POLI 2200: US Courts and Judges

Legal Ethics and Discipline

Are lawyers dishonest, unscrupulous, and conniving? Increasingly, law schools focus on ethics bar associations work to improve the public image of lawyers state high courts establish the standards of conduct for the legal profession—based on the ABA's Model Rules of Professional Conduct typically a state bar association disciplinary committee handles discipline common complaints include: (1) misuse of client funds, (2) acceptance of money for services never rendered, (3) felony conviction complaint is filed, investigation performed, recommendation made most complaints are dismissed, very few result in sanctions dissatisfied clients can also file a malpractice lawsuit

adversary system

proceeding in which the opposing sides have the opportunity to present their evidence and arguements

Law School Admission

- 145,239 law students - based on Law School Admission Test (LSAT) and undergraduate performance - Law School Admission Council (LSAC) develops and administers the test - applicants use the Law School Data Assembly Service (LSDAS) to send their application materials to schools - 2010-11, 155,050 LSAT tests compared to 1963-64, 37,598 women are 50% of enrolled law students, but only 29% of attorneys - minorities earn 21% of the degrees earned with 7% of those going to African Americans and 7% going to Hispanic Americans

Municipal Courts

- Are the urban counterparts of the rural justice of the peace courts - - big city case volume required more courts * political machines viewed courts as a source of patronage * often tainted by corruption or scandals - progressive era (1920s and 30s) reformers tried to remove politics from municipal courts

The Modern Law School

- Harvard Law School and Dean Christopher Columbus Langdell changed legal education - introduced the case method - reading appellate court opinions - the case method is now the standard form of instruction - night law schools were founded as an alternative to University education -in 1900 32 prestigious law schools founded the Association of American Law Schools

Where Lawyers Work

- Private Practice - nearly 75% of lawyers work in private practice number of solo practitioners is declining economies of scale make working in a firm—an association of lawyers—more and more desirable - Business - many businesses hire lawyers house counsel - employed by the business as salaried employees outside counsel - a lawyer or firm hired by the business but not an employee - Government - nearly 10% of the nation's lawyers work for government. typically we think of government lawyers prosecuting criminals but many other lawyers are employed by the federal, state and local government - Law Clerks - provide legal research and writing for judges. Judicial clerkships are highly prized by law students and seen as prestigious by future employers

The Judiciary Act of 1789

- The first bill introduced in the Senate -provided the foundation for the current three-tier system of federal courts *Supreme Court, circuit courts, and thirteen district courts -the act was both a victory for the federalists and a product of compromise *district court boundaries were drawn along state lines *by custom district court judges would be residents of their districts *lower courts had limited jurisdiction

Trial Courts of General Jurisdiction

- Trial courts responsible for major criminal and civil cases - also called major trial courts (est. 2,044 with 11,390 staff) - decide matters not specifically delegated to lower courts - considerable variation across states with jurisdiction geographically defined - no shortage of business—100 million cases compared to 300,000 federal cases

Evaluating Drug Courts

- continued growth but also increased costs - unintended consequences? - one judge claims drug courts have increased the number of prisoners in jail on drug charges * greater likelihood that drug cases would be prosecuted and heard resulted in more arrests, leading to more cases - how to measure success? * completion of programs can take a long time

Local Control and Local Corruption

- courts are still locally based and they reflect the local communities they serve *e.g., the application of state law often has a local flavor, jurors in different areas may have very different opinions and values - local control has advantages—links courts to the people they serve - but disadvantages too—greater opportunity for corruption and graft, more opportunities for injustice

Intermediate Courts of Appeals

- created to relieve caseload growth (39 states) - must hear all properly filed appeals, are the final say in most cases - structure varies—geographically (statewide or regional) and types of cases (some hear only civil or criminal cases, others both) - number of judges varies and most employ three judge panels - most trial court decisions are affirmed

Courts of Appeals 1891

- creating the courts of appeals was the culmination of "one of the most enduring struggles in American political history" (Richardson and Vines 1970) * the debate about state or federal resolution of problems continued - a nationalist victory * created nine new courts known as circuit courts of appeals where most appeals of trial court decisions go * released the Supreme Court from hearing appeals in many types of petty cases * the Supreme Court now had greater control over its workload (expanded even further in the Judges Bill of 1925 and in 1988)

Legal Education before 1870

- lawyers were scarce in the Colonies - entry into the profession was open - trained through self-study, often combined with an apprenticeship - start of University based American legal education at William and Mary (1779) - legal education connected to philosophy, political economy and ethics - proprietary law schools (for-profit) emerged for practitioners (Litchfield 1784)

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 - 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, an 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 written opinions justifying their decisions - the principal difference is that a trial centers on determining the facts, whereas an appeal focuses on correctly interpreting the law

Politics of Court Reorganization

- most states have unified court system > but not necessarily all five conditions * four tier systems (rather than three) * no statewide financing * difficulty eliminating unneeded courts - support comes from legal elites - opposition comes from local governments who worry about loss of control - overall, court reformers have made considerable success

Civil Cases in Trial Courts of General Jurisdiction

- outnumber criminal by two to one - tort cases (personal injury) do not dominate filings - common cases include: domestic relations, estate, personal injury, contracts *domestic cases relate to the home (e.g., divorce, custody, support, etc.) *estate cases (probate) involve matters dealing with wills, estates, assets, etc. most estate cases present the judge with little controversy - tort cases (often personal injury) - private or civil wrong in which the defendant's actions cause the injury to the plaintiff or to property * may include physical injury, but also includes contracts, property rights, and mortgage foreclosures - tort cases are 5% of all filings but 66% of trials - number of cases being heard is constant

Treatment Approach to Drug Offenders

- premised on belief that treatment will reduce the likelihood of re-arrest - sentence tied to drug treatment or dismissed if treatment is completed

hierarchical jurisdiction

- refers to differences in the function of courts and involves original as opposed to appellate jurisdiction - courts differ in their functions and responsibilities - Original jurisdiction means that a court has the authority to try a case and decide it - Appellate jurisdiction means that a court has the power to review cases that have already been decided by another court. - appellate courts may have some limited original jurisdiction

Drug Courts

- response to War on Drugs, and efforts to arrest, prosecute and imprison drug offenders - result of experimentation by judges, prosecutors, public defenders, and others - Miami reports drug court treatment programs have lower incarceration rates, less frequent rearrests, longer time to re-arrest - 33% reduction in re-arrest rates for graduates of Miami drug court - other changes include efforts to advance "therapeutic justice"—focusing on therapy instead of punishment - variants on drug court—e.g., focusing exclusively on drugs and families or juveniles

colonial courts

- simple courts that followed the form but not the substance of English courts - adjudicated cases and performed administrative tasks - created as needed and reflected local customs

a complex court structure

- the haphazard expansion created a confusing array of courts and jurisdiction - state and local response was to create MORE courts - new-specialized courts: small claims, juvenile, family - growth was sporadic and haphazard - growth created political opportunities for judges and administrative staff - resulted in complex and confusing system of state courts

Courts of Last Resort

- usually referred to as State Supreme Court - specific names vary by state - number of judges varies (5-9, average is 7) - all have some original jurisdiction - mostly discretionary jurisdiction—choose the cases they will hear - ultimate review board for state law and constitution - similar processes as the U.S. Supreme Court but with more cases

Court Reform: The Next Steps

-better to organize courts from bottom up, involving those most affected - must understand the realities of the courthouse (law in action) - avoid elite bias, tendency to try and label certain types of cases as "garbage", consider all parties involved in legal proceedings - new efforts focus on how to improve the quality of justice often with alternative types of courts

multiple sources of law

1. Constitutions - the document that establishes the underlying principles and general laws of a nation or state;constitutions are the top rung among these multiple sources; They define the powers of branches of government; limit the powers of government (e.g., Bill of Rights); specify how government officials will be selected; federal and state constitutions vary (e.g., selection of judges) 2. Statutes - written law enacted by the legislature; statutes are laws enacted by federal, state or local jurisdictions; until late 19th century, statutes were secondary to court decisions; today, legislatively enacted law is extensive and common 3. Administrative Regulations - rules and regulations adopted by administrative agencies that have the force of law;e.g., IRS decisions, nursing home standards, zoning regulations; newest and fastest growing source of law; administrative law concerns the duties and proper running of an administrative agency

three rings of law

1. Inner ring: Institutions of Law 2. Middle ring: Interpreters of Law 3. Outer ring: Consumers of Law

major components of US Law

1. federalism 2. multiple sources of law 3. judicial decisions 4. public and private law 5. civil and criminal law 6. substantive and procedural law 7. remedies 8. doctrines of access

three types of jurisdiction

1. geographical jurisdiction 2. subject matter jurisdiction 3. hierarchical jurisdiction

key characteristics of common law

1. judge made law 2. use of precedent 3. uncodified regulation

Differences in Law Schools

200 American Bar Association (ABA) approved law schools in 2010 most are affiliated with a university the rest are free standing (proprietary) law schools differ in prestige, elite national law schools, public and private university schools, and local/night schools ranked by U.S. News and World Report every year but not without controversy—the LSAC encourages applicants to find the "best law school for them"

Decentralized and Choice of Courts

50 state court systems with significant differences but also similarities with so many courts lawyers may decide to shop for the most friendly court e.g., for federal civil cases litigants may choose which circuit to file in—the oil and gas industry prefers to litigate in the fifth circuit which is home to much oil and natural gas industry, will the other party get a fair hearing?

Law School Costs

90% of law students rely on loans 2009 survey showed typical debt for public law schools of $46,499 and for private law schools, $70,147 2/3 of students report that law school debt keeps them from considering public sector jobs law school has always been expensive, but the cost is rising faster than lawyer salaries

politics

According to David Easton's definition, the authoritative allocation of values for a society

dual court system

America has one national court system and separate court systems in each of the 50 states federal courts are located in every state and territory Organizationally, the U.S. courts operate in a similar way throughout the country—but they often differ in their interpretation of the law sometimes state and federal courts share judicial power over a case (e.g., robbing banks, selling drugs)

political science

the systematic study of government and politics and the research it produces helps to guide our presentation of the judiciary

interest groups

Collections of persons who share some common interest or attitude who interact with one another directly or indirectly and who ordinarily make demands on other groups

the Constitutional Convention

Convention in Philadelphia in 1787 that framed the Constitution of the US The Articles of Confederation lacked a national court system There was widespread agreement that "a national judiciary be established" states' rights advocates feared a strong national court system federalists distrusted provincial state courts and favored the establishment of lower federal courts Article III was a compromise - creating a Supreme Court but other federal courts only as Congress deems necessary

Party Capability

Court cases differ in the capabilities of the parties involved Galanter (1974): resources are important One-shotters - litigants who only occasionally appear in court Repeat players - bring cases frequently some may refer to the two groups as the "haves" (repeat players) and "have-nots" (one-shotters) to denote primarily their financial resources/experience Repeat players are experienced in court and have considerable resources, therefore they are more likely to win in court a lawsuit may pit repeat players v. one-shotters (criminal cases), one-shotters v. repeat players (personal injury lawsuits), one-shotters v. one-shotters (divorce), repeat players v. repeat players (government against government cases) Galanter offers a theory of case disposition involving party capability - widely tested/used

Third Party Alternatives to Court

Courts are merely one place where disputes are resolved. It is useful to compare courts to other mechanisms citizens use to resolve disputes Identifying Characteristics: some disputes are resolved by people in a community with special (high) standing (e.g., religious leaders) others are resolved by specially trained arbitrators or mediators who tend to be more specialized than judges Private versus Public: level of connection to the government many dispute processing institutions are private (e.g., student discipline boards) may lack authority to enforce their decisions the police are an example of a public dispute resolving mechanism police spend a great deal of energy trying to maintain public order (versus enforcing the law) Settlement Role: Mediators work to get both sides to see the other's point of view Mediation is where the parties reach an agreement that is satisfactory to each and with which they comply Arbitration is similar to mediation except the parties agree ahead of time to be bound by the decision Courts make decisions and enforce them while third party alternatives try to encourage compliance Level of Formality: Some attempts to resolve disputes work with a very informal structure (e.g., marriage counselors) Others, like courts, have very formal rules and procedures Courts are among the most formal institutions compared to arbitration, mediation and other private citizens Control by the Parties: dispute settlement mechanisms offer the parties varying degrees of control over the outcome during mediation the parties must agree to the outcome or there is no resolution, in arbitration they agree in advance (i.e., give up some control), and in courts there is very little control by the parties. The court's order will be final and controlling

Interest Groups in Court

Interest groups are an important part of legal mobilization in the United States they might sue to promote the interests of their members offer advice to the courts on issues presented in cases recommend possible judges to office holders mobilize voters in judicial elections to influence the judiciary

1789 to 1891

Judiciary Act of 1789 was a temporary compromise federalists pushed for the Judiciary Act of 1801 which: * eliminated circuit riding * crated many new judgeships * extended lower federal court jurisdiction but that Act was repealed after the election of Thomas Jefferson

Legal Mobilization

Legal mobilization refers to the process by which a legal system acquires its cases the state (public actors) and individual litigants set the agenda of the judicial branch the United States judiciary is largely passive, requiring action by others for it to become involved in disputes what becomes a legal dispute is a very important question

Trial courts of limited jurisdiction: lower courts

Lower level courts whose jurisdiction is limited to minor civil and criminal cases *also called inferior courts or lower courts *85% of all judicial bodies in the U.S., n = 13,544 with nearly 18,038 judicial officers decide a restricted range of cases and controlled by local government (county, city, district, etc.) not courts of record—no official verbatim transcript of the proceedings is kept appeals go to courts of general jurisdiction and are termed trial de novo

Large law Firms

Often referred to as Wall Street Lawyers Largest is Chicago's Baker & McKenzie, 3,214 small number of "large law firms" but they have a great deal of influence represent mostly corporate clients offer coordinated, highly specialized legal services lawyers are associates—recent law school graduates who provide legal assistance partners—hold permanent positions and contribute to firm management firm lawyers are sometimes described as: finders (finding new clients), minders (managing the firm), and grinders (doing legal research and work) participate in bar association leadership expanded rapidly in the 1980s, but number of super large firms has been declining

Public and Private Law

Public law directly involves government (e.g., constitutional, criminal, administrative and international law) Private law governs the relationships between private citizens

The Media and the Legal System

The Historical Relationship: the relationship between the media and the courts is important the sixth amendment protects public access to trials print access was guaranteed early but other forms of coverage, pictures, television, internet, etc. have had more difficulty getting established balance free and open access to court activities with fair trial concerns Televised Coverage: Court TV began in 1991! concerns were about whether courtroom participants would "perform" for the cameras this concern still exists but doesn't appear to have become a reality most state courts allow some type of video and audio recording federal courts continue to ban cameras and audiotaping devices New Uses for the Internet: The Internet is the latest technology challenging courts to look forward courts are using the Internet to communicate to the public and increase understanding of the legal system the Internet is also being used to mobilize the legal system—providing wide dissemination of legal information that used to be held by small numbers of lawyers technology will continue to challenge the courts

The Demise of Senatorial Courtesy?

The Senate is granted the power of "advice and consent" Senatorial courtesy is the unwritten tradition whereby presidents allow Senators to be consulted before the president nominates a person to a federal judicial vacancy in their state a Senator from the president's party could place a hold on the nominee, preventing their consideration the influence of senatorial courtesy has been diminished in recent years its impact varies depending on the: political party of the president and Senators; Senators of the same party have more influence the level of Court, Senators have more influence at the District level, less at the Circuit level and virtually none when the vacancy is on the Supreme Court

the history of federal courts

The structure of the federal courts reflects our federal system of government Article III of the U.S. Constitution Judiciary Act of 1789

Why Interest Groups Litigate

Traditionally, interest groups litigate because they are disadvantaged in the legislative or executive branch courts are seen as better protectors of minority rights recently, interest groups have been going to court because they see opportunity to influence policy (favorable judges) powerful groups go to court to enforce gains won politically

Judging the Judges

What should be done with unfit judges? judicial misconduct can include many things, e.g., corruption—taking bribes or fixing cases but it can also be the result of old age or senility formal methods of removal include recall elections impeachment proceedings

Civil and Criminal Law

a civil suit involves a dispute between private parties a criminal suit involves a violation of a government's penal laws difference between who has been harmed (individual v. state) types of remedies differ (compensation v. prison, fines or probation)

legal system

a comprehensive term that encompasses an array of governmental institutions, a number of key actors and a variety of other participants; can be viewed as three concentric circle

Benefits of the Job

a high level of prestige and respect control patronage positions, e.g., bailiffs, clerks, commissioners, reporters, assistants, etc. judicial salaries are higher than the national average but salaries are a major source of controversy because many lawyers can make more in the private sector

Is the Process the Punishment?

a new look at municipal courts sees the process as less chaotic than it looks and a court trying to respond to problems not crimes to others the process is the punishment * waiting in jail * paying a bail bondsman * hiring a private attorney * lost wages punishments may vary across jurisdictions

Research on State Supreme Courts

a relatively new focus of political scientists are important policy makers focuses on why state supreme courts operate the way they do judges have been shown to react to case facts, electoral conditions, and other political institutions in the state

Early American Courts

after American Revolution, power shifted from the courts to legislatures former colonists were skeptical of judicial power critics complained when courts declared legislative acts unconstitutional (judicial review) over time courts began to emerge as an independent political institution

judge made law

also known as common law; origin from Anglo American principles; 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 law's most distinctive feature is the development of a system of law from judicial decisions

State Judges: Merit Selection

an effort to remove courts from politics judicial reformers believe(d): a) elections discourage qualified lawyers from running, b) popular elections suggest impropriety, c) voters do not know how to choose among candidates these reformers advocate merit selection, "aka" non partisan selection, or Missouri Bar Plan judicial nominating commission recommends a list of qualified candidates to the governor, the governor makes a final selection, and then after a period of service the judge faces a retention election a retention election simply asks the voters "Should Judge X remain in office?" the process is designed to reduce the influence of politics, but it has consequences retention elections are not without critics voters routinely return incumbent judge (although there are signs it is becoming slightly more competitive) to aid voters, states are creating judicial performance evaluation programs a growing number of states use some or all of the components of merit selection politics is still involved, who makes it on the nominating commission list, who the governor chooses, etc.

judicial decisions

appellate court decisions are an important source of law legislatures pass law, wholesale courts make it retail (Friedman 1984) U.S. law today is primarily statutory and administrative—but some areas (e.g., tort law and court procedures) are dominated by judge-made law) case law is important in determining the meaning of other sources of law

Trial Judges at Work

at trials, judges serve as umpire expected to be neutral judges exercise considerable discretion helping parties negotiating is important rarely write opinions must be good administrators—manage their dockets—the calendar of cases

Bar Association Activities

attempt to upgrade the quality of the legal profession try to remove dishonest lawyers promote the public image (by conducting assessments of public confidence) activities aimed at the unauthorized practice of law — lawyers traditionally have a monopoly over legal services

law

body of rules enacted by public officials in a legitimate manner and backed by force of the state; regulates private and public institutions that are a central part of our lives

equity

branch of law that provides for remedies other than damages and is therefore more flexible than common law

precedent

case previously decided that serves as a legal guide for the resolution of subsequent cases; also referred to as stare decisis - "let the decision stand"; provides stability, coherence, and predictability; "Stare decisis is usually wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right." Justice Louis Brandeis

Procedural Adjudication

cases that reflect the adversarial model Procedural adjudication involves four key elements: judges and lawyers search for applicable law relies on formal rules of evidence exhaustive exploration of all facts, evidence, etc. assumes all parties are preparing for trial Tort cases are a typical example of procedural adjudication lawyers spend time preparing for trial, but rarely end up in court- but prepare as if they will The higher the stakes in the case (criminal case with heavy penalties or torts) the more likely the parties are to engage in procedural adjudication

interpreting the law

citizens typically misunderstand how judges and lawyers interpret and apply the law the law is not a series of precisely written and readily located rules that cover situations lawyers and judges must make sense out of the words found in constitutions, statutes, administrative regulations, and previous court decisions some areas of law are relatively settled and others are not—creating discretionary choices discretionary choices lead to interpretation—judges and lawyers must make choices * meaning of the words - legislatures and judges use vague * language that leaves considerable room for interpretation * conflicting laws - it is not uncommon to find one law *conflicting with another (e.g., allowing free exercise of *religion may appear to be the establishment of that *religion by the state) *gaps in the law - despite all of our law, situations do arise *that are not contemplated, the discretionary choices *courts make about these matters are important

the legislature

control the jurisdiction of courts and influence their composition

State Judicial Conduct Commissions

created as an arm of the state's highest court include judges, lawyers, prominent citizens investigate judicial misconduct and make recommendations to the State Supreme Court investigate in secret and often use informal pressure to get judge off the bench without resorting to public disclosure

Bar Associations

created to try and improve the professional standing of the legal profession traditionally elitist and conservative State Bar Associations 30 states have adopted an integrated bar, requiring all attorneys to join the state bar association American Bar Association - 600,000 members, attempts to speak for the legal profession advocates argue that legal education is necessary to represent clients researchers have found that "experience," not legal training, is the best predictor of success in court (Kritzer 1998) many legal tasks are routine (uncontested divorces, adoptions, name changes, wills) these tasks are being made easier by computer programs and handbooks

Criminal Cases in Trial Courts of General Jurisdiction

decide primarily street crimes (compare to federal courts) hear felony cases (both violent and nonviolent, e.g., murder, rape, robbery, burglary, theft) number of cases has been growing * mostly because of the "War on Drugs" most criminal cases (more than 90%) do not go to trial because defendant pleads guilty debate is about what penalty to apply not guilt or innocence

Appointment of Federal Judges

determined by the Constitution nominated by the President confirmed by the Senate serve during good behavior (i.e., life) the process appears simple but it is complex and political varies by the level of court (District, Circuit, Supreme) The President has considerable power only the President can nominate vacant judgeships are highly valued present opportunities to purse political objectives and reward party faithful however, the president has very little control over when vacancies will occur lifetime appointment and Congress rarely authorizes additional judgeships Historically the Senate played a greater role in the confirmation process suggested nominees the home-state Senator had to approve of the nomination "senatorial courtesy" Today the role of the Senate is diminished, observers agree that there is less consultation and there has a been decline in "senatorial courtesy" The Obama Judiciary In just two years President Obama has left his some imprint on the Federal judiciary: he has appointed the most diverse judiciary ever over 50% of his District Court nominations have been women he has appointed the largest number of judges with a net worth >$1,000,000 Backgrounds of Federal Judges Political scientists often study the background characteristics of appointed judges there are some common characteristics regardless of the appointing president's party; those appointed: were members of the president's party prior judicial/prosecutorial experience frequently involved in party politics Backgrounds of Federal Judges But there are differences too. Recent presidents have appointed more women and the net worth of nominees has steadily increased Does it matter who gets appointed? YES an impressive body of research demonstrates that judicial behavior is related to the president who made the appointment President Bush's appointees are very conservative (Carp, Manning and Stidham 2004)

Law School Curriculum

early curriculum was 2 years today a standard curriculum is 3 years train students as generalists teach students to "think like lawyers" distinctive feature is the case method casebooks organize appellate court decisions few references to other disciplines (history, economics, public policy, etc.) employs the Socratic method - professor challenges student to explain the logic of their thinking no correct way of analyzing opinions, it is the process that counts critics of legal education argue: method of instruction is confrontational which does not suit many learning styles some argue it is too focused on knowledge needed to pass the bar exam others say not enough attention to the actual practice of law

Federal Conduct and Disability Act

establishes formal procedures for acting on complaints of misconduct by federal judges initially heard by judicial councils, sends a report to the judicial conference, which can recommend impeachment to the US House of Representatives since 1803 only 5 judges have been formally removed from the bench resignations are a far more likely result of misconduct investigations

justice

fairness in treatment by the law

Presidential Political Goals

federal judges have been selected to: reward the party faithful (e.g., Presidents Harding and Theodore Roosevelt) maximize the professionalism of the judiciary (e.g., Presidents Taft and Harding) influence public policy (e.g., Presidents Wilson and Franklin Roosevelt) modern presidents clearly focus on the political nature of appointments

Interest Group Resources

five resources are important to interest groups in the courts: money $$$ (money wins) support from other organizations (strength in numbers) longevity (victories come slow and over time in the courts—passive and reactive) expert legal staff (knowledge wins) extralegal publicity (ability to share message and influence decision makers)

Diagnostic Adjudication

focuses on determining the cause of the problem rather than just settling the case often involves non-judicial personnel in defining issues (e.g., professional experts such as psychiatrists or social workers) a good example is juvenile court where the focus is on what is best for the juvenile sentencing decisions also involve diagnostic adjudication a difficult area for courts because the law offers less guidance in this area

Traditional versus Policy Lawsuits

focuses on the scope of the lawsuit Traditional litigation involves (most cases): Single plaintiff and defendant litigation is retrospective plaintiff seeks compensation for past wrongs lawsuit is a self-contained episode once case is over, judicial involvement ends Policy litigation involves (fewer but important cases): multiple plaintiffs and defendants litigation is future oriented plaintiff seeks more than compensation lawsuit has broad ramifications, affects other parts of society the court may stay involved policy litigation is growing in importance and these cases attract a lot of attention may be private or public in the private sphere are recent cases involving automobile manufacturers and fast food restaurants in the public sphere are cases against the government such as Brown v. Board of Education (1954) involving racial discrimination in public schools. Other cases include, abortion, prison conditions, etc.

Lawyer Employment and Salaries

geography is important, in 2003 43% of all new lawyer jobs were in 20 cities! fastest growth in large states, NY, CA, TX 2007 median starting salaries for lawyers in the 10 cities with the largest number of jobs, $114,020 private practice, $65,250 business, $49,769 Government 2010 median salary $112,760 and 25% make less than $77,200

Civil Representation for the Poor

in civil matters, free legal representation is a privilege, not a right mostly offered by a legal clinic, the Legal Services Program or on a contingency fee basis Contingency Fee—the lawyers agrees to be paid only if the case is won very controversial, but increase the availability of lawyers to the poor distinctive feature of U.S. law opponents charge that (1) unfair to clients because winning lawyers take a large portion of the settlement, (2) lawyers make too much for their time spent, (3) the chance of winning big causes reckless behavior by the attorneys proponents counter that (1) lawyers that use the contingency fee do not benefit all that much, (2) they turn away plenty of cases, and (3) may not cause higher verdicts - Advertising and Legal Clinics: most advertising is modest, but accident victims often do receive letters from attorneys. States may place restrictions on advertising legal clinics may be run by community based organizations or law schools. They often specialize in uncomplicated matters: uncontested divorce, wills, bankruptcy, etc. the number of clinics has been declining - Legal Services Program — created in 1965 by President Lyndon Johnson to offer civil legal services to the poor precursors were small, largely urban organizations trying to provide professional legal services the LSP created neighborhood offices, government funded, independent, advocated for the poor replaced by the Legal Services Corporation in 1974 - Legal Services Corporation - is a private, nonprofit corporation established by Congress in 1974 overseen by an 11 person committee appointed by the president and confirmed by the Senate FY budget, $420M provides aid to >1M annually subject of partisan debates in Congress, but support is bi-partisan and budgets have been steady

Solo Practitioners

individual attorneys represent one-shotters—individuals who rarely make legal claims have modest incomes and focus mostly on criminal, personal injury, divorce, real estate, etc.

Courts in modernizing society

industrialization increased volume and types of litigation courts still reflected a rural society but had to change—specialized courts were created (e.g., small claims, juvenile, family relations) in 1931 Chicago had 556 independent courts

courts

institutions in which judges and juries resolve disputes based on law

Routine Administration

many cases filed in court are not complex, in these cases routine administration means the court has no disputed question of law, the court is merely asked to formalize a settlement uncontested divorce is an example (other examples may include probate or mortgage foreclosure) these cases are resolved quickly and with relatively little effort by the courts

Interest Groups Strategies

interest groups use four different strategies to influence courts: 1. Direct Sponsorship interest groups may directly sponsor a case, providing lawyers, paying for expenses, etc. (Brown v. Board of Education 1954) most research has focused on the high profile case sponsorship of interest groups mixed success because so few cases make it to court 2. Amicus Curiae Briefs (friend of the court) filed by an interest group to make their views known to the court offers possible legal arguments, data, expresses a point of view about how a case should be resolved less expensive (considerably) than case sponsorship an increasingly popular tool of interest groups—widely used 3. Class Actions a lawsuit brought by a person or an interest group on behalf of all people similarly situated are common among policy oriented lawsuits interest groups help sponsor the case and mobilize the individuals in the class often used in product liability cases a source of many "litigation explosion" concerns 4. Judicial Nominations interest groups would like to determine who gets appointed/elected to the bench (thinking this will lead to a favorable judicial climate) interest groups are increasingly active at the federal and state levels in trying to influence who becomes a judge Supreme Court vacancies are now a major focus of liberal and conservative interest groups

Interest Group Involvement

interests groups are focusing on judicial selections the American Bar Association (ABA) has historically been very influential—recently that influence has been diminished interest groups focus on: promoting possible nominees influencing the confirmation votes of Senators

Decisional Adjudication

involves cases where the law is clear and the facts are straightforward in decisional adjudication judges seek to rapidly establish the relevant facts and expeditiously apply the law emphasis is on the quick resolution many litigants appear pro se (representing themselves) Small-claims courts are an example of decisional adjudication (others are traffic cases, ordinance violations, etc.)

Upgrading the Personnel

job is low status within the legal system JPs may not have legal training reformer suggestions include: * training programs * abolishing justice of the peace courts

Similarities in Judges' Backgrounds

judges are more alike than different, regardless of selection method evidence points to changing trends, more women, less emphasis on former elected experience but it is difficult to link these changes to the type of selection system

Nastier, Noisier, and Costlier

judicial elections are becoming costlier, in 2000, candidates for State Supreme Court raised 100% more than those in 1994 research is finding that money raised in judicial elections is more important to winning that other traditional factors such as partisanship, incumbency and coattails judicial elections are getting noisier—more money is being spent on advertising than ever before

State Judges: Judicial Campaigns

judicial elections have traditionally been low-key, low-visibility, low-turnout affairs ethical rules and culture prevented candidates from discussing how they would decide cases campaigns were about personal integrity and character the result is that the public knows very little about judicial candidates, a poll found that just 13% of voters knew a great deal about judicial candidates few incumbent judges are challenged and even fewer are voted out of office but note that this is not terribly different from other political branches, Representatives in the US House are reelected at a 95% rate however, there are changes in judicial elections that are beginning to occur

Judicial Independence or Political Accountability

judicial independence is viewed as vital for neutral and impartial decision making, but elections are viewed by many as the best method of guaranteeing the popular accountability of judicial policy makers a tension is created between judicial independence and accountability judges typically enjoy longer terms than elected officials

common law

law developed in England by judges who made legal decisions in the absence of written law. Such decisions served as precedents and became "common" to all of England. Common law is judge made, uses precedent, and is uncodified.

civil law

law governing private parties other then criminal law

tort

law that involves the legal wrong done to another person not really private—it relies heavily on the actions of public agencies e.g., divorce law—governs private relationships but involves court decisions

legal systems

lawyers questioning witnesses, judges ruling on the basis of precedent and jurors deciding guilt or innocence; this includes common law, civil law, socialist law, islamic law

islamic law

legal system based on revelations to the prophet Muhammad found in the Qur'an and the Sunna

socialist law

legal system that originated in the former Union of the Soviet Socialist Republic following the Russian Revolution of 1917 and was used in the Soviet Union and its satellite nations in Eastern Europe

Abolishing Justice of the Peace Courts

major obstacle is influence of powerful non-lawyer judges who like their jobs JPs are accessible justice advocates believe common sense justice practiced in a local community is desirable they are "people's courts"

The Work of Lawyers

many think of lawyers and trials together but the reality is that most lawyers do not spend their time in court England draws a formal distinction between: Solicitors - office attorneys who advise clients but argue only minor cases, Barristers - litigators who argue case in major trial courts Litigating - presenting cases before judges or juries trial attorneys must organize a case and the facts for presentation to the judge or jury only a small number of attorneys are full-time litigators Representing - helping clients with securing a license, dealing with administrative regulations, requesting variances, etc. Negotiating - most lawsuits are settled through negotiation. Lawyers work to settle a dispute in the most favorable way for their client. Negotiations in criminal court are frequently referred to as plea bargaining Drafting Documents - lawyers spend a great deal of time writing documents. A properly drafted document can help a client avoid a lawsuit in the future. Documents are required at every stage of a lawsuit. Counseling Clients - lawyers advise clients about the dictates of the law. They are expected to provide sound, dispassionate advice about the law. this role sometimes creates tension between the lawyer and client. Lawyers must sometimes give advice that the client would rather not hear—for example, the evidence will likely lead to a conviction or your not going to be able to get that much money in a settlement. Cause Lawyering - involves the mobilization of the law combined with political calculations. emerged in the 1960s with civil rights and consumer safety initiatives includes both the political left and right

Court Caseloads

most disputes will never turn into a lawsuit! are we experiencing a litigation explosion? court caseloads go up and down over time, resulting in reaction by the judiciary not all cases are the same, we must look carefully at judicial statistics of the 90 million cases filed every year, approximately 60% are traffic related, misdemeanors or small-claims

Characteristics of a Good Judge?

no agreed upon set of criteria that make up the personality of a good judge judges are expected to be fair, honest, patient, wise, legal wisdom, etc... but they are also expected to be good managers—keep the docket moving, organized what are the characteristics of a good judge?

Who Should Select Judges?

no consensus on whom we should trust to select judges the choices include, lawyers, elected officials or the voters a case can be made for and against each of these actors because of disagreement about who should select judges, judicial selection is a highly unstructured process that includes many different actors depending on the jurisdiction

court decisions

often involve discretion; determinations that settle controversy. They are authoritative, involve discretion, and they determine winners and losers

the constitution

one of the most powerful symbols of American government; Fundamental rules that determine how those who govern are selected, the procedures by which they operate, and the limits to their powers

political parties

organizations that sponsor candidates for political office under the organization's name

Justices of the Peace Courts

origins in small, isolated English towns * purpose was to create simple and speedy justice applied by local community most are non-lawyer judges, locally elected with short terms and low salaries critics argues JPs are outdated reforms focus on upgrading the personnel or abolishing the system

lawyers

part of the the middle ring of law; they interpret the law. In the privacy of their offices they interpret law to their clients many of whom will never see a judge

Licensing Requirements

passing the bar exam is required to practice law Historically, lawyers were admitted to the bar by courts and judges bar associations worked to improve the quality of the legal profession most bar exams include: (1) basic areas of law, (2) knowledge of state law, (3) legal ethics the Multistate Bar Examination is used in 48 states (53 U.S. jurisdictions total) and offered twice a year: 2010, 79,953 tests administered with a passage rate of 68% NY & CA administer the most tests other tests include the Multistate Professional Responsibility Test and the Multistate Essay Test many students take a bar review course

plaintiff

person or party who initiates a law suit

geographical jurisdiction

physical area over which courts can hear and decide disputes geographical area from which courts are authorized to hear and decide disputes boundaries typically follow the lines of other governmental bodies when an event occurs on the border of two jurisdiction a dispute about where to hear the case sometimes arises extradition involves the surrender by one state (or country) of an individual accused of a crime in another jurisdiction

federalism

political system in which governmental powers are divided between a central government and state government

Criminal Cases in Trial Courts of Limited Jurisdiction

process millions of misdemeanor cases each year involving: disturbing the peace, shoplifting, public drunkenness, speeding, etc. generally impose a max. fine of $1,000 and no more than one year in jail many handle preliminary stages of felony cases—e.g., arraignments, setting bail, appointing counsel for indigents, conducting preliminary examinations usually decide cases under a set amount—often referred to as small claims * limits range from $1,500 to $10,000—the common maximum limit is $5,000 use streamlined procedures to provide quick, inexpensive processing small claims cases are less formal than other cases small claims are a large portion of civil filings every year

social policies

race, ethnicity, gender and sexual preference. Some discussed in the book include abortion, gun ownership, posting of religious symbols in public places, and same sex marriage

Court Unification

reformers believe multiplicity of courts is inefficient and inequitable they call for a unified court system which reflects five general principles: 1. Simplified court structure - one county-level court and three tier state system 2. Centralized Administration - state supreme court provides administrative leadership, hierarchy of authority 3. Centralized Rule Making - state supreme court should adopt uniform rules for all state courts, shifts control from legislatures to judges and lawyers 4. Centralized Judicial Budgeting - state judicial administrator prepares single budget, funds allocated by state rather than local boards 5. Statewide Financing - courts often get less money than they need from local jurisdictions, statewide financing could alleviate this problem

Substantive and Procedural Law

substantive law defines legal rights—the law defines the legal relationship between the citizen and the state, and among citizens themselves (e.g., contracts, property, torts, will criminal law) procedural law establishes the methods of enforcing legal rights * governs the conduct of cases in court * protects against arbitrary government actions * the central idea is due process of law

public opinion

the collective attitudes of citizens concerning a given issue or question

Neutral and passive decision maker

the judge is a neutral arbitrator and expected to be passive; must be free from pressure-independent

Diversity and the Judiciary

the judiciary has traditionally been white, male and Protestant, but this is changing Presidents have been appointing more diverse judges—37% of federal judges can now be considered nontraditional but there is far less diversity among state judges, where women and minorities still lag behind

executive branch

the law enforcing branch of government

State Judges: Judicial Elections

the majority of state judges are initially selected or retain their position through popular elections election types include: nonpartisan elections - judicial candidates run for office without a party affiliation listed on the ballot partisan elections - judicial candidates are listed on the ballot with party retention elections - where the voters are asked whether to keep the incumbent judge

the history of state courts

the organization of American courts reflects but does not mirror their English heritage

obiter dictum or dicta

the part of reasoning in a judicial opinion that is not necessary to resolve the case. Dicta are not necessarily binding in future cases

jurisdiciton

the power of a court to decide a dispute or to hear a case in question

party prosecution

the responsibilities of the parties in an adversary proceeding to define the legal issues in the case and present evidence supporting their position

Diversity and Stratification of the Legal Profession

there are many differences among lawyers and law firms Heinz and Lauman and Nelson found in a Chicago study: lawyers range from general to specific in their practice with less than 25% considering themselves specialists lawyers consistently represent either plaintiffs or defendants lawyers tend to represent either large corporations or individuals they concluded that lawyers are either part of the: corporate sector—representing large corporations, regulatory agencies, or governmental bodies, or personal client sector attorneys—representing individuals corporate sector lawyering has been growing faster than the private client sector

Legal Services

there are many lawyers in the U.S. (>1M) but individual citizens still report difficulty obtaining legal services Why? many lawyers work for business lawyers can be expensive but they are often necessary in criminal prosecutions, legal representation is a right (Gideon v. Wainwright 1963) legal services are provided—if you cannot afford them There are two systems: assigned counsel - lawyers are assigned cases by a judge on case by case basis and paid hourly for their work often young and inexperienced lawyers used by half of the counties in the U.S. public defender—salaried lawyers working for the state or local jurisdiction who are assigned cases by an administrative professional intended to bring professionalism to criminal representation of the poor used frequently in urban areas proponents argue that lawyers can focus on the cases because they are salaried, critics charge that because they receive a salary they will not be as passionate advocates

Which System is Best?

there is a serious and important debate about how we should choose justices. selection methods give heighten or diminish the role of certain political actors (and voters)

uncodified rules and regulations

there is no one place to look for a statement of "the law"; the law emerges through precedent found in court decisions; common-law judges and lawyers reason by analogy which allows leeway in formulating new legal rules or modifying old ones, because analogies are neither correct nor incorrect, only more or less persuasive; judges may distinguish a current case from previous ones; judges may find that a case differs from all previous cases or that a previous case was wrongly decided

Varying Roads to a Judgeship

three principle methods of judicial selection are used in the United States appointment - selection by either the executive or legislative branch of government election - either partisan or non-partisan merit selection - typically involving appointment with retention elections political geography matters

Frustrations of the Job

trial judges often face staggering caseloads face pressure to move cases judges have limited control over lawyers, jails, prosecutors, etc. some judicial positions have low prestige—criminal court judges

subject matter jurisdiction

types of cases that courts have been authorized to hear and decide many courts are limited to cases dealing with particular substantive issues (e.g., misdemeanors, small claims, bankruptcies)

Juvenile Courts

unique in that they blend civil and criminal product of the Progressive movement underlying philosophy is legal doctrine of parens patriae (state as parent) all states have juvenile courts, regular judges may rotate through this assignment or there may be specialized judges 2.2 juveniles arrested (2003), but from 1994-2003 juvenile arrests for violent crime are decreasing age range less than 16-18, may be tried as an adult for some crime most cases are delinquency, status offenses and child victim > delinquency - violation of criminal law that would be a crime if committed by and adult (e.g., theft, burglary, drugs) * penalties include probation or juvenile institution * a large portion of juvenile matters > status offenses involve acts illegal only for juveniles (e.g., runaway, truancy, possession of alcohol, curfew) * sentence may be juvenile detention * child victim petitions involving neglect or dependency, in * court but not the fault of the juvenile * court acts as social services agency two standards for deciding appropriate disposition best interest of the child - In re Gault decision required the application of 14th amendment to juvenile hearings (due process) best interest of the community - some believe juvenile courts should be less adversarial, more treatment oriented—the trend is toward more formal and systematic procedures

The Assembly Line in Municipal Courts

urban court caseloads require quick dispositions the response was to create shortcuts—create shortcuts to resolve cases quickly initial appearances are usually the final one * e.g., traffic court defendants plead guilty are sentenced in less than a minute and the next case is called * few trials are held, attorneys are rare and the focus is on sentencing uniform penalties are common

Doctrine of access

used to control the flow of cases into the judiciary * the court must have jurisdiction - the power of a court to * hear a case in question * controversy must be a real dispute—not hypothetical * plaintiff must have standing to sue are judicially created and can be changed or waived for a particular case—especially in policy lawsuits

remedies

vindication of a claim of right. A legal procedure by which a right is enforced or the violation of right is prevented or compensated. judgment - a court's official decision about the rights and claims of each side in a lawsuit remedy - the relief granted by the court remedies include: declaratory judgments - a judicial determination of the legal rights of the parties restitution - the return of goods a party is entitled to the most common remedy is monetary damages Compensatory damages - payments for the actual harm suffered (e.g., medical bills, lost income, pain and suffering) Punitive damages - monies awarded to a person who has been harmed in a particularly malicious or willful way (i.e., not related to the harm done and meant punish the responsible party) under equity law, litigants seek an injunction - a court order that requires a person to take and action or refrain from taking action

Evaluating the Systems

which system produces better judges? but, better is a "normative" concept we can ask "who gets appointed?" and "what do they do on the bench?"