1. Introduction to U.S. Legal System
Toni M. Fine
Fordham Law School
New York City

2. Course Overview

3. Course Overview Synthesis of the U.S. Legal System
Overview of the U.S. Constitution
How to Read a U.S. Judicial Opinion
Federal Government:
Shared Powers = Federalism.
Overlapping Authority = Separation of Powers and Checks and Balances.
U.S. Judicial Systems:
Federal Judiciary.
State Judiciaries.
Sources of Law
Especially Precedent and Stare Decisis.

4. Synthesis of the U.S. Legal System

5. Synthesis of the U.S. Legal System
The Constitution
Historical antecedents.
Essential attributes.
The Judicial Systems
The Importance of Case Law
Civil Litigation in the U.S.

6. U.S. Constitution

7. Structural Overview Preamble: 7 Articles: 27 Amendments: Themes.
Structure, organization, and powers of national/federal government.
Relationship between federal government and states.
Amendments.
Ratification.
27 Amendments:
Structural changes.
Individual rights and freedoms.

8. History American Revolution.
Articles of Confederation: “League of Friendship.”
Need for National Government:
Military protection.
National commerce.
Meeting to Amend Articles became Constitutional Convention.

9. Historical Underpinnings
Fear of large, distant, national government.
States had all power and were being asked to give some up.

10. Preamble
“We the People…”
“In order to ….”
“United States of America.”

11. Amendments Refine governmental structure.
Personal rights and liberties:
Bill of Rights (I - X).
Reconstruction Amendments (XIII – XV).
Additional Amendments.
The Doctrine of Incorporation
McDonald v. City of Chicago

12. Articles: What They Do Separation of Powers and Checks and Balances.
Federalism – the Sharing pf Powers between State and Federal Governments.
Amending the Constitution.
Ratifying the Constitution.

13. Articles: Overview Article I: Legislative Branch
NB Section 8 = limits on powers of Congress.
Article II: Executive Branch
Article III: Judicial Branch
Article IV: Full Faith and Credit
Article V: Amendment Process
Article VI: Supremacy
Article VII: Ratification

14. Articles: Divisions of Government Authority
Federalism:
Division of power between federal government and states/people.
“Vertical” separation of powers.
Separation of Powers:
Division of power among branches of federal government.
“Horizontal” separation of powers.

15. Articles: Federal/National Government
Separation of Powers: Each branch has its own delegated functions:
Article I -- Federal Legislative Branch”
Makes federal law.
Limited to powers enumerated in Article I section 8.
Article II -- Federal Executive:
Administers/enforces federal law.
Article III -- Federal Judicial Branch:
“Says what the law is.”

16. Articles: Federal/National Government
Checks and Balances:
Each branch exercises authority over other branches to prevent abuse or the accumulation of too much power in one branch.
Overlapping authority to avoid tyranny/abuse of powers.

17. Articles: Federal-State Power
Federalism
Division of power between federal government and states/people.
“Vertical” separation of powers.
Federal government as a government of limited powers.
Powers are limited to those that are “enumerated” in Constitution:
Especially Article I section 8.

18. Articles: Federal-State Power
Article I section 8 – “Congress shall have the power to…”
See list in Constitution, especially….
“[R]egulate commerce … among the several states….” = interstate commerce clause.
“[M]ake all laws … necessary and proper … for carrying into Execution the foregoing Powers....” = elastic clause.

19. Federalism: Interstate Commerce Clause
Limits on the Powers of Congress:
United States v. Morrison
Gonzalez v. Raich
“Obamacare”
And the necessary and Proper clause:
United States v. Comstock
Dormant Commerce Clause and Limits on the Powers of the States:
Granholm v. Heald

20. Federalism: Traditional Areas of State Authority
Criminal law.
Tort law.
Contract law .
Corporate law.
Real property law.
Family law.
Trust and estate law.

21. Federalism: Federal/State Conflicts
When Federal and State Law Conflict, which Prevails?
Supremacy Clause, Article VI clause 2:
Federal law shall be “the supreme law of the land.”
Inconsistent state law fails.

22. Federalism: Federal/State Conflicts
Federal Law may Preempt (preclude, displace) State Law
Types of Preemption
Express.
Implied:
Field preemption:
Pervasive federal framework.
Dominant federal interest.
Conflict preemption:
Impossibility preemption.
Obstacle preemption.
Arizona v. United States

23. Reading a U.S. Judicial Opinion

24. Reading a U.S. Judicial Opinion
Preliminary Information:
Parties:
Names.
Litigation position.
Court:
Jurisdiction.
Level in hierarchy.
Date:
Year of decision.

25. Reading a U.S. Judicial Opinion
Facts:
The underlying story.
Who did what to whom?
All “legally relevant” facts.
Procedural History/Posture:
How did the case get to court?
What happened since the lawsuit began?
How did the case get to the court hearing it now?

26. Reading a U.S. Judicial Opinion
Issue(s):
Legal question(s) addressed by the court.
Holding:
Court’s answer to the legal issue(s) presented.
Could be “yes” or “no” and, in appellate cases, ”affirmed” or “reversed.”

27. Reading a U.S. Judicial Opinion
Rationale:
The court’s explanation/reasoning for reaching the decision that it did.
May include text, precedent, policy, fairness, etc.
Other Opinions:
Concurring = agrees with majority but for additional or different reason
Dissenting = disagrees with majority.

28. U.S. Judicial Systems

29. Several Independent Judicial Systems
Product of Federalism
Federal Judiciary.
50 State Judiciaries.

30. Structure of Federal Judiciary
Federal Judiciary Organized By:
Hierarchy:
Three-tiered.
Geography:
Courts in districts and circuits around nation.

31. Hierarchical Structure of Federal Judiciary
One Supreme Court.
Congress given power to establish “inferior” federal courts.
District Courts = courts of first instance.
Courts of appeals:
(Mostly) geographically-based intermediate appellate courts.
Hear appeals from district court cases.

32. Geographical Structure of Federal Judiciary
Nation divided into federal judicial districts and circuits.
94 judicial districts:
Each state has one, two, three, or four judicial districts.
Each judicial district has one district court.
12 regional circuits:
Each circuit contains one court of appeals and all the district courts within that geographic area.
Circuits critical to operation of stare decisis rules.
One Supreme Court:
Nationwide jurisdiction.

33. Federal Judiciary: Hierarchical Organization

34. Federal Judiciary: Geographic Distribution

35. Features of Federal Judiciary
Decentralized system with bottom-up management.
Decentralized power of judicial review.
Courts of general jurisdiction.
Limited subject-matter jurisdiction.
Complete independence from political branches.

36. Proceeding Through the Federal Judiciary
District Court = Trial Court:
Court of first instance in most cases
Players:
Jury – finders of fact.
Judge – rulings on law..
Attorneys – adversarial system
Presentation of evidence

37. Proceeding Through the Federal Judiciary
Court of Appeals:
First level federal appellate court.
Appeal to court of appeals in circuit of district court.
Appeal of right.
Legal issues only.
Three judge panel.
Briefs and oral argument.

38. Proceeding Through the Federal Judiciary
The Supreme Court:
Jurisdiction:
Small original jurisdiction.
Small mandatory appellate jurisdiction.
Most jurisdiction discretionary via writ of certiorari.
Seeking the writ.
Nine justices, sitting en banc.
Legal issues only.
Briefs and oral argument.

39. Federal Judiciary: Jurisdiction
Courts of General Jurisdiction:
Most not specialized courts.
Courts of Limited Jurisdiction:
Justiciability – “case or controversy” requirement.
Subject Matter Jurisdiction -- Authority to decide only certain types of cases (see below).

40. Federal Judiciary: Judicial Independence
Institutional Mechanisms to Promote Judicial Independence:
Life term -- tenure “during good Behaviour.”
No diminution of judicial salaries.
The (implied) power of judicial review.

41. Federal Judiciary: Selection of Judges
Appointment of Federal Court Judges:
Nomination by President.
Confirmation by Senate (“advice and consent”).
Increasingly politicized in recent years.

42. A Note about State Judicial Systems
Each state has independent court system.
Own rules of procedure and evidence, court structure, judicial selection.
Most structured like federal judiciary
More specialized courts.
Judges are appointed or elected.
High state court is the ultimate arbiter of state law.

43. State and Federal: Dual/Parallel Judicial Systems
Federal and each state judicial systems operate independently.
Litigants go through one system or the other.
Limited direct supervision of state systems by federal courts:
E.g., certiorari review from state court of last resort when case decided on basis of federal question.

44. Selecting a Court: Overview
Three main issues:
Subject matter jurisdiction.
Venue.
Personal jurisdiction.
Related issue:
Choice of law.

45. Selecting a Court: Subject Matter Jurisdiction
Does the case go to state or federal court?
Federalism: Federal courts as courts of limited authority.
Jurisdictional possibilities:
Exclusive federal court jurisdiction.
Exclusive state court jurisdiction.
Overlapping/concurrent jurisdiction.

46. Selecting a Court: Subject Matter Jurisdiction
Federal Question Jurisdiction
Cases “arising under” a federal statutory or constitutional question.
Diversity Jurisdiction
Parties of different states; and
At least $75,000 in controversy.
U.S. a Party
Variants:
Removal jurisdiction.
Supplemental jurisdiction.

47. Selecting a Court: Venue
Venue = Place.
Geographic distribution of cases within a particular jurisdiction.
Often where cause of action arose.
Federal statutes often contain venue provisions.

48. Selecting a Court: Personal Jurisdiction
Whether court can compel presence of out-of-state defendant(s) in that court.
Two-step test:
State long arm statute; and
Due process: “Minimal purposeful contacts with forum state so as not to offend fundamental notions of fair play and justice.”

49. Choice of Law Regardless of Court, What Law Applies?
Two Choice of Law Questions (Erie):
Procedural Law.
Substantive Law:
Federal law – which? Rules of stare decisis
State law – which?
Most interest in or connection to the litigation.

50. The Power of Judicial Review
Marbury v. Madison

51. Sources of U.S. Law

52. Sources of U.S. Law: Overview
Primary versus Secondary Sources.
Mandatory versus Persuasive Authorities.
Priority of Sources of Law.
Precedent and Stare Decisis.

53. Primary vs. Secondary Authorities
Positive sources of law – create rights and obligations.
Federal and state.
Examples: Constitutions, statutes, administrative rules and regulations, case law.
May be binding.
Secondary:
Not positive sources of law – do not create rights or obligations.
Describe, summarize, criticize, seek changes to law.
Examples: legal encyclopedias, law review articles, restatements, uniform and model laws.
Never binding.

54. Priority: Primary Sources
Supremacy – All Valid Federal Law is Supreme to any State Law.
Within Sovereignties:
Constitution.
Legislation.
Executive issuances.
Case law.

55. Priority: Secondary Sources
Some secondary sources are better than others.
Restatements, treatises, law reviews are good secondary sources of law.
Wikipedia, etc. are not good sources of law.

56. Binding vs. Persuasive
Issue: How should courts treat specific sources of law?
Binding/Mandatory/Controlling
Must be followed by court.
Hierarchy important.
Examples: Applicable constitutions, statutes, administration regulations.
Case law may be but is not necessarily binding – depends on rules of stare decisis.
Secondary sources are never binding.

57. Binding vs. Persuasive Persuasive Hart v. Massanari
Legal authorities that a court is not compelled to apply but should consider and may apply in the absence of binding/mandatory authority.
Include secondary sources and non-binding primary sources.
Hart v. Massanari

58. Precedent and Stare Decisis
Precedent = Earlier Decided Cases.
Stare decisis:
“Let it stand”
The tendency of courts in the U.S. to follow rules of law announced in earlier decided cases.
Stare decisis reflects “the principle that carefully considered constitutional interpretations … should not be revisited absent circumstances more compelling than a change in the identity of the individuals who authored the interpretations in question.” Professor Lawrence Tribe.

59. Precedent and Stare Decisis
Rationale for Stare Decisis:
Historical dearth of legislation:
Courts looked to other decisions as a way of developing fair and consistent rules.
Far more legislation today but:
Legislation vague, often with gaps and ambiguities.
Courts do not use broad rules for statutory construction to resolve gaps and ambiguities.
Instead look to common law – decisions of other judges whose collective wisdom would inform a fair and equitable result.

60. Precedent and Stare Decisis
Rationale for Stare Decisis:
Fairness, predictability, and integrity of the judicial system.
Efficiency for the parties and the judicial system.
Well-reasoned judicial decision-making.
Factors in Application of Stare Decisis:
Legal issue.
Court – both jurisdiction and hierarchy.
Facts.
Holding versus dictum.

61. Precedent and Stare Deisis
Holding versus Dictum
Holding = court’s resolution to the legal issue presented; may include court’s stated rationale.
Dictum:
Court statements that are beyond the scope of the facts and issues squarely presented to the court.
Not always easy to identify. The lawyers’ role in drawing the line between holding/rationale/dictum
Not desirable in adversary system.
Use/impact in future cases may be disputed.

62. Precedent and Stare Decisis
Stare Decisis in Operation – A Summary of Principles.
Supreme Court precedent binding on all state and federal courts.
Court of appeals precedent binds the circuit.
District court case binds only the parties.

63. Precedent and Stare Decisis
What about State Law?
State court of last resort is the ultimate arbiter of state law.
State policies re stare decisis will vary.
Courts interpreting law of a state must “stand in the shoes” of the state court of last resort to determine what state law is and how it should be applied in specific cases.

64. Precedent and State Decisis
Power of U.S. courts to change law over time through individual case decisions.
Tendency to follow precedent does not bar courts from modifying earlier decided cases or distinguishing earlier cases on their facts.

65. U.S. Civil Litigation

66. Overview
General Matters
Phases of U.S. Civil Litigation

67. General Matters The Players: Lawyer Client Relationship:
Parties/Attorneys.
Judge.
Jury.
Lawyer Client Relationship:
Fee structure/costs.
Methods of dispute resolution.
Client confidentiality.
Use of Settlement and Alternatives to Traditional Dispute Resolution Mechanisms.

68. Phases of U.S. Civil Litigation
Complaint
Answer or Motion to Dismiss
Pre-Trial Conferences
Discovery:
Scope and nature.
Methods of discovery:
Interrogatories.
Requests for production.
Depositions.
Requests for admission.
Physical or mental evaluation.
Privileges

69. Phases of U.S. Civil Litigation
Summary Judgment Motions
Other Pre-Trial Motions
Jury Selection
Trial
Jury Charge
Jury Deliberations and Verdict
Post-Trial Motions
Entry of Judgment

70. Phases of U.S. Civil Litigation
Appeal:
Selecting the court.
Limited to legal issues.
Standard of review.
How presented.
Finality.
Stay pending appeal.

71. Toni M. Fine Fordham Law School  New York City tfine@law.fordham.edu
Gracias!
Toni M. Fine Fordham Law School  New York City