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THE LEGAL PROFESSION FOR WOMEN: A PROBLEM OF GENDER EQUALITY
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1.3 THE LEGAL PROFESSION FOR WOMEN: A PROBLEM OF GENDER EQUALITY
The Constitution of the United States is to woman as an Emancipation Proclamation, in that it erects no barriers, imposes no limitations, sanctions no discriminations on account of sex. Tacitly implying the perfect equality of man and woman as citizens, alike entitled to life, liberty and the pursuit of happiness, its very silence concerning the status of woman is an eloquent pleading in her behalf.
Woman has ever been one of the knottiest points of the law. At first, jurists thought to evade the issue by attempting to reduce woman to a ghostly nonentity; but, like Banquo's ghost, she would not "down" at the command of her Macbeth. Next she was concealed beneath the garb of legal fictions, and under the guise of vested rights smuggled through the departments of the blind goddess.
One link after another in the myriad chains which fettered her freedom and independence has been broken, until she is now not only recognized in legal procedure, but admitted into the very halls of justice, as an officer of the court, and permitted to participate in its proceedings. She may not only advocate her own rights, but may plead the rights of others. She has left in the rear her former colleagues–infants, idiots and the insane–and almost overtaken her rivals of the fifteenth amendment.
Such has been the breaking of dawn to woman, after her long civil night. The present century recognizes that the sphere of women is no longer a mooted question. Merit has no sex; and the meritorious lawyer, man or woman, who deserves success, who can both work and wait to win, is sure to achieve both recognition and reward.
Of the three so-called "learned professions" which are necessities of civilization, the legal profession has been perhaps the most reluctant to swing open its portals to admit in fellowship the former "pariahs" of legal procedure: nevertheless these majestic gates have in hundreds of cases responded to the reiterated taps of a woman's hand. The proportion of women engaged in the law is less than in the other professions is, in a measure, due to the peculiar requirements of the law. Woman may be the weakest in this profession, but in it she lifts with the longest lever the social and legal status of her sex.
Also it is no trifling education that is needed for successful competition in this profession. The ramifications of the law are infinite, and the successful lawyer must be versed in all subjects. The law is not a mere conglomeration of decisions and statutes; otherwise "Pretty Poll" might pose as an able advocate. A mind unadapted to investigation, unable to see the reasons for legal decisions, is as unreliable at the bar as is a color-blind person in the employ of a signal corps. The woman lawyer who demands an indemnity against failure must offer as collateral security not only the ordinary school education, but also a knowledge of the world and an acquaintance with that most abstruse of all philosophies–human nature. She must needs cultivate all the common sense and tact with which nature has endowed her, that she may adjust herself to all conditions. She must possess courage to assert her position and maintain her place in the presence of braggadocio and aggressiveness, with patience, firmness, order and absolute good nature; a combativeness which fears no Rubicon; a retentiveness of memory which classifies and keeps on file minutest details; a self-reliance which is the sin qua non of success; a tenacity of purpose and stubbornness of perseverance which gains ground, not by leaps, but by closely contested hair breadths; a fertility of resource which can meet the "variety and instantaneousness" of all occasions; an originality and clearness of intellect like that of Portia, prompt to recognize the value of a single drop of blood; a critical acumen to understand and discriminate between the subtle technicalities of law and an aptness to judge rightly of the interpretation of principles.
While America's sons sit at the feet of this divine Law, let not the daughters be unmindful of the peculiar position which they occupy. Woman has both felt the "power" and participates in the "care" of that law; therefore, her homage is due, and her voice needed with that of man to complete the harmony of the world.
2. THE LEGAL SYSTEM OF THE USA
2.1 THE MAIN PRINCIPLES OF THE AMERICAN SYSTEM OF JUSTICE
In a democratic society where the governed relinquish a portion of their autonomy, the legal system is the guardian against abuses by those in positions of power. Citizens agree to limitations on their freedom in exchange for peaceful coexistence, and they expect that when conflicts between citizens or between the state and citizens arise, there is a place that is independent from undue influence, that is trustworthy, and that has authority over all the parties to solve the disputes peacefully. The courts in any democratic system are that place of refuge. U.S. Supreme Court Chief Justice William Howard Taft stated in 1926 that "the real practical blessing of our Bill of Rights is in its provision for fixed procedure securing a fair hearing by independent courts to each individual."
A fundamental value in the American system of justice is that the stability of the society depends upon the ability of the people to readily obtain access to the courts, because the court system is the mechanism recognized and accepted by all to peacefully resolve disputes. Denying access to the courts forces dispute resolution into other arenas and results in vigilantism and violence.
The judicial systems of the United States are structured to ensure access to the courts and equal justice under law for all citizens. The U.S. Constitution and the constitutions of all 50 states contain specific articles on the judicial branch. The judicial systems of the United States are separate, coequal branches of government that maintain autonomy through their own structures, authorities, and rules. The principle of judicial independence, reflected in the federal and state constitutions and in American legal and political history, allows judges to make decisions based on the law and the facts of each case, rather than on popular opinion or political considerations.
The judicial systems of the United States include the federal courts and separate court systems for all 50 states, the District of Columbia, and five territories. These different court systems handle approximately 100 million cases per year, with the vast majority being heard in state courts. At the federal level, approximately 2,200 judges serve across the United States in the following capacities: justices of the Supreme Court, judges of the courts of appeals, judges of the district courts, bankruptcy judges, and magistrate judges. At the state level, approximately 31,000 judges serve on the bench, from the highest court down to local courts of limited jurisdiction.
Each state and territory has the authority to establish and operate its own court system. The structure of state court systems varies from state to state. Some states have "unified," or simplified, systems of only two or three levels, while others have multiple levels of court for different types of cases. Judges are selected by a variety of different methods in the states, including appointment by governors, popular election, and selection by the legislature. Terms of office for state judges range from four years to lifetime tenure.
When discussing the idea of access to the courts, mere access in the theoretical or legal sense is not enough; rather, it is the results that flow from the decisions made by the courts that give it meaning. For example, the value of "access" is evident when the courts decide that no one, especially those in positions of power, is above the law, or when access requires the right to counsel in cases where one's liberty is in jeopardy.
The practical application of the fundamental right to access the courts under the U.S. Constitution has been put to the test throughout the nation's history. It has been claimed and challenged by many.
Perhaps the importance of open access to the courts is best recognized in the criminal justice sector in cases involving the right to counsel. In the United States it has been established that, at least in criminal matters involving the loss of liberty, a person cannot be considered to have adequate access to justice unless the person is provided with legal counsel.
An impartial, independent judiciary is the guardian of individual rights in a democratic society. In order for citizens to have faith in their court system, all people must have access to the courts when necessary.
Real and meaningful access to the courts is fundamental to the health and vitality of any democracy. It is the shield used by citizens to protect themselves against tyranny, abuses, and simple errors in judgment. Access to the courts is the lifeblood of the system because from it flow all other rights. It helps preserve order when conflict arises and keeps citizens actively participating in the proper use of their collective power.
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