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Chapter 12 The Courts. The Common Law Tradition Dates from 1066 and William the Conqueror’s Curiae Regis and Year Books

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Chapter 12

The Courts


The Common Law Tradition

  • Dates from 1066 and William the Conqueror’s Curiae Regis and Year Books
  • - It had a unifying effect and set up common or organized rules to follow. The most important rulings were put in a Year Book. If there were no rules on the matter, the judge would make a new rule or law.
  • Common law – Judge-made law that originated in England and was derived from prevailing customs
  • Precedent – A court ruling bearing on subsequent legal decisions in similar cases. Precedent is embodied in the doctrine of stare decisis
  • Emanating from stare decisis, or standing on decided cases
    • Judges follow the precedents set previously by their own courts or higher courts that have authority over them

Sources of American Law

  • The Body of American Law includes the following:
  • Constitutions
    • United States Constitution: Stems from a weak govt. under the Articles of Confederation. It is the supreme law of the land.
    • State Constitutions: Supreme law within their respective borders only unless the ruling violates the U.S. Constitution.
  • Statutes and Administrative Regulations: Although common law is the basis of our civil and criminal legal system, statutes have increasingly become important in defining rights and obligations of individuals: Federal and state statutes, ordinances for cities, rules and regs. of administrative agencies.
  • Case Law: Judicial interpretations of common law principles and doctrines as well as interpretations of the types of law above.

Basic Judicial Requirements

  • We have a dual court system in the United States. (State and Federal)
  • The federal court system gets its power from Article III, Section 1 of the Constitution. That section limits Jurisdiction to a federal question or diversity of citizenship.
  • Jurisdiction is the authority to hear and decide cases
    • A Federal Question: has to do with the Constitution, or a treaty or a federal law.
    • or
    • Diversity of Citizenship: has to do with parties that are from different states, or between a U.S. citizen and a foreign country or citizen. ($75,000 amount)
    • Federal Courts: District, Appeals, Supreme
u s district courts
Lowest federal courts. They are trial courts.

They have general jurisdiction: They can hear a wide variety of cases.

There are other lower courts of specialty. They have a limited jurisdiction: They can try cases involving only certain types of claims.

There is at least one federal district court per state. Currently, there are 94 district courts in the nation, including one in Yosemite National Park.

If you lose your case here, you can appeal it to the next highest court: The U.S. Court of Appeals or appellate court.

U.S. District Courts
u s courts of appeal
There are 13 U.S. Courts of Appeal. Sometimes they are called U.S. Circuit Courts of Appeal. A circuit is an “area”.

We live in the 9th Circuit in Sacramento.

Twelve of these hear appeals from their respective circuits, including the Court of Appeal for the District of Columbia.

The 13th Circuit or Federal Circuit has NATIONAL Appellate jurisdiction over certain cases such as patent law, and where the U.S. government is named as a defendant in a case

These are not Trial Courts like U.S. District Courts, they have panels of three or more judges that review the record of the case. (transcripts)

These Courts do not look at questions of fact, but questions of law.

If you lose here, you can appeal this ruling to the U.S. Supreme Court.

U.S. Courts of Appeal
u s supreme court
The highest court in the United States

Nine Justices since 1837

Original Jurisdiction: A trial court in cases affecting foreign diplomats and those in which a state is a party.

Appellate Jurisdiction: Hears cases from federal appellate courts and state Supreme Courts. It can review a state supreme court decision ONLY IF a federal question is involved.

Sup. Ct. term begins on the first Monday in October and usually adjourns in June or July. Special sessions can be held.

It hears less than one-half of one percent of all cases decided every year.

U.S. Supreme Court
parties and procedures
Plaintiff: Party bringing the suit.

Defendant: Party against whom the lawsuit is brought.

Special Interest group lawsuits have increased over the years because they litigateor bring an issue to trial…1/3 of all business cases, and nearly all civil liberties cases.

Interest groups file Amicus Curiae: “Friend of the Court” briefs.

Interest groups also bring class-action suits: Decisions that affect members of a class.

State and federal courts have established procedural rules that are followed in court. Parties must comply, or they either commit civil contempt: failing to comply with a court’s order for the benefit of another party to the proceeding, or criminal contempt: usually obstruction of justice.

Parties and Procedures

Which Cases Reach the Supreme Court? – a subjective process, but certain factors increase a case’s chances

  • There is no absolute right of appeal to the Supreme Court…but,
  • 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
  • when a state court has decided a substantial federal question
  • when the highest state court holds a federal law invalid, or 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, the “Tenth Justice”, is pressuring the Court to hear a case
granting petitions for review
Writ of Certiorari

More than 90 percent of them are denied.

“Rule of Four”

Denial is not meant to be a decision

Court does not hear evidence either

Court considers abstracts, the record, and briefs

Attorneys give Oral Arguments

These are given Mon. through Wed. and sometimes Thurs. for seven two-week sessions from the first week in Oct. to the end of April or the beginning of May.

Justices then meet, discuss, and vote in conference in private each Wed. and Friday throughout the term.

They are look at new petitions at this time.

Granting Petitions for Review

Types of court decisions

  • Affirm: A lower court’s judgment was proper.
  • Reverse: A reversible error was committed at the lower court.
  • Remand: Perhaps a wrong law was applied in a lower court.
  • Unsigned: “per curiam” or by the court.
  • Types of court opinions
  • Opinions are filled with the rulings and reasoning of the Justices…
  • Unanimous: All
  • Majority: Most
  • Concurring: Agrees with majority, but for different reasons.
  • Dissenting: Disagrees with the majority.
  • Opinions are made public through the Clerk of the Court’s office.
  • It is also published in the United States Reports code.
selection of federal judges
The Senate and President decide who will be one of the 850 federal judges, no matter what the level.

Life Tenure (resign, retire, die, impeached).

Nominations are suggested to the president by senators, DOJ, other judges, interest groups, lawyers, candidates themselves.

Factors to consider: character, politics, competence, gender, ethnicity. Procedure: President nominates, Senate confirms or rejects with help from the Senate Judiciary Committee.

Federal District Judgeships: Senatorial Courtesy – A constraint on the president by nominees own senator.

FDJ nominations begin with a senator from the state and of the president’s party. The president works with the senators.

For Circuit Court of Appeals Judges: The president consults the Circuit Judge Nominating Commission list of nominees as candidates.

For the Supreme Court: The president nominates a candidate.

Most candidates have been in private practice or state/federal judges.

Ideology is considered important in order to institutionalize a president’s political views long after they are gone from office.

The Senate has rejected about 20 percent of nominees due to ideology.

Selection of Federal Judges

Ways in Which Courts Make Policy

  • Judicial review – The power of the courts to declare the acts of governmental officials unconstitutional (Marbury v. Madison, 1803)
    • A federal court’s ruling affects only its jurisdiction.
    • The higher the level of court the greater the impact of its decision.
  • Judicial activism – Taking a broad view of the Constitution and using power to direct policy towards a desired goal. Affects state legislatures, Congress, and administrative agencies. (Liberalism?)
  • Judicial restraint – Rarely using judicial review and limiting judicial action in the policy process. Congress and the president are elected, so let them make the decisions. (Conservatism?)

Checks on the Judiciary

  • Executive Checks
    • Judicial implementation: Refusing the enforcement of judicial decisions. Rare. Public opinion. Judicial implementation requires cooperation at all levels.
    • Appointments: Appointing new judges and justices as new seats become vacant. The Solicitor General is significant in shaping judicial influence.
  • Legislative Checks
    • Appropriation of funds to carry out rulings
    • Constitutional amendments
    • Amending laws to overturn court’s rulings
  • Public Opinion
    • Sometimes can ignore Supreme Court decisions (prayer in schools)
    • Pressure for non-enforcement: Pressure on local and state elected officials.
    • Influence judicial opinions: Judge’s attitudes are influenced by public opinion. They rarely issue decisions that go against strong public opinion. They try to avoid divisiveness among the public, because it would lessen their stature and authority as a body.
  • Judicial Self-Restraint
    • Tradition of restraint: It will not hear a meritless appeal just to make a ruling.
    • Narrow focus of judicial questions: It focuses on one issue or aspect of an issue in the case.
    • Stare Decisis: A restraint, because it obligates the courts to follow established precedents.
    • Other Restraints: Justiciable disputes and political questions (fewer today than in the past)
      • Lower courts can ignore higher courts rulings indirectly by: “not exact circumstance” and “ambiguous with respect to the issue in the lower court”

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