Judicial Processes Exam 1 Notes

Expected Outcomes of Adversarial System:

"We obtain the fairest decision when 2 men or women ague, as unfairly as possible, on opposite sides, for the it is certain that no important consideration will escape notice." - The expectation is that the outcome represents something best for society and the individual. The outcomes are treated as having the highest possible legitimacy.

Bankruptcy Judges

- 352, they also aid the district courts - before 1973 they were called "bankruptcy referees" Bankruptcy Reform act of 1978: - Bankruptcy cases filed in bankruptcy court - Presidential nomination, Senate confirmation, 14 yr term - Expanded the jurisdiction

Civil Law

- Also called the Roman Law, Romano-Germanic law, or continental law - Oldest family of law! The idea of a code dates back to code of Hammurabi, 1754 B.C. - Napoleonic Code (1804) recognized the legal equality of all citizens, promoted economic enterprise, and secularized family law - Napoleon wanted laws so clear they could be understood even by the lowliest peasant Civil Law is found in France, Germany, Italy, Spain, and S. America - Starts with a code: the compilation of laws according to subject matter - The code expressed the rules of law as general principles and provides answers for all disputes

Origins of Critical Race Theory

- An offshoot of critical legal studies. CLS was too negative and dismissive of legal rights - began in Madison, Wisconsin, 1989 Important tenant: Conceptions of racism and racial subordination understood by traditional legal discourse (and dominant white majority) are neither neutral nor sufficient to overcome effects of centuries of legal oppression

Diversity Jurisdiction:

- Applies only to civil cases and is unrelated to the presence of a question of federal law - To quality under diversity jurisdiction, a case must involve parties from different states and an amount in controversy that exceeds $75,000 The doctrine was put in place v. early out of fear that the state courts would be too prejudiced against out of state plaintiffs. Do we still need it?

How did Critical Legal Studies begin?

- At the University of Wisconsin in 1977, it became prominent at Yale law School, popularized by the "Crits" - Influenced by European Marxists and 1960s activism - Law is politics, pure and simple; legal decisions are deeply embedded in politics and personal bias

Analytical Jurisprudence v. Natural Law

- Austin responded to the mysticism and metaphysics of the natural law tradition handed down by ppl like Aristotle and St. Thomas Aquinas - For natural law theorists, true law is right reason in agreement with nature; it is of universal application, unchanging, and ever lasting. The author is God. - But invoking natural law can be problematic. Aristotle defended slavery on these grounds

"Judges cannot escape that current stream of tendency any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them - inherited instincts, traditional beliefs acquired convictions; and the result is an outlook on life, a concept of social needs...In this mental background every problem finds its setting. We may try to see things as objectively as we plesae. None the less, we can never."

- Benjamin Cardozo

Cases of Prisoner Petitions in Federal District Courts

- Controversial area - Federal or state prisoners may file a civil suit alleging that their rights under federal law are being violated

Common Law Feature: Precedent

- Court decision serves as authority for deciding similar question of law in a later case. Also referred to as "state decisis," or "let the decision stand." Sometimes statements in a case are not interpreted as precedent (obiter dicta, the part of the reasoning in a judicial opinion that is unnecessary to resolve the case)

Hierarchical Jurisdiction

- Courts differ in their functions and responsibilities - Original jurisdiction means a court has the authority to hear a case (trial) and decide it - Appellate jurisdiction means that a court has the power to review cases that have already been decided by another court

Legal Realism

- Emerged during 1930s - Some consider it a radical wing of sociological jurisprudence, others consider it a separate school entirely - Advocated by Jerome Frank, Karl Llewellyh, and others. - Realism extended the SJ argument to suggest that judges and juries represent bias and are positioned to influenced what the law means

Common Law and The Case Method

- For analytical jurisprudence, courts apply a simple and logical formula for decision making: FACTS X RULE = DECISION - Analytical jurisprudence dominated through the 1800s Christopher Columbus Langdell, Dean of Harvard Law, developed Case method 1870-1895 - Collected appellate court decisions and organized them by topic to demonstrate the logical development of the law: torts, contracts, property, criminal, constitutional - Vast majority of students and faculty decided case method was "abomination" - But by using common law doctrines and reason, appellate courts applied law from general principles to specific facts

Geographical Jurisdiction

- Geographical area from which courts are authorized to hear and decide disputes - Boundaries typically follow lines of other gov. bodies - Extradition involves the surrender by one state (or country) of an individual accused of a crime in another jurisdiction

U.S. Supreme Court

- Highest court in the nation - 9 justices (1 chief justice, 8 associate justices) - Most cases come through a "writ of certiorari": an order to lower court to send up the case records The court mostly decides which cases it will review - Uses the rule of 4: 4 judges must vote to hear a case before it's placed on the docket - A very small % of requests for appeals are granted - Cases must present a federal question Cases often involve conflicting legal doctrines. Despite the small #, the decisions are very important, setting policy for the entire nation

Procedural justice encompasses:

- How courts are administered - How cases are processed - Due process (right to attorney, protection from coerced confessions)

Adversary Process: Party Prosecution

- In criminal cases, it's State or People v. the defendant - In civil cases: parties are more complex. may be individual v. individual, individual v corporation, etc. - Litigants and lawyers control the case. They do the research, construct the arguments, present and question the witnesses In criminal law, the defense lawyer is to use ALL her energy / knowledge to win the case for her client, regardless of innocence or personal feelings. The adversary process assumes that the opposing side will have a lawyer equally aggressive

An appellate court ensures that the trial court correctly interpreted and applied the law

- In deciding cases, appellate courts re-examine old rules, devise new ones, and interpret past court decisions and statutory language - Appellate courts and trial courts operate very differently. - Appellate courts have no witnesses, no trials are conducted, and juries are never used. - Appellate judges often provide witness opinions justifying their decisions

Civil Law Structures and Process

- Inquisitorial System: Judges, not lawyers, dominate court hearings (e.g. call witnesses) - Judges are career bureaucrats who have not been practicing lawyers - Juries are not generally used - mixed tribunals of judges and lay citizens are used in serious criminal cases

Cases of Diversity Jurisdiction in US District Courts

- Involve suits between citizens of different states or a US citizen and a foreign citizen - Congress increased the amt in controversy requirement to $75,000

Adversary process: Neutral / Passive Decision Maker

- Judge / jury must be free from outside pressure in order to make an objective and fair decision - Judicial independence is one of the most important normative values of our legal system - Judicial independence in the U.S. generally means institutional separation and long terms - In most courts, jurors cannot take notes or ask questions

Subject Matter Jurisdiction

- Many courts are limited to cases dealing with particular substantive issues (e.g. misdemeanors, small claims, bankruptcies) - For federal courts, subject matter is limited to federal questions

Benjamin Cardozo: The Nature of the Judicial Process

- Method of philosophy: precedent, logic, inductive reasoning - History: evolution. Directive force of history may trump logic - Tradition: we look to custom, not so much for the creation of rules, but for the tests and standards that determine how established rules should be applied

Court Organization: Trial and Appellate Courts

- Most all cases, civil or criminal, begin in trial court - The losing party at trial may request an appellate review of the case

A possible critique of Critical Legal Studies:

- One one hand, CLS claims the law is inconsistent and unpredictable, and not determined by any socio-economic forces. On the other hand, CLS claims that law upholds and strengthens existing dominant social and economic arrangements. But these claims, on their face, are contradictory. Also, CLS does not provide much hope for reform or other alternatives

Adversary Process: Highly Structured Court Procedures

- Rules of procedure stipulate how to initiate lawsuits and prosecute them - Rules of evidence determine what can / cannot be introduced to support a case - Rules of ethics also govern the behavior of lawyers and judges

Principles of Legal Realism

- Rules: Precedents can help narrow the range of legal choices judges face when they resolve cases - Facts: No 2 cases are factually similar in all respects. Thus the rule of the former case cannot simply be applied - Too much focus on appellate decision making. Realists examined the TRIAL COURTS where facts are established - Realists suggested that facts are merely guesses and that legal tactics can hide true facts - Challenged the existence of a logical, objective decision-making process

Potential Problem with Adversarial Process: The goal is not really Truth, but VICTORY

- Since winning the case is the lawyer's goal, the truth may be lost The adversary process is like "throwing pepper in a surgeon's eyes during an operation." - Jerome Frank. Frank suggested that an experienced lawyer uses all sorts of strategies to minimize the effect of testimony disadvantageous to her client, even when a lawyer has no doubt of the accuracy / honest of the testimony. Legal tactics may include the presentation of a "false defense"

Social, economic, and political forces in the law:

- The circles of the legal system are constantly interacting with the social, economic, and political forces at work in the U.S. - Examples of this: Social attitudes about marijuana, George Floyd leading to police reform, Political and economic forces affect courts and their business

Outer ring of the law:

- The consumers of the law are the 1000s of citizens that call the police, file a lawsuit, join interest groups, etc. They provide raw material for courts. - Some consumers are individuals filing lawsuits, but they may also be groups or businesses

Judiciary Act of 1789

- The first bill introduced in Congress - Provided the foundation for the current 3-tier system of federal courts - Created 3 Circuit, each composed of 2 Supreme Court Justices and a District Judge, and 13 district courts, each presided over by one judge; also described jurisdiction of each court Act was a victory for Federalists, and compromise: - District court boundaries drawn along state lines - By custom, district court judges would be residents of their districtions - Lower courts had limited jurisdiction

British Common Law Influence on American Law

- The first systematic and analytic treatise on English common law: William Blackstone's (1723-1780) commentaries on the law of England - In America, Blackstone's work now functions as the definitive source for common law precedents prior to the existence of the U.S.

The inner ring of the law:

- The innermost ring is made up of the institutions of law: law and courts - Law is a body of rules, enacted by public officials, and backed by the force of the state. - Courts are places where judges work; courts decide disputes based on law. All 3 branches of gov. are involved in deciding what the law is - Courts do not just decide law; they make it too. They are involved in fitting law to the needs of a dynamic society

Middle ring of the law:

- The interpreters of law include primarily lawyers and judges - Lawyers interpret the law to their clients and are the principal gatekeepers (doorkeepers) of the legal system - Judges are society's authoritative interpreters of the law. HOW they are and should be selected is a debate.

More Principles of Critical Legal Studies

- The subjective decision-making that goes on behind the supposedly objective rule of law must be exposed in order to undermine the conservative rulings of judges which are masked under notions of impartiality and fairness - Law reflects the dominant values in society and legitimates the status quo. The law and legal system serve the wealthy and powerful and works against the disadvantages in society: minorities, women, and the poor

Common Law: Uncodified Rules and Regulation

- There is no one place to look for "the law" - Law emerges through precedent found in court decisions - Reason by analogy: allows leeway in formulating new legal rules or modifying old ones - Judges may distinguish a current case from previous ones

The Constitutional Convention: Article III

- There was a consensus that a national judiciary should be established - Despite agreement on the need for a national judicial branch, there was disagreement over the form and authority it should take - Compromise resulted in a brief and vaguely worded Article III: "The Judicial Power of the US shall be vested in One Supreme Court, an din such inferior courts as the Congress may from time to time ordain and establish."

Origins of Common Law

- Traces its roots to medieval England - After the Norman conquest (1066), the King's courts began to apply the common customs of the entire realm rather than 1 village - Came to be viewed as opposed to special law. It was common to the entire land As it developed, common law remedies were confined almost entirely to money damages and the procedures became increasingly complex, rigid, and costly. As a result, an alternative system of law, EQUITY, developed alongside common law

Common Law Characteristics: Judge-Made Law

- Until the late 19th century, there was no important body of statutory law in the U.S. - Common law courts developed rights in the area of property, torts, wills, and contracts, and they defined such felonies as murder, manslaughter, arson, robbery, larceny, and rape - Common laws most distinctive feature is the development of law FROM judicial systems

Court Organization: Dual Court System

- We have one national court system and separate court systems in each of the 50 states. - Federal courts are located in every state and territory - Federal courts do not exist on top of state courts but PARALLEL to them - Sometimes state and federal courts share judicial power over a case

Courts as legal institutions: innerring

- When you hear "law" you often think of "courts" - but courts involve more than law - The legal system encompasses an array of gov. institutions, key actors, and others - 3 concentric circles can be used to describe the elements of the legal system.

Substantive justice can mean:

- Winning your case - Each person receiving his or her due under the law - The final result of fairness, order, and equality - A general attempt to reduce arbitrariness - Assigning appropriate rewards and punishments

SOOO does Jurisprudence end in ENLIGHTENMENT?

- at a minimum, there is a relationship between the law, courts, and politics - no clear answer on which approach is the best. depends on our background, experience, and values

Legal Process Arguments:

1. A focus on neutral principles as guides to judicial decision making process 2. A focus on reasoned elaboration (philosophy) as a method of adjucation 3. Examines comparative institutional competence (legislative, executive courts) in considering which institutions and process ought to be employed in legal decision making 4. A preference for restrained innovation in the implementation and development of law and legal reasoning. - Sounds similar to analytical jurisprudence or classical legal thought _

3 key elements of Adversary Process

1. A neutral and passive decision-maker 2. Party Prosecution 3. Highly structured court procedures for testing evidence

Two major types of legal traditions in the Western Hemisphere:

1. Common law 2. Civil Law - Most of the 195 nations have civil law systems

Techniques of a False Defense

1. Cross-examine truthful witnesses to undermine credibility 2. Direct presentation of evidence used to discredit truthful evidence or lend credence to a false theory 3. Coach witnesses to hide defects in testimony 4. Use of gestures / voice inflection to cast doubt on a witness's credibility 5. Make the defendant look presentable and sympathetic (nice clothes, lots of friends) 6. Offer "excuses" for the defendant's behavior

Why do we maintain the Adversary Process?

1. Cultural reasons: Americans tend to favor competition and individualism 2. Criminal Law examples typically used to support the "fight" theory. We want to protect individual rights in the face of state power and make the state prove its case beyond a reasonable doubt.

Major Components of U.S. Law:

1. Federalism: - National - State - Local 2. Multiple Sources of Law: - Constitutions - Statutes - Administrative Regulations 3. Public Law and Private Law - International administrative - Constitutional - Criminal - Tort - Contract - Property - Inheritance 4. Civil Law and Criminal Law - Divorce - Felony - Property - Misdemeanor 5. Substantive law and Procedural Law - Rights - Responsibilities - Due process of law - Rules of Court 6. Remedies: - Judgment - Monetary damages - Injunction 7. Doctrine of Access: - Jurisdiction - Standing to sue - Political Question - Justiciability - Class action

2 main arguments of Critical Legal Studies:

1. Indeterminacy thesis: Law is internally and externally inconsistent 2. Ideology thesis: Law is ideological and partisan rather than neutral and independent.

There are 2 principle approaches to understanding law, courts, and legal reasoning:

1. Internal theories of law (views court as internal system) - Natural Law - Legal positivism 2. Social theories of law - Sociological jurisprudence - Legal realism - Critical Legal Studies / Critical Race theory

3 Principles of Court Organization:

1. Jurisdiction 2. Dual court system 3. Trial and appellate courts

Interpreting the law: some areas of law are relatively settled, and others are not - creating discretionary choices

1. Meaning of the words: legislature and judges use vague language that leaves considerable room for interpretation. Ex: The AOA defines a person with a disability as a person who has physical or mental impairment that substantially limits one or more major life activity 2. Conflicting laws: it's not uncommon to find one law conflicting with another (EX: allowing free exercise of religion may appear to be the establishment of religion by the state) 3. Gaps in the law: despite all of our laws, situations do arise that are not contemplated, the discretionary choices courts make about these matters are important

Process of 3-Judge District Courts:

1. Party files suit in District courts 2. Judge assigned to the case notifies the chief judge of the Court of Appeals covering that district 3. The chief judge appoints two other judges to sit with the judge assigned (1 or 2 must be a member of Court of Appeals) 4. Appeals go directly to the Supreme Court

Our decentralized legal system

1. Structural level: - Dual court system - Federal and state courts - Trial and appellate 2. Sources of law: - Legislative (statutes) - Executive (orders and regulations) - Judicial (case law) - Constitutional 3. Substantive level: - Procedure due process - Substantive law - Distinctions in law (EX: murder 1st degree, murder 2nd degree, voluntary manslaughter, involuntary manslaughter)

Main arguments of Critical Race Theory

1. The law is not neutral or color blind 2. Hate speech is discrimination that harms and should be restricted 3. Racism permeates the criminal justice system as evidenced by racial profiling and police abuse of discretion 4. The War on Drugs unfairly targets minority populations, Black jurors in drug cases should vote to acquit 5. Addressing racism will end the oppression of people of color 6. CRT has diversified into Latino/a Crits, Queer studies, and Native American schols

Advantages of the Adversary System

1. Viewed as fair and less prone to abuse 2. It observes the rights of both the prosecution / plaintiff and defendant 3. Allows both sides to be passionate advocates for their case 4. In adversarial presentation, the Truth will come out!

Structure of U.S. District Courts

94 U.S. district courts - At least one in each state - No boundary crosses statelines - Many hold courts in various locations called divisions, ranging from 1-8 667 Judgeships - Nominated by president, confirmed by US Senate, serve during "good behavior" - Number depends on workload (2 in Wyoming, 28 in Southern district of NYC) - Assisted by clerks, administrative assistants, court reporters, probation officers, etc. Large districts may have a federal public defender. Each district has a U.S. attorney - US attorney = nominated by the president, confirmed by the Senate, but serves at the pleasure of Prez. - Prosecutes violations of federal law and represents the gov. in civil cases

U.S. Court of Appeals

A court within the second tier of the three-tiered federal court system, to which decisions of the district courts and federal agencies may be appealed for review. - Created in 1891 to reduce Supreme Court workload - 13 Courts of Appeals - 179 judges, nominated by president, confirmed by Senate, serve during good behavior - size of courts varies - each circuit has a chief judge and staff, including a circuit executive Normally uses 3 judge rotating panels - May include visiting judges & senior judges By majority vote, all judges in circuit may sit together - en blanc - to hear or rehear a case

Should lawyers be prevented from presenting a "False Defense"?

ABA Standards for Criminal Justice: "Defense counsel should not knowingly make a false statement of fact / law or offer false evidence, to a court, lawyer, witness, or third party. It is not a false statement for defense counsel to suggest inferences that may reasonably be drawn from the evidence."

What is a "False Defense?"

An attempt to convince a judge / jury that facts known by a lawyer to be TRUE are actually NOT TRUE, and that facts known to be FALSE are actually TRUE. - Basically, a lawyer seeks to discredit adverse witnesses and hide defects of witnesses favorable to her client. The code of ethics of the legal profession instructs lawyers not to lie or engage in fraud. However, it is permissible to mislead opponents, to do anything short of lying, in order to help your client

"Law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to begin in the streets, and to steal bread."

Anatole France, 1844-1924, French poet

John Austin, Analytical Jurisprudence

Austin: 1790-1859 - English legal philosopher, developed one of the most noted internal theories of law called analytical jurisprudence, or legal positivism - Austin: Law is real and knowable body of rules that is distinct from morals or social forces. Law can be found through deductive reasoning (from general to specific). - Positive Law simply the will of the sovereign backed by the force of the state. We are, then, a "government of laws, not men or women."

Donald Black, in "The Behavior of the Law" defines law as governmental social control.

By social control, he means rules and processes which try to encourage good behavior or discourage bad conduct

Cases of Federal Questions in U.S. District Courts

Case that contains a major issue involving the US Constitution, or US laws or treaties - most involve a congressional statute (e.g. Social Security, labor, ADA, civil rights laws, etc) Other common federal questions include cases involving voting rights, patent claims, copyright infringements, naturalization procedures, and admiralty disputes

Caseload of U.S. District courts

Caseload is large but has slowed in recent years! - 2014: 408,875 Criminal and civil cases - 2019: Combined filings increased by 18,000 from 2018, to 376,762 - 70% are civil matters, only about 30% are criminal. - Largest category = drug cases, then immigration cases Many cases involved center around federal questions, diversity of citizenship, immigration, or prisoner petitions

Interpreting the Law: Discretionary Choices

Citizens typically misunderstand how judges and lawyers interpret and apply the law - it is NOT a series of written and readily located rules that cover situations

Sociological Jurisprudence

Emphasizes that courts are political institutions that are influenced by society. - Advocated by Roscoe Pound, Oliver Wendell Holmes, Benjamin Cardozo and Louis Brandeis - Pound argued that law was neither a set of immutable moral principles (natural law) nor was it to be deduced from logical principles (positivism) - "The life of the law is in its enforcement" - Distinction between "law in books" and "law in action;" To promote justice, law has to use more than internal logic and consider social and economic changes

EQUITY and American Adaptations

Equity means fair dealing and equitable remedies were more flexible (e.g. injunctions) - Colonists brought these principles to 'merica - Law was adapted to frontier society - By the 19th century, most states had merged their separate courts of law and equity (While England still had separate courts). Today, the term equity refers to case method.

Formula for decision making in sociological jurisprudence:

Facts x Rule X Social context = Decision

Muller v. Oregon (1908)

First case to use the "Brandeis brief"; recognized a 10-hour work day for women laundry workers on the grounds of health and community concerns. Example of sociological jurisprudence. Attorney Louis Brandeis elaborately detailed expert reports on the harmful physical, economic, and social effects of long working hours on women

Courts as political institutions:

Howard (1981) argues that courts are bifocal - both legal AND political - Courts are clearly legal institutions, interpreting and applying the law - BUT the law is often imprecise or weakly developed - Courts are clearly also political institutions, allocating values for society Politics is the "authoritative allocation of values for society" - the judiciary does this - Court decisions are determinations that settle controversies. They are authoritative and involve discretion and determine winners and losers.

Potential Problems with Adversary Process:

Inequality and Winner Takes All - If the plaintiff or defendant are poor, the quality of legal representation that he or she receives may be marginal. Gives one side an unfair advantage - Winner takes all solutions to disputes might be resolved more effectively through negotiation and compromise. Alternatives to AP: mediation, arbitration, and the inquisitorial style of civil law systems

Why did Legal Process Jurisprudence develop?

It was a response to Legal Realism - 1950s-1960s - Tries to find a third way between analytical jurisprudence and legal realism - Would help everyone focus not on the outcomes of legal decisions, but on the process of legal institutions, especially courts - Best illustrated by Henry M. Hart Jr. and Albert Sack's "the Legal Process: Basic Problems in the Making and Application of Law" (1958)

U.S. Magistrate Judges

Judicial officers appointed by the U.S. district courts to perform the duties formerly performed by U.S. commissioners and to assist the court by serving as special masters in civil actions, conducting pretrial or discovery proceedings, and conducting preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses. - They assist District Court judges - Created by Federal Magistrates Act of 1968 to reduce the workload of district court judges. - Selected by district court judges - full time are appointed for 8 years, part time 4 years, may be removed for "good cause" Magistrate judges perform wide variety of duties: - Preliminary stages of criminal cases, sentencing misdemeanor offenders - Supervising civil discovery

"Stare decisis is usually wise policy, because in most matters it ism ore important the applicable rule of law be settled than that it be settled right."

Justice Louis Brandeis

What is justice?

Justice is an abstract and variable concept. it often means keeping within the rules and procedures established between citizens and gov. Government action is ARBITRARY if decisions are made and communicated capriciously, meaning that people affected do not know what to expect before the decision is made and do not learn on what grounds it was made. - Due process has evolved to help control arbitrary decision making

Oliver Wendell Holmes Jr.

Known as the great Dissenter - Wrote over 2,000 opinions - He described sociological jurisprudence as: "The life of the law has not been logic; it has been experience."

Our textbook's definition of law:

Law is a body of rules enacted by public officials in a legitimate manner and backed by the force of the state

How many courts are there in the U.S.?

More than 17,000

Types of Law:

Public and Formal: - Act of Congress - Supreme Court Decision - Administrative regulation - Posted speed limit Public and Informal: - Actual speed limit - Going rate for first-time offenders Private and Formal: - Corporate grievances procedures - Church law - Student code of conduct Private and Informal: - Daily chores - Family curfew - Street gang code

Socialist Legal System:

Rejects law as the fundamental basis for society. Law is the arbitrary work of an autocratic government - The primary goal is the protection of the state: private property receives less protection - Law has an educational role: It is an instrument of educating members about the new socialist society - Only found in a few countries: China, Cuba, Laos, N. Korea, Vietnam

Who said, "The life of the law is in its enforcement," and how is that applicable to the law at the human level?

Roscoe Pound said it. - Discretion in applying the law can be good or bad. - Police: decide what crimes to focus on, when to arrest, when to use deadly force - Lawyers: screen cases and decide which have merit - Prosecutors: decide what changes to bring, when to plea bargain, what punishment to seek - Judges: decide if court has jurisdiction, which facts are relevant, which sentences to impose - Bureaucrats: decide which regulations are proposed, which regulations will be enforced, how much due process afforded

Who said, "The Law must be stable, but it must not stand still." What is it related to?

Roscoe Pound, Sociological Jurisprudence

According to Legal Realism, the law is totally "ad hoc," or totally unpredictable. Realists questioned both the RULE and FACT elements in the judicial decision making process.

Rule (???) x Facts (?????) x Social context = decision

"The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law."

Said by Former Justice Oliver Wendell Holmes - This definition is court centered and very pragmatic. Law is whatever the courts say it is. - He also said that "pretty much all law consists in forbidding men and women from doing some things they want to do."

Decisions or outcomes that many people believe are unJUST can be produced with fair and impartial procedures

Similarly, court procedures can be ignored to produce decisions that many feel are just. - Your definition of justice varies according to value hierarchy.

Islamic Legal System

Termed the "Shari'a" or "Sharia" - Based on the Qur'an, which sets out principles revealed by God and the Sunna (habitual practices) which contains the practices and decisions of Muhammad - Clerics influence the law

Adversary Process

The common law is adversarial, aka it's a battle between two opposing parties. - Jerome Frank called it the "fight theory"

Similarities and differences between courts and politics:

The operations of courts differ from those of other gov. bodies. - Courts are passive and reactive - Judges make decisions only in cases before them - The judiciary is more insulated from elections and lobbying "There is almost no political question in the U.S. that is not resolved sooner or later into a judicial question." Alexis Tocqueville - Controversies are constantly before the courts. Differences of opinion on these issues is often linked to partisan politics

Jurisdiction

The power of a court to decide a dispute

"More access to the courthouse doors does not by itself assure a proper functioning of the adversary process."

Thurgood Marshall

Principal difference between trial courts and appellate courts:

Trials center on determining the FACTS, whereas an appeal focus on correctly INTERPRETING the law

How do we define equality with respect to the law?

Under equal protecting doctrine, government must treat those who are similarly situated equally - Under the 6th Amendment, the wealthy man and indigent defendant both have the right to attorney in criminal cases. This sounds good on paper, but for many years, citizens only enjoyed this right if they could afford one.

Caseload of Court of Appeals

Very limited original jurisdiction. Mostly appellate jurisdiction over: - Review of criminal and civil cases from district court (90%) of cases - Appeals from administrative agencies: Securities and Exchange Commission, Nat'l Labor Review Board - 2019: 48, 486 cases Is the final appeal for virtually all federal cases

Natural law and Legal Positivism

Why is natural law problematic? - It's hard to empirically demonstrate the existence of mystical norms or behavior supposedly found in nature? - People's capacity for reason could yield outrageous notions EX: Bradwell v. Illinois (1873) - Myra Bradwell denied law school because women were "designed for kitchen, men designed to protect."

Court of Appeals Act 1891

act of Congress that created the circuit courts of appeal, a new layer of intermediate appellate courts that would hear appeals from the district courts, and gave the Supreme Court more discretion in deciding which cases to hear - Final victory for pro-nationalists. Created 9 circuit courts of appeals. Most appeals of trial court decisions now went to the circuit court of appeals - Released the supreme court from hearing appeals in many petty cases - The basic structure today: district courts, courts of appeals, and supreme court. All function of the 1789 and 1891 laws.

Circuit Court Act (1801)

reduced the size of the Supreme Court from six justices to five and eliminated the justices' circuit duties. To replace the justices on circuit, the act created sixteen judgeships for six judicial circuits. Pushed for by Federalists - Eliminated Circuit riding - Created many new judgeships - Extended lower federal court jurisdiction - Passed in the last days of the Adams adminsitration

Relationship between law and order:

super complex - Hobbesian view means protecting lives and property - To have more "order," we may have to restrict rights and freedoms and invade the privacy of individuals. Worth it?

Jurisprudence:

the science or philosophy of law