Judicial Process (Test 2)

Amicus curiae breif

"Friends of the courts" - at the Appellate level, even if they weren't involved in the original litigation, organizations and people submit briefs to the court. More briefs = more interest in case More interest = More likely to be make it to the supreme court

Consensual Crime

"Victimless crimes" - a crime that's against the law but both participating parties consent to it (ex: prostitution, drugs) Note: Not always victimless - people are forced into prostitution all the time

Where do Lawyers work?

- Law Firms - Corporate/in-ouse counsel - Government

Pre- Trial Steps (5)

1. Arrest 2. Initial Court Appearance 3. Grand Jury/ Preliminary Hearing 4. Arraignment 5. Plea Bargaining

Methods of Judicial Selection (3)

1. Merit 2. Appointment 3. Election

Presidential Factors in Nomination (4)

1. Political Ideology 2. Opportunity 3. Clout 4. Judicial Climate

Election Types (3)

1. Regular 2. Retention 3. Recall

Ways to Remove Judges (4)

1. Retirement 2. Investigations 3. Impeachment 4. Elections

Police Discretion Influences

1. Seriousness of offense 2. Victim cooperation 3. Victim complicit 4. Values of the large community ...adds an opportunity for bias - perceptions of acceptable "community behavior" lead to certain things being arrest-able in a rich neighborhood and normal in a poor one

Licensing & Bar Admission

A JD isn't much without admission to the Bar, and for that, you need to take the Bar Exam. AKA 2-3 days of testing & an application & oath Controlled by state law - the first part of the exam is on national law, but the second part is state law. You can only be licensed for one state at a time

What is a crime?

A crime is whatever the legislature defines as a crime Three types: Felony, misdemeanor, violation/infraction

Judicial Selection - Merit

A nominating commission is selected, and it puts together a list of recommended candidates. The Governor must chose from this list when making the appointment & their pick must be confirmed by the senate. Note: the way the state choses the commission varies - In NY it's four from the Assembly, Four by the Governor, and Four by the Chief Judge in the Court of Appeals

Partisan election +/-

A politically charged judicial election - judge is endorsed by a party More political, relatively accountable (because its an election, but produces less independent judges

Senate Judiciary Committee

A prestigious position usually packed with hard-liners of the current majority party. They review the nomination first and determine their fitness for the position. Their opinion is highly influential

Corporate/ In-house counsel

About 30% of lawyers work for corporations, banks, or whatever. There is no partner/associate division here - everyone works as consultants for the company A company's legal division will make sure that the company's practices follow the law

Booking Procedure

After a person is arrested, finger prints/mug shots/ information is taken to document them

Selection of Federal Judges - The Senate

After the Judiciary Committee, the nomination reaches the Senate floor. Need a majority to confirm nomination but 60 to agree to vote on it. Therefore filibuster.

US Solicitor General

Appears in court to represent the Federal government when it's suing or being sued. May also appeal federal government's court losses (mostly in Supreme Court cases). Maintains consistency with past legal decisions

Opportunity

Are there vacancies that the President can fill via appointment? Some presidents have a lot of vacancies, some have very few. ex: Carter had none and Reagan had many

Paralegals

Basically assistant attorneys under supervision of lawyers. Didn't always need licensing, but we're starting to see a trend in that direction and standardization of requirements. Currently: depending on the state, need on-the-job training or a 4-year degree.

History of Lawyers - Late 1800's

Beginning of standardization & pressure from lawyers for higher standards for the profession (more elite) Christopher Landgell - Harvard professor who created the base for modern professional legal training aka Case Method

Paralegal Abilities

CAN: factual & legal research, drafting documents, etc. CAN'T: Speak in court, represent anyone, sign legal docs

Ex post facto

Can't be tried for something you do today that becomes illegal tomorrow

Litigants

Civil lawsuits only - Plaintiff - the person or organization that decided to sue Defendant - the person being sued

Categories of Crime (5)

Conventional, Economic, Syndicated, Political, Consensual

Syndicated Crime

Crime carried out by an organization created for the purposes of crime. Usually specializes in a specific area (guns, drugs, prostitution, etc.)

Political Crime

Crimes against the government (taking bribes, treason) ex: Edward Snowden

Pre- Trial: Arrest

Deprivation of liberty by government - two types 1. With Warrant - Takes a lot of research and investigation -usually for white-collar crimes. The officer submits an affidavit to the court and, if there is probably cause, is issued a warrant for the person's arrest 2. Without a Warrant - more common, when an officer sees it happen.

Role of Prosecutor

Discretion, they choose weather or not to try you

Political Ideology

Does the judge's ideology play a factor in the President's decision? Maybe, maybe not. Depends on the president. ex: Clinton's focus was more on diversity and Truman's focus was on the judges' loyalty to him

Presidential Clout

Does the president have the charisma and sway with congress to get their nominees confirmed? This is easier for a president with an ideologically-aligned congress

State Attorney General

Elected, offers advisory opinions to other branches of government Mostly does civil work (ex: anti-tobacco legislation to regain money the government lost via medicaid) Will appear in court occasionally, and only in really serious/broad situation (like human trafficking)

Conventional Crime

Everyday crimes you hear about on the news (murder, rape, theft, etc.)

Prosecutor

Government employee US Attorneys (DA - district attorney) appointed for four year terms, can lose job with administration change, but not usually

Law Firms

Groups of lawyers who work together to meet the needs of clients - approx. 2/3 of lawyers work here -New Lawyers join as associates and stay this way for 7 or so years. If successful, they can buy into the partnership, BUT... It's an up or out kind of field. If you don't make partner you have to hit the road - Partners are (generally) older lawyers and owners of their firms Firms can be large or small They may do general legal work (usually only bigger firms that have the resources to handle this) or have more specialized areas

Four Factors: Obama Presidency

Ideology: Obama tends to pick moderately liberal, diverse judges Opportunity: Average & Congress wont' make more judge positions because of money problems Clout: Average, damaged by hyper-partisanship Climate: Inherited Bush II's conservative judges and a few liberal holdovers from the Clinton administration

Test Case

If an interest group's members have no standing, they may pull a test case. This is where they look for a plaintiff with the problem they want to address and then provide resources for the case ex: Brown v. Board, Wisconsin v. Yoder

Impeachment

If an investigation is successful, you can try the judge for misconduct/crimes to get them out of office via a commission or the legislature

Investigations

If the judge is doing something shady, you can launch an investigation. If the judge thinks they'll get in trouble for something, they might step down

Filibuster

If the majority doesn't have 60 votes, the minority can filibuster i.e. hold the floor until they can't. Democrats recently utilized the nuclear option by changing the rules so a filibuster can't be used on presidential nominees (with the exception of the SCOTUS). They were able to get more judges in office, but this may come back to haunt them in a conservative presidency

Public Defenders

In criminal cases (but not civil) you have the right to a lawyer. But being one of these lawyers is a thankless task. They're government employees, but they're underpaid and overworked. States may have a public defender's office (which only does this kind of work) or use assigned counsel.

Public Law

It involves the government - like when a person sues the state for being injured in a non-maintained park

Retention Election +/-

It makes judge selection more democratic, but also makes it a lot more political. On the other hand, a merit selection is a lot less democratic, but also less political. Neither way really produces better judges one way or the other

Nonpartisan election +/-

Judge runs on their ideas and qualifications rather than on which party that they belong to (not that it actually works that way - judges in nonpartisan elections still take money from various groups) More political, relatively accountable (because its an election, but produces less independent judges

Other Government Lawyers

Judges, Law Clerks, Legislative Assistants (help write laws, make sure there's no contradictors)

Violation/Infraction

Least serious kind of crime - usually just a fine or a night in jail

Merit Selection +/-

Less political, less democratic. Judges aren't necessarily accountable unless there's a retention election or re-appointment process. Produces more independent judges since they were chosen equally (in NY) by each branch of government. Has a slight edge in improving diversity, but nothing too notable.

Policy Formation - liberal v. conservative views

Liberals tend to advocate for more civil rights, more governmental regulation of the economy, and lighter criminal justice. Conservatives are the opposite. In any given term, the decisions seem to be based on the ideological composition of the court ex: FDR started with a very conservative court but had created a very liberal one by the time of his death

Federal Judge Qualification

Literally no formal ones, but informal requirements include: - Professional Competence - Political affiliation/tendency towards activism - Self selection (has let it be known that they're interested in the job) - Luck (right place time, right time) - Likelihood of confirmation (it's pointless to nominate someone if they have no chance of winning)

Private Law

Litigation between two private individuals or companies

Problems with the legal profession today

Lots of pressure to lower rates Small firms can't compete Public defenders overworked/underpaid Tight job market Educational process based more in theory than in practice, but lawyers are expected to be practically competent when they enter the market

Misdomeanor

Mid-level crime - punishable by a sentence shorter than a year

Policy Lawsuits

More prevalent at the Appellate level. Won't turn away retribution, but the main goal is to change the policy that caused the problem. These usually end early because it's more profitable to settle, but that defeats the purpose. Can be expensive, so these are generally backed by interest groups

Felony

Most serious kind of crime - punishable by more than a year of incarceration/ life sentence/ death penalty

History of Lawyers - Early US History

Mostly the same as the colonial period, but more schools (Proprietary -aka standalone - law schools). Creation of the first Bar Associations in america, but very little government oversight of programs

Judicial Socialization Process

No formal training process, but the skills, knowledge and values of the profession must be learned regardless Sometimes there's mentorship But the Federal Judicial Center also provides courses for ongoing education

Do police officers always make an arrest?

Nope - operate on police discretion

Assigned Counsel

Not a public defender, not a government employee, these are private lawyers that offer their services to the poor for minimal compensation. Some do it because they see it as their duty to the system, others really need the work. Other lawyers do pro bono work, meaning they'll do it for free as their duty to the legal system

Typical Responsibilities of Lawyers

Not as seen on TV - Lawyers: - Advise clients - Research & Investigate (Factual and Legal) - Draft documents - Negotiations - Most of their time is not spent in court

Selection of Federal Judges - Role of President

Not elected, appointed by the President. Often a way for a President to ensure their policies live on after they've left office Decision may be influenced by advisors, the Department of Justice, anyone really.

Due Process

Notice of why you're being held/tried & meaningful opportunity to be heard - Laws must clearly define crimes & punishments (aka no secret laws) - No ex post facto or bills of attainder

Senatorial Courtesy

Only for district judges, but senators can block judicial appointments for their state that they don't agree with

Bar Asscociation

Organization of Lawyers: 1. Rates potential judges (ratings are used for appointments) 2. Provides objective information 3. Accredits law schools & paralegal programs 4. Provides continuing education 5. Lobbying - for the interests of lawyers, usually on issues affecting the integrity of the legal system as a whole 6. Promoting ethical/professional responsibility (but each state has different standards Generally tries to maintain the health of the profession and of the legal system as a whole Has both state and local associations

Selection of Federal Judges - Interest Groups

Play a big part - can block nomination of judges who don't favor their policies or promote those who do The ABA, technically an interest group, can also affect this process because their judicial ratings are usually considered very highly.

Characteristics of Judges

Political affiliation varies by administration appointed in, but Diversity tends to be more for appointed rather than elected judges Wealth, education/prestige, ABA ratings increase as you go up the ladder from district to appeals to SCOTUS And Prior work experience is pretty much required at most levels (though oddly less so in the Supreme Court)

US Department of Justice (DOJ)

Prosecutes violations of federal law, and is responsible for enforcing all civil rights legislation Led by the US Attorney General.

Government Lawyers

Prosecutors/DA's, Public Defenders, US DOJ, State Attorneys General, etc.

Comingling

Putting the client's money & firm money in the same account. Considered an ethical violation.

Disbar

Revoke a lawyer's liscense

Rule of 80 and Senior Judge Status

Rule of 80 - if the judge's age and their # of years served adds to 80 or more, they may retire with full benefits (eliminates the financial excuse) Senior Judge Status - lets a judge stay 'active' - but in a part time, limited influence capacity. (eliminates some the damaged pride from becoming 'inactive')

History of Lawyers - Today

Schools must be accredited (by the ABA) and just having the education does not make you a lawyer (need to be certified). Takes about 3 years to earn a Juris Doctor (JD). Getting into law school - need undergraduate degree & good LSAT scores

Judicial Removal - Retierment

Setting a mandatory retirement age can force a judge out once they've reached it. However, they can still stay on part time and assist in a Senior Judge position

Class Action

Sort of like a test case, but gathers several people with similar problems to form a class action suit. The courts do not like these, so they don't get very far without an interest group.

Judicial Federalism - Due Process

States must offer the federal minimum of due process, but they may also offer greater protections to defendents

Suspend

Suspend a lawyer's license - may also carry a fine to the state or client. May require community service, rehab, etc.

Bill of attainder

Targets a specific group, not allowed.

Case Method (Legal Education)

Teaches you how to think like a lawyer, but not how to do the practical work associated with actually being one Relies on the Socratic method - students are given a case and they must answer a series of questions about it - little instruction provided in class Although - more schools are implementing practicals to actually teach students how to do this stuff instead of only teaching theory

It's not a Public Defender, and it isn't Assigned Counsel...

That's right! It's a paid criminal defense attorney. They're not cheap, but you usually get what you paid for. This isn't even close to an option for most people.

Actus reus

The bad act - there was an actual crime that was actually comitted

Mens rea

The bad intent - there was an actual crime (can't arrest people for thinking bad thoughts) committed with ill intent Charges get hazy when mens rea does - aka the difference between 1st degree murder (premeditated) and 2nd degree murder (not really premeditated because heat or passion or temporary insanity or whatever)

Traditional/ Compensatory lawsuits

The goal is to get some sort of retribution for the client. Doesn't address the overall issue.

Judicial Selection - Gubernatorial/Legislativa Appointment

The governor (or legislature) picks the person who gets the job, no election is held, no nomination commission is formed. This is a lot less common in present day

Retention Election

The judge serves for a set amount of time (one or two years) before another election is called on weather or not to keep them in office. If they win, they serve the rest of their term Note: NY doesn't have these. It instead has a re-appointment process

Stayed Punishment

The lawyer can continue practice, but may still have to meet the same requirements as if their license was suspended. If they don't, they get truly suspended

Why use the courts to change policy instead of the legislature?

The legislative route is very hard... but so is the Judicial However, in court, you must only persuade one (or one out of three) people to your side. In Congress, it's a LOT more. Court can also be used to bypass a stubborn legislature (like trying to get a southern legislature to revoke segregation)

US Attorney General

They don't argue cases, but function in an administrative role (i.e. making sure the DOJ functions) - may also give advisory opinions (mostly to the Executive Branch).

Elements of a Crime (2)

To be a crime, there must be Mens rea and Actus reus

Professional Misconduct

Top state courts set professional conduct rules & each state has a disciplinary board for when they're broken ex: NY Can file a complaint with the Appellate Division (4 in NY) Grievance Committee. If they find cause, they'll set up a hearing. An administrative judge acts as referee If it isn't just an ethics issue, when it's actually a CRIME, it's referred to the local DA

Law School Curruculum

Torts, contracts, Constitutional law, criminal law, property law, research + writing, ethics

Horsetrading

Trading certain positions (in this case judicial) for others. Ex: Two district judgeships were given to conservatives in exchange for one liberal appellate position

Initial Court Appearence

Usually by a lower court magistrate, within 48 hours (right to a speedy trial & to know WHY you're there) Asks if you have an attorney, if not, one is appointed Bail is set - leverage to keep defendant around. It is at the discretion of the Judge. More serious crimes = higher bail. Why provide it? You're innocent until proven guilty so they can't just lock you up. Also: space constraints and you can't help your attorney build your defense if you're locked up

History of Lawyers - Colonial Period

Were only one or two law schools in the colony & very few people went to college. Instead, did a thing called "Reading Law" - basically an internship that taught you how to be a lawyer. But standards varied by colony. Some (mostly the rich) also went to England for formal legal training.

Judicial Climate

What are the ideologies of the sitting federal judges? May not change during the President's tenure (b/c new judges tend to yield to the view of older ones) but as older judges retire (or die) the judiciary can be swayed in the president's direciton

Legal Services for the Poor

What do you do if you're being sued in a civil suit and can't afford a lawyer? 1. Pro se - represent yourself 2. Legal aid - organizations help the poor with this, but usually only in larger communities 3. Legal Services Corp - funnels federal grants into state/local groups that help poor people 4. Contingency fees - private lawyer that only is paid if you win monetary compensation, but you still have to pay other miscellaneous fees (like for filing court documents)

Recess Appointment

When the senate is really deadlocked and won't confirm any candidates, the President can make a recess appointment. This 'temporarily' puts someone in the judge's position, but often results in people getting used to the judge and just keeping them in office anyways. The president can also use these as threats.

Judicial Council (Disciplinary)

You can bring a complaint about a specific judge to them. In theory, if the complaint has merit they will create an investigation - but this doesn't actually happen.

Removal of Judges

You can't get rid of a federal judge unless you impeach them When investigating for impeachment, the judge may preemptively resign if they think it'll lead to impeachment But! You can try to get them to retire (ex: Rule of 80) or allow for senior judge status

Miranda Rights

You must be read your rights when you are arrested. Specifically, the right to an attorney and the right to remain silent

Economic Crime

aka "white-collar" crime Theft, but on a grand scale. (tax evasion, money laundering, insurance fraud, insider trading, ponzi schemes)

Interest Groups in Litigation

ex: NCAAP, NRA, ACLU May be the plaintiff if their members have standing