1. The Federal Court System

3. I. The Common Law Tradition
Unlike many other countries, English law is based on common law. Common law is judge-made law based initially on the prevailing custom and eventually on legal precedent. Common law is based on stare decisis, which means to stand on decided cases. If a legal situation occurs that has previously been decided, the decision in the initial case is binding on the current situation. The major advantages to this type of system are efficiency and stability.
federal court can declare the action of a state to be unconstitutional. The federal courts have made over 1,000 such decisions since Since Marbury v. Madison in 1803, the Supreme Court has ruled against Congress over 150 times.
Who is president can make a difference in when a federal judge will decide to leave the bench. In March of 1993, for example, Justice White announced he would retire after the end of the term, in part because he was nominated by a Democrat (John Kennedy) and he wanted a Democratic president to have the opportunity to replace him. Justice Thurgood Marshall used to joke about not stepping down while Ronald Reagan was the president who would appoint his successor. Justice Sandra Day O’Connor stepped down while President George W. Bush was in office, ensuring that a Republican president would select her successor.
. Unlike many other countries, English law is based on common law. Common law is judge-made law based initially on the prevailing custom and eventually on legal precedent. Common law is based on stare decisis, which means to stand on decided cases. If a legal situation occurs that has previously been decided, the decision in the initial case is binding on the current situation. The major advantages to this type of system are efficiency and stability.

4. Sources of American Law
Constitutions
Statutes and Administrative Regulations
Case Law
I.        Sources of American Law
A.     Constitutions. The U.S. Constitution is the supreme law of the land. It outlines the basic structure of our government, and also sets forth the powers of the branches of government. The Constitution also lists some of the important rights held by individuals and limitations on the government. State constitutions are another important source of American law. They provide the structure of state governments and are the guiding documents within the specific states.
B.     Statutes and Administrative Regulations. Statutes are an important source of law. Statutes are laws made by legislatures, including the Congress, state legislatures, and also county legislatures and local councils. These laws often delineate the rights (or responsibilities) of individuals. Administrative regulations are another source of law in the United States. Administrative regulations are rules issued by administrative agencies. Courts often are called upon to interpret administrative regulations.
C.     Case Law. How statutes and constitutions are interpreted by the courts is essential. The rules and principles announced in court decisions constitute a source of American law. In American case law, the doctrine of stare decisis is important. This means that U.S. case law is based on precedent.

5. The Federal Court System
Basic Judicial Requirements
Jurisdiction. The authority to hear and decide cases. Federal courts have jurisdiction in cases that meet one of the following criteria:
The case involves a federal question
The case involves diversity of citizenship
Standing to Sue
I.        The Federal Court System
The United States has a dual court system, comprised of both federal and state courts.
A.     Basic Judicial Requirements.
1.       Jurisdiction. This is the authority to hear and decide cases. The Constitution says that the federal courts have jurisdiction in cases that meet one of the following criteria:
·  The case involves a federal question. A federal question is a legal question that is based, in whole or in part, on the U.S. Constitution, a treaty, or federal law. An example of a case asking a federal question would be one in which a plaintiff asserted his or her civil rights as guaranteed in the Bill of Rights (to free speech, or the free exercise of religion, for example).
·  The case involves diversity of citizenship. Diversity of citizenship means that the parties to a lawsuit are from different states, or that one of the parties is a citizen or government of another country. These cases require a minimum of $75,000 in controversy.
2.       Standing to Sue. Another important criteria is that the party bringing a lawsuit must have “standing to sue.” That is, the party must have suffered harm, or be in danger of suffering harm, and there must be a justiciable a (real, not hypothetical) controversy.

6. III. Jurisdiction of the Courts
Dual Ct System
State = State Laws
Federal = US Law foreign treaties & constitution
Concurrent Jurisdiction

7. Types of Federal Courts
U.S. District Courts
U.S. Courts of Appeals
The United States Supreme Court
Specialized Federal Courts and the War on Terrorism
The FISA Court
Alien “Removal Courts”
A.     Types of Federal Courts. The federal court system is a three-tiered model.
1.       U.S. District Courts. These are trial courts with general jurisdiction. Each state has at least one federal district court, and there are now a total of 94 districts.
2.       U.S. Courts of Appeals. These are appellate courts that hear appeals of decisions of the U.S. District Courts located within their circuits. The Thirteenth Circuit (the Federal Circuit) has national appellate jurisdiction for cases involving the U.S. government. In appellate cases, the cases are not re-tried. Rather, a panel of judges reviews the actions and decisions of the lower court and decides whether a mistake was made. The decisions of the appellate panels are nearly always final, the rare exception being when the U.S. Supreme Court opts to hear an appeal.
3.       The United States Supreme Court. This is the highest court in the country. It has jurisdiction to hear both original and appellate cases, although nearly all of its cases are appellate cases..

8. Geographic Boundaries of Federal District Courts and Circuit Courts of Appeals
A.     Specialized Federal Courts and the War on Terrorism.
1.       The FISA Court. This is a secret court created under the Foreign Intelligence Surveillance Act (FISA) of It was established to issue warrants in espionage cases. After 9/11, the Bush administration extended the powers of this court to cover some criminal cases. Using FISA warrants, law enforcement can conduct secret searches.
2.       Alien “Removal Courts.” The Anti-Terrorism and Effective Death Penalty Act of 1996 created an alien “removal court” to hear evidence against suspected “alien terrorists.” The court is closed to the public. Judges rule on whether there is probable cause for deportation. The defendant cannot see the evidence that the prosecution used to secure the hearing.

9. Federal Dist. Ct.’s created as trial cts
Grand Jury
Petit Jury
Dist Cts carry burden
Alien “Removal Courts”

10. The Supreme Court

11. V. Sup Ct Justices Congress sets # of 8 Assoc & 1 C.J.
Congress sets salary
Congress may impeach
No Const. Definition

12. F. Main duty – Hear and rule on cases
G. C.J. provides leadership
H. Justices also have duties on the federal circuit

13. VI. Appointing Justices
Appt. by Pres – Approved by Congress
Party membership factors
American Bar Association
Interest groups influence
Sitting Justices also have a say
The Senate’s Role

14. VII. Supreme Court Jurisdiction
Has both appellate and original
Original in two cases
1. Reps of foreign Gov.
2. States involved

15. C. Three possibilities
Uphold decision
Overturn Decision
Send it back to be tried again

16. VIII. Court’s Procedures & The Supreme Court at Work
Two Week Sessions
Hear arguments write opinions
Written Opinions interpret law and shape policy

17. IX. How Cases Reach the Court
Mostly Appeals
If dismissed Lower Ct Ruling is Final
Writ of Certiorari
Solicitor General
E. C.J. makes the list, then discuss needs 4/9
F. Some decided by brief

18. When the highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law.
When a federal court holds an act of Congress unconstitutional.
When the solicitor general is pressuring the Court to hear a case.

19. When two lower courts are in disagreement.
When a lower court’s ruling conflicts with an existing Supreme Court ruling.
When a case has broad significance (as in desegregation or abortion decisions).
When a state court has decided a substantial federal question.
I.        The Supreme Court at Work
The Supreme Court begins the first Monday in October and usually adjourns in late June. The nine justices must decide which cases to accept during the term, schedule oral arguments, read the legal briefs from all parties in the case, meet in conference to discuss the issues involved in each case, draft opinions of the Court for each case, and finally write the final opinions for each case. The cases that the Supreme Court has decided have impacted our lives considerably. Their decisions have also had important policy outcomes. In the past several years, the Supreme Court has heard cases regarding states’ rights, capital punishment, abortion, privacy rights, civil rights for minorities, and free speech issues.
A.     Which Cases Reach the Supreme Court? Former Chief Justice William Rehnquist has observed that the selection of Supreme Court cases is somewhat subjective.
1.       Factors that Bear on the Decision. There are conditions that increase a case’s chance of being heard by the Supreme Court. These include:
·  When two lower courts are in disagreement.
·  When a lower court’s ruling conflicts with an existing Supreme Court ruling.
·  When a case has broad significance (as in desegregation or abortion decisions).
·  When a state court has decided a substantial federal question.
·  When the highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law.
·  When a federal court holds an act of Congress unconstitutional.
·  When the solicitor general is pressuring the Court to hear a case. The solicitor general represents the executive branch of the government before the Court.

20. X. Parties and Procedures
Plaintiff, the person or organization that initiates a lawsuit.
Defendant, the person or organization against whom the lawsuit is brought.
Litigate, to engage in a legal proceeding or seek relief in a court of law; to carry on a lawsuit.
A.     Parties to Lawsuits. Key terms: Plaintiff, the person or organization that initiates a lawsuit.
Defendant, the person or organization against whom the lawsuit is brought.
Litigate, to engage in a legal proceeding or seek relief in a court of law; to carry on a lawsuit.

21. Amicus Curiae brief, a brief (a document containing a legal argument supporting a desired outcome in a particular case) filed by a third party, or amicus curiae (Latin for “friend of the court”), who is not directly involved in the litigation but who has an interest in the outcome of the case.
Procedural Rules
1. Civil contempt is failing to comply with a court’s order for the benefit of another party. Criminal contempt is obstructing the administration of justice or bringing the court into disrespect.
Amicus curiae brief, a brief (a document containing a legal argument supporting a desired outcome in a particular case) filed by a third party, or amicus curiae (Latin for “friend of the court”), who is not directly involved in the litigation but who has an interest in the outcome of the case. An example is a class-action suit, a lawsuit seeking damages for “all persons similarly situated.”
B.     Procedural Rules. The parties must comply with procedural rules and orders given by the judge. When a party does not follow a court’s order, the court can cite him or her for contempt. Civil contempt is failing to comply with a court’s order for the benefit of another party. Criminal contempt is obstructing the administration of justice or bringing the court into disrespect.

22. XI. Cases before the Court
Granting Petitions for Review. Review is granted by a writ of certiorari. To issue a writ, a minimum of four justices must agree that the case should be heard by the Supreme Court (the “rule of four”).
Deciding Cases
Once the Court has decided to accept a case, both parties in the case will submit legal briefs and (usually) make oral arguments.
If the Court is unanimous in the ruling, one justice will be assigned to write the opinion of the Court. If the justices are divided on the reasoning of the outcome, there will be a majority opinion and dissenting opinions.
·  represents the executive branch of the government before the Court.
1.       Granting Petitions for Review. Review is granted by a writ of certiorari. To issue a writ, a minimum of four justices must agree that the case should be heard by the Supreme Court (the “rule of four”). This does not mean that all four justices are in agreement as to the outcome of the case in question. Rather they are in agreement that this is an important case worthy of the attention of the Supreme Court.
Deciding Cases. Once the Court has decided to accept a case, both parties in the case will submit legal briefs and engage in oral arguments.
Decisions and Opinions. If the Court is unanimous in the ruling, one justice will be assigned to write the opinion of the Court. If the justices are divided on the reasoning of the outcome, there will be a majority opinion and dissenting opinions. Dissenting opinions are important because they typically form the basis for reversal arguments. On occasion there will be a concurring opinion by a justice. This opinion states a differing point of view on a legal issue, but supports a ruling in agreement with the majority of the Court.

23. XII. Steps in deciding Major Cases
Submit a brief
Oral Arguments
Wed & Fri
About 30 min a case
4 Opinions

24. Unanimous Opinion
Majority Opinion
Concurring Opinion
Dissenting Opinion
F. C.J. or most seniority on winning side picks justice to write opinion

25. Shaping Public Policy

26. XIII. Policymaking and the Courts
Judicial Review: the power of the courts to determine whether a law or action by the other branches of government is constitutional
Judicial Activism and Judicial Restraint
Strict versus Broad Construction
Strict construction, a judicial philosophy that looks to the “letter of the law” when interpreting the Constitution or a particular statute.
Broad construction, a judicial philosophy that looks to the context and purpose of a law when making an interpretation
I.        Policymaking and the Courts
A reason for the vigor of the debates concerning judicial appointments is that the courts play a large role in determining policy throughout the country. One of the important ways for the judiciary to influence policy is through judicial review.
A.     Judicial Review. The power of the courts to determine whether a law or action by the other branches of government is constitutional is known as the power of judicial review. Supreme Court decisions in this regard are important because of the Court’s national jurisdiction. When a state law is ruled unconstitutional by the Supreme Court, it is then likely that other states’ laws will be held invalid as well. Although most people have come to accept the concept of judicial review, bear in mind that this power is not specifically articulated in the Constitution. Rather, Article III speaks in terms of the “judicial power” being given to the Supreme Court, although some commentators argue that the Framers understood judicial review to be encompassed by the concept of judicial power. The idea of judicial review was formally claimed by the Supreme Court in the landmark case of Marbury v. Madison (1803) in a decision written by Chief Justice John Marshall.
B.     Judicial Activism and Judicial Restraint. To some extent the ability of the courts to act as policymakers depends on the activism or the restraint of the courts. If the Court assumes an activist role, it will take a broad view of the Constitution and use its powers to check the activities of governmental bodies when those bodies can be said to exceed their authority. If the Court assumes the role of judicial restraint, the Court will use the power of judicial review sparingly and limit judicial action in the political process. Since the end of Word War II the Court has been much more activist than before, especially on social issues such as civil rights. Activism is sometimes associated with political liberalism and restraint with conservatism, but the reverse is also possible.
C.     Strict versus Broad Construction. Key concepts: Strict construction, a judicial philosophy that looks to the “letter of the law” when interpreting the Constitution or a particular statute. Broad construction, a judicial philosophy that looks to the context and purpose of a law when making an interpretation. As with activism and restraint, broad construction may be associated with liberalism and narrow construction with conservatism. Again, though, these associations can be reversed.

27. XIV. Ideology and the Rehnquist Court
The ideology of the justices determines the kinds of policy that the courts will make.
The Rehnquist Court attempted, to a limited degree, to restore states’ rights. Notably, the Court limited the rights of citizens to sue their own states in federal courts.
The Court has been relatively cautious on civil rights issues, ruling that affirmative action is acceptable but within strict limits. One striking ruling in support of the civil rights of gay men and lesbians, however, was the abolition of anti-sodomy laws in 2003 through Lawrence v. Texas.
A.     Ideology and the Rehnquist Court. The ideology of the justices determines the kinds of policy that the courts will make. Under the leadership of Chief Justice Rehnquist, the Court had been considered conservative, reflecting the philosophical views of the Republican presidents who selected most of the justices on the Court. With the retirement of Sandra Day O’Connor and the death of William Rehnquist, the Court stands ideologically divided. Today, two of the justices, Antonin Scalia and Clarence Thomas are notably conservative. The two new Bush appointees, Chief Justice John Roberts and Samuel Alito, are expected to join Scalia and Thomas to form a four-judge conservative wing. Four members of the Court, John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, line up on the liberal wing of the Court. Justice Anthony Kennedy stands in the center and his decisions control, to a great extent, the direction of the Court.
1.       Federalism. The Rehnquist Court attempted, to a limited degree, to restore states’ rights. Notably, the Court has limited the rights of citizens to sue their own states in federal courts. Also the Rehnquist Court ruled that California’s medicinal marijuana program must yield to the power of Congress to regulate interstate commerce.
2.       Civil Rights. The Rehnquist Court was relatively cautious on civil rights issues, for example ruling that affirmative action is acceptable but within strict limits. One striking ruling in support of the civil rights of gay men and lesbians, however, was the abolition of anti-sodomy laws in 2003 through Lawrence v. Texas.

28. XV. Tools for Shaping Policy
Court Determines Policy in three ways
Judicial Review
Interpreting Laws
Overruling Decisions

29. B. Judicial Review examines all laws
C. J.R. usually overturns state and local laws
Court decides how to interpret the law for that decision
Court likes setting precedent

30. Influencing Court Decisions

31. I. Decisions Based on Law
Law not Personal Ops.
Interpret Laws

32. II. Views Of Justices
Monitor Important Issues
Voters Ops Change

33. III. Communications Some Discuss but mostly in writing
Personal relations can influence outcomes
C.J.’s leadership factor

34. IV. The Court and Society
Authority depends on public support
Decisions reflect society

35. What Checks Our Courts? Executive Checks Legislative Checks
The president has the power to enforce judicial decisions through the use of the bureaucracy. In rare cases a president may refuse to implement a decision. More frequently, presidents use their power of appointment to check the judiciary.
Legislative Checks
Constitutional amendments
Revision of laws
Public Opinion
I.        What Checks Our Courts?
Although the founding fathers considered the judiciary the branch with the least power, the actual power the federal courts can exert on society is quite great. What protection do the people have from the federal judiciary?
A.     Executive Checks. The president has several important methods of checking the judiciary. The president has the power to enforce judicial decisions through the use of the bureaucracy. In rare cases a president may refuse to implement a decision. More frequently, presidents use their power of appointment to check the judiciary. When vacancies occur within the judiciary the president can select judges who are more inclined to view the laws and Constitution from the perspective of the president. As indicated earlier. this power can assist the president in accomplishing goals long after he has left office.
B.     Legislative Checks.
1.       Congress can propose a constitutional amendment if it opposes the Supreme Court’s interpretation of the Constitution.
2.       When the courts make a ruling on a particular law, the legislature can revise the law if the interpretation by a federal court is not what the legislature intended.
C.     Public Opinion. Although the public does not have a direct influence on the selection of members of the judiciary, it does have an indirect influence through the selection of the president. Also, the Court does not operate in a vacuum and is reluctant to make rulings that might be very unpopular.

36. II. Limits n Sup CT Civil Liberties Minor in Foreign Policy
Civil Liberty Appeals
Court Avoids Pol Issues
Others Shape Ct’s Agenda

37. F. Court doesn’t Enforce Decisions

38. V. Balancing the Power President’s Influence President’s support
Congress’s power – overturn ruling by passing Amendments

39. Possible FRQ Question/Ideas
Why do laws exist? What happens if someone violates the law? What if the law is not fair or just? Who makes the law?
Should judges be making policy? Since they are not elected, is it dangerous for those who do not face the public scrutiny in any meaningful way to directly make policy?

40. Possible FRQ Questions/Ideas
What checks do the executive and the legislature have on the judiciary? Does the bureaucracy have any checks? Does the public?