possible for
partners in law firms to have vacation homes. This is discovery. And I'm sure some of you
have worked in a law firm and know something
about discovery. Yes, I see some heads nodding. Exactly. And this is the civil equivalent
of the cops and robbers part of criminal procedure. Discovery is much more fun. The parties learn a lot
more about the facts by getting information
from one another by conducting depositions,
taking testimony from one another's witnesses,
reading their expert reports, and so forth. As they learn more, they
may settle the case. Notice, that's a funnel. It's narrowing. And when discovery
is over, there's another decision
point for the court. Either party can move for
summary judgment-- say, we now know enough
about the facts to say that clearly, we win. Often, there will be motions
for summary judgment, often granted. It's a very important part
of practice, especially federal practice. Sometimes not. Parties proceed. There is a trial. Yet more information comes out. At the end of what we call
the plaintiff's case-in-chief, there is an opportunity
for the defendant to say, now we know the plaintiff loses. They put on their
case, and it's a loser. The court can decide there. Funnel narrows a little bit. Defendant puts on evidence,
then both parties can say, you don't even need to
take this to the jury. Any reasonable jury
would decide in my favor. Federal terminology for
that, motion for judgment as a matter of law. The parties know more,
the court knows more, the funnel is narrowing. Then, if it's a jury trial,
the jury enters its verdict, and there's another opportunity
for one of the parties to say, somewhat embarrassedly,
well, you know, I said any reasonable jury
would decide this way. This jury decided the other way. Must be they're unreasonable. 12 lay people doing their
best, but we all make mistakes. Another opportunity for a
judgment as a matter of law. Then the case is over
in the trial court, but of course, well, the
pyramid continues to narrow. There are appeals. In addition, in
civil procedure-- you'll learn about
the Federal Rules of Civil Procedure-- there are
also Federal Rules of Appellate Procedure. You'll probably learn
only the very basics of appellate practice in
introductory civil procedure. Notice, the funnel
continues to narrow. Most cases that are
tried are not appealed. Most cases that
are appealed once are not appealed
to the next stage. Every jurisdiction
has a highest court. And you might think
that the point of-- I don't mean the
point I'm getting at, I mean the geometric
point that is at the point where the funnel
or the cone, whatever it is, ends-- well, that must be, where
does everything end? What's the last stage in this
process in which the parties got more information,
the parties could decide or the court could
decide, surely that's whatever is the highest
court of the jurisdiction. In federal court, that
would be the Supreme Court of the United States. Not exactly. No, there can be another step. Sometimes, when the
courts are completely done with what they are
doing, the party that lost doesn't comply. Then-- and you may learn a
little bit about this in civil procedure; maybe not-- then it may be necessary
for the government to engage in actual physical
coercion of somebody in order to carry out the
judgment of the court. That's the point
I'll conclude with, something my evidence
teacher wrote. "Behind every
American judge stands, ultimately, the naked
power of the 101st Airborne Division of
the United States Army." This is serious stuff. [APPLAUSE] SARAH STEWART WARE:
Last but not least. Hello, I'm here to welcome
you on behalf of myself and professors Buck and Fore. One of the three of us will
be teaching you legal research and writing for the
whole school year. So this is not just a
fall course, but one that goes into the spring. It's also affectionately
known as LRW. And LRW is a year-long
course that's a little different
than the courses you've heard, because
instead of setting a particular area of law,
like contracts or torts, we're going to focus
on particular skills that you're going to use when
you are out there working as a lawyer or
something law-adjacent. And that might start with
your next summer job. So the name of the course
tells you something, right? Research and writing, so we are
going to do those two things. But I'm going to fill
in a few details. So imagine for a
moment that there you are next summer at your job. I know that seems far off,
but roll with me for a second. A supervisory person comes and
asks you to come to her office, so you grab your notepad. Tip number one,
always take a notepad. You grab your notepad,
you go down to her office, and she says, our client,
blah-blah-blah, legal jargon, legal jargon, acronyms. You might work in DC. Acronyms, acronyms. Great, thanks. Have it to me in a week. And you say, OK. And you go back to your desk. What do you do? Well, first you're going
to do some research because you need to figure out
what she was talking about. What are those acronyms? What is this area of law? I don't know anything about it. Can you Google it? Yes. Yeah, you already
know how to do that. But that's not going to
be the end of the story, because unlike research you've
done in the past where you need to find some stuff, or
maybe a lot of stuff, when you're researching the
law, you need all the stuff because the case
you're missing might have that exception
that saves your client from some big pile of trouble. So we're going to talk
in LRW about strategies for tackling research
so you have confidence that you've found all the stuff,
and you've understood the law correctly, and you're advising
your supervising attorney in the right way. Brilliant. You've educated
yourself about the law. You've collected your
statutes, and cases, and so on. Now you need to know
what to do with it all. So in LRW, we'll talk
about how to read. I know you know how
to read, but we'll talk about how to
read efficiently. We'll talk about how to
understand those statutes and cases. We'll talk about
the different weight given to various
authorities, so why you might prefer to use an
opinion from one court instead of an opinion from
another court. We'll talk about how you
reconcile and harmonize court opinions that don't really
seem to mesh well together. We'll talk about how to boil it
down, weave it together, stack it up, whatever
metaphor you want. And then we'll talk
about how to take that beautiful understanding of
the law that you've developed and write it down or
communicate it to someone else in your own words. Here's what the law requires,
here's an exception, here's the problem our
client is going to have given their factual circumstance. So we'll talk quite a lot about
how to write your analysis, because that's a big, big,
big part of what lawyers do. And we'll cover everything
from large-scale organization to when you should
capitalize the word "court." We'll talk about who
your audience is, what their expectations are,
and how you can make them very, very happy with your work. Yay. In your legal research
and writing class, you're going to learn by doing. So you have a memo due
in a couple of weeks. It'll be short, and
then you're going to get feedback on that,
possibly way more feedback then you're used to getting. Just fair warning. But that's a good thing because
you'll take that feedback, and then you'll
write another memo-- a little bit more complex
one, the second memo. You'll get feedback on that. You'll rewrite it
based on that feedback, and then you'll
get more feedback. And then we'll give you an even
more complex legal situation, and you'll write about that,
and you'll get feedback on that, and you'll respond
to that feedback and rewrite it and get one
more round of feedback. And it's through that
process that your work will get better, and more
sophisticated, and more polished. Now, along the way, you'll
have some great help. You're going to work closely
with a 2L or a 3L who will be your legal
writing fellow, and these are students
who were selected to help you to be your mentor
and your best friend in LRW. You'll get feedback
from them, and you'll have a chance to meet with them,
and ask questions, and review your progress, and see
how you're doing all through the school year. In the spring semester,
you'll have a chance to write an appellate brief. So if you're chomping
at the bit to argue, this is where that
fun stuff comes in. So you'll have a
chance to talk more about writing, and being
persuasive, and being compelling. You'll take a side in the
case we've been working on and try to write
it up in the way that there's only one answer. You win. And your classmates are going to
be arguing the other side that says they win. Once all those
briefs are turned in, we'll have a couple hundred
alumni who come back every year to put on robes
and act as judges, and you will stand up in front
of them and argue your case. But first, your oral
arguments program-- which happens in the spring. It's a long time;
you'll be ready. It's a great tradition
here at UVA Law, and it's sort of the
culminating experience of your legal research
and writing course. So our goal through
all of this is to give you confidence to
work as a lawyer, this summer and going forward,
so you can move away from that nice little cute
introductory intern assignment and get involved in that
really interesting thing that's happening down the hall. That's our goal. I really look forward
to working with you. About a third or slightly more
of you will be in my class. And so, welcome, and I will
be seeing some of you soon. [APPLAUSE]
