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Structure of the American Legal System

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1 Structure of the American Legal System

2 The legal system is more than just courts!
Let’s not forget the lawmakers: Legislatures, Executives, Administrative Agencies (The Bureaucracy) The assigned book (by Carp, Stidham & Manning) is fairly typical of books on this topic. It focuses on courts to the exclusion of all the other important players.

3 Classic Legal Theory Courts have no power to make laws
Courts can only “find” law, or at best apply old law to new situations. So let’s start with the institutions that do have the right to make laws: Legislatures job is to “pass” laws. Question: What establishes the power of legislatures to make laws? CONSTITUTIONS What part of the US Constitution creates Congress? ARTICLE I

4 Lawmaking Bodies 1 United States Congress

5 Lawmaking Bodies 1 United States Congress 50 State Legislatures

6 MN CA NB CO But there are more than just State and federal legislatures…

7 Lawmaking Bodies 1 United States Congress 50 State Legislatures
3000+ County Boards 18,000+ City Councils School Districts Special Districts Legislatures are not hierarchical.

8 Different type of lawmaking
Legislatures and Courts sometimes appear to be rivals but really aren’t. They make decisions in didfferent ways. Legislatures can did things courts can’t (or do only poorly) Impose taxes Spend Money Legislatures set general rules. Courts respond to specific cases. (Dictum covers any comments that go beyond a case decision.)

9 Lawmaking I Only a member of the House or Senate may introduce a bill …but anyone can write a bill (e.g., Presidential staff, groups/lobbyists) Bills are numbered consecutively within each chamber. HB1 ≠ SB1 10,000+ bills are proposed and fewer than 5 to 10% are enacted. Many bills are originally written by the executive branch or by interest groups/lobbyists. With the exception of tax bills which according to the Constitution must be introduced in the House, bills may be introduced in either chamber. House – place the bill into the “hopper” where it will be collected by the Clerk and passed in to appropriate committee with the Speaker’s blessing. Senate – a member, after being recognized by the presiding officer, must announce the new bill to the Chamber. It will then be passed on to the appropriate committee. Bills are numbered consecutively within each chamber (HB1/SB1) Sometimes the same bill is introduced in each chamber at the same time. It still does not get the same number.

10 Lawmaking II A bill must survive three stages to become a law:
committees (and their subcommittees), the floor, and the conference committee A bill can die at any stage.

11 How a Bill Becomes a Law: The Short Version

12 Start in the House – Part 1
Introduce the Bill Send it to the Relevant Committee Assign it to the Relevant Subcommittee Hold hearings & “Markup” Bill Approve a Subcommittee Version Approve a Committee Version Send it to the Rules Committee

13 Start in the House – Part 2
Construct a “Rule” and Send the Bill to the Floor Consider Amendments (if allowed by “rule”) Vote on Final passage of the (Amended) Bill Send the Approved Bill to the Senate Wait for Senate Approval

14 Return Trip and Further Consideration
The Senate Considers the Bill (Committee and Subcommittee Hearings and Votes, & Final Passage of the Bill Resolution of Conflict – The Conference Committee Final Passage of an Identical Bill in Both Houses

15 How a Bill Becomes a Law: The Long Version (Part 1)

16 How a Bill Becomes a Law: The Long Version (Part 2)

17 A Bill Becomes Law If The President signs a Bill that has passed by both the House and the Senate. If the President Vetoes the Bill, the House and Senate can re-pass the Bill each by a 2/3’s vote. Is they do so, the Bill becomes law without the President’s signature.*** *** A few twists. The President may refuse to sign a bill but it still becomes law if he doesn’t actively veto it – so long as the Congress remains in session. But it is possible for the President to “pocket veto” a bill during a Congressional recess such that Congress has no chance to override the veto. See the diagram for others. But this is the dominant process Other complications: Presidential Signing Statements (Clinton, Bush, Obama?)

18 Establishing a Dept. of Homeland Security
Original Proposal (Joe Lieberman, D-RI), October 2001 Presidential Endorsement, June 8, 2002 House (HR5005) Select Committee on Homeland Security Passage ( ) Senate Government Affairs Committee Passage, (90-9) Reconciliation in Conference 409 Amendments proposed during floor debates. (Mostly in the Senate.)

19 Bills come in all shapes and sizes
One Extreme: The Sherman Anti-Trust Act (handout) The Other Extreme Any Tax Bill The Budget Most contemporary legislation* Some bills are long and ponderous laying out great detail. Others are very short and make minor changes. Yet length does not define importance (Sherman). Why are some bills long and others short? Why are they passed and passed in their final form? Because they are being pushed by political forces. By, in part, the legal culture. * The problem with “earmarks”

20 Statutes Statutes (Legislative bills signed into law by Executives) are general directives, unlike court decisions that apply to specific cases. A statute for example, defines a crime and sets a penalty. But a Court determines if John Doe or Jane Smith is guilty of that crime. Exception: “Private Bills”. Once common , now much less so. Subject to accusations of graft and corruption. They also seemed to waste scarce legislative time. Many states outlawed the practice after the Civil War.

21 US Code Annotated

22 Delegation Congress does not have the time to handle every detail. It defers to agencies who develop expertise to accompany the mandate they are given. Delegation is also a form of delay. It involves a way of dodging or compromising a difficult political issue.

23 Building a Court System
The Constitutional Convention (1787) Two principal plans were offered: “The Virginia Plan” A Supreme Court and lower federal courts “The New Jersey Plan” A Supreme Court and existing state courts What was the compromise? It’s laid out in the Constitution. Article III.

24 Building a Court System
The US Constitution -- Article III “The judicial power …shall be vested in one Supreme Court …

25 Building a Court System
The US Constitution -- Article III “The judicial power …shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.” Congress has a role in the court system. It can create courts and it can eliminate them (all of them except the US Supreme Court which is created by the Constitution).

26 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.

27 Article III 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. Section 2 lays out the Court’s “jurisdiction”. “in law and equity”? “to cases”, “to controversies”?

28 Article III 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. In Paragraph 2, a key distinction is made – between original and appellate jurisdiction We also learn that CONGRESS can modify/adjust the Supreme Court’s jurisdiction, i.e., alter the types of cases it can decide. This can be a significant check if used.

29 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. Article III has one more section that defines the crime of Treason. Interesting but less relevant.

30 The Constitution and the National Judiciary
Article III of the Constitution establishes: a Supreme Court in which the judicial power of the United States is vested the original jurisdiction of the Supreme Court life tenure for judges judges receive compensation that cannot be diminished during their service Original Jurisdiction – a list of cases that the Supreme Court can hear without any consideration by the lower courts. This is very limited and only a couple of such cases are decided each year. Basically these are lawsuits involving ambassadors of other nations and lawsuits between states. All other cases come to the court via its “Appellate” Jurisdiction which can be modified by Congress. Appellate means there has to be a lower court decide the case first and then that decision is appealed Remember the original battle to define the US Government . The original federal court system had no lower courts. It was left to be a future decision. Tenure for 'good behavior‘. It is possible to impeach and try judges as we impeach and try presidents. Vulnerable judges get the hint and usually resign. Compensation. Congress can’t threaten judges!

31 Building a Court System
The Judiciary Act of 1789 The Supreme Court shall have a Chief Justice and 5 Associate Justices. There will be 3 (regional) Circuit Courts (staffed by 2 Supreme Court Justices and 1 District Court Judge) There will be 13 district courts (1 per state) and each staffed by a federal District Court Judge.

32 The Original Colonies/States
Two Justices went north, two traveled among the middle states, and 2 went south to hold appeals

33 Building a Court System
Evarts Act of 1891 Established the US Courts of Appeals while abolishing the Circuit Courts (which existed as a dual appeals system until 1911). Designed to eliminate “circuit riding” by Supreme Court justices. 9 regions

34 Building a Court System
Judiciary Act of 1925 Gave the US Supreme Court what it wanted most: control over its caseload.

35 The “Least Dangerous Branch”
In Federalist # 78, Alexander Hamilton argued that the judiciary would be the “least dangerous branch of government. It lacked the teeth of both the other branches of government; it had neither the power of the sword nor the power of the purse.” WHAT THIS MEANS: The court can not fund programs or their implementation and it can not force compliance with its rulings.

36 The “Least Dangerous Branch”
Today the federal courts are more powerful than Hamilton anticipated. Nevertheless, the courts still suffer the two basic limitations that Hamilton identified. WHAT THIS MEANS: The court can not fund programs or their implementation and it can not force compliance with its rulings.

37 Three Layers of the Federal Courts


39 Geography of Courts of Appeals

40 Here’s what Warren Burger had to get involved as Chief Justice in the Administration of the court system.

41 The American Legal System
The American legal system is a dual system: State courts Federal courts Both systems (usually) have three tiers: Trial courts Intermediate appellate courts High or supreme courts FEDERAL CASES (According to Art. III): Federal laws, Admiralty/Maritime Laws, Treaties, Controversies in which the US government is a party, Disputes between states, Disputes between citizens of a state and another state or foreign nation. (“DIVERSITY”) State courts--actually 50 different ‘systems’ (and 52 State Supreme Courts!) States courts process most (almost 99%) civil and criminal disputes. Trial courts--litigation begins and courts hear the facts of the case at hand (original jurisdiction) Appellate courts--decide questions of law, not fact (appellate jurisdiction) High or supreme courts (TX and OK have 2)

42 State Court Questions How many states have their own court system?
All of them! How many state supreme courts exist? Hint: 50 would seem a good guess. How about 52?

43 State Court Questions II
How many states have intermediate level courts of appeals? Hint - Not all of them CSM: 40 How many cases do state trial courts handle each year? Hint: In relative terms Many more than the federal trial courts do.

44 The Florida Court System


46 The Montana Court System
Note the lack of a Court of Appeals

47 The Courts in Colorado

48 History of the Colorado Courts
When Colorado became an official territory, a new Supreme Court was established. Its first three justices were appointed by President Abraham Lincoln. This court held its initial session in Denver on July 10, 1861. Colorado was admitted to the union as a state on Aug. 1, 1876. The state’s original constitution provided for a Supreme Court with a bench of three justices, as well as four judicial districts, with one judge serving each

49 History of the Colorado Courts
1876 – 4 judicial districts; 1 judge in each 1881 – 7 judicial districts; 1 judge in each 1887 – 9 judicial districts; 1 judge each, except Arapahoe County (incl. Denver) with 2 1891 – 13 judicial districts; first Court of Appeals 1893 – 2nd judge given to Pueblo area 1895 – 2nd judge given to Colorado Springs area 1905 – Supreme Court given 7 justices; first Court of Appeals abolished 1913 – second Court of Appeals established for a four-year life 1917 – second Court of Appeals abolished 1921 – 14 judicial districts 1945 – 15 judicial districts 1953 – 16 judicial districts 1958 – 18 judicial districts 1963 – 22 judicial districts, the present number 1970 – third and current Court of Appeals was established 1977 – Supreme Court and Court of Appeals moved into current building

50 Colorado Courts Today There are 22 Judicial Districts within the State of Colorado as established by the State Legislature in The last major revision was November 2001 with the consolidation of Broomfield in the 17th Judicial District. Changes in district boundaries require a two-thirds vote of each house of the legislature. As of July 1, 2006, the Colorado Judicial Branch has a total of 275 Judges and Justices: 7 Supreme Court Justices, 19 Court of Appeals Judges, 144 District Court Judges, and 105 County Court Judges. This excludes Denver County Court Judges (17), who are appointed by the Mayor of Denver. There are seven water courts, one in each of the major river basins (South Platte, Arkansas, Rio Grande, Gunnison, Colorado, White, and San Juan rivers). They are divisions of the district court in that basin.

51 The Colorado Supreme Court

52 Colorado Judicial Districts

53 Administrative Agencies
The Government “Residual” (that which remains after we eliminate the courts, legislatures and chief executives) They are the alphabet soup of government

54 NATIONAL STATE LOCAL ICC Licensing Boards Zoning Boards FDA Water Commissions Park Commissions SEC Motor Vehicle Bureaus Port Authorities FTC Tourism Tax Assessors IRS Commerce Mosquito Control

55 Administrative Agencies
Mixture of dependence and independence Creature of the legislature in most instances Diverse Powers: Legislative (Make up rules and regulations) Executive (staff/Inspectors to enforce rules) Judicial (administrative hearings)

56 A Cancerous Growth or Fulfillment of Social Needs
The rest of government has a short attention span: Legislatures move from crisis to crisis Courts from case to case Agencies work day & night (“Who you gonna call?”)

57 Controlling Administrative Behavior
Fear of delegated authority Agencies make laws based on delegated authority. How are we protected from the abuse of power?

58 Controlling Administrative Behavior
Internal Supervision Auditors Reports, Records, Spot Checks External Governing Laws Administrative Procedure Act

59 Administrative Procedures Act of 1946
Publish descriptions of central and field administration Make procedural rules public Inform public of where they can get necessary forms Make rules and regulations publi Give notice of changes to existing rules and regulations Allow public objection in hearings or in written form

60 The Federal Register


62 CFR


64 Judicial Review of Administrative Agencies
Our system of Checks and Balances involves form that just the 3 branches of the national government. A disgruntled individual may take an Agency to court only under certain circumstances: The individual has exhausted all administrative procedures The individual must show standing (a financial stake) Even then Congress has explicitly precluded some lawsuits. The VA is un-sueable in most instances.

65 Judicial Review of Administrative Agencies
Judicial review is “Narrow”; Did the agency follow APA standards? Did the agency follow its enabling legislation? If “YES” to both, courts will usually not overrule but will defer to agency “expertise”. The degree of deferral fluctuates over time and may be a function of the contemporary legal culture. Are agencies valued or perceived as the 1984 image of Big Brother. Are we made as hell and not going to take it any more?

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