Law and Judicial Process

an law passed by a legislative body
civil code
in many states, the name for the collection of statutes and laws which deal with business and negligence lawsuits and practices.
a statute enacted by a city government
the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis.
common law
law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action
constitutional law
law that involves the interpretation and application of the U.S. Constitution and state constitutions
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tyranny of the majority
The potential of a majority to monopolize power for its own gain to the detriment of minority rights and interests.
constitutional democracy
democratic government limited and constrained by a constitution
Marbury v. Madison
The 1803 case in which Chief Justice John Marshall and his associates first asserted the right of the Supreme Court to determine the meaning of the U.S. Constitution. The decision established the Court’s power of judicial review over acts of Congress, (the Judiciary Act of 1789).
judicial review
the power of the Supreme Court to declare laws and actions of local, state, or national governments unconstitutional
judicial activism
an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court)
judicial restraint
view that the courts should reject any active lawmaking functions and stick to judicial interpretations of the past
Hamilton Federalist Paper #78
Tried to reply to anti-federalist arguments that judicial review made Supreme Court too powerful (dangerously so).
1. Supreme Court is “LEAST DANGEROUS BRANCH”. Why? no power of the purse (like Congress); no power of sword (like President).
2. Because no power of sword or purse, MUST insulate judges from attacks by other branches, therefore life terms for federal judges.
3. MUST have jud. rev. because Constitution is supreme over Congress, so if conflict, Court MUST say Constitution (social contract) overrides.
“least dangerous branch”
Alexander Hamilton’s Federalist 78 comment regarding the judicial branch of government
Countermajoritarian difficulty (and suggested solutions)
A perceived problem with judicial review of legislative or popularly created laws. As the term suggests, some oppose or see a problem with the judicial branch’s ability to invalidate, overrule or countermand laws that reflect the will of the majority.
i. John Hart Ely and Cass Sunstein—OK when court upholds democratic values (e.g. equality, voting rights, etc.)if court is promoting/encouraging/protecting the democratic process itself, then it’s not undemocratic.
ii. Ronald Dworkin, Richard Epstein: Court was intended to protect minority groups against majority tyranny;
i.e. the Court was intended to be “antidemocratic”; to be a check against “democratic excess.”
iii. Raoul Berger, Robert Bork, Richard Ackerman: Upholding Constitution IS democratic. Constitution was made by sovereign people—a supermajority of ratifying states in the ratifying conventions—so legislatures like Congress are below the people and hence below the Constitutoin, so court upholding Constitution IS democratic.
originalism (Interpretivism or Intentionalism or Textualism)
Mean you try to interpret the meaning of the text by looking at the original intent of the text. Consider only the original intent/meaning/understanding of text—historical/textual interpretation.
strict construction
which means LITERAL interpretation of text -e.g. “Congress shall make NO law abridging the freedom of speech,” not even crimes punishing terrorist threats or inciting mass riots.
nonoriginalism (noninterpretivism/noninentionalism)
Consider the text AND factors external to text: contemporary moral consensus and norms, practicality, etc. Also sometimes constitutional pragmatism. Constitution is, and was intended to be, a living, growing, evolving organic document.
judicial legislation
When courts do not feel bound by the letter of the law nor by their own precedents, and instead appropriate the legislative function of making laws in resolving issues based on their views of what is “good” or “right” public policy.
problems with determining original intent
1. Lack of evidence of original intent. e.g. lots of provisions in bill of rights—”unreasonable search and seizure”, “cruel and unusual punishment” have practically no historical documentation.
2. Incomplete evidence?. Didn’t have recording devices, so we don’t have verbatim transcripts of most speeches, it’s merely summaries. For example, by one estimate, Madison recorded only at most 8-10% of debate in the constitutional convention. Was he biased? What was left out?
3. Biased evidence? Madison or other speech transcribers—did their subconscious biases for or against positions come out when they summarized speeches? Some evidence seems to show Madison intentionally altered his convention notes later to reflect his changed views about the constitution. Or did some recorders perhaps even intentionally distort positions to make them weaker or leave them out so they’re nonexistent? The Pennsylvania and Maryland debates were recorded by a staunch federalist who was paid to delete all the anti-federalist speeches.
4. Stated or Actual Intent (publicly stated intent v. privately stated secret intent)? The evidence seems to show that Madison and Hamilton in the Federalist papers made arguments to get the Constitution approved that they themselves disagreed with. For example, both wanted broad powers of the national legislature and thought the constitution granted broad powers, but publicly argued the constitution didn’t mean that and it would never happen… So did the ratifiers believe those arguments?
5. Ideal or compromised intent (what they wanted or what they agreed to)? Many votes for ratification were based on political compromise/ bargaining—most voted for things they didn’t want. A framer or ratifier wanted one thing, but settled for another, and many provisions were intentionally left vague and open-ended to achieve majority support. For example, Hamilton wanted the president to have the power of a king but was willing to settle for the strongest executive he could get. So do we give his desire any weight? Others may have been against certain elements of the constitution but voted anyway in order to get what they wanted passed. For example, many northern state delegates opposed slavery, but left it in constitution to get the support of southern state delegates for the constitution as a whole. Do we go by what the northern delegates wanted or by what they finally approved?
6. Intent at which step? The person who wrote the actual text (Madison) the committee who modified his draft? the entire constitutional convention who approved that text be sent to the States for ratification (the convention delegates) or the state convention delegates who ratified the text? What Madison intended it is maybe quite different than what the ratifiers intended (and this would be a much larger group).
7. Which supporter’s intent? Supporters differed in intent—For example, some supporters of First Amendment Establishment Clause thought it would only prohibit a national religion, others thought it would prohibit favoring one religion over another, others thought it would prohibit favoring religion over nonreligion. Some thought it would allow government financial aid to religion, others didn’t. So, do you go by the majority view? But how do you determine what that was?. Can’t poll them, and just because more speeches or writings on one side doesn’t mean that side had the majority. Could be a small but active minority, just like often occurs today. (e.g pornography on the internet—a space alien interpreting our culture from the internet would think the dominant majority lifestyle of our culture is constant extreme sexual indulgence.)
8. General or specific intent? Do you look at the intended general principle or how it was intended that the principle apply in specific situations. For example, the 14th Amendment guarantees the equal protection of the laws, yet there were racially segregated schools in Washington D.C., and no one seemed to think at the time that this was improper under the 14th Amendment. Also, specific application wouldn’t even apply to some situations today—e.g. first amendment would not apply to regulation of TV, radio, or internet.
9. A lack of any intent? Evidence shows that many framers and ratifiers simply went along with sections of the constitution not being sure what it meant, or not having time to determine it’s meaning, leaving it’s interpretation and meaning to be determined in the future. In fact, Federalists often intentionally avoided any specifics during the ratification debates so that those specifics couldn’t then be attacked and jeopardize the constitution’s ratification. Mr. Ghorum said on July 16 during the convention, in response to a charge by Mr. Butler that “The vagueness of the terms rendered it impossible for any precise judgment to be formed.” Mr. Ghorum replied: “The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.” Senator Howard, author of the 14th Amendment, said “I don’t know what it means.” (…)
10. Internal inconsistency: Intent was to change with the times… Ironically, on this point there is a lot of historical evidence : there’s a good body of evidence that the original intent was that courts should not look to original intent, but that constitution should have evolving meaning. Edmund Randolph, a member of the Committee on Detail, provided written guidelines to guide the committee’s drafting process. One of the goals was “1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to time and events.” also; Madison’s letter to Thomas Ritchie: “As a guide in expanding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.”
battle of the quotes
This is almost never indisputable evidence of original intent. In fact, it’s the OPPOSITE: There is almost always enough evidence (or lack of it) to support EITHER outcome of a case. “Trying to argue original intent is like trying to put all the water back into a dam that has broke.” Applying original intent pits libertarians against communitarians in a ________
constitutional pragmatism
no one indisputably “correct” method of interpreting the constitution, so use whatever method reaches what seems to be the best result in the case.
principles of statutory construction (interpretation)
multi-volume treatises, but usually boils down to two steps:
1. “Plain Meaning” Not ALL constitutional or statutory provisions are vague. Some involve “BRIGHT-LINE rules” or “Bright-line distinction” e.g. Constitution: must be 35 to be president. Statute: must be 21 to drink alcohol; or response to lawsuit must be filed in 30 days.

2. Determine the “plain meaning”
A. Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another.
City Ordinance: Residents may keep dogs or cats as household pets. Pot-bellied pig?

B. Ejusdem generis. Of the same kind/class/type.
City Ordinance: Residents may keep dogs, cats, or other household pets.Pot-bellied pig?

C. “May” = permissible; “shall” = required.

D. Don’t interpret a statute so as to render one of its provisions meaningless (as if it doesn’t exist).

plain meaning
Not ALL constitutional or statutory provisions are vague. A method for interpreting statutes in which the ordinary meaning of the statute’s language is examined.
bright-line rule (distinction)
Constitution: must be 35 to be president. Statute: must be 21 to drink alcohol; or response to lawsuit must be filed in 30 days. Often the use of numbers.
legislative purpose (intent)
Purpose behind the statute
Once a court interprets a constitution, statute, ordinance, regulation, or treaties, or issues a common law ruling, that case is_______
binding (controlling) precedent
must FOLLOW it because it’s in a court that is directly hierarchically superior to you. EX: supreme court of your state if you’re a state trial court; the U.S. Supreme Court is superior to all U.S. courts.
persuasive (nonbinding/noncontrolling)precedent
need not follow because it’s NOT in a court hierarchically superior to you. EX: other state’s supreme court (e.g. Louisiana judges are free to ignore decisions by all other 49 state supreme courts, even if they all agree.)
adhere to or practice
mark as different
stare decisis
“let the decision stand.” Must follow if at all possible, but not always. So if judges feel disregarding that past precedent is very important to do (e.g. the past decision was REALLY bad) then they are free to overrule it.
decide against, overturn, override, set aside, reject, annul
ratio decidendi
(the reason of the decision) core reasoning of the case, the IMPORTANT facts and principle that decided the case.
obiter dicta
(“remark by the way”) statements not necessary to the resolution of the case; SIDE COMMENT: no binding authority.
mandatory jurisdiction
state law dictates types of cases appellate courts must hear on appeal.
discretionary jurisdiction
a court that decides if the court should hear the case
original jurisdiction
The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.
appellate jurisdiction
The jurisdiction of courts that hear cases brought to them on appeal from lower courts. These courts do not review the factual record, only the legal issues involved.
petition for writ of certiorari
Request for Supreme Court to hear your appeal
rule of four
Requirement that a case can only be heard by the Supreme Court if four justices vote to hear the case
Number of judges on U.S. Supreme Court?
Appointment: U.S. Constitution: nomination by President, “advice and consent” of Senate (majority vote)

Removal: Impeachment

appointment and removal process for federal judges
Term of federal judges?
legal model (legal formalism)
“Purely neutral and objective” legal interpretations: law and facts of the case. But, still WIDE latitude.
extra-legal model (legal realism)
these two factors explain much if not most of variance in judicial voting: political ideology and judicial philosophy.
attitudinal model
A model that suggests that judges’ decisions are largely, if not exclusively, determined by their personal ideological and policy preferences
1. Social background characteristics—age, religion, race, gender, etc.

2. “Attitudes” = personal policy preferences, such as liberal v. conservative

3. “Roles” = individual judge’s belief whether a judge should follow the law (positivist) or seek justice (natural law).

4. Institutions: characteristics/ features/ mechanisms of judicial institution–e.g. how are judges selected, retained, term length, etc.

5. executives—e.g. Solicitor General (arguing for Attorney General): wins more often than not, and more often than other litigants.

6. legislatures: Supreme Court Generally agrees with/supports policy positions of Congress and President 2/3 of time.

7. Small-group dynamics—other justices (persuasion, bargaining, threats, norm of unanimity).

8. Interest groups

9. Public opinion—mixed evidence.

social science findings regarding judicial voting behavior
civil justice system
Law regulating regular relationships between individuals, business, and government.
adversarial system (“fight theory”)
Judge/jury are passive evaluators of whatever (even limited) evidence 2 sides present. Each party can attack and undermine even true evidence on opposite side. Defendant can refuse to cooperate. HOPE is that truth prevails, but CONFLICT is priority.
inquisitorial system (“truth” theory)
Judge/jury takes active role in investigating truth, and defendant must cooperate. TRUTH is priority.
dispute process
Grievances (recognition of injury): 1,000

Claims (asserting injury rather than fearing confrontation, accepting, abandoning, forgiving, or resorting to self-help (retaliation)): 718

Disputes (disagreement about injury (which might be settled by negotiation or formal ADR): 449

Lawyers (hire attorney to legally represent you): 103

Court Filings (seeking official judicial resolution of injury): 50

alternative dispute resolution
Settlement of disputes without resorting to the legal system (i.e. no lawsuit in court). Greatly increasing in recent decades.
Neutral third person tries to find common ground, suggests nonbinding compromise. Common in family law.
Neutral third person make formal findings, makes binding recommendation that disputants have agreed to follow beforehand in written contract. Contract is enforceable in court. Common in labor law.