PSC 330 Exam 1

Stare Decisis

"let the decision stand" the legal principle of determining points in litigation according to precedent.

Article III courts

(Constitutional courts), these courts exist pursuant to Congress's power under __________ ___ which states the right to "from time to time to ordain and establish" courts inferrior to the Supreme Court.

Article I courts

(Legislative courts) Courts of international trade, they are referred to as _________ ___ courts, becuase Congress created them pusuent to its power under __________ ___. They often have to administrative as well as judicial duties and they are sometimes created for the express purpose of helping to administer a particular federal law.

Critical Legal Studies Movement

(Movement popular in the 70's and 80's) Political scientists who believe judges' decisions are merely political idealology expressed in, and obscured by, legal language.

question of law/facts

both will be answered by a trial court. for example, a jury will decide whether the defendant meets the physical description of a person the witness saw at the scene of a crime (question of fact) or a trial judge will will decide whether to exclude certain evidence against the defendant that the police obtained by means of a constitutionally dubious search (a question of law)

error of law

ex: when the trial judge gives improper instructions to the jury about what they law requires. Court of appeals exist to correct _________ __ _____.

Torts

in common law jurisdictions, is a civil wrong that causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. (personal injuries)

apellate courts

intermediate level courts where cases are tried after they have been tried before on a lower level court. (they hear appeals by parties who lost in trial courts)

ADR/alternative dispute resolution

is a device to help judges manage cases efficiently, ____ is employing means other than lawsuits to resolve disputes. Besides mediation, those means include arbitration and mini-trials.

felony

major crimes (murder, rape, arsen, armed robbery, etc.) punishable either by death or by a prison term of more than one year.

misdemeanors

minor offenses for which the penalty is a jail term of less than one year and a fine of less than $1,000 ($5,000 in some states) some examples are: Minor assaults, drunk and disorderly conduct, possession of a small amount of marijuana suitable only for personal use

damages

monetary compensation

court of general jurisdiction

most states call these courts surperior court, district court, or county county, these courts hear criminal and civil cases of felony charges.

criminal cases

present disputes between a person or persons and the state that arises from alleged violations of the criminal law. (they are tried in courts of general jurisdiction)

civil cases

present disputes between individuals, between institutions, and between individuals and institutions that commonly arise from personal injuries, broken business agreements, and/or damage to property.

Federalist

relating to or denoting a system of government in which several states unite under a central authority.

Legitimacy

relating to or denoting a system of government in which several states unite under a central authority.

recidivism

repeated offenses

writ of habeas corpus

the act of asking district judges to order prison authorities to either show cause why they are holding the prisoner or to release him or her. "produce the body"

writ of certification

the least likely to be reason of appeal; it is a request by a lower federal court, usually a court of appeals, for a final answer to questions of law in a particular case. The Supreme Court, after considering the certificate, may decide to hear the case itself. These cases are infrequent; they do not even occur every year.

court of limited jurisdiction

these courts consider civil (personal injury, contract, and property) claims up to a specified dollar amount, crimes punishable by less than one year in jail, and a $1,000 fine; and traffic, family estate, juvenile, and small-claims cases.

plea bargin

when a defendant pleads guilty, usually to a lesser charge that he or she originally faced and pays a fine and/or accepts some form of punishment (jail, probation, home confinement, suspension of driver's license).

settlement

when the parties agree that the defendant will pay the plantiff a sum of money in return for the plantiff's promise to end the lawsuit, are popular with parties and with judges becuase they avoid the expense and unpredictability of a jury trial. They frecuently occur on the eve of trial, when the parties become eager to avoid the costs and the uncertainties of the fast-approaching trial.

Discussion: The culture and traditions that influence lawyering in the United States

25 of the 56 men who signed the declaration of independence were lawyers. The prominence of lawyers results from several traditions in American political and legal thought that combined make litigation a more common means of resolving disputes and creating public policy here than it is in other countries. One such tradition is common law which developed from the English king's enforcement of his royal rights. A related principle is that judges bear the major responsibility of interpreting the law. they interpret the law by deciding cases, which gives them great power even when no prior cases are available to help guide the decision of the judge. Another influence of modern American law is Puritan Individualism, the Puritans believed that the purpose of law was to protect individual freedoms. The common law tradition and Puritan individualism jointly produce a political/legal culture in which individuals and institutions revere their rights and are quick to hire lawyers to assert them, distrust legislative and executive institutions to guarantee them, but look to courts to protect them in private disputes and in public controversies.

dissenting opinion

A ____________ _________ disagrees with with the majority's reasoning and with its conclusion. ____________ _________ are common nowadays "The justices do not strive for institutional consensus today as much as they did in the past".

concurring opinion

A ______________ ___________ agrees with the majority's conclusion, but for reasons other than those that persuaded the majority.

verdict

A final decision or ruling.

Political Philosophies

A person's public policy preferences

Judicial Philosophies

A person's views about the way in which law should develop and about the role that courts should play in the American political system.

reversed

A supreme court shortcut designed to resolve cases more quickly, some decide their less signifigant cases by means of orders; a __________ order means that the old ruling did not stand and they made a new decision.

affirmed

A supreme court shortcut designed to resolve cases more quickly, some decide their less signifigant cases by means of orders; an ___________ order means that they have agreed with the ruling made by a previous court and that ruling will stand.

Law

A system by which society decides how to allocate its scarce resources and organize relations among individuals and institutions to achieve predictability in business and personal affairs. Law includes the rule of conduct that governs human relations.

dual court system

America's _______ _______ ___________ is a result of federalism, one of the core principles that underlie the United States Constitution.

Myra Bradwell

American lawyer and editor who was involved in several landmark cases concerning the legal rights of women. In the early 1870s, when _______ __________ sought admission to the Bar of the State of Illinois, the law barred women from practicing in that state. _______ __________'s lawyer argued that the Illinois law abridged the privileges and immunities that the 14th amendment guaranteed to _______ __________ and all American citizens.

problem solving justice

An important innovation of some trial courts of limited jurisdiction (in drug courts, domestic violence courts, mental-health courts, gambling courts, etc.) the goal of problem-solving courts are to not only process cases and hold offenders accoutablebut also try to change lives and eliminate the underlying causes of chronic defending.

Puritan individualism

Another tradition that influences modern American law is _________ _____________. The Puritans believed that the most important purpose if law was to protect individual freedom. They also believed that individuals should be free to chose how to live their lives and that the government should not coerce them in those matters. By the same token, the Puritans held that people must accept the consequences of their choices; they should not expect government to rescue them from their own foolishness.

mandatory appeals

Apellants have the constitutional right to file ____________ _________.

discretionary appeals

Appeals that are not mandatory but which demand a hearing beacuse they raise important legal and public policy issues.

bar examination

At the urging of the American Bar Association, states began. late in the nineteenth century, to require candidates for admission to pass the _____ _______ that was more rigorous that the oral exam of yesteryear. The ABA saw written exams as a means of improving the competence of lawyers and of keeping out of the profession "price cutters and undesirables", which, unfortunately, usually meant the children of Irish, Italian, Polish and Jewish immigrants.

pro bono

Bar associations can also make legal services more accessible by requiring their members to either preform a minimum number of hours of ____ ______ (i.e. free) legal work annually or donate a minimum amount of money annually to fund the ____ ______ work of other lawyers.

billable hours

Billing clients by the hour instead of charging an annual retainer has been standard practice for law firms since the 1950's. In the 80's, because of the competition between firms for clients, these means of billing were a frustration. They remain so today because in the current competitive environment, the firms best means of increasing its revenue it to have its lawyers bill more hours, not to raise the rates charged to clients.

associates; partners

By the 1980s it was common for a woman to be 30% of the _____________ in a law firm, that is, junior salaried attorneys who do not share in the firm's governance or its profits, but less than 5% of its ___________.

original jurisdiction

Distric courts have ________ __________, which means they hear cases in the first instance, not on appeal, in both civil and criminal matters. They conduct jury trials and bench trials in both civil and criminal cases, although trials are as rare in federal court as they are in state court.

chambers

Each justices' __________ (office), which comprises of a justice, three or four law clerks, one or two secreteries, and a messenger, largely operates independently of others. "as much as 90% of our total time, we function as nine small, independent law firms".

collarborative law

Fearing the financial and emotional costs of litigation, some parties to civil disputes reject litigation in favor of ______________ ______, a process focused on solving problems outside of court. ______________ ______ features a series of meetings between the parties, who have attorneys, but who sign a contract pledging to behave respectfully and to disclose all pertinent information to each other.

stipulation

If the parties reach an agreement, their attorneys work together to draft a ________________ they will submit to a court to resolve the dispute.

reading law

In Vermont, for example of substituting law office study for law school, one can substitute four years of law school for at least 25 hours per week for at least 44 weeks of the year of __________ ____ in a law office. After completing that program, one can take the bar exam.

bench trial

In a ______ _______, a single judge applies law to facts and reaches a verdict.

office lawyers

In this new environment, law offices depended heavily on the technology of the day, including telephones and typewriters, employed support staffs of stenographer typists and divided legal work among ________ ___________.

mediation

In which the parties attempt to resolve their dispute with the aid of a neutral third party.

Socrative method

Langdell's most important innovation was the ____________ __________ of teaching law, which is still the standard. The ____________ __________ replaced lectures with classroom discussions of appellate court decisions that illustrated principles of law the professor wished to convey. The prof. asked the students questions about the decisions, and each answer generated another question from the professor.

adversary system

Lawyers and judges resolve disputes by means of _____________ __________. Under the _____________ __________ "I take care of my side and you take care of yours and almost everything we do to win our 'rights' is justified".

legal aid attorney

Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. Provides free legal representation to impoverished clients in criminal and civil cases respectively.

common-law tradition; supremacy of law

One such tradition in the __________-_____ ______________, which developed from the English king's enforcement of his royal rights. Its most fundamental principle is the __________ ___ _____, which states that all acts of government are subject to review in the courts and that no person is beyond the courts' jurisdiction.

Judicial Behaviorists

Political scientists who contend that political idealology is the most important factor that explains judges' decisions.

Precedent

Prior or similar cases and rulings used to help guide decisions in future similar cases.

Remanded

Removed; to return (a case) to a lower court for reconsideration

court of last resort

State supreme courts which is the last step after filing an appeal on a ruling in trial court and apellate court. They hear discrecinary appeals (appeals which are not mandatory but demand a hearing because they raise important legal and public policy issues.

Articles of Confederation

Staunch supporters of state powers wanted states to retain the supremacy they enjoyed under the ________ ___ _____________, which governed America in 1787

Discussion: The process of case selection and decision making in the U.S. Supreme Court

The Supreme Court is only required to hear original jurisdiction cases that present disputes between two states, often boundary or water-rights disputes

writ of appeal

The _______ ___ _________ is a more common route to the High Court, primarily because federal law requires the Court to accept and decide cases that arrive by this method

writ of certioari

The _______ ___ ____________ is the most common route to the Supreme Court. The Judiciary Act of 1925 gave the Court discretion to grant or deny a petition for it.

Politics

The acquisition, retention, and exercise of power for the purpose of collective action. That action allocates the benefits and burdens of life in a civil society. Simply put, politics determines "who gets what, when, and how".

Legal Realism

The change in mindset that makes most judges today realize that court makes public policy. Legal realism gained prominence as an intellectual movement during the 1930s, when the Supreme Court made a decision in the Butler case and occurred several years later when it became "gospel" among lawyers and judges. Legal realism maintained that when judges decided cases they "made law" by choosing between conflicting values by choosing between conflicting values according to their individual public policy preferences.

federal questions

The civil jurisdiction of district courts pertains to disputes that derive from federal law or treaty, or of a provision of the federal constitution. These disputes raise __________ ___________ that Congress has authorized district courts to resolve.

Federalism

The decision reached at the Constitutional Convention which was a compromise between the want of a strong federal government and a strong state government.one of the core principles that underlie the Constitution dividing the power between the national (federal) gov and the 50 state governments.

Policy Making

The decision to allocate power among the branches of government, distribute wealth among individuals and corporations, and draw boundaries between personal freedom and governmental authority. These are all apart of courts' public policy decisions. politically important cases require a court to preform their _______ ________ function.

abstention

The doctrine of ____________ prohibits federal courts from deciding cases in which questions of state law remain to be answered and the answers could resolve the cases.

preemption

The doctrine of ______________ prohibits state courts from hearing cases about subjects that Congress has assigned exclusively to federal courts, such as bankruptcy, antitrust, and Indian treaty matters. Federal law preempts state law in those cases, so only federal courts can hear them.

retainer

an annual fee paid to a law firm to preform all of the corporation's legal work during the year.

contingency fees

When the lawyer's fee is a percentage of the amount the client wins at trial or obtains by settlement.

en banc

____ ________ means that all members of the court hear oral arguments together, rather than in panels of two or three.

diversity cases

_____________ __________ are disputes between residents of different states in which the plaintiff's claims amounts to $75,000 or more.

litigators

_____________ are what a lot of people picture when they think of the stereotypical attorney: a lawyer who spends a great deal of time in the courtroom and files lawsuits.

arbitration

______________ features a neutral decision maker: who, unlike a mediator, renders a decision after hearing presentations by both parties.

trial courts

a court of law where cases are tried in the first place, as opposed to an appeals court.

majority opinion

a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision.

jury trial

a jury of ordinary citizens determine whether, in a criminal case, the defendant is guilty or not guilty, and whether in a civil case, the defendant is liable for the plantiff's injury

public defenders

a lawyer employed at public expense in a criminal trial to represent a defendant who is unable to afford legal assistance.

rainmakers

a person who generates income for a business or organization by brokering deals or attracting clients or funds.

drug court

a trial court of limited jurisdiction, ______ _______ is probably the best known and most successful type of problem- solving court. It began in Miami 1989 to not only process cases and hold offenders accountable but also try to change lives to eliminate the underlying causes of chronic offending. ______ _______ use judicial power to direct nonviolent addicts to intensive, court- monitered treatment instead of to prison.

Discussion: Justice Story's legal reasoning in the Hunter Lessee opinion.

The federal power was given directly by the people and not by the States. Article III, Section 2, Clause 2 of the U.S. Constitution states that "in all other cases before mentioned the Supreme Court shall have appellate jurisdiction". This demonstrates a textual commitment to allow Supreme Court review of state decisions. If the Supreme Court could not review decisions from the highest State courts, the state courts necessarily would be excluded from hearing cases involving questions of federal law. It had already been established that state courts have the power to rule on issues of federal law, and therefore the Supreme Court must be able to review those decisions. The Court also held that the Supremacy Clause states that the federal interpretation trumps the states' interpretation. The Court rejected concerns regarding state judicial sovereignty. The Supreme Court could already review state executive and legislative decisions and this case was no different. Story then confronted the arguments that state judges were bound to uphold the Constitution just as federal judges were, and so denying state interpretations presumed that the state judges would less than faithfully interpret the Constitution. The Court stated that the issue did not concern bias; rather, it concerned the need for uniformity in federal law. The Supreme Court concluded that the decision by the Virginia court of appeals was in error. (from online)

ABA (American Bar Association)

The increasing sophistication of the economy spurred the movement for a more "professional bar" which led to the establishment of the _____ in 1878 and to calls for more stringent standards for admission to the practice of law. At the urging of the _____ states began to require candidates for admission of the bar to pass a written bar exam.

clinical studies

The most significant change in legal education in the past generation has been the growth of ________ ___________, elective courses in which students earn academic credit by representing, under faculty supervision, low-income clients in civil matters, prisoners, or persons accused of crimes who cannot afford a private attorney. This idea was created when students demanded a more engaging and socially conscience courses during the second and third year of law school.

Myth

The older myth is that law and politics are unrelated; therefore, law is not political at all. The newer myth is that law and politics are identical; therefore, legal reasoning is merely a justification for judges' policy preference.

Discussion: Porto's premise and his two myths.

The older myth is that law and politics are unrelated; therefore, law is not political at all. The newer myth is that law and politics are identical; therefore, legal reasoning is merely a justification for judges' public policy preferences. One famous example of the older myth is a statement by Alexander Hamilton in the Federalist Papers that courts "have neither force nor will but merely judgement". This quote by Hamilton ignores the political significance of court decisions. Porto says "both myths oversimplify the relationship between law and politics. This book rejects the myths and begins from the premise that although law and politics are closely related and frequently intersect, they are not identical. One must define both terms before explaining the similarities and the differences between them". After defining both law and politics (above definitions) Porto says "Thus law is neither entirely political or nonpolitical. Law and politics are distinct from one another, but they intersect because lawsuits frequently present courts with legal questions that arise from political controversy.

Common Law Tradition

The political significance of courts reflects America's ____________ _____ __________. This is the result of America being influenced by England's system of common law in the seventeenth and eighteenth century.

Neo-institutionalists

Their perspective on judicial processes is that they aknowledge courts' role in making public policy and the effect of judges' policy preferences on case outcomes. Therefore neo-institutionalists is broader than traditional legal analysis; it looks beyond legal principles to examine the social factors that influence legal institutions and the development of legal principles.

Discussion: Trial courts of limited jurisdiction in the state courts.

Trial courts of limited jurisdiction consider civil (e.g. personal injury, contract, and property) claims up to a specified dollar amount; crimes punishable by less than a year in jail and a $1,000 fine; and traffic, family, estate, juvenile, and small-claims cases. The number of trial courts of limited jurisdiction varies from state to state. Court reformers have long advocated that states consolidate these courts (just as the state of Kansas has done; they only have 1), so save money and increase efficiency. Consolidation is not a politically popular solution because reducing the number of courts also reduces the number of opportunities for political parties to reward their supporters with jobs in the local courthouse. The business of trial courts of limited jurisdiction is not confined to small-scale matters, though, nor is it less significant than the business of trial courts of general jurisdiction, the civil and criminal jurisdiction of these courts are "limited" to the dollar amount and the degree of seriousness respectively. In states that permit trial courts of limited jurisdiction to hear criminal cases almost always hear misdemeanors (minor crimes). The non-severity of most of the cases heard allow experimentation such as problem-solving court which takes offenses like drug charges and comes up with a creative way to not just reprimand the offender but to try and prevent him/her from offending again with rulings like the agreement to enter a drug treatment facility that also allows vocational-training and continued education. The civil and criminal caseload of trial courts of limited jurisdiction are very large.