1. GOVT 2305 The Judiciary Definition and Historical Background

2. This begins a discussion of the last of the three institutions of American and Texas Government. - Judiciary. - United States Federal Courts. - Texas Judicial System.JudiciaryUnited States Federal CourtsTexas Judicial System

3. Blog Posts Appeals Common Law The Judiciary Judicial Elections Judicial Review Texas Judiciary Trials Appeals Common Law The Judiciary Judicial Elections Judicial Review Texas Judiciary Trials

4. To get an idea of what we will cover, you may wish to look at these: Article 3 of the U.S. Constitution and Article 5 of the Texas Constitution Article 3 of the U.S. Constitution Article 5 of the Texas Constitution

5. Let’s review a few basic facts about the judiciary.

6. The United States Judiciary is composed of one Supreme Court, 11 Courts of Appeals, and 94 District Courts, which also include bankruptcy courts.one Supreme Court 11 Courts of Appeals94 District Courts bankruptcy courts

7. The Texas Judiciary is headed by two top courts – The Texas Supreme Court and the Texas Court of Criminal Appeals. Beneath these are 14 Courts of Appeals, district courts, county courts, municipal courts, and justice of the peace courts.Texas Judiciary 14 Courts of Appeals

8. The judiciary is unique among the three branches since its members - on the national level - are appointed for lifetime terms. The President makes the appointment and the Senate confirms it, though confirmation is not a guarantee.

9. Judges in Texas, however, are elected. Appellate and Supreme Court judges are elected in overlapping 6 year partisan elections. This makes them accountable to the general public, but this can make them subject to majoritarian pressures to act against minorities.

10. Judicial appointments were meant to ensure the judges would have the “peculiar qualifications” necessary to hold the office. They are expected to know a few things about the law.

11. In order to ensue that judges are not controlled by whatever entity is appointing them to office, they are given lifetime tenure. This is the source of their independence.

12. While the legislative and executive branches are accountable to the electorate, the national judiciary is subject to the law and the Constitution as they interpret it. This checks the majority – the judiciary is the institution most able to secure the rights of the minority.

13. Because they are appointed, the judiciary is not considered to be a political branch. It does not make decisions subject to public approval. It generally refuses to rule on political questions, leaving those to the legislative and executive branches.

14. The courts are fully detached from the general public, yet public opinion on the court tends to be higher than of the elected institutions.

15. Obviously, Texas is different. We will explore this issue later.

16. The Functions of the Judiciary

17. Definition Judiciary: 1611, from L. judiciarius "of or belonging to a court of justice," from judicium "judgment," from judicem (see judge). The noun meaning "a body of judges, judges collectively" is from 1802. - online etymology dictionaryjudge

18. A Basic Function of the Judiciary Adjudication: The legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved. - Wikipedia Adjudication

19. In a broader sense, the Judiciary in the American governing system does these three things: 1 – it provides a forum for the reconciliation of disputes in society 2 – it interprets statutory and constitutional law 3 – checks the legislative and executive branches

20. Taking each in turn

21. 1 The Judiciary provides a forum for the arbitration of disputes in society.

22. Three ways to categorize disputes Criminal and Civil State and Federal Trials and Appeals

23. A criminal proceeding places a group or a citizen in a confrontation with the state. The accusation is made that a law has been violated.criminal

24. A civil proceeding places the individuals or groups in a confrontation with each other. Most typically it is argued that a contract has been violated, or a damage inflicted (tort).civil

25. Criminal and Civil proceedings are distinct. Each has its own set of rules for how to arrive at a decision and determine punishment.

26. As with the other two branches, separate legal systems exist on each level of government.

27. Disputes involving state laws are handled in state courts, though lower level disputes are handled in county and city courts.

28. Disputes involving federal laws are handled in federal courts. Ultimately all laws have to abide by the U.S. Constitution which means that disputes from any level of government can ultimately be heard by the U.S. Supreme Court.

29. Each level has its own unique judicial system

30. The Unites States Courts

31. The Texas Courts

32. Two (potential) stages in the judicial process: Trial Appeal

33. A trial is a matter of fact An appeal is a matter of process

34. In a trial, evidence is presented to an impartial jury that determines guilt or innocence. In an appeal, a panel of judges determines whether the procedure in the trial was constitutional.

35. 2 Interprets statutory and constitutional law

36. This occurs in the appellate process

37. The meaning of statutory legislation is clarified Clean Water Act Equal Pay Act of 1963 Clean Water Act Equal Pay Act of 1963

38. The same is true for constitutional language

39. “commerce” “necessary and proper” “speech” “probable cause” “cruel and unusual”

40. The precise definition of these words and phrases can be subject to debate.

41. 3 The judiciary checks the legislative and executive branches.

42. Principal Check Judicial Review

43. The power to overturn legislation and actions of the executive. The Constitution would be effectively meaningless without this power residing somewhere.

44. Judicial Review does not exist in the Constitution. The power was considered to be dangerous and subject to abuse. The institution with this power could become tyrannical.

45. In Federalist #78 Alexander Hamilton argues that the judiciary must have the power of judicial review.Federalist #78

46. This was the basis of the decision in Marbury v. Madison where the courts claimed the power for themselves.Marbury v. Madison

47. Historical Background

48. The Development of Legal Code and the Courts

49. We will look at the evolution of two things: Common Law Court System

50. 1 - The Common Law A definition: Law developed by judges through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law.

51. 2 - The Court System We will look at the development of a court procedures (due process, etc) and the gradual development of the courts as independent institutions.

52. Common Law The "common law" was the law that the whole country had in common, rather than particular tribal laws that might apply between smaller communities

53. The development of common law and a court system based on due process under their control helped early British Kings consolidate control over Britain.

54. To better understand common law, let’s compare it to two other categories of law: Statutory Law Constitutional Law

55. The Common Law is Organic Law Develops from the ground up.

56. Statutory Law Written law set down by a legislature

57. Constitutional Law A body of law which establishes governing institutions, and the distribution and exercise of government power.

58. Legal code has been built up over centuries. American legal code was built up from, and includes, British code

59. Important related concepts: Stare Decisis Precedence

60. Stare Decisis Stare Decisis “the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions. The words originate from the Latin phrase Stare decisis et non quieta movere, “’Maintain what has been decided and do not alter that which has been established’". – Wikipedia.

61. Precedence Precedence In common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts. – Wikipedia.common lawlegal systemslegal casecourtfacts

62. In the American System, Constitutional Law is supreme. Any disputes is resolved in favor of the Constitution since it is argued to more reflect the will of the people. The Constitution was ratification by the states, statutory law was not.

63. Alfred the Great Alfred the Great 871 - 899 The Doom Book: An early compilation of laws. A mixture of Saxon and Mosaic Code The Doom Book

64. During this time there was little distinction between the legislative, executive, and judicial institutions.

65. Curia Regis: The Anglo-Saxon kings of England regularly summoned the bishops and great men of the kingdom to a council (Witenagemot), which advised the king and occasionally served as a court of justice. Building upon this foundation, the Norman kings after the Conquest in 1066 developed more effective ways of centralizing royal government. By the end of the eleventh century the king was entrusting business to his Curia, a body of officials appointed from the ranks of the highest noblemen, church leaders, and officers of the royal court. With the king, the Curia Regis administered all of the king's business— financial, legislative, and judicial. From the Curia Regis developed the common-law courts, the Chancery, and even the Parliament. – the free dictionary

66. The Court of Curia Regis would eventually be divided into various different courts with unique functions.

67. Henry II Henry II 1154–1189

68. Replaced trials by ordeal with jury trials. Due process begins to be recognized.

69. Also established a variety of courts Royal Magistrate Court of King’s Bench

70. The Royal Magistrate Courts: Allowed court officials, under authority of the Crown, to adjudicate local disputes.

71. The Court of King’s Bench: The highest court of law in England during the Middle Ages and the Renaissance. Originally, it was the principal court for criminal cases and the place to hear disputes between the citizens and the King.

72. The king had control over the courts, meaning that the courts could become instruments of the king’s arbitrary will.

73. Henry II also established the principle of Habeas Corpus, which would help limit discretionary power.Habeas Corpus

74. Magna Carta Magna Carta (1215) solidified the importance of due process by requiring King John recognize procedural limits to his judicial powers. The Due Process of the Law The Due Processof the Law

75. Clause 36 - In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs. It shall be given gratis, and not refused.

76. Clause 38 - In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

77. Clause 39 - No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

78. Clause 40 - To no one will we sell, to no one deny or delay right or justice.

79. Together these clauses establish the right of habeas corpus.

80. Two British legal commentators who further refined the Common Law and the role of the courts within the governing system Edward Coke (1552 – 1634) William Blackstone (1723 – 1780) Edward Coke William Blackstone

81. Commentaries on the Laws of England

82. The Court ofThe Court of Star Chamber (1341 (?) – 1641) A court fully controlled by the monarch.Star Chamber

83. Prosecuted accusations of seditious libel and political opponents of the monarch

84. “Its procedure was not according to the Common Law. It dispensed with the encumbrance of a jury; it could proceed on rumour alone; it could apply torture; it could inflict any penalty but death. It was thus admirably calculated to be the support of order against anarchy, or of despotism against individual and national liberty.” – Luminarium. Common Law

85. “Under James I and Charles I... the Star Chamber became the great engine of the royal tyranny. Hateful and excessive punishments were inflicted on those brought before the court... and the odium which it gathered around it was one of the causes which led to the popular discontent against Charles I.” – Luminarium.James ICharles I

86. Example of judiciary controlled by the monarch: The Trial of William Penn September 1, 1670 The Trial of William Penn

87. A related trial years later: The Trial of John Peter Zenger August 5, 1735 Jury Nullification Seditious Libel The Trial of John Peter Zenger

88. The English Bill of Rights (1689) listed judicial abuses committed by James II and established restrictions for future monarchs on their influence on the judiciary.English Bill of Rights

89. - By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;

90. - By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal coursesCourt of King's Bench

91. - By partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders

92. - By excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;

93. - excessive fines have been imposed; - illegal and cruel punishments inflicted;

94. As a consequence, the judiciary achieved independence from the executive.

95. Several grievances listed in the Declaration of Independence concern George III’s usurpations of colonial judicial power

96. Grievances 1 - He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

97. Grievances 2 - He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

98. Grievances 3 - For protecting them [armed troops], by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states.

99. Grievances 4 - For depriving us, in many cases, of the benefits of trial by jury.

100. Grievances 5 - For transporting us beyond seas, to be tried for pretended offenses.