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56 Cards in this Set

  • Front
  • Back
What are the types of law?
statutory, common, civil, criminal
define statutory
deals w/written statutes (laws).
define common law
1.Based upon a system of unwritten law.
2.Unwritten laws are based upon precedents.
3.Judges rely upon the principle of stare decisis ("let the decision stand"), ie., they rule according to precedent.
4.This is the basic system of law in Britain.
Define criminal law.
concerns violations of the criminal code, Le., violations against society
Define civil law.
concerns disputes between two parties rather than violations against society
Define writ of mandamus.
court order for one party to perform a certain act.
Define injunction
court order that forbids a party to perform a certain act.
Define Class action
involves a suit brought by a group of people who share a common grievance.
Why is judicial power passive?
Courts cannot reach out and "take" cases. Cases must come
to them.
Define Standing as it apply to a court case?
Only those with standing may challenge a law or govt. action, ie., only one who has
sustained or is near sustaining an "injury" may bring a case to court. One cannot challenge a law simply because one does not happen to like it.
Why is it necessary that judges make law while interpreting the law?
1.Statutes are often broadly-worded, unclear, or contradictory.
2.The Constitution is certainly broadly-worded, and requires interpretation.
3.Thus, interpretation of statutes and the Constitution is, in effect, making law:
What evidence is there of judicial lawmaking?
1.Courts have ruled> 1000 state laws as being unconstitutional.
2.Courts have ruled> 1000 federal laws as being unconstitutional.
3.The Supreme Court has reversed itself >200 times since 1810.
4.Courts, since the 1960's, increasingly seem willing to rule on political questions rather than solely on legislative or constitutional questions (e.g., Baker v. Carr, Wesberry v. Sanders, Shaw v. Reno, Bush v. Gore).
What types of remedies do courts impose when making law?
a.In the past, remedies were straight-forward: the loser "paid" the winner in one way or another.
b.Now, remedies often apply to large groups and can affect large numbers of people, e.g.:
1) A federal judge heard a case brought by a prison inmate regarding
bad prison conditions. The judge did not merely improve that person's condition, or even the prison's overall conditions, but instead ordered the revamping of enti're state prison system at a cost to the state of $40 million.
2) A federal\judge heard a case involving the denial of welfare
benefits to an individual. The judge not only ordered that he receive the benefits, but that an aaditional100,000 other people receive them, as well.
3) Class action suits contribute to this trend.
Define the 4 types of court jurisdictions?
A.Exclusive: sole authority of a federal court to try a case.
B.Concurrent: authority of both a federal and a state court to try a case.
C.Original: authority of a court to first try a case.
D.Appellate: authority of a court to hear a subsequent appeal.
When may Federal courts try a case ?
If it involves:
A.The Constitution, a federal law, or a treaty.
B.Admiralty law or maritime law.
C.Disputes between two or more states.
D.The U.S. government as a party.
E.Citizens of different states.
F.Ambassadors or diplomats.
G.A state as a party.
Define Dual system of courts.
: In our federal system, we have both federal and state courts. We will confine our discussion to federal courts
What are the two types of federal courts
Article I (legislative, or special) courts.
Article III (constitutional) courts
Define Article I courts and give examples?
1.Created to carry out the enumerated powers of Congress.
2.Judges in these hold fixed, not life, terms of office.
3.Examples of these courts:
a.Claims Court: hears lawsuits against the federal government.
b.Court of Military Appeals.
c.District of Columbia Courts.
Define Article III courts ?
Article III of the Constitution deals with the judiciary, and creates a Supreme Court
while also giving Congress the power to create "inferior" (lower) courts. These three levels of courts form the main basis of our federal court system
What are the 3 levels of Federal courts?
District, Circuit court of Appeals and Supreme court.
What are all of the characteristics of District Courts?
1 ) Handle 90% of all federal cases.
2)91 such courts, -610 judges.
3)Cases are tried by a judge and jury.
4)Use grand juries to issue indictments (orders that charge an individual with a crime. Does not mean that one is guilty; it merely means that one will be tried.)
5)A petit (trial) jury decides the outcome of a case.
6)Use magistrates, who issue warrants, hold preliminary hearings,
and set bail.
7)jurisdiction: 'original.
8)May try civil, criminal, or constitutional cases.
9) Decisions may be appealed to Courts of Appeals.
10) Recent problems of high turnover among judges.
What are the Characteristics of Circuit courts of appeals?
Courts of Appeals (Circuit Courts). See map p. 388
1)Are 12 of these, spread out in 12 districts, or "circuits."
2)156 judges try> 18,000 cases a year.
3) Cases tried by a panel of three judges, except when all judges of a Circuit Court hear a case "en ban c."
4) Jurisdiction: appellate. Hears appeals from District Courts and
regulatory commissions.
5) Decisions may be appealed to the Supreme Court.
What are the 4 types of federal attorneys?
Attorney general, solicitor general, U.S. Attorney, Asst. U.S. Attorney
What are the Characteristics of the job of Attorney General?
1.Appointed by President w/Senate consent.
2.Head of Justice Dept.
What are the Characteristics of the job of Solicitor General?
Appointed by President w/Senate consent.
2.Represent U.S. government in Supreme Court.
3.Decides which cases the federal government will appeal to the Supreme Court.
4.Decides the federal government's position in these cases.
What are the characteristics of the job of U.S. Attorney?
1.At least one for each District Court, 94 in all.
2.Heads a staff of Assistant U.S. Attorneys.
3. Prosecutes federal cases before the District Courts and Courts of Appeals., though
most cases are settled by plea-bargaining.
4.Represents U.S. government in civil cases before these same courts.
5.Appointed by the President for 4-year terms.
How do federal judges get their jobs and what is the term of office?
A.Appointed by President w/Senate consent.
B. Article III states that they shall hold their offices "during good behavior," Le., for life.
They can, however, be impeached and removed by Congress (very rare -- only a handful of removals in >200 years).
What Factors affecting selection of federal judges:
1.Senatorial courtesy:
2.Senate Judiciary Committee:
3Senate: Majority vote needed for confirmation.
4.Political parties: judges are generally from the same political party as the President.
5.Race:
6. Gender
7. Age:
8.Ideology of prospective judges.
9. American Bar Association evaluates nominees.
10. Existence of a "paper trail,"
Number of judges
Define Senatorial courtesy?
1. Senatorial courtesy: When appointing District Court, the
President must consult with the two Senators from the state in which they are to be appointed.
How does the senate judiciary committee affect the selection of judges?
a.Screens the nominees, and sends a recommendation to Senate floor for approval or rejection.
b.In recent years, has given more scrutiny to appointments, particularly those at the Supreme Court level (e.g., Bork hearings, Thomas' "high-tech" lynching).
c.The committee held up confirmation of many of Clinton's lower court judges for months, and even years (44 months in one case). Use of "hold." Democrats returned the favor w/some of Bush43 nominations
How do political parties affect the selection of judges?
judges are generally from the same political party as the President
How does race affect the selection of judges?
a.Mostly white.
b. Carter appointed more minorities than all the previous Presidents
combined. Clinton also appointed numerous minorities to the fed. bench
c. "Black seat" on the Supreme Court was established by Thurgood Marshall -
--> Clarence Thomas. 17% of Clinton's appointments were black.
How does gender affect the selection of judges?
a.Mostly male.
b. Carter appointed more women than all the previous Presidents combined.
25% of Clinton's appts. female
c. 'Women's seat" established by Sandra Day O'Connor; Ruth Bader
Ginsburg also has a seat on the Supreme Court.
How does age affect the selection of judges?
Since judges have lifetime appointments, judges may live on long after the
Presidents who appoint them DIE!
How does ideology affect the selection of judges?
a.Presidents generally try to appoint people of similar philosophy.
b.This is difficult to ensure, however:
1) Predicting future behavior on the part of judges is at best an imperfect science.
2) New issues may arise which the President could not have possibly
considered.
3) Since judges have life terms, Presidents can do nothing about
decisions they do not like.
4) Approximately 25% of Supreme Court judges "stray" from the philosophy that had been anticipated by the Presidents who appointed them (e.g., Warren, Brennan, Souter).
c. Ideology also can affect the decision of a judge to retire, e.g., a judge may
want to delay retiring until there is a President with a more favorable philosophy.
How does ABA affect the selection of judges?
American Bar Association evaluates nominees. Not used by Bush, but Sen.
Judiciary Committee still considers ABA ratings
How does the existence of a paper trail affect the selection of judges?
Existence of a "paper trail," e.g., with Robert Bork. If a prospective judge has
written extensively, his writings may be used against him during confirmation hearings. Bush, for example, did not want to undergo a confirmation hearing battle with a nominee who had an extensive paper trail, so he played it safe by nominating David Souter, who was such an unknown that he was dubbed the "stealth candidate."
How does the number of judges affect the selection of judges?
Congress can increase or decrease the number of courts and
judges. If it has a President of the same party, it would be more likely to increase the number than if it has a President of the opposing party. If it had a VERY undesirable President, it could reduce the number of judges by not allowing vacancies to be filled by judges who had retired or died.
What are three characteristics of the Supreme court?
Only court mentioned in Const. (Article III).
Consists of 8 Associate Justices and 1 Chief Justice.
1.Number of Justices is set by Congress.
2. When position of Chief Justice is vacant, the President can appoint someone already on the Court (e.g., Rehnquist) or someone who is not on the Court (e.g., Warren)



C.Highest court in the land -- the court of last resort.
What are the key powers of the Supreme Court?
Power of judicial review (established by Marbury v. Madison, 1803).
a.More than 1000 state laws have been declared unconstitutional.
b.More than 120 federal laws have been declared unconstitutional.
c. Some presidential actions have been declared unconstitutional.
2. Power to interpret broadly-worded laws of Congress and the Constitution .
. 3. Power to overrule earlier Supreme Court decisions (e.g., Brown v. Board
overturning Plessy v. Ferguson).
Define the two types of juridiction of the Supreme court?
A. Original: in cases involving:
1. States.
2. Ambassador.
B. Appellate: in cases from:
1. Courts of Appeals.
2. State supreme courts.
-- cases from appellate jurisdiction are far more numerous than from original jurisdiction.
How do cases reach the Supreme Court?
A. Thousands of requests are made for Supreme Court decisions, but relatively few requests
are granted. Recent trend is for even fewer cases to be accepted each year. (-90 per year)
B. Rule of 4: In order for the Court to decide a case, 4 Justices must agree to do so.
Denying a decision may mean any number of things:
C. When a party requests a Supreme Court decision, it files a petition for a writ of certiorari ("to be made certain"). These petitions are screened by the Court's law clerks, and then reviewed by the Justices on the rule of 4 basis noted above.
D. When the Justices accept a case, they then decide whether to ask for more information
and oral arguments from the attorneys or whether to decide the case quickly on the basis of the attorneys briefs. Cases decided without further information are announced with a per curiam opinion. This is a very brief unsigned statement of the Court's decision.
Why are cases denied by the Supreme court?
1.Case lacks a substantial federal issue.
2.Party lacks standing.
3.Court agrees with a lower court.
4.Case is a "political hot potato" that the Court does not want to touch.
Define Per Curiam opinion.
When the Justices accept a case, they then decide whether to ask for more information
and oral arguments from the attorneys or whether to decide the case quickly on the basis of the attorneys briefs. Cases decided without further information are announced with a
per curiam opinion. This is a very brief unsigned statement of the Court's decision
Define Rule of 4.
B. Rule of 4: In order for the Court to decide a case, 4 Justices must agree to do so.
Describe the supreme court at work?
A.Term begins on first Monday in October and continues until the end of June.
B.Hears cases from Monday-Thursday. Quorum of 6.
C.Before oral arguments, the Justices read the attorneys' briefs.
D.Justices also read amicus curiae ("friend of the court") briefs.
E.Justices hear 30" oral arguments from each side.
F.At the Friday conference, Justices discuss the cases.
G.Simple majority needed for decisions. In case of ties, previous court decision stands.
Explain the types of written opinions the Supreme Court issues.
a. Unanimous: expresses opinion of all nine Justices. -1/3 of the cases are
decided by a 9-0 vote.
b.Majority: expresses opinion of majority.
c. Dissenting: expresses opinion of minority. If the Court later overturns itself,
it may draw upon a minority opinion for its reasoning.
d. Concurring: written by a Justice who agrees with majority's conclusions,
but for different reasons.
How do the justices decide who will write the opinion of the court?
a. If Chief Justice voted with the majority, he assigns someone in the majority
to write the opinion.
b. If the C.J. is in the minority, the most senior Justice among the majority
assigns the opinion.
What are the politics of writing an opinon for the court?
a. Assigning the opinion is a key power of the Chief Justice: it enables the CJ
to get the right "slant" on the issue.
b. Majority opinion writer must be careful not to alienate others in the majority,
because they may change their minds and switch positions.
c. The majority opinion writer must therefore structure the argument in such a
way as to keep the support of at least four other intelligent, independent Justices, any of whom may threaten to "jump ship" and switch his/her vote.
d. Threat of a dissenting opinion can sometimes convince the majority to bend
a bit in certain parts of the decision.
Why does the Supreme court issue written opinions? What is the purpose?
a.Communicate the Court's reasoning to the public.
b.Establish precedents for future cases -- importance of stare decisis.
c.Drop "hints" that Congress, the states, or the President should take certain actions, e.g., "In the absence of any action by Congress ... "
Explain how it is possible to evade Supreme court decisions?
Amending the Constitution. The Court cannot strike down something as
unconstitutional if it is in the Constitution!
B. When a decision is made, it is "remanded" to a lower court to carry out the Supreme
Court's decision. The lower court will have a certain amount of leeway in doing this.
C. The executive branch may simply not carry out the decision (e.g., Jackson's famous
line: "John Marshall has made his decision. Now let him carry it out.")
D. State and local governments may simply not carry it out, either (e.g., desegregation,
school prayer)
E. "The Constitution may be what the Supreme Court says it is, but a Supreme Court opinion is what a trial judge or a policeman or a school board or a city council says it is."
Define Judicial Activism?
Philosophy that the courts should take an active role in solving social, economic, and
political problems.
B.Courts should uphold the "guardian ethic:" they act as a guardian of the people
Give an example of judicial activism.
1.Requiring states to provide legal aid for the poor.
2.Requiring prison modernization.
3.Requiring states to educate undocumented aliens.
4.Establishing the "one man, one vote" principle to reapportionment.
5.Struck down the Gun Free School Zones Act
6.Struck down line item veto in Clinton v. NY 1998
7.Struck down Florida recount in Bush v. Gore 2000
8.Struck down state death penalties for mentally retarded in Atkins v. Virg., 2002
Define Judicial Restraint?
Philosophy that the courts should allow the states and the other two branches of the
federal government to solve social, economic, and political problems.
Federal courts should act only in those situations where there are clear constitutional
questions.
C. Courts should merely interpret the law rather than make law.
Describe the historical developments of judicial activism?
Prior to 1937, liberals complained about the •conservative Court being too activist when it
struck down various reform-minded laws (e.g., minimum wage, banning child labor, NRA, AM).
B. FDR responded with his "court-packing" attempt in 1938 ---> failed, but the Court, in its famous "switch in time that saved nine," began to accept New Deal legislation.
C. Now, it was the conservatives who began to complain about the liberal Court being too activist, especially with the advent of the Warren Court (1954-1969). Conservatives began to complain about the Court's judicial activism in:
1.Rights of the accused, e.g., requiring the police to issue "Miranda warnings."
2.Civil rights, e.g., of allowing forced busing to achieve school desegregation.
3.Civil liberties, e.g., of prohibiting prayer in school.
D. The Burger Court (1969-1986) was less activist than the Warren Court, but still upset conservatives with decisions such as Roe v. Wade and UC Regents v. Bakke.
E. We have now come full circle because the Rehnquist Court (1986-present) is being
accused by liberals of being too activist -- when it overturns liberal precedents, liberals accuse the Court of being excessively activist, e.g.:
1.Overturning Gun Free School Zones Act
2.Overturning Florida Supreme Court decisions in election of 2000
3.Overturning California's Proposition 215 that legalized medical use of marijuana
Explain the restraints on judicial power?
A.Courts can make decisions, but cannot enforce them
B.Courts cannot reach out and take cases, but must wait for the cases to come to them.
C.Presidential appointment of judges.
D.Congress.
1.Senate confirmation of judges.
2.Impeachment and removal.
3. Increasing the number of courts and judges, and thus the type of judges to
Congress' and the President's liking. For example, in 1979, Congress (Democratic) created 152 new District and Appeals Court positions. Coupled with resignations and retirements, President Carter (Democratic) ended up appointing 40% of all federal judges during his
one term of office.
4. Passing constitutional amendments (e.g., 14th Amendment overturned the Dred
Scott decision).
5. Repassing a law that was unconstitutional in hopes that the Supreme Court will change its mind.
6. Determining the jurisdiction of the courts -- what kinds of cases the courts can
and cannot have.
E.Stare decisis.
F.Existing laws.
G.The Constitution.
H. Public opinion: The Supreme Court probably does not "follow the election returns"
in the short run because the Justices were appointed by previous Presidents for life terms. In the long run, however, the Court will probably reflect public opinion because the Justices are appointed by Presidents who were elected by the people.