Test 2

Question 1

Why are courts considered passive institutions?

Answer 1

The courts rely upon litigants and attorneys, not judges, to (1) file a case and (2) present legal arguments and evidence for courts to evaluate.

Question 2

Do judges always decide issues of law?

Answer 2

No

Question 3

Do judges always decide issues of fact?

Answer 3

Judges may decide issues of fact.

Question 4

Is this an issue of law or fact: Was the light green when Bob went through the intersection?

Answer 4

The law is not required to make this determination. It is a question of pure fact.

Question 5

Is this an issue of law or fact: What legal standard should the court apply to determine whether Bob may be liable for his actions?

Answer 5

The judge always decides (1) what the law says and (2) whether/how it applies to an established set of facts

Question 6

What is the Adversarial System?

Answer 6

Common Law

The role of judges is more passive.

The role of lawyers is more active.

Litigants/lawyers in trial courts determine what witnesses they call and the nature of the evidence they give.

Judges pronounce judgment based on the legal and factual arguments presented by litigants/lawyers.

Question 7

What is the Inquisitorial System

Answer 7

Civil Law

The role of judges is more active.

The role of lawyers is more passive.

The trial court judge determines what witnesses to call and is active in gathering evidence.

Judges pronounce judgment after being actively involved in gathering legal arguments and evidence.

Question 8

The strengths and weaknesses of an adversarial system?

Question 9

The strengths and weaknesses of an inquisitorial system?

Question 10

What does the Constitution say about the selection of judges?

Answer 10

Article II, Section 2 “[The President] shall have power, by and with advice and consent of the Senate, to nominate…judges of the Supreme Court.”

Article III judges are nominated by the President and confirmed by the Senate. *They can only be removed from office by impeachment.

Question 11

How many Supreme Court justices have been impeached?

Answer 11

One (Samuel Chase), but he was not removed from office by the Senate.

Question 12

Why was he impeached?

Answer 12

Political bias in decision making

Question 13

What’s the process of selecting Federal judges?

Answer 13

President nominates someone to be a federal judge.

Senate Judiciary Committee questions and investigates the nominee. Note: Nominees did not regularly appear before the Committee until John Marshall Harlan in 1955.

Judiciary Committee votes to send the nomination to the full Senate.

Senate confirms the nominee through a simple majority vote. Filibuster rule no longer applies.

Question 14

What does research day the President is more likely to choose in Supreme Court nominees?

Answer 14

• The President is more likely to moderate their ideological preferences for court nominations when the Senate is controlled by the opposing party.
• The President is more likely nominate Supreme Court justices with substantial judge experience (as opposed to other political experience) when the Senate is controlled by the opposing party.
• The President is more likely to select nominees who are endorsed by members of Congress.
• The President is more likely to select nominees who are young enough to remain on the courts for a long time, but who are old enough to avoid criticism for lack of experience.

Question 15

What are 4 considerations of Supreme Court nominees
‘

Answer 15

• Senatorial Courtesy: Senators from a judge’s home state can voice support or objection to a potential nominee. The President will consider the objections of Senator’s from his own party.
• Vetting/Background Issues: Court nominees undergo an extensive background vetting process. Potential nominees with background issues may not be selected
• Interest Group Support: Liberal and conservative interest groups may voice support or objection to nominees. Ex. The Federalist Society, for example, has actively supported/vetted potential nominees by Republican presidents.
• American Bar Association Ratings: The ABA provides ratings of judges, which have been considered by Presidents. Presidents who are Democrats have been more likely to consider these ratings than presidents who are Republicans.

Question 16

Did Bork start the politicization of the Courts?

Answer 16

No, while Bork exacerbated the focus on ideology, the trend began in the 1950s with the Warren Court.

Question 17

Even though Republicans have had more opportunity than Democrats to appoint Supreme Court Justices, why could Republicans not until now create a solid conservative majority?

Answer 17

*Divided government

*Ideological conversions

*Senate filibuster rules
*Note: The Senate has now discarded the filibuster for judicial nominations.

Question 18

What are the 4 Most Common Selection Methods of State Judge Selection?

Answer 18

Partisan Elections

Nonpartisan Elections

Appointment and Reappointment

Merit Commission/Missouri Plan

Question 19

Partisan Elections

Answer 19

The different political parties endorse judicial candidates to run in contested elections with party labels.
* Judges must run again in partisan elections for subsequent terms.

Question 20

Nonpartisan Elections

Answer 20

Judicial candidates run in contested elections without party endorsements or labels. * Judges must run again in non-partisan elections for subsequent terms.

Question 21

Appointment and Reappointment

Answer 21

Governor and/or Legislature appoints and then reappoints judges for subsequent terms.

Question 22

Merit Commission/Missouri Plan

Answer 22

A merit commission selects a list of candidates from which the governor chooses. * Judges run in uncontested retention election

Question 23

What are the strengths and weaknesses of different judge selection methods?

Answer 23

Independence Arguments
*The Federalist 78 argument: Judges should decide cases free from political pressures.
* Judges should be neutral in deciding the law.
* Judges should protect minority rights against majority will. *Money corrupts.
* If judges look like partisan hacks, the courts will lose legitimacy. *Thus, elections are bad.

Accountability Arguments
*We live in a democracy. Public officials should be accountable to the people for their actions. *Voters should be empowered to remove bad judges from office.
* Judge selection should occur in the public arena, rather than in secret.
*A democratically accountable institution is a legitimate institution.
*Thus, elections are good.

Question 24

How are voter participation and voter awareness of candidates in partisan elections compared to other models?

Answer 24

Higher voter participation in partisan elections. Less ballot “roll-off.”

More voter awareness of candidates in partisan elections where more money is spent.

Elected judges are just as qualified as appointed judges.

Question 25

What did Gibson find when researching courts and legislature elections?

Answer 25

*Finding 1: Campaign contributions can decrease legitimacy (for both courts and legislatures).

*Finding 2: No evidence that policy talk decreases legitimacy, at least in election states.

*Finding 3: No evidence that attacks decrease legitimacy for courts (but did decrease legitimacy for legislatures).

Question 26

Does the method of judicial selection influence how judges decide cases?

Answer 26

*Various research shows that elected judges may adhere more closely to public opinion than appointed judges in politically-salient cases (e.g., abortion, death penalty, criminal justice, etc.)

*Research suggests that judge selection methods matter less in cases that are not politically salient.

Question 27

Overview of Civil Process

Answer 27

Decision to File a Lawsuit

Service and Pleadings

Discovery

Motions

Pre-Trial Conference

Trial/Judgment

Appeal

Question 28

What are Civil Actions

Answer 28

Often referred to as “private law.”

Primarily involves resolution of disputes between private parties

Mostly defined by state law.

Question 29

Private Right of Action

Answer 29

“Whenprivateperson (as opposed to the state) is legally entitled to enforcerights established under astatute.” Ex. Discrimination suit

Question 30

David was an employee at a Walmart store in Texas. He claimed that the store discriminated against him and ultimately fired him because of his age. David claims that he was subjected to frequent taunts made by his direct supervisor, who called him an “old man.” Walmart claims that David was fired due to poor performance. He also alleges that Walmart had refused to make a reasonable accommodation for his diabetes, which he agues is discrimination based on disability. David alleges that Walmart’s conduct violated both state and federal employment discrimination laws and laws under the Americans with Disabilities Act (ADA).

Where can David file lawsuit? What are the legal claims? Factual allegations? Should he file a lawsuit?

Answer 30

Both state or federal court — pursue in state court in Texas

Violated state and federal laws about ADA and anti-discrimination on age

Need to prove intent for firing

Should he file a lawsuit? Depends what evidence there is and what money he could get

Question 31

Rules of Civil Procedure

Answer 31

Procedural Law v. Substantive Law
Substantive –Law that governs rights and obligations in society. Procedural –Law that establishes the rules of the court and that provide how litigation is to be conducted so that courts can determine substantive rights and obligations.

Federal Rules of Civil Procedure *Govern procedure for civil cases in the federal court system. *Originally adopted in 1938 pursuant to the Rules Enabling Act, which grants the judicial branch the power to promulgate and amend rules subject to congressional approval.

State Rules of Civil Procedure *States are responsible for their own civil procedure rules, but often use the federal rules as a guide.

Question 32

What is the first step in Civil Procedure?

Answer 32

Complaint “Pleading that initiates a lawsuit by setting forth the claim(s) for relief.”

Identifies the legal claims.

States alleged facts.

Makes a demand for relief (remedy)

Question 33

What is the second step in Civil Procedure?

Answer 33

Service of Process

Plaintiff(s) must serve a copy of (1) Complaint and (2) Summons on the Defendant(s).

Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution require prior notice and opportunity to participate.

Question 34

What is the third step in Civil Procedure?

Answer 34

Answer “A formal written statement by defendant(s) that admits or denies the allegations in the Complaint.”

Must abide by time deadlines.

Admits/denies the plaintiff’s allegations.

Sets forth defenses.

Includes any available counterclaims. What to avoid? Default Judgment

Question 35

What is the fourth step in Civil Procedure? What is not discoverable?

Answer 35

Discovery “The process by which parties request relevant information from each other to ‘discover’ pertinent facts.”

Standard of discovery: all relevant information that may lead to admissible evidence at trial

An open process mostly occurring outside of court.

What is not discoverable? Privileged Information
Ex. Attorney-client privilege –absolute privilege

Qualified privileges (e.g. doctor-patient relationship)

Question 36

What is a Default Judgment?

Answer 36

A binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. The failure to take action is the default.

Question 37

Methods of Discovery

Answer 37

Interrogatories: “written questions from one side in a lawsuit to another.”

Depositions: “A proceeding outside the courtroom in which a party or witness gives sworn testimony under oathbefore a court reporter.”

Requests for Production of Documents

Requests for Admission

Requests for a party to admit or deny a list of alleged facts.

Question 38

Subpoena

Answer 38

Order that compels discovery or attendance at trial

Question 39

What is the fifth step in Civil Procedure?

Answer 39

Motions: “Requests for a judge to make a ruling.”

Procedural Motions

Dispositive Motions

Default judgment

Summary judgment motions

Question 40

Procedural Motions

Answer 40

a wide variety of motions relating to the conduct of a case

Question 41

Dispositive Motions

Answer 41

request for final judgment in a case

Question 42

Summary judgment motions

Answer 42

requests judgment “as a matter of law.”

Question 43

What is the sixth step in Civil Procedure?

Answer 43

Pre-Trial Conference:
The judge may order the parties to appear before the court for one or all of the following purposes:

Discuss possibility of settlement

Streamline issues for trial *Handle pre-trial motions

Question 44

What is the seventh step in Civil Procedure?

Answer 44

Jury vs. Bench Trials

Rules of evidence

Preponderance of the evidence standard

Judgment

Post-judgment Question: Do I Appeal?

Question 45

Jury vs. Bench Trials

Answer 45

Seventh Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

Right not incorporated to the states under the 14th Amendment.

Civil juries generally have between 6 and 12 jurors, and a unanimous verdict is not necessarily required. These rules vary by jurisdiction.

Question 46

Rules of evidence

Answer 46

determine admissibility at trial –Example: Hearsay Rule.

Question 47

Preponderance of the evidence standard

Answer 47

“The judge or jury must be persuaded that the facts are more probably one way (the plaintiff’s way) than another (the defendant’s).

Question 48

Judgment

Answer 48

“Decision that determines the rights and responsibilities of the parties.” * Judgment v. enforcement of the judgment

Question 49

Hearsay Rule

Answer 49

Hearsay, in a legal forum, is an out-of-court statement which is being offered in court for the truth of what was asserted.

In most courts, hearsay evidence is inadmissible unless an exception to the hearsay rule applies

Question 50

4 Remedies in Civil Cases

Answer 50

Monetary/Compensatory Damages: Damages that compensate the plaintiff for losses due to the behavior of the defendant.

Punitive Damages: Some statutes allow plaintiffs to recover damages in excess of compensatory/monetary damages designed to “punish” the defendant for behavior that is especially harmful and willful.

Attorney Fees/Court Costs: Under the “American Rule” each party pays their own court costs and attorneys fees, but some statutes allow a successful plaintiff to recover fees from the defendant in certain cases. In contrast, under the “English Rule,” the losing party pays the winning party’s costs.

Equitable Damages/Injunctions: A non-monetary order from the Court that obligates a party to engage in certain conduct (positive injunction) or refrain from certain conduct (negative injunction).

Question 51

Alternative Dispute Resolution

Answer 51

Arbitration: “A process in which a disagreement between two or more parties is resolved by individuals called arbitrators.”

Binding –the parties are bound by the decision of the arbitrator.

Mediation: “use of a mediator to assist disputants in reaching compromise.” *Non-binding –the parties can reject the mediator’s proposals for settlement.

Informal Negotiation: The parties engage in informal discussions to resolve litigation. *Non-binding –the parties can walk away from informal negotiations without a settlement.