Judicial Process Exam 2

LOOK AT APPELLATE COURT NOTES IN CANVAS

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Types of Civil Cases

1.) Private Law- contract cases, personal injury, domestic relations, state and probate, and tort law 2.) Public Law- the government acting as government and preserving order, 20 million cases in states but handful of million reach the federal level

Goals of Civil Courts

1.) Settle disputes and grievances of the people 2.) Behavior modification and law imposes costs on certain types of behavior with the intent of stopping such behavior

Types of portrayals of lawyers (when Hollywood has paid attention to women lawyers, how Hollywood had treated women as lawyers)

1.Heroic lawyers 2. Shyster lawyers - disreputable 3. Fallen Idols - falls from a position of prestige downward to the lower depths, usually due to alcohol, drugs, or bad women 4. Women lawyers Portrayed as unmarried or divorced, lonely, and frequently without children; if they do have kids, the relationship is often estranged Incompetent and unethical attorneys who exercise poor judgement "Slept her way up the career ladder"

Fischer V University of Texas (2013,2015) what was the two cases and what did the SC decide on each?

2013 did not overturn the affirmative action program but was also given the tasks to prove beyond a reasonable doubt that the program was the only way to improve racial diversity on campus 2015 did not meet the standards given to them by the court in 2013 but still allowed to keep the program due to Scalia dying and Kennedy backed off though clearly frustrated

Lawrence V Texas. What did the court rule? How did it deal with the issue of precedent?

6-3 and noted that public opinion changes overtime to keep with evolving society. Bowers V Hardwick ruling was wrong then and is wrong now while still attempting to preserve stare decisis

how many cases does the US SC agree to hear annually

80

deposition

A deposition is the testimony of a witness taken under oath outside the court. As in the courtroom, the question-and-answer format is used. All parties to the case must be notified that the deposition is to be taken, so that their attorneys may be present to cross-examine the witness.

Jessie McKim Story

A homicide he didn't commit and was falsely imprisoned, new evidence reveals victim ODed, sentenced to life in prison without parole, remains in prison regardless of new evidence

Product Liability

A second important subfield of tort law, product liability, is often seen as an effective way to hold corporations accountable for injuries caused by defective foods, toys, appliances, automobiles, drugs, and a host of other products.

Medical Malpractice

A third important subfield of tort law is medical malpractice. Courts generally use the traditional negligence standard rather than the strict liability doctrine in resolving medical malpractice suits. This means that the law does not attempt to make doctors guarantee successful treatment, but instead makes the doctor liable if the patient can prove that the physician failed to perform in a manner consistent with accepted methods of medical practice.

Bakke V Regents of University of CA Davis? Controlling opinion, what does it mean and what was the opinion?

Affirmative action can be constitutional if it meets certain standards. Cannot be a quota and if race is not the number one factor. Controlling opinion is similar to a plurality opinion in that there is not a majority but several judges side with certain points on the most popular opinion

Judge Roy Moore

Alabama Chief Justice that was removed from his chief justice for not removing a monument of the ten commandments

Ruling of the losers of cases can make

Alternative to litigation 1.) Direct negotiation 2.) Formal mediation 3.) Formal arbitration This is cheaper and quicker but bad because it is not always voluntary and terms and services may apply

Small Claims Courts?

Alternative to trial Most claims in court are not high stakes 1/5 go to claims courts

Lawyers as pivotal characters in the resolution of legal contests

America a society where alleged wrongs are settled by law rather than through mediation or arbitration

small group analysis

As applied to the judiciary, most small-group analysis is based on the thesis that judges want to influence the judgments of their colleagues and to be on the winning side as often as possible.

Batson V Kentucky and Foster V Chatman

Both cases involve jurors and selecting a jury involving racial discrimination and peremptory challenges

Gaines Case

Case in Missouri that led to several litigation on civil rights under education. Gaines applied to law school in Mizzou but was denied saying it was against the constitution of Missouri, though it was never in the constitution

Obergefell V Hodges? How is Goodridge V Department of Public Health connected to this case? How are US V Windsor and Hollingsworth V Perry connected to this case? What did the court rule on this case?

Case that established same sex marriage as constitutionally protected at the state level. Court ruled a 5-4 decision with 4 very angry decenters saying the courts were creating policy Goodridge V Department of Public Health first case at the state appellate court level to rule that same sex marriage is constitutional in Mass. Caused a ripple effect of states to put in their constitution that same sex marriage is not protected US V Windsor overturns the federal definition of man and woman marriage and Hollingsworth V Perry California legalization of gay marriage and the US Supreme Court kicked the case because law was not being defended in California

Civil cases more numerous than criminal cases.

Civil cases outnumber criminal cases in both the federal and state courts, although they generally attract less media attention.

cue theory

Cue theory is based on the assumption that the Supreme Court justices have neither the time nor the desire to wade through myriad pages in the thousands of petitions presented to them each year. Therefore, they presumably must have developed some sort of shortcut to help them select the petitions. The researchers hypothesized that the justices must look for cues in each petition—readily identifiable characteristics that trigger a positive response as they skim through the cumbersome piles of legal documents.

Sam's Favorite

Derek

Explanation to people avoiding litigation

Don't believe they have a case Fear the cost of trial Control is lost to the court Ruins relationship with persons involved

Packer's dual model

Due process- appealed to liberals, Predicted on the presumption of innocence, advocated rights for those accused and charged, and prescribed treatment and rehabilitation for those convicted Crime-control-appeals to conservatives, expressed confidence that law enforcement personnel could apprehend criminals and reduce street crime. Favored community security over individual rights and punishment over treatment.

Why political science cares about civil cases

Focus of politics Political contention

Gratz V Bollinger and Grutter V Bollinger in Michigan? Compared two different stances on affirmative action and what were the decisions?

Gratz V Bollinger was a 6-3 decision saying that the quota on the undergraduate program was unconstitutional Grutter V Bollinger was a 5-4 that race can be a factor just not the number one factor in admission to the school. Sarah Day O'Connor stated affirmative action programs should have an end in sight and not requiring them in the future

what the legal culture represents

Images seeking popular acceptance

Probate Court

In many jurisdictions probate courts handle the settlement of estates and the contesting of wills.

How litigious are people in US?

Increase in litigation since the 60's but decreased around 97 Increase was due to Civil Rights cases and increase on legal fees

Jackson Women's Health Organization V Currier link to Gaines V Canada

It was used as the precedent because it denied equal opportunity to the service

Participants of Civil Cases

Judges-spend time hearing cases Lawyers-have substantial stakes involved Parties-Plaintiff and defendent

motions a losing party in a civil case might try to file

Judgment notwithstanding the verdict; motion for new trial; relief from judgement

sources of influence on judicial decision making

Legal subculture and democratic subculture- influenced by public opinion, political party affiliation, localism, pressure from govt officials

Examples of the western as legal text

Must include the "geography of law", such as scenes involving trials and courtrooms, juries and jury rooms, law offices, lawyers and clients, and sometimes prisons o Must use the language of the law, that is, the legal terminology and, if required by the legal culture, the necessary dress, such as wigs and gowns required in English courtrooms o Its major characters must work in the legal system, practicing law or attending law school o Must express the "authority of law", namely, that its treatment of the law and its practitioners must be authentic and pay due respect to the laws power and responsibilities

is there a constitutional right to counsel in civil cases?

No constitutional right to counsel, but a lot of states have it written in their constitution

Everyone wants to be plaintiff over defendant

Notion that people are sue-happy?

which side in a civil case usually presents its case first

Plaintiff

what case did the 16th amendment overturn?

Pollock V. Farmers Loan & Trust Co.

Whole Woman's Health V Hellerstedt? What was the Texas law? How did the Court rule? How did it effect Casey? Surprising decisions?

Put undo burden standards on abortion clinics to make them have hospital standard rooms and doctors for abortion clinics had to have admission privileges to the local hospital. Decision was 6-2 on places undo burden on abortion clinics. Mississippi would have removed all abortion clinics in the state but Texas would have closed several down. Used Gaines V Canada as precedent because it would not allow equal opportunity for citizens. Very controversial because state does not provide service. Court strikes down both standards implemented by the laws

DC v Heller and McDonald V Chicago? Did these cases resolve the gun issue? Why were their two separate cases over the same issue? What amendments are involved in these decisions?

Question asked was does an individual not affiliated with the militia have the right to own a firearm for self-defense? DC V Heller answered yes in a 5-4 decision that it confers with the second amendment McDonald V Chicago was needed to answer the same question again but on the state level in a 5-4 decision stating the second amendment upholds the right to self-defense Both majority and dissenting agree this decision opens a plethora of future litigation related to guns

ways of analyzing judicial decision making

Realist-behavioralist: judges are influenced in their decision making by such factors as party affiliation, local values and attitudes, public opinion, and pressure from legislative and executive branches

Arbitration

Resolves the act of a trial but also leads to terms and services with little to no say legally on how to continue

Impact of changing public opinion in the 1970s on movies made

Started to include more women lawyers Americans believed the courts were too lenient with criminals Dirty Harry and Death wish- both testify to traditional hollywood rule of continuing to produce similar kinds of films until public uninterested Both have urban vigilantes

Arbitration

The arbitration process is similar to going to court. After listening to both parties in a dispute, an impartial person, called an arbitrator, decides how the controversy should be resolved. There is no judge or jury. Instead, the arbitrator, selected by both parties, makes the final decision.

rational choice theory

The rational choice theory by no means rejects the basic assumptions of attitude theory. Rational choice theorists generally agree that appellate court jurists are primarily motivated by their personal, deeply felt attitudes about public policy and vote accordingly in their judicial decisions.

stare decisis

The sacred doctrine of stare decisis ("stand by what has been decided") is a cardinal principle of the common law tradition.

Torts

Tort law may generally be described as the law of civil wrongs. It concerns conduct that causes injury and fails to measure up to some standard set by society. A number of subfields of tort law serve to illustrate the importance of this category of civil law.

Neil Gorsuch

Trumps Supreme Court nominee that was voted into the court in a 54-45 decision. Hearing process was your typical hearing after the Bork of refusing to answer most question or avoiding a direct answer on how they would vote on certain issues. Prior to being nominated to US SC he was a 10th circuit justice

Impact of Appellate Courts

Two Jobs 1.) Review lower courts- 2/3 left standing with slight modifications to rulings. US Supreme court often overturns many of the cases they take. This is on purpose because they pick the cases they hear 2.) Making ruling of laws- impacts policy on ruling of a given field. Reliant of public opinion and administrative agencies

Casey V Planned Parenthood plurality rule? What is plurality? How it effects Roe V Wade?

Upholds basis of Roe V Wade and keeps its precedent but also replaces Roe V Wade as abortion precedent. Also replaces the trimester framework with undue burden standard/viability framework Plurality ruling is when not a single opinion holds a majority but it receives more than another opinion in its support Fundamental right to abortion under privacy under the 14th amendment

Ten Commandment cases

Van Orden V Perry- Ten Commandments on statue outside of the state capital, constitutional because it was promotion for movie McCreary County V ACLU- Ten Commandments on courtroom walls, unconstitutional

John Grisham? Themes of work? Movie versions of his books? What seems to be the motivation of selling books?

Very political and legal issues; wrongful conviction, death penalty, etc. His first seven books have become movies. His motivation is first and foremost entertainment but also to present issues he finds important and to get readers to think about such issues

Bowers V Hardwick? How did the majority and the dissenting opinions differently characterize what was at stake with this case?

Violation of sodomy law in Georgia. Court ruled there was no constitutional protection for acts of sodomy in a 5-4

Webster V Reproductive Health Science (1989)

a. 5-4 in favor of Missouri upholding strict statues on abortion b. Scalia asks why not overturn Roe V Wade

William O Douglas

a. Author of the Griswold V Connecticut b. Impeachments: i. 1953 - Douglas imposed a stay of execution on a Russian spy who was selling nuclear info to Russia. Pissed all sorts of people off ii. Moral questioning- multiple divorces and not a serious attempt iii. 1970- Most serious Gerald Ford spoke on his removal for his lifestyle and his Presidency of the Parvin Foundation. Eventually it just fizzled out

Trinity Lutheran V Comer

a. Mootness issue based on Governor Greitens changing how the application process will work b. Clash between the establishment and free exercise clause- establishment government can't establish national religion; free exercise people can practice what they want. Clash is government can't give funding to religious institutions but argument is for a playground and education.

Roe V Wade

a. Rejection of the 9th to prefer the 14th amendment on personal liberty b. Established the trimester framework created by Blackman (appointed by Nixon) and attempted to balance the interests of personal rights and government interests/jurisdiction in abortion to 1.) protect mothers' health 2.) protecting "potential of human life" c. Trimester framework; First trimester for women's rights, second is if woman's life is at risk, third is guarantee protection of unborn fetus d. Question of standing as cannot sue as a third party (cannot sue for other pregnant women) and question of mootness as cannot decide hypothetical cases (person already gave birth)

Griswold V CT

a. Used penumbra (solar term) to describe rights derived by implication - individuals have a fundamental right to privacy b. Amendments for privacy: 1st, 5th, 9th, & 14th c. Black dissent says unless it is in the Constitution, it is not protected

fluidity in judicial decision making

appellate judges openness to change in position on case from their initial opinion at the beginning

what level of discretion do lower courts have in implementing a higher court's policy

have a great deal of independence from higher courts, simply have to keep electorate satisfied

Legal subculture

judges decisions are a product of traditional legal reasoning and adherence to precedent and judicial self-restraint

Real Property

normally refers to real estate—land, houses, and buildings—and has included growing crops

differences between judges with a narrow or broad view of the judicial role

o Broad: lawmakers take broad role, contend that they must make law in their decisions, because guidelines are often ambiguous o Narrow: law interpreters; don't believe judges should substitute judicial wisdom for rightful power of the elected branches of govt to make policy o Pragmatists/realists: middle of spectrum, believe on occasion they are obliged to make law, but for most cases a decision can be made by consulting precedents

Why lawyers make dramatic subjects

o Characters have capacity for good and evil o Actions affect the lives of others in significant ways o Images that represent the legal culture can reinforce its authority or undermine its popular support

strategies judges use when they don't like a higher court's ruling

o Defiance- rare o Avoid having to apply a policy o Apply policy as narrowly as possible

problems with John Grisham books and movies

o Lawyers in his novels are arrogant, greedy, unethical, and prosecutors treated with disrespect o Lack of believability

why is media influence compelling

o More people learn about the legal system from the visual arts, especially film and television, than from any firsthand experience o Reveals public thinking of the law o Films can serve as visual opportunities for filmmakers to challenge the conventional wisdom and establish doctrine

techniques/strategies that justices use to have an impact on the Supreme Court

o Persuasion on the merits- bc of training and values, can be swayed by articulate and well-reasoned argument from colleague o Bargaining- deciding what to put on majority or dissenting opinion o Threat of sanctions- the vote, the willingness to write a strong dissenting opinion, and the threat to "go public"

impact of Watergate

o Public dissatisfaction with both government and lawyers o Defining change in the image of lawyers- became more immoral and negative

what can Congress do to respond to a court decision it is unhappy with

o aid or hinder the implementation of a decision o alter a courts interpretation of the law o mount an attack on individual judges o Civil rights restoration act

job of the Chief Justice

o has primary responsibility for setting the agenda of the conference and traditionally is the first to offer an opinion about each case o Social leader- "attends to the emotional needs of his associates by affirming their values as individuals and as court members, especially when views are rejected from the majority" o Task leader- intellectual force behind the conference deliberations, focusing on the final decision and trying to keep the court consistent with itself o Have key role in setting up the "discuss list" o Assignment of opinions

three reasons to study films about the law and courts

o much of what appears in legal fiction is often based on facts, and the storylines are perused by specialists for accuracy about the law o fictionalized treatments relating to the law center around the search by individuals or groups to achieve justice for themselves or love ones o films can provide models for an ideal justice system, reflecting the publics preference for a just society

Personal injury

physical injury inflicted on a person's body, as opposed to damage to property or reputation.

parts of the legal subculture

reasoning, precedent, and restraint

attitude theory

the theory of appellate judge behavior that holds that once the researcher learns the judges basic set of attitudes, he or she can explain and predict how those judges will vote in the cases that come before them

when does a civil suit begin

to begin a civil suit, plaintiff files complaint or petition with the proper court