Exam 1 Flashcards
Why Study Law and Courts:
- 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.
Why have law and courts?
- 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.)
8 layers of law
- Federalism
- Multiple sources of law
- Judicial decisions
- Public vs private law
- Criminal and Civil law
- Substantive vs Procedural
- Remedies
- Access
Layer One: Federalism
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)
Layer two: Multiple sources of law
- 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
Layer three: Judicial Decisions
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.
Layer Four: Public and Private Law
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.
Layer Five: Civil and Criminal Law
-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
Layer Six: Substantive and Procedural Law
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.
Layer Seven: Remedies
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.
Layer Eight: Access to Law and Courts
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
What is Law?
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
The U.S. Constitution:
-Why is it important?
-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
Article III Section One
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.
Article III Section Two
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
Writs of certiorari:
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.
Writs of habeas corpus
A court order that challenges the detention of someone and requires the government to prove the validity of the persons imprisonment.
Court Structure - Judiciary Act of 1789
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.
Basic Principles of Court Organization:
- 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.
Writs of mandamus
It is an order from a higher court or judge that commands a lower court or public official to do something.
3 types of Jurisdiction
- 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
Simplified US Court System Chart
Draw correctly
Basic Principle of Court Org.
Types of Jurisdiction:
-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
Trial Courts and Appellate Courts
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 .
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”
3 categories of cases a federal court hears:
- Federal issue:
Federal law
Banks
Cross border
Petitions of habeas corpus - Federal gov is a party in case
Ex: US v. Nixon - 2 citizens of different states & high monetary value > $75,000
Courts of General Jurisdiction: district courts
Courts of Limited Jurisdiction: tax courts
3 categories of cases a federal court hears
- Federal Issue:
Federal law
Banks
Cross border
Petitions of habeas corpus - Federal gov is a party in case
Ex: US v. Nixon - 2 citizens of different states & high monetary value > $75,000
District and Trial Courts make policy but their..
decisions do NOT set legal precedent.
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:
Trial courts do not have
precedential value. They can be influential to policy but that does not mean they will have a precedential affect.
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
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.
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.
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.
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)
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
The supreme court is made up of
1 Chief Justice - 8 associate justices
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
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
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.
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
Doctrine of Parens patriae:
Latin for state as parent
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:
Idealistic vs reality view of judges
Judges are given enormous responsibilities and caseloads even though they are normal people just like us.
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.
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.
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.
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.
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)
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
Judges want the public to see that the legal system is….
legitimate
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.
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)
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
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.
