American Government and Politics Today

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The Common Law Tradition. American law stems from English legal traditionUnlike the law in many other countries, English law is based on common lawJudge-made law is based on custom and then on precedentStare decisis: to stand on decided casesA decision in an initial case is binding on ensuing c

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American Government and Politics Today

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1. American Government and Politics Today Chapter 13 The Courts

2. The Common Law Tradition American law stems from English legal tradition Unlike the law in many other countries, English law is based on common law Judge-made law is based on custom and then on precedent Stare decisis: to stand on decided cases A decision in an initial case is binding on ensuing cases of that type Major advantages of this system are efficiency and stability

3. Sources of American Law Constitutions Statutes and administrative regulations Case law

4. The Federal Court System Basic judicial requirements Jurisdiction: the authority to hear and decide cases The Constitution says that federal courts have jurisdiction in cases that: Involve a federal question Involve diversity of citizenship Standing to sue

5. The Federal Court System

6. Types of Federal Courts U.S. District Courts U.S. Courts of Appeals The U.S. Supreme Court Specialized federal courts and the “war on terrorism” The FISA court Alien “removal courts”

8. Parties and Procedures Plaintiff: the person or organization that initiates a lawsuit Defendant: the person or organization against whom the lawsuit is brought Litigate: to engage in a legal proceeding or seek relief in a court of law; to carry on a lawsuit Class-action suit: a lawsuit that is filed to seek damages for a large group of persons in the same situation

9. An amicus curiae brief: filed by a third party (“friend of the court”) who is not directly involved in the litigation but who has an interest in the outcome of the case Procedural rules Civil contempt: failing to comply with a court’s order for the benefit of another party Criminal contempt: obstructing administration of justice or bringing the court into disrespect Parties and Procedures (continued)

10. Which Cases Reach the Supreme Court? When two lower courts are in disagreement When a lower court’s ruling conflicts with an existing Supreme Court ruling When a case has broad significance (as in desegregation or abortion decisions) When a state court has decided a substantial federal question

11. Which Cases Reach the Supreme Court? (continued) When the highest state court holds a federal law invalid When the highest state court upholds a state law that has been challenged as violating a federal law When a federal court holds an act of Congress unconstitutional When the Solicitor General pressures the Court to hear a case

12. The Supreme Court at Work Granting petitions for review - review is granted by a writ of certiorari, issued when a minimum of four justices agree that the case should be heard by the Supreme Court (the “rule of four”) Deciding cases - both parties in the case submit legal briefs and (usually) make oral arguments Decisions and opinions Affirmed, reversed, or remanded Unanimous opinion Majority opinion Concurring opinion Dissenting opinion

13. The Selection of Federal Judges Judicial appointments Federal District Court judgeship nominations Federal Courts of Appeals appointments Supreme Court appointments The special role of the Chief Justice Partisanship and judicial appointments The Senate’s role

14. Policy Making and the Courts Judicial review Judicial activism and judicial restraint Strict versus broad construction Ideology and the Rehnquist Court The Court shifted to the right, on the whole Federalism - the Rehnquist Court emphasized states’ rights Civil rights - mixed results under the Rehnquist Court The Roberts Court - too early to generalize

15. What Checks Our Courts? Executive checks The courts have no enforcement power; the president does In rare cases a president refuses to implement a decision More frequently, presidents use their power of appointment to check the judiciary Legislative checks Constitutional amendments Rewriting laws

16. What Checks Our Courts? (continued) Public opinion Judicial traditions and doctrines - to a certain extent, the courts check themselves Hypothetical and political questions - refusing to adjudicate on either The impact of the lower courts - they cannot overturn a Supreme Court ruling, but can choose to apply it in as limited a fashion as possible

17. Questions for Critical Thinking Why do laws exist? Who makes the law? What happens if someone violates the law? What if the law is not fair or just? Since they are not elected, should Supreme Court judges be making policy? Is it dangerous for those who do not face the public scrutiny in any meaningful way to directly craft policy?

18. Questions for Critical Thinking What checks do the executive and the legislature have on the judiciary? Does the bureaucracy have any checks? Does the public?

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