The Judicial Process

Why move from Cravath Model to Two - tiered Model?

- 2008 recession impacts - Growing tendency of corporate law firms to down size - laying off personnel or not hiring new grads - cutting back or freezing salaries - moving to "flat-fee" billing methods (instead of relying on billable hours) - Using contract lawyers , or non lawyer staff, like paralegals

Circuit Court of Appeals Act of 1891

- Established 9 U.S Court of Appeals courts - U.S. Supreme Court given discretionary jurisdiction

Administrative Office Act of 1939 and Federal Judicial Center Act of 1967

- Established Administrative Office of the U.S. Courts (1939) - Established Federal Judicial Center (1967)

West's concept of Justice

- Law professors/ scholarship have avoided the study of concept of justice, which creates a type of amoralism in students training - moral ideas can shape professional judgement

West Reform Proposals

- Law schools need to be more transparent - Since Langdell's theory of law is flawed, need to change largely unstructured curriculum (too many electives) - Need to educate "the whole lawyer" with pluralist approach which improves teaching/ scholarship

Role of Court

- Mediators of conflict - Creators of legal expectations - Guardians of individual/ minority rights - Agents of therapeutic justice - Important makers of legal and public policy

Existential Crisis

- legal academy has a conflicted identity - law school curriculum and law scholarship is in need of reform as to be basic questions of law and lawyering

Bifurcated Model

- two tiered legal profession - some lawyers trained in practice - oriented schools that would fail to really educate - some lawyers trained in educative schools that would fail to train

Classical Theories of Jurisprudence

. - Natural Law, Legal Positivism, Constitutional Morality, Sociological Jurisprudence, Legal Realism

Blue Slip

A Senate tradition in which a form on a blue paper is sent by the Chair of the Senate Judiciary Committee requesting is a Senator from the nominee's home state approves or disapproves of the presidents Judicial appointment. An approval is signified by returning the blue slip; disapproval is signified by not returning the blue slip.

Partial Merit Systems

A judicial Selection method that gives the governor, or the legislature, more authority to determine if a judge will serve on a state court. Typically the governors appointment is approved by a nomination commission (thus demonstrating "merit")

Hybrid Merit Systems

A judicial selection method that combine "merit" with other election methods to select or retain judges at the trial or appellate level of state courts

Judicial Merit Plan

A judicial selection method using a combination of appointment and elective mechanisms to staff state courts with judges that have "merit" or nonpolitical qualifications

Single Tier Trial Courts

A method of court organization in the states that gives trial courts general jurisdiction over a wide variety of civil and criminal cases

Two Tiered Trial Courts

A method of court organization in the states that splits trial courts into one or more sets of general and limited jurisdiction

Competitive Private Contract Systems

A public defender system that allows lawyers, law firms, and legal nonprofit organizations to represent clients as a public defender through a competitive bidding process.

Assigned Counsel Systems

A public defender system that lets judges appoint members of the local bar to represent clients as a public defender on a case-by-case basis.

Fillibuster

A senate procedure in which a senator can elect to continue to debate a presidents judicial appointment, thus preventing the nomination from getting an up-or-down vote on confirmation by the full senate

Limited Jurisdiction

A trial court that has the power to decide a narrow set of legal issues, such as traffic, minor civil, and less serious non felony criminal cases

Public Law

A typology of law that defines leal relationships among governments and between governments and individuals. - Constitutional, administrative, criminal, international, taxation, bankruptcy, antitrust, civil

Private Law

A typology of law that defines legal relationships among the affairs of citizens in which private individuals resolve legal disputes - Tort, corporation, probate, family, property

Transactional lawyers

Advisors -Lawyers that use their professional skills to complete business and legal transactions and generally do not engage in trial court litigation.

Critical Legal Studies

An approach that critiques law and legal reasoning by arguing that judges use deductive and formal rules as a pretext to reach results that are based on personal preferences - challenges and overturns accepted norms and legal standards - proponents of this theory believe that logic and structure attribute to the law, grow out of the power relationships of the society

Federal Courts

Appellate courts consist of large circuits covering several states within a region - Within each state there are one or more district (trial) courts

Feminist Jurisprudence

Based on the belief that the law has been fundamental in women's historical subordination. - seeks to explain ways in which the law played a role in women's former subordinate status - dedicated to changing women's status through reworking of the law and its approach to gender.

Common Law Legal System

Based on the role of judges; Judges make law and set precedent The collection of principles and rules, particularly from unwritten English law, that derive their authority from long standing usage and custom or from courts recognizing and enforcing those customs.

State Courts

Consist of different types of trial Appellate and Special courts in each state - State courts handle bulk of the nations judicial business

Michigan V Long

David long convicted for possession of marijuana found by Michigan Police in passenger/ trunk of car initially searched for weapons. state appellate court confirmed conviction Michigan supreme court reversed on the grounds that the search violated the 4th amendment and the Michigan Constitution. - Did the Supreme court have jurisdiction over state court decisions that rested on "adequate & Independent" state grounds? - Supreme court held that when state court decisions appeared to rest primarily on federal Law it would infer that state courts believed that federal law required them to do so

Adversarial System

Designed to find truth through accusatorial methods. Evidence is gathered by the parties and lawyers and is presented to a neutral fact-finder either as a judge or jury to resolve legal disputes

Two -Tiered Large Law Firm Structure

Equity Partners non - equity partners partner track associates non - partner track associates

Judiciary act of 1789

Established 3 tier hierarchy of Federal Courts

Probate law

Facilitation of transfer property upon death or disability

Gideon V. Wainwright

Gideon v. Wainwright (1963).72 In Gideon, the Warren Court reversed Clarence Gideon's state felony conviction for breaking into a pool hall because he had requested but was denied the appointment of an attorney to represent him.

Dispute Pyramid

Grievances turn into legal claims that can turn into legal disputes. - pyramid shows that only a small proportion go grievances become legal disputes

Tort law

Imposition of liability for unreasonable acts between private individuals that proximity cause harm

Judicial Federalism

Independence and Interrelationship of Federal & State Courts

Mixed Legal System

Influenced by social customs enacted by societal sanctions

Judicial Selection and Removal

Judges appear on ballet along side political party affiliation

Discretionary Jurisdiction

Jurisdiction that a court may accept or reject in particular cases. The Supreme Court has discretionary jurisdiction in over 90 percent of the cases that come to it.

Mandatory Jurisdiction

Jurisdiction that a court must accept. The Supreme Court must decide cases coming under its appellate jurisdiction, though it may avoid giving them plenary consideration.

West's politics on the legal education

Law curriculum is too focused on legal doctrine via the casebook method - must study the political origins of law and not just concentrate on learning law from cases, or appellate decisions

Langdell's Theory of Law

Law is science, Casebook Method

Legal Positivism

Law is scientific and objective; empirically discovered by reason. It is separate from moral judgements about what the law should be. Morality is already in law set through legislation.

Advocates

Lawyers who use their professional skills to advocate their clients' interests in trial court litigation.

Professionalism Crisis

Legal academy is not serving the legal profession well in its scholarly or pedagogical capacity

Civil Law Legal System

Legal system that is based on codified law, or legal codes enacted by the legislature. Most European countries use civil law systems but are also found in Asia

Court of Appeals

Mostly decides issues of law, consists of panel of 3 judges

U.S. Supreme Court

Resolves issues among Federal and State Courts - Has Original and appellate jurisdiction - Discretionary gives the court ability to "decide what to decide"

Obergefell Vs. Hodges

Same Sex marriage. Chief Justice Roberts dissents on the grounds that the Supreme Court has no ground to judge on it for it is the individual states right to declare whether it is legal or not.

Judiciary act of 1869

Set the Supreme Court size to 9 Justices

Inquisitorial System

Structured to find the truth by following specific legal procedures under a code of law. Used within Civil Law systems.

Jurisdiction

The power of the court to hear a case or controversy, which exists when the proper parties are present and when the point to be decided is among the issues authorized to be handled by a particular court

Natural Law

Though of divine terms. Gods law William Blackstone A body of unchanging moral principles regarded as a basis for all human conduct - describes relationship between individuals and government - doesn't address where law comes from if we should respect it

Economic Crisis

Too many lawyers, not enough jobs

2008 Recession Impacts

West argues; we should adopt reforms for training lawyers not only in response to market pressures, because it will turn law schools into trade schools, more practice ready orientations that are not going in the right direction

Cravath Bureaucratic Model

a partnership of senior lawyers, and salaried associate attorneys (Wall Street Law Firm) - up -or -out promotion system plus billable hours - leverage, partner profits, corporate clients pay for associate training (e.g. document review) Global Mega Firms

Minnesota V. White

candidates couldn't announce political affiliation in elections, idea that compromises ethics, ideal of being impartial, challenged in White on the basis of free speech, denying judges of that right, the provision challenged in Minnesota called an announce clause- challenged, supreme court struck down announce clause as a violation of free speech - becoming "politicians in black robes" - lower voter information and high retention rates of judges compound the problem of politicization

General Jurisdiction

dockets consist of primarily of serious criminal and civil cases

Economics in Law and Pragmatism

holds that economic principles best explain legal arrangements affecting markets and noneconomic social behavior.

Contemporary Theories of Jurisprudence

maintain that law is manipulated by and reinforces oppressive political forces that institutionalize the unequal distribution of socioeconomic resources. - Economics in law and pragmatism, Feminist Jurisprudence, Critical Legal Studies, Critical Race Theory,

Jurisprudence

refers to legal theory and questions about the nature of law, the social impact of law and legal systems, and the relationship of law to justice and morality