Understanding American Legal System: Judicial Independence and Political Pressures

1. Introduction to the American Legal System Prof. John T. Nockleby Director, Journalist Law School Professor John Nockleby Director, Journalist Law School

2. Today: Three Goals • Overview of legal system—the Third Branch of Government • Overview of torts, with special attention to who should pay for losses • Perspectives on civil litigation from Pl & Defense lawyers • Friday: Overview of procedural aspects of civil suits • Breakout: Over view of Class Actions

3. Co-Equal Branches Federal • Legislative • Executive • Judicial State • Legislative • Executive • Judicial

4. Power Relationship of Legal System to Political System • Judges elected (most states) for term, or appointed (federal & some states) • Judicial Independence • the idea that neither political system norpowerful entities should control 3d branch • Political pressures over 3d branch exercised in limited & controlled fashion Note: these comments address both Federal and state systems

5. Political Pressures on 3d Branch Appropriate: • Public Criticism • Legislature change underlying law (except Constitutional law) • Impeachment of judicial officers • Recall or don’t re-elect judges • Legislature change law Not Appropriate: • Ethical constraints: e.g., private conferences; judge friends • Coercion through salary adjustments • Judges told to do mayor’s, corps’ bidding • Respond to direct political pressure • Taking into account status of parties • Bribes

6. Political Pressures on 3d Branch The credibility of the legal system hinges on judicial independence Questionable ? • Contribute large sums to elect judges favorable to one’s legal position? • CEO of Massey Coal Co contributed $3 million to campaign of W.Va. Supreme Court challenger Brent Benjamin, who won. • Justice Benjamin refused to recuse himself in $50 million lawsuit against Massey ; W.VaSCt ruled 3-2 for Massey Coal • Caperton v. A. T. Massey Coal Co

7. Political Pressures on 3d Branch The credibility of the legal system hinges on judicial independence • Caperton v. A. T. Massey Coal Co • Appeal to US SCt based on due process grounds followed: • USSCt: 5-4: • held that due process required Benjamin to recuse himself

8. Political Pressures on 3d Branch The credibility of the legal system hinges on judicial independence • North Carolina SCt election Questionable ? • “Independent” expenditures by Chamber of Commerce attacking a state supreme court justice they don’t like https://www.youtube.com/watch?v=HgO_Bn8pVfg&feature=youtu.be Outside Spending Enters Arena of Judicial Races By ERIK ECKHOLM MAY 5, 2014

9. Political Pressures on 3d Branch The credibility of the legal system hinges on judicial independence • To what extent can judges be subjected to political pressures & still remain independent? • Terri Schiavo case • Institutional Budget coercion Questionable {State & Federal courts} :

10. Relationship of legal system to political system CONVENIENT MYTHOLOGY: Political bodies make the law; judicial branch MERELY interprets

11. The Political Game SLOGANS: • “Legislating from the Bench” • “Strict Constructionist” • “A Living Constitution” • “Judges are like umpires; umpires don’t make the rules, they apply them.” Supreme Court nominees are asked about these at confirma-tion hearings

12. REAL ISSUES: • Which theories of judicial lawmaking make the most sense? • Which theories of interpretation do we want our judges to employ? • What background and political orientation do we want our judges to have?

13. Journalists often wonder …. • What is “the law” concerning a given subject? • How will a certain case come out? Often difficult to answer because judges make law in the process of adjudication

14. Judges make law in THREE Important ways: • Judges decide what the general phrases in the Constitution mean (“due process;” “equal protection”) • Judges decide what statutes mean, and fill gaps, decipher ambiguities • Judges make common law

15. 1. Interpreting the Constitution • In U.S., judges have the final word on what the constitution means • Judicial Review of legislation—Marbury v Madison • Judges decide what general phrases mean: • “due process” • “equal protection” • “abridging the freedom of speech” • “Habeas Corpus”

16. 2. Judges Interpret Statutes, Fill Gaps, Adjudicate Ambiguities • Many statutes incorporate vague language • Entire statutory body of antitrust contained in few vague phrases (“restraint of trade”; “monopolization”) • Civil Rights statutes— use broad phrases like “discrimination” or “unequal” • Political bodies punt difficult issues to judicial system Legislating from the bench?

17. 3. Common Law • Examples of common law adjudication: • Contract disputes [what is a contract? Is that “agreement” enforceable?] • Arbitration “agreements” in standardized contracts • “Privacy policies” –websites • Disputes over property (water rights; land use; nuisance; conflicting uses of land)

18. In General, Common Law is… • Judge-made law • A body of rules and precedents • built up over time—by accretion --i.e., case-by-case; • limited rulemaking for a typically narrow set of circumstances • Judges make law in the very case that first raises the issue • This judge-made body of law changes—Over time, judges create new rights and destroy others

19. Common Law--background • Antedates U.S. Constitution • Each state has its own common law—but judges are influenced by developments in other states • At one time, MOST law in the U.S. was common law; but now: • Criminal law is entirely legislative • Many statutes, both Fed & State, intersect/overlap with common law

20. Common Law • Examples where judges make the law: • Tort & accident law • Determine what’s a compensable “harm” • When did someone act “negligently” • What standard should be used to determine whether products or drugs are defective? • Remedies – damages, injunctions

21. Common Law • Largely employed by state courts (or Fed courts interpreting state law) • Important because nearly 97% of cases are handled by STATE courts • A Legislature can change that state’s common law

22. More power dynamics: Legislature >Judicial branch • Complex conversations between Legislative branch & judicial branch over: • Interpreting statutes • Common law • Very difficult for the branches to “converse” over Constitutional matters • Constitutional amendment • Appointment of high level judges

23. “Legal Reasoning” • A judge will focus on facts of a particular dispute • She looks to previously-established common law rules • Adherence to precedent, unless precedent is no longer desirable • Look for analogiesin other areas of law, or to other legal systems • Look to broader policy goals: what effect will this rule have on society, future disputes? Legislating?

24. Civil Litigation: Federal Law vs. State Law CAUTION: Federal courts can hear state law claims; state courts must abide by federal law

25. U.S. Judicial Structure OPEN TO PUBLIC OPEN TO PUBLIC Closed to public