Exam 1 Flashcards
1
Q
Why Study Law and Courts:
A
- Legal Issues are everywhere
-Everything in America seems to be political, and ultimately, it ends up in court. - The making of the law is political
-Making the law is a political process involving government actors. It includes a separation of powers that all make law. No clear distinction between political and legal issues, and they have social ramifications as well. For example: Bush V Gore (2002) Judges had to decide election with no legal basis. - To understand our adversarial system
-Our system is made to have people oppose each other. Ex “Smith v Jones” two people/sides against each other. The irony is most cases end in compromise ex: arbitration or plea - Law and courts can be used for social change and continuity
-Ex: Roe v Wade, Brown v Board of Ed, and Dobbs v Jackson - Courts tend to be the “secretive” branch of government
-In general, most have no idea how the courts work or who the staff is or who the judges are. They are the wizard of oz: magically pulling levers to make things worse. They are not publicized like the other two branches and camera are not even allowed in the court room.
2
Q
Why have law and courts?
A
- To Resolve Disputes:
- It would be very difficult to resolve claims and issues peacefully with no force without the courts. - To Calculate Consequences:
-Having laws and knowing their consequences shape how we behave and help us avoid breaking the law. Consequences keep us from making bad decisions and creating issues. - Teaches (to some degree) right and wrong in society:
-Our unique federalist systems have different laws throughout the states. We have some uniformity but many differences. Depending on who passes certain ordinances and who doesn’t, we see what is acceptable in society. Ex: Alcohol laws vary community to community - Allocate Gains and Losses:
-Examples: civil cases you can sue someone to recover damages and gain economically what you have lost. - Protect individuals and groups (in tension with majoritarian principles of governing)
Democracy- government by the people, of the people, for the people.
In the constitution there are majortian principles that say whatever the majority wants it gets. But we have to have groups to protect the interests of others. - Courts and Judges are policymakers
-They do it differently from the legislature but they both make policy.
MYTH- judges only apply law
(They make law as well.)
3
Q
8 layers of law
A
- Federalism
- Multiple sources of law
- Judicial decisions
- Public vs private law
- Criminal and Civil law
- Substantive vs Procedural
- Remedies
- Access
4
Q
Layer One: Federalism
A
Federalism: Division of power
Federal law, state law, local law
One federal body law but variation in state and local laws
Eg: state law: Nevada Vs. Kentucky
Federalism gives states incentives to get creative in enacting local laws.
Ex: Nevada legalized gambling & weed & prostitution to attract people to visit their states
Kentucky has a beautiful landscape so they don’t have to get as creative.
Local law- city and county- parks and school boards
We are subject to two different jurisdictions (federal and state) potentially for the same act.
“One federal court system, 50 different state systems”
Federal Laws supercede state laws (in most cases)
5
Q
Layer two: Multiple sources of law
A
- Constitution: superior to all other laws.
Constitutions set up institutions and structures of governments and define what powers they will have. Framework of government
Article 3 sets up the court system and creates the federal judiciary - Statutes: source of law enacted or passed by congress
(local legislature would be “ordnance”)
More statutes were being passed and less common law (decisions passed by judges) at the beginning of our country. - Administrative regulations: Legislative bodies delegate rule-making authority to a host of governmental bureaucracies variously called agencies, boards, bureaus, commissions, or departments. Administrative law concerns the duties and proper running of an administrative agency.
- Executive orders:
Ex: Joe biden mandating covid vaccines w/ OSHA
6
Q
Layer three: Judicial Decisions
A
Case law or precedent (judge made law)
“legislatures make law wholesale, whereas courts make it retail”
-appellate court decisions also remain an important source of law.
7
Q
Layer Four: Public and Private Law
A
Public law includes criminal, international, and unconstitutional law. Private law is private because the government is not directly involved in being one of the parties. Examples include torts, property, and contracts.
– You CAN sue the government. In a private law matter. If the state brings charges against you its public.
8
Q
Layer Five: Civil and Criminal Law
A
-Civil: dispute b/w 2 parties
-Criminal: a violation of a government’s penal laws.
-Who is harmed? Private wrong vs. Public Wrong.
-Who prosecutes (crminal) /files suit (civil)?
-Remedies differ to some extent
Criminals usually want punishment of jail or fines or service or restitution
Civil cases usually want punishment for money. Most civil cases end in a settlement.
-Can be involved in BOTH criminal and civil
Ex: OJ Simpson
9
Q
Layer Six: Substantive and Procedural Law
A
Substantive: Defines what legal rights you have. All rights come with a duty:
Ex: Pedestrians have the right to the sidewalk, the driver in front has a duty to not hit them and let them walk.
In creating rights (and their corresponding duties), the law defines the legal relationship between the citizen and the state, and among citizens themselves. Prime examples of substantive law include contracts, property, torts, wills, and criminal prohibitions
Procedural: Establishes methods for enforcing legal rights
All procedural rules designed for a fair trial in civil and criminal cases
procedural law prevents people from taking the law into their own hands. In U.S. law, the most essential procedures are captured by the phrase “due process of law,”
example- Miranda Warning: A PROCEDURE they have to do if they want to interview them and use the information in a court of law later
example-rules of courts Procedural concerns:
If proper procedures are not followed that is grounds for an appeal
Ex: “Object” is to note unfairness and raise a procedural concern that can be used for an appeal down the road.
10
Q
Layer Seven: Remedies
A
A relief granted by courts decision
1. Declaratory Judgment: Decision made by court to declare rights in an issue
2. Others: Jail, fine, restitution, money for damages (compensatory such as medical bills or rehab bills lost wages “compensate victim for loss” or punitive damages that are designed to punish the person to avoid future issues)
3. Injunctions: can be temporary or permanent actions or restrictions being asked of the court by the people under equity
Ex: Stadium people don’t want to be built.
11
Q
Layer Eight: Access to Law and Courts
A
Courts are passive institutions. They must wait until the suit is brought to them. They can’t be proactive and seek policy. Courts are REACTIVE. Before Courts can act or entertain a suit:
1. Jurisdiction: Must have authority to hear it
2. Real dispute: it must be a REAL dispute not a hypothetical one. The federal courts do not issue an ADVISORY decision (state courts can). Someone has to have suffered in some way
3. Standing: Parties have to have standing, they have to be the ones affected in order to bring the lawsuit.
ex: Pledge of Allegiance court case. Father can’t bring the case to court because he wasn’t the custodial parent.
General Courts vs. Specialized Courts
Local level example of specialized courts: drug court, tax court
12
Q
What is Law?
A
The law can be many things in many different situations. It can be a set of documents, ideas, reasoning, or a set of actors in the legal system. Overall, law is a body of rules made by legal officials in a legitmate manner backed by the force of the state
13
Q
The U.S. Constitution:
-Why is it important?
A
-Contains government structure & outline for important processes (ex making law)
-Amendments (first 10- bill of rights)
Article 1 - Congress
Article II - President
Article III - The Judiciary
Article IV - VII - other issues
Amendments: individual rights and liberties
-Within the articles there is a very strong theme of majoritarian rights and will.
-Amendments were added on and they are all about individual rights and liberties
-Within this document you have inherent tension between majoritarian ideals vs individual rights.
-Article III did very little. It is composed of three sections
14
Q
Article III Section One
A
Section 1: Gives congress the right to create courts.It sets that the justices must have good behavior and receive compensation for this that can’t be diminished. (makes it difficult to get rid of judges.
15
Q
Article III Section Two
A
Jurisdiction
Original Jurisdiction (cases that would go directly to the supreme court)
Appellate Jurisdiction (comes through appeal)
Writs of certiorari: A person wants to appeal their case and they file this with the supreme court
Writs of habeas corpus, happen when you have someone detained from the state
Congress to regulate appellate jurisdiction- Congress can hear whatever cases they want to hear
16
Q
Writs of certiorari:
A
This is filed after a losing side wants to appeal their case to the Supreme Court. The legal petition asks the Supreme Court to review their case. The cases the Supreme Court hears comes from this.
17
Q
Writs of habeas corpus
A
A court order that challenges the detention of someone and requires the government to prove the validity of the persons imprisonment.
18
Q
Court Structure - Judiciary Act of 1789
A
The act itself had three main goals:
1. Structured the fed court system
-trial courts, circuit courts
Set number of supreme court justices at 6, now 9
2. Created Jurisdictions of federal court
-provided info on what cases they could hear and what authority they had
3. (Appellate) Jurisdiction of Supreme Court
-Power to issue writs of mandamus- an order from a judge that commands a lower court to do something.
19
Q
Basic Principles of Court Organization:
A
- In reality we have 2 separate and complete court systems
-US Supreme Court sits at the top or “caps” our court systems
-Each of our different courts are designed to do something different.
20
Q
Writs of mandamus
A
It is an order from a higher court or judge that commands a lower court or public official to do something.
21
Q
3 types of Jurisdiction
A
- Geographic
Geographical boundaries tend to follow the boundaries of other gov bodies
Example- cities, counties, states
2 complications:
Events that occur near borders or boundaries
extradition - Subject matter:
This type of crime matters for what court has jurisdiction. General Jurisdiction Vs Limited Jurisdiction
Examples:
Juvenile matter - juvenile court
Bankruptcy - bankruptcy court
Bank robbery - federal court
Tax matters- tax court
Traffic violation - city. County - Concurrent Jurisdiction
-Authority to hear case is shared with other courts
-Cases can be tried in state or federal court sometimes both
EX: Micheal Vick
Civil examples: trying to move hearings from state to federal court - tobacco litigation
22
Q
Simplified US Court System Chart
A
Draw correctly
23
Q
Basic Principle of Court Org.
Types of Jurisdiction:
A
-Hierarchical Jurisdiction: Courts have a right to hear appeals from lower courts under certain conditions.
-Original Jurisdiction
Trial courts hear most original cases
State Supreme Court Vs. Us Supreme Court
-Appellate Jurisidction
24
Q
Trial Courts and Appellate Courts
A
Almost all cases begin at the trial court
The losing side can appeal at a higher appellate court
Trial and Appellate Courts have different functions: facts and evidence vs error correction and devising legal rules. # of judges for case, written opinions, facts to review to multiple judges .
25
US District Courts:
Basic input point for the federal judicial system
99% of all cases begin here.
-District Courts are the trial courts of the federal system.
-Two types of Jurisdiction: General and limited
-” Riding Circuit”
-Judges nominated by the President and confirmed by the Senate. They have Article III protection: lifetime tenure: so they wouldn’t feel pressured to make decisions based on public opinion.
Organized by state boundary: Kentucky has 2 federal districts but 10 federal courthouses
-Each district was originally staffed with 1 judge and congress is responsible for adding judges
-”Riding Circuit”
26
3 categories of cases a federal court hears:
1. Federal issue:
Federal law
Banks
Cross border
Petitions of habeas corpus
2. Federal gov is a party in case
Ex: US v. Nixon
3. 2 citizens of different states & high monetary value > $75,000
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Courts of General Jurisdiction: district courts
Courts of Limited Jurisdiction: tax courts
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3 categories of cases a federal court hears
1. Federal Issue:
Federal law
Banks
Cross border
Petitions of habeas corpus
2. Federal gov is a party in case
Ex: US v. Nixon
3. 2 citizens of different states & high monetary value > $75,000
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District and Trial Courts make policy but their..
decisions do NOT set legal precedent.
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Doctrine of Stare Decisis
to stand by things decided”
– When courts use past decisions as a
reason/justification for their decision- they are following precedent
Example:
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Trial courts do not have
precedential value. They can be influential to policy but that does not mean they will have a precedential affect.
32
Specialized Federal Courts:
Limited Jurisdiction: created by congress for specific purpose of helping administer a specific congressional statute
2 characteristics: They have to decide
Permanent vs borrowed judges
Article I (can be removed by congress) vs Article III judges
They do this so the court system isn’t clogged up and for specialties and experts on certain subjects
33
US district courts have..
Have ENORMOUS caseloads
-Almost completely determined by 1 judge panels
-US district courts 663 judges vs 390,000 filings
-Trial courts are the WORK courts of the legal system. They handle the most disputes and work the most.
34
US Court of Appeals
12 circuits
Right to 1 appeal
-Also known as “circuit courts”
-Circuit decision
Sets precedent for entire circuit
If the 6th circuit makes a decision that applies for all states within that circuit
Circuit conflict - within and across circuits such as two courts making decisions that are at odds with each other (good chance it gets appealed to supreme court)
Composed of 3 judge panels assigned to cases randomly
En banc hearing: Entire circuit (all 12) hear the case and issue a circuit ruling
Comity: “Deffrance to another circuit”, if their circuit has no precedent set to help guide a decision, the courts may look at another circuit's decision and use it.
35
En banc hearing:
Entire circuit (all 12) hear the case and issue a circuit ruling
Comity: “Deffrance to another circuit”, if their circuit has no precedent set to help guide a decision, the courts may look at another circuit's decision and use it.
36
US Court of Appeals
-error correction not fact finders
-look for procedural errors (ex: objections show error made and they can use these to appeal)
37
Why is it important to understand the Supreme Court?
We cannot understand American Government without understanding the Supreme Court. Why?
The Supreme Court has the “final say” in what the law is in the most important issues of today
38
The supreme court is made up of
1 Chief Justice - 8 associate justices
39
Chiefs job is unique because
– Talk first at conference
– Head administrator for the Supreme Court
– Head administrator for Federal courts, deliver
yearly address on state of courts
40
United States Supreme Court Characteristics
Institution- historically not always prestigious
(early on not very important)
Lifetime position (president nominates, senate confirms)
-Most prestigious job in legal field today
Term start - First Monday in October ends in June
Cases are petitioned to Court all year long through petition for writs of ceritoarti
Typically hears 75-90 cases a year- shrinking docket over time
- Asked to hear 8500 cases each year and growing each year
Court docket is completely discretionary
-Cases selected by “rule of four” four must agree to listening to it
Interesting bc 5 republicans 3 democrats
41
State court differences from federal courts:
-Names: States have different naming conventions.
Ex: New York trial courts- Supreme Courts
-Selection: State selection is different from federal. Federal has appointment by President and confirmation by senate. 90% of state courts face election which makes them face partisan forces
Debate: Independent vs responded to public?
-Juvenile Courts: States have juvenile courts.
42
State Juvenile Courts
They were developed to keep children from a life of crime. Banning alcohol was apart of this because it was meant to keep children from a life of crime.
Doctrine of Parens patriae: latin for state as parent
-The state is not the sole provider for child's welfare, the state still has a say.
Juvenile Courts are more centered on help for the child. Less formal and focused on procedures more towards helping children. They use civil law.
The goal: Reform and Rehabilitate children
3 categories brought b4 the court: delinquency, status offenses, and child victim.
Looks for best interest for child and for the community
43
Doctrine of Parens patriae:
Latin for state as parent
44
Are Judges the main court room actor?
No. Lawyers are the main actors in the courtroom, not judges. Judges are much more passive, they sit and wait for things to be brought before they rule on them. Judges are like umpires. They are the main decision maker:
45
Idealistic vs reality view of judges
Judges are given enormous responsibilities and caseloads even though they are normal people just like us.
46
Judicial power extends to many different areas. What is the most important?
the most important is judicial review
-Judicial review is the power for judges to view law passed by legislature or congress and determine whether or not it is constitutional or not.
-Irony: unelected officials not even chosen by the people determining what is or what is not constitutional.
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Judges make decisions...
In our adversary system and oversee trials
-Trial court judges make many decisions
-Judges belong to an established judicial system, state or federal.
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Arbitrators:
people sign up to have their case seen by an arbitrator
The decision can be final if the arbitrator is binding no appeals they have the authority.
In arbitration, the parties agree ahead of time to be bound by the decision of the impartial third part.
49
Mediators
are their for the two sides to come together and facilitate an agreement. They refuse to take sides in the dispute, but they do delve into the problem and seek a solution. Mediators attempt to bring about an agreement by listening to each side and trying to get each party to understand the other’s point of view
Meditators have no formal powers, judges may order meditation before.
50
Position of Judge:
Powers:
-Bail, determine probable cause, rule on pre-trial motions, accept guilty pleas, preside over trials, set punishment upon conviction
Benefits:
-High prestige and respect
-Capstone to career
-Typically highest income earners amongst criminal justice officials
-Many can fill staff positions through patronage
Frustrations:
-NO “power of sword or purse”: when they make policy they don’t have the power to enforce it and they don’t have the funding because congress has the money. When court orders something they are reliant on others to carry it out, so it may not be implemented and may be ignored
-Heavy caseloads and corresponding admin. Problems (scheduling)
-System limits of judicial actions (overcrowded jails, lost documents, delayed proceedings)
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power of sword or purse
Judges do not have it. when they make policy they don’t have the power to enforce it and they don’t have the funding because congress has the money. When court orders something they are reliant on others to carry it out, so it may not be implemented and may be ignored
52
Judges want the public to see that the legal system is....
legitimate
53
Judges & Courtroom work group:
-Power is informally shared b/w judges and attorneys and staff. Judges depend on everyone around them knowing procedures and rules for the system to run smoothly.
-Use of sanctions: attorneys affect speed of cases by number of motions they file. Judges have sanctions against attorneys and can hold them in contempt for affecting the speed of the trial.
-Differences in philosophy can lead to forum or judge shopping. Judges vary in sentencing so attorneys may motion to change the judge or venue for their own benefit for their client.
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Judicial Selection: Federal Level
Article III judges are appointed by the president with the advice and consent of the senate. (Article II section 2 power derived from consitution)
55
Judicial Selection: State Level
States use different methods:
1. Partisan Election
2. Nonpartisan election
3. Merit Selection Plan (aka Missouri plan)
4. Legislative Appointment
5. Gurbernatorial appointment
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Partisan Election
In which candidates are listed by party affiliation. Partisan ballots make it easy for party leaders to use judicial posts as patronage to reward the party faithful. Much more responsive to what the public wants.
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-Nonpartisan election
No party added. Most avoid partisan issues in campaign. The difference is the amount of money involved. This creates the concern that those who donate this money will have cases in the future and this will cause a conflict of interest.
58
Merit Selection Plan
This is a combination of elections and appointments. Calls for the establishment of a judicial nominating commission composed of lawyers and laypeople who suggest a list of qualified nominees. From those names, the governor makes the final selection, and after a short period of service on the bench (typically one year), the new judge faces an uncontested retention election. The sole question for the voters to decide is “Should Judge X be retained in office?” If the incumbent wins a ma-ority of affirmative votes, he or she earns a full term. This gets bodies involved. Multiple powers having a say.
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-Legislative appointment
Legislatures tend to turn to former legislators and that has implications on the ruling of law.
60
Gubernatorial appointment
gov chooses and has sole power. Rare
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Fundamental Dilemma of elections
accountability vs. independence – need to balance
Accountable to public or an independent judiciary
-If judges are to be free to decide cases unfettered by the whims of the current regime, then they should be selected in ways that maximize their independence so that they can follow the law as they see it. But, at the same time, Americans place a heavy emphasis on the political accountability of their governmental officials. If judges are important policy makers—and they are—then judges should be selected and retained in ways that make them accountable to the public they serve.
-In essence, Americ
62
Consequences of each election process
-Politics typically play a role in partisan and nonpartisan elections
-Incumbent judges are rarely voted out of office
-Elective systems favor those who have held prior political office (Dist, attys)
-Merit systems favor former DAs
-Overall marginal difference between selection mechanisms (scholars divided on which system provides better judges) There is no clear cut result. It is hard to define a better “judge”
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Kentucky has..
non-partisan elections
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Judicial selection federal system
The U.S. Constitution establishes a straightforward method for selecting judges to preside in federal court:
-2 part process: nomination and confirmation (short version)
-Vacancy occurs
-President compiles short list (3-6 names) usually receives help and investigates it.
-President makes formal nomination
Why do presidents care:
Legacy: Presidents want to leave behind a legacy. Judges serve for life and they can continue his policies after he is long gone
Policy: Presidents can’t guarantee their policies will go on forever so the appointments matter because that help makes their policies continue
-After nomination goes to senate judiciary committee
-variation in process depending on “who” the senate is deciding whether to grant “consent”
-U.S. Supreme Court Justices vs. Other Federal Judges
-evolved over years
65
Filibuster
senators can talk to stall legislation
To stop filibuster you need 60+ vote
66
Confirmation Process in Federal Judicial Selection
Appearing before judiciary committee:
-No formal requirement
-Started in the 1920s with Harlan Fisk Stone, now it is a norm.
-Interest groups campaign in favor of nominees
-x: ABA recommendations and judgements play a strong role
-Nominees submit written answers to questions from judiciary committee
-Judiciary Committee holds hearings
-Outside groups and individuals
-Nominee appears for Q&A with senators
-Committee vote to send to full senate floor:
-Supreme Court nominee
-Lower federal court nominee
-Full senate then typically votes
What factor influences a senators vote for nominee:
-Qualifications
-Political ideology
-Interest groups
67
What factor influences a senators vote for nominee:
-Qualifications
-Political ideology
-Interest groups
68
Confirmation Process: Voting
Up until the 1950's this was mostly a consensual process. Then court started playing a major role in public life “it became politicized”
-Public is caring about the court because the court was making big decisions (ex> Brown V. Board of ed.)
-Thats when nominations started appearing regularly
-Controversy reached a high during Robert Borks hearings (1987). He was debating intellectually, and senators made him look really bad.
-”Borked”- to be unfairly attacked
-Confirmation is still the norm but far more scrutiny is given these days
-Oath is taken
-Nominees once confirmed do not always behave as the president hopes
-Eisenhower - warren, brennan
-Ford - stevens
-H.W. Bush - SOuter
-Others - Hugo Black
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What influences the way judges make decisions
1. Law (precedent, judicial philosophy) Past cases and common law
2. Personal beliefs/ ideology/attitudes
3. Strategic considerations: Whos going to enforce this? What else is going on that has to be thought about.
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Judicial interpretation:
precedent/stare decisis (legal
reasoning)
Stare decisis: latin translated “to stand by things decided”. Full phrase: stare decisis et non quieta movere = "stand by the thing decided and do not disturb the calm"
Most common form of legal model- find the “controlling” precedent
* Analogical reasoning – non-judicial example
* How it works: You cite the accepted similarities between two things to
support the conclusion that some further similarity exists
* Example: Roper v. Simmons (2005)- Can we execute minors?
– Argue yes: Stanford v. Kentucky (1989) said this was not cruel and unusual
because majority of Americans did not find it cruel
– Argue no: Atkins v. Virginia (2002) found mentally retarded individuals had
lessened capabilities; showed changing consensus of death penalty
Non-judicial example: Need a textbook and have never used the vendor. They say its new and cheap, when it comes in you see it is used. You learn that the vendor cannot be trusted and next time by reason of analogy you will not use that vendor again.
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Attorneys spend a lot of time arguing what
precedent supports their side.
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Attorneys in the Us legal system play an important role..
They help people navigate the legal system and bring disputes to it.
73
Lawyers are vital to our legal system and serve..
an essential gatekeeper function
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Courts are not self-starters. They are passive institutions. Attorneys are the ones that..
Bring the cases to court. Attorneys decide what cases to bring:
-Lawyers are called upon to play a leading part in society
-They are Representation
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2 types of cases attorneys bring
-Ordinary litigation: routine lawsuits that are brought on behalf of clients. Anything involving two parties where the outcome usually only affects those two parties. “Fact bound case. This is retrospective and back word looking.
-Political litigation: Designed to change policy or much broader policy for a group of people beyond the two parties. Here litigation is prospective (future oriented). Here the plaintiff seeks compensation to fix past wrongdoing and influence others future actions. It doesn’t affect just two parties, but it affects a much broader group in society/
Ex: any class action suit
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Vast majority (half) of lawyers don’t step foot in a
courtroom. In Britain they separate barristers and solicitors.
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5 functions of lawyers (some overlap)
1. Litigating
2. Representing
3. Negotiating
4. Drafting Documents
5. Counseling Clients
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Litigating
Present cases before judges and juries in court. Litigators must be a bit of an actor and determine how arguments look to a judge or jury. They have to be a bit of a fighter. A litigator must make tactical decisions on how the case will be perceived. Small percentage is litigating
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Representing
Representing clients interests. Lawyers typically hired to represent a business or individual interests to help them with advising, license, or contracts. This category is increasing
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Negotiating: reaching settlements
Criminal or civil. Civil cases usually end in settlement through negotiating. 90-95 percent of criminal cases end in plea bargain. These lawyers lead to resolution for everyone.
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Drafting Documents
Creating documents, wills, and making sure items are well-drafted and correc
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Counseling Clients:
Advocate for client vs consuel thinks is their best interest. Their biggest job is to advocate for their clients and their interests. However, there is a fundamental tension of being both advocate and counsel. You have to give them the bad news and advise them as well as advocate.
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Relationship Between Bench & Bar Formal Interaction
interact formally through
- settling cases: nowhere does it say judges are helping cases, but Judges will put settlement meetings on their calendars to help settle
-policy orientation: if a judge is a known republican or democrat or liberal, attorneys may center their argument around this.
-Forum shopping: Litigants look for favorable judges for the best interests of their case. They find favored venues for certain issues.
Formal rules can have a big impact on case
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Relationship between the bench and bar informal interaction
Because not everything is formalized, attorneys do not control everything, norms will govern behavior.
-Judges are not supposed to make decisions based on their own accord but rather based on arguments presented by attorneys
-Norm of sua sponte (of one's accord)- when a judge takes action without being prompted by a party. It can shape how judges select which argument will win a case.
Example: Mapp v Ohio - 1st amendment rights
(Fun Example) Flood vs. Khun 1972 dealt with MLB put into law baseball's greatest player
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Law schools and the “case method”
Invented just after the civil war.
Opposite of innovative.
Case method is reading opinions handed down from courts.
-Most professors use the socratic method
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Reasons for bar exam
1. Designed to protect the reputation of lawyers and separate them from unethical people. Designed to keep out ethical people.
2. Bar exams have economic interest. It limits the supply of lawyers and keeps the profession prestigious. High rates when less attorneys
3. Bar exam provides protection for a minimum level of competence. They argue that the exam is to keep out incompetent individuals.
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Government ranking lawyers
Attorney General, Deputy Attorney General, Solicitor general and others in the department of justice
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Attorney General: Nations Top Attorney in Gov. Affairs
Position: Official cabinet position. When a president is elected in office and takes the oath they nominate someone for ag and the senate usually affirms it.
Roles:
1.Advise President on legal policy: President sets it but they tell them what to do
2. Presidents Lawyer: In governmental affairs: usually the assistant or deputy handle most affairs but they are still his lawyer.
3. Chief Maker of Nations Legal Policy: Power comes by deciding which case to prosecute or bring to court. Pick and choose what cases to place their resources behind.
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Solicitor General
: Government attorneys considered 3rd ranking attorneys in the department of justice. Main role is to determine which cases to appeal to take before the Supreme Court. They decide where resources and time are allocated. They are the one litigant to win so much that they are referred to as the 10th Justice. The SG represents (beyond the fed gov) the President. The Attorney general is higher ranking, but never appears before the Supreme Court. Anytime the federal court thinks they may have interest in a case that it is not a party to, it is the SGs job to file an amicus curiae to let their views be known. Justices always read this because they do want to know what the government thinks.
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US Attorney
-Term of 4 years ( it is a political appointment for faithful service to a party) Have to be confirmed by the senate after the president appointment.
-94 attorneys for each US district court. They are the chief law enforcement of that district.
-Basic task of US attorneys: main job is to prosecute cases
-They are supposed to be responsive, but they don’t always go how the president wants. Logistically, they keep the boss satisfied but still go their own way. -Part of the Executive branch but partly autonomous. More attention on bigger or more important districts and the different issues in different areas.
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Public attitudes about lawyers: paradox
-64% of parents want their children to pursue legal careers because it provides a good standard of living and is valued in the community. However, the public's perception of lawyers is much different. They do not see lawyers producing much. Lots of people want their kids to grow up to be lawyers but very few of them believe that lawyers contribute to society's well-being. When it’s the ones they know and understand they love them, but when they don’t know them they just seem them as money hungry and profiting off of others hardship
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Non Linear Path a Case May Travel
Jessie Williams & Phillip Morris case is an example of this. It shows us that cases can go back and forth through the legal system. When a court decides a case it is not the last time it will be ruled on by Supreme Court.
For example his case:
tate trial court to Jury Decision to Trial Judge Decision to Oregon Court of Appeals to Oregon Supreme Court to United States Supreme Court back to Oregon Court of Appealls back to Supreme Court back to US supreme court back to Oregon Supreme Court back to United States Supreme Court
Year 12 final decision
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Interest groups became well known around
Roberts Bork's confirmation hearings
-Interest groups were running ads that attacked him even before
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Today, interest groups
run ads that support or oppose certain Supreme Court nominees
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Why do interest groups run these ads?
-They run these ads because ads gain influence
Money - ads = influence
They provide representation
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Interest groups provide representation to varying degrees to
-they try to change the law and they try to change society
-They advocate on our behalf. Their short-termlong-term goal is to change a law and their long term goal is social change
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Interest groups are also called
special interest groups, pressure groups, and organized interest groups
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Interest groups hope that legal change leads to
social change
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Why are special interest groups important/ what problem do they solve
Important because they help solve collective action problems- bring action, attention, communication, and help coordination.
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Interest groups influence the law through 3 channels
-Lobby Congress
-Lobby Executive: lobby agencies rather than the president. They do this by providing information in their area of expertise
-”Lobby Courts”:
Interest groups provide access and representation in the legal system
Can’t lobby judges/ justices in the same way as legislators/executives
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What Interest groups don't do:
-They typically don’t directly lobby (federal) judges/justices
-Story of tommy “the crock” corcoran: former supreme court clerk
-advisor to FDR new deal legislation played a big role
-First modern day lobbyist
Story: Tommy visited justice black and tried to talk about Utah Public Service Commission vs el Paso natural gas company (1969). He asked to reopen the case. There is a rule that governs when a case can be reheard.
-Two justices: Black and Brennan - both were horrified and both ask him to leave. When it got petitioned to be reheard, Brenna did not participate so they voted to not hear the case again.
-Judges are not expected to be lobbied in the chambers and it is not appropriate to do so.
-Gifts and money for judges should be disclosed on their disclosure form.
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Four ways interest groups get you involved:
1. Group test cases:
-They specifically bring a suit to court so that they can test a law. They challenge it and try to strike it down.
Ex: Boy Scouts of America v Dale (2000)
-James dale homosexual eagle scout
-First petitioned the boy scouts to have him reinstated and they denied it. They did this to show that the court system is the last resort and that they have exhausted all other options. Courts try to make sure they are reviewing real controversies.
2. File amicus curiae briefs
-Provide scientific evidence
Ex: Brandeis Brief in Muller v Oregon
-Provide new legal ideas
Ex: Mapp v. Ohio - proposing the exclusionary rule for police violation of 4th amendment
-Inform courts of broader policy implications
Remind them how other groups in society will be affected based on ruling
3. Lend support and resources to people bringing lawsuits
-pay for attorneys
-Protest and social media campaigns
-Shape public opinion and awareness
4. Interest groups sponsor cases themselves
-Differs from test cases
-Sponsorship of cases is less costly than running a test case but the big disadvantage is these instances do not have control over what legal arguments get made. It may tie their hands behind their back when they go to fight.
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5 theories on why groups turn to court
1. Political disadvantage theory: Idea that interest groups pursue litigation because they are politically disadvantaged and lack access to traditional forum (congress and executive)
Ex: baker vs carr brown v board of ed.
2. Party capability theory:
Haves vs have nots
Evidence shows that wealthy groups far out number the groups that represent the have nots.
They turn to the courts because they know how the laws matter so they turn to what will favor them.
Haves know that courtvictory legitimate status and wealth
3. Courts provide unique benefits:
-Court wins are better because constitutional decisions are difficult to dislodge
4. Groups try to counter balance their main opposition
-AELE vs. ACLU
-They started to emerge to make sure their interests being represented at court
5. Some groups are predisposed to litigation because of their origin
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Interest Groups and Social Change:
1909- NAACP forms- main goal: strike down plessy vs ferguson and the doctrine of “separate but equal”. Wanted to use the court to change social policy. Their plan was to chip away at the laws piece by piece.
1910s- law passed dealing with restrictive covenants (not sell to certain group of people)
1948- Shelley v. Kraemer - attacked the “equal” part. They said that the covenants cannot be enforced in courts (essentially they become worthless)
1950- Sweatt v. Painter - texas law schools prohibited integration in law schools, case was appealed by supreme court and favored NAACP because there were notable differences between the white and black law schools.
1954- Brown v Board of ed. Had down that schools must be segregated
What is the link between legal change and social change?
-Unpopular decisions make lead to lack of social change
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Main mode of interest groups today
- confirmation hearings and amicus participation with briefs in Supreme Court
-Focuses on merits stage
Lots of participation:
-Examples: Univ of Calf vs Bakke, PLanned Parenthood vs Casey (1992)
-Average number of amicus briefs per case in recent terms = 12-14
-On average - over 1,800 groups are involved each term
-Research has shown that interest groups can and do have an effect on decision making
-Essentially, every case has outside group participation. Court does not hear from JUST parties anymore
-There is no requirement however to read amicus briefs, but they do for their own understanding.
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“The worst covered and worst judged institution in American institution”
The Supreme Court
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Why is it difficult to cover the Supreme Court?
-Accessibility: the business of the supreme court the vast majority of it is conducted in private. Much of it cannot be accessed by people or the press. This varies from other branches. They are slow to issue transcripts; no advance leak of opinions (with one exception: Roe v Wade abortion 2022)
-Subject matter- legal minutiae: seemingly important details that seem to most Americans as trivial. Most of the public doesn’t care or know what the court is doing.Requires a good course of expertise to understand what the opinions say and what they mean
-Maintaining a beat reporter is declining: The supreme court is difficult to cover so budget cuts due to traditional media declining is ending beat reporters/
This is important because beat reporters have the level of expertise to communicate effectively what is going on to the public.
-Judges/ Justices/ Courts do not typically seek attention, they try to let their decisions speak for themselves.
-Unpredictability of the institution and when they are gonna decide something. Makes it hard for the media to devote when they don’t know when it is gonna be decided. No timetable.
Exception: end of june rush
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Confirmation hearings are
attracting more attention over time. This could be due to them being more politicized over time. They are the one exception to no coverage in the courts.
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Why do we care about media coverage of the courts:
1. Legitimacy: supreme courts and federal judges are unelected.
-Judges do not have the power of the purse or the sword: they are broke and can’t enforce anything. They have to be able to persuade people that their decisions are right and correct. This is why courts issue written opinions.
2. Democracy- government of the people, by the people, for the people. Free fair elections, rights and liberties, notion of rule of law- the idea that all persons and entities are accountable to laws that are publicly passed, equally forced, and adjudicated.
-Democracy requires an informed citizen: if the people are gonna hold their leaders accountable they need to inform citizens of what is going on.
3. Counter-majoritarian and minority viewpoints:
-Many people view the courts as the minority … that are their to represent minorities and give them protection.
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Coverage of the Supreme Court -Institutional differences:
Presidents:
-Go public. If they want to shape public opinion they will make speeches on the topic and shape the agenda that way.
Congress:
-Use the media to talk to consiguientes and score points for reelection motivation.
COURTS:
-Personal speaking visits
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Public aspects of the supreme court's decision making process;
-Oral arguments and opinion announcements
-Everything else in private
-Justices refuse to offer further guidance on interpreting their own decision.
-Gossip leak is rare
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Other courts in America
Proceedings are open and some have cameras
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Quality of Coverage:
-Varies
-Dilemma of selling newspaper and virtual equivalent:
-Informing the public with analysis or covering sensational elements
-Complete coverage includes: facts of cases, balance of both sides arguments, what the opinion said its implications, and reactions
Do we cover what's important or what's more juicy and gets more clicks? That is dilemma
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Coverage medium varies and issues areas
-quality of coverage varies across mediums. DIfferent mediums have different standards
-Television: used to be common; 30 seconds to two minutes on important cases, usually common with background issues.
-Newspaper (print and digital): 7-8 paragraphs average story
-Radio: short blurb 10-30 seconds
-Newsmagazine: in depth on typically one case
-Internet stories; lots of stories across lots of outlets
--civil rights and liberties versus economic federalism. Much more common to see civil rights in the media and focus.
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How do people learn about the court?
-Most people do not learn about it directly. Most do not read court opinions or go to DC.
Learned about in two ways:
1. The media: Elites in government, issue elites, attentive members of public
2. friends and acquaintances in social networks. (more common)
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Two step flow of communications
Mass media - opinion leaders - social networks/opinion followers
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Congress created inferior courts to deal with...
ther types of issues for expertise and specialization. Ex: Tax code is complex c an’t be decided by a general judge
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Norm of sua sponte
(of one's own accord) - When a judge takes action without being prompted by a party. It can shape how judges select which argument will win a case. Judges are supposed to go for their party, but when they go rouge it is called this. Ex: Mapp v. Ohio and Flood v. Kuhn.
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Political science
Is the systematic study of government and politics, and the research it produces helps to guide our presentation of the judiciary
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The Legal System is three concrete circles.
Ring 1. The Institutions of Law - Law and Courts
-The lawgivers: courts, legislatures, and executive
Ring 2. Interpreters of Law- Lawyers and Judges
-The gatekeepers: lawyers decision makers: judges
Ring 3. Consumers of justice- Plaintiffs, Defendants, Victims, Witnesses, & Jurors
-They bring disputes to court, are objects of legal activity, or are essential participants.
-Each Ring is affected by broader economic, political, and social forces.
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Law
is a body of rules enacted by public officials in a legitimate manner and backed by the force of the state.
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Courts
are institutions in which judges and juries resolve disputes based on law.
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Dual court system
one national court structure and court structures in each of the 50 states.
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Although courts are clearly legal institutions, social theories of law point out that courts are also political institutions.
The courts, which interpret and apply the laws, do not exist in a vacuum. Rather, the creation, application, and interpretation of law exist within a political and social context. Courts are one governmental agency among many, and their activities are influenced, directly and indirectly, by what other branches of government do or do not do. Understanding the legal and political context within which courts operate is important in studying their role within American society
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-Courts differ from the proactive legislative and executive branch as they do not
seek out problems or control their own agenda.Courts are passive and reactive. Judges can act only when they are called on by parties having no connection to the judiciary. Because they depend on others to bring matters to their attention, courts have a limited ability to control their agenda. Once a lawsuit is filed, the judge is expected to make a decision.
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Civil law
Continental, code, judges dominate trials, career bureaucrats
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Common Law
Anglo-American, Judicial interpretation and legislation, control courtroom, former practicing lawyers
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Socialist Law
Communist, Marxist-Leninism, party member,s party members
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Islamic Law
Religious Law, Sacred religious documents, Secondary role, Religious as well as legal training
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Military Justice Courts
Big differences from civilian courts
"promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States"
A two-thirds majority is sufficient to convict (as opposed to civilian cases, which require a unanimous vote). * Convictions are automatically appealed to a higher military court
enemy combats
Civilian court: "equal justice under law"
“The purpose of military law is to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States
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Netural and passive decision makers
Judges
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circuit riding:
The Supreme Court justices, many of them old and ill, faced days of difficult and often impossible travel. The justices complained about intolerable conditions and physical danger. They literally road to each of the circuts
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United States Magistrate Judges:
elected by the district court judges. Full-time magistrate judges are appointed for eight-year terms and part-time magistrate judges for four years.
- Except in special circumstances, all must be lawyers and members of the state bar.
-Magistrate judges play an increasingly important role in helping district court judges dispose of their growing caseloads. In a typical year, for example, they handle just over 1 mil- lion matters for the federal courts.
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The supreme court does not operate as
the court of last resort, attempting to correct errors in every case in the nation, but, rather, marshals its time and energy to decide the most important policy questions of the day
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Specialized courts:
- Specialized federal courts because they are authorized to hear only a limited range of cases (taxes or patents, for example). They are created for the express purpose of helping administer a specific congressional statute.
-First, most specialized courts have permanent, full-time judges appointed specifically to that court. A few specialized courts, however, temporarily borrow judges from federal district courts or courts of appeals as specific cases arise
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Article I and Article III Status regarding specialized courts created
-judicial bodies established by Congress under Article III are known as constitutional courts. The Supreme Court, the courts of appeals, and the district courts are, of course, constitutional courts. Judicial bodies established by Congress under Article I are known as legislative courts. Bankruptcy judges and U.S. magistrate judges are examples of legislative courts. Article III (constitutional court) judges serve for a period of good behavior, which amounts to a lifetime appointment. Article I (legislative court) judges, in contrast, are appointed for a specific term of office. Moreover, Article III judges are protected against sal- ary reductions while in office. Article I judges enjoy no such constitutional protection. In short, constitutional courts have a greater degree of independence from the other two branches of government.
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increasing caseloads have, in turn, prompted changes and additions to the federal judiciary:
appellate courts have been added and specialized courts created.
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What are the characteristics of a good judge?
-No entire agreement on what constitutes a good judge
-Fair, honest, patient, wise, kind, tolerant, compassionate, strong, decisive, and courageous.
-They are expected to exhibit appropriate judicial temperament
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patronage
using the appointment to rule the party faithful
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Judicial Campaigns
low-key, low-visibility affairs marked by the absence of controversy
rom the voters’ perspective, all the judicial candidates are virtually indistinguishable from one another. All the aspirants for the bench stress that they will be fair, efficient, and, above all, just while on the bench. Moreover, all the candidates appear to be equally well qualified for the office. Traditionally, the result has been a bland judicial campaign that provides voters with limited information.
judicial campaigns are becoming “nastier, noisier, and costlier”.
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Amicus Curiae Briefs
Friend to the court in latin. A group that is not a direct party to a lawsuit may make its views known to the court by filing an amicus curiae brief. That happens most often when appellate courts are hearing arguments on policy-oriented lawsuits. Such legal arguments often adopt a different perspective or argue positions the principal litigants do not wish to emphasize. Thus, amicus briefs present the court with a range of viewpoints about the legal issues raised in the case. Interest groups often do this.
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