Outline of the U.S. Legal System

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Bureau of International Information Programs United States Department of State http://usinfo.state.gov 2004 OUTLINE OF THE U.S.U.S. LEGAL LEGAL SYSTEMSYSTEM

CONTENTS

INTRODUCTION The U.S. Legal System ...... 4

CHAPTER 1 History and Organization of the Federal Judicial System ...... 18

CHAPTER 2 History and Organization of State Judicial Systems ...... 44

CHAPTER 3 Jurisdiction and Policy-Making Boundaries ...... 56

CHAPTER 4 Lawyers, Litigants, and Interest Groups in the Judicial Process . . . . 72

CHAPTER 5 The Criminal Court Process ...... 90

CHAPTER 6 The Civil Court Process ...... 118

CHAPTER 7 Federal Judges ...... 140

CHAPTER 8 Implementation and Impact of Judicial Policies ...... 158

The Constitution of the United States ...... 177

Amendments to the Constitution of the United States ...... 192

Glossary ...... 204

Bibliography ...... 212

Index ...... 214

INTRODUCTION THE U.S. LEGAL SYSTEM

In this scene from an 1856 painting by Junius Brutus Searns, George Washington (standing, right) addresses the Constitutional Convention, whose members drafted and signed the U.S. Constitution on September 17, 1787. The Constitution is the primary source of law in the United States. 6 OUTLINE OF THE U.S. LEGAL SYSTEM

Every business day, courts throughout the predictability and enforceable the United States render decisions that common norms that the rule of law together affect many thousands of provides and the U.S. legal system people. Some affect only the parties to guarantees. a particular legal action, but others ad- This introduction seeks to familiar- judicate rights, benefits, and legal ize readers with the basic structure principles that have an impact on vir- and vocabulary of American law. tually all Americans. Inevitably, many Subsequent chapters add detail, and Americans may welcome a given rul- afford a sense of how the U.S. legal ing while others — sometimes many system has evolved to meet the others — disapprove. All, however, ac- needs of a growing nation and its cept the legitimacy of these decisions, ever more complex economic and and of the courts’ role as final inter- social realities. preter of the law. There can be no more potent demonstration of the trust that Americans place in the rule A FEDERAL LEGAL SYSTEM: of law and their confidence in the U.S. Overview legal system. he American legal system has The pages that follow survey that several layers, more possibly system. Much of the discussion ex- Tthan in most other nations. plains how U.S. courts are organized One reason is the division between and how they work. Courts are central federal and state law. To understand to the legal system, but they are not this, it helps to recall that the United the entire system. Every day across States was founded not as one nation, America, federal, state, and local but as a union of 13 colonies, each courts interpret laws, adjudicate dis- claiming independence from the putes under laws, and at times even British Crown. The Declaration of strike down laws as violating the fun- Independence (1776) thus spoke of damental protections that the Consti- “the good People of these Colonies” tution guarantees all Americans. At but also pronounced that “these the same time, millions of Americans United Colonies are, and of Right transact their day-to-day affairs with- ought to be, FREE AND INDEPEN- out turning to the courts. They, too, DENT STATES.” The tension between rely upon the legal system. The young one people and several states is a couple purchasing their first home, perennial theme in American legal two businessmen entering into a con- history. As explained below, the U.S. tract, parents drawing up a will to pro- Constitution (adopted 1787, ratified vide for their children — all require 1788) began a gradual and at times INTRODUCTION 7

hotly contested shift of power and SOURCES OF FEDERAL LAW legal authority away from the states and toward the federal government. The United States Constitution Still, even today states retain substantial authority. Any student of the Supremacy of Federal Law American legal system must under- uring the period 1781–88, an stand how jurisdiction is apportioned agreement called the Articles between the federal government and Dof Confederation governed the states. relations among the 13 states. It estab- The Constitution fixed many of the lished a weak national Congress and boundaries between federal and state left most authority with the states. The law. It also divided federal power Articles made no provision for a feder- among legislative, executive, and judi- al judiciary, save a maritime court, al- cial branches of government (thus though each state was enjoined to creating a “separation of powers” honor (afford “full faith and credit” between each branch and enshrining to) the rulings of the others’ courts. a system of “checks-and-balances” The drafting and ratification of to prevent any one branch from the Constitution reflected a growing overwhelming the others), each of consensus that the federal government which contributes distinctively to the needed to be strengthened. The legal legal system. Within that system, the system was one of the areas where Constitution delineated the kinds of this was done. Most significant was laws that Congress might pass. the “supremacy clause,” found in As if this were not sufficiently com- Article VI: plex, U.S. law is more than the statutes This Constitution, and the Laws of passed by Congress. In some areas, the United States which shall be Congress authorizes administrative made in Pursuance thereof; and all agencies to adopt rules that add detail Treaties made, or which shall be to statutory requirements. And the made, under the Authority of the entire system rests upon the tradition- United States, shall be the supreme al legal principles found in English Law of the Land; and the Judges in Common Law. Although both the every State shall be bound thereby, Constitution and statutory law super- any Thing in the Constitution or sede common law, courts continue Laws of any State to the Contrary to apply unwritten common law notwithstanding. principles to fill in the gaps where the Constitution is silent and Congress This paragraph established the first has not legislated. principle of American law: Where the 8 OUTLINE OF THE U.S. LEGAL SYSTEM

federal Constitution speaks, no state branches. As James Madison explained may contradict it. Left unclear was in Federalist No. 51, “usurpations are how this prohibition might apply to guarded against by a division of the the federal government itself, and the government into distinct and separate role of the individual state legal sys- departments.” Each of Madison’s “de- tems in areas not expressly addressed partments,” legislative, executive, and by the new Constitution. Amend- judiciary, received a measure of ments would supply part of the an- inﬂuence over the legal system. swer, history still more, but even today Americans continue to wrestle with Legislative the precise demarcations between the The Constitution vests in Congress the federal and state domains. power to pass legislation. A proposal considered by Congress is called a bill. Each Branch Plays a Role in the If a majority of each house of Con- Legal System gress — two-thirds should the Presi- While the drafters of the Constitution dent veto it — votes to adopt a bill, it sought to strengthen the federal gov- becomes law. Federal laws are known ernment, they feared strengthening it as statutes. The United States Code is a too much. One means of restraining “codiﬁcation” of federal statutory law. the new regime was to divide it into The Code is not itself a law, it merely

The Constitution has vested the power to pass legislation in Congress, here gathered in a joint session for President George W. Bush’s budget speech in 2001. The executive power, in turn, is entrusted to the President. INTRODUCTION 9

presents the statutes in a logical quite specific but others, most notably, arrangement. Title 20, for instance, “To regulate Commerce with foreign contains the various statutes pertain- Nations, and among the several States,” ing to Education, and Title 22 those are less so. Obviously the power to in- covering Foreign Relations. terpret the less precise delegations is Congress’ lawmaking power is lim- extremely important. Early in the ited. More precisely, it is delegated by young republic’s history, the judiciary the American people through the branch assumed this role and thus se- Constitution, which specifies areas cured an additional and extremely where Congress may or may not legis- vital role in the U.S. legal system. late. Article I, Section 9 of the Consti- tution forbids Congress from passing Judicial certain types of laws. Congress may As with the other branches, the U.S. not, for instance, pass an “ex post facto” judiciary possesses only those powers law (a law that applies retroactively, or the Constitution delegates. The Con- “after the fact”), or levy a tax on ex- stitution extended federal jurisdiction ports. Article I, Section 8 lists areas only to certain kinds of disputes. Arti- where Congress may legislate. Some of cle III, Section 2 lists them. Two of the these (“To establish Post Offices”) are most significant are cases involving a question of federal law (“all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made…”) and “diversity” cases, or disputes between citizens of two different states. Diversity jurisdiction allows each party to avoid litigating his case before the courts of his adversary’s state. A second judicial power emerged in the Republic’s early years. As explained in Chapter 2, the U.S. Supreme Court in the case of Marbury v. Madison (1803) interpreted its delegated powers to include the authority to determine whether a statute violated the Laws passed by one of the 50 state Constitution and, if it did, to declare legislatures, such as the New York State such a law invalid. A law may be un- Assembly shown above during a roll call, apply only to the citizens of that state or constitutional because it violates rights outsiders who reside or do business there. guaranteed to the people by the Con- 10 OUTLINE OF THE U.S. LEGAL SYSTEM

stitution, or because Article I did not executive branch consisted of the authorize Congress to pass that kind President, Vice President, and the of legislation. Departments of State, Treasury, War, The power to interpret the consti- and Justice. As the nation grew, the ex- tutional provisions that describe ecutive branch grew with it. Today where Congress may legislate is thus there are 15 Cabinet-level Depart- very important. Traditionally, Con- ments. Each houses a number of gress has justiﬁed many statutes as Bureaus, Agencies, and other entities. necessary to regulate “commerce… Still other parts of the executive among the several States,” or interstate branch lie outside these Departments. commerce. This is an elastic concept, All exercise executive power delegated difﬁcult to describe with precision. In- by the President and thus are respon- deed, one might for nearly any statute sible ultimately to him. devise a plausible tie between its ob- In some areas, the relationship be- jectives and the regulation of interstate tween the executive and the other two commerce. At times, the judicial branches is clear. Suppose one or more branch interpreted the “commerce individuals rob a bank. Congress has clause” narrowly. In 1935, for instance, passed a statute criminalizing bank the Supreme Court invalidated a robbery (United States Code, Title 18, federal law regulating the hours and Section 2113*). The Federal Bureau wages of workers at a New York of Investigation (FBI), a bureau within slaughterhouse because the chickens the Department of Justice, would processed there all were sold to New investigate the crime. When it appre- York butchers and retailers and hence hended one or more suspects, a not part of interstate commerce. Soon Federal Prosecutor (also Department after this, however, the Supreme Court of Justice) would attempt to prove the began to afford President Franklin D. suspect’s guilt in a trial conducted by a Roosevelt’s New Deal programs more U.S. District Court. latitude, and today the federal courts The bank robbery case is a simple continue to interpret broadly the one. But as the nation modernized and commerce power, although not so broadly as to justify any legislation * Technically, the statute applies only to a that Congress might pass. bank that is federally chartered, insured, or a member of the Federal Reserve System. Possibly every bank in the United States Executive meets these criteria, but one that did not, Article II entrusts to the President and could not be construed as impacting interstate commerce, would not be subject of the United States “the executive to federal legislation. Federal statutes Power.” Under President George typically recite a jurisdictional basis: in this Washington (1789–1801), the entire case, the federal charter requirement. INTRODUCTION 11

Federal and state courts hear two kinds of disputes: civil and criminal. Here an attorney representing landowners in a civil action presents his arguments to the South Dakota Supreme Court.

Left, civil law covers statutes pertaining to marriage and divorce. This couple is being married in this civil ceremony performed by a judge. At right, a judge in Texas. In the past few decades, the U.S. judiciary has expanded to include more women and minorities. 12 OUTLINE OF THE U.S. LEGAL SYSTEM

grew, the relationship of the three rules, to adjudicate those violations, branches within the legal system and even to assess penalties! evolved to accommodate the more The courts will invalidate a statute complex issues of industrial and post- that grants an agency too much industrial society. The role of the ex- power. An important statute called ecutive branch changed most of all. In the Administrative Procedure Act the bank robbery example, Congress (United States Code Title 5, Section needed little or no special expertise to 551, et. seq.) explains the procedures craft a statute that criminalized bank agencies must follow when promul- robbery. Suppose instead that law- gating rules, judging violations, and makers wished to ban “dangerous” imposing penalties. It also lays out drugs from the marketplace, or re- how a party can seek judicial review strict the amount of “unhealthful” of an agency’s decision. pollutants in the air. Congress could, if it chose, specify precise definitions of Other Sources of Law these terms. Sometimes it does so, but The most obvious sources of Ameri- increasingly Congress instead dele- can law are the statutes passed by gates a portion of its authority to ad- Congress, as supplemented by admin- ministrative agencies housed in the istrative regulations. Sometimes these executive branch. The Food and Drug demarcate clearly the boundaries of Administration (FDA) thus watches legal and illegal conduct — the bank over the purity of the nation’s food robbery example again — but no and pharmaceuticals and the Environ- government can promulgate enough mental Protection Agency (EPA) reg- law to cover every situation. Fortu- ulates how industries impact the nately, another body of legal princi- earth, water, and air. ples and norms helps fill in the gaps, Although agencies possess only as explained below powers that Congress delegates by statute, these can be quite substantial. Common Law They can include the authority to Where no statute or constitutional promulgate rules that define with pre- provision controls, both federal and cision more general statutory terms. state courts often look to the common A law might proscribe “dangerous” law, a collection of judicial decisions, amounts of pollutants in the atmos- customs, and general principles that phere, while an EPA rule defines the began centuries ago in England and substances and amounts of each that continues to develop today. In many would be considered dangerous. states, common law continues to hold Sometimes a statute empowers an an important role in contract dis- agency to investigate violations of its putes, as state legislatures have not INTRODUCTION 13

seen ﬁt to pass statutes covering every Higher-level courts try to resolve possible contractual contingency. these inconsistencies. The Supreme Court of the United States, for in- Judicial Precedent stance, often chooses to hear a case Courts adjudicate alleged violations when its decision can resolve a divi- of and disputes arising under the sion among the Circuit courts. The law. This often requires that they Supreme Court precedent will con- interpret the law. In doing so, courts trol, or apply to all the lower federal consider themselves bound by how courts. In United States v. Balsys, 524 other courts of equal or superior rank U.S. 666 (1998), the Supreme Court have previously interpreted a law. ruled that fear of foreign prosecution This is known as the principle of is beyond the scope of the Self- “stare decisis,” or simply precedent. It Incrimination Clause.** helps to ensure consistency and This ruling became the law of the predictability. Litigants facing unfa- entire nation, including the Second vorable precedent, or case law, try Circuit. Any federal court subsequent- to distinguish the facts of their partic- ly facing the issue was bound by the ular case from those that produced high court ruling in Balsys. Circuit the earlier decisions. court decisions similarly bind all the Sometimes courts interpret the District Courts within that circuit. law differently. The Fifth Amendment Stare decisis also applies in the various to the Constitution, for instance, state court systems. In this way, prece- contains a clause that “[n]o person… dent grows both in volume and shall be compelled in any criminal explanatory reach. case to be a witness against himself.” From time to time, cases arose where an individual would decline to answer *The U.S. Circuit Court for the Second a subpoena or otherwise testify on Circuit is an appellate court that hears appeals from the federal district courts in the the grounds that his testimony might states of New York, Connecticut, and subject him to criminal prosecution Vermont. The Fourth Circuit encompasses — not in the United States but in Maryland, North Carolina, South Carolina, Virginia, and West Virginia, and the Eleventh another country. Would the self- Alabama, Georgia, and Florida. For more incrimination clause apply here? The information on the organization of the U.S. Court of Appeals for the Second federal courts, see chapter 1. **The numbers in this sentence comprise Circuit ruled it did, but the Fourth the citation to the Balsys decision. They and Eleventh Circuits held that it indicate that the Court issued its ruling in the did not.* This effectively meant that year 1998 and that the decision appears in the law differed depending where volume 524 of a series called United States Reports, beginning on page 666. in the country a case arose! 14 OUTLINE OF THE U.S. LEGAL SYSTEM

DIFFERENT LAWS; the government can charge someone DIFFERENT REMEDIES with murder. iven this growing body of law, The standards of proof and poten- it is useful to distinguish tial penalties also differ. A criminal de- Gamong different types of laws fendant can be convicted only upon and of actions, or lawsuits, brought the determination of guilt “beyond a before the courts and of the remedies reasonable doubt.” In a civil case, the the law affords in each type of case. plaintiff need only show a “preponderance of evidence,”a weaker formu- Civil/Criminal lation that essentially means “more Courts hear two kinds of disputes: likely than not.” A convicted criminal civil and criminal. A civil action in- can be imprisoned, but the losing volves two or more private parties, at party in a civil case is liable only for least one of which alleges a violation legal or equitable remedies, as ex- of a statute or some provision of com- plained below. mon law. The party initiating the lawsuit is the plaintiff; his opponent the Legal and Equitable Remedies defendant. A defendant can raise a The U.S. legal system affords a wide counterclaim against a plaintiff or a but not unlimited range of remedies. cross-claim against a co-defendant, so The criminal statutes typically list long as they are related to the plain- for a given offense the range of ﬁnes tiff’s original complaint. Courts prefer or prison time a court may impose. to hear in a single lawsuit all the Other parts of the criminal code may claims arising from a dispute. Busi- in some jurisdictions allow stiffer ness litigations, as for breach of con- penalties for repeat offenders. Punish- tract, or tort cases, where a party ment for the most serious offenses, alleges he has been injured by anoth- or felonies, is more severe than for er’s negligence or willful misconduct, misdemeanors. are civil cases. In civil actions, most American While most civil litigations are courts are authorized to choose between private parties, the federal among legal and equitable remedies. government or a state government is The distinction means less today than always a party to a criminal action. in the past but is still worth under- It prosecutes, in the name of the standing. In 13th century England, people, defendants charged with vio- “courts of law” were authorized to de- lating laws that prohibit certain con- cree monetary remedies only. If a duct as injurious to the public welfare. defendant’s breach of contract cost Two businesses might litigate a civil the plaintiff £50, such a court could action for breach of contract, but only order the defendant to pay that sum to INTRODUCTION 15

the plaintiff. These damages were One famous example illustrates the sufficient in many instances, but not differences between civil and criminal in others, such as a contract for the law, and the remedies that each can sale of a rare artwork or a specific par- offer. The state of California charged cel of land. During the 13th and 14th the former football star O.J. Simpson centuries, “courts of equity” were with murder. Had Simpson been con- formed. These tribunals fashioned victed, he would have been impris- equitable remedies like specific per- oned. He was not convicted, however, formance, which compelled parties as the jury ruled the prosecution failed to perform their obligations, rather to prove Simpson’s guilt beyond a rea- than merely forcing them to pay sonable doubt. Afterwards, Mrs. damages for the injury caused by their Simpson’s family sued Simpson for nonperformance. By the 19th century, wrongful death, a civil action. The most American jurisdictions had jury in this case determined that a eliminated the distinction between preponderance of the evidence law and equity. Today, with rare excep- demonstrated Simpson’s responsibili- tions, U.S. courts can award either ty for the death of his wife. It ordered legal or equitable remedies as the Simpson to pay money damages — a situation requires. legal remedy — to the plaintiffs.

The U.S. Constitution explicitly sets out that large parts of the U.S. legal system remain under the control of the individual states. Here, Cook County, Illinois, Circuit Court Judge William H. Haddad, left, and Illinois Supreme Court Justice Thomas R. Fitzgerald. 16 OUTLINE OF THE U.S. LEGAL SYSTEM

THE ROLE OF STATE LAW IN Tenth Amendment to the Constitu- THE FEDERAL SYSTEM tion (1791) made explicit that state he Constitution specifically law would control elsewhere: “The forbade the states from adopt- powers not delegated to the United Ting certain kinds of laws (en- States by the Constitution, nor pro- tering into treaties with foreign hibited by it to the States, are reserved nations, coining money). Also, the Ar- to the States, respectively, or to the ticle VI Supremacy Clause barred state people.” laws that contradicted either the Con- There nonetheless remained constitution or federal law. Even so, large siderable tension between the federal parts of the legal system remained government and the states — over under state control. The Constitution slavery, and ultimately over the right had carefully specified the areas where of a state to leave the federal union. Congress might enact legislation. The The civil conflict of 1861–65 resolved both disputes. It also produced new restrictions on the state role within the legal system: Under the Four- teenth Amendment (1868), “No State shall… deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This amendment greatly expanded the federal courts’ ability to invalidate state laws. Brown v. Board of Education (1954), which forbade racial segregation in the Arkansas state school system, relied upon this “equal protection clause.” Beginning in the mid-20th century, a number of the trends outlined above — the rise of the administrative state, a more forceful and expansive judicial interpretation of due process and Family law remains almost exclusively a equal protection, and a similar expan- state matter. Here, Attorney Catherine Smith argues a case involving a child sion of Congress’ power to regulate caregiver’s rights in front of the state commerce — combined to enhance Supreme Court in Olympia, Washington. the federal role within the legal Chief Justice Gerry L. Alexander, right, and Justice Charles Z. Smith listen. system. Even so, much of that system INTRODUCTION 17

remains within the state domain. ders between the federal and state While no state may deny a citizen courts but it also explores the ques- any right guaranteed by the federal tion of who may sue, and of the kinds Constitution, many interpret their of cases courts will hear. Chapter 4 ex- own constitutions as bestowing even pands the focus from the courts to the more generous rights and privileges. groups who appear before them. The State courts applying state law contin- practice of law in the United States is ue to decide most contractual dis- studied, and the typical litigants de- putes. The same is true of most scribed. The chapter also explains the criminal cases, and of civil tort ac- role played by interest groups that tions. Family law, including such mat- press particular cases to advance their ters as marriage and divorce, is almost social and political agendas. Chapter 5 exclusively a state matter. For most details how the courts handle criminal Americans most of the time, the legal cases while Chapter 6 turns the focus system means the police officers and to civil actions. Chapter 7 describes courts of their own state, or of the var- how federal judges are selected. The ious municipalities and other political final chapter explores how certain ju- subdivisions within that state. dicial decisions — those of higher This introduction offers a mere courts especially — can themselves thumbnail sketch of the legal system. amount to a form of policymaking The remainder of the volume affords and thus further entwine the judiciary greater detail, flavor, and understand- in a complex relationship with the leg- ing. Chapters 1 and 2 describe respec- islative and executive branches. tively how the federal and state court systems have been organized, while — By Michael Jay Friedman Chapter 3 explains at length the com- Michael Jay Friedman is a plex question of jurisdiction. The Program Officer in the U.S. Department of State, Bureau of chapter necessarily delineates the bor- International Information Programs. He holds a Ph.D. in American History from the University of Pennsylvania and a J.D. degree from Georgetown University Law Center.

CHAPTER1 HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM

Chief Justice John Marshall, who headed the U.S. Supreme Court from 1801 to 1835, in a portrait by Alonzo Chappel. Marshall’s dominance of the Court allowed him to initiate major changes, including adopting the practice of the Court handing down a single opinion. 20 OUTLINE OF THE U.S. LEGAL SYSTEM

One of the most important, most in- The Constitutional Convention teresting, and, possibly, most confusing and Article III features of the judiciary in the United The first proposal presented to the States is the dual court system; that is, Constitutional Convention was the each level of government (state and na- Virginia Plan, which would have set tional) has its own set of courts. Thus, up both a Supreme Court and inferior there is a separate court system for each federal courts. Opponents of the state, one for the District of Columbia, Virginia Plan responded with the and one for the federal government. New Jersey Plan, which called for the Some legal problems are resolved en- creation of a single federal supreme tirely in the state courts, whereas others tribunal. Supporters of the New Jersey are handled entirely in the federal Plan were especially disturbed by the courts. Still others may receive atten- idea of lower federal courts. They ar- tion from both sets of tribunals, which gued that the state courts could hear sometimes causes friction. The federal all cases in the first instance and that a courts are discussed in this chapter and right of appeal to the Supreme Court the state courts in chapter 2. would be sufficient to protect national rights and provide uniform judgments THE HISTORICAL CONTEXT throughout the country. rior to the adoption of the Con- The conflict between the states’ stitution, the United States was rights advocates and the nationalists Pgoverned by the Articles of was resolved by one of the many Confederation. Under the Articles, compromises that characterized the almost all functions of the national Constitutional Convention. The com- government were vested in a single- promise is found in Article III of the chamber legislature called Congress. Constitution, which begins,“The judi- There was no separation of executive cial Power of the United States, shall and legislative powers. be vested in one supreme Court, and The absence of a national judiciary in such inferior Courts as the Con- was considered a major weakness gress may from time to time ordain of the Articles of Confederation. and establish.” Consequently, the delegates gathered at the Constitutional Convention in The Judiciary Act of 1789 Philadelphia in 1787 expressed wide- Once the Constitution was ratified, spread agreement that a national judi- action on the federal judiciary came ciary should be established. A good quickly. When the new Congress deal of disagreement arose, however, convened in 1789, its first major on the specific form that the judicial concern was judicial organization. branch should take. Discussion of Senate Bill 1 involved CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 21

THE UNITED STATES COURT SYSTEM

SUPREME COURT Federal Questions of the United States from State Courts

United States United States United States Court of Appeal Court of Appeal Court of Appeal for the for the 12 Circuit* Federal Circuit** Armed Forces

U.S. Court of 94 U.S. Courts International Trade Army, Navy-Marine Corps, Air Force, and U.S. Court of and Coast Guard Federal Claims United States Courts of Criminal Tax Court U.S. Court of Appeals Veteran Appeals

* The 12 regional Courts of Appeals also receive cases from a number of federal agencies. ** The Court of Appeals for the Federal Circuit also receives cases from the International Trade Commission, the Merit Systems Protection Board, the Patent and Trademark Office, and the Board of Contract Appeals. many of the same participants and in state courts. Attempts to resolve arguments as were involved in the this controversy split Congress into Constitutional Convention’s debates two distinct groups. on the judiciary. Once again, the ques- One group, which believed that tion was whether lower federal courts federal law should be adjudicated in should be created at all or whether the state courts first and by the U.S. federal claims should first be heard Supreme Court only on appeal, ex- 22 OUTLINE OF THE U.S. LEGAL SYSTEM

pressed the fear that the new govern- interpretation of federal laws could ment would destroy the rights of the not be left to a state court and certain- states. The other group of legislators, ly not to several state tribunals, whose suspicious of the parochial prejudice judgments might disagree. Thus, the of state courts, feared that litigants Supreme Court must interpret federal from other states and other countries legislation. Another of the Founders’ would be dealt with unjustly. This lat- intentions was for the federal govern- ter group naturally favored a judicial ment to act directly upon individual system that included lower federal citizens as well as upon the states. courts. The law that emerged from this Given the Supreme Court’s impor- debate, the Judiciary Act of 1789, set tance to the U.S. system of govern- up a judicial system composed of a ment, it was perhaps inevitable that Supreme Court, consisting of a chief the Court would evoke great contro- justice and five associate justices; three versy. Charles Warren, a leading stu- circuit courts, each comprising two dent of the Supreme Court, said in justices of the Supreme Court and a The Supreme Court in United States district judge; and 13 district courts, History: “Nothing in the Court’s histo- each presided over by one district ry is more striking than the fact that judge. The power to create inferior while its significant and necessary federal courts, then, was immediately place in the Federal form of Govern- exercised. Congress created not one ment has always been recognized by but two sets of lower courts. thoughtful and patriotic men, nevertheless, no branch of the Government THE U.S. SUPREME COURT and no institution under the Constitu- upreme Court Justice Charles tion has sustained more continuous Evans Hughes wrote in The attack or reached its present position SSupreme Court of the United after more vigorous opposition.” States (1966) that the Court “is dis- tinctly American in conception and The Court’s First Decade function, and owes little to prior judi- George Washington, the first president cial institutions.” To understand what of the United States, established two the framers of the Constitution envi- important traditions when he ap- sioned for the Court, another Ameri- pointed the first Supreme Court jus- can concept must be considered: the tices. First, he began the practice of federal form of government. The naming to the Court those with whom Founders provided for both a national he was politically compatible. Wash- government and state governments; ington, the only president ever to have the courts of the states were to be an opportunity to appoint the entire bound by federal laws. However, final federal judiciary, filled federal judge- CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 23

ands

ire

Virgin Isl Virgin

New Hampsh

Massachusetts

Rhode Island

D.C. Circuit D.C.

Maine

Federal Circuit Federal

Connecticut

Washington, D.C. Washington,

New Jersey

District of Columbia

Delaware

Maryland

Vermont

New York

olina

Puerto Ric

Virginia

Florida

Pennsylvania

South Carolina

North Car

West West

Virginia

Georgia

Ohio

Kentucky

Michigan

Alabama

Indiana

Tennessee

Illinois

Mississippi

Wisconsin

Louisiana

Arkansas

Missouri

Iowa

Minnesota

Oklahoma

Kansas

Texas

Nebraska

North Dakota

South Dakota

Colorado

Wyoming

New Mexico

Guam

Montana

Hawaii

Utah

Arizona

Idaho

Nevada

Nothern Mariana Islands

Washington

Oregon

California

Alaska Geographical Boundaries of U.S. Courts of Appeals and U.S. District Courts 24 OUTLINE OF THE U.S. LEGAL SYSTEM

ships, without exception, with faithful this first session of the Court more members of the Federalist Party. fully than any other event connected Second, Washington’s appointees of- with the new government; and their fered roughly equal geographic repre- accounts were reproduced in the lead- sentation on the federal courts. His ing papers of all the states.” first six appointees to the Supreme During its first decade the Court Court included three Northerners and decided only about 50 cases. Given the three Southerners. scarcity of Supreme Court business in The chief justiceship was the most the early days, Chief Justice Jay’s con- important appointment Washington tributions may be traced primarily to made. The president felt that the man his circuit court decisions and his ju- to head the first Supreme Court dicial conduct. should be an eminent lawyer, states- Perhaps the most important of Jay’s man, executive, and leader. Many contributions, however, was his insis- names were presented to Washington, tence that the Supreme Court could and at least one person formally not provide legal advice for the execu- applied for the position. Ultimately, tive branch in the form of an advisory Washington settled upon John Jay opinion. Jay was asked by Treasury of New York. Although only 44 years Secretary Alexander Hamilton to issue old, Jay had experience as a lawyer, an opinion on the constitutionality of a judge, and a diplomat. In addition, a resolution passed by the Virginia he was the main drafter of his state’s House of Representatives, and Presi- first constitution. dent Washington asked Jay for advice The Supreme Court met for the on questions relating to his Neutrality first time on Monday, February 1, Proclamation. In both instances, Jay’s 1790, in the Royal Exchange, a build- response was a firm “No,” because Ar- ing located in the Wall Street section ticle III of the Constitution provides of New York City, and its first session that the Court is to decide only cases lasted just 10 days. During this period pertaining to actual controversies. the Court selected a clerk, chose a seal, and admitted several lawyers to prac- The Impact of Chief Justice tice before it in the future. There were, Marshall of course, no cases to be decided; the John Marshall served as chief justice Court did not rule on a single case from 1801 to 1835 and dominated the during its first three years. In spite of Court to a degree unmatched by any this insignificant and abbreviated be- other justice. Marshall’s dominance of ginning, Charles Warren wrote, “The the Court enabled him to initiate New York and the Philadelphia news- major changes in the way opinions papers described the proceedings of were presented. Prior to his tenure, the CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 25

justices ordinarily wrote separate president ordered his secretary of opinions (called “seriatim” opinions – state, James Madison, not to deliver Latin for “one after the other”) in the remaining commissions. One of major cases. Under Marshall’s the disappointed nominees was stewardship, the Court adopted the William Marbury. He and three of his practice of handing down a single colleagues, all confirmed as justices of opinion. Marshall’s goal was to keep the peace for the District of Columbia, dissension to a minimum. Arguing decided to ask the Supreme Court to that dissent undermined the Court’s force Madison to deliver their com- authority, he tried to persuade the missions. They relied upon Section 13 justices to settle their differences pri- of the Judiciary Act of 1789, which vately and then present a united front granted the Supreme Court the au- to the public. Marshall also used his thority to issue writs of mandamus — powers to involve the Court in the court orders commanding a public of- policy-making process. Early in his ficial to perform an official, nondiscre- tenure as chief justice, for example, the tionary duty. Court asserted its power to declare an The case placed Marshall in a act of Congress unconstitutional, in predicament. Some suggested that Marbury v. Madison (1803). he disqualify himself because of This case had its beginnings in the his earlier involvement as secretary presidential election of 1800, when of state. There was also the question Thomas Jefferson defeated John of the Court’s power. If Marshall Adams in his bid for reelection. Before were to grant the writ, Madison leaving office in March 1801, however, (under Jefferson’s orders) would be Adams and the lame-duck Federalist almost certain to refuse to deliver Congress created several new federal the commissions. The Supreme Court judgeships. To fill these new positions would then be powerless to enforce Adams nominated, and the Senate its order. However, if Marshall refused confirmed, loyal Federalists. In addi- to grant the writ, Jefferson would win tion, Adams named his outgoing by default. secretary of state, John Marshall, to The decision Marshall fashioned be the new chief justice of the from this seemingly impossible Supreme Court. predicament was evidence of sheer ge- As secretary of state it had been nius. He declared Section 13 of the Ju- Marshall’s job to deliver the commis- diciary Act of 1789 unconstitutional sions of the newly appointed judges. because it granted original jurisdic- Time ran out, however, and 17 of the tion to the Supreme Court in excess of commissions were not delivered be- that specified in Article III of the Con- fore Jefferson’s inauguration. The new stitution. Thus the Court’s power to 26 OUTLINE OF THE U.S. LEGAL SYSTEM

review and determine the constitu- 1864. Although the Court’s position tionality of acts of Congress was estab- during this period was not as uni- lished. This decision is rightly seen as formly favorable to the federal govern- one of the single most important deci- ment, the Taney Court did not reverse sions the Supreme Court has ever the Marshall Court’s direction. handed down. A few years later the During the period 1865-1937 Court also claimed the right of judicial issues of economic regulation domi- review over actions of state legisla- nated the Court’s docket. The shift tures; during Marshall’s tenure it over- in emphasis from federalism to turned more than a dozen state laws economic regulation was brought on on constitutional grounds. by a growing number of national and state laws aimed at monitoring The Changing Issue Emphasis of business activities. As such laws in- the Supreme Court creased, so did the number of cases Until approximately 1865 the legal challenging their constitutionality. relationship between the national and Early in this period the Court’s state governments, or cases of federal- position on regulation was mixed, but ism, dominated the Court’s docket. by the 1920s the bench had become John Marshall believed in a strong quite hostile toward government national government and did not regulatory policy. Federal regulations hesitate to restrict state policies that were generally overturned on the interfered with its activities. A case ground that they were unsupported in point is Gibbons v. Ogden (1824), by constitutional grants of power to in which the Court overturned a state Congress, whereas state laws were monopoly over steamboat transporta- thrown out mainly as violations of tion on the ground that it interfered economic rights protected by the with national control over interstate Fourteenth Amendment. commerce. Another good example of Since 1937 the Supreme Court has Marshall’s use of the Court to expand focused on civil liberties concerns — the federal government’s powers came in particular, the constitutional guar- in McCulloch v. Maryland (1819), in antees of freedom of expression and which the chief justice held that freedom of religion. In addition, an the Constitution permitted Congress increasing number of cases have dealt to establish a national bank. The with procedural rights of criminal de- Court’s insistence on a strong national fendants. Finally, the Court has decid- government did not significantly died a great number of cases concerning minish after Marshall’s death. Roger equal treatment by the government of Taney, who succeeded Marshall as racial minorities and other disadvan- chief justice, served from 1836 to taged groups. CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 27

The Supreme Court as a Policy Separation of the races in public Maker schools was contested in the famous The Supreme Court’s role as a policy case Brown v. Board of Education maker derives from the fact that it in- (1954). Parents of African American terprets the law. Public policy issues schoolchildren claimed that state laws come before the Court in the form of requiring or permitting segregation legal disputes that must be resolved. deprived them of equal protection An excellent example may be found of the laws under the Fourteenth in the area of racial equality. In the late Amendment. The Supreme Court 1880s many states enacted laws requir- ruled that separate educational facili- ing the separation of African Ameri- ties are inherently unequal and, there- cans and whites in public facilities. In fore, segregation constitutes a denial of 1890, for instance, Louisiana enacted a equal protection. In the Brown deci- law requiring separate but equal rail- sion the Court laid to rest the separate- road accommodations for African but-equal doctrine and established a Americans and whites. A challenge policy of desegregated public schools. came two years later. Homer Plessy, In an average year the Court de- who was one-eighth black, protested cides, with signed opinions, between against the Louisiana law by refusing 80 and 90 cases. Thousands of other to move from a seat in the white car of cases are disposed of with less than the a train traveling from New Orleans to full treatment. Thus the Court deals at Covington, Louisiana. Arrested and length with a very select set of policy charged with violating the statute, issues that have varied throughout the Plessy contended that the law was un- Court’s history. In a democracy, broad constitutional. The U.S. Supreme matters of public policy are presumed Court, in Plessy v. Ferguson (1896), up- to be left to the elected representatives held the Louisiana statute. Thus the of the people — not to judicial Court established the “separate-but- appointees with life terms. Thus, in equal” policy that was to reign for principle U.S. judges are not supposed about 60 years. During this period to make policy. However, in practice many states required that the races sit judges cannot help but make policy to in different areas of buses, trains, ter- some extent. minals, and theaters; use different rest- The Supreme Court, however, rooms; and drink from different water differs from legislative and executive fountains. African Americans were policy makers. Especially important is sometimes excluded from restaurants the fact that the Court has no self- and public libraries. Perhaps most im- starting device. The justices must wait portant, African American students for problems to be brought to them; often had to attend inferior schools. there can be no judicial policy making 28 OUTLINE OF THE U.S. LEGAL SYSTEM

if there is no litigation. The president determine whether the request should and members of Congress have no be granted. If review is granted, the such constraints. Moreover, even the Court issues a writ of certiorari, which most assertive Supreme Court is is an order to the lower court to send limited to some extent by the actions up a complete record of the case. of other policy makers, such as lower- When certiorari is denied, the decision court judges, Congress, and the of the lower court stands. president. The Court depends upon others to implement or carry out The Supreme Court at Work its decisions. The formal session of the Supreme Court lasts from the first Monday in The Supreme Court as Final October until the business of the term Arbiter is completed, usually in late June or The Supreme Court has both original July. Since 1935 the Supreme Court and appellate jurisdiction. Original ju- has had its own building in Washing- risdiction means that a court has the ton, D.C. The imposing five-story power to hear a case for the first time. marble building has the words “Equal Appellate jurisdiction means that a Justice Under Law” carved above the higher court has the authority to re- entrance. It stands across the street view cases originally decided by a from the U.S. Capitol. Formal sessions lower court. The Supreme Court is of the Court are held in a large court- overwhelmingly an appellate court room that seats 300 people. At the since most of its time is devoted to front of the courtroom is the bench reviewing decisions of lower courts. It where the justices are seated. When the is the highest appellate tribunal in Court is in session, the chief justice, the country. As such, it has the final followed by the eight associate justices word in the interpretation of the in order of seniority, enters through Constitution, acts of legislative bodies, the purple draperies behind the bench and treaties — unless the Court’s deci- and takes a seat. Seats are arranged ac- sion is altered by a constitutional cording to seniority with the chief jus- amendment or, in some instances, by tice in the center, the senior associate an act of Congress. justice on the chief justice’s right, the Since 1925 a device known as “cer- second-ranking associate justice on tiorari” has allowed the Supreme the left, and continuing alternately in Court to exercise discretion in decid- declining order of seniority. Near the ing which cases it should review. courtroom are the conference room Under this method a person may re- where the justices decide cases and the quest Supreme Court review of a chambers that contain offices for the lower court decision; then the justices justices and their staffs. CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 29

The U.S. Supreme Court Building, with the words “Equal Justice Under Law” carved above the entrance.

The Court’s term is divided into a.m. until noon and from 1:00 until sittings of approximately two weeks 3:00 p.m. Because the procedure is not each, during which it meets in open a trial or the original hearing of a case, session and holds internal confer- no jury is assembled and no witnesses ences, and recesses, during which the are called. Instead, the two opposing justices work behind closed doors as attorneys present their arguments to they consider cases and write opin- the justices. The general practice is to ions. The 80 to 90 cases per term that allow 30 minutes for each side, al- receive the Court’s full treatment fol- though the Court may decide that ad- low a fairly routine pattern. ditional time is necessary. The Court can normally hear four cases in one Oral Argument. Oral arguments are day. Attorneys presenting oral argu- generally scheduled on Monday ments are frequently interrupted with through Wednesday during the sit- questions from the justices. The oral tings. The sessions run from 10:00 argument is considered very impor- 30 OUTLINE OF THE U.S. LEGAL SYSTEM

The nine justices of the present U.S. Supreme Court are shown above. Seated, from left to right: Associate Justices Antonin Scalia and John Paul Stevens; Chief Justice William Renhquist; Associate Justices Sandra Day O’Connor and Anthony Kennedy. Standing, left to right: Associate Justices Ruth Bader Ginsburg, David Souter, Clarence Thomas, and Stephen Breyer. tant by both attorneys and justices be- Prior to the Friday conference each cause it is the only stage in the process justice is given a list of the cases that that allows such personal exchanges. will be discussed. The conference begins at about 9:30 or 10:00 a.m. and The Conference. On Fridays preced- runs until 5:30 or 6:00 p.m. As the jus- ing the two-week sittings the Court tices enter the conference room they holds conferences; during sittings it shake hands and take their seats holds conferences on Wednesday af- around a rectangular table. They meet ternoon and all day Friday. At the behind locked doors, and no official Wednesday meeting the justices dis- record is kept of the discussions. The cuss the cases argued on Monday. At chief justice presides over the confer- the Friday conference they discuss the ence and offers an opinion first in each cases that were argued on Tuesday and case. The other justices follow in de- Wednesday, plus any other matters scending order of seniority. that need to be considered. The most A quorum for a decision on a case important of these other matters are is six members; obtaining a quorum is the certiorari petitions. seldom difficult. Cases are sometimes CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 31

decided by fewer than nine justices be- In most cases a single opinion does cause of vacancies, illnesses, or non- obtain majority support, although few participation resulting from possible rulings are unanimous. Those who conflicts of interest. Supreme Court disagree with the opinion of the Court decisions are made by a majority vote. are said to dissent. A dissent does not In case of a tie the lower-court deci- have to be accompanied by an opinion; sion is upheld. in recent years, however, it usually has been. Whenever more than one justice Opinion Writing. After a tentative dissents, each may write an opinion or decision has been reached in confer- all may join in a single opinion. ence, the next step is to assign the On occasion a justice will agree Court’s opinion to an individual jus- with the Court’s decision but differ in tice. The chief justice, if voting with his or her reason for reaching that the majority, either writes the opinion conclusion. Such a justice may write or assigns it to another justice who what is called a concurring opinion. voted with the majority. When the An opinion labeled “concurring and chief justice votes with the minority, dissenting” agrees with part of a Court the most senior justice in the majority ruling but disagrees with other parts. makes the assignment. Finally, the Court occasionally issues a After the conference the justice per curiam opinion — an unsigned who will write the Court’s opinion opinion that is usually quite brief. begins work on an initial draft. Other Such opinions are often used when the justices may work on the case by Court accepts the case for review but writing alternative opinions. The com- gives it less than full treatment. For ex- pleted opinion is circulated to justices ample, it may decide the case without in both the majority and the minority benefit of oral argument and issue a groups. The writer seeks to persuade per curiam opinion to explain the dis- justices originally in the minority to position of the case. change their votes, and to keep his or her majority group intact. A bargain- THE U.S. COURTS OF ing process occurs, and the wording of APPEALS the opinion may be changed in order he courts of appeals receive to satisfy other justices or obtain their less media coverage than the support. A deep division in the Court TSupreme Court, but they are makes it difficult to achieve a clear, very important in the U.S. judicial coherent opinion and may even result system. Considering that the Supreme in a shift in votes or in another jus- Court hands down decisions with tice’s opinion becoming the Court’s full opinions in only 80 to 90 cases official ruling. each year, it is apparent that the 32 OUTLINE OF THE U.S. LEGAL SYSTEM

courts of appeals are the courts of Jefferson strongly opposed this action, last resort for most appeals in the and Congress repealed it. The Circuit federal court system. Court Act of 1802 restored circuit riding by Supreme Court justices and Circuit Courts: 1789-1891 expanded the number of circuits. The Judiciary Act of 1789 created However, the legislation allowed the three circuit courts (courts of ap- circuit court to be presided over by a peals), each composed of two justices single district judge. Such a change of the Supreme Court and a district may seem slight, but it proved to be of judge. The circuit court was to hold great importance. Increasingly, the two sessions each year in each district district judges began to assume re- within the circuit. The district judge sponsibility for both district and cir- became primarily responsible for es- cuit courts. In practice, then, original tablishing the circuit court’s workload. and appellate jurisdiction were both in The two Supreme Court justices then the hands of the district judges. came into the local area and partici- The next major step in the develop- pated in the cases. This practice tend- ment of the courts of appeals did not ed to give a local rather than national come until 1869, when Congress ap- focus to the circuit courts. proved a measure that authorized the The circuit court system was re- appointment of nine new circuit garded from the beginning as unsatis- judges and reduced the Supreme factory, especially by Supreme Court Court justices’ circuit court duty to justices, who objected to the traveling one term every two years. Still, the imposed upon them. Attorney Gener- High Court was flooded with cases be- al Edmund Randolph and President cause there were no limitations on the Washington urged relief for the right of appeal to the Supreme Court. Supreme Court justices. Congress made a slight change in 1793 by alter- The Courts of Appeals: 1891 to the ing the circuit court organization to Present include only one Supreme Court On March 3, 1891, the Evarts Act was justice and one district judge. In the signed into law, creating new courts closing days of President John Adams’s known as circuit courts of appeals. administration in 1801, Congress These new tribunals were to hear most eliminated circuit riding by the of the appeals from district courts. Supreme Court justices, authorized The old circuit courts, which had the appointment of 16 new circuit existed since 1789, also remained. judges, and greatly extended the juris- The new circuit court of appeals was diction of the lower courts. to consist of one circuit judge, one The new administration of Thomas circuit court of appeals judge, one CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 33

The courts of appeals review cases appealed from federal district courts. Above, Chief Judge John M. Walker, Jr., U.S. Court of Appeals for the Second Circuit, left, administers the oath of office to Barrington D. Parker, Jr., right, as a judge for the same court. district judge, and a Supreme Court Appeals could still be made, but the justice. Two judges constituted a quo- High Court would now have much rum in these new courts. greater control over its own workload. Following passage of the Evarts Act, Much of its former caseload was thus the federal judiciary had two trial tri- shifted to the two lower levels of the bunals: district courts and circuit federal judiciary. courts. It also had two appellate tri- The next step in the evolution of bunals: circuit courts of appeals and the courts of appeals came in 1911. In the Supreme Court. Most appeals of that year Congress passed legislation trial decisions were to go to the circuit abolishing the old circuit courts, court of appeals, although the act which had no appellate jurisdiction also allowed direct review in some and frequently duplicated the func- instances by the Supreme Court. In tions of district courts. short, creation of the circuit courts of Today the intermediate appellate appeals released the Supreme Court tribunals are officially known as from many petty types of cases. courts of appeals, but they continue to 34 OUTLINE OF THE U.S. LEGAL SYSTEM

be referred to colloquially as circuit whole, not just for the specific liti- courts. There are now 12 regional gants. Civil liberties, reapportion- courts of appeals, staffed by 179 au- ment, religion, and education cases thorized courts of appeals judges. The provide good examples of the kinds of courts of appeals are responsible for disputes that may affect all citizens. reviewing cases appealed from federal There are two purposes of review in district courts (and in some cases from the courts of appeals. The first is error administrative agencies) within the correction. Judges in the various cir- boundaries of the circuit. A specialized cuits are called upon to monitor the appellate court came into existence in performance of federal district courts 1982 when Congress established the and federal agencies and to supervise Federal Circuit, a jurisdictional rather their application and interpretation of than a geographic circuit. national and state laws. In doing so, the courts of appeals do not seek out The Review Function of the Courts new factual evidence, but instead ex- of Appeals amine the record of the lower court Most of the cases reviewed by the for errors. In the process of correcting courts of appeals originate in the fed- errors the courts of appeals also settle eral district courts. Litigants disap- disputes and enforce national law. pointed with the lower-court decision The second function is sorting out may appeal the case to the court of and developing those few cases worthy appeals of the circuit in which the fed- of Supreme Court review. The circuit eral district court is located. The ap- judges tackle the legal issues earlier pellate courts have also been given than the Supreme Court justices and authority to review the decisions of may help shape what they consider re- certain administrative agencies. view-worthy claims. Judicial scholars Because the courts of appeals have have found that appealed cases often no control over which cases are differ in their second hearing from brought to them, they deal with both their first. routine and highly important matters. At one end of the spectrum are frivo- The Courts of Appeals as Policy lous appeals or claims that have no Makers substance and little or no chance for The Supreme Court’s role as a policy success. At the other end of the spec- maker derives from the fact that it trum are the cases that raise major interprets the law, and the same questions of public policy and evoke holds true for the courts of appeals. strong disagreement. Decisions by the The scope of the courts of appeals’ courts of appeals in such cases are like- policy-making role takes on added ly to establish policy for society as a importance, given that they are the CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 35

courts of last resort in the vast major- involving the Fifth Circuit. For several ity of cases. years the University of Texas Law As an illustration of the far- School (as well as many other law reaching impact of circuit court schools across the country) had been judges, consider the decision in a case granting preference to African Ameri- can and Mexican American applicants to increase the enrollment of minority students. This practice was challenged in a federal district court on the ground that it discriminated against white and nonpre- ferred minority applicants in violation of the Four- teenth Amendment. On March 18, 1996, a panel of Fifth Circuit judges ruled in Hopwood v. Texas that the Fourteenth Amendment does not permit the school to discriminate in this way and that the law school may not use race as a factor in law school admissions. The U.S. Supreme Court denied a petition for a writ of certiorari in the case, thus leaving it the law of the land in Texas, Louisiana, and Mississippi, the states comprising the Fifth Circuit. Although it may technically be true that only schools in the Fifth Circuit are affected by the U.S. courts — both at the level of the Appeals Courts and, in several instances, the Supreme Court — often settle ruling, an editorial in The passionately contested issues such as affirmative action in National Law Journal indi- higher education. cates otherwise, noting that 36 OUTLINE OF THE U.S. LEGAL SYSTEM

while some “might argue that Hop- three-judge panels, often sitting in dif- wood’s impact is limited to three states ferent cities throughout the circuit. in the South..., the truth is that across the country law school (and other) En Banc Proceedings. Occasionally, deans, fearing similar litigation, are different three-judge panels within the scrambling to come up with an alter- same circuit may reach conflicting native to affirmative action.” decisions in similar cases. To resolve such conflicts and to promote circuit The Courts of Appeals at Work unanimity, federal statutes provide for The courts of appeals do not have the an “en banc” (Old French for high same degree of discretion as the seat) procedure in which all the cir- Supreme Court to decide whether to cuit’s judges sit together on a panel and accept a case. Still, circuit judges have decide a case. The exception to this developed methods for using their general rule occurs in the large Ninth time as efficiently as possible. Circuit where assembling all the judges becomes too cumbersome. There, en Screening. During the screening banc panels normally consist of 11 stage the judges decide whether to give judges. The en banc procedure may an appeal a full review or to dispose of also be used when the case concerns it in some other way. The docket may an issue of extraordinary importance. be reduced to some extent by consoli- dating similar claims into single cases, Oral Argument. Cases that have sur- a process that also results in a uniform vived the screening process and have decision. In deciding which cases can not been settled by the litigants are be disposed of without oral argument, scheduled for oral argument. Attor- the courts of appeals increasingly rely neys for each side are given a short on law clerks or staff attorneys. These amount of time (as little as 10 min- court personnel read petitions and utes) to discuss the points made in briefs and then submit recommenda- their written briefs and to answer tions to the judges. As a result, many questions from the judges. cases are disposed of without reaching the oral argument stage. The Decision. Following the oral argument, the judges may confer briefly Three-Judge Panels. Those cases and, if they are in agreement, may an- given the full treatment are normally nounce their decision immediately. considered by panels of three judges Otherwise, a decision will be an- rather than by all the judges in the cir- nounced only after the judges confer cuit. This means that several cases can at greater length. Following the con- be heard at the same time by different ference, some decisions will be CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 37

announced with a brief order or per The First District Judges curiam opinion of the court. A small Each federal district court was to be portion of decisions will be accompa- presided over by a single judge who nied by a longer, signed opinion and resided in the district. As soon as this perhaps even dissenting and concur- became known, President Washington ring opinions. Recent years have seen a began receiving letters from individu- general decrease in the number of als desiring appointment to the vari- published opinions, although circuits ous judgeships. Many asked members vary in their practices. of Congress or Vice President John Adams to recommend them to Presi- U.S. DISTRICT COURTS dent Washington. Personal applica- he U.S. district courts represent tions were not necessarily successful the basic point of input for the and were not the only way in which Tfederal judicial system. Al- names came to the president’s atten- though some cases are later taken to a tion. Harry Innes, for example, was court of appeals or perhaps even to the not an applicant for the Kentucky Supreme Court, most federal cases judgeship but received it after being never move beyond the U.S. trial recommended by a member of Con- courts. In terms of sheer numbers of gress from his state. cases handled, the district courts are As new states came into the Union, the workhorses of the federal judici- additional district courts were created. ary. However, their importance ex- The additions, along with resigna- tends beyond simply disposing of a tions, gave Washington an opportuni- large number of cases. ty to offer judgeships to 33 people. All of the judges he appointed were mem- The First District Courts bers of the bar, and all but seven had Congress made the decision to create a state or local legal experience as national network of federal trial judges, prosecutors, or attorneys gen- courts when it passed the Judiciary Act eral. Presidents have continued to ap- of 1789. Section 2 of the act estab- point lawyers with public service lished 13 district courts by making backgrounds to the federal bench. each of the 11 states then in the Union a district, and by making the parts of Present Organization of the Massachusetts and Virginia that were District Courts to become Maine and Kentucky into As the country grew, new district separate districts. That organizational courts were created. Eventually, Con- scheme established the practice, which gress began to divide some states into still exists, of honoring state boundary more than one district. California, lines in drawing districts. New York, and Texas have the most, 38 OUTLINE OF THE U.S. LEGAL SYSTEM

with four each. Other than consistent- is thus established at this level. Subse- ly honoring state lines, the organiza- quent appeals of the trial court deci- tion of district constituencies appears sion focus on correcting errors rather to follow no rational plan. Size and than on reconstructing the facts. population vary widely from district The task of determining the facts in to district. Over the years, a court was a case often falls to a jury, a group of added for the District of Columbia, citizens from the community who and several territories have been serve as impartial arbiters of the facts served by district courts. There are and apply the law to the facts. The now U.S. district courts serving the 50 Constitution guarantees the right to a states, the District of Columbia, jury trial in criminal cases in the Sixth Guam, Puerto Rico, the Virgin Islands, Amendment and the same right in and the Northern Mariana Islands. civil cases in the Seventh Amendment. The original district courts were The right can be waived, however, in each assigned one judge. With the which case the judge becomes the ar- growth in population and litigation, biter both of questions of fact and of Congress has periodically had to add matters of law. Such trials are referred judges to most of the districts. The to as bench trials. Federal Judgeship Act of 1990 created Two types of juries are associated 74 new district judgeships, bringing with federal district courts. The grand the current total to 649. Today all jury is a group of men and women districts have more than one judge; convened to determine whether there the Southern District of New York, is probable cause to believe that a per- which includes Manhattan and the son has committed the federal crime Bronx, currently has 28 judges and is of which he or she has been accused. thus the largest. Because each federal Grand jurors meet periodically to hear district court is normally presided charges brought by the U.S. attorney. over by a single judge, several trials Petit jurors are chosen at random may be in session within the district at from the community to hear evidence any given time. and determine whether a defendant in a civil trial has liability or whether a The District Courts as Trial Courts defendant in a criminal trial is guilty Congress established the district or not guilty. Federal rules call for 12 courts as the trial courts of the federal jurors in criminal cases but permit judicial system and gave them original fewer in civil cases. The federal district jurisdiction over virtually all cases. courts generally use six-person juries They are the only federal courts in in civil cases. which attorneys examine and cross- Trial courts are viewed as engaging examine witnesses. The factual record primarily in norm enforcement, CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 39

whereas appellate courts are seen as legislative guidelines; and as a conse- having greater opportunity to make quence the opportunity for trial court policy. Norm enforcement is closely jurists to write on a clean slate, that is, tied to the administration of justice, to make policy, is formidable.” because all nations develop standards considered essential to a just and or- CONSTITUTIONAL COURTS derly society. Societal norms are AND LEGISLATIVE COURTS embodied in statutes, administrative he Judiciary Act of 1789 estab- regulations, prior court decisions, lished the three levels of the and community traditions. Criminal Tfederal court system in exis- statutes, for example, incorporate con- tence today. Periodically, however, cepts of acceptable and unacceptable Congress has exercised its power, behavior into law. A judge deciding a based on Article III and Article I of the case concerning an alleged violation of Constitution, to create other federal that law is practicing norm enforce- courts. Courts established under Arti- ment. Because cases of this type rarely cle III are known as constitutional allow the judge to escape the strict re- courts and those created under Article straints of legal and procedural re- I are called legislative courts. The quirements, he or she has little chance Supreme Court, courts of appeals, and to make new law or develop new poli- federal district courts are constitu- cy. In civil cases, too, judges are often tional courts. Legislative courts confined to norm enforcement, be- include the U.S. Court of Military Ap- cause such litigation generally arises peals, the United States Tax Court, and from a private dispute whose outcome the Court of Veterans Appeals. is of interest only to the parties in Legislative courts, unlike their the suit. constitutional counterparts, often have The district courts also play a administrative and quasi-legislative as policy-making role, however. As Amer- well as judicial duties. Another differ- icans have become more litigation- ence is that legislative courts are often conscious, disputes that were once re- created for the express purpose of solved informally are now more likely helping to administer a specific con- to be decided in a court of law. The gressional statute. Constitutional courts find themselves increasingly in- courts, on the other hand, are tribunals volved in domains once considered established to handle litigation. private. What does this mean for the Finally, the constitutional and leg- federal district courts? According to islative courts vary in their degree of one study, “These new areas of judicial independence from the other two involvement tend to be relatively free branches of government. Article III of clear, precise appellate court and (constitutional court) judges serve 40 OUTLINE OF THE U.S. LEGAL SYSTEM

during a period of good behavior, or court for eight-year terms of office, al- what amounts to life tenure. Because though they can be removed before Article I (legislative court) judges have the expiration of the term for “good no constitutional guarantee of good- cause.” Within guidelines set by the behavior tenure, Congress may set Congress, the judges in each district specific terms of office for them. In court establish the duties and respon- sum, the constitutional courts have a sibilities of their magistrate judges. greater degree of independence from The legislation permits a magistrate the other two branches of government judge, with the consent of the involved than the legislative courts. parties, to conduct all proceedings in a jury or nonjury civil matter and enter ADMINISTRATIVE AND a judgment in the case and to conduct STAFF SUPPORT IN THE a trial of persons accused of misde- FEDERAL JUDICIARY meanors (less serious offenses than lthough judges are the most felonies) committed within the dis- visible actors in the judicial trict, provided the defendants consent. Asystem, a large supporting cast Because the decision to delegate re- is also at work. Their efforts are neces- sponsibilities to a magistrate judge is sary to perform the tasks for which still made by the district judge, howev- judges are unskilled or unsuited, or for er, a magistrate judge’s participation in which they simply do not have ade- the processing of cases may be more quate time. Some members of the sup- narrow than that permitted by statute. port team, such as law clerks, may work specifically for one judge. Others Law Clerks — for example, U.S. magistrate judges The first use of law clerks by an Amer- — are assigned to a particular court. ican judge is generally traced to Ho- Still others may be employees of an race Gray of Massachusetts. In the agency, such as the Administrative Of- summer of 1875, while serving as chief fice of the United States Courts, that justice of the Massachusetts Supreme serves the entire judicial system. Court, he employed, at his own expense, a highly ranked new graduate U.S. Magistrate Judges of the Harvard Law School. Each year, In an effort to help federal district he employed a new clerk from Har- judges deal with increased workloads, vard. When Gray was appointed to the Congress in 1968 created a system of U.S. Supreme Court in 1882, he magistrate judges that responds to brought a law clerk with him to the each district court’s specific needs and nation’s highest court. circumstances. Magistrate judges are Justice Gray’s successor on the appointed by the judges of the district High Court was Oliver Wendell CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 41

Holmes, who also adopted the prac- have a substantial amount of contact tice of annually hiring honor gradu- with attorneys and witnesses. Law ates of Harvard Law School as his clerks at this level may be involved in clerks. When William Howard Taft, a the initial drafting of opinions. former law professor at Yale, became At the appellate level, the law clerk chief justice, he secured a new law becomes involved in a case first by clerk annually from the dean of the researching the issues of law and fact Yale Law School. Harlan Fiske Stone, presented by an appeal. The courts of former dean of the Columbia Law appeals do not have the same discre- School, joined the Court in 1925 and tion to accept or reject a case that the made it his practice to hire a Colum- Supreme Court has, and they use cer- bia graduate each year. tain screening devices to differentiate Since these early beginnings there between cases that can be handled has been a steady growth in the use of quickly and those that require more law clerks by all federal courts. More time and effort. Law clerks are an inte- than 2,000 law clerks now work for gral part of this screening process. federal judges, and more than 600 A number of cases are scheduled serve bankruptcy judges and U.S. for oral argument, and the clerk may magistrate judges. In addition to the be called upon to assist the judge law clerks hired by individual judges, in preparing for it. Intensive analysis all appellate courts and some district of the record by judges prior to courts hire staff law clerks who serve oral argument is not always possible. the entire court. They seldom have time to do more A law clerk’s duties vary according than scan pertinent portions of the to the preferences of the judge for record called to their attention by whom he or she works. They also vary law clerks. according to the type of court. Law Once a decision has been reached clerks for federal district judges often by an appellate court, the law clerk serve primarily as research assistants. frequently participates in writing the They spend a good deal of time exam- order that accompanies the decision. ining the various motions filed in civil The clerk’s participation generally and criminal cases. They review each consists of drafting a preliminary motion, noting the issues and the po- opinion or order pursuant to the sitions of the parties involved, then re- judge’s directions. A law clerk may search important points raised in the also be asked to edit or check citations motions and prepare written memo- (references to a statute, precedent- randums for the judges. Because their setting case, or legal textbook, in a work is devoted to the earliest stages brief or argument in court) in an of the litigation process, they may opinion written by the judge. 42 OUTLINE OF THE U.S. LEGAL SYSTEM

The work of the law clerk for a sonnel records and collecting data Supreme Court justice roughly on cases in the federal courts. parallels that of a clerk in the other The Administrative Office also appellate courts. Clerks play an indis- serves the Judicial Conference of the pensable role in helping justices de- United States, the central administra- cide which cases should be heard. At tive policy-making organization of the the suggestion of Justice Lewis F. Pow- federal judicial system. In addition to ell, Jr., in 1972, a majority of the providing statistical information to Court’s members began to participate the conference’s many committees, in a “certpool”; the justices pool their the Administrative Office acts as a clerks, divide up all filings, and circu- reception center and clearinghouse late a single clerk’s certiorari memo to for information and proposals direct- all those participating in the pool. The ed to the Judicial Conference. The memo summarizes the facts of the office also acts as liaison for both the case, the questions of law presented, federal judicial system and the Judicial and the recommended course of Conference, serving as advocate for action — that is, whether the case the judiciary in its dealings with should be granted a full hearing, Congress, the executive branch, pro- denied, or dismissed. fessional groups, and the general Once the justices have voted to hear public. Especially important is its a case, the law clerks, like their coun- representative role before Congress terparts in the courts of appeals, pre- where, along with concerned judges, it pare bench memorandums that the presents the judiciary’s budget pro- justices may use during oral argument. posals, requests for additional judge- Finally, law clerks for Supreme Court ships, suggestions for changes in court justices, like those who serve courts of rules, and other key measures. appeals judges, help to draft opinions. The Federal Judicial Center Administrative Office of the U.S. The Federal Judicial Center, created in Courts 1967, is the federal courts’ agency for The administration of the federal continuing education and research. Its judicial system as a whole is managed duties fall generally into three cate- by the Administrative Office of the gories: conducting research on the U.S. Courts. Since its creation in 1939 federal courts, making recommenda- it has handled everything from tions to improve the administration distributing supplies to negotiating and management of the federal with other government agencies for courts, and developing educational court accommodations in federal and training programs for personnel buildings to maintaining judicial per- of the judicial branch. CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 43

Since its inception, judges have filings alone have risen 43 percent benefited from orientation sessions since 1993. and other educational programs put In 1995, 50,072 appeals were filed on by the Federal Judicial Center. In in one of the regional circuit courts. recent years, magistrate judges, bank- This figure increased every year, to a ruptcy judges, and administrative per- high of 60,847 appeals in 2003. How- sonnel have also been the recipients of ever, the number of appeals terminat- educational programs. The Federal Ju- ed by the courts of appeals has also dicial Center’s extensive use of videos been steadily increasing, from 49,805 and satellite technology allows it to in 1995 to 56,586 in 2002. reach large numbers of people. The overall caseload of the Supreme Court is large by historical FEDERAL COURT standards; there were 8,255 cases on WORKLOAD the docket for the 2002 term. The he workload of the courts is Supreme Court, however, has discre- heavy for all three levels of tion to decide which cases merit its Tthe federal judiciary — U.S. full attention. As a result, the number district courts, courts of appeals, and of cases argued before the Court has the Supreme Court. declined rather dramatically over the For fiscal year 2002 slightly more years. In the 2002 term only 84 cases than 340,000 cases were commenced were argued and 79 were disposed of in the federal district courts. Criminal in 71 signed opinions.

CHAPTER2 HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS

Although the organization of state courts can be confusing, there is no doubt about their importance: They handle far more cases than those decided by federal tribunals. Here, a painting depicting the State of Florida Supreme Court Building in Tallahassee. 46 OUTLINE OF THE U.S. LEGAL SYSTEM

Even prior to the Articles of Confeder- state’s most important public policies, ation and the writing of the U.S. the state courts handle a wide variety Constitution in 1787, the colonies, as of cases, and the number of cases sovereign entities, already had written litigated annually in the state courts constitutions. Thus, the development far exceeds those decided in the of state court systems can be traced federal tribunals. from the colonial period to the present. The Colonial Period HISTORICAL DEVELOPMENT During the colonial period, political OF STATE COURTS power was concentrated in the hands o two states are exactly alike of the governor appointed by the king when it comes to the organi- of England. Because the governors Nzation of courts. Each state is performed executive, legislative, and free to adopt any organizational judicial functions, an elaborate court scheme it chooses, create as many system was not necessary. courts as it wishes, name those courts The lowest level of the colonial ju- whatever it pleases, and establish their diciary consisted of local judges called jurisdiction as it sees fit. Thus, the or- justices of the peace or magistrates. ganization of state courts does not They were appointed by the colony’s necessarily resemble the clear-cut, governor. At the next level in the sys- three-tier system found at the federal tem were the county courts, the gener- level. For instance, in the federal sys- al trial courts for the colonies. Appeals tem the trial courts are called district from all courts were taken to the high- courts and the appellate tribunals are est level — the governor and his coun- known as circuit courts. However, in cil. Grand and petit juries were also in- well over a dozen states the circuit troduced during this period and courts are trial courts. Several other remain prominent features of the state states use the term superior court for judicial systems. their major trial courts. Perhaps the By the early 18th century the legal most bewildering situation is found in profession had begun to change. New York, where the major trial courts Lawyers trained in the English Inns of are known as supreme courts. Court became more numerous, and as Although confusion surrounds the a consequence colonial court proce- organization of state courts, no doubt dures were slowly replaced by more exists about their importance. Because sophisticated English common law. statutory law is more extensive in the states than at the federal level, Early State Courts covering everything from the most Following the American Revolution basic personal relationships to the (1775-83), the powers of the govern- CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 47

ment were not only taken over by leg- creditors. These differences were im- islative bodies but also greatly re- portant because “out of this conflict duced. The former colonists were not over legislative and judicial power...the eager to see the development of a courts gradually emerged as an inde- large, independent judiciary given that pendent political institution,” accord- many of them harbored a distrust of ing to David W. Neubauer in America’s lawyers and the common law. The Courts and the Criminal Justice System. state legislatures carefully watched the courts and in some instances removed judges or abolished specific courts because of unpopular decisions. Increasingly, a distrust of the judiciary developed as courts declared legislative actions unconstitutional. Conflicts between legislatures and judges, often stemming from opposing interests, became more prominent. Legislators seemed more responsive to policies that favored debtors, whereas courts generally reflected the views of

The colonial period helped establish important legal principles. Left, prominent lawyer Andrew Hamilton’s defense of newspaper printer Johann Peter Zenger in 1735 proved a landmark on the road to protecting freedom of the press. Above, a 1682 woodcut of “The Frame of the Government of the Province of Pennsylvania,” which included laws agreed upon by the governor and “free men of the aforesaid province.” 48 OUTLINE OF THE U.S. LEGAL SYSTEM

Modern State Courts known as the court unification move- From the Civil War (1861-65) to the ment. The first well-known legal early 20th century, the state courts scholar to speak out in favor of court were beset by other problems. Increas- unification was Roscoe Pound, dean of ing industrialization and the rapid the Harvard Law School. Pound and growth of urban areas created new others called for the consolidation types of legal disputes and resulted in of trial courts into a single set of longer and more complex court cases. courts or two sets of courts, one to The state court systems, largely fash- hear major cases and one to hear ioned to handle the problems of a minor cases. rural, agrarian society, were faced with A good deal of opposition has aris- a crisis of backlogs as they struggled en to court unification. Many trial to adjust. lawyers who are in court almost daily One response was to create new become accustomed to existing court courts to handle the increased volume organizations and, therefore, are op- of cases. Often, courts were piled on posed to change. Also, judges and top of each other. Another strategy other personnel associated with the was the addition of new courts with courts are sometimes opposed to re- jurisdiction over a specific geographic form. Their opposition often grows area. Still another response was to cre- out of fear — of being transferred to ate specialized courts to handle one new courts, of having to learn new particular type of case. Small claims procedures, or of having to decide courts, juvenile courts, and domestic cases outside their area of specializa- relations courts, for example, became tion. The court unification movement, increasingly prominent. then, has not been as successful as The largely unplanned expansion many would like. On the other hand, of state and local courts to meet proponents of court reform have se- specific needs led to a situation many cured victories in some states. have referred to as fragmentation. A multiplicity of trial courts was only STATE COURT one aspect of fragmentation, however. ORGANIZATION Many courts had very narrow jurisdic- ome states have moved in the dition. Furthermore, the jurisdictions of rection of a unified court system, the various courts often overlapped. Swhereas others still operate Early in the 20th century, people with a bewildering complex of courts began to speak out against the with overlapping jurisdiction. The fragmentation in the state court sys- state courts may be divided into four tems. The program of reforms that general categories or levels: trial emerged in response is generally courts of limited jurisdiction, trial CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 49

courts of general jurisdiction, inter- of their decisions usually go to a trial mediate appellate courts, and courts court of general jurisdiction for what of last resort. is known as a trial “de novo” (new trial). Yet another distinguishing char- Trial Courts of Limited Jurisdiction acteristic of trial courts of limited ju- Trial courts of limited jurisdiction risdiction is that the presiding judges handle the bulk of litigation in the of such courts are often not required United States each year and constitute to have any formal legal training. about 90 percent of all courts. They Many of these courts suffer from have a variety of names: justice of the a lack of resources. Often, they have peace courts, magistrate courts, mu- no permanent courtroom, meeting nicipal courts, city courts, county instead in grocery stores, restaurants, courts, juvenile courts, domestic rela- or private homes. Clerks are frequent- tions courts, and metropolitan courts, ly not available to keep adequate to name the more common ones. records. The results are informal pro- The jurisdiction of these courts is ceedings and the processing of cases limited to minor cases. In criminal on a mass basis. Full-fledged trials are matters, for example, state courts deal rare and cases are disposed of quickly. with three levels of violations: infrac- Finally, trial courts of limited tions (the least serious), misde- jurisdiction are used in some states meanors (more serious), and felonies to handle preliminary matters in (the most serious). Trial courts of lim- felony criminal cases. They often hold ited jurisdiction handle infractions arraignments, set bail, appoint attor- and misdemeanors. They may impose neys for indigent defendants, and only limited fines (usually no more conduct preliminary examinations. than $1,000) and jail sentences The case is then transferred to a trial (generally no more than one year). In court of general jurisdiction for such civil cases these courts are usually lim- matters as hearing pleas, holding ited to disputes under a certain trials, and sentencing. amount, such as $500. In addition, these types of courts are often limited Trial Courts of General Jurisdiction to certain kinds of matters: traffic vio- Most states have one set of major trial lations, domestic relations, or cases courts that handle the more serious involving juveniles, for example. criminal and civil cases. In addition, Another difference from trial in many states, special categories — courts of general jurisdiction is that in such as juvenile criminal offenses, do- many instances these limited courts mestic relations cases, and probate are not courts of record. Since their cases — are under the jurisdiction of proceedings are not recorded, appeals the general trial courts. 50 OUTLINE OF THE U.S. LEGAL SYSTEM

Attorney Edward Clancy, left, argues his case before his state’s “court of last resort,” the New Hampshire State Supreme Court.

Washington State’s Supreme Court, like other state courts of last resort, follows procedures similar to those of the U.S. Supreme Court. Here, defense attorney Roger Hunko makes closing arguments in the penalty phase of a murder trial. CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 51

In most states these courts also In most instances these courts are have an appellate function. They hear called courts of appeals, although appeals in certain types of cases that other names are occasionally used. originate in trial courts of limited ju- Most states have one court of appeals risdiction. These appeals are often with statewide jurisdiction. The size heard in a trial de novo or tried again of intermediate courts varies from in the court of general jurisdiction. state to state. The court of appeals General trial courts are usually di- in Alaska, for example, has only vided into judicial districts or circuits. three judges. At the other extreme, Although the practice varies by state, Texas has 80 courts of appeals judges. the general rule is to use existing polit- In some states the intermediate ap- ical boundaries, such as a county or a peals courts sit en banc, whereas in group of counties, in establishing the other states they sit in permanent or district or circuit. In rural areas the rotating panels. judge may ride circuit and hold court in different parts of the territory ac- Courts of Last Resort cording to a fixed schedule. In urban Every state has a court of last resort. areas, however, judges hold court in a The states of Oklahoma and Texas prescribed place throughout the year. have two highest courts. Both states In larger counties the group of judges have a supreme court with jurisdiction may be divided into specializations. limited to appeals in civil cases and a Some may hear only civil cases; others court of criminal appeals for criminal try criminal cases exclusively. cases. Most states call their highest The courts at this level have a vari- courts supreme courts; other designa- ety of names. The most common are tions are the court of appeals (Mary- district, circuit, and superior. The land and New York), the supreme judges at this level are required by law judicial court (Maine and Massachu- in all states to have law degrees. These setts), and the supreme court of courts also maintain clerical help be- appeals (West Virginia). The courts of cause they are courts of record. last resort range in size from three to nine judges (or justices in some Intermediate Appellate Courts states). They typically sit en banc and The intermediate appellate courts are usually, although not necessarily, con- relative newcomers to the state judicial vene in the state capital. scene. Only 13 such courts existed in The highest courts have jurisdic- 1911, whereas 39 states had created tion in matters pertaining to state law them by 1995. Their basic purpose is and are, of course, the final arbiters in to relieve the workload of the state’s such matters. In states that have inter- highest court. mediate appellate courts, the Supreme 52 OUTLINE OF THE U.S. LEGAL SYSTEM

New York and Maryland call their highest courts the “court of appeals.” Pictured left to right are New York State Court of Appeals Judge George Bundy Smith, Chief Judge Judith S. Kaye, and Judge Howard A. Levine, as they listen to arguments in a death penalty case.

Court’s cases come primarily from tion. Most state supreme courts also these mid-level courts. In this situa- follow procedures similar to those of tion the high court typically is allowed the U.S. Supreme Court. That is, when to exercise discretion in deciding a case is accepted for review the which cases to review. Thus, it is likely opposing parties file written briefs to devote more time to cases that deal and later present oral arguments. with the important policy issues of the Then, upon reaching a decision, the state. When there is no intermediate judges issue written opinions explain- court of appeals, cases generally go to ing that decision. the state’s highest court on a mandatory review basis. Juvenile Courts In most instances, then, the state Americans are increasingly concerned courts of last resort resemble the U.S. about the handling of cases involving Supreme Court in that they have a juveniles, and states have responded to good deal of discretion in determining the problem in a variety of ways. Some which cases will occupy their atten- have established a statewide network CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 53

of courts specifically to handle mat- armed robbery, robbery with a ters involving juveniles. Two states — firearm, and unlawful use of weapons Rhode Island and South Carolina — on school grounds. have family courts, which handle domestic relations matters as well as ADMINISTRATIVE AND those involving juveniles. STAFF SUPPORT IN THE The most common approach is to STATE JUDICIARY give one or more of the state’s limited he daily operation of the feder- or general trial courts jurisdiction to al courts requires the efforts of handle situations involving juveniles. Tmany individuals and organi- In Alabama, for example, the circuit zations. This is no less true for the courts (trial courts of general jurisdic- state court systems. tion) have jurisdiction over juvenile matters. In Kentucky, however, exclu- Magistrates sive juvenile jurisdiction is lodged in State magistrates, who may also be trial courts of limited jurisdiction — known in some states as commission- the district courts. ers or referees, are often used to per- Finally, some states apportion form some of the work in the early juvenile jurisdiction among more stages of civil and criminal case pro- than one court. The state of Colorado cessing. In this way they are similar to has a juvenile court for the city of U.S. magistrate judges. In some juris- Denver and has given jurisdiction dictions they hold bond hearings and over juveniles to district courts (gen- conduct preliminary investigations in eral trial courts) in the other areas criminal cases. They are also author- of the state. ized in some states to make decisions Also, some variation exists among in minor cases. the states as to when jurisdiction belongs to an adult court. States set Law Clerks a standard age at which defendants In the state courts, law clerks are are tried in an adult court. In addi- likely to be found, if at all, in the tion, many states require that more intermediate appellate courts and youthful offenders be tried in an courts of last resort. Most state trial adult court if special circumstances courts do not utilize law clerks, and are present. In Illinois, for instance, they are practically unheard of in the standard age at which juvenile local trial courts of limited jurisdic- jurisdiction transfers to adult courts tion. As at the national level, some law is 17. The age limit drops to 15, clerks serve individual judges while however, for first-degree murder, others serve an entire court as a aggravated criminal sexual assault, staff attorney. 54 OUTLINE OF THE U.S. LEGAL SYSTEM

State courts handle millions of cases a year, at times in facilities like the Berkeley County Courthouse in Martinsburg, West Virginia, which some call “historic” or “charming” and others describe as “inadequate.”

Administrative Office of the Court Clerks and Court Courts Administrators Every state now has an administrative The clerk of the court has traditional- office of courts or a similarly titled ly handled the day-to-day routines of agency that performs a variety of the court. This includes making court- administrative tasks for that state’s room arrangements, keeping records court system. Among the tasks more of case proceedings, preparing orders commonly associated with adminis- and judgments resulting from court trative offices are budget preparation, actions, collecting court fines and fees, data processing, facility management, and disbursing judicial monies. In the judicial education, public informa- majority of states these officials are tion, research, and personnel manage- elected and may be referred to by ment. Juvenile and adult probation are other titles. the responsibility of administrative The traditional clerks of court have offices in a few states, as is alternative been replaced in many areas by court dispute resolution. administrators. In contrast to the CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 55

court clerk, who traditionally man- cases are awarded by ordinary state aged the operations of a specific trial court juries. courtroom, the modern court admin- The National Center for State istrator may assist a presiding judge in Courts has compiled figures on the running the entire courthouse. caseloads of state courts of last resort and intermediate appellate courts in STATE COURT WORKLOAD 1998. In all, some 261,159 mandatory he lion’s share of the nation’s cases and discretionary petitions were judicial business exists at the filed in the state appellate courts. Tstate, not the national, level. Reliable data on cases filed in the state The fact that federal judges adjudicate trial courts are harder to come by. several hundred thousand cases a Still, the center does an excellent job year is impressive; the fact that state of tracking figures for states’ trial courts handle several million a year courts. In 1998, 17,252,940 cases is overwhelming, even if the most were filed in the general jurisdiction important cases are handled at the and limited jurisdiction courts. As federal level. While justice of the peace with the federal courts, the vast ma- and magistrate courts at the state jority of the cases are civil, although level handle relatively minor matters, the criminal cases often receive the some of the biggest judgments in civil most publicity.

CHAPTER3 JURISDICTION AND POLICY- MAKING BOUNDARIES

Beginning with the Supreme Court’s decision in Baker v. Carr (1962), the Court has held in several cases that legislative districts should be of equal population size and that courts should see to it that this mandate is carried out. Here, Associate Justice Sarah Parker of the Supreme Court of North Carolina looks over a map during a court session dealing with redistricting, or reapportionment of legislative districts. 58 OUTLINE OF THE U.S. LEGAL SYSTEM

In setting the jurisdictions of courts, havior, including interstate theft of an Congress and the U.S. Constitution — automobile, illegal importation of and their state counterparts — man- narcotics, assassination of a president, date the types of cases each court may conspiracy to deprive persons of their hear. This chapter considers how Con- civil rights, and even the killing of a gress, in particular, can influence judi- migratory bird out of season. cial behavior by redefining the types of After charges are filed against an cases judges may hear. It also discusses accused, and if no plea bargain has judicial self-restraint, examining 10 been made, a trial is conducted by a principles, derived from legal tradition U.S. district judge. In court the defen- and constitutional and statutory law, dant enjoys all the privileges and im- that govern a judge’s decision about munities granted in the Bill of Rights whether to review a case. (such as the right to a speedy and public trial) or by congressional legislation FEDERAL COURTS or Supreme Court rulings (for in- he federal court system is divid- stance, a 12-person jury must render a ed into three separate levels: the unanimous verdict). Defendants may Ttrial courts, the appellate tri- waive the right to a trial by a jury of bunals, and the U.S. Supreme Court. their peers. A defendant who is found not guilty of the crime is set free and U.S. District Courts may never be tried again for the same Congress has set forth the jurisdiction offense (the Fifth Amendment’s proof the federal district courts. These tection against double jeopardy). If the tribunals have original jurisdiction in accused is found guilty, the district federal criminal and civil cases; that is, judge determines the appropriate by law, the cases must be first heard in sentence within a range set by these courts, no matter who the par- Congress. The length of a sentence ties are or how significant the issues. cannot be appealed so long as it is in the range prescribed. A verdict of not Criminal Cases. These cases com- guilty may not be appealed by the mence when the local U.S. attorneys government, but convicted defendants have reason to believe that a violation may appeal if they believe that the of the U.S. Penal Code has occurred. judge or jury made an improper legal After obtaining an indictment from a determination. federal grand jury, the U.S. attorney files charges against the accused in the Civil Cases. A majority of the district district court in which he or she court caseload is civil in nature; that is, serves. Criminal activity as defined by suits between private parties or be- Congress covers a wide range of between the U.S. government, acting in a CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 59

nonprosecutorial capacity, and a pri- citizenship disputes. These are dis- vate party. Civil cases that originate in putes between parties from different the U.S. district courts may be placed states or between an American citizen in several categories. The first is litiga- and a foreign country or citizen. tion concerning the interpretation or Federal district courts also have application of the Constitution, acts of jurisdiction over petitions from con- Congress, or U.S. treaties. Examples of victed prisoners who contend that cases in this category include the fol- their incarceration (or perhaps their lowing: a petitioner claims that one of denial of parole) is in violation of his or her federally protected civil their federally protected rights. In the rights has been violated, a litigant al- vast majority of these cases prisoners leges that he or she is being harmed by ask for a writ of “habeas corpus” a congressional statute that is uncon- (Latin for “you should have the stitutional, and a plaintiff argues that body”), an order issued by a judge to he or she is suffering injury from a determine whether a person has been treaty that is improperly affecting him. lawfully imprisoned or detained. The The key point is that a federal question judge would demand that the prison must be raised in order for the U.S. authorities either justify the detention trial courts to have jurisdiction. or release the petitioner. Prisoners Traditionally, some minimal dollar convicted in a state court must argue amounts had to be in controversy in that a federally protected right was some types of cases before the trial violated — for example, the right to courts would hear them, but such be represented by counsel at trial. amounts have been waived if the case Otherwise, the federal courts would falls into one of several general cate- have no jurisdiction. Federal prisoners gories. For example, an alleged viola- have a somewhat wider range for their tion of a civil rights law, such as the appeals since all their rights and Voting Rights Act of 1965, must be options are within the scope of the heard by the federal rather than the U.S. Constitution. state judiciary. Other types of cases in Finally, the district courts have the this category are patent and copyright authority to hear any other cases that claims, passport and naturalization Congress may validly prescribe by law. proceedings, admiralty and maritime disputes, and violations of the U.S. U.S. Courts of Appeals postal laws. The U.S. appellate courts have no orig- Another broad category of cases inal jurisdiction whatsoever; every over which the U.S. trial courts exer- case or controversy that comes to one cise general original jurisdiction in- of these intermediate level panels has cludes what are known as diversity of been first argued in some other forum. 60 OUTLINE OF THE U.S. LEGAL SYSTEM

Judges from the Appellate Division of the New York State Supreme Court in Rochester, New York, hear motion arguments. A dispute must be real and current before a court will agree to accept it for adjudication.

These tribunals, like the district includes appeals from certain federal courts, are the creations of Congress, administrative agencies and depart- and their structure and functions have ments and also from independent reg- varied considerably over time. ulatory commissions, such as the Secu- Basically, Congress has granted the rities and Exchange Commission and circuit courts appellate jurisdiction the National Labor Relations Board. over two general categories of cases. The first of these are ordinary civil and U.S. Supreme Court criminal appeals from the federal trial The U.S. Supreme Court is the only courts. In criminal cases the appellant federal court mentioned by name in is the defendant because the govern- the Constitution, which spells out the ment is not free to appeal a verdict of general contours of the High Court’s not guilty. In civil cases the party that jurisdiction. Although the Supreme lost in the trial court is usually the ap- Court is usually thought of as an appel- pellant, but the winning party may late tribunal, it does have some general appeal if it is not satisfied with the original jurisdiction. Probably the most lower-court judgment. The second important subject of such jurisdiction broad category of appellate jurisdiction is a suit between two or more states. CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 61

The High Court shares original ju- tionary action. Such a writ (which risdiction (with the U.S. district must be supported by at least four jus- courts) in certain cases brought by or tices) is an order from the Supreme against foreign ambassadors or con- Court to a lower court demanding suls, in cases between the United States that it send up a complete record of a and a state, and in cases commenced case so that the Supreme Court can re- by a state against citizens of another view it. Historically, the Supreme state or another country. In situations Court has agreed to grant the petition such as these, where jurisdiction is for a writ of certiorari in only a tiny shared, the courts are said to have con- proportion of cases — usually less current jurisdiction. Cases over which than 10 percent of the time, and in re- the Supreme Court has original juris- cent years the number has been closer diction are often important, but they to 1 percent. do not constitute a sizable proportion Another method by which the of the overall caseload. In recent years Supreme Court exercises its appellate less than 1 percent of the High Court’s jurisdiction is certification. This pro- docket consisted of cases heard on cedure is followed when one of the ap- original jurisdiction. peals courts asks the Supreme Court The U.S. Constitution declares that for instructions regarding a question the Supreme Court “shall have appel- of law. The justices may choose to give late Jurisdiction...under such Regula- the appellate judges binding instructions as the Congress shall make.” tions, or they may ask that the entire Over the years Congress has passed record be forwarded to the Supreme much legislation setting forth the Court for review and final judgment. “Regulations” determining which cases may appear before the nation’s JURISDICTION AND POLICY most august judicial body. Appeals MAKING OF STATE COURTS may reach the Supreme Court through he jurisdictions of the 50 sepa- two main avenues. First, there may be rate state court systems in the appeals from all lower federal consti- TUnited States are established in tutional and territorial courts and also virtually the same manner as those from most, but not all, federal legisla- within the national court system. Each tive courts. Second, the Supreme state has a constitution that sets forth Court may hear appeals from the the authority and decision-making highest court in a state — as long as powers of its trial and appellate there is a substantial federal question. judges. Likewise, each state legislature Most of the High Court’s docket passes laws that further detail the spe- consists of cases in which it has agreed cific powers and prerogatives of judges to issue a writ of certiorari — a discre- and the rights and obligations of those 62 OUTLINE OF THE U.S. LEGAL SYSTEM

who bring suit in the state courts. Be- these cases, state supreme courts in- cause no two state constitutions or validated their state’s method of fi- legislative bodies are alike, the juris- nancing education, thus requiring the dictions of individual state courts vary reallocation of billions of dollars. from one state to another. State courts are extremely impor- JURISDICTION AND tant in terms of policy making in the LEGISLATIVE POLITICS United States. Well over 99 percent of ome judges and judicial scholars the judicial workload in the United argue that the U.S. Constitution States consists of state, not federal, Sand the respective state docu- cases, and 95 percent of all judges in ments confer a certain inherent juris- the United States work at the state diction upon the judiciaries in some level. Moreover, the decisions of state key areas, independent of the legisla- jurists frequently have a great impact tive will. Nevertheless, the jurisdic- on public policy. For example, during tional boundaries of American courts the 1970s a number of suits were are also a product of legislative judg- brought into federal court challenging ments — determinations often influ- the constitutionality of a state’s enced by politics. spending vastly unequal sums on the Congress may advance a particular education of its schoolchildren. (This cause by giving courts the authority occurred because poorer school dis- to hear cases in a public policy realm tricts could not raise the same amount that previously had been forbidden of money as could wealthy school dis- territory for the judiciary. For exam- tricts.) The litigants claimed that chil- ple, when Congress passed the Civil dren in the poorer districts were Rights Act of 1968, it gave judges the victims of unlawful discrimination in authority to penalize individuals who violation of their equal protection interfere with “any person because of rights under the U.S. Constitution. his race, color, religion or national The Supreme Court said they were origin and because he is or has not, however, in a five-to-four deci- been...traveling in...interstate com- sion in San Antonio Independent merce.” Prior to 1968 the courts had School District v. Rodriguez (1973). But no jurisdiction over incidents that the matter did not end there. Litiga- stemmed from interference by one tion was instituted in many states person with another’s right to travel. arguing that unequal educational op- Likewise, Congress may discourage a portunities were in violation of vari- particular social movement by passing ous clauses in the state constitutions. legislation to make it virtually impos- Since Rodriguez such suits have been sible for its advocates to have any brought 28 times in 24 states. In 14 of success in the courts. CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 63

The jurisdictions of state courts, nical legal standards to institute a suit. like their federal counterparts, also are The dispute must concern the protec- very much governed by — and the po- tion of a meaningful, nontrivial right litical product of — the will of the or the prevention or redress of a state legislatures. wrong that directly affects the parties to the suit. There are three corollaries JUDICIAL SELF-RESTRAINT to this general principle. he activities that judges are for- The first is that the federal courts bidden to engage in, or at least do not render advisory opinions, rul- Tdiscouraged from engaging in, ings about situations that are hypo- deal not so much with jurisdiction as thetical or that have not caused an with justiciability — the question of actual clash between adversaries. A whether judges in the system ought to dispute must be real and current be- hear or refrain from hearing certain fore a court will agree to accept it for types of disputes. Ten principles of ju- adjudication. dicial self-restraint, discussed below, A second corollary is that the par- serve to check and contain the power ties to the suit must have proper of American judges. These maxims standing. This notion deals with the originate from a variety of sources — matter of who may bring litigation to the U.S. Constitution and state consti- court. The person bringing suit must tutions, acts of Congress and of state have suffered (or be immediately legislatures, and the common law. about to suffer) a direct and signifi- Some apply more to appellate courts cant injury. As a general rule, a litigant than to trial courts; most apply to fed- cannot bring a claim on behalf of oth- eral and state judicial systems. ers (except for parents of minor children or in special types of suits called A Definite Controversy Must Exist class actions). In addition, the alleged The U.S. Constitution states that “the injury must be personalized and im- judicial Power shall extend to all mediate — not part of some general- Cases, in Law and Equity, arising ized complaint. under this Constitution, the Laws of The third corollary is that courts the United States, and Treaties ordinarily will not hear a case that has made...under their Authority” (Article become moot — when the basic facts III, Section 2). The key word here is or the status of the parties have signif- cases. Since 1789 the federal courts icantly changed between the time have chosen to interpret the term in its when the suit was first filed and when most literal sense: There must be an it comes before the judge(s). The actual controversy between legitimate death of a litigant or the fact that the adversaries who have met all the tech- litigants have ceased to be warring 64 OUTLINE OF THE U.S. LEGAL SYSTEM

parties would render a case moot in must avoid and a situation where a de- most tribunals. However, sometimes claratory judgment is in order, in the judges may decide that it is necessary real world the line between the two is to hear a case, even though the status often a difficult one for jurists to draw. of the facts and parties would seem to have radically altered. Examples in- A Plea Must Be Specific clude cases where someone has chal- Another constraint upon the federal lenged a state’s refusal to permit an judiciary is that judges will hear no abortion or to permit the life-support case on the merits unless the petition- system of a terminally ill person to be er is first able to cite a specific part of switched off. (In such cases, by the the Constitution as the basis of the time the suit reaches an appellate plea. For example, the First Amend- court, the woman may already have ment forbids government from mak- given birth or the moribund person ing a law “respecting an establishment may have died.) In these cases judges of religion.” In 1989 the state of New have believed that the issues were so York created a special school district important that they needed to be ad- solely for the benefit of the Satmar dressed by the court. To declare such Hasids, a group of Hasidic Jews with cases moot would, practically speak- East European roots that strongly re- ing, prevent them from ever being sists assimilation into modern society. heard in time by an appellate body. Most of the children attended Although federal judges do not rule parochial schools in the Village of on abstract, hypothetical issues, many Kiryas Joel, but these private schools state courts are permitted to do so in weren’t able to accommodate retarded some form or other. Federal legislative and disabled students, and the Satmars courts may give advisory opinions as claimed that such children within well. Also, American judges are their community would be trauma- empowered to render declaratory tized if forced to attend a public judgments, which define the rights of school. Responding to this situation, various parties under a statute, a will, the state legislature created a special or a contract. The judgments do not district encompassing a single school entail any type of coercive relief. The that served only handicapped children federal courts were given the authority from the Hasidic Jewish community. to act in this capacity in the Federal This arrangement was challenged by Declaratory Judgment Act of 1934, the association representing New York and about three-fourths of the states state’s school boards. In June 1994 the grant their courts this power. Al- U.S. Supreme Court ruled that the cre- though a difference exists between an ation of the one-school district effec- abstract dispute that the federal courts tively delegated political power to the CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 65

Circuit courts have appellate jurisdiction over civil appeals from the federal trial courts, such as a 2000 case where the 4th U.S. Circuit Court of Appeals was asked to overturn a federal judge’s ruling that the mining industry claimed would end mining in the Appalachian Mountains (shown above). These courts also can hear appeals from certain federal administrative agencies. The two juvenile Mexican spotted owls, left, however, appear unaware that a suit by an environmental group, the Audubon Society, involves their species’s habitats. 66 OUTLINE OF THE U.S. LEGAL SYSTEM

Congress has said that federal district courts have jurisdiction in federal civil and criminal cases. In this photo, Justice Department lead attorney David Boies, left, and Connecticut Attorney General Richard Blumenthal, right, discuss the Microsoft Windows 98 case with the media. CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 67

orthodox Jewish group and therefore farmer has long been a member of a violated the First Amendment’s ban program under which he agreed to on governmental “establishment of re- take part of his land out of production ligion.” Whether or not everyone and periodically was paid a subsidy by agrees that the New York law was con- the federal government. After years as stitutional, few, if any, would doubt a participant, the farmer learns that a that the school board association met neighbor is also drawing regular pay- the specific criteria for securing judi- ments for letting all of his farmland lie cial review: The Constitution clearly fallow. The idea that the neighbor is forbids the government from delegat- getting something for nothing offends ing political power to a specific reli- the farmer, and he questions the pro- gious entity. The government here gram’s constitutionality. The farmer readily acknowledged that it had challenges the legality of the program passed a law for the unique benefit of in the local federal district court. As a singular religious community. soon as it is brought to the judge’s at- However, if one went into court tention that the farmer had himself and contended that a particular law or been a member of the program and official action “violated the spirit of had gained financially from it, the suit the Bill of Rights” or “offended the val- is dismissed: One may not benefit ues of the Founders,” a judge surely from a particular governmental en- would dismiss the proceeding. For if deavor or official action and subse- judges were free to give concrete, sub- quently attack it in court. stantive meaning to vague generalities such as these, there would be little Appellate Courts Rule on Legal — check on what they could do. In the Not Factual — Questions real world this principle is not as sim- A working proposition of state and ple and clear-cut as it sounds, because federal appellate court practice is that the Constitution contains many claus- these courts will generally not hear es that are open to a wide variety of in- cases if the grounds for appeal are terpretations, giving federal judges that the trial judge or jury wrongly sufficient room to maneuver and amassed and identified the basic make policy. factual elements of the case. It is not that trial judges and juries always Beneficiaries May Not Sue do a perfect job of making factual A third aspect of judicial self-restraint determinations. Rather, there is the is that a petitioner who has been the belief that they are closer to the actual beneficiary of a law or an official ac- parties and physical evidence of the tion may not subsequently challenge case, and, therefore, they will do a that law. For example, suppose that a much better job of making factual 68 OUTLINE OF THE U.S. LEGAL SYSTEM

assessments than would an appellate other remedies, legal and administra- body reading a transcript of the case tive, have been exhausted. In its some months or years after the trial. simplest form this doctrine means However, legal matters — which laws that one must work up the ladder to apply to the facts of a case or how with one’s legal petitions. Federal to assess the facts in light of the cases must first be heard by the U.S. prevailing law — are appropriate for trial courts, then reviewed by one of appellate review. the appellate tribunals, and finally heard by the U.S. Supreme Court. This The Supreme Court Is Not Bound orderly procedure of events must (Technically) by Precedents occur despite the importance of the If the High Court is free to overturn case or of the petitioners who filed it. or circumvent past and supposedly In certain circumstances, however, the controlling precedents when it decides appellate process can be shortened. a case, this might appear to be an ar- Exhaustion of remedies refers to gument for judicial activism — not possible administrative relief as well restraint. However, this practice is one as to adherence to the principle of a of the principles of self-restraint. If three-tiered judicial hierarchy. Such the Supreme Court were inescapably relief might be in the form of an ap- bound by the dictates of its prior peal to an administrative officer, a rulings, it would have very little flexi- hearing before a board or committee, bility. By occasionally allowing itself or formal consideration of a matter by the freedom to overrule a past deci- a legislative body. sion or to ignore a precedent that would seem to be controlling, the Courts Do Not Decide “Political Supreme Court establishes a corner of Questions” safety to which it can retreat if need To U.S. judges, the executive and the be. When wisdom dictates that the legislative branches of government are Court change direction or at least political in that they are elected by the keep an open mind, this principle of people for the purpose of making self-restraint is put to use. public policy. The judiciary, in contrast, was not designed by the Other Remedies Must Be Founders to be an instrument mani- Exhausted festing the popular will and is there- Another principle of self-restraint fore not political. According to this often frustrates the anxious litigant line of reasoning, then, a political but is essential to the orderly adminis- question is one that ought properly to tration of justice: Courts in the United be resolved by one of the other two States will not accept a case until all branches of government. CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 69

For example, when the state of the Founders wanted legislatures to Oregon gave its citizens the right to redistrict themselves — perhaps with vote on popular statewide referen- input from the electorate. However, dums and initiatives around 1900, with the Supreme Court’s decision in the Pacific States Telephone and Baker v. Carr (1962), the majority re- Telegraph Company objected. (The versed that thinking. Since then the company feared that voters would Court has held in scores of cases that bypass the more business-oriented the equal-protection clause of the legislature and pass laws restricting Fourteenth Amendment requires leg- its rates and profits.) The company islative districts to be of equal popula- claimed that Article IV, Section 4, of tion size and, furthermore, that the the Constitution guarantees to each courts should see to it that this man- state “a Republican Form of Govern- date is carried out. ment” — a term that supposedly means that laws are to be made only The Burden of Proof Is on the by the elected representatives of the Petitioner people, not by the citizens directly. The nation’s jurists generally agree The High Court refused to rule on the that an individual who would chal- merits of the case, declaring the issue lenge the constitutionality of a statute to be a political question. The Court bears the burden of proof. Thus, if reasoned that since Article IV prima- someone were to attack a particular rily prescribes the duties of Congress, statute, he or she would have to do it follows that the Founders wanted more than demonstrate that it was Congress — not the courts — to over- “questionable or of doubtful constitu- see the forms of government in the tionality”; the petitioner would have several states. to persuade the court that the evi- In recent decades an important dence against the law was clear-cut political versus nonpolitical dispute and overwhelming. has concerned the matter of reappor- The only exception to this burden tionment of legislative districts. Prior of proof principle is in the realm of to 1962, a majority on the Supreme civil rights and liberties. Some jurists Court refused to rule on the constitu- who are strong civil libertarians have tionality of legislative districts with long contended that when govern- unequal populations, saying that ment attempts to restrict basic human such matters were “nonjusticiable” freedoms the burden of proof should and that the Court dared not enter shift to the government. And in sever- what Justice Felix Frankfurter called al specific areas of civil rights ju- “the political thicket.” According to risprudence that philosophy now traditional Supreme Court thinking, prevails. For example, the U.S. 70 OUTLINE OF THE U.S. LEGAL SYSTEM

Supreme Court has ruled in a variety No Rulings Are Made on the of cases that laws that treat persons “Wisdom” of Legislation differently according to their race or If followed strictly, this principle gender are automatically subject to means that the only basis for de- “special scrutiny.” This means that the claring a law or an official action burden of proof shifts to the govern- unconstitutional is that it literally ment to demonstrate a compelling or violates the Constitution. Statutes do overriding need to differentiate per- not offend the Constitution merely sons according to their ethnic origins because they are unfair, are fiscally or sex. For instance, the government wasteful, or constitute bad public pol- has long argued (successfully) that icy. If taken truly to heart, this means some major restrictions can be placed that judges and justices are not free to on women in the armed forces that invoke their own personal notions of prevent them from being assigned to right and wrong or of good and bad full combat duty. public policy when they examine the constitutionality of legislation. Laws Are Overturned on the Another spinoff of this principle is Narrowest Grounds Only that a law may be passed that all agree Sometimes during a trial a judge is good and wise but that is neverthe- clearly sees that the strictures of the less unconstitutional; conversely, a Constitution have been offended by a statute may legalize the commission of legislative or executive act. Even here, an official deed that all know to be bad however, a jurist may proceed with and dangerous but that still does not caution. First, a judge may have the offend the Constitution. option of invalidating an official The principle of not ruling on the action on what is called statutory, “wisdom” of a law is difficult to follow instead of constitutional, grounds. in the real world. This is so because Statutory invalidation means that a the Constitution, a rather brief docu- judge overturns an official’s action ment, is silent on many areas of because the official acted beyond the public life and contains a number of authority delegated to him or her by phrases and admonitions that are the law. Such a ruling has the function open to a variety of interpretations. of saving the law itself while still For instance, the Constitution says nullifying the official’s misdeed. that Congress may regulate interstate Second, judges may, if possible, invali- commerce. But what exactly is com- date only that portion of a law they merce, and how extensive does it have find constitutionally defective instead to be before it is of an “interstate” of overturning the entire statute. character? As human beings, judges CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 71

have differed in the way they have In all, despite the inevitable intru- responded to this question. The Con- sion of judges’ personal values into stitution guarantees a person accused their interpretation of many portions of a crime the right to a defense attor- of the Constitution, virtually every ney. But does this right continue if jurist subscribes to the general one appeals a guilty verdict and, if so, principle that laws can be invalidated for how many appeals? Strict con- only if they offend the Constitution structionists and loose construction- — not the personal preferences of ists have responded differently to the judges. these queries.

CHAPTER4 LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS

New lawyers take their oaths in Topeka, Kansas, to practice in the Kansas state court and in the Federal court in the district of Kansas. According to recent estimates, the United States has more than 950,000 lawyers. 74 OUTLINE OF THE U.S. LEGAL SYSTEM

This chapter focuses on three crucial Those who aspired to the law during actors in the judicial process: lawyers, this period generally performed a litigants, and interest groups. Judges in clerkship or apprenticeship with an the United States make decisions only established lawyer. in the context of cases that are brought After the American Revolution to the courts by individuals or groups (1775-83), the number of lawyers in- who have some sort of disagreement creased rapidly, because neither legal or dispute with each other. These ad- education nor admission to the bar versaries, commonly called litigants, was very strict. The apprenticeship sometimes argue their own cases in method continued to be the most such minor forums as small claims popular way to receive legal training, courts, but they are almost always rep- but law schools began to come into ex- resented by lawyers in the more im- istence. The first law schools grew out portant judicial arenas. Following an of law offices that specialized in train- examination of the legal profession, ing clerks or apprentices. The earliest the chapter discusses the role of indi- such school was the Litchfield School vidual litigants and interest groups in in Connecticut, founded in 1784. This the judicial process. school, which taught by the lecture method, placed primary emphasis on LAWYERS AND THE LEGAL commercial law. Eventually, a few col- PROFESSION leges began to teach law as part of their he training of attorneys and the general curriculum, and in 1817 an in- practice of law have evolved dependent law school was established Tover time in the United States. at Harvard University. Today American lawyers practice in a During the second half of the 19th variety of settings and circumstances. century, the number of law schools increased dramatically, from 15 schools Development of the Legal in 1850 to 102 in 1900. The law Profession schools of that time and those of today During the colonial period in America have two major differences. First, law (1607-1776), there were no law schools then did not usually require schools to train those interested in any previous college work. Second, in the legal profession. Some young men 1850 the standard law school curricu- went to England for their education lum could be completed in one year. and attended the Inns of Court. The Later in the 1800s many law schools Inns were not formal law schools, instituted two-year programs. but were part of the English legal In 1870 major changes began at culture and allowed students to Harvard that were to have a lasting become familiar with English law. impact on legal training. Harvard in- CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 75

stituted stiffer entrance requirements; people wanting to study law increased a student who did not have a college dramatically. By the 1960s the number degree was required to pass an en- of applicants to law schools had trance test. The law school course was grown so large that nearly all schools increased to two years in 1871 and to became more selective. At the same three years in 1876. Also, students time, in response to social pressure were required to pass first-year final and litigation, many law schools examinations before proceeding to the began actively recruiting female and second-year courses. minority applicants. The most lasting change, however, Also by the 1960s, the curriculum was the introduction of the case in some law schools had been expand- method of teaching. This method re- ed to include social concerns such as placed lectures and textbooks with civil rights law and law-and-poverty casebooks. The casebooks (collections issues. International law courses also of actual case reports) were designed became available. to explain the principles of law, what A more recent trend in law schools they meant, and how they developed. is an emphasis on the use of comput- Teachers then used the Socratic ers for everything from registration to method to guide the students to a dis- classroom instruction to accessing covery of legal concepts found in the court forms to student services. Also cases. Other schools eventually adopt- noteworthy is that more and more law ed the Harvard approach, and the case schools are offering courses or special method remains the accepted method programs in intellectual property law, of teaching in many law schools today. a field of specialization that has grown As the demand for lawyers in- considerably in recent years. Finally, creased during the late 1800s, there the increasing use of advertising by was a corresponding acceleration in lawyers has had a profound impact on the creation of new law schools. Open- the legal profession. On television ing a law school was not expensive, stations across the country one can and a number of night schools, using now see lawyers making appeals to lawyers and judges as part-time facul- attract new clients. Furthermore, legal ty members, sprang into existence. clinics, established to handle the busi- Standards were often lax and the cur- ness generated by the increased use of riculum tended to emphasize local advertising, have spread rapidly. practice. These schools’ major contri- bution lay in making training more Growth and Stratification readily available to poor, immigrant, The number of lawyers in the United and working-class students. States has increased steadily over the In the 20th century, the number of past half century and is currently 76 OUTLINE OF THE U.S. LEGAL SYSTEM

estimated at more than 950,000. America’s lawyers apply their pro- Where do all the attorneys in the fessional training in a variety of set- United States find work? tings. Some environments are more The Law School Admission Coun- profitable and prestigious than others. cil provides some answers in The Offi- This situation has led to what is cial Guide to U.S. Law Schools, 2001 known as professional stratification. Edition. Almost three-fourths (72.9 One of the major factors influenc- percent) of America’s lawyers are in ing the prestige level is the type of legal private practice, some in small, one- specialty and the type of clientele person offices and some in much larg- served. Lawyers with specialties who er law firms. About 8.2 percent of the serve big business and large institu- legal profession’s members work for tions occupy the top hemisphere; government agencies, roughly 9.5 per- those who represent individual inter- cent work for private industries and ests are in the bottom hemisphere. associations as lawyers or managers, At the top of the prestige ladder about 1.1 percent work for legal aid as- are the large national law firms. Attor- sociations or as public defenders, rep- neys in these firms have traditionally resenting those who cannot afford to been known less for court appearances pay a lawyer, and 1 percent are in legal than for the counseling they provide education. Some 5 percent of the na- their clients. The clients must be able tion’s lawyers are retired or inactive. to pay for this high-powered legal tal-

The large national law firms employ associates, librarians, and paralegals to help partners with a myriad of tasks, such as research. CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 77

ent, and thus they tend to be major the legal division handles the multi- corporations rather than individuals. tude of legal problems faced by the However, many of these large national modern corporation. For example, firms often provide “pro bono” (Latin the legal division monitors the compa- for “the public good,” or free) legal ny’s personnel practices to ensure services to further civil rights, civil compliance with federal and state liberties, consumer interests, and envi- regulations concerning hiring and re- ronmental causes. moval procedures. The corporation’s The large national firms consist of attorneys may advise the board of partners and associates. Partners own directors about such things as contrac- the law firm and are paid a share of tual agreements, mergers, stock sales, the firm’s profits. The associates are and other business practices. The paid salaries and in essence work company lawyers may also help edu- for the partners. These large firms cate other employees about the laws compete for the best graduates from that apply to their specific jobs and the nation’s law schools. The most make sure that they are in compliance prestigious firms have 250 or more with them. The legal division of a large lawyers and also employ hundreds company also serves as a liaison with of other people as paralegals (non- outside counsel. lawyers who are specially trained to Most of the nation’s lawyers work handle many of the routine aspects of in a lower hemisphere of the legal pro- legal work), administrators, librarians, fession in terms of prestige and do not and secretaries. command the high salaries associated A notch below those working with large national law firms and in the large national firms are those major corporations. However, they are employed as attorneys by large engaged in a wider range of activities corporations. Many corporations and are much more likely to be found, use national law firms as outside day in and day out, in the courtrooms counsel. Increasingly, however, corpo- of the United States. These are the at- rations are hiring their own salaried torneys who represent clients in per- attorneys as in-house counsel. The sonal injury suits, who prosecute and legal staff of some corporations rivals defend persons accused of crimes, those of private firms in size. Further, who represent husbands and wives in these corporations compete with divorce proceedings, who help people the major law firms for the best law conduct real estate transactions, and school graduates. who help people prepare wills, to Instead of representing the corpo- name just a few activities. ration in court (a task usually handled Attorneys who work for the gov- by outside counsel when necessary), ernment are generally included in the 78 OUTLINE OF THE U.S. LEGAL SYSTEM

lower hemisphere. Some, such as the tant U.S. attorneys are formally ap- U.S. attorney general and the solicitor pointed by the U.S. attorney general, general of the United States, occupy although in practice they are chosen quite prestigious positions, but many by the U.S. attorney for the district, toil in rather obscure and poorly paid who forwards the selection to the positions. A number of attorneys opt attorney general for ratification. for careers as judges at the federal or Assistant U.S. attorneys may be fired state level. by the attorney general. Another distinction in terms of In their role as prosecutors, U.S. specialization in the legal profession is attorneys have considerable discretion that between plaintiffs and defense at- in deciding which criminal cases to torneys. The former group initiates prosecute. They also have the authori- lawsuits, whereas the latter group de- ty to determine which civil cases to fends those accused of wrongdoing in try to settle out of court and which civil and criminal cases. ones to take to trial. U.S. attorneys, therefore, are in a very good position Government Attorneys in the to influence the federal district court’s Judicial Process docket. Also, because they engage Government attorneys work at all lev- in more litigation in the district els of the judicial process, from trial courts than anyone else, the U.S. courts to the highest state and federal attorneys and their staffs are vital appellate courts. participants in policy making in the federal trial courts. Federal Prosecutors. Each federal judicial district has one U.S. attorney Prosecutors at the State Level. and one or more assistant U.S. attor- Those who prosecute persons accused neys. They are responsible for prose- of violating state criminal statutes cuting defendants in criminal cases in are commonly known as district the federal district courts and for de- attorneys. In most states they are fending the United States when it is elected county officials; however, in sued in a federal trial court. a few states they are appointed. U.S. attorneys are appointed by the The district attorney’s office usually president and confirmed by the employs a number of assistants who Senate. Nominees must reside in the do most of the actual trial work. Most district to which they are appointed of these assistant district attorneys are and must be lawyers. They serve a recent graduates of law school, who formal term of four years but can be gain valuable trial experience in these reappointed indefinitely or removed at positions. Many later enter private the president’s discretion. The assis- practice, often as criminal defense CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 79

attorneys. Others will seek to become Public Defenders. Often the person district attorneys or judges after a charged with violating a state or feder- few years. al criminal statute is unable to pay The district attorney’s office has for the services of a defense attorney. a great deal of discretion in the In some areas a government official handling of cases. Given budget and known as a public defender bears the personnel constraints, not all cases responsibility for representing indi- can be afforded the same amount of gent defendants. Thus, the public de- time and attention. Therefore, some fender is a counterpart of the prosecu- cases are dismissed, others are not tor. Unlike the district attorney, prosecuted, and still others are prose- however, the public defender is usual- cuted vigorously in court. Most cases, ly appointed rather than elected. however, are subject to plea bargain- In some parts of the country there ing. This means that the district are statewide public defender systems; attorney’s office agrees to accept the in other regions the public defender is defendant’s plea of guilty to a reduced a local official, usually associated with charge or to drop some charges a county government. Like the district against the defendant in exchange for attorney, the public defender employs pleas of guilty to others. assistants and investigative personnel.

In some areas, if a person charged with violating a state or federal criminal statute is unable to pay for the services of a defense attorney — as happened with the defendant above, center, facing the judge — a government official known as the public defender is responsible for representing the defendant. 80 OUTLINE OF THE U.S. LEGAL SYSTEM

Other Government Lawyers. At cases to the courts of appeals, and aid both the state and federal levels, some the solicitor general’s office in cases ar- government attorneys are better gued before the Supreme Court. known for their work in appellate courts than in trial courts. For exam- U.S. Solicitor General. The solicitor ple, each state has an attorney general general of the United States, the third- who supervises a staff of attorneys ranking official in the Justice Depart- who are charged with the responsibili- ment, is assisted by five deputies and ty of handling the legal affairs of the about 20 assistant solicitors general. state. At the federal level the Depart- The solicitor general’s primary func- ment of Justice has similar responsi- tion is to decide, on behalf of the bilities on behalf of the United States. United States, which cases will and will not be presented to the Supreme The U.S. Department of Justice. Al- Court for review. Whenever an execu- though the Justice Department is an tive branch department or agency agency of the executive branch of the loses a case in one of the courts of ap- government, it has a natural associa- peals and wishes a Supreme Court re- tion with the judicial branch. Many of view, that department or agency will the cases heard in the federal courts request that the Justice Department involve the national government in seek certiorari. The solicitor general one capacity or another. Sometimes will determine whether to appeal the the government is sued; in other in- lower court decision. stances the government initiates the Many factors must be taken into lawsuit. In either case, an attorney account when making such a decision. must represent the government. Most Perhaps the most important consider- of the litigation involving the federal ation is that the Supreme Court is government is handled by the Justice limited in the number of cases it can Department, although a number of hear in a given term. Thus, the solic- other government agencies have attor- itor general must determine whether a neys on their payrolls. particular case deserves extensive con- The Justice Department’s Office of sideration by the Court. In addition to the Solicitor General is extremely im- deciding whether to seek Supreme portant in cases argued before the Court review, the solicitor general per- Supreme Court. The department also sonally argues most of the govern- has several legal divisions, each with a ment’s cases heard by the High Court. staff of specialized lawyers and headed by an assistant attorney general. The State Attorneys General. Each state legal divisions supervise the handling has an attorney general who serves as of litigation by the U.S. attorneys, take its chief legal official. In most states CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 81

this official is elected on a partisan nor the defendant is constitutionally statewide ballot. The attorney general entitled to the services of an attorney. oversees a staff of attorneys who pri- However, in the civil arena the legal marily handle the civil cases involving issues are often so complex as to de- the state. Although the prosecution mand the services of an attorney. Var- of criminal defendants is generally ious forms of legal assistance are usu- handled by the local district attorneys, ally available to those who need help. the attorney general’s office often plays an important role in investigating Assigned Defense Counsel. When a statewide criminal activities. Thus, the private lawyer must be appointed to attorney general and his or her staff represent an indigent defendant, the may work closely with the local dis- assignment usually is made by an indi- trict attorney in preparing a case vidual judge on an ad hoc basis. Local against a particular defendant. bar associations or lawyers themselves The state attorneys general also often provide the courts with a list of issue advisory opinions to state and attorneys who are willing to provide local agencies. Often, these opinions such services. interpret an aspect of state law not yet ruled on by the courts. Although an Private Defense Counsel. Some at- advisory opinion might eventually be torneys in private practice specialize in overruled in a case brought before the criminal defense work. Although the courts, the attorney general’s opinion lives of criminal defense attorneys may is important in determining the be- be depicted as glamorous on television havior of state and local agencies. and in movies, the average real-life criminal defense lawyer works long Private Lawyers in the Judicial hours for low pay and low prestige. Process In criminal cases in the United States The Courtroom Workgroup the defendant has a constitutional Rather than functioning as an occa- right to be represented by an attorney. sional gathering of strangers who re- Some jurisdictions have established solve a particular conflict and then go public defender’s offices to represent their separate ways, lawyers and judges indigent defendants. In other areas, who work in a criminal court room some method exists of assigning a become part of a workgroup. private attorney to represent a defen- The most visible members of the dant who cannot afford to hire one. courtroom workgroup — judges, Those defendants who can afford to prosecutors, and defense attorneys — hire their own lawyers will do so. are associated with specific functions: In civil cases neither the plaintiff Prosecutors push for convictions of 82 OUTLINE OF THE U.S. LEGAL SYSTEM

those accused of criminal offenses without any reasonable guarantee of a against the government, defense attor- desirable outcome. neys seek acquittals for their clients, To attain these goals, workgroup and judges serve as neutral arbiters to members employ several techniques. guarantee a fair trial. Despite their dif- Although unilateral decisions and ferent roles, members of the court- adversarial proceedings occur, negoti- room workgroup share certain values ation is the most commonly used and goals and are not the fierce adver- technique in criminal courtrooms. saries that many people imagine. Co- The members negotiate over a variety operation among judges, prosecutors, of issues — continuances (delays in and defense attorneys is the norm. the court proceedings), hearing dates, The most important goal of the and exchange of information, for ex- courtroom workgroup is to handle ample. Plea bargaining, however, is the cases expeditiously. Judges and prose- most critical tool of negotiation. cutors are interested in disposing of cases quickly to present a picture Legal Services for the Poor of accomplishment and efficiency. Although criminal defendants are Because private defense attorneys constitutionally entitled to be repre- need to handle a large volume of sented by a lawyer, those who are de- cases to survive financially, resolving fendants in a civil case or who wish to cases quickly works to their advantage. initiate a civil case do not have the And public defenders seek quick right to representation. Therefore, dispositions simply because they those who do not have the funds to lack adequate resources to handle hire a lawyer may find it difficult to their caseloads. obtain justice. A second important goal of the To deal with this problem, legal aid courtroom workgroup is to maintain services are now found in many areas. group cohesion. Conflict among the Legal aid societies were established in members makes work more difficult New York and Chicago as early as the and interferes with the expeditious late 1880s, and many other major handling of cases. cities followed suit in the 20th century. Finally, the courtroom workgroup Although some legal aid societies are is interested in reducing or controlling sponsored by bar associations, most uncertainty. In practice this means are supported by private contribu- that all members of the workgroup tions. Legal aid bureaus also are asso- strive to avoid trials. Trials, especially ciated with charitable organizations in jury trials, produce a great deal of un- some areas, and many law schools op- certainty given that they require sub- erate legal aid clinics to provide both stantial investments of time and effort legal assistance for the poor and valu- CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 83

able training for law students. In addi- contests, may either be policy oriented tion, many lawyers provide legal serv- or compensatory.” ices “pro bono publico” (Latin for “for A classic example of private, or the public good”) because they see it ordinary, compensation-oriented liti- as a professional obligation. gation is when a person injured in an automobile accident sues the driver of LITIGANTS the other car in an effort to win mon- n some cases taken before the etary damages as compensation for courts, the litigants are individu- medical expenses incurred. This type Ials, whereas in other cases one or of litigation is personal and is not more of the litigants may be a govern- aimed at changing governmental or ment agency, a corporation, a union, business policies. an interest group, or a university. Some private law cases, however, What motivates a person or group are policy oriented or political in na- to take a grievance to court? In crimi- ture. Personal injury suits and product nal cases the answer to this question is liability suits may appear on the sur- relatively simple. A state or federal face to be simply compensatory in na- criminal statute has allegedly been vi- ture but may also be used to change olated, and the government prosecutes the manufacturing or business prac- the party charged with violating the tices of the private firms being sued. statute. In civil cases the answer is not A case litigated in North Carolina quite so easy. Although some persons provides a good example. The case readily take their grievances to court, began in 1993 after a five-year-old girl many others avoid this route because got stuck on the drain of a wading of the time and expense involved. pool after another child had removed Political scientist Phillip Cooper the drain cover. Such a powerful suc- points out that judges are called upon tion was created that, before she could to resolve two kinds of disputes: be rescued, the drain had sucked out private law cases and public law most of her large and small intestines. controversies. Private law disputes are As a result, the girl will have to spend those in which one private citizen or about 11 hours per day attached to in- organization sues another. In public travenous feeding tubes for the rest of law controversies, a citizen or organi- her life. In 1997 a jury awarded the zation contends that a government girl’s family $25 million in compensa- agency or official has violated a right tory damages and, before the jury was established by a constitution or to have considered punitive damages, statute. In Hard Judicial Choices, the drain manufacturer and two other Cooper writes that “legal actions, defendants settled the case for $30.9 whether public law or private law million. The plaintiff’s attorney said 84 OUTLINE OF THE U.S. LEGAL SYSTEM

that the lawsuit revealed similar inci- Court. Ordinary compensatory litiga- dents in other areas of the country and tion is often terminated early in the presented a stark example of some- judicial process because the litigants thing industry insiders knew but find it more profitable to settle their others did not. Not only did the fami- dispute or accept the verdict of a ly win its lawsuit, but the North Car- trial court. However, litigants in polit- olina legislature also passed a law re- ical cases generally do little to advance quiring multiple drains to prevent their policy goals by gaining victories such injuries in the future. at the lower levels of the judiciary. Most political or policy-oriented Instead, they prefer the more wide- lawsuits, however, are public law con- spread publicity that is attached to a troversies. That is, they are suits decision by an appellate tribunal. brought against the government pri- Pursuing cases in the appellate courts marily to stop allegedly illegal policies is expensive. Therefore, many lawsuits or practices. They may also seek dam- that reach this level are supported in ages or some other specific form of re- one way or another by interest groups. lief. A case decided by the U.S. Supreme Court, Lucas v. South Caroli- INTEREST GROUPS IN THE na Coastal Council, provides a good ex- JUDICIAL PROCESS ample. South Carolina’s Beachfront lthough interest groups are Management Act forbade David H. probably better known for Lucas from building single-family Atheir attempts to influence houses on two beachfront lots he legislative and executive branch owned. A South Carolina trial court decisions, they also pursue their ruled that Lucas was entitled to be policy goals in the courts. Some compensated for his loss. The South groups have found the judicial branch Carolina Supreme Court reversed the to be more receptive to their efforts trial court decision, however, and than either of the other two branches Lucas appealed to the U.S. Supreme of government. Interest groups that Court. The High Court ruled in do not have the economic resources Lucas’s favor, saying that if a property to mount an intensive lobbying effort owner is denied all economically viable in Congress or a state legislature may use of his or her property, a taking has find it much easier to hire a lawyer and occurred and the Constitution requires find some constitutional or statutory that he or she get compensation. provision upon which to base a court Political or policy-oriented litiga- case. Likewise, a small group with few tion is more prevalent in the appellate registered voters among its members courts than in the trial courts and is may lack the political clout to exert most common in the U.S. Supreme much influence on legislators and ex- CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 85

One of the most famous cases involving special interests was the 1925 “monkey trial,” where the American Civil Liberties Union (ACLU) sent Clarence Darrow, left, to defend biology teacher John T. Scopes in his test of Tennessee’s law banning the teaching of the theory of evolution. William Jennings Bryan, right, testified for the prosecution as a Bible expert.

During the 1950s and 1960s, interest group lawyers such as Thurgood Marshall, then chief counsel of the National Association for the Advancement of Colored People (NAACP), successfully persuaded the courts to support African Americans’ struggle for their civil rights. Marshall here is shown with one of his clients, Autherine Lucy, expelled within days of becoming the first African American student to attend the University of Alabama, allegedly “for her own safety” in response to threats. 86 OUTLINE OF THE U.S. LEGAL SYSTEM

ecutive branch officials. Large mem- Test Cases berships and political clout are not Because the judiciary engages in poli- prerequisites for filing suits in the cy making only by rendering decisions courts, however. in specific cases, one tactic of interest Interest groups may also turn to groups is to make sure that a case the courts because they find the judi- appropriate for obtaining its policy cial branch more sympathetic to their goals is brought before the court. policy goals than the other two In some instances this means that the branches. Throughout the 1960s in- interest group will initiate and spon- terest groups with liberal policy goals sor the case by providing all the fared especially well in the federal necessary resources. The best-known courts. In addition, the public interest example of this type of sponsorship law firm concept gained prominence is Brown v. Board of Education (1954). during this period. The public interest In that case, although the suit against law firms pursue cases that serve the the Board of Education of Topeka, public interest in general — including Kansas, was filed by the parents cases in the areas of consumer rights, of Linda Brown, the National Associa- employment discrimination, occupa- tion for the Advancement of Colored tional safety, civil liberties, and envi- People (NAACP) supplied the legal ronmental concerns. help and money necessary to pursue In the 1970s and 1980s conserva- the case all the way to the Supreme tive interest groups turned to the fed- Court. Thurgood Marshall, who later eral courts more frequently than they became a U.S. Supreme Court justice, had before. This was in part a reaction argued the suit on behalf of the plain- to the successes of liberal interest tiff and the NAACP. As a result, the groups. It was also due to the increas- NAACP gained a victory through the ingly favorable forum that the federal Supreme Court’s decision that segre- courts provided for conservative gation in the public schools violates viewpoints. the equal protection clause of the Interest group involvement in the Fourteenth Amendment. judicial process may take several Interest groups may also provide different forms depending upon assistance in a case initiated by some- the goals of the particular group. one else, but which nonetheless raises However, two principal tactics stand issues of importance to the group. A out: involvement in test cases good example of this situation may be and presentation of information found in a freedom of religion case, before the courts through “amicus Wisconsin v. Yoder. That case was initi- curiae” (Latin, meaning “friend of the ated by the state of Wisconsin when it court”) briefs. filed criminal complaints charging CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 87

Linda Brown, left, and her younger sister with their parents, who filed the landmark suit Brown v. Board of Education (1954) that led to the Supreme Court’s decision that segregation in the public schools violates the equal protection clause of the Fourteenth Amendment.

Abe Yoder, the Amish youth whose father, along with others of his faith, were charged by the state of Wisconsin with failure to send their children to school until the age of 16, as required by state law. In this freedom of religion case, interest groups came to the defense of the parents. 88 OUTLINE OF THE U.S. LEGAL SYSTEM

Jonas Yoder and others with failure to for the appellate courts, these attor- send their children to school until the neys may simply be required to deal age of 16 as required by state law. with the legal problems of their Yoder and the others, members of the groups’ clientele. Amish faith, believed that education During the civil rights movement beyond the eighth grade led to the in the 1950s and 1960s, for example, breakdown of the values they cher- public interest lawyers not only litigated ished and to “worldly influences on major civil rights questions; they also their children.” defended African Americans and civil An organization known as the Na- rights workers who ran into difficul- tional Committee for Amish Religious ties with the local authorities. These Freedom (NCARF) came to the de- interest group attorneys, then, per- fense of Yoder and the others. Follow- formed many of the functions of a ing a decision against the Amish in the specialized legal aid society: They pro- trial court, the NCARF appealed to a vided legal representation to those in- Wisconsin circuit court, which upheld volved in an important movement for the trial court’s decision. An appeal social change. Furthermore, they per- was made to the Wisconsin Supreme formed the important function of Court, which ruled in favor of the drawing attention to the plight of Amish, saying that the compulsory African Americans by keeping cases school attendance law violated the free before the courts. exercise of religion clause of the First Amendment. Wisconsin then ap- Amicus Curiae Briefs pealed to the U.S. Supreme Court, Submission of amicus curiae briefs is which on May 15, 1972, sustained the the easiest method by which interest religious objection that the NCARF groups can become involved in cases. had raised to the compulsory school This method allows a group to get its attendance laws. message before the court even though As these examples illustrate, inter- it does not control the case. Provided est group involvement in litigation has it has the permission of the parties to focused on cases concerning major the case or the permission of the constitutional issues that have reached court, an interest group may submit the Supreme Court. Because only a an amicus brief to supplement the ar- small percentage of cases ever reaches guments of the parties. The filing of the nation’s highest court, however, amicus briefs is a tactic used in appel- most of the work of interest group late rather than trial courts, at both lawyers deals with more routine work the federal and the state levels. at the lower levels of the judiciary. Sometimes these briefs are aimed Instead of fashioning major test cases at strengthening the position of one of CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 89

the parties in the case. When the solved. Amicus curiae briefs are often Wisconsin v. Yoder case was argued filed in an attempt to persuade an ap- before the U.S. Supreme Court, the pellate court to either grant or deny cause of the Amish was supported by review of a lower-court decision. A amicus curiae briefs filed by the study of the U.S. Supreme Court General Conference of Seventh Day found that the presence of amicus Adventists, the National Council of briefs significantly increased the Churches of Christ in the United chances that the Court would give full States, the Synagogue Council of treatment to a case. America, the American Jewish Con- Unlike private interest groups, gress, the National Jewish Commis- all levels of the government can sub- sion on Law and Public Affairs, and mit amicus briefs without obtaining the Mennonite Central Committee. permission. The solicitor general of Sometimes friend-of-the-court the United States is especially impor- briefs are used not to strengthen the tant in this regard, and in some arguments of one of the parties but to instances the Supreme Court may suggest to the court the group’s own invite the solicitor general to present view of how the case should be re- an amicus brief.

CHAPTER5 THE CRIMINAL COURT PROCESS

A jury forewoman reads the verdict in court. The Sixth Amendment of the Constitution guarantees Americans the right to an impartial jury. 92 OUTLINE OF THE U.S. LEGAL SYSTEM

The criminal process begins when a few consist of sins of omission, such as law is first broken and extends failing to stop and render aid after a through the arrest, indictment, trial, traffic accident or failing to file an in- and appeal. There is no single crimi- come tax return. The state considers nal, or civil, court process in the some crimes serious, such as murder United States. Instead, the federal and treason, and this seriousness is re- system has a court process at the flected in the corresponding punish- national level, and each state and terri- ments, such as life imprisonment or tory has its own set of rules and regu- the death penalty. The state considers lations that affect the judicial process. others crimes only mildly reprehensi- Norms and similarities do exist among ble, such as double parking or disturb- all of these governmental entities, ing the peace, and consequently and the discussion will focus primarily punishments of a light fine or a night on these, but no two states have iden- in the local jail are akin to an official tical judicial systems and no state’s sys- slap on the wrist. tem is identical to that of the national Some crimes, such as kidnapping government. or rape, constitute actions that virtually all citizens consider outside the THE NATURE AND sphere of acceptable human conduct, SUBSTANCE OF CRIME whereas other crimes constitute ac- n act is not automatically a tions about which opinion would be crime because it is hurtful or divided. For example, an 1897 Michi- Asinful. An action constitutes a gan statute makes it illegal to curse in true crime only if it specifically vio- front of a child, and a Nebraska law lates a criminal statute duly enacted by forbids bingo games at church sup- Congress, a state legislature, or some pers. Other criminal statutes are plain- other public authority. A crime, then, ly silly: In Wisconsin it is illegal to sing is an offense against the state punish- in a bar, and in Louisiana it is forbid- able by fine, imprisonment, or death. den to appear drunk at a meeting of a A crime is a violation of obligations literary society. due the community as a whole and The most serious crimes in the can be punished only by the state. The United States are felonies. In a majori- sanctions of imprisonment and death ty of the states a felony is any offense cannot be imposed by a civil court or for which the penalty may be death (in in a civil action (although a fine may states that allow it) or imprisonment be a civil or a criminal penalty). in the penitentiary (a federal or state In the United States most crimes prison); all other offenses are misde- constitute sins of commission, such as meanors or infractions. In other states, aggravated assault or embezzlement; a and under federal law, a felony is an CHAPTER 5: THE CRIMINAL COURT PROCESS 93

offense for which the penalty may be often go hand in glove. For example, death or imprisonment for a year or the thief who breaks into a house and more. Thus, felonies are distinguished inadvertently confronts a resistant in some states according to the place owner may harm the owner and thus where the punishment occurs; in some be involved in more than just the states and according to the federal property crime of burglary. government, the length of the sentence The less numerous, but more is the key factor. Examples of felonies feared, conventional crimes are those include murder, forcible rape, and against the person. These crimes of armed robbery. violence include murder and nonneg- Misdemeanors are regarded as petty ligent manslaughter, forcible rape, crimes by the state, and their punish- robbery, and aggravated assault. ment usually consists of confinement in a city or county jail for less than a Economic Crimes year. Public drunkenness, small-time There are four broad categories of eco- gambling, and vagrancy are common nomic crimes: examples of misdemeanor offenses. • Personal crimes consist of nonviolent Some states have a third category of criminal activity that one person offense known as infractions. Often inflicts on another with the hope of they include minor traffic offenses, monetary gain. Examples include such as parking violations, and the intentionally writing a bad check, penalty is usually a small fine. Fines cheating on one’s income tax, and may also be part of the penalty for committing welfare fraud. misdemeanors and felonies. • Abuse of trust occurs when business or government employees violate CATEGORIES OF CRIME their fidelity to their employer or ive broad categories that com- clients and engage in practices such prise the primary criminal of- as commercial bribery, theft and Ffenses in the United States today embezzlement from the workplace, are conventional, economic, syndicat- and filling out false expense accounts. ed, political, and consensual. • Business crimes are crimes that are not part of the central purpose of the Conventional Crimes business enterprise but are incidental Property crimes make up the lion’s to (or in furtherance of) it. Mis- share of the 31.3 million conventional leading advertising, violations of the crimes committed annually in the antitrust laws, and false depreciation United States. Property crimes are dis- figures computed for corporate tinguished by the government from income tax purposes are all crimes of violence, although the two business crimes. 94 OUTLINE OF THE U.S. LEGAL SYSTEM

• Con games are white-collar criminal Consensual Crimes activities committed under the guise So-called victimless crime, such as of a business. prostitution, gambling, illegal drug use, and unlawful sexual practices be- Syndicated, or Organized, Crimes tween consenting adults, is called con- Syndicated crime is engaged in by sensual because both perpetrator and groups of people and is often directed client desire the forbidden activity. on some type of hierarchical basis. It represents an ongoing activity that is ELEMENTS OF A CRIME inexorably entwined with fear and very crime has several distinct corruption. Organized crime tends to elements, and unless the state is focus on areas that are particularly Eable to demonstrate in court the lucrative, such as trafficking in illegal existence of these essential elements drugs, gambling, prostitution, and there can be no conviction. Although loan-sharking (money-lending at ex- the judicial process in the courtroom orbitant interest rates and high repay- may not focus separately and distinct- ment rates). ly on each of these elements, they are at least implicit throughout the entire Political Crimes Political crime usually constitutes an offense against the government: treason, armed rebellion, assassination of public officials, and sedition. However, the term has come to include crimes committed by the government against individual citizens, dissident groups, and foreign governments or na- tionals — for example, illegal wiretaps conducted by the government of politi- Syndicated crime is one of five broad categories that cally dissident groups or comprise the primary criminal offenses in the United the refusal of the military States today. At this June 20, 2002, press conference, U.S. Attorney General for the Southern District of New York to investigate incidents of James Comey, left, and Kevin Donovan, right, assistant sexual harassment. director of the New York FBI field office, announce the indictment of 14 alleged members of the Gambino organized crime family in New York. CHAPTER 5: THE CRIMINAL COURT PROCESS 95

process of duly convicting someone assault and battery), or it may be the of a criminal offense. failure to perform an action that is required (for instance, a person’s A Law Defining the Crime and the refusal to stop and render aid to a Punishment motor vehicle accident victim). If an act is to be prohibited or required by the law, a duly constituted The Mens Rea authority (usually Congress or a state The “mens rea” (a Latin term) is the legislature) must properly spell out essential mental element of the crime. the matter so that the citizenry can The U.S. legal system has always made know in advance what conduct is pro- a distinction between harm that was hibited or required. Lawmakers must caused intentionally and harm that also set forth the penalties to be im- was caused by simple negligence or posed upon the individual who en- accident. Thus, if one person takes gages in the harmful conduct. the life of another, the state does not There are several corollaries to this always call it murder. If the killing general principle. One is that the U.S. was done with malice aforethought by Constitution forbids criminal laws that a sane individual, it will likely be are ex post facto, that is, laws that de- termed “murder in the first degree.” clare certain conduct to be illegal after But if the killing occurred in the the conduct takes place. Likewise, the passion of a barroom brawl, it would state may not pass bills of attainder, more likely be called “second-degree which are laws that single out a partic- murder,” which carries a lesser penal- ular person or group of persons and ty. Reckless driving on the highway declare that something is criminal for that results in the death of another them but legal for everyone else. A final would correspondingly be considered corollary is that a law defining a crime “negligent homicide” — a wrong, to must be precise so that the average be sure, but not as serious in the eyes person can determine in advance what of the state as the intentional killing conduct is prohibited or required. of another.

The Actus Reus An Injury or Result “Actus reus” is the Latin phrase mean- A crime consists of a specific injury or ing the criminal action committed by a wrong perpetrated by one person the accused that gives rise to the legal against another. The crime may harm prosecution. The actus reus is the society at large, such as selling military material element of the crime. This secrets to a foreign government, or the element may be the commission of an injury may be inflicted upon an indi- action that is forbidden (for instance, vidual and, because of its nature, is 96 OUTLINE OF THE U.S. LEGAL SYSTEM

considered to offend society as a A Causal Relationship Between the whole. The nature of the injury, as Action and the Resultant Injury with the mens rea, often determines Before there can be a conviction for a the nature of the crime itself. For criminal offense, the state must prove example, consider two drivers who that the accused, acting in a natural have been cutting each other off in and continuous sequence, produced traffic. Finally they both stop their the harmful situation. Usually proving cars and come out fighting. Suppose a causal relationship is not difficult. If one of them hits the other so hard he “Bill” stabs “John” with a knife and in- dies. The crime may be murder (of flicts a minor wound, there is no some degree). If the man does not die doubt that Bill is guilty of assault with but suffers serious bodily harm, the a deadly weapon. But what if John crime is aggravated assault. If the does not obtain proper medical care injury is minor, the charge may be for the wound, develops an infection, simple assault. Because the nature of and subsequently dies? Is Bill now the injury often determines the of- guilty of manslaughter or murder? Or fense, it is frequently asserted that the what if after being stabbed, John nature of the injury is the key legal stumbles across a third party and element of the crime. causes injury to her? Is Bill to blame Some actions may be criminal even for this, too? though no injury is actually inflicted. Resolution of questions such as Most crimes of criminal conspiracy these are often difficult for judges and fall into this category. For instance, if juries. The law requires that all cir- several persons were to plan to assassi- cumstances be taken into account. nate a judge or to bribe jurors in an at- The accused can be convicted only if tempt to keep a criminal from being the state can prove that his or her con- convicted, the crime would be conduct is the direct, immediate, or deter- spiracy to obstruct justice. This would mining cause of the resultant harm to be a crime even if the judge went un- the victim. harmed and no money was ever passed to the jurors. All that is re- PROCEDURES BEFORE A quired is that the crime be planned CRIMINAL TRIAL and intended and that some specific, efore a criminal trial can be overt act be taken by one of the con- held, federal and state laws re- spirators in furtherance of their plan Bquire a series of procedures and (such as the purchase of a weapon or events. Some of these stages are man- possession of a map of the route that dated by the U.S. Constitution and the judge takes between his home and state constitutions, some by court de- the courtroom). cisions, and others by legislative en- CHAPTER 5: THE CRIMINAL COURT PROCESS 97

actments. Custom and tradition often or clear-cut, and police officials pos- account for the rest. Although the exact sess — and exercise — wide discretion nature of these procedural events varies about whether to take someone into from federal to state practice — and custody. Sufficient resources are sim- from one state to another — there are ply not available to the police for them similarities throughout the country. to proceed against all activities that These procedures, however, are not as Congress and the legislatures have for- automatic or routine as they might ap- bidden. Consequently, discretion must pear; rather, the judicial system’s deci- be exercised in determining how to al- sion makers exercise discretion at all locate the time and resources that do stages according to their values, atti- exist. Police discretion is at a maxi- tudes, and views of the world. mum in several areas.

The Arrest Trivial Offenses. Many police manuals The arrest is the first substantial con- advise their officers that when minor tact between the state and the accused. violations of the law are concerned, The U.S. legal system provides for two a warning is a more appropriate basic types of arrest — those with a response than an arrest. Traffic viola- warrant and those without. A warrant tions, misconduct by juveniles, drunk- is issued after a complaint, filed by one enness, gambling, and vagrancy all person against another, has been pre- constitute less serious crimes and en- sented and reviewed by a magistrate tail judgment calls by police. who has found probable cause for the arrest. Arrests without a warrant occur Victim Will Not Seek Prosecution. when a crime is committed in the Nonenforcement of the law is also the presence of a police officer or when an rule in situations where the victim of a officer has probable cause to believe crime will not cooperate with the po- that someone has committed (or is lice in prosecuting a case. In the in- about to commit) a crime. Such a be- stance of minor property crimes, for lief must later be established in a example, the victim is often satisfied if sworn statement or testimony. In the restitution occurs and the victim can- United States up to 95 percent of all not afford the time to testify in court. arrests are made without a warrant. Unless the police have expended An officer’s decision whether to considerable resources in investigating make an arrest is far from simple or a particular property crime, they are automatic. To be sure, the officer who generally obliged to abide by the witnesses a murder will make an arrest victim’s wishes. on the spot if possible. But most law- When the victim of a crime is in a breaking incidents are not that simple continuing relationship with the crim- 98 OUTLINE OF THE U.S. LEGAL SYSTEM

inal, the police often decline to make police may detain an individual an arrest. Such relationships include arrested without a warrant for up to landlord and tenant, one neighbor 48 hours without a court hearing on and another, and, until recently, whether the arrest was justified. husband and wife. In this last case, This appearance in court is the oc- however, heightened awareness of do- casion of several important events in mestic violence has had a significant the criminal justice process. First, the impact on police procedures. accused must have been informed of Rape and child molestation consti- the precise charges and must be in- tute another major category of crimes formed of all constitutional rights for which there are often no arrests and guarantees. Among others, these because the victims will not or cannot rights include those of the now fa- cooperate with the police. Oftentimes mous Miranda v. Arizona decision the victim is personally acquainted handed down in 1966 by the Supreme with, or related to, the criminal, and Court. The accused “must be warned the fear of reprisals or of ugly publicity prior to any questioning that he has inhibits the victim from pressing the right to remain silent, that any- a complaint. thing he says can be used against him in a court of law, that he has the right Victim Also Involved in Misconduct. to the presence of an attorney, and When police officers perceive that the that if he cannot afford an attorney victim of a crime is also involved in one will be appointed for him prior to some type of improper or question- any questioning.” (Such warnings able conduct, the officers frequently must also be given by the arresting of- opt not to make an arrest. ficer if the officer questions the suspect about the crime.) In some states Appearance Before a Magistrate the accused must be informed about After a suspect is arrested for a crime, other rights that are provided for in he or she is booked at the police the state’s Bill of Rights, such as the station; that is, the facts surrounding right to a speedy trial and the right to the arrest are recorded and the confront hostile witnesses. accused may be fingerprinted and Second, the magistrate will deter- photographed. Next the accused mine whether the accused is to be re- appears before a lower-level judicial leased on bail and, if so, what the official whose title may be judge, amount of bail is to be. Constitution- magistrate, or commissioner. Such an ally, the only requirement for the appearance is supposed to occur amount is that it shall not be “exces- “without unnecessary delay”; in 1991 sive.” Bail is considered to be a privi- the U.S. Supreme Court ruled that lege — not a right — and it may be CHAPTER 5: THE CRIMINAL COURT PROCESS 99

denied altogether in capital punish- the prosecution and a subsequent stage ment cases for which the evidence of of the criminal justice process begins. guilt is strong or if the magistrate believes that the accused will flee from The Grand Jury Process or the prosecution no matter what the Preliminary Hearing amount of bail. An alternative to bail At the federal level all persons accused is to release the defendant on recogni- of a crime are guaranteed by the Fifth zance, basically on a pledge by the Amendment to have their cases con- defendant to return to court on the sidered by a grand jury. However, the appointed date for trial. Supreme Court has refused to make In minor cases the accused may be this right binding on the states. Today asked to plead guilty or not guilty. If only about half of the states use grand the plea is guilty, a sentence may be juries; in some of these, they are pronounced on the spot. If the defen- used for only special types of cases. dant pleads not guilty, a trial date is Those states that do not use grand scheduled. However, in the typical seri- juries employ a preliminary hearing ous (felony) case, the next primary or an examining trial. (A few states use duty of the magistrate is to determine both procedures.) Regardless of which whether the defendant requires a pre- method is used, the primary purpose liminary hearing. If such a hearing is of this stage in the criminal justice appropriate, the matter is adjourned by process is to determine whether there

Since 1966, police have had to advise suspects about their rights prior to any interrogation. They use the so-called “Miranda Warning,” named after Ernesto Miranda, who was granted a retrial because he was not advised about his rights. 100 OUTLINE OF THE U.S. LEGAL SYSTEM

is probable cause for the accused to hearing is used to determine whether be subjected to a formal trial. there is probable cause for the accused to be bound over for trial. At this The Grand Jury. Grand juries consist hearing the prosecution presents its of 16 to 23 citizens, usually selected at case, and the accused has the right to random from the voter registration cross-examine witnesses and to pro- lists, who render decisions by a ma- duce favorable evidence. Usually the jority vote. Their terms may last any- defense elects not to fight at this stage where from one month to one year, of the criminal process; in fact, a pre- and some may hear more than a thou- liminary hearing is waived by the de- sand cases during their term. The fense in the vast majority of cases. prosecutor alone presents evidence to If the examining judge determines the grand jury. Not only are the ac- that there is probable cause for a trial cused and his or her attorney absent or if the preliminary hearing is waived, from the proceedings, but usually they the prosecutor must file a bill of also have no idea which grand jury is information with the court where the hearing the case or when. If a majority trial will be held. This serves to outline believes probable cause exists, then an precisely the charges that will be adju- indictment, or true bill, is brought. dicated in the new legal setting. Otherwise the result is a no bill. Historically two arguments have The Arraignment been made in favor of grand juries. Arraignment is the process in which One is that grand juries serve as a check the defendant is brought before the on a prosecutor who might be using judge in the court where he or she is the office to harass an innocent person to be tried to respond to the grand for political or personal reasons. Ideal- jury indictment or the prosecutor’s ly an unbiased group of citizens would bill of information. The prosecutor or interpose themselves between an un- a clerk usually reads in open court ethical prosecutor and the defendant. the charges that have been brought A second justification for grand juries against the accused. The defendant is is to make sure that the district attor- informed that he or she has a consti- ney has secured enough evidence to tutional right to be represented by an warrant the trouble and expense — for attorney and that a lawyer will be ap- both the state and the accused — of a pointed without charge if necessary. full-fledged trial. The defendant has several options about how to plead to the charges. The The Preliminary Hearing. In the most common pleas are guilty and not majority of states that have abolished guilty. But the accused may also plead the grand jury system, a preliminary not guilty by reason of insanity, for- CHAPTER 5: THE CRIMINAL COURT PROCESS 101

mer jeopardy (having been tried on the never go to trial. That is because be- same charge at another time), or “nolo fore the trial date a bargain has been contendere” (from the Latin, no con- struck between the prosecutor and the test). Nolo contendere means that the defendant’s attorney concerning the accused does not deny the facts of the official charges to be brought and the case but claims that he or she has not nature of the sentence that the state committed any crime, or it may mean will recommend to the court. In effect, that the defendant does not under- some form of leniency is promised in stand the charges. The nolo contendere exchange for a guilty plea. plea can be entered only with the con- Because plea bargaining virtually sent of the judge (and sometimes the seals the fate of the defendant before prosecutor as well). Such a plea has trial, the role of the judge is simply to two advantages. It may help the ac- ensure that the proper legal and con- cused save face vis-à-vis the public be- stitutional procedures have been fol- cause he or she can later claim that lowed. There are three (not mutually technically no guilty verdict was exclusive) types of plea bargains. reached even though a sentence or a fine may have been imposed. Also, the Reduction of Charges. The most plea may spare the defendant from common form of agreement between certain civil penalties that might fol- a prosecutor and a defendant is a low a guilty plea (for example, a civil reduction of the charge to one less se- suit that might follow from conviction rious than that supported by the evi- for fraud or embezzlement). dence. This exposes the criminal to a If the accused pleads not guilty, the substantially reduced range of sen- judge will schedule a date for a trial. If tence possibilities. A second reason for the plea is guilty, the defendant may be a defendant to plead guilty to a re- sentenced on the spot or at a later date duced charge is to avoid a record of set by the judge. Before the court will conviction for an offense that carries a accept a guilty plea, the judge must social stigma. Another possibility is certify that the plea was made volun- that the defendant may wish to avoid a tarily and that the defendant was felony record altogether and would be aware of the implications of the plea. willing to plead guilty to almost any A guilty plea is to all intents and misdemeanor offered by the prosecu- purposes the equivalent to a formal tor rather than face a felony charge. verdict of guilty. Deletion of Tangent Charges. A sec- The Possibility of a Plea Bargain ond form of plea bargain is the agree- At both the state and federal levels at ment of the district attorney to drop least 90 percent of all criminal cases other charges pending against an indi- 102 OUTLINE OF THE U.S. LEGAL SYSTEM

vidual. There are two variations on presiding judge the discretion of al- this theme. One is an agreement not to lowing all of the defendant’s sentences prosecute “vertically” — that is, not to to run concurrently. prosecute more serious charges filed against the individual. The second Sentence Bargaining. A third form type of agreement is to dismiss “hori- of plea bargaining concerns a plea of zontal” charges; that is to dismiss ad- guilty from the defendant in exchange ditional indictments for the same for a prosecutor’s agreement to ask the crime pending against the accused. judge for a lighter sentence. The Another variation of this type of strength of the sentence negotiation is plea bargaining is the agreement in based upon the realities of the limited which a repeater clause is dropped resources of the judicial system. At the from an indictment. At the federal state level, at least, prosecutors are able level and in many states, a person is to promise the defendant a fairly spe- considered a habitual criminal upon cific sentence with confidence that the the third conviction for a violent judge will accept the recommenda- felony anywhere in the United States. tion. If the judge were not to do so, the The mandatory sentence for the habit- prosecutor’s credibility would quickly ual criminal is life imprisonment. In begin to wane, and many of the defen- state courts the habitual criminal dants who had been pleading guilty charge often is dropped in exchange would begin to plead not guilty and for a plea of guilty. take their chances in court. The result Another plea bargain of this type is would be a gigantic increase in court the agreement in which indictments in dockets that would overwhelm the different courts are consolidated into judicial system and bring it to a stand- one court in order that the sentences still. Prosecutors and judges under- may run concurrently. As indictments stand this reality, and so do the or preliminary hearing rulings are defense attorneys. handed down in many jurisdictions, they are placed on a trial docket on a Constitutional and Statutory Re- rotation system. This means that a de- strictions on Plea Bargaining. At fendant charged with four counts of both the state and federal levels, the forgery and one charge of possession requirements of due process of law of a forged instrument might be mean that plea bargains must be made placed on the docket of five different voluntarily and with comprehension. courts. Generally it is common prac- This means that the defendant must tice in such multicourt districts to be admonished by the court of the transfer all of a person’s indictments consequences of a guilty plea (for ex- to the first court listed. This gives the ample, the defendant waives all oppor- CHAPTER 5: THE CRIMINAL COURT PROCESS 103

tunities to change his or her mind at a on the case, and because of personal later date), that the accused must be interests or social pressures, the ac- sane, and that, as one state puts it, “It cused may wish to avoid the length must plainly appear that the defen- and publicity of a formal trial. Finally, dant is uninfluenced by any consider- some penologists (professionals in the ation of fear or by any persuasion, or field of punishment and rehabilita- delusive hope of pardon prompting tion) argue that the first step toward him to confess his guilt.” rehabilitation is for a criminal to For the first two types of plea bar- admit guilt and to recognize his or gains — reduction of charges and her problem. deletion of tangent charges — some Plea bargaining also offers some stricter standards govern the federal distinct advantages for the state and courts. One is that the judge may not for society as a whole. The most actually participate in the process of obvious is the certainty of conviction, plea bargaining; at the state level because no matter how strong the judges may play an active role in this evidence may appear, an acquittal is process. Likewise, if a plea bargain has always a possibility as long as a trial is been made between the U.S. attorney pending. Also, the district attorney’s and the defendant, the government office and judges are saved an may not renege on the agreement. If enormous amount of time and effort the federal government does so, the by their not having to prepare federal district judge must withdraw and preside over cases in which there the guilty plea. Finally, the Federal is no real contention of innocence Rules of Criminal Procedure require or that are not suited to the trial that before a guilty plea may be ac- process. Finally, when police officers cepted, the prosecution must present are not required to be in court testify- a summary of the evidence against ing in criminal trials, they have more the accused, and the judge must agree time to devote to preventing and that there is strong evidence of the solving crimes. defendant’s guilt. Plea bargains do have a negative side as well. The most frequent objec- Arguments For and Against Plea tion to plea bargaining is that the de- Bargaining. For the defendant the fendant’s sentence may be based upon obvious advantage of the bargain is nonpenological grounds. With the that he or she is treated less harshly large volume of cases making plea bar- than would be the case if the accused gaining the rule, the sentence often were convicted and sentenced under bears no relation to the specific facts maximum conditions. Also, the ab- of the case, to the correctional needs of sence of a trial often lessens publicity the criminal, or to society’s legitimate 104 OUTLINE OF THE U.S. LEGAL SYSTEM

interest in vigorous prosecution of the clause. The defense may be at a disad- case. A second defect is that if plea vantage because the rules of discovery bargaining becomes the norm of a (the laws that allow the defense to particular system, then undue pres- know in detail the evidence the prose- sure may be placed upon even inno- cution will present) in some states cent persons to plead guilty. Studies limit the defense counsel’s case prepa- have shown that, in some jurisdic- ration to the period after the plea tions, the less the chance for convic- bargain has occurred. Thus the plea tion, the harder the bargaining may be bargain may deprive the accused of because the prosecutor wants to get at basic constitutional rights. least some form of minimal confession out of the accused. The Adversarial Process A third disadvantage of plea bar- The adversarial model is based on the gaining is the possibility of the abuse assumption that every case or contro- called overcharging — the process versy has two sides to it: In criminal whereby the prosecutor brings charges cases the government claims a defen- against the accused more severe than dant is guilty while the defendant con- the evidence warrants, with the hope tends innocence; in civil cases the that this will strengthen his or her plaintiff asserts that the person he or hand in subsequent negotiations with she is suing has caused some injury the defense attorney. while the respondent denies responsi- Another flaw with the plea bargain- bility. In the courtroom each party ing system is its very low level of visi- provides his or her side of the story as bility. Bargains between prosecutor he or she sees it. The theory (or hope) and defense attorney are not made in underlying this model is that the truth open court presided over by a neutral will emerge if each party is given un- jurist and for all to observe. Instead, bridled opportunity to present the full they are more likely made over a cup panoply of evidence, facts, and argu- of coffee in a basement courthouse ments before a neutral and attentive cafeteria where the conscience of the judge (and jury). two lawyers is the primary guide. The lawyers representing each side Finally, the system has the potential are the major players in this court- to circumvent key procedural and room drama. The judge acts more as a constitutional rules of evidence. Be- passive, disinterested referee whose cause the prosecutor need not present primary role is to keep both sides any evidence or witnesses in court, a within the accepted rules of legal pro- bluff may result in a conviction even cedure and courtroom decorum. The though the case might not be able to judge eventually determines which pass the muster of the due process side has won in accordance with the CHAPTER 5: THE CRIMINAL COURT PROCESS 105

rules of evidence, but only after both limits, ultimately reaching 100 days, sides have had a full opportunity to within which criminal charges must present their case. either be brought to trial or dismissed. Most states have similar measures on PROCEDURES DURING A the statute books, although the precise CRIMINAL TRIAL time period varies from one jurisdic- ssuming that no plea bargain tion to another. By “public trial” the has been struck and the ac- Founders meant to discourage the no- Acused maintains his or her in- tion of secret proceedings whereby an nocence, a formal trial will take place. accused could be tried without public This is a right guaranteed by the Sixth knowledge and whisked off to some Amendment to all Americans charged unknown detention camp. with federal crimes and a right guaran- The Sixth Amendment also guar- teed by the various state constitutions antees Americans the right to an im- — and by the Fourteenth Amendment partial jury. At the least this has meant — to all persons charged with state that the prospective jurors must not be offenses. The accused is provided prejudiced one way or the other before many constitutional and statutory the trial begins. For example, a poten- rights during the trial. The following tial juror may not be a friend or rela- are the primary rights that are binding tive of the prosecutor or the crime on both the federal and state courts. victim; nor may someone serve who believes that anyone of the defendant’s Basic Rights Guaranteed During race or ethnic ancestry is “probably the the Trial Process criminal type.”What the concept of an The Sixth Amendment says, “In all impartial jury of one’s peers has come criminal prosecutions, the accused to mean in practice is that jurors are to shall enjoy the right to a speedy and be selected randomly from the voter public trial.” The Founders empha- registration lists — supplemented in sized the word speedy so that an ac- an increasing number of jurisdictions cused would not languish in prison for by lists based on automobile registra- a long time prior to the trial or have tions, driver’s licenses, telephone the determination of his or her fate books, welfare rolls, and so on. Al- put off for an unduly long period of though this system does not provide time. But how soon is speedy? Al- a perfect cross-section of the commu- though this word has been defined in nity, because not all persons are regis- various ways by the Supreme Court, tered to vote, the Supreme Court has Congress gave new meaning to the said that this method is good enough. term when it passed the Speedy Trial The High Court has also ruled that Act of 1974. The act mandated time no class of persons (such as African 106 OUTLINE OF THE U.S. LEGAL SYSTEM

Americans or women) may be system- erally chartered bank in New Jersey atically excluded from jury service. runs afoul of both federal and state Besides being guaranteed the right law. That person could be legally tried to be tried in the same locale where the and acquitted for that offense in a New crime was committed and to be in- Jersey court and subsequently be tried formed of the charges, defendants for that same action in federal court. have the right to be confronted with Another important right guaran- the witnesses against them. They have teed to the accused at both the state the right to know who their accusers and federal levels is not to “be com- are and what they are charging so that pelled in any criminal case to be a wit- a proper defense may be formulated. ness against himself.” This has been The accused is also guaranteed the interpreted to mean that the fact that opportunity “to have the Assistance of someone elects not to testify on his or Counsel for his defense.” Prior to the her own behalf in court may not be 1960s this meant that one had this used against the person by judge and right (at the state level) only for jury. This guarantee serves to reinforce serious crimes and only if one could the principle that under the U.S. judi- pay for an attorney. However, because cial system the burden of proof is on of a series of Supreme Court deci- the state; the accused is presumed in- sions, the law of the land guarantees nocent until the government proves one an attorney if tried for any crime otherwise beyond a reasonable doubt. that may result in a prison term, and Finally, the Supreme Court has in- the government must pay for the legal terpreted the guarantee of due process defense for an indigent defendant. of law to mean that evidence procured This is the rule at both the national in an illegal search and seizure may not and state levels. be used against the accused at trial. The Fifth Amendment to the U.S. The source of this so-called exclusion- Constitution declares that no person ary rule is the Fourth Amendment to shall “be subject for the same offence the U.S. Constitution; the Supreme to be twice put in jeopardy of life and Court has made its strictures binding limb.” This is the double jeopardy on the states as well. The Court’s pur- clause and means that no one may be pose was to eliminate any incentive the tried twice for the same crime by any police might have to illegally obtain state government or by the federal evidence against the accused. government. It does not mean, however, that a person may not be tried twice Selection of Jurors for the same action if that action has If the accused elects not to have a violated both national and state laws. bench trial — that is, not to be tried For example, someone who robs a fed- and sentenced by a judge alone — his CHAPTER 5: THE CRIMINAL COURT PROCESS 107

or her fate will be determined by a The second goal that the opposing jury. At the federal level 12 persons attorneys have in questioning pros- must render a unanimous verdict. At pective jurors is to eliminate those the state level such criteria apply only who they believe would be unfavor- to the most serious offenses. In many able to their side even though no overt states a jury may consist of fewer than reason is apparent for the potential 12 persons and render verdicts by bias. Each side is allowed a number of other than unanimous decisions. peremptory challenges — requests to A group of potential jurors is sum- the court to exclude a prospective moned to appear in court. They are juror with no reason given. Most states questioned in open court about their customarily give the defense more general qualifications for jury service peremptory challenges than the prose- in a process known as “voir dire” cution. At the federal level one to three (from Old French, meaning “to say the challenges per jury are usually permit- truth”). The prosecutor and the de- ted each side, depending on the nature fense attorney ask general and specific of the offense; as many as 20 are al- questions of the potential jurors. Are lowed in capital cases. The use of they citizens of the state? Can they peremptory challenges is more of an comprehend the English language? art than a science and is usually based Have they or anyone in their family on the hunch of the attorneys. ever been tried for a criminal offense? In the past attorneys were able to Have they read about or formed any exclude potential jurors via the opinions about the case at hand? peremptory challenge for virtually any In conducting the voir dire, the state reason whatsoever. However, in recent and the defense have two goals. The years the Supreme Court has inter- first is to eliminate all members of the preted the Fourteenth Amendment’s panel who have an obvious reason why equal protection clause to restrict this they might not render an impartial de- discretion by prohibiting prosecutors cision in the case. Common examples from using their challenges to exclude might be someone who is excluded by African Americans or women from law from serving on a jury, a juror who serving on a criminal jury. is a friend or relative of a participant in The process of questioning and the trial, and someone who openly ad- challenging prospective jurors contin- mits a strong bias in the case at hand. ues until all those duly challenged for Objections to jurors in this category are cause are eliminated, the peremptory known as challenges for cause, and the challenges are either used up or number of such challenges is unlimit- waived, and a jury of 12 (six in some ed. It is the judge who determines states) has been created. In some states whether these challenges are valid. alternate jurors are also chosen. They 108 OUTLINE OF THE U.S. LEGAL SYSTEM

attend the trial but participate in de- witnesses. The physical evidence may liberations only if one of the original include things such as bullets, ballistics jurors is unable to continue in the pro- tests, fingerprints, handwriting sam- ceedings. Once the panel has been se- ples, blood and urine tests, and other lected, they are sworn in by the judge documents or items that serve as phys- or the clerk of the court. ical aids. The defense may object to the admission of any of these tangible Opening Statements items and will, if successful, have the After the formal trial begins, both the item excluded from consideration. If prosecution and the defense make an defense challenges are unsuccessful, opening statement (although in no the physical evidence is labeled by one state is the defense compelled to do of the courtroom personnel and be- so). Long and detailed statements are comes part of the official record. more likely to be made in jury trials Most evidence at criminal trials than in bench trials. The purpose of takes the form of testimony of wit- opening statements is to provide nesses. The format is a question-and- members of the jury — who lack answer procedure whose purpose is to familiarity with the law and with elicit very specific information in an procedures of criminal investigation orderly fashion. The goal is to present — with an outline of the major objec- only evidence that is relevant to the tives of each side’s case, the evidence immediate case at hand and not to that is to be presented, the witnesses give confusing or irrelevant informa- that are to be called, and what each tion or illegal evidence that might side seeks to prove. If the opening result in a mistrial (for example, statements are well presented, the ju- evidence that the accused had a prior rors will find it easier to grasp the conviction for an identical offense). meaning and significance of the After each witness the defense at- evidence and testimony. The usual torney has the right to cross-examine. procedure is for the state to make its The goal of the defense will be to im- opening statement first and for the de- peach the testimony of the prosecu- fense to follow with a statement about tion witness — that is, to discredit it. how it will refute that case. The attorney may attempt to confuse, fluster, or anger the witness, causing The Prosecution’s Case him or her to lose self-control and After the opening statements the pros- begin providing confusing or conflict- ecutor presents the evidence amassed ing testimony. A prosecution witness’ by the state against the accused. Evi- testimony may also be impeached if dence is generally of two types — defense witnesses who contradict the physical evidence and the testimony of version of events suggested by the state CHAPTER 5: THE CRIMINAL COURT PROCESS 109

are subsequently presented. Upon cused faces the same risks of cross- completion of the cross-examination, examination as any other witness.) the prosecutor may conduct a redirect After the defense has rested its case, examination, which serves to clarify or the prosecution has the right to correct some telling point made dur- present rebuttal evidence. In turn, the ing the cross-examination. After the defense may offer a rejoinder known state has presented all its evidence and as a surrebuttal. After that, each side witnesses, it rests its case. delivers closing arguments. Often- times this is one of the more dramatic The Case for the Defense episodes in the trial because each side The presentation of the case for the seeks to sum up its case, condense its defense is similar in style and format strongest arguments, and make one to that of the prosecution. Tangible ev- last appeal to the jury. New evidence idence is less common in the defense’s may not be presented at this stage, and case, and most of the evidence will be the arguments of both sides tend to that of witnesses who are prepared to ring with emotion and appeals to val- rebut or contradict the prosecution’s ues that transcend the immediate case. arguments. The witnesses are ques- The prosecutor may talk about the tioned by the defense attorney in the crime problem in general, about the same style as those in the prosecution need for law and order, and about the case. Each defense witness may in turn need not to let compassion for the ac- be cross-examined by the district at- cused get in the way of empathy for torney, and then a redirect examina- the crime victim. The defense attor- tion is in order. ney, on the other hand, may remind The difference between the case for the jurors “how we have all made mis- the prosecution and the case for the takes in this life” or argue that in a free, defense lies in their obligation before democratic society any doubt they the law. The defense is not required by have should be resolved in favor of the law to present any new or additional accused. The prosecution probably evidence or any witnesses at all. The avoids emotionalism more than the defense may consist merely of chal- defense attorney, however, because lenging the credibility or the legality of many jury verdicts have been reversed the state’s evidence and witnesses. The on appeal after the district attorney in- defense is not obligated to prove the jected prejudicial statements into the innocence of the accused; it need show closing statements. only that the state’s case is not beyond a reasonable doubt. The defendant Role of the Judge During the Trial need not even take the stand. (Howev- The judge’s role in the trial, although er, if he or she elects to do so, the ac- very important, is a relatively passive 110 OUTLINE OF THE U.S. LEGAL SYSTEM

Prosecutors and police display a seizure of more than $45 million worth of heroin and cocaine. Illegal drug traffic belongs under either one of two categories of crime: organized crime and consensual crime, also known as victimless crime, because both the perpetrator and the client desire the forbidden activity.

Witnesses and physical evidence form the principal elements of the prosecution’s case in most trials. Left: Tampa Police Department investigators take fingerprint samples in an attempt to trace an accused terrorist. Above: An expert witness points to a chart of the parking lot where an alleged crime took place. CHAPTER 5: THE CRIMINAL COURT PROCESS 111

one. He or she does not present any are about equally strong or on a evidence or take an active part in the point of law that is open to a variety examination of the witnesses. The of interpretations. judge is called upon to rule on the many motions of the prosecutor and Role of the Jury During the Trial of the defense attorney regarding the The jurors’ role during the trial is pas- types of evidence that may be present- sive. Their job is to listen attentively to ed and the kinds of questions that the cases presented by the opposing may be asked of the witnesses. In attorneys and then come to a decision some jurisdictions the judge is per- based solely on the evidence that is set mitted to ask substantive questions of forth. They are ordinarily not permit- the witnesses and also to comment to ted to ask questions either of the wit- the jury about the credibility of the nesses or of the judge, nor are they evidence that is presented; in other allowed to take notes of the proceed- states the judge is constrained from ings. This is not because of constitu- such activity. Still, the American legal tional or statutory prohibitions but tradition has room for a variety of primarily because it has been the tra- judicial styles that depend on the per- ditional practice of courts in America. sonality, training, and wisdom of indi- In recent years, however, many vidual judges. judges have allowed jurors to become First and foremost, the judge is ex- more involved in the judicial arena. pected to play the part of a disinterest- Chicago’s Chief U.S. District Court ed party whose primary job is to see to Judge John F. Grady has for over a it that both sides are allowed to decade permitted jurors in his court- present their cases as fully as possible room to take notes. At least four U.S. within the confines of the law. If appellate courts have given tacit ap- judges depart from the appearance or proval to the practice of juror partici- practice of being fair and neutral par- pation in questioning witnesses, as ties, they run counter to fundamental long as jurors are not permitted to tenets of American jurisprudence and blurt out queries in the midst of trial risk having their decisions overturned and attorneys are given a chance to by an appellate court. object to specific questions before Although judges do for the most they are posed to witnesses. In some part play such a role, the backgrounds states a few trial judges have allowed and values of the jurists also affect jurors to take fairly active roles in the their decisions in the close calls — trial. Still, at both state and federal lev- when they are called upon to rule on els the role of the jury remains basi- a motion for which the arguments cally passive. 112 OUTLINE OF THE U.S. LEGAL SYSTEM

Instructions to the Jury if there are more than one, who must Although the jury’s job is to weigh and sign the official documents that ex- assess the facts of the case, the judge press the verdict of the jury. After must instruct the jurors about the the instructions are read to the jury meaning of the law and how the law is (and the attorneys for each side have to be applied. Because many cases are been given an opportunity to offer overturned on appeal as a result of objections), the jurors retreat into a faulty jury instructions, judges tend to deliberation room to decide the fate take great care that the wording be of the accused. technically and legally correct. All jury instructions must have The Jury’s Decision some basic elements. One is to define The jury deliberates in complete for the jurors the crime with which privacy; no outsiders observe or par- the accused is charged. This may in- ticipate in its debate. During their volve giving the jurors a variety of op- deliberation jurors may request the tions about what kind of verdict to clarification of legal questions from bring. For example, if one person has the judge, and they may look at items taken the life of another, the state may of evidence or selected segments of the be trying the accused for first-degree case transcript, but they may consult murder. Nevertheless, the judge may nothing else — no law dictionaries, no be obliged to acquaint the jury with legal writings, no opinions from ex- the legal definition of second-degree perts. When it has reached a decision murder or manslaughter if it should by a vote of its members, the jury re- determine that the defendant was the turns to the courtroom to announce killer but did not act with malice its verdict. If it has not reached a deci- aforethought. sion by nightfall, the jurors are sent The judge must also remind the home with firm instructions neither jury that the burden of proof is on the to discuss the case with others nor state and that the accused is presumed read about the case in the newspapers. to be innocent. If, after considering In very important or notorious cases, all the evidence, the jury still has a the jury may be sequestered by the reasonable doubt as to the guilt of judge, which means that its members the accused, it must bring in a not will spend the night in a local hotel guilty verdict. away from the public eye. Finally, the judge usually acquaints If the jury becomes deadlocked the jurors with a variety of procedural and cannot reach a verdict, it may re- matters: how to contact the judge if port that fact to the judge. In such an they have questions, the order in event the judge may insist that the which they must consider the charges jury continue its effort to reach a ver- CHAPTER 5: THE CRIMINAL COURT PROCESS 113

Defendants in the photos to the left and above are shown awaiting the jury’s verdict and listening to the judge’s announcement of the verdict. Once the verdict is reached, the judge has several weeks to determine the penalty, based on the principle that the punishment should fit the crime. Bottom left, a prisoner is led back to his cell. 114 OUTLINE OF THE U.S. LEGAL SYSTEM

dict. Or, if the judge is convinced that that is, that each juror be asked indi- the jury is in fact hopelessly dead- vidually if the general verdict actually locked, he or she may dismiss the jury reflects his or her own opinion. The and call for a new trial. purpose is to determine whether each Research studies indicate that most juror supports the overall verdict or juries dealing with criminal cases whether he or she is just caving in to make their decisions fairly quickly. Al- group pressure. If the polling proce- most all juries take a vote soon after dure reveals that the jury is indeed not they retire to their chambers in order of one mind, it may be sent back to the to see how divided, or united, they are. jury room to continue deliberations; In 30 percent of the cases it takes only in some jurisdictions a mistrial may one vote to reach a unanimous deci- be declared. If a mistrial is declared, sion. In 90 percent of the remainder, the case may be tried again before the majority on the first ballot eventu- another jury. There is no double jeop- ally wins out. Hung juries — those in ardy because the original jury did not which no verdict can be reached — agree on a verdict. If the jury’s verdict tend to occur only when a large mi- is not guilty, the defendant is dis- nority existed on the first ballot. charged on the spot and is free to leave Scholars have also learned that ju- the courtroom. ries often reach the same verdict that the judge would have, had he or she PROCEDURES AFTER A been solely responsible for the deci- CRIMINAL TRIAL sion. One large jury study asked judges t the close of the criminal trial, to state how they would have decided generally two stages remain jury cases over which they presided. Afor the defendant if he or she The judge and jury agreed in 81 per- has been found guilty: sentencing and cent of the criminal cases (about the an appeal. same as in civil cases). In 19 percent of the criminal cases the judge and jury Sentencing disagreed, with the judge showing a Sentencing is the court’s formal pro- marked tendency to convict where the nouncement of judgment upon the juries had acquitted. defendant at which time the punish- When the members of the jury do ment or penalty is set forth. finally reach a decision, they return to At the federal level and in most the courtroom and their verdict is an- states, sentences are imposed by the nounced in open court, often by the judge only. However, in several states jury foreman. At this time either the the defendant may elect to be sen- prosecutor or the defense attorney tenced by either a judge or a jury, and often asks that the jury be polled — in capital cases states generally require CHAPTER 5: THE CRIMINAL COURT PROCESS 115

that no death sentence shall be im- tence shall be. Judges are presented posed unless it is the determination of with a variety of alternatives and a 12 unanimous jurors. In some states range of sentences when it comes to after a jury finds someone guilty, the punishment for the criminal. Many of jury deliberates a second time to de- these alternatives involve the concept termine the sentence. In several states of rehabilitation and call for the assis- a new jury is empaneled expressly for tance of professionals in the fields of sentencing. At this time the rules of criminology and social science. evidence are more relaxed, and the The lightest punishment that a jury may be permitted to hear evi- judge can hand down is that of proba- dence that was excluded during the action. This is often the penalty if the tual trial (for example, the previous crime is regarded as minor or if the criminal record of the accused). judge believes that the guilty person is After the judge pronounces the not likely to engage in additional sentence, several weeks customarily criminal activity. If a probated sen- elapse between the time the defendant tence is handed down, the criminal is found guilty and the time when the may not spend any time in prison as penalty is imposed. This interval per- long as the conditions of the proba- mits the judge to hear and consider tion are maintained. Such conditions any posttrial motions that the defense might include staying away from con- attorney might make (such as a mo- victed criminals, not committing tion for a new trial) and to allow a other crimes, or with increasing fre- probation officer to conduct a presen- quency, performing some type of tence investigation. The probation community service. If a criminal officer is a professional with a back- serves out his or her probation with- ground in criminology, psychology, out incident, the criminal record is or social work, who makes a recom- usually wiped clean and in the eyes of mendation to the judge about the the law it is as if no crime had ever length of the sentence to be imposed. been committed. The probation officer customarily If the judge is not disposed toward examines factors such as the back- probation and feels that jail time is in ground of the criminal, the serious- order, he or she must impose a prison ness of the crime committed, and the sentence that is within a range pre- likelihood that the criminal will con- scribed by law. The reason for a range tinue to engage in illegal activity. of years instead of an automatically as- Judges are not required to follow the signed number is that the law recog- probation officer’s recommendation, nizes that not all crimes and criminals but it is still a major factor in the are alike and that in principle the pun- judge’s calculus as to what the sen- ishment should fit the crime. 116 OUTLINE OF THE U.S. LEGAL SYSTEM

In an effort to eliminate gross not necessarily have the final say on disparities in sentencing, the federal the matter. Whenever a prison term is government and many states have at- set by the judge, it is still subject to the tempted to develop sets of precise parole laws of the federal government guidelines to create greater consisten- and of the states. Thus parole boards cy among judges. At the national level (and sometimes the president and this effort was manifested by the en- governors who may grant pardons or actment of the Sentencing Reform Act commute sentences) have the final say of 1987, which established guidelines about how long an inmate actually to structure the sentencing process. stays in prison. Congress provided that judges may depart from the guidelines only if they An Appeal find an aggravating or mitigating cir- At both the state and federal levels cumstance that the commission did everyone has the right to at least one not adequately consider. Although the appeal upon conviction of a felony, congressional guidelines do not speci- but in reality few criminals avail them- fy the kinds of factors that could con- selves of this privilege. An appeal is stitute grounds for departure from the based on the contention that an error sentencing guidelines, Congress did of law was made during the trial state that such grounds could not in- process. Such an error must be re- clude race, gender, national origin, versible as opposed to harmless. An creed, religion, socioeconomic status, error is considered harmless if its drug dependence, or alcohol abuse. occurrence had no effect on the out- The states, too, have a variety of come of the trial. A reversible error, programs for avoiding vast disparities however, is a serious one that might in judges’ sentences. By 1995, 22 states have affected the verdict of the judge had created commissions to establish or jury. For example, a successful sentencing guidelines for their judges, appeal might be based on the argu- and as of late 1997 such guidelines ment that evidence was improperly were in effect in 17 states. Likewise, al- admitted at trial, that the judge’s most all of the states have now enact- instructions to the jury were flawed, ed mandatory sentencing laws that or that a guilty plea was not voluntar- require an automatic, specific sentence ily made. However, appeals must be upon conviction of certain crimes — based on questions of procedure and particularly violent crimes, crimes in legal interpretations, not on factual which a gun was used, or crimes per- determinations of the defendant’s petrated by habitual offenders. guilt or innocence as such. Further- Despite the enormous impact that more, under most circumstances one judges have on the sentence, they do cannot appeal the length of one’s sen- CHAPTER 5: THE CRIMINAL COURT PROCESS 117

tence in the United States (as long as it that are reversed on technicalities. was in the range prescribed by law). Surely this does happen, and one Criminal defendants do have some might argue that this is inevitable in degree of success on appeal about 20 a democratic country whose legal percent of the time, but this does not system is based on fair play and the mean that the defendant goes free. presumption of the innocence of the The usual practice is for the appellate accused. However, about 90 percent court to remand the case (send it back of all defendants plead guilty, and down) to the lower court for a new this plea virtually excludes the possi- trial. At that point the prosecution bility of an appeal. Of the remaining must determine whether the proce- group, two-thirds are found guilty at dural errors in the original trial can be trial, and only a small percentage of overcome in a second trial and these appeal. Of those who do appeal, whether it is worth the time and effort only about 20 percent have any to do so. A second trial is not consid- measurable degree of success. Of ered to be double jeopardy, since the those whose convictions are reversed, defendant has chosen to appeal the many are found guilty at a subsequent original conviction. trial. Thus the number of persons The media and others concerned convicted of crimes who are subse- with the law often call attention to ap- quently freed because of reversible pellate courts that turn loose seeming- court errors is a small fraction of ly guilty criminals and to convictions 1 percent.

CHAPTER6 THE CIVIL COURT PROCESS

Multnomah (Oregon) County Circuit Judge Roosevelt Robinson polls the jury about the verdict in a civil law case involving tort law, specifically, a suit brought against a corporation for defective products. 120 OUTLINE OF THE U.S. LEGAL SYSTEM

Civil actions are separate and distinct and a civil suit. Suppose that “Joe” and from criminal proceedings. This chap- “Pete,” two political scientists attend- ter focuses on civil courts: how civil ing a convention in Atlanta, are shar- law differs from criminal law, the most ing a taxi from the airport to their important categories of civil law, alter- downtown hotel. During the ride they natives to trials, and a step-by-step become involved in a heated political look at the civil trial process. discussion. By the time the taxi stops at their hotel, the discussion has THE NATURE AND become so heated that they get into a SUBSTANCE OF CIVIL LAW physical confrontation. If Pete strikes he American legal system ob- Joe in the ribs with his briefcase as serves several important dis- he gets out of the taxi, Pete may Ttinctions between criminal and be charged with criminal assault. In civil law. Criminal law is concerned addition, Joe might file a civil suit with conduct that is offensive to socie- against Pete in an effort to obtain a ty as a whole. Civil law pertains prima- monetary award sufficient to cover his rily to the duties of private citizens to medical expenses. each other. In civil cases the disputes Civil cases far outnumber criminal are usually between private individu- cases in both the federal and state als, although the government may courts, although they generally do not sometimes be a party in a civil suit. attract the same media attention as Criminal cases always involve govern- criminal trials. Still, they often raise ment prosecution of an individual for important policy questions and cover an alleged offense against society. a broad range of disagreements in so- In a civil case the court attempts to ciety. Judicial scholar Herbert Jacob settle a particular dispute between the summarizes the breadth of the civil parties by determining their legal law field in Justice in America:“Every rights. The court then decides upon an broken agreement, every sale that appropriate remedy, such as awarding leaves a dissatisfied customer, every monetary damages to the injured uncollected debt, every dispute with a party or issuing an order that directs government agency, every libel and one party to perform or refrain from a slander, every accidental injury, every specific act. In a criminal case the marital breakup, and every death may court decides whether the defendant is give rise to a civil proceeding.” innocent or guilty. A guilty defendant Thus, virtually any dispute between may be punished by a fine, imprison- two or more persons may provide the ment, or both. basis for a civil suit. The number of In some instances the same act may suits is huge, but most of them fall give rise to both a criminal proceeding into one of five basic categories. CHAPTER 6: THE CIVIL COURT PROCESS 121

THE MAIN CATEGORIES OF services or goods. For example, as- CIVIL LAW sume that “Mr. Burns” and “Ms. Cold- he five main categories of civil er” enter into an agreement whereby law are contract law, tort law, Colder agrees to pay Burns $125 if he Tproperty law, the law of succes- will cut and deliver a cord of oak fire- sion, and family law. wood to her home on December 10. If Burns does not deliver the wood on Contract Law that date, he has breached the contract Contract law is primarily concerned and Colder may sue him for damages. with voluntary agreements between Although many contracts are rela- two or more people. Some common tively simple and straightforward, examples include agreements to per- some complex fields also build on form a certain type of work, to buy or contract law or contract ideas. One sell goods, and to construct or repair such field is commercial law, which fo- homes or businesses. Basic to these cuses primarily on sales involving agreements are a promise by one party credit or the installment plan. Com- and a counter promise by the other mercial law also deals with checks, party, usually a promise by one party promissory notes, and other nego- to pay money for the other party’s tiable financial instruments.

Bankruptcy and creditors’ rights are important areas in contract law. Above, a jet belonging to American Airlines, which in 2003 narrowly averted a bankruptcy filing. 122 OUTLINE OF THE U.S. LEGAL SYSTEM

Another closely related field is Perhaps one reason for the growth bankruptcy and creditors’ rights. in product liability cases is a change in Bankrupt individuals or businesses the standard of proof. Traditionally, may go through a process that essen- negligence (generally defined as care- tially wipes the slate clean and allows lessness or the failure to use ordinary the person filing for bankruptcy to care, under the particular circum- begin again. The bankruptcy process stances revealed in the lawsuit) must is also designed to ensure fairness to be proven before one person is able to creditors. Bankruptcy law has been a collect damages for injuries caused by major concern of legislators for someone else. However, some have ar- several years, and a large number of gued that for many years reliance on special bankruptcy judges are now at- the negligence concept has been de- tached to the U.S. district courts. clining, especially in product liability The final area is the insurance con- cases. In its place, the courts often use tract, which is important because of a strict liability standard, which means its applicability to so many people. that a victim can recover even if there The insurance industry is regulated by was no negligence and even if the government agencies and subject to its manufacturer was careful. own distinct rules. Another reason commonly suggested for the growth in the number Tort Law of product liability cases is the size of Tort law may generally be described jury awards when the decision favors as the law of civil wrongs. It concerns the plaintiff. Jury awards for damages conduct that causes injury and fails may be of two types: compensatory to measure up to some standard set and punitive. Compensatory damages by society. are intended to cover the plaintiff’s Actions for personal injury or actual loss, such as repair costs, doctor bodily injury claims are at the heart bills, and hospital expenses. Punitive of tort law, and automobile accidents (or exemplary) damages are designed, have traditionally been responsible instead, to punish the defendant or for a large number of these claims. serve as a warning against such behav- One of the most rapidly growing ior in the future. subfields of tort law is product lia- As a result of concern over large bility. This category has become an jury awards and the increasing num- increasingly effective way to hold ber of so-called frivolous cases, corporations accountable for injuries government officials, corporate execu- caused by defective foods, toys, appli- tives, interest groups, and members of ances, automobiles, drugs, or a host of the legal community have called for other products. legislation aimed at tort reform. CHAPTER 6: THE CIVIL COURT PROCESS 123

Throughout the 1990s a number of of professionals, including doctors, is states enacted a variety of tort reform reasonable in nature. This means that measures. The American Tort Reform to prevail against the doctor in court, Association, which serves as an advo- the injured patient needs at least the cate of tort reform, reports that states testimony of one or more expert wit- have limited awards for noneconomic nesses stating that the doctor’s con- damages, modified their laws govern- duct was not reasonable. ing punitive damages, or enacted statutes penalizing plaintiffs who file Property Law frivolous lawsuits. A distinction has traditionally been Another rapidly growing subfield made between real property and per- of tort law is medical malpractice. The sonal property. The former normally number of medical malpractice claims refers to real estate — land, houses, has increased even as great advances and buildings — and has also includ- have been made in medicine. Two oned growing crops. Almost everything going problems in contemporary else is considered personal property, medicine are the increased risk im- including such things as money, posed by new treatments and the im- jewelry, automobiles, furniture, and personal character of specialists and bank deposits. hospitals. Patients today have high ex- According to Lawrence M. Fried- pectations, and when a doctor fails man in American Law, “As far as the them, their anger may lead to a mal- law is concerned, the word property practice suit. means primarily real property; per- Courts generally use the tradition- sonal property is of minor impor- al negligence standard rather than the tance.” No single special field of law is strict liability doctrine in resolving devoted to personal property. Instead, medical malpractice suits. This means personal property is generally consid- that the law does not attempt to make ered under the rubric of contract law, doctors guarantee successful treat- commercial law, and bankruptcy law. ment, but instead tries to make the Property rights have always been doctor liable if the patient can prove important in the United States, but that the physician failed to perform in today property rights are more com- a manner consistent with accepted plex than mere ownership of some- methods of medical practice. The nothing. The notion of property now tion of acceptable practice varies from includes, among several other things, state to state, and such questions must the right to use that property. be resolved by the courts on a case-by- One important branch of property case basis. However, customarily a law today deals with land use controls. presumption is made that the conduct The most common type of land use 124 OUTLINE OF THE U.S. LEGAL SYSTEM

Product liability is one of the most rapidly growing subfields of tort law, with many manufacturers increasingly being held liable even when they were careful. Above, product liability attorney Ralph G. Patino displays a tire that his client claimed separated from its casing and caused a serious accident — one of many claims that led the Firestone Company to recall millions of its tires in 2000.

Property law — the right to use and the right to acquire property — was the principal question behind the Federal Communications Commission’s 2003 review of whether to ease regulations on media ownership for corporations. CHAPTER 6: THE CIVIL COURT PROCESS 125

restriction is zoning, a practice where- drawn it up), then the person has died by local laws divide a municipality intestate, and the state must dispose of into districts designated for different the property. uses. For instance, one neighborhood The state’s disposition of the prop- may be designated as residential, an- erty is carried out according to the other as commercial, and yet another fixed scheme set forth in the state as industrial. statutes. By law, intestate property Early zoning laws were challenged passes to the deceased person’s heirs on the ground that restrictions on — that is, to his or her nearest land use amounted to a taking of the relatives. Occasionally a person who land by the city in violation of the dies intestate has no living relatives. Constitution, which says, “Nor shall In that situation the property escheats, private property be taken for public or passes, to the state in which the use without just compensation.” In a deceased resided. State statutes often sense, zoning laws do take from the prohibit the more remote relatives, owners of land the right to use their such as second cousins and great un- property in any way they see fit. cles and aunts, from inheriting. Nonetheless, courts have generally Increasingly, Americans are prepar- ruled that zoning laws are not regarding wills to ensure that their property ed as a taking in violation of the Con- is disposed of according to their stitution. Today, zoning is a fact of life wishes, not according to a scheme in cities and towns of all sizes determined by the state. A will is a throughout the United States. City formal document. It must be very planners and other city officials recog- carefully drafted, and in most states nize zoning ordinances as necessary to it must be witnessed by at least the planned and orderly growth of two persons. urban areas. Family Law The Law of Succession Family law concerns such matters as The law of succession considers how marriage, divorce, child custody, and property is passed along from one children’s rights. It clearly touches the generation to another. The American lives of a great number of Americans legal system recognizes a person’s right each year. to dispose of his or her property as he The conditions necessary for enter- or she wishes. One common way to do ing into a marriage are spelled out by this is to execute a will. If a person state law. These laws traditionally leaves behind a valid will, the courts cover the minimum age of the parties, will enforce it. However, if someone required blood tests or physical leaves no will (or has improperly examinations, mental conditions of 126 OUTLINE OF THE U.S. LEGAL SYSTEM

the parties, license and fee require- ward no-fault divorce. This trend was ments, and waiting periods. the result of two factors. First, for The termination of a marriage many years there was an increasing de- was once very rare. In the early 19th mand for divorces. Second, the stigma century some states granted divorces once attached to divorced persons all only through special acts of the legis- but disappeared. lature; one state, South Carolina, The no-fault divorce system means simply did not allow divorce. In the that the parties simply explain that ir- other states divorces were granted reconcilable differences exist between only when one party proved some them and that the marriage is no grounds for divorce. In other words, longer viable. The no-fault divorce divorces were available only to inno- system has put an end to the adversar- cent parties whose spouses were guilty ial nature of divorce proceedings. of such things as adultery, desertion, Not so easily solved are some of or cruelty. the other problems that may result The 20th century saw an enormous from an ended marriage. Child change in divorce laws. The movement custody battles, disputes over child was away from restrictive laws and to- support payments, and disagreements

Two children await the results of a custody decision by the Manhattan Family Court. Custody disputes have become more common as a result of no-fault divorce, and courts increasingly have to decide which parent will get custody. CHAPTER 6: THE CIVIL COURT PROCESS 127

over visitation rights find their way Alternative Dispute Resolution into court on a regular basis. Custody In practice few persons make use of disputes are probably more common the entire judicial process. Instead, and more contentious today than most cases are settled without resort before no-fault divorce. The child’s to a full-fledged trial. In civil cases, needs come first, and courts no longer a trial may be both slow and expen- automatically assume that this means sive. In many areas the backlogs are granting custody to the mother. so enormous that it takes three to Fathers are increasingly being granted five years for a case to come to trial. custody, and it is also now common In addition, civil trials may be exceed- for courts to grant joint custody to the ingly complex. divorced parents. Often, the expense of a trial is enough to discourage potential plain- THE COURTS AND OTHER tiffs. The possibility of losing always INSTITUTIONS CONCERNED exists. The possibility of a long wait WITH CIVIL LAW also always exists, even if a plaintiff isagreements are common in wins, before the judgment is satisfied the daily lives of Americans. — that is, if it is ever completely satis- DUsually these disagreements fied. In other words, a trial may simply can be settled outside the legal system. create a new set of problems for the Sometimes they are so serious, howev- parties concerned. For all these rea- er, that one of the parties sees no al- sons, more and more discussion has ternative but to file a lawsuit. been heard about alternative methods of resolving disputes. Deciding Whether to Go to Court From major corporations to attor- Every year thousands of potential civil neys to individuals, support for alter- cases are resolved without a trial be- native dispute resolution (ADR) has cause the would-be litigants settle been growing. Corporate America is their problems in another way or be- interested in avoiding prolonged and cause the prospective plaintiff decides costly court battles as the only way to not to file suit. When faced with a de- settle complex business disputes. In cision to call upon the courts, to try to addition, attorneys are more frequent- settle differences, or to simply forget ly considering alternatives such as me- the problem, many people resort to a diation and arbitration where there is simple cost-benefit analysis. That is, a need for faster resolution of cases or they weigh the costs associated with a confidential treatment of certain mat- trial against the benefits they are ters. And individual citizens are in- likely to gain if they win. creasingly turning to local mediation 128 OUTLINE OF THE U.S. LEGAL SYSTEM

services for help in resolving family Mediation is especially appropriate disputes, neighborhood quarrels, and for situations in which the disputants consumer complaints. have an ongoing relationship, such as Alternative dispute resolution disputes between family members, processes are carried out under a neighbors, employers and employees, variety of models. These models are and landlords and tenants. Mediation commonly classified as “private, is also useful in divorce cases because court-referred, and court-annexed, it changes the procedure from one of but the latter two together often are confrontation to one of cooperation. called court-connected,” writes Susan Child custody and visitation rights are L. Keita in the Handbook of Court Ad- frequently resolved through media- ministration and Management.In tion as well. And in many areas, per- other words, some private ADR sonal injury and property claims processes function independently of involving insurance companies are the courts. A court-referred ADR settled through mediation. process is one that operates outside the court itself but still has some rela- Arbitration. The arbitration process tionship to the court. The court is similar to going to court. After lis- administers the ADR process in a tening to both parties in a dispute, an court-annexed program. Depending impartial person called an arbitrator on the model and the issue, “ADR decides how the controversy should be processes may be voluntary or manda- resolved. There is no judge or jury. In- tory; they may be binding or allow ap- stead, the arbitrator selected by both peals from decisions rendered; and parties makes the final decision. Arbi- they may be consensual, adjudicatory, trators are drawn from all different or some hybrid of the two,” according types of professional backgrounds and to Keita. Some commonly used ADR frequently volunteer their time to help processes are mediation, arbitration, people resolve their problems. neutral fact-finding, mini-trial, sum- Disputants choose arbitration be- mary jury trial, and private judging. cause it saves time and money and is more informal than a court hearing. Mediation. Mediation is a private, Most arbitrations are completed in confidential process in which an four months or less, as compared impartial person helps the disputing with six months to several years for parties identify and clarify issues of con- court decisions. cern and reach their own agreement. Arbitration is used privately to The mediator does not act as a judge. resolve a variety of consumer com- Instead, the parties themselves maintain plaints. Examples include disputes control of the final settlement. over poor automobile repairs, prob- CHAPTER 6: THE CIVIL COURT PROCESS 129

lems with the return of faulty trials are designed to help define the merchandise, and overcharging for issues and develop a basis for realistic services. Arbitration is also being used settlement negotiations. The rep- in court-referred and court-annexed resentatives from the two sides present processes to resolve several types of an overview of their positions and disputes, including business, commer- arguments to the panel. As a result, cial, and employment disputes. each party becomes more knowledge- able about the other party’s position. Neutral Fact-Finding. Neutral fact- Having heard each side’s presentation, finding is an informal process whereby the panel, including the advisor, meets an agreed-upon neutral party is asked to develop a compromise solution. to investigate a dispute. Usually, the The neutral advisor may also issue an dispute involves complex or technical advisory opinion regarding the merits issues. The neutral third party ana- of the case. This advisory opinion is lyzes the disputed facts and issues his nonbinding unless the parties have or her findings in a nonbinding report agreed in writing beforehand to be or recommendation. bound by it. This process can be particularly The primary benefit of a mini-trial useful in handling allegations of racial is that both parties have an opportuni- or gender discrimination within a ty to develop solutions. It also means company because such cases often that each has representation and ac- provoke strong emotions and internal cess to detailed information. dissension. If both parties are employees of the same company, conflicts of Summary Jury Trial. A summary interest could interfere with a supervi- jury trial involves a court-managed sor or manager’s ability to conduct an process that takes place after a case has impartial investigation of alleged dis- been filed, but before it reaches trial. crimination. To avoid the appearance In a summary jury trial each party of unfairness, a company may turn to presents its arguments to a jury (nor- a neutral third party in hopes of reach- mally six persons). An overview of ing a settlement all the employees can each side’s argument as well as abbre- respect. viated opening and closing arguments are presented. Attorneys are typically Mini-Trial. In a mini-trial each party given a short amount of time (an hour presents its position in a trial-like or less) for their presentations. They fashion before a panel that consists of are limited to the presentation of in- selected representatives for both par- formation that would be admissible at ties and neutral third parties. Every trial. No testimony is taken from panel has one neutral advisor. Mini- sworn witnesses, and proceedings are 130 OUTLINE OF THE U.S. LEGAL SYSTEM

generally not recorded. Because the judges. A California appellate court, proceedings are nonbinding, rules of for instance, has noted that some procedure and evidence are more flex- sitting judges are leaving the bench ible than in a normal trial. in order to earn more money as The jury hands down an advisory, private judges. nonbinding decision based on the arguments presented. In this setting, Specialized Courts the verdict is designed to give the The state court systems are frequently attorneys and their clients insight characterized by a number of special- into their cases. It may also suggest ized courts that are set up to handle a basis for settlement of the dispute. specific types of civil cases. Domestic If the dispute is not resolved during relations courts are often established or immediately following the summa- to deal with such matters as divorce, ry jury trial proceeding, a pretrial child custody, and child support. In conference is held before the court to many jurisdictions, probate courts discuss settlement. handle the settlement of estates and One of the major advantages of a the contesting of wills. summary jury trial is the time in- Perhaps the best known of the spe- volved. A summary jury trial is typi- cialized courts are the small-claims cally concluded in less than a day com- courts. These courts have jurisdiction pared to several days or weeks for to handle cases when the money being full-fledged trials. sued for is not above a certain amount. The amount varies by juris- Private Judging. This method of al- diction but the maximum is usually ternative dispute resolution makes use $500 or $1,000. Small-claims courts of retired judges who offer their serv- allow less complex cases to be resolved ices for a fee. Advocates claim that more informally than in most other there are several advantages. First, the trial courts. Filing fees are low, and the parties are able to select a person with use of attorneys is often discouraged, the right qualifications and experience making small-claims court affordable to handle the matter. Second, the par- for the average person. ties can be assured that the matter will be handled when first scheduled and Administrative Bodies not be continued because the court’s A number of government agencies calendar is too crowded. Finally, the have also established administrative cost can be less than that incurred bodies with quasi-judicial authority to in full litigation. Critics of private handle certain types of cases. At the judging, however, are concerned by federal level, for example, agencies the high fees charged by some retired such as the Federal Trade Commission CHAPTER 6: THE CIVIL COURT PROCESS 131

and the Federal Communications between the parties and thus no actu- Commission carry out an adjudica- al case for the court to decide. tion of sorts within their respective A second major difference is that spheres of authority. An appeal of the the standard of proof used in civil ruling of one of these agencies may be cases is a preponderance of the taken to a federal court of appeals. evidence, not the more stringent At the state level, a common exam- beyond-a-reasonable-doubt standard ple of an administrative body that aids used in criminal cases. A preponder- in the resolution of civil claims is a ance of the evidence is generally workers’ compensation board. This taken to mean that there is sufficient board determines whether an em- evidence to overcome doubt or specu- ployee’s injury is job-related and thus lation. It clearly means that less whether the person is entitled to proof is required in civil cases than workers’ compensation payments. in criminal cases. Many state motor vehicle departments A third major difference is that have hearing boards to make determi- many of the extensive due process nations about revoking driver’s licens- guarantees that a defendant has in a es. Another type of administrative criminal trial do not apply in a civil board commonly found in the states proceeding. For example, neither rules on civil rights matters and cases party is constitutionally entitled to of alleged discrimination. counsel. The Seventh Amendment does guarantee the right to a jury trial THE CIVIL TRIAL PROCESS in lawsuits “where the value in contro- number of disputes are re- versy shall exceed $20.” Although this solved through some method amendment has not been made Aof alternative dispute resolu- applicable to the states, most states tion, in a specialized court, or by an have similar constitutional guarantees. administrative body. However, a large number of cases each year still manage Filing a Civil Suit to find their way into a civil court. The person initiating the civil suit is Generally speaking, the adversarial known as the plaintiff, and the person process used in criminal trials is also being sued is the defendant or the re- used in civil trials, with just a few im- spondent. A civil action is known by portant differences. First, a litigant the names of the plaintiff and the de- must have standing. This concept fendant, such as Jones v. Miller. The means simply that the person initiat- plaintiff’s name appears first. In a typ- ing the suit must have a personal stake ical situation, the plaintiff’s attorney in the outcome of the controversy. pays a fee and files a complaint or pe- Otherwise, there is no real controversy tition with the clerk of the proper 132 OUTLINE OF THE U.S. LEGAL SYSTEM

court. The complaint states the facts an automobile accident in Tennessee on which the action is based, the dam- when the car he is driving is struck ages alleged, and the judgment or re- from the rear by a car driven by a lief being sought. resident of Kingsport, Tennessee. The decision about which court Total damages to the Ohio driver should actually hear the case involves and car come to about $80,000. the concepts of jurisdiction and A state trial court in Ohio has venue: Jurisdiction deals with a court’s subject matter jurisdiction, and Ohio authority to exercise judicial power, can in all likelihood obtain jurisdic- and venue means the place where that tion over the defendant. In addition, power should be exercised. the state courts of Tennessee probably Jurisdictional requirements are sat- have jurisdiction. Federal district isfied when the court has legal author- courts in both Ohio and Tennessee ity over both the subject matter and also have jurisdiction because diversi- the person of the defendant. This ty of citizenship exists and the amount means that several courts can have in controversy is over $75,000. Assum- jurisdiction over the same case. Sup- ing that jurisdiction is the only pose, for example, that a resident of concern, the plaintiff can sue in any Dayton, Ohio, is seriously injured in of these courts.

Heavy media coverage often prompts defense attorneys to move for a change of venue so as to avoid prejudicing their client’s case, for instance, in auto accidents caused by drunk drivers. CHAPTER 6: THE CIVIL COURT PROCESS 133

The determination of proper venue dant does not do so, then he or she may be prescribed by statute based on may be subject to a default judgment. avoiding possible prejudice, or it may These simple actions by the plain- simply be a matter of convenience. tiff, clerk of the court, and a process The federal law states that proper server set in motion the civil case. venue is the district in which either the What happens next is a flurry of activ- plaintiff or defendant resides, or the ities that precedes an actual trial and district where the injury occurred. may last for several months. Approxi- State venue statutes vary somewhat, mately 75 percent of cases are resolved but they usually provide that where without a trial during this time. land is involved, proper venue is the county where the land is located. In Pretrial Activities most other instances venue is the Motions. Once the summons has county where the defendant resides. been served on the defendant, a num- Venue questions may also be relat- ber of motions can be made by the ed to the perceived or feared prejudice defense attorney. A motion to quash of either the judge or the prospective requests that the court void the sum- jury. Attorneys sometimes object to mons on the ground that it was not trials being held in a particular area properly served. For example, a defen- for this reason and may move for a dant might contend that the summons change of venue. Although this type was never delivered personally as re- of objection is perhaps more com- quired by state law. monly associated with highly publi- Two types of motions are meant to cized criminal trials, it is also found clarify or to object to the plaintiff’s pe- in civil trials. tition. A motion to strike requests that Once the appropriate court has the court excise, or strike, certain parts been determined and the complaint of the petition because they are preju- has been filed, the court clerk will at- dicial, improper, or irrelevant. A mo- tach a copy of the complaint to a sum- tion to make more definite asks the mons, which is then issued to the de- court to require the plaintiff to be fendant. The summons may be served more specific about the complaints. by personnel from the sheriff’s office, A fourth type of motion often filed a U.S. marshal, or a private process- in a civil case is a motion to dismiss. service agency. This motion may argue that the court The summons directs the defen- lacks jurisdiction, or it may insist that dant to file a response, known as a the plaintiff has not presented a legally pleading, within a certain period of sound basis for action against the de- time (usually 30 days). If the defen- fendant even if the allegations are true. 134 OUTLINE OF THE U.S. LEGAL SYSTEM

The Answer. If the complaint sur- • Interrogatories are written questions vives the judge’s rulings on the mo- that must be answered under oath. tions, then the defendant submits an Interrogatories can be submitted answer to the complaint. The response only to the parties in the case, not to may contain admissions, denials, de- witnesses. They are used to obtain fenses, and counterclaims. When an descriptions of evidence held by the admission is contained in an answer, opposing parties in the suit. there is no need to prove that fact dur- • Production of documents may be ing the trial. A denial, however, brings requested by one of the parties in up a factual issue to be proven during the suit if they wish to inspect the trial. A defense says that certain documents, writings, drawings, facts set forth in the answer may bar graphs, charts, maps, photographs, or the plaintiff from recovering damages. other items held by the other party. The defendant may also create a • If there are questions about the separate action known as a counter- physical or mental condition of one claim. If the defendant thinks that a of the parties, the court may order cause of action against the plaintiff that person to submit to an arises from the same set of events, examination by a physician. then he or she must present the claim to the court in response to the plain- The Pretrial Conference. Before go- tiff’s claim. The plaintiff may file a ing to court, the judge may call a pre- reply to the defendant’s answer. In that trial conference to discuss the issues in reply, the plaintiff may admit, deny, or the case informally with the opposing defend against the allegations of fact attorneys. The general practice is to contained in the counterclaim. allow only the judge and the lawyers to attend the conference, which is nor- Discovery. The U.S. legal system pro- mally held in the judge’s chambers. vides for discovery procedures; that is, At this meeting, the judge and the each party is entitled to information attorneys try to come to agreement on in the possession of the other. There uncontested factual issues, which are are several tools of discovery: known as stipulations. The purpose of • A deposition is testimony of a stipulations is to make the actual trial witness taken under oath outside the more efficient by reducing the num- court. The same question-and- ber of issues that must be argued in answer format as in the courtroom is court. The attorneys also share with used. All parties to the case must be each other a list of witnesses and doc- notified that the deposition is to be uments that are part of each case. taken so that their attorneys may be Lawyers and judges may also use present to cross-examine the witness. the pretrial conference to try to settle CHAPTER 6: THE CIVIL COURT PROCESS 135

the case. Some judges actively work to As in criminal trials, jurors must be bring about a settlement so the case selected in a random manner from a does not have to go to trial. fair cross-section of the community. A large panel of jurors is called to the The Civil Trial courthouse, and when a case is as- Selection of Jury. The right to a jury signed to a court for trial, a smaller trial in a civil suit in a federal court is group of prospective jurors is sent to a guaranteed by the Seventh Amend- particular courtroom. ment of the U.S. Constitution. State Following the voir dire examina- constitutions likewise provide for such tion, which may include challenges to a right. A jury trial may be waived, in certain jurors by the attorneys, a jury which case the judge decides the mat- to hear the particular case will be ter. Although the jury traditionally seated. Lawyers may challenge a consists of 12 persons, today the num- prospective juror for cause, in which ber varies. Most of the federal district case the judge must determine courts now use juries of fewer than 12 whether the person challenged is im- persons in civil cases. A majority of partial. Each side may also exercise a states also authorize smaller juries in certain number of peremptory chal- some or all civil trials. lenges — excusing a juror without

The Seventh Amendment of the Constitution and state constitutions guarantee the right to a jury trial in civil suits. As a result, many citizens such as these women from Macomb County, Michigan, are called to serve as jurors. 136 OUTLINE OF THE U.S. LEGAL SYSTEM

stating any reason. However, the U.S. When a witness is called, he or Supreme Court has ruled that the she will undergo direct examination equal protection guarantee of the by the plaintiff’s attorney. Then Fourteenth Amendment prohibits the the defendant’s attorney will have use of such challenges to disqualify ju- the opportunity to ask questions rors from civil trials because of their or cross-examine the witness. The race or gender. Peremptory challenges Arizona Supreme Court recently took are fixed by statute or court rule and steps to help jurors do a better job normally range from two to six. of making decisions in civil cases. Among other things, the state’s Opening Statements. After the jury highest court voted to allow jurors to has been chosen, the attorneys present pose written questions to witnesses their opening statements. The plain- through the judge. Other states are tiff’s attorney begins. He or she ex- considering implementing Arizona’s plains to the jury what the case is new practice. Following the cross- about and what the plaintiff’s side ex- examination, the plaintiff’s lawyer pects to prove. The defendant’s lawyer may conduct a redirect examination, can usually choose either to make an which may then be followed by a opening statement immediately after second cross-examination by the the plaintiff’s attorney finishes or to defendant’s lawyer. wait until the plaintiff’s case has been Generally speaking, witnesses may completely presented. If the defen- testify only about matters they have dant’s attorney waits, he or she will actually observed; they may not ex- present the entire case for the defen- press their opinions. However, an dant continuously, from opening important exception to this general statement onward. Opening state- rule is that expert witnesses are ments are valuable because they specifically called upon to give their outline the case and make it easier for opinions in matters within their areas the jury to understand the evidence of expertise. as it is presented. To qualify as an expert witness, a person must possess substantial Presentation of the Plaintiff’s Case. knowledge about a particular field. In the normal civil case, the plaintiff’s Furthermore, this knowledge must side is first to present and attempt to normally be established in open court. prove its case to the jury and last to Both sides often present experts make closing arguments. In present- whose opinions are contradictory. ing the case, the plaintiff’s lawyer will When this happens, the jury must normally call witnesses to testify and ultimately decide which opinion is produce documents or other exhibits. the correct one. CHAPTER 6: THE CIVIL COURT PROCESS 137

When the plaintiff’s side has pre- evidence, which is aimed at refuting sented all its evidence, the attorney the defendant’s evidence. rests the case. Answer to Plaintiff’s Rebuttal. The Motion for Directed Verdict. After defendant’s lawyer may present evi- the plaintiff’s case has been rested, the dence to counter the rebuttal evi- defendant will often make a motion dence. This rebuttal-and-answer for a directed verdict. With the filing pattern may continue until the evi- of this motion, the defendant is saying dence has been exhausted. that the plaintiff has not proved his or her case and thus should lose. The Closing Arguments. After all the judge must then decide whether the evidence has been presented, the plaintiff could win at this point if lawyers make closing arguments, or court proceedings were to cease. summations, to the jury. The plain- Should the judge determine that the tiff’s attorney speaks both first and plaintiff has not presented convincing last. That is, he or she both opens enough evidence, he or she will sus- the argument and closes it, and the tain the motion and direct the verdict defendant’s lawyer argues in between. for the defendant. Thus the plaintiff In this stage of the process each attor- will lose the case. The motion for a di- ney attacks the opponent’s evidence rected verdict is similar to the pretrial for its unreliability and may also motion to dismiss. attempt to discredit the opponent’s witnesses. In doing so, the lawyers Presentation of the Defendant’s often wax eloquent or deliver an emo- Case. If the motion for a directed tional appeal to the jury. However, the verdict is overruled, the defendant arguments must be based upon facts then presents evidence. The defen- supported by the evidence and intro- dant’s case is presented in the same duced at the trial. way as the plaintiff’s case. That is, there is direct examination of witness- Instructions to the Jury. Assuming es and presentation of documents that a jury trial has not been waived, and other exhibits. The plaintiff the instructions to the jury follow the has the right to cross-examine wit- conclusion of the closing arguments. nesses. Redirect and recross questions The judge informs the jury that it may follow. must base its verdict on the evidence presented at the trial. The judge’s in- Plaintiff’s Rebuttal. After the pres- structions also inform the jurors entation of the defendant’s case, the about the rules, principles, and stan- plaintiff may bring forth rebuttal dards of the particular legal concept 138 OUTLINE OF THE U.S. LEGAL SYSTEM

involved. In civil cases, a finding for judgment notwithstanding the ver- the plaintiff is based on a preponder- dict. This type of motion is granted ance of the evidence. This means that when the judge decides that reason- the jurors must weigh the evidence able persons could not have rendered presented during the trial and deter- the verdict the jury reached. mine in their minds that the greater The losing party may also file a weight of the evidence, in merit and in motion for a new trial. The usual basis worth, favors the plaintiff. for this motion is that the verdict goes against the weight of the evidence. The Verdict. The jury retires to the The judge will grant the motion on seclusion of the jury room to conduct this ground if he or she agrees that the its deliberations. The members must evidence presented simply does not reach a verdict without outside con- support the verdict reached by the tact. In some instances the delibera- jury. A new trial may also be granted tions are so long and detailed that the for a number of other reasons: exces- jurors must be provided meals and sive damages, grossly inadequate sleeping accommodations until they damages, the discovery of new evi- can reach a verdict. The verdict, then, dence, and errors in the production of represents the jurors’ agreement after evidence, to name a few. detailed discussions and analyses of In some cases the losing party also the evidence. Sometimes the jury files a motion for relief from judg- deliberates in all good faith but cannot ment. This type of motion may be reach a verdict. When this occurs, granted if the judge finds a clerical the judge may declare a mistrial. This error in the judgment, discovers some means that a new trial may have to new evidence, or determines that the be conducted. judgment was induced by fraud. After the verdict is reached, the jury is conducted back into open Judgment and Execution. A verdict court, where it delivers its verdict to in favor of the defendant ends the trial, the judge. The parties are informed of but a verdict for the plaintiff requires the verdict. It is then customary for another stage in the process. There is the jury to be polled — the jurors are no sentence in a civil case, but there individually asked by the judge must be a determination of the reme- whether they agree with the verdict. dy or damages to be assessed. This determination is called the judgment. Post-trial Motions. Once the verdict In situations where the judgment is has been reached, a dissatisfied party for monetary damages and the defen- may pursue a variety of tactics. The dant does not voluntarily pay the set losing party may file a motion for amount, the plaintiff can ask to have CHAPTER 6: THE CIVIL COURT PROCESS 139

the court clerk issue an order to exe- mon grounds for appeal are that the cute the judgment. The execution is judge allegedly admitted evidence that issued to the sheriff and orders the should have been excluded, refused to sheriff to seize the defendant’s proper- admit evidence that should have been ty and sell it at auction to satisfy the introduced, or failed to give proper judgment. An alternative is to order a jury instructions. lien, which is the legal right to hold An attorney lays the groundwork property that may be used for the pay- for an appeal by objecting to the ment of the judgment. alleged error during the trial. This objection goes into the trial record Appeal. If one party feels that an and becomes a part of the trial tran- error of law was made during the trial, script, which may be reviewed by an and if the judge refuses to grant a appellate court. The appellate court posttrial motion for a new trial, then decision may call for the lower court the dissatisfied party may appeal to a to enforce its earlier verdict or to hold higher court. Probably the most com- a new trial.

CHAPTER7 FEDERAL JUDGES

The movement to include minorities and women in the judiciary increased during the presidency of Jimmy Carter. President Ronald Reagan broke the gender barrier at the Supreme Court with his 1981 appointment of Sandra Day O’Connor, right, as Associate Justice. Chief Justice Warren Burger, left, is shown swearing her in, while her husband, John J. O’Connor, center, holds the two family Bibles. 142 OUTLINE OF THE U.S. LEGAL SYSTEM

The main actors in the federal system never been collected, but a good deal are the men and women who serve as is known about judges who have judges and justices. What characteris- served in recent decades. tics do these people have that distin- Before assuming the federal bench, guish them from the rest of the citi- a plurality of judges had been judges zenry? What are the qualifications — at the state or local level. The next both formal and informal — for ap- largest blocs were employed either in pointment to the bench? How are the political or governmental realms judges selected and who are the partic- or in moderate- to large-sized law ipants in the process? How do judges firms. Those working in small law learn to be judges? How are judges dis- firms or as professors of law made up ciplined and when are they removed the smallest bloc. from the bench? Judges’ educational background reveals something of their elite nature. BACKGROUND All graduated from college; about half CHARACTERISTICS OF attended either costly Ivy League FEDERAL JUDGES schools or other private universities to mericans cling to the notion receive their undergraduate and law that someone born in the degrees. Judges also differ from the Ahumblest of circumstances population as a whole in that there is a (such as Abraham Lincoln) may one strong tendency toward “occupational day grow up to be the president of the heredity” — that is, for judges to come United States, or at least a U.S. judge. from families with a tradition of judi- As with most myths, this one has a cial and public service. kernel of truth. In principle virtually Although the United States is about anyone can become a prominent pub- 51 percent female, judges have been lic official, and a few well-known ex- almost exclusively male. Until the pres- amples can be cited of people who idency of Jimmy Carter (1977-81), less came from poor backgrounds yet than 2 percent of district judges were climbed to the pinnacle of power. female, and even with conscious effort More typically, however, America’s to change this phenomenon, only 14.4 federal judges, like other public offi- percent of Carter’s appointments to cials and the captains of commerce district judgeships were women. Racial and industry, come from the nation’s minorities also have been underrepre- middle and upper-middle classes. sented on the trial bench, not only in absolute numbers but also in compari- District Judges son with figures for the overall popula- Background data for all federal district tion. Until the present time, only judges for the past 210 years have Jimmy Carter had appointed a signifi- CHAPTER 7: FEDERAL JUDGES 143

cant number of non-Anglos to the women, and more African Americans, federal bench — over 21 percent. Dur- Hispanics, and Asians were appointed ing the administration of President Bill to the appellate court bench by Clinton (1993-2001), a dramatic Clinton than by any other president. change took place. During his first President George W. Bush, in turn, six years in office, 49 percent of his also has shown a commitment to judicial appointees were either women racial and gender diversity. Almost or minorities. one-third of his district court appoint- About nine out of ten district ments, for example, have been “non- judges have been of the same political traditional” — women and minorities. party as the appointing president, and historically about 60 percent have a Supreme Court Justices record of active partisanship. Since 1789, 106 men and two women The typical judge has been 49 years have sat on the bench of America’s old at the time of appointment. Age highest judicial tribunal. Although variations from one presidency to an- perhaps 10 percent of the justices were other have been small, with no dis- essentially of humble origin, a majori- cernible trend over the years from one ty of the justices came from politically administration to another. active families, and about a third were related to jurists and closely Appeals Court Judges connected with families with a tradi- Appeals judges are much more likely tion of judicial service. to have previous judicial experience Until the 1960s the High Court had than their counterparts on the trial been all white and all male, but in 1967 court bench, and they are just as likely, President Lyndon Johnson appointed if not more so, to have attended pri- Thurgood Marshall as the first African vate and Ivy League schools. American member of the Court. When In terms of political party affilia- Marshall retired in 1991, President tion, little difference is seen between George H.W. Bush, father of President trial and appellate court appoint- George W. Bush, replaced him with ments. However, appeals judges have a another African American, Clarence slight tendency to be more active in Thomas. In 1981 the gender barrier their respective parties than their col- was broken when President Ronald leagues on the trial bench. Reagan named Sandra Day O’Connor The Clinton initiative to make the to the Court, and 13 years later she was bench more accurately reflect U.S. gen- joined by Ruth Bader Ginsburg. der and racial demographics is evident As for the nonpolitical occupations in the ranks of the appellate judges as of the justices, all 108 had legal train- well. A third of his appointees were ing and all had practiced law at some 144 OUTLINE OF THE U.S. LEGAL SYSTEM

stage in their careers. Only 22 percent that judges be native-born citizens or had state or federal judicial experience legal residents, no requirement that immediately prior to their appoint- judges even have a law degree. ments, although more than half had served on the bench at some time be- Informal Requirements fore their nomination to the Supreme At least four vital although informal Court. As with their colleagues in the factors determine who sits on the fed- lower federal judiciary, the justices were eral bench in America: professional much more likely to have been politi- competence, political qualifications, cally active than the average American, self-selection, and the element of luck. and virtually all shared many of the ideological and political orientations Professional Competence: Although of their appointing president. candidates for U.S. judicial posts do not have to be attorneys, it has been QUALIFICATIONS OF the custom to appoint lawyers who FEDERAL JUDGES have distinguished themselves profes- espite the absence of formal sionally. Although the political rules qualifications for a federal may allow a president to reward an old Djudgeship, there are well- ally with a seat on the bench, tradition defined informal requirements. has created an expectation that the would-be judge have some reputation Formal Qualifications for professional competence, the more No constitutional or statutory qualifi- so as the judgeship in question goes cations are stipulated for serving on from the trial court to the appeals the Supreme Court or the lower feder- court to the Supreme Court level. al courts. The Constitution merely in- dicates that “the judicial Power of the Political Qualifications: Most nomi- United States, shall be vested in one nees for judicial office have some supreme Court” as well as in any lower record of political activity for two rea- federal courts that Congress may es- sons. First, to some degree judgeships tablish (Article III, Section 1) and that are still considered part of the political the president “by and with the Advice patronage system; those who have and Consent of the Senate, shall ap- served the party are more likely to be point...Judges of the supreme Court” rewarded with a federal post than (Article II, Section 2). Congress has those who have not. Second, some po- applied the same selection procedure litical activity on the part of the to the appeals and the trial courts. would-be judge is often necessary, be- There are no exams to pass, no mini- cause otherwise the candidate would mum age requirement, no stipulation simply not be visible to the president, CHAPTER 7: FEDERAL JUDGES 145

senator(s), or local party leaders who cal operatives. The Federal Bureau of send forth the names of candidates. Investigation (FBI), an arm of the Jus- tice Department, customarily per- Self-Selection: While many consider forms a routine security check. After it undignified and lacking in judicial the nomination is announced to the temperament for someone to an- public, various interest groups that nounce publicly a desire for a federal believe they have a stake in the ap- judgeship, some would-be jurists or- pointment may lobby for or against chestrate discreet campaigns on their the candidate. Also, the candidate’s own behalf or at least pass the word qualifications will be evaluated by a that they are available for judicial serv- committee of the American Bar Asso- ice. Few will admit to seeking an ap- ciation. The candidate’s name is sent pointment actively, but credible anec- to the Senate Judiciary Committee, dotes suggest that attorneys often which conducts an investigation of the position themselves in such a way that nominee’s fitness for the post. If the their names will come up when there committee’s vote is favorable, the is a vacant seat to fill. nomination is sent to the floor of the Senate, where it is either approved or The Element of Luck: A good meas- rejected by a simple majority vote. ure of happenstance exists in virtually all judicial appointments. Being a The President member of the right party at the right Technically, the president nominates time or being visible to the power bro- all judicial candidates, but historically kers at the right moment often has as the chief executive has been more in- much to do with becoming a judge as volved in appointments to the Supreme one’s professional background. Court than to the lower courts. This is so for two major reasons. THE FEDERAL SELECTION First, Supreme Court appoint- PROCESS AND ITS ments are seen by the president — and PARTICIPANTS by the public at large — as generally he framework of judicial selec- more important and politically signif- tion is the same for all federal icant than openings on the lesser tri- Tjudges, although the roles of bunals. Presidents often use their few the participants vary depending on opportunities for High Court the level of the U.S. judiciary. All nom- appointments to make a political inations are made by the president statement or to set the tone of their after due consultation with the White administration. For example, during House staff, the attorney general’s of- the period of national stress prior to fice, certain senators, and other politi- U.S. entry into World War II, Democ- 146 OUTLINE OF THE U.S. LEGAL SYSTEM

ratic President Franklin D. Roosevelt the appointment process for district elevated Republican Harlan Fiske judges. Under senatorial courtesy, sen- Stone to chief justice as a gesture of ators of the president’s political party national unity. In 1969 President who are from the home state of the Richard Nixon used his appointment nominee are asked their opinions of of the conservative Warren Burger to the candidate by the Senate Judiciary fulfill his campaign pledge to restore Committee. In expressing their views “law and order.”And President Ronald about a particular candidate, these Reagan in 1981 hoped to dispel his senators are in a position to virtually reputation for being unsympathetic veto a nomination. Senatorial courtesy toward the women’s movement by does not apply to appellate court being the first to name a woman to the appointments, although it is custom- High Court. ary for presidents to defer to senators A second reason why presidents are of their party from states that make up likely to devote more attention to the appellate court circuit. Supreme Court appointments and less to lower court appointments is that The Department of Justice tradition has allowed for individual Assisting the president and the White senators and local party leaders to in- House staff in the judicial selection fluence, and often dominate, lower process are the two key presidential court appointments. The practice appointees in the Justice Department known as senatorial courtesy is part of — the attorney general of the United

President Lyndon B. Johnson, right, appointed the first African American member of the Supreme Court, Thurgood Marshall, left, in 1967. CHAPTER 7: FEDERAL JUDGES 147

States and the deputy attorney is dominant, and their role in the general. Their primary job is to seek choice of appeals court judges is out candidates for federal judicial minimal. However, in the selection of posts who conform to general criteria U.S. trial judges their impact is formi- set by the president. Once several dable, especially when appointments names are obtained, the staff of the occur in states in which neither sena- Justice Department will subject each tor is of the president’s political party. candidate to further scrutiny. They In such cases the president will be may order an FBI investigation of the more likely to consult with state candidate’s character and background; leaders of his own party rather than they will usually read copies of all with the state’s senators. articles or speeches the candidate has written or evaluate a sitting judge’s Interest Groups written opinions; they might check A number of pressure groups in the with local party leaders to determine United States, representing the whole that the candidate is a party faithful political spectrum from left to right, and is in tune with the president’s often lobby either for or against judi- major public policy positions. cial nominations. Leaders of these In the case of district judge ap- groups — civil liberties, business, or- pointments, where names are often ganized labor, civil rights — have little submitted by home-state senators, the hesitation about urging the president Justice Department’s function is more to withdraw the nomination of some- that of screener than of initiator. Re- one whose political and social values gardless of who comes up with a list of are different from their own or about names, the Justice Department’s pri- lobbying the Senate to support the mary duty is to evaluate the candi- nomination of someone who is favor- date’s personal, professional, and ably perceived. Interest groups lobby political qualifications. In performing for and against nominees at all levels this role the department may work of the federal judiciary. closely with the White House staff, with the senators involved in the nom- The American Bar Association ination, and with party leaders who (ABA) may wish to have some input in For more than five decades, the Com- choosing the nominee. mittee on the Federal Judiciary of the ABA has played a key role in evalu- State and Local Party Leaders ating the professional credentials of Regional party leaders have little to say potential nominees for positions on in the appointment of Supreme Court the federal bench. The committee, justices, where presidential prerogative whose 15 members represent all the 148 OUTLINE OF THE U.S. LEGAL SYSTEM

The President nominates all federal judicial candidates, but individual senators and local party leaders traditionally wield a lot of influence in the case of lower court appointments. Above, two U.S. district court judges presiding in a naturalization ceremony in New York State. Center, President George W. Bush congratulates his nominees to federal judgeships. Bottom, Senior Judge Constance Baker Motley, right, of the U.S. District Court for the Southern District of New York speaks at a panel discussion. CHAPTER 7: FEDERAL JUDGES 149

U.S. circuits, evaluates candidates on and a few scholars have taken the posi- the basis of three criteria: judicial tem- tion that the Senate ought quietly to go perament, professional competence, along with the presidential choices un- and integrity. A candidate approved by less overwhelmingly strong reasons the committee is rated either “quali- exist to the contrary. Other scholars fied” or “well qualified,” whereas an and most senators have held the view unacceptable candidate is stamped that the Senate has the right and the with a “not qualified” label. obligation to make its own decision regarding the nominee. In practice the The Senate Judiciary Committee role of the Senate in the judicial confir- The rules of the Senate require its Ju- mation process has varied, depending diciary Committee to consider all on the level of the federal judgeship nominations to the federal bench and that is being considered. to make recommendations to the Sen- For district judges the norm of senate as a whole. Its role is thus to screen atorial courtesy prevails. That is, if the individuals who have already been president’s nominee is acceptable to nominated, not to suggest names of the senator(s) of the president’s party possible candidates. The committee in the state in which the judge is to sit, holds hearings on all nominations, at the Senate is usually happy to confirm which time witnesses are heard and the appointment. For appointments to deliberations take place behind closed the appeals courts, senatorial courtesy doors. The hearings for district court does not apply, since the vacancy to be appointments are largely perfunctory filled covers more than just the state of because the norm of senatorial cour- one or possibly two senators. But sen- tesy has, for all intents and purposes, ators from each state in the circuit in already determined whether the can- which the vacancy has occurred cus- didate will be acceptable to the Senate. tomarily submit names of possible However, for appeals court nominees candidates to the president. An un- — and surely for an appointment to written rule is that each state in the cir- the Supreme Court — the committee cuit should have at least one judge on hearing is a serious proceeding. that circuit’s appellate bench. As long as the norms are adhered to and the The Senate president’s nominee has reasonably The final step in the judicial appoint- good qualifications, the Senate as a ment process for federal judges is a whole usually goes along with the rec- majority vote by the Senate. Historical- ommendations of the chief executive. ly, two general views have prevailed of The Senate has been inclined to the Senate’s prescribed role. Presidents dispute the president if disagreement from the time of George Washington arises over a nominee’s fitness for the 150 OUTLINE OF THE U.S. LEGAL SYSTEM

High Court. Since 1789, presidents Not only does the United States have sent the names of 144 Supreme lack formalized training procedures Court nominees to the Senate for its for the judicial profession, but there is advice and consent. Of this number, an assumption that being a lawyer for 30 were either rejected or “indefinitely a decade or so is all the experience one postponed” by the Senate, or the needs to be a judge. On the contrary, names were withdrawn by the presi- becoming a judge in America requires dent. Thus presidents have been suc- a good deal of freshman socialization cessful about 79 percent of the time, (short-term learning and adjustment and their success rate seems to be im- to the new role) and occupational so- proving, given that as many as one- cialization (on-the-job training over a third of the nominations were rejected period of years). by the Senate in the 19th century. The Typical new trial court appointees record shows that presidents have met may be first-rate lawyers and experts with the most success in getting their in a few areas of the law in which they High Court nominations approved have specialized. As judges, however, when the nominee comes from a non- they are expected to be experts on all controversial background and has legal subjects, are required to engage middle-of-the-road political leanings, in judicial duties usually unrelated to and when the president’s party also any tasks they performed as lawyers controls the Senate, or at least a ma- (for example, sentencing), and are jority shares the president’s basic atti- given a host of administrative assign- tudes and values. ments for which they have had no prior experience (for example, learn- THE JUDICIAL ing how to docket efficiently several SOCIALIZATION PROCESS hundred diverse cases). n college and law school, future At the appeals court level there judges acquire important analytic is also a period of freshman socializa- Iand communication skills, in ad- tion — despite the circuit judge’s dition to the basic substance of the possible prior judicial experience — law. After a couple of decades of legal and former trial judges appear to practice, the future judge has learned a make the transition more easily. good bit about how the courts and the During the transition time, circuit law actually work and has specialized judges tend to speak less for the court in several areas of the law. Despite all than their more experienced col- this preparation, sometimes called leagues. They often take longer to “anticipatory socialization,” most new write opinions, defer more often judges in America still have a lot to to senior colleagues, or experience a learn about being a judge. period of indecision. CHAPTER 7: FEDERAL JUDGES 151

The learning process for new the law schools — the key instructors Supreme Court justices is even harder. tend to be seasoned judges whose real- As with new appeals court judges, life experience on the bench novice Supreme Court justices tend commands the respect of the new to defer to senior associates, to write members of the federal judiciary. fewer majority and dissenting opin- What is the significance of this so- ions, and to manifest a degree of cialization process for the operation of uncertainty. New High Court ap- the U.S. judicial-legal system? First, pointees may have more judicial the agents of socialization that are experience than their lower-court readily available to the novice jurists colleagues, but the fact that the allow the system to operate more Supreme Court is involved in broad smoothly, with a minimum of down judicial policy making — as opposed time. If new judges were isolated from to the error correction of the appeals their more experienced associates, ge- courts and the norm enforcement of ographically or otherwise, they would the trial courts — may account for require more time to learn the fine their initial indecisiveness. points of their trade and presumably a Given the need on the part of greater number of errors would occur all new federal jurists for both fresh- in litigation. man and occupational socialization, Second, the fact that the system is where do they go for instruction? able to provide its own socialization For both the appeals court judges — that the older, experienced jurists and their trial court peers, most of train the novices — serves as a sort of their training comes from their glue that helps bond the system to- more senior, experienced colleagues gether. It allows the judicial values, on the bench — particularly the chief practices, and orientations of one gen- judge of the circuit or district. Like- eration of judges to be passed on to wise on the Supreme Court, older as- another. It gives continuity and a sense sociates, often the chief justice, play a of permanence to a system that oper- primary part in passing on to novice ates in a world where chaos and ran- justices the essential rules and values dom behavior are common. of the Court. Training seminars provided by the THE RETIREMENT AND Federal Judicial Center for newly ap- REMOVAL OF JUDGES pointed judges also play an important udges cease performing their role in the training and socialization judicial duties when they retire of new jurists. Although some of these Jby choice or because of ill health seminars are conducted by outsider or death, or when they are subjected specialists — subject matter experts in to the disciplinary actions of others. 152 OUTLINE OF THE U.S. LEGAL SYSTEM

Disciplinary Action Against courtroom, whose personal habits Federal Judges negatively affect his or her perform- All federal judges appointed under the ance in court? Historically, little provisions of Article III of the Consti- has been done in such cases other tution hold office “during good Be- than issuance of a mild reprimand havior,” which means in effect for life by colleagues. In recent decades, or until they choose to step down. The however, actions have been taken to only way they can be removed from discipline judges. the bench is by impeachment (indict- On October 1, 1980, a new statute ment by the House of Representatives) of Congress took effect. Titled the Ju- and conviction by the Senate. In ac- dicial Councils Reform and Judicial cordance with constitutional require- Conduct and Disability Act, the law ments (for Supreme Court justices) has two distinct parts. The first part and legislative standards (for appeals authorizes the Judicial Council in and trial court judges), impeachment each circuit, composed of both ap- may occur for “Treason, Bribery, or peals and trial court judges and other high Crimes and Misde- presided over by the chief judge of meanors.” An impeached jurist would the circuit, to “make all necessary and face trial in the Senate, which could appropriate orders for the effective convict by a vote of two-thirds of the and expeditious administration of members present. justice within its circuit.” The second Since 1789 the House of Represen- part of the act establishes a statutory tatives has initiated impeachment complaint procedure against judges. proceedings against only 13 jurists — Briefly, it permits an aggrieved party although about an equal number of to file a written complaint with the judges resigned just before formal clerk of the appellate court. The chief action was taken against them. Of judge then reviews the charge and these 13 cases, only seven resulted may dismiss it if it appears frivolous, in a conviction, which removed them or for a variety of other reasons. If the from office. complaint seems valid, the chief Although outright acts of criminal- judge must appoint an investigating ity by those on the bench are few, a committee consisting of himself or gray area of misconduct may put herself and an equal number of trial offending judges somewhere between and circuit court judges. After an in- acceptable and impeachable behavior. quiry the committee reports to the What to do with the federal jurist who council, which has several options: hears a case despite an obvious the judge may be exonerated; if the conflict of interest, who consistently offender is a bankruptcy judge or demonstrates biased behavior in the magistrate, he or she may be re- CHAPTER 7: FEDERAL JUDGES 153

moved; and an Article III judge may retire with full pay and benefits under be subject to private or public what is called the rule of 80; that is, reprimand or censure, certification of when the sum of a judge’s age and disability, request for voluntary resig- number of years on the bench is 80. nation, or prohibition against further Congress has also permitted judges to case assignments. However, removal go on senior status instead of accept- of an Article III judge is not permit- ing full retirement. In exchange for a ted; impeachment is still the only re- reduced caseload they are permitted course. If the council determines that to retain their office and staff and — the conduct might constitute equally important — the prestige and grounds for impeachment, it will no- self-respect of being an active judge. tify the Judicial Conference, which in Judges often time their resignations turn may transmit the case to the to occur when their party controls the U.S. House of Representatives for presidency so that they will be reconsideration. placed by a jurist of similar political and judicial orientation. A 1990 study Disability of Federal Judges found that especially since 1954, “ju- Perhaps more problematic than re- dicial retirement/resignation rates moving jurists for misconduct is the have been strongly influenced by po- removal of those who have become litical/ideological considerations, and too old and infirm to carry out their infused with partisanship,” thus indi- judicial responsibilities effectively. cating that many jurists view them- Congress has tried with some success selves as part of a policy link between to tempt the more senior judges into the people, the judicial appointment retirement by making it financially process, and the subsequent decisions more attractive to do so. Since 1984 of the judges and justices. federal judges have been permitted to 154 OUTLINE OF THE U.S. LEGAL SYSTEM

QUALIFICATIONS AND BACKGROUNDS OF STATE JUDGES

Most state laws and lthough women constitute a slight majority of the constitutions provide AAmerican population and despite the upsurge in recent few rigid conditions for decades in the number of women in the legal profession, women are being a state judge. still underrepresented on the bench. Those who do serve as state jurists The vast majority of are much more likely to serve at the lower levels of the state the states do not judiciary than on the supreme require their justices of courts, although this varies greatly from one state to the next. As of the peace or magistrates the mid-1990s, only about 14 percent of all state judges were to have law degrees, women and 6 percent were either African American, Hispanic, or but such degrees are Asian American.

virtually required State judges, like their federal counterparts, have generally stayed (either formally or in in the region where they grew up and were educated. About three- practice) for trial and fourths of all state jurists were appellate judges. born in the state in which they serve, and less than a third went out of state for their undergraduate degrees or for their law degrees. This penchant for localism is also reflected in the patterns of work experience that state judges bring to the bench. For example, of those CHAPTER 7: FEDERAL JUDGES 155

serving on the state supreme court district attorneys, and only 3 percent bench, only 13 percent have any come from private criminal law prior federal experience, whereas practice. Of those serving on state 93 percent have some type of prior supreme courts, almost two-thirds state experience. came from the ranks of the intermediate appellate courts or Judges tend to be middle-aged when from the state trial courts. they assume the bench. State trial judges come to the bench at about THE SELECTION PROCESS age 46, which corresponds roughly FOR STATE JUDGES to the figure of 49 for federal trial judges. State appellate court judges t the state level a variety of tend to be slightly older than their methods are used to select trial court colleagues when they Ajurists, and each of these has become jurists — about 53, which is many permutations. Basically, approximately the same as their there are five routes to a judgeship federal equivalents. in any one of the 50 states: partisan election, nonpartisan election, In terms of political party affiliation, merit selection, gubernatorial state judges, whether they be elected appointment, and appointment by or appointed, tend to mirror the the legislature. party that dominates in the judge’s state. Also, the vast majority of state Election of Judges judges had been politically active before assuming the bench, whether The election of judges, on either a they were elected to the bench or partisan or a nonpartisan ballot, is appointed by a governor. the norm in the states. This method became popular during the time of Over half the state trial judges come President Andrew Jackson (1829- to the bench from the private 37), an era when Americans sought practice of law, and about a quarter to democratize the political process. were elevated from a lower court In practice, however, political party judgeship, such as a magistrate’s leaders often regard judicial position. Of those who practiced elections as indirect patronage to law, most reported a general practice reward the party faithful. Also, without specialization. About one in judges who must run for election five was recruited from the ranks of 156 OUTLINE OF THE U.S. LEGAL SYSTEM

are often forced to solicit campaign was Missouri in 1940, and ever since contributions from the lawyers and such schemes have come to be law firms that will eventually appear known as generic variants of before them in court — a potential “the Missouri Plan.” source of conflict of interest. Finally, voter turnout in judicial elections The states with Missouri-type plans is extremely low. Voters may know use a combination of elections and whom they prefer for president or appointments. The governor member of Congress or state appoints a judge from among several senator, but they may be unfamiliar candidates recommended by a with the persons running for nominating panel of five or more state judgeships. people, usually including attorneys (often chosen by the local bar As part of the Progressive movement association), nonlawyers appointed at the turn of the 20th century, by the governor, and sometimes a reformers sought to take some of senior local judge. Either by law or the partisanship out of judicial by implicit agreement, the governor elections by having judges run on a appoints someone from the nonpartisan basis. In principle they recommended list. After serving for would run on their ideas and a short period of time, often a year, qualifications, not on the basis of the newly appointed judge must which party they belonged to. stand for a special election, at which But even in these technically time he or she in effect runs on his nonpartisan states, the political or her record. (The voters are asked, parties endorse individual judicial “Shall Judge X be retained in candidates and contribute to their office?”) If the judge’s tenure is campaigns so that the candidates supported by the voters, as is acquire identification with one virtually always the case, the judge political party or another. will serve for a regular and fairly long term. Merit Selection Gubernatorial Appointment and Merit selection has been in use since Legislative Appointment the early 1900s as a preferred method of selecting judges. The first Today, judges are chosen by the state fully to adopt such a method governor or by the state legislature in only a handful of states. When judges are appointed by the CHAPTER 7: FEDERAL JUDGES 157

governor, politics almost invariably most common. Some states have comes into play. Governors tend to declining retirement benefit plans select individuals who have been for judges who serve beyond the active in state politics and whose desired tenure; that is, the longer activity has benefited either the judges stay on the bench, the lower governor personally or the their retirement benefits. governor’s political party or allies. Also, in making judicial Retirement plans, no matter how appointments the governor often effective in getting the older judge to bargains with local political leaders resign, are of little use against the or with state legislators whose younger jurist who is incompetent, support he or she needs. A governor corrupt, or unethical. Throughout may also use a judgeship to reward American history the states a legislator or local politician who have used procedures such as has given faithful political support impeachment, recall elections, and in the past. concurrent resolutions of the legislature to dismiss these judges. Only a few states still allow their These methods were only minimally legislators to appoint state judges. effective, however, either because Although a variety of criteria may be they proved to be politically used in choosing members of the difficult to put into operation or state supreme courts, when it comes because of their time-consuming, to filling the state trial benches, state cumbersome nature. legislators tend to turn to former members of the legislature. More recently, the states have begun to set up special commissions, THE RETIREMENT AND often made up of the judges REMOVAL OF JUDGES themselves, to police their own members. Such commissions are udges who are too old or unfit to not always effective, however, serve seem to be less of a prob- because judges are often loath to Jlem at the state level than at the expose a colleague to public censure federal level. A number of states have and discipline. mandatory retirement plans. Minimum ages for retirement range from 65 to 75, with 70 being the

CHAPTER8 IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES

A prosecuting attorney argues before the Washington State Supreme Court, one of the lower courts normally seen as the enforcers of the policies made by rulings by appellate courts, notably the U.S. Supreme Court. 160 OUTLINE OF THE U.S. LEGAL SYSTEM

After a court’s decision is reached, a to one study, as “independent variety of individuals — other judges, actors...who will not follow the lead of public officials, even private citizens higher courts unless conditions are fa- — may be called upon to implement vorable for their doing so.” the decision. This chapter looks at the various actors involved in the im- Lower-Court Discretion plementation process, their reactions Why do the lower-court judges have so to judicial policies, and the methods much discretion when it comes to im- by which they may respond to a plementing a higher court’s policy? In court’s decision. part, the answer may be found in the Depending upon the nature of the structure of the U.S. judicial system. court’s ruling, the judicial policy may The judiciary has always been charac- have a very narrow or a very broad im- terized by independence, decentraliza- pact. A suit for damages incurred in an tion, and individualism. Federal automobile accident would directly af- judges, for example, are protected by fect only the persons involved and per- life tenure and traditionally have been haps their immediate families. But the able to run their courts as they see fit. famous Gideon v. Wainwright (1963) Disciplinary measures are not at all decision has directly affected millions common, and federal judges have his- of people in one way or another. In torically had little fear of impeach- Gideon the Supreme Court held that ment. To retain their positions, the states must provide an attorney for in- state trial court judges generally have digent defendants in felony trials. only to keep the electorate satisfied. Scores of people — defendants, The discretion exercised by a lower- judges, lawyers, taxpayers — have felt court judge may also be a product of the effects of that judicial policy. the higher court’s decision itself. For example, following the famous school THE IMPACT OF HIGHER- desegregation case, Brown v. Board of COURT DECISIONS ON Education of Topeka (1954), the LOWER COURTS Supreme Court told federal district ppellate courts, notably the judges, who had the task of enforcing U.S. Supreme Court, often are the ruling, that the public schools were Aviewed as the most likely to make a prompt and reasonable start courts to be involved in policy mak- and then proceed with all deliberate ing, while the trial courts are generally speed to bring about desegregation. seen as norm enforcers. However, What constitutes a prompt and lower-court judges have a great deal of reasonable start? How rapidly must independence from the appellate a school district proceed in order to courts and may be viewed, according be moving with all deliberate speed? CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 161

The Supreme Court did not provide and unusual punishment in violation specific answers to these questions. of the Eighth Amendment to the Although not all High Court Constitution. Others voted to strike decisions are so open to interpreta- down the state laws because they were tion, a good number of them are. A applied in a discriminatory manner. court’s decision may be unclear for The uncertainty created by the 1972 several reasons. Sometimes the issue decision affected not only lower-court or subject matter may be so complex judges but also state legislatures. that it is difficult to fashion a clear The states passed a rash of widely policy. In obscenity cases, for instance, divergent death penalty statutes and the Supreme Court has had little caused a considerable amount of difficulty in deciding that porno- new litigation. graphic material is not entitled to A lower-court judge’s discretion protection as free speech under the in the implementation process may First Amendment to the Constitution. also be affected by the manner in Defining obscenity has proven to which a higher court’s policy is com- be another matter, however. Phrases municated. Certainly the court from such as “prurient interest,” “patently which a case has been appealed will be offensive,”“contemporary community informed of the decision. However, standards,” and “without redeeming systematic, formal efforts are not social value” have become common- made to inform other courts of the place in obscenity opinions, but these decision or to see that lower-court terms leave a good deal of room for judges have access to a copy of the subjective interpretation. opinion. The decisions that contain Policies established by collegial the new judicial policy are made avail- courts are often ambiguous because able to the public in printed form or the majority opinion is written to on the Internet, and judges are expect- accommodate several judges. The ma- ed to read them if they have the time jority opinion may also be accompa- and inclination. nied by several concurring opinions. Opinions of the Supreme Court, When this happens, lower court lower federal courts, and state appel- judges are left without a clear-cut late courts are available in a large precedent to follow. For example, number of courthouse, law school, in Furman v. Georgia (1972), the and university libraries. They are also Supreme Court struck down the death increasingly available on the Internet. penalty in several states, but for a This widespread availability does not variety of reasons. Some justices guarantee that they will be read and opposed the death penalty per se, on clearly understood, however. Many the ground that it constituted cruel lower-level state judges, such as jus- 162 OUTLINE OF THE U.S. LEGAL SYSTEM

tices of the peace and juvenile court court judge’s discretion may be to judges, are nonlawyers who have little interpret what the higher court’s interest or skill in reading complex decision means. judicial decisions. Finally, even those The manner in which a lower- judges who have an interest in higher- court judge interprets a policy estab- court decisions and the ability to lished by a higher court depends understand them do not have ade- upon a number of factors. Many quate time to keep abreast of all the policies are not clearly stated. Thus new opinions. reasonable people may disagree over Given these problems, how do the proper interpretation. Even policy judges become aware of upper-court pronouncements that do not suffer decisions? One way is to hear of them from ambiguity, however, are some- through lawyers presenting cases in times interpreted differently by differ- the lower courts. It is generally as- ent judges. sumed that the opposing attorneys A judge’s own personal policy pref- will present relevant precedents in erences will also have an effect upon their arguments before the judge. the interpretation he or she gives to a Those judges who have law clerks may higher-court policy. Judges come to also rely upon them to search out re- the courts with their own unique cent decisions from higher courts. background characteristics. Some are Thus some higher-court policies Republican, others are Democrat; one are not quickly and strictly enforced judge may be more lenient, another simply because lower-court judges are strict. They come from different re- not aware of them. Even those policies gions of the country. Some have been which lower-court judges are aware of prosecutors; others have been prima- may not be so clear to them. Either rily defense lawyers or corporate reason contributes to the discretion lawyers. In short, their backgrounds exercised by lower-court judges placed may influence their own particular in the position of having to imple- policy preferences. Thus the lower- ment judicial policies. court judges may read their own ideas into a higher-court policy. The result Interpretation by Lower Courts is that a policy may be enthusiastically One study noted that “important embraced by some judges yet totally policy announcements almost always rejected by others. require interpretation by someone other than the policy maker.” This Strategies Employed by Lower is certainly true in the case of judicial Courts policies established by appellate Judges who favor and accept a higher courts. The first exercise of a lower- court’s policy will naturally try to en- CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 163

force it and perhaps even expand Another strategy used by judges upon it. Some judges even have risked who are in basic disagreement with social ostracism and various kinds of a judicial policy is to apply it as harassment in order to implement narrowly as possible. One method policies they believed in but that were is for the lower-court judge to rule not popular in their communities. that a precedent is not controlling Judges who do not like a higher because factual differences exist be- court’s policy decision may imple- tween the higher-court case and the ment it sparingly or only under case before the lower courts. That is, duress. A judge who basically dis- because the two cases may be distin- agrees with a policy established by a guished, the precedent does not have higher court can employ a number of to be followed. strategies. One rarely used strategy is defiance, whereby a judge simply does Influences on Lower-Court Judges not apply the higher court’s policy in a At times the lower courts must decide case before a lower court. cases for which no precise standards Such outright defiance is highly have been provided by the higher unusual. Other strategies are not so courts. Whenever this occurs, lower- extreme. One is simply to avoid hav- court judges must turn elsewhere ing to apply the policy. A case may be for guidance in deciding a case before disposed of on technical or procedur- them. One study notes that lower- al grounds so that the judge does not court judges in such a position have to rule on the actual merits of the “may take their cues on how to decide case. It may be determined, for exam- a particular case from a wide variety ple, that the plaintiff does not have of factors including their party standing to sue or that the case has affiliation, their ideology, or their become moot because the issue was regional norms.” resolved before the trial commenced. Lower-court judges sometimes avoid CONGRESSIONAL accepting a policy by declaring a INFLUENCES ON THE portion of the higher-court decision IMPLEMENTATION PROCESS to be “dicta” (Latin, meaning an nce a federal judicial decision authoritative declaration). Dicta refers is made, Congress can offer a to the part of the opinion that does Ovariety of responses: It may not contribute to the central logic aid or hinder the implementation of a of the decision. It may be useful as decision. In addition, it can alter a guidance but is not seen as binding. court’s interpretation of the law. Fi- What constitutes dicta is open to nally, Congress can mount an attack varying interpretations. on an individual judge. 164 OUTLINE OF THE U.S. LEGAL SYSTEM

In the course of deciding cases, the Besides ruling on statutes, the fed- courts are often called upon to inter- eral courts interpret the Constitution. pret federal statutes. On occasion the Congress has two methods to reverse judicial interpretation may differ from or alter the effects of a constitutional what a majority in Congress intended. interpretation it does not like. First, When that situation occurs, Congress Congress can respond with another can change the statute in new legisla- statute designed to avoid the constitution that in effect overrules the court’s tional problems. Second, a constitu- initial interpretation. However, the tional decision can be overturned vast majority of the federal judiciary’s directly by an amendment to the statutory decisions are not changed U.S. Constitution. Although many by Congress. such amendments have been intro-

President Lyndon B. Johnson, after signing into law the Civil Rights Act of 1964, reaches to shake hands with Dr. Martin Luther King, Jr. This law was an example of Congress’ key role in implementing a decision by the Supreme Court, in this instance, school desegregation policy. CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 165

duced over the years, it is not easy support for a policy of desegregated to obtain the necessary two-thirds public schools by passing the Elemen- vote in each house of Congress to tary and Secondary Education Act. propose the amendment and then This act gave the federal government a achieve ratification by three-fourths much larger role in financing public of the states. Only four Supreme education and thus made the threat to Court decisions in the history of cut off federal funds a serious problem the Court have been overturned by for many segregated school districts. constitutional amendments. Such support from Congress was sig- Congressional attacks on the fed- nificant because the likelihood of eral courts in general and on certain compliance with a policy is increased judges in particular are another when there is unity between branches method of responding to judicial deci- of government. sions. These attacks may take the form of verbal denouncements by a mem- EXECUTIVE BRANCH ber of Congress, threats of impeach- INFLUENCES ON THE ment of sitting judges, or more IMPLEMENTATION PROCESS thorough investigations of the judicial t times the president may be philosophies of potential nominees to called upon directly to imple- the federal bench. Ament a judicial decision. An Congress and the federal courts are example is United States v. Nixon not natural adversaries, however. Re- (1974). A Senate committee investiga- taliations against the federal judiciary tion into the cover-up of a break-in at are fairly rare, and often the two the Democratic Party headquarters in branches work in harmony toward the Watergate Hotel in Washington, similar policy goals. For example, D.C., led directly to high government Congress played a key role in imple- officials working close to the presi- menting the Supreme Court’s school dent. It was also revealed during the desegregation policy by enacting the investigation that President Richard Civil Rights Act of 1964, which em- Nixon had installed an automatic powered the Justice Department to taping system in the Oval Office. Leon initiate suits against school districts Jaworski, who had been appointed that failed to comply with the Brown v. special prosecutor to investigate the Board of Education decision. Title VI Watergate affair, subpoenaed certain of the Act also provided a potent tapes that he felt might provide weapon in the desegregation struggle evidence needed in his prosecution of by threatening the denial of federal high-ranking officials. Nixon refused funds to schools guilty of segregation. to turn over the tapes on grounds of In 1965 Congress further solidified its executive privilege and the need for 166 OUTLINE OF THE U.S. LEGAL SYSTEM

confidentiality in discussions leading size specific issues according to the to presidential decisions. The Supreme overall policy goals of the president. Court’s decision instructed the presi- The other side of the coin, however, is dent to surrender the subpoenaed that the Justice Department may, at its tapes to Judge John J. Sirica, who discretion, de-emphasize specific poli- was handling the trials of the govern- cies by not pursuing them vigorously ment officials. Nixon did comply with in the courts. the High Court’s directive and thus Another official who is in a a decision was implemented that position to influence judicial policy quickly led to his downfall. Within two making is the solicitor general. Histor- weeks he resigned from the presiden- ically, this official has been seen as cy, in August 1974. having dual responsibility to both the Even when not directly involved in judicial and executive branches. Be- the enforcement of a judicial policy, cause of the solicitor general’s close re- the president may be able to influence lationship with the Supreme Court, its impact. Because of the status and this official is sometimes referred to as visibility of the position, a president, the “tenth justice.”The solicitor gener- simply by words and actions, may en- al is often seen as a counselor who ad- courage support for, or resistance to, a vises the Court about the meaning of new judicial policy. federal statutes and the Constitution. A president can propose legislation The solicitor general also determines that directly affects the courts. Presi- which of the cases involving the feder- dent Franklin D. Roosevelt, for inal government as a party will be stance, unsuccessfully urged Congress appealed to the Supreme Court. Fur- to increase the size of the Supreme thermore, he or she may file an amicus Court so he could “pack” it with jus- curiae brief urging the Court to grant tices who supported his administra- or deny another litigant’s certiorari tion’s legislative agenda. petition or supporting or opposing a The appointment power also gives particular policy being urged upon the the president an opportunity to influ- High Court. ence federal judicial policies, as the Many judicial decisions are actually president appoints all federal judges, implemented by the various depart- with the advice and consent of ments, agencies, bureaus, and com- the Senate. missions of the executive branch. For A president can influence judicial example, the Supreme Court decision policy making through the activities of in Frontiero v. Richardson (1973) the Justice Department, a part of the called upon the U.S. Air Force to play executive branch. The attorney gener- the major implementation role. The al and staff subordinates can empha- Frontiero case questioned congres- CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 167

sional statutes that provided benefits committed may choose from a variety for married male members of the Air of options to remedy the wrong. Force but did not provide similar ben- Among the more common options efits for married female members. are process remedies, performance Lieutenant Sharron Frontiero chal- standards, and specified remedial lenged the policy on the ground that it actions. Process remedies provide for constituted sexual discrimination. A such things as advisory committees, federal district court in Alabama citizen participation, educational pro- issued a decision upholding the Air grams, evaluation committees, dispute Force policy. Lieutenant Frontiero ap- resolution procedures, and special pealed to the Supreme Court, which masters to address a problem and overturned the lower court decision come up with a solution. The remedies and required the Air Force to imple- do not specify a particular form of ment a new policy. action. Performance standards call for specific remedies — for example, a OTHER IMPLEMENTERS certain number of housing units or he implementation of judicial schools or a certain level of staffing policies is often performed by in a prison or mental health facility. Tstate as well as federal officials. The specific means of attaining these Many of the Supreme Court’s criminal goals are left to the discretion of the due process decisions, such as Gideon officials named in the suit. Examples v. Wainwright and Miranda v. Arizona of specified remedial actions are (1966), have been enforced by state school busing, altered school atten- court judges and other state officials. dance zones, and changes in the size State and local police officers, for and condition of prison cells or hospi- instance, have played a major role in tal rooms. This type of remedy pro- implementing the Miranda require- vides the defendant with no flexibility ment that criminal suspects must be concerning the specific remedy or the advised of their rights. The Gideon means of attaining it. ruling that an attorney must be pro- Implementation of these remedial vided at state expense for indigent decrees often devolves, at least partial- defendants in felony trials has been ly, to the state legislatures. An order implemented by public defenders, calling for a certain number of prison local bar associations, and individual cells or a certain number of guards in court-appointed lawyers. the prison system might require new State legislators and executives state expenditures, which the legisla- are also frequently drawn into the ture would have to fund. Similarly, an implementation process. A judge who order to construct more modern men- determines that a wrong has been tal health facilities or provide more 168 OUTLINE OF THE U.S. LEGAL SYSTEM

modern equipment would mean an boards and school superintendents, increase in state expenditures. Gover- along with federal district judges, bore nors would also be involved in carry- the brunt of implementing that deci- ing out these types of remedial decrees sion. Their role in this process has because they typically are heavily in- affected the lives of millions of school- volved in state budgeting procedures. children, parents, and taxpayers all Also, they may sign or veto laws. over America. Sometimes judges appoint certain The second area that has involved individuals to assist in carrying out the school boards is the Supreme Court’s remedial decree. Special masters are policies on religion in the public usually given some decision-making schools. In Engel v. Vitale (1962), the authority. Court-appointed monitors Court held unconstitutional a New are also used in some situations, but York requirement that a state-written they do not relieve the judge of deci- prayer be recited daily in the public sion-making responsibilities. Instead, schools. Some school districts re- the monitor is an information gather- sponded to the decision by requiring er who reports on the defendant’s instead the recitation of a Bible verse progress in complying with the reme- or the Lord’s Prayer. Their reasoning dial decree. When orders are not was that since the state did not write implemented or when barriers of the Lord’s Prayer or the Bible, they one kind or another block progress were not violating the Court’s policy. in providing a remedy, a judge may A year later, the Supreme Court struck name someone as a receiver and down these new practices, pointing empower him or her to disregard nor- out that the constitutional violation mal organizational barriers to get the lay in endorsing the religious activity job done. and its determination did not depend One group of individuals has been on whether the state had written deeply involved in implementing judi- the prayer. cial policies: the thousands of men and women who constitute school THE IMPACT OF JUDICIAL boards throughout the country. Two POLICIES major policy areas stand out as having he ultimate importance of embroiled school board members in the Supreme Court’s decisions considerable controversy as they faced Tdepends primarily on their the task of trying to carry out Supreme impact on American society as a Court policy. whole. A few policies that have had First, when the High Court ruled significant effects are in the areas of in 1954 that segregation has no racial equality, criminal due process, place in the public schools, school and abortion. CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 169

Racial Equality the national political agenda. Their Many point to the Supreme Court’s persistence paid off with passage of decision in Brown v. Board of Educa- the 1964 Civil Rights Act, 10 years tion as the impetus for the drive for after the Brown decision. That act, racial equality in the United States. which had the strong support of However, Congress and the executive Presidents John F. Kennedy (1961-63) branch were also involved in the and Lyndon B. Johnson (1963-69), process of ensuring implementation squarely placed Congress and the of the decision’s desegregation policy. president on record as being support- Still, the courts initiated the pursuit ive of racial equality in America. for a national policy of racial equality One other aspect of the federal ju- with the Brown ruling. diciary’s importance in the policy- In the beginning, the court deci- making process is illustrated by the sions were often vague, leading to eva- Brown decision and the cases that fol- sion of the new policy. The Supreme lowed it. Although the courts stood Court justices and many lower federal virtually alone in the quest for racial judges were persistent, however, and equality for several years, their deci- kept the policy of racial equality on sions did not go unnoticed. Charles A.

Virginia Military Institute cadets say grace before their evening meal of April 2, 2001, shortly after the American Civil Liberties Union filed suit to force the school to drop the prayers. The role of religion in public schools has been one of the most disputed issues before the U.S. court system in the past 40 years. 170 OUTLINE OF THE U.S. LEGAL SYSTEM

Johnson and Bradley C. Canon argue Criminal Due Process in Judicial Policies: Implementation Judicial policy making in the area of and Impact that the Brown decision criminal due process is most closely “was a highly visible Court decision, a associated with Earl Warren’s tenure judicial attempt to generate one of the as U.S. chief justice (1953-69). Speak- greatest social reforms in American ing of this era, Archibald Cox, a for- history. And certainly in the years that mer solicitor general, said, “Never has followed, African Americans and their there been such a thorough-going re- allies brought considerable pressures form of criminal procedure within so on other governmental bodies to de- short a time.” The Warren Court deci- segregate the schools. Indeed, the sions were aimed primarily at chang- pressures soon went far beyond ing the procedures followed by the schools to demand integration of all states in dealing with criminal defen- aspects of American life.” dants. By the time Warren left the Supreme Court, new policies had been established to deal with a wide range of activities; among the more far-reaching were Mapp v. Ohio (1961), Gideon v. Wainwright, and Mi- randa v. Arizona. The Mapp decision extended the exclusionary rule, which had applied to the national government for a number of years, to the states. This rule required state courts to exclude from trial evidence that had been illegally seized by the police. Although some police departments, especially in major urban areas, have tried to establish specific guidelines for their officers to follow in obtaining evidence, such efforts have not been universal. Because of variations in police practices and differing lower- After Clarence Earl Gideon petitioned the Supreme Court that he had not had legal court interpretations of what con- representation before a Florida court, the stitutes a valid search and seizure, Justices ruled in 1963 that indigent implementation of Mapp has not defendants must be provided attorneys been consistent throughout the when they go to trial in felony cases. United States. CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 171

U.S. Chief Justice Earl Warren, seen here in a 1961 photo. During his tenure, 1953-69, the Supreme Court sparked major reforms in criminal procedure through landmark decisions, including Gideon v. Wainwright and Miranda v. Arizona.

Perhaps even more important in ary rule. Furthermore, subsequent reducing the expected impact of Mapp Supreme Court decisions have broad- was the lack of solid support for the ened the scope of legal searches, thus exclusionary rule among the Supreme limiting the applicability of the rule. Court justices. The decision was not a The Gideon v. Wainwright decision unanimous one to begin with, and held that indigent defendants must be over the years some justices have provided attorneys when they go to been openly critical of the exclusion- trial in a felony case in the state courts. 172 OUTLINE OF THE U.S. LEGAL SYSTEM

Many states routinely provided attor- have an attorney present during ques- neys in such trials even before the tioning. Suspects must also be advised Court’s decision. The other states that they have a right to remain silent began to comply in a variety of ways. and that any statement they make may Public defender programs were estab- be used in court; that if they cannot lished in many regions. In other areas, afford an attorney, one will be provid- local bar associations cooperated with ed at state expense; and that they have judges to implement some method the right to stop answering questions of complying with the Supreme at any time. These requirements are so Court’s new policy. clearly stated that police departments The impact of the Gideon decision have actually copied them down on is clearer and more consistent than cards for officers to carry in their shirt that of Mapp. One reason, no doubt, is pockets. Then, when suspects are the fact that many states had already taken into custody, the police officers implemented the policy called for by simply remove the card and read the Gideon. It was simply more widely ac- suspects their rights. cepted than the policy established by In terms of whether police Mapp. The policy announced in officers read the Miranda rights to Gideon was also more sharply defined persons they arrest, there has been a than the one in Mapp. Although the high level of compliance with the Court did not specify whether a public Supreme Court policy. Some re- defender or a court-appointed lawyer searchers, however, have questioned must be provided, it is still clear that the impact of Miranda because of the the indigent defendant must have the method by which suspects may be ad- help of an attorney. Also, the Supreme vised of their rights. It is one thing to Court under the next chief justice, read to a person from a card; it is an- Warren Burger (1969-86), did not re- other to explain what is meant by the treat from the Warren Court’s policy High Court’s requirements and then of providing an attorney for indigent try to make the suspect understand defendants as it did in the search and them. Looked at in this manner, the seizure area addressed by Mapp.All impact of the policy announced in these factors add up to a more recog- Miranda is not quite as clear. nizable impact for the policy an- The Burger Court did not show an nounced in Gideon. inclination to lend its solid support to In Miranda v. Arizona the Supreme the Warren Court’s Miranda policy. Court went a step further and ruled Although Miranda has not been over- that police officers must advise sus- ruled, its impact has been limited pects taken into custody of their con- somewhat. In Harris v. New York stitutional rights, one of which is to (1971), for example, the Burger Court CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 173

ruled that statements made by an indi- In sum, the impact of the Supreme vidual who had not been given the Mi- Court’s criminal justice policies has randa warning could be used to chal- been mixed, for several reasons. In lenge the credibility of his testimony at some instances ambiguity is a prob- trial. Then, the Court, under the lead- lem. In other cases, less than solid sup- ership of Chief Justice William Rehn- port for the policy may be evident quist (1986- ), ruled in Davis v. United among justices or support erodes States (1994) that police are not re- when one Court replaces another. All quired to stop questioning a suspect these variables translate into greater who makes an ambiguous request to discretion for the implementers. have an attorney present. Congress reacted to Miranda,two Abortion years after the decision, by enacting In Roe v. Wade (1973) the Supreme a statute that in essence made the Court ruled that a woman has an admissibility of a suspect’s statements absolute right to an abortion during turn solely on whether they were made the first trimester of pregnancy; that voluntarily. The statute received little a state may regulate the abortion attention until 1999 when the Fourth procedure during the second trimester Circuit Court of Appeals, in a case in order to protect the mother’s involving an alleged bank robber who health; and that, during the third moved to suppress a statement he trimester, the state may regulate or made to the FBI on grounds that he even prohibit abortions, except where had not received “Miranda warnings” the life or health of the mother before being interrogated, held that is endangered. the statute was satisfied because his The reaction to this decision was statement was voluntary. The court immediate, and primarily negative. It of appeals decision raised the came in the form of letters to individ- question whether the congressional ual justices, public speeches, the intro- statute or the High Court’s Miranda duction of resolutions in Congress, decision should be followed. On and the advocacy of “right to life” June 26, 2000, the U.S. Supreme amendments in Congress. Given the Court held that Miranda, being a controversial nature of the Court’s de- constitutional decision of the Court, cision, hospitals did not wholeheart- could not in effect be overruled by edly offer to support the decision by an act of Congress. In other words, changing their abortion policies. the Miranda decision still governs the Reaction to the Court’s abortion admissibility of statements made policy has not only continued but also during custodial interrogation in state has moved into new areas. Recent and federal courts. presidential elections have seen the 174 OUTLINE OF THE U.S. LEGAL SYSTEM

two major party platforms and can- amendments to appropriations bills didates take opposing stands on the preventing the expenditure of federal abortion issue. Democratic platforms funds for elective abortions. In 1980 and nominees have generally ex- the Supreme Court, in a five-to-four pressed support for Roe v. Wade, vote, upheld the constitutionality of whereas the Republican platforms such a prohibition. and contenders have noted opposition Most of the legislation in the after- to the Supreme Court’s decision. math of the Roe decision has been at Congress has also been a hotbed of the state level. One study reports that activity in response to the Supreme within two years of the decision 32 Court’s abortion decision. Unable to states had passed 62 laws relating to secure passage of a constitutional abortion, most aimed at limiting ac- amendment to overturn Roe v. Wade, cess to abortions, regulating abortion antiabortion — also known as pro- procedures, or prohibiting abortions life — forces successfully lobbied for under certain conditions.

Since the Supreme Court’s Roe v. Wade abortion ruling, the battles between supporters and opponents of abortion are being fought in Congress, at all levels of the judiciary, and in the political arena. CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 175

Interest group activity increased limitations and placed in a political dramatically after the Roe decision. system of divided powers. To ask them Groups opposing the decision often to produce significant social reforms organized public demonstrations is to forget their history and ignore against the decision and later began to their constraints.” picket clinics. Interest groups that sup- Within this complex framework of port the Roe v. Wade decision have competing political and social de- been more likely to focus their efforts mands and expectations is a policy- on the courts. making role for the courts. Because While battles over the abortion the other two branches of government issue were being fought in the courts, are sometimes not receptive to the political campaigns, and legislative demands of certain segments of socie- arenas, others preferred a more direct ty, the only alternative for those indi- approach, demonstrating at and viduals or groups is to turn to the blockading abortion centers. The courts. Civil rights organizations, for Supreme Court has ruled, however, example, made no real headway until that reasonable time, place, and man- they found the Supreme Court to be ner restrictions may be placed on such a supportive forum for their school demonstrations. That position was desegregation efforts. reaffirmed on June 28, 2000, when the As civil rights groups attained Court upheld a Colorado statute some success in the federal courts, making it unlawful for a person to others were encouraged to employ lit- knowingly approach another person igation as a strategy. For example, without that person’s consent to hand women’s rights supporters followed a out a leaflet, display a sign, or orally pattern established by minority protest within 100 feet of a health groups when they began taking their care facility. grievances to the courts. What began as a more narrow pursuit for racial Conclusions equality was thus broadened to a quest Some judicial policies have a greater for equality for other disadvantaged impact on society than others. The groups in society. judiciary plays a greater role in de- Clearly, then, the courts can an- veloping the nation’s policies than nounce policy decisions that attract the constitutional framers envisioned. national attention and perhaps stress However, “American courts are not the fact that other policy makers have all-powerful institutions,” writes failed to act. In this way the judiciary Gerald N. Rosenberg in Hollow Hope: may invite the other branches to Can Courts Bring About Social Change? exercise their policy-making powers. “They were designed with severe Follow-up decisions indicate the 176 OUTLINE OF THE U.S. LEGAL SYSTEM

judiciary’s determination to pursue a outcries of protest. Furthermore, it particular policy and help keep alive was a policy that primarily required the invitation for other policy makers the support of judges and lawyers; ac- to join in the endeavor. tion by Congress and the president All things considered, the courts was not really necessary. A policy of seem best equipped to develop and equality for all segments of society, implement narrow policies that are on the other hand, is so broad and less controversial in nature. The policy controversy-laden that it must move established in the Gideon case pro- beyond the judiciary. As it does so, vides a good example. The decision the courts become simply one part, al- that indigent defendants in state crim- beit an important part, of the policy- inal trials must be provided with an making process. attorney did not meet any strong 177

THE CONSTITUTION OF THE UNITED STATES

The following text of the United States Constitution reflects the original spelling and usage. Brackets [ ] indicate parts that have been changed or set aside by amendments.

PREAMBLE:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

ARTICLE. I.

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years,and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States [which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years,and excluding Indians not taxed, three fifths of all other Persons.] The 178 OUTLINE OF THE U.S. LEGAL SYSTEM

actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years,in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, [chosen by the Legislature thereof,] for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year; so that one third may be chosen every second Year; [and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.]

No Person shall be a Senator who shall not have attained to the Age of thirty Years,and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. THE CONSTITUTION OF THE UNITED STATES 179

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section. 4.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, [except as to the Places of chusing Senators.]

The Congress shall assemble at least once in every Year, [and such Meeting shall be on the first Monday in December,] unless they shall by Law appoint a different Day.

Section. 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour; and, with the Concurrence of two thirds, expel a Member. 180 OUTLINE OF THE U.S. LEGAL SYSTEM

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it THE CONSTITUTION OF THE UNITED STATES 181 shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; 182 OUTLINE OF THE U.S. LEGAL SYSTEM

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And THE CONSTITUTION OF THE UNITED STATES 183

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, [or other direct,] Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. 184 OUTLINE OF THE U.S. LEGAL SYSTEM

Section. 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

ARTICLE. II.

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years,and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

[The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of THE CONSTITUTION OF THE UNITED STATES 185 the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.]

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years,and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which 186 OUTLINE OF THE U.S. LEGAL SYSTEM

he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such THE CONSTITUTION OF THE UNITED STATES 187

Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

ARTICLE. III.

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour; and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;— to all Cases affecting Ambassadors, other public Ministers and Consuls;— to all Cases of admiralty and maritime Jurisdiction;— to Controversies to which the United States shall be a Party;— to Controversies between two or more States;— [between a State and Citizens of another State;]— between Citizens of different States,— between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, [Citizens or Subjects.]

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. 188 OUTLINE OF THE U.S. LEGAL SYSTEM

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

ARTICLE. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

[No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.] THE CONSTITUTION OF THE UNITED STATES 189

Section. 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

ARTICLE.V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided [that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and] that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

ARTICLE.VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. 190 OUTLINE OF THE U.S. LEGAL SYSTEM

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

ARTICLE.VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

(The following statement reflects copyist’s corrections to the original document.)

The Word,“the,”being interlined between the seventh and eighth Lines of the first Page, The Word “Thirty” being partly written on an Erazure in the fifteenth Line of the first Page, The Words “is tried” being interlined between the thirty second and thirty third Lines of the first Page and the Word “the” being interlined between the forty third and forty fourth Lines of the second Page. Attest William Jackson Secretary

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

Go. WASHINGTON — Presid.t and deputy from Virginia THE CONSTITUTION OF THE UNITED STATES 191

Delaware New Hampshire Geo: Read John Langdon Gunning Bedford jun Nicholas Gilman John Dickinson Richard Bassett Massachusetts Jaco: Broom Nathaniel Gorham Rufus King Maryland James McHenry Connecticut Dan of St Thos. Jenifer Wm. Saml. Johnson Danl Carroll Roger Sherman

Virginia New York John Blair— Alexander Hamilton James Madison Jr. New Jersey North Carolina Wil: Livingston Wm. Blount David Brearley. Richd. Dobbs Spaight Wm. Paterson. Hu Williamson Jona: Dayton

South Carolina Pennsylvania J. Rutledge B Franklin Charles Cotesworth Pinckney Thomas Mifflin Charles Pinckney Robt Morris Pierce Butler Geo. Clymer Thos. FitzSimons Georgia Jared Ingersoll William Few James Wilson Abr Baldwin Gouv Morris 192 OUTLINE OF THE U.S. LEGAL SYSTEM

AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES

(The first ten amendments, known as the Bill of Rights, were ratified in 1791.)

The Preamble to The Bill of Rights

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

AMENDMENT I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES 193

AMENDMENT II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

AMENDMENT III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner; nor in time of war, but in a manner to be prescribed by law.

AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

AMENDMENT V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 194 OUTLINE OF THE U.S. LEGAL SYSTEM

AMENDMENT VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

AMENDMENT VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

AMENDMENT IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

AMENDMENT XI (1795)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

AMENDMENT XII (1804)

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES 195 the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two- thirds of the states, and a majority of all the states shall be necessary to a choice. {And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President}* — The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

*Superseded by Section 3 of the Twentieth Amendment.

AMENDMENT XIII (1865)

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation. 196 OUTLINE OF THE U.S. LEGAL SYSTEM

AMENDMENT XIV (1868)

Section 1.

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, [excluding Indians not taxed.] But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

*Changed by Section 1 of the Twenty-sixth Amendment.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES 197

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

AMENDMENT XV (1870)

Section 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XVI (1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

AMENDMENT XVII (1913)

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. 198 OUTLINE OF THE U.S. LEGAL SYSTEM

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

AMENDMENT XVIII (1919, repealed by Amendment XXI)

Section 1.

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

AMENDMENT XIX (1920)

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation. AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES 199

AMENDMENT XX (1933)

Section 1.

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. 200 OUTLINE OF THE U.S. LEGAL SYSTEM

Section 5.

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

AMENDMENT XXI (1933)

Section 1.

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

AMENDMENT XXII (1951)

Section 1.

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES 201 this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.

AMENDMENT XXIII (1961)

Section 1.

The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXIV (1964)

Section 1.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice 202 OUTLINE OF THE U.S. LEGAL SYSTEM

President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXV (1967)

Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES 203

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

AMENDMENT XXVI (1971)

Section 1.

The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any State on account of age.

Section 2.

The Congress shall have the power to enforce this article by appropriate legislation.

AMENDMENT XXVII (1992)

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. 204 OUTLINE OF THE U.S. LEGAL SYSTEM

GLOSSARY

Activism (judicial). The willingness Amicus curiae. (“Friend of the of a judge to inject into a case his or court.”) A person (or group), not a her own personal values about what is party to a case, who submits views good and bad public policy. See also (usually in the form of written briefs) self-restraint (judicial). about how the case should be decided.

Actus reus. The material element of Answer. The formal written the crime, which may be the statement by a defendant responding commission of a forbidden action (for to a civil complaint and setting forth example, robbery) or the failure to the grounds for his or her defense. perform a required action (for example, to stop and render aid to a Appellate jurisdiction. The motor vehicle accident victim). authority of a higher court to review the decision of a lower court. Adversarial process. The process used in American courtrooms where Arraignment. The process in which the trial is seen as a battle between two the defendant is brought before the opposing sides, and the role of the judge in the court where he or she is to judge is to act as a sort of passive be tried to respond to the grand jury referee. See also inquisitorial method. indictment or the prosecutor’s bill of information. Advisory opinions. Rendering a decision on an abstract or Bail. A sum of money put up with hypothetical question (something the court by the defendant to ensure that American courts are not that he or she will appear at the time supposed to do). of trial.

Alternative dispute resolution Bench trial. Trial without a jury in (ADR). Methods of resolving disputes which the judge decides which party (often with the help of neutral third prevails. parties) without a trial. Mediation and arbitration are two well-known ADR techniques. GLOSSARY 205

Bill of attainder. A law, forbidden by Collegial courts. Courts having the U.S. Constitution, that makes more than one judge, which are almost conduct illegal for one person (or class always appellate courts. of persons) but not for the population in general. Common law. A system of law inherited from England based on legal Bill of information. A statement of precedents or tradition instead of the charges against the accused statutory law or systematic legal codes. prepared by the prosecutor, which, if approved by a judge, will require the Complaint. A written statement filed accused to stand trial for the alleged by the plaintiff that initiates a civil crimes. This is used in states that do case. It states the wrongs allegedly not employ a grand jury. committed by the defendant and requests relief from the court. Certification. The procedure by which one of the U.S. appeals courts Concurrent jurisdiction. A situation asks the U.S. Supreme Court for in which two courts have a legal right instructions or clarification about a to hear the same case. For example, particular legal matter. Either the both the U.S. Supreme Court and U.S. justices may choose to honor this trial courts have concurrent request or not, or they may request jurisdiction in certain cases brought by that the entire record of the case be or against ambassadors or counsels. sent to the Supreme Court for review and final judgment. Concurring opinion. An opinion by a member of a court that agrees with Civil law. The law that pertains to the the result reached in a case but offers relationship between one private its own rationale for the decision. citizen and another, between a private citizen and a corporation, or between Corpus juris. The entire body of law one corporation and another. for a particular legal entity.

Class action. A suit brought by Courtroom workgroup. The regular persons having similar grievances participants in the day-to-day against a common entity; for example, activities of a particular courtroom. a group of smokers with lung cancer The most visible members of this suing a tobacco company. group are judges, prosecutors, and defense attorneys. 206 OUTLINE OF THE U.S. LEGAL SYSTEM

Court of appeals. A court that is Deposition. An oral statement made higher than an ordinary trial court and before an officer authorized by law to has the function of reviewing or administer oaths. Such statements are correcting the decisions of trial judges. often taken to examine potential witnesses in the discovery process. Crime. An offense against the state punishable by fine, imprisonment, or Discovery. The process by which death. lawyers learn about their opponent’s case in preparation for trial. Typical Criminal law. The law that pertains tools of discovery include depositions, to offenses against the state itself, interrogatories, and requests for actions that may be directed against a documents. person but that are deemed to be offensive to society as a whole — for Dissenting opinion. An opinion by a example, armed robbery or rape. member of a court that disagrees with the result reached in the case by the Cross-examination. During a trial, court. the questions posed to a witness who has been called to the stand by the Diversity of citizenship suit. A civil opposing attorney. legal proceeding brought by a citizen of one state against a citizen of another Damages. Money paid by defendants state. to successful plaintiffs in civil cases to compensate the plaintiffs for their En banc. (“In the bench” or “as a full injuries. Compensatory damages are bench.”) Court sessions with the entire designed to cover the plaintiff’s actual membership of a court participating, loss; punitive damages are designed to not just a smaller panel of judges. punish the defendant. Equity. That realm of the law in Declaratory judgment. When a which the judge is able to issue a court outlines the rights of the parties remedy that will either prevent or cure under a statute, a will, or a contract. the wrong that is about to happen; for example, an injunction against an Defendant. In a civil case, the person illegal strike by a union. or organization against whom the plaintiff brings suit; in a criminal case, Ex post facto law. Forbidden by the the person accused of the crime. U.S. Constitution, this law declares conduct to be illegal after the conduct takes place. GLOSSARY 207

Federal question. If a court case Inquisitorial method. The centers around the interpretation of a procedure used in most European and federal law, the U.S. Constitution, or a Latin American courtrooms in which treaty, then it contains a federal the judge and jury take an active role question and the case may be heard by in the trial and the attorneys act only a U.S. court. to aid and supplement the judicial inquiry. See also adversarial process. Felony. Any offense for which the penalty may be death or Interrogatories. Written questions imprisonment in a penitentiary. sent by one party in a lawsuit to an opposing party as part of pretrial Grand jury. A body of 16 to 23 discovery in civil cases. The party citizens who listen to evidence of receiving the interrogatories is criminal allegations, which is required to answer them in writing presented by the prosecutors, and under oath. determine whether probable cause exists to believe an individual Judgment. The official decision of a committed an offense. See also court finally resolving the dispute indictment. between the parties to the lawsuit.

Habeas corpus. A writ (court order) Judicial review. The power of the that is usually used to bring a prisoner judicial branch to declare acts of the before the court to determine the executive and legislative branches legality of his or her imprisonment. unconstitutional.

Impeachment. The only way in Jurisdiction. The authority of a court which a federal judge may be removed to hear and decide legal disputes and from office. The House of to enforce its rulings. Representatives brings the charge(s), and the Senate, following trial, Justiciability. Whether a judge ought convicts by a two-thirds vote of the to hear or refrain from hearing certain membership. types of cases. It differs from jurisdiction, which pertains to the Indictment. The decision of a grand technical right of a judge to hear a jury to order a defendant to stand trial case. For example, lawsuits dealing because the jury believes that probable with political questions are considered cause exists to warrant a trial. nonjusticiable. 208 OUTLINE OF THE U.S. LEGAL SYSTEM

Law. A social norm that is sanctioned run in a retention election. Voters thus in threat or in fact by the application determine whether the judge should of physical force. The party that be retained for a full term. exercises such physical force is recognized by society as legitimately Misdemeanor. A petty crime. having this kind of authority, such as a Punishment usually is confinement in police officer. a city or county jail for less than a year.

Magistrate. A lower level judicial Moot. Describes a case when the official to whom the accused is basic facts or the status of the parties brought after the arrest. A magistrate have significantly changed in the has the obligation of informing the interim when the suit was filed and accused of the charges against him or when it comes before the judge. her and of his or her legal rights. Nolo contendere. (“No contest.”) A Mandatory sentencing laws. plea by a criminal defendant in which Statutes that require automatic jail he or she does not deny the facts of the time for a convicted criminal, usually case but claims that he or she has not for a minimum period of time. These committed any crime, or it may mean laws are often for violent crimes in that the defendant does not which a gun was used and for habitual understand the charges. offenders. Opinion of the court. A judge’s Mens rea. The mental element of the written explanation of the court’s crime — that is, what was intended by decision. Because the case may be the perpetrator of the crime. Usually heard by a panel of judges in an the more intentional and willful the appellate court, the opinion can take mental state, the more serious the two forms. If all the judges completely crime. agree with the result, one judge will write the opinion for all. If all the Merit selection. A method of judges do not agree, the formal selecting state judges that requires the decision will be based on the view of governor to make the appointment the majority, and one member of the from a short list of names submitted majority will write the decision. by a special commission established for that purpose. After serving for a short period of time, the judge must GLOSSARY 209

Oral argument. An opportunity for Petit jury (or trial jury). A group of lawyers to summarize their position citizens who hear the evidence before the court and to answer the presented by both sides at trial and judges’ questions. determine the facts in dispute.

Ordinance-making power. The Plaintiff. The person who files the power of state governors to fill in the complaint in a civil lawsuit. details of legislation passed by state legislatures. Plea bargain. A bargain or deal that has been struck between the Original jurisdiction. The court that prosecutor and the defendant’s by law must be the first to hear a attorney whereby some form of particular type of case. For example, leniency is promised in exchange for a in suits with at least $75,000 at stake guilty plea. between citizens from different states, the federal district courts are the Political question. When the courts courts of original jurisdiction. refuse to rule because they believe that under the U.S. Constitution the Overcharging. The process whereby founders meant that the matter at a prosecutor charges a criminal hand should be dealt with by Congress defendant with crimes more serious or the president. than the facts warrant to obtain a more favorable plea bargain from the Private law. This deals with the defendant’s attorney. rights and obligations that private individuals and institutions have when Per curiam. (“By the court.”) An they relate to one another. unsigned opinion of the court, often brief. Probation. Punishment for a crime that allows the offender to remain in Peremptory challenge. An the community and out of jail so long objection that an attorney might have as he or she follows court-ordered to a prospective juror. The juror may guidelines about his or her behavior. be eliminated from the array without the attorney having to give a public Pro bono publico. (“For the public reason for the objection. The number good.”) Usually refers to legal of such challenges is limited by law. representation undertaken without fee for some charitable or public purpose. 210 OUTLINE OF THE U.S. LEGAL SYSTEM

Public law. The relationships that Senatorial courtesy. Under this individuals have with the state as a practice, senators of the president’s sovereign entity — for example, the political party who object to a tax code, criminal laws, and Social candidate that the president wishes to Security legislation. appoint to a district judgeship in their home state have a virtual veto over the Recess appointment. An nomination. appointment made by the president when Congress is in recess. Persons Sequestration (of jury). In very appointed in this manner may hold important or notorious cases the jury office only until Congress reconvenes. may be kept away from the public eye by the judge, and this usually means Reversible error. An error that the jury is housed and fed as a committed at the trial court level that group at taxpayers’ expense. is so serious that it requires the appellate court to reverse the decision Socialization (judicial). The process of the trial judge. by which a new judge is formally and informally trained to perform the Rule of four. On the Supreme Court specific tasks of the judgeship. at least four justices must agree to take a case before the Court as a whole will Standing. The status of someone consider it. who wishes to bring a lawsuit. To have standing, the person must have Rule of 80. When the sum of a suffered (or be immediately about to federal judge’s age and number of suffer) a direct and significant injury. years on the bench is 80, Congress permits the individual to retire with Stare decisis, the doctrine of. full pay and benefits. (“Stand by what has been decided.”) In effect, the tradition of honoring and Self-restraint (judicial). The following previous decisions of the reluctance of a judge to inject into a courts and established points of law. case his or her own personal ideas of what is good or bad public policy. See Statutory law. The type of law also activism (judicial). enacted by a legislative body, such as Congress, a state legislature, or a city council. GLOSSARY 211

Three-judge panels (of appellate Voir dire. The procedure by which courts). Most decisions of the U.S. opposing attorneys question potential courts of appeals are not made by the jurors to determine whether the jurors entire court sitting together but by might be prejudicial to their individual three judges, often selected at random, cases. to hear any given case. Warrant. Issued after a complaint, Three-judge district courts. With filed by one person against another, some types of important cases has been presented and reviewed by a Congress has mandated that the case magistrate who has found probable cannot be heard by a U.S. trial judge cause for the arrest. acting alone but has to be decided by a panel of three judges, one of whom Writ of certiorari. An order issued must be an appeals court judge. by the U.S. Supreme Court directing the lower court to transfer records for Tort. A civil wrong or breach of duty a case that it will hear on appeal. to another person. Writ of mandamus. A court order Trial de novo. A new trial in which compelling a public official to perform the entire case is retried as if no prior his or her duty. trial had occurred.

Venue. The geographical location in which a case is tried. 212 OUTLINE OF THE U.S. LEGAL SYSTEM

BIBLIOGRAPHY

BOOKS Mullenix, Linda S., Martin Redish, and Georgene Vairo. Understanding Federal Courts and Jurisdiction.New Administrative Office of the United York, NY: Matthew Bender, 1998. States Courts. United States Courts: Their Jurisdiction and Work. Posner, Richard A. The Federal Courts: Washington, DC: 1989. Challenge and Reform. Cambridge, MA: Harvard University Press, 1996. Fallon, Richard H., Hart, Henry Melvin, and Wechsler, Herbert. Hart Stumpf, Harry P. American Judicial and Wechsler’s the Federal Courts and Politics, 2nd ed. Upper Saddle River, the Federal System, 5th ed. New York, NJ: Prentice Hall, 1998. NY: Foundation Press, 2003.

Baum, Lawrence. American Courts: Process and Policy. 5th ed. Boston, MA: WEB SITES Houghton Mifflin, 2001. Facts About the American Judicial Chemerinsky, Erwin. Federal System Jurisdiction, 4th ed. New York, NY: http://www.abanet.org/media/ Aspen Publishers, 2003. factbooks/judifact.pdf

Feinman, Jay M. Law 101: Everything Federal Courts and What They Do You Need to Know About the American http://www.fjc.gov/public/pdf.nsf/ Legal System.New York,NY:Oxford lookup/FCtsWhat.pdf/$file/ University Press, Inc., 2000. FCtsWhat.pdf

Franklin, Carl J. Constitutional Law The Federal Court System in the for the Criminal Justice Professional. United States: An Introduction for Boca Raton, FL: CRC Press, 1999. Judges and Judicial Administrators in Other Countries Friedman, Lawrence Meir. Law in http://www.uscourts.gov/library/ America: A Short History.New York, internationalbook-fedcts2.pdf NY: Modern Library, 2002. BIBLIOGRAPHY 213

InfoUSA — Judicial Branch National Center for State Courts — http://usinfo.state.gov/usa/infousa/ Court Information Database politics/judbranc.htm http://www.ncsconline.org/WCDS/ index.htm Introduction to the Legal System http://www.cec.org/pubs_info_ Prosecutors in State Courts, 2001 resources/law_treat_agree/summary_ http://www.ojp.usdoj.gov/bjs/pub/ enviro_law/publication/ pdf/psc01.pdf usdoc.cfm?varlan=english&topic=1 State Court Organization, 1998 JURIST: The Legal Education http://www.ojp.usdoj.gov/bjs/pub/ Network pdf/sco98.pdf http://www.jurist.law.pitt.edu/ The Supreme Court of the United Law Library Resource Exchange States http://www.llrx.com/ http://www.supremecourtus.gov

Legal Encyclopedia Understanding the Federal Courts http://www.nolo.com/lawcenter/ency/ http://www.uscourts.gov/ index.cfm understand02/

Library of Congress: Guide to Law Online http://www.loc.gov/law/guide/us.html 214 OUTLINE OF THE U.S. LEGAL SYSTEM

INDEX

A B Abortion, 173–175 Bail, 98, 99 Actus reus, 95 Baker v. Carr,69 Administrative law, 7, 12, 60 Bankruptcy, 122 quasi-judicial bodies, 130, 131 Bench trial, 106 Administrative Procedure Act, 12 Bill Administrative law courts, 39 ... see Laws Advisory opinions, 24, 63, 64, 81 Bill of information, 100 Advocates Bill of Rights ... see Lawyers bail, 98, 99 Affirmative action, 35, 36 bills of attainder, 95 Alternative dispute resolution, 127–131 counsel, assistance of, 79, 81–83, 106, arbitration, 128, 129 160, 171–173 mediation, 128 double jeopardy, 58, 101, 106, 114, mini-trial, 129 117 neutral fact-finding, 129 Eighth Amendment, 161 private judging, 130 ex post facto laws, 95 summary jury trial, 129, 130 Fifth Amendment, 13, 58, 99, 106 American Bar Association, 145, 147–149 First Amendment, 88, 161 Amicus curiae, 86–89 Fourth Amendment, 106 Anticipatory socialization, 150, 151 Miranda rights, 98, 99, 167, 170, 172, Appeals, 116, 117, 139 173 Appellate courts public trial, 38, 105 ... see Jurisdiction; U. S. Courts of self-incrimination, 106 Appeal; U. S. Supreme Court Seventh Amendment, 38, 131, 135 Arbitration, 128, 129 Sixth Amendment, 38, 105 Arraignment, 100, 101 speedy trial, 98, 99, 105 Arrest, 97 Tenth Amendment, 16 Article I, 9, 10, 39 text of, 192–194 Article II, 144, 149 witnesses, confronting, 98, 100, 106, Article III, 20, 152, 153 108, 109 jurisdiction, 9, 24, 25, 63 Bills of attainder, 95 courts, creation of, 39, 144 Briefs, 86–89 Article IV,69 Brown v. Board of Education, 16, 27, 86, Article VI, 7, 8, 16 160, 165, 169 Articles of Confederation, 7 Burden of proof, 69, 70, 106 Assistance of counsel in criminal trial, 112 ... see Counsel, assistance of Burger, Warren, 146, 172 Attorneys ... see Lawyers INDEX 215

C venue, 132, 133 Capital punishment, 114, 115, 161 voir dire, 135 Case citation format, 13, 131 Civil Rights Act of 1964, 165, 169 Certified question, 61 Civil Rights Act of 1968, 62 Certiorari, writ of, 28, 61 Clerk of the court, 54, 55 Challenge for cause, 107 Closing argument, 109, 137 Checks and balances, 7 Colonial era Child custody, 126, 127 courts in, 46, 47 Church and state, separation of, 168, 169 legal profession in, 74 Circuit riding, 32 Commerce clause, 9, 10 Circuit Court Act of 1802, 32 Commercial law, 121 City courts, 49 Common law, 7, 12, 13 Civil law Compensatory damages, 122 adversarial process in, 131 Compensatory litigation, 83, 84 alternative dispute resolution, Concurring opinions, 31 127–131 Consensual crime, 94 categories of, 121–127 Constitution constitutional rights, 81, 82 ... see U. S. Constitution criminal law, comparison to, 15 Constitutional Convention, 20 damages, 122, 123 Constitutional courts, 39 definition of, 120 Contract law, 121, 122 federal, 59 Conventional crime remedies, 14 ... see Crimes of violence; Property standard of proof, 14, 131, 138 crime trials, costs of, 127 Counsel, assistance of, 76, 131 Civil procedure right to, 81-83, 106, 160, 171-172 answer, 134 Counterclaims, 134 appeals, 139 County courts, 49 counter claims, 134 Court unification movement, 48 default judgment, 133 Courtroom workgroup, 81, 82 discovery, 134 Courts filing, 131, 132 civil, 130 judgment and execution, 138 conflicts with legislatures, 9, 10, 47 jurisdiction, 132 domestic relations, 130 jury selection, 135, 136 jurisdiction, requirements for, 63–71 motions, 133 probate, 130 peremptory challenges, 135, 136 and public policy, 26, 61–71, pleadings, 133 160–163, 168–176 post-trial motions, 138 small claims, 130 pretrial conference, 134 ... see also Federal courts; State courts service of process, 133 Courts of Appeal standing, 131 ... see under State Courts, summons, 133 intermediate appellate courts trial, 136–138 Courts of equity, 15 216 OUTLINE OF THE U.S. LEGAL SYSTEM

Creditors’ rights, 122 bail, 98, 99 Crime bill of information, 100 actus reus, 95 burden of proof, 106 consensual, 94 constitutional rights, 105, 106 definition of, 92, 93 cross examination, 108, 109 degrees of, 49 double jeopardy, 114 felony, 92, 93 due process, 170–173 infractions, 93 exclusionary rule, 106, 170–172 misdemeanors, 93 grand jury, 99, 100 domestic violence, 98 indictment, 100 economic, 93, 94 innocence, presumption of, 106 elements of, 94–96 magistrate, appearance before, 98 homicide, 95, 96 mistrial, 108, 114 injury, nature of, 96 plea bargaining, 79, 82, 101–104 mens rea, 95 pleas, 100, 101 of violence, 93 preliminary hearing, 99, 100 organized, 94 voir dire, 107 political, 94 warrant, 97 property, 93, 97 ... see also Defendant’s rights punishment, 92, 93, 102, 114, 115, Criminal trial 161 ... see under Trial Crimes against the person, 93 Cross-examination, 108, 109, 136 Crimes of violence, 93 Criminal due process, 170–173 D Criminal law, 120 Damages, 122, 123, 138, 139 burden of proof, 69, 70, 106, 112 Davis v. U. S., 173 capital punishment, 114, 115, 161 Death penalty categories of, 92, 93 ... see Capital punishment civil law, comparison to, 15 Declaration of Independence, 6 constitutional rights, 81, 82 Declaratory judgments, 64 federal, 58 Default judgment, 133 plea bargaining, 79, 82, 101–104 Defendant’s rights police discretion, 97, 98 assistance of counsel, 79, 81–83, 106, sentencing, 114–116, 161 160, 171–173 standard of proof, 14, 112 bail, 98, 99 trials, roles of judges and lawyers, 81, bills of attainder, 95 82 Davis v. U. S., 173 ... see also Crime; Defendant’s rights; double jeopardy, 58, 101, 106, 114, Trial 117 Criminal procedure ex post facto laws, 9, 95 arraignment, 100, 101 Gideon v. Wainwright, 160, 167, arrest, 97 170–172, 176 assistance of counsel, 106, 160, Harris v. New York, 172, 173 171–173 jury, 38, 105 INDEX 217

Mapp v. Ohio, 170–172 Executive privilege, 165, 166 Miranda rights, 98, 99, 167, 170, 172, Exemplary damages, 122 173 Exhaustion of remedies, 68 public trial, 38, 105 Expert witnesses, 136 self incrimination, 106 speedy trial, 98, 99, 105 F trials, 105, 106 Family law, 125–128 witnesses, confronting, 98, 100, 106, Federal Bureau of Investigation, 10, 145, 108, 109 147 Defendants Federal courts indigent, 76, 79, 81–83 administration of, 40–43 ... see also Counsel, assistance of advisory opinions, 63, 64 Delegation ofpowers,8,9,12 chart of, 22 Depositions, 134 creation of, 20–22 Desegregation jurisdiction of ... see Racial equality diversity, 59 Dicta, 163 original, 28, 59–61 Discovery, 134 mootness, 63, 64 Dissenting opinions, 31 standing, 63 District Attorney structure of, 20–22 ... see Prosecutors workload of, 43 Diversity jurisdiction, 9, 10, 59 ... see also U. S. Courts of Appeal; Divorce, 126, 127 U. S. District Courts; U. S. Supreme Domestic relations courts, 49, 130 Court Domestic violence, 98 Federal criminal law, 58 Double jeopardy, 58, 101, 106, 114, 117 Federal Declaratory Judgment Act of 1934, 64 E Federal executive branch Economic crime, 93, 94 development of, 10, 12 Eighth Amendment, 161 interaction with judiciary, 10 Elementary and Secondary Education Federal judges Act, 165 ... see under Judges En banc proceedings, 36 Federal Judgeship Act of 1990, 38 Engel v. Vitale, 168 Federal law Equal protection clause, 16, 27, 35, 36 civil law, 59 Equitable remedies, 14, 15 components of, 6, 7 Establishment of religion, 64–67 judicial interpretation of, 164 Evarts Act, 32, 33 relationship to state law, 6, 7, 17 Evidence, 106, 108, 109, 137 sources of, 7–13 Ex post facto laws, 9, 95 Felonies, 49, 92, 93 Exclusionary rule, 106, 170–172 Fifth Amendment, 13, 58, 99, 106 Executive branch, 10, 12 First Amendment, 88, 161 influence on judicial decisions, Former jeopardy 165–167 ... see Double jeopardy 218 OUTLINE OF THE U.S. LEGAL SYSTEM

Fourteenth Amendment, 16, 26, 105 Judges equal protection, 27, 35, 36, 69, 107 criminal trial, role in, 81, 82, 104, 105, Fourth Amendment, 106 109, 111, 112 Freedom of religion, 86–88 decisions Freedom of speech, 161 access to, 161, 162 Freedom of the press, 47 Congressional influence on, Friend of the court brief 163–165, 173 ... see Amicus curiae dicta, 163 Frontiero v. Richardson, 166, 167 executive branch influence on, Furman v. Georgia, 161 165–167 implementation of, 166–168 G precedential value of, 160–163 Gibbons v. Ogden,26 discretion of, 160, 161 Gideon v. Wainwright, 160, 167, 170–172, en banc panels, 36 176 federal Ginsburg, Ruth, 143 American Bar Association, 147, Grand jury, 38, 99, 100 149 Guilty plea, 101 anticipatory socialization, 150, 151 H appointment of, 144–150 Habeas corpus, 59 disability of, 153 Habitual criminal, 102 disciplinary action against, 152 Harmless error, 116 diversity, 142, 143 Harris v. New York, 172, 173 educational background, 142 Holmes, Oliver Wendell, 40, 41 impeachment, 152, 153 Homicide, 95, 96 and political views, 150, 153 Hopwood v. Texas, 35, 36 prebench experience, 142, 143 Hung jury, 114 qualifications of, 144, 145 removal of, 152, 153 I Senate Judiciary Committee, 145, Impeachment, 152, 153, 157 149 Indictment, 58, 100 senatorial courtesy, 146, 149 Indigent defendants, 76, 79, 81–83 senior status, 153 Infractions, 49, 93 tenure, 151–153, 160 Innocence, presumption of, 106 training, 150, 151 Insurance law, 122, 128 panels of, 36 Interest groups, 84–89 private judging, 130 Interrogatories, 134 state Intestate succession, 125 appointment of, 155–157 diversity, 154 J election of, 155, 156 Jay, John, 24 Missouri Plan, 156 Judgment n.o.v., 138 and political views, 157 Judgments, 138 removal of, 157 INDEX 219

tenure, 157 peremptory challenges, 135, 136 tenure, 39, 40, 151–153, 157, 160 role in, 136, 138 terms of, 39, 40 selection of jurors, 135 training of, 42, 43, 49, 51 voir dire, 135 Judgments constitutional issues, 105, 106 default, 133 criminal trial enforcement and implementation of, deliberations, 112 –114 138, 139, 163–168 number of jurors, 107, 108 impact of, 168–175 role in, 111–114 precedential value of, 13, 68, 160–163 selection of jurors, 106, 107, 108 Judicial Councils Reform and Judicial voir dire, 107 Conduct and Disability Act, 152 deadlock, 112–114 Judicial panels, 36 hung, 114 Judicial policy, 61–71, 160–163, 168–176 impartial, 105 Judicial precedent, 13, 68, 160–163 instructions, 112, 137, 138 Judicial review, 25, 26 number of, 38, 107, 108, 135 Judicial self-restraint, 63–71 polling, 114, 138 Judiciary Act of 1789, 20–22, 25, 32, 37, right to, 38 39 sequestration of, 112 Jurisdiction Seventh Amendment, 38 actual controversy, 63 Sixth Amendment, 38 appellate, 28 summary jury trial, 129, 130 beneficiaries of law, 67 verdict, 114 burden of proof, 69, 70 voir dire, 107, 135 concurrent, 61 … see also Grand jury determined by legislature, 62, 63 Justice of the peace courts, 49 diversity, 9, 10, 59 Justiciability, as prerequisite to exhaustion of remedies, 68 jurisdiction, 63–71 federal, 9-12 Juvenile courts, 52-53 judicial self restraint, 63 age of offenders, 53 legal versus factual questions, 67, 68 jurisdiction of, 53 mootness, 63 original, 28, 59–61 L personal, 132 Land use law, 123–125 prerequisites to, 63–71 Law clerks, 40–42, 53 separation of powers, 68, 69 Law firms, 76, 77 specificity of plea, 65, 67 Law schools, 74, 75 standing, 63 Laws state courts, 12, 13 adoption of, 8, 9 subject matter, 132 creation of, 7–9 Jury education in, 74, 75 challenges, 107, 135, 136 relation of state and federal law, 17 civil trial sources of, 9–13 number of jurors, 135 U.S.Code,8,9 220 OUTLINE OF THE U.S. LEGAL SYSTEM

… see also Civil law; Criminal law Miranda rights Lawyers ... see under Defendant’s rights criminal trials, role in, 81, 82 Miranda v. Arizona, 98, 99, 167, 170, 172, development of the legal profession, 173 74, 75 Misdemeanors, 49, 93 education of, 74, 75 Missouri Plan, 156 government, 78–81 Mistrial, 108, 114, 138 number of, 76 Mootness, 63 pro bono services, 77 Motions professional opportunities for, 75–81 civil, 133, 137, 138 professional stratification of, 76–78 post-trial, 115, 138 role of, 81 Municipal courts, 49 … see also Prosecutors; Public Murder, 95, 96 defenders Legal aid N ... see Counsel, assistance of Negligence, 122 Legal Aid societies, 82 New Jersey Plan, 20 Legal profession, 74–78 No-fault divorce, 126 ... see also Lawyers Nolo contendere, 101 Legal remedies, 14, 15 Norm enforcement, 38, 39 Legislative courts, 39 Legislatures, conflicts with courts, 9, 10, O 47 O’Connor, Sandra Day, 143 Liens, 139 Obscenity, 161 Litigants, 83, 84 Opening statements, 108, 136 Lucas v. South Carolina Coastal Council, Opinions, by courts, 30, 31 84 Oral argument, 29, 30, 36 Organized crime, 94 M Original jurisdiction, 28, 59–61 Magistrate courts, 49 Magistrates, 53 P appearance before, 98-99 Paralegals, 77 Mandamus, 25 Pardons, 116 Mandatory sentence, 102, 116 Penalties Mapp v. Ohio, 170–173 … see Remedies; Sentencing Marbury v. Madison,9,25,26 Peremptory challenge, 107 Marriage, law of, 125, 126 Personal injury law, 122 Marshall, John, 24, 26 Personal jurisdiction, 132 Marshall, Thurgood, 86, 143 Personal property, 123 McCulloch v. Maryland,26 Petit jury, 38 Mediation, 128 …see also Jury Medical malpractice, 123 Physical evidence, 108 Mens rea, 95 Plea bargaining, 79, 82 Metropolitan courts, 49 restrictions on, 102, 103 INDEX 221

sentencing, 102 Rodriguez,62 types of, 101, 102 separate but equal, 27 value of, 103, 104 U. S. Supreme Court decisions, Pleadings, 133, 134 168–170 Pleas, 100, 101 Real property, 123, 124 Plessy v. Ferguson,27 Reapportionment, 69 Police, discretion of, 97, 98 Reasonable doubt, 112 Political crime, 94 Rebuttal evidence, 109, 137 Political interest groups, 147 Recognizance, 99 Post trial motions, 115 Rehnquist, William, 173 Powell,Lewis F.,42 Remedies, 14, 15, 167 Precedent Repeat offender, 102 …see Judicial precedent Roe v. Wade, 173–175 Preliminary hearing, 99, 100 Rules of Criminal Procedure, 103 Preponderance of the evidence, 14, 131, 138 S Private law, 83, 84 San Antonio Ind. School Dist. v. Pro bono services, 77 Rodriguez,62 Probable cause, 97 Search and seizure, 106 Probate courts, 130 Segregation Probation, 115 ... see Racial equality Product liability law, 122 Self incrimination, 106 Property crime, 93, 97 Senate Judiciary Committee, 145, 149 Property law, 123–125 Senatorial courtesy, 146, 149 Prosecutors Senior status, 153 federal, 78 Sentencing state, 78, 79 capital punishment, 114, 115, 161 Public defenders, 76, 79, 81–83 concurrent sentence, 102 Public interest law firm, 86 guidelines, 115, 116 Public law, 83, 84 mandatory, 102, 116 Public policy and courts, 26, 61–71, pardons, 116 160–163, 168–176 probation, 115 Public trial, 105 Separation of powers, 7–11, 21, 68, 69 Punitive damages, 122 executive branch, 10, 11 judicial branch, 9, 10, 12 R legislative branch, 8, 9 Racial equality, 26, 27, 165, 175, 176 Service of process, 133 Brown v. Board of Education, 27, 86, Seventh Amendment, 38, 131, 135 87 Sixth Amendment, 38, 105 Civil Rights Act of 1968, 62 Small claims courts, 130 equal protection, 62 Special scrutiny, 69 Hopwood v. Texas, 35, 36 Specialized courts, 130 Plessy v. Ferguson,27 Speedy trial, 105 San Antonio Ind. School Dist. v. Speedy Trial Act of 1974, 105 222 OUTLINE OF THE U.S. LEGAL SYSTEM

Standard of proof, 14 last resort in civil courts, 131, 138 Syndicated crime in criminal courts, 112 ... see Organized crime Standing, 63 Stare decisis, 13 T State Attorneys General, 80, 81 Taft,William Howard, 41 State constitutions, 17, 61, 62 Taney, Roger, 26 jury trials, 135 Tenth Amendment, 16 State courts Tenure administration of, 53–55 ... see under Judges caseloads of, 55, 62 Testaments,125 clerk of the court, 54, 55 Thomas, Clarence, 143 courts of last resort (Supreme Tort law, 122, 123 Courts), 49, 51, 52 Trial development of, 46–48 adversarial process, 104, 105 family courts, 53 bench trial, 106 intermediate appellate courts (courts civil of appeal), 49, 51 adversarial process in, 131 jurisdiction of, 61, 62 appeal, 139 juvenile courts, 52, 53 closing arguments, 137 law clerks in, 53 cross-examination, 136 magistrates, 53 discovery, 134 organization of, 46, 48–53 judgments, 138, 139 specialized courts, 48 jury, 135–138 trial courts of general jurisdiction, 49, motions, 133, 137 51 opening statements, 136 trial courts of limited jurisdiction, 48, plaintiff’s case, 136 49 post-trial motions, 138 State law, relation to federal law, 17 pretrial conference, 134-135 States, powers of under the U. S. rebuttal evidence, 137 Constitution, 16 standard of proof, 14, 131, 138 Statutes suit, filing of, 131, 132 ... see Laws testimony, 136, 137 Stipulations, 134 verdict, 138 Stone, Harlan Fiske, 41, 146 witnesses, 136, 137 Strict liability, 122 criminal Subject matter jurisdiction, 132 appeal, 116, 117 Succession, law of, 125 burden of proof, 69, 70, 106 Summons, 133 closing arguments, 109 Supremacy clause, 7, 8 cross-examination, 108, 109 Supreme Court defendant’s case, 109 ... see U. S. Supreme Court errors in, 116 Supreme Courts evidence in, 108, 109 ... see under State Courts, courts of hung jury, 114 INDEX 223

judge, role of, 104, 105, 109–112 170–172 jury polling, 114 bail, 98, 99 jury selection, 106, 108 bills of attainder, 95 jury, role of, 111, 112 burden of proof, 106 opening statement, 108 commerce clause, 9, 10 post trial motions, 115 Congress, powers of, 8, 9 prosecution case, 108-109 delegation ofpowers,8,9,12 rebuttal evidence, 109 double jeopardy, 101, 106, 114, 117 sentencing, 114–116, 161 due process rights, 131 standard of proof, 14, 112 Eighth Amendment, 161 verdict, 114 equal protection clause, 16, 62 witnesses, confronting, 98, 106 establishment of religion, 64–67 evidence, 108 ex post facto law, 95 participants in exclusionary rule, 106, 170–172 lawyers, 81, 82 executive branch, 10, 12 litigants, 83, 84 federal judiciary, 9, 10 summary jury trial, 129, 130 Fifth Amendment, 13, 58, 99, 106 voir dire, 107 First Amendment, 88, 161 Trial courts Fourteenth Amendment, 16, 26, 27, … see U. S. District Courts 35, 36, 69, 105, 107 Trial de novo, 49, 50 Fourth Amendment, 106 freedom of religion, 86-88 U freedom of speech, 161 U. S. Attorney General, 78, 146, 147 freedom of the press, 47 U. S. Circuit Courts, 32, 33 interpretation of, 164 U.S.Code,8,9 jury, 38, 105 U. S. Congress Miranda rights, 98, 99, 167, 170, 172, advice and consent, 144 173 influence on judicial decisions, obscenity, 161 163–165, 173 probable cause, 97 powers of, 12, 22 public trial, 105 to create courts, 39 real property, 125 under the U. S. Constitution, 8, 9, rights under, 81, 82, 131 144 search and seizure, 106 Senate, 144–147, 149, 150 self incrimination, 106 U. S. Constitution separation of church and state, 168, amendment of, 164, 165 169 Article I, 9, 10, 39 Seventh Amendment, 38, 131, 135 Article II, 10, 12, 144, 149 Sixth Amendment, 38, 105 Article III, 9, 20, 24, 25, 39, 63, 144, speedy trial, 98, 99, 105 152, 153 states, 16 Article IV,69 Tenth Amendment, 16 Article VI, 7, 8, 16 text of, 177–203 assistance of counsel, 106, 131, trials, 105, 106 224 OUTLINE OF THE U.S. LEGAL SYSTEM

witnesses, confronting, 98, 100, 106, relationship between branches, 7–13 108, 109 U. S. Magistrate judges, 40 zoning, 125 U. S. Penal Code, 58 … see also Bill of Rights; Defendant’s U. S. Solicitor General, 78, 80, 89, 166 rights; Separation of powers U. S. Supreme Court U. S. Court of Military Appeals, 39 caseload of, 43, 61 U. S. Court of Veterans Appeals, 39 cases U. S. Court system Baker v. Carr,69 creation and structure of, 20–22 Brown v. Board of Education, 27, ... see also Federal courts; State courts 86, 87, 160, 165, 169 U. S. Courts of Appeal, 31–37 Davis v. U. S., 173 appeals Engel v. Vitale, 168 from administrative law tribunals, Frontiero v. Richardson, 166, 167 60 Furman v. Georgia, 161 from U. S. District Courts, 60 Gibbons v. Ogden,26 caseload of, 43 Gideon v. Wainwright, 160, 167, development of, 32, 33 170–172, 176 en banc proceedings, 36 Harris v. New York, 172, 173 equal protection, 35, 36 Lucas v. South Carolina Coastal geographical boundaries of, 23 Council,84 hearings before, 36 Mapp v. Ohio, 170–173 Hopwood v. Texas, 35, 36 Marbury v. Madison, 25, 26 jurisdiction of, 34, 59, 60 McCulloch v. Maryland,26 law clerks in, 41 Miranda v. Arizona, 167, 170, 172, opinions in, 36, 37 173 oral argument in, 36 Plessy v. Ferguson,27 role of, 34, 35 Roe v. Wade, 173–175 three judge panels, 36 San Antonio Ind. School Dist. v. U. S. Department of Justice, 10, 80, 146, Rodriguez,62 147, 166 U. S. v. Nixon, 165, 166 U. S. District Courts Wisconsin v. Yoder, 86–89 appeals from, 58 certified question, 61 caseload of, 43 certiorari, 28 civil cases in, 58, 59 conferences in, 30, 31 creation of, 37 courtpacking, 166 criminal cases in, 58 criminal due process, 170–173 geographical boundaries of, 23 decisions of jurisdiction of, 38, 58, 61 impact, 168–175 law clerks in, 41 implementation, 160, 163–168 organization of, 37, 39 overturning, 164, 165, 173 role of, 38, 39 development of, 22–26 U. S. Attorneys, 78 first justices of, 22, 24 U. S. Government first sitting of, 24 federal form of, 22 freedom of religion, 86–88 INDEX 225

hearings before, 29, 30 Virginia Plan, 20 issues before, 26, 27, 169-174 Voir dire, 107, 135 Judiciary Act of 1789, 20–22, 25 jurisdiction of, 13, 22, 24–26 W appellate, 27, 61 Warrant, arrest, 97 concurrent, 61 Warren, Earl, 170 original, 27, 60, 61 Watergate affair, 165, 166 justices Wills and estates, 125 appointment of, 143–150, 166 Wisconsin v. Yoder, 86–89 Burger, Warren, 146, 172 Witnesses Ginsburg, Ruth, 143 confronting, 98, 106 Jay, John, 24 cross-examination, 108, 109, 136, 137 Marshall, John, 24, 26 Workload of courts, 43, 55, 61, 62 Marshall, Thurgood, 86, 143 Writs O’Connor, Sandra Day, 143 certiorari, 28, 61 Powell,Lewis F.,41 habeas corpus, 59 Rehnquist, William, 173 mandamus, 25 Stone, Harlan Fiske, 41, 146 Taft,William Howard, 41 Z Taney, Roger, 26 Zoning, 123–125 Thomas, Clarence, 143 training of, 150, 151 Warren, Earl, 170 law clerks in, 40–42 opinions concurring, 31 dissenting, 31 precedential value of, 13, 68, 160- 163 writing of, 24, 25 oral argument before, 29, 30 racial equality, decisions concerning, 27, 62, 86, 87, 160, 165, 168–170 right to counsel, 170–172 role of, 27, 28 scrutiny, standards of, 69 sessions of, 28, 29 … see also Defendant’s rights U. S. Tax Court, 39 U. S. v. Nixon, 165, 166

V Venue, 132, 133 Verdict, 114, 138 ACKNOWLEDGMENT

Outline of the American Legal System is a publication of the United States Department of State. Chapters 1 through 8 are adapted with permission from the book Judicial Process in America, 5th edition, by Robert A. Carp and Ronald Stidham, published by Congressional Quarterly, Inc.

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