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What is the purpose of law?

What is the purpose of law?


School: Weber State University
Department: Political Science
Course: Law and Courts
Professor: Richard price
Term: Fall 2018
Tags: Law, school, courts, and justices
Cost: 50
Name: Study Guide 1
Description: Reading and class notes from the past 5 weeks to help fill out the study guide handed out by professor. If you have any questions or want to create a study group please feel free to email me in Canvas.
Uploaded: 09/23/2018
31 Pages 55 Views 4 Unlocks

carlycassidy (Rating: )


What is the purpose of law?

What is Law?

Law is a collection of principles and regulations established  by judicial decision or by a designed authority in a  community and applicable to the people of that community in the form of legislation (AJP 4)

Types of Law  

∙ Positive Law is man-made law that confers or denies  privileges to individuals or groups; Examples:  

constitutions, statutes, and judicial opinions; Traced back to philosophers such as Thomas Hobbes who argued that compliance with the laws of man was essential for civil  peace and security (AJP 7) We also discuss several other topics like What did max weber mean when he said that the modern state exerts a monopoly on legitimate force?
If you want to learn more check out What is the first step in the williamson ether synthesis?
We also discuss several other topics like What kind of bond is formed between water molecules?

∙ Natural Law is the idea that law reflects or is based on, a built-in sense of right and wrong; better described as  ‘God’s Law’, ‘divine law’, or ‘moral law’; proponents  argue that there were natural rights that men possessed  before the formation of political society; positive law  derives its legitimacy form natural law and natural law  shall prevail; reflected in the Declaration of  

Is law school worth it?

We also discuss several other topics like What important principle did the mayflower compact establish?

Independence and US Constitution (AJP 7)

∙ Common law system is based on precedent which means it is judge made law in the form of judicial decisions  handed down over time; principle of past decisions is  referred to as stare decisis which means ‘let the decision stand’; the decision of a higher court must be followed  by a lower court (AJP 7)

∙ Civil Law System is based on a fixed body of written  rules usually made by legislators; derived from the codes of the Roman Empire; sometimes called statutory or  code law; rely on a precedent called Jurisprudence  constante (AJP 7)

∙ United states is a mix of common and civil law

∙ Private Law governs relationships among individuals (AJP 8)

∙ Public law governs relationships among individuals and  the state (AJP 9)

Are lawyers unhappy?

∙ Criminal law refers to felonies (murder, rape, armed  robbery, and perjury) and misdemeanors (traffic  violations and petty theft)

∙ Civil law deals with disputes between private entities  such as individuals or corporations (AJP 9) Don't forget about the age old question of Describe the dynamic lung volumes.

What is the purpose of Law?

∙ Law promotes order

∙ There is a general understanding that rules are  necessary to keep people from harming one another ∙ Law helps individuals resolve disputes

(AJP 9)

Function of Courts

1. Provide a forum for people to settle their  


2. Promote accepted forms of behavior We also discuss several other topics like Tangible costs defined as what?

3. Monitoring of government action through judicial  review

See more on judicial review on AJP 9

∙ Writ of mandamus: an order of a court requiring an  official under its jurisdiction to perform a particular act  (AJP 9)

The ‘CSI Effect’

For full explanation see AJP 1-4


∙ Shows such as CSI burden prosecution to deliver near  perfect evidence

∙ Therefore, more defendants are being acquitted ∙ Jurors believe that the forensic evidence can provide  undisputable answers

∙ Study comparing CSI watchers to law and order watchers (AJP 1-3)

∙ Forensic science viewers are more confident in their  verdict

∙ The CSI Effect benefits for the prosecution is a myth ∙ Popular legal culture: everything people know or think  they know about law, lawyers, and the legal system ∙ Perry Manson Syndrome: skillful attorneys obtaining  courtroom confessions

Class responses: Rules, Obligations, Defense that becomes a  Law (Legislation), Enforcement, Protection (purpose),  systematic checks and balances

Textbook Answer: a collection of principles an regulations  established by judicial decision or by a designated authority  in a community and applicable to the people of that  community in the form of legislation.  

∙ Norms aren’t rules as they aren’t enforced by  government but by social contract

∙ Law structures how we interact

∙ Justice is delivered by the rules of the system and  doesn’t fall under the definition of law; therefore, justice  and law are treated as two different things. Example: the death penalty controversy

∙ The normative reaction is different for everybody. Natural v. Positive


Based on concepts of  right and wrong in nature

Law is the action of any  recognizable government

“God’s Law”; tends to  have a religious base in  catholic law  


Only requires authority over  that territory

Gives natural rights to a  civilization; exist  

separate from the  


“might makes right” which  allows for a possible abusive  government

Government is used to  protect rights

Example: Chile had a history  of democracy which was  replaced with military  

dictatorship. Justified by that  they weren’t doing anything  wrong.

Morality and law: takes  justice component very  seriously

A democratic gloss: the will  of the majority should govern

Law is there is to ensure  moral behavior

James Madison: tie  

government to closely to the  people then it pushes belief  onto minority

Example: Utah doesn’t  have lotteries because of  the morality of gambling  and it is a self-imposed  tax.

Lack of morality, but don’t  have to separate out  

philosophical and theological implications

Problem: no one knows  what is included in  

natural law

Law and morality are two  different spheres

Very philosophical base

Positive means that it took  some action to make the law

∙ Tend to talk more heavily about positive law


Common v. Civil Law

Derived from Great  Britain and history of  British conquest

Roman roots and  

Continental Europe  primarily France

Judges were sent to  build a system of law  becoming “judge-made  law”

Airs toward positive law

Use principles that  were already in place

Fixed body of law, codified by legislature; law is only  law if it exists in books

Precedent and stare  decisis: see reading  notes 1 for definition

Less powerful than  

common law system

Law is only useful if it  stays predictable

Limited judicial flexibility

‘The life of the has  been logic: it has been  experience’ (Oliver  Wendell Holmes)/  

Common law allows for  experimentation

Jurisprudence Constante:  no language can avoid  ambiguity

Relies on abstract  

principle like in natural  law

∙ The United States is a mix of the two

∙ Early 19th century: each state had different versions of  common law because of growing states


∙ State legislatures take common law principle and write  them into books as a means of coming to order; rise of  statutes

Federal System

State System

United States  


United States Constitution

Federal Statutes

State Constitution

Federal Case Law

State Statutes

State Regulations and  Executive Orders

State Case Law

∙ Federal trumps state statutes, regulations, and case law

∙ All powers must be contained by US Constitution

Purpose of Law

1. Promoting Order

2. Resolving Disputes

3. Protecting Persons and Property from Harm

4. Ensuring Individual Freedom against  

Governmental Infringement

5. Promoting the General Welfare: meant to push  society forward

Function of Courts

1. Proving a Forum for the settlement of grievances 2. Promoting accepted forms of behavior for individuals and groups

3. Making policy


∙ Makes policy broadly

∙ Change who is at fault if needed

4. Monitoring government action through judicial review ∙ Gives judges a lot of freedom on decisions

∙ Our form of judicial review is new but is broadly  accepted

Pop Culture and Law

∙ The focus on law in tv is highly unusual

∙ Tendency with TV to glorify the legal profession ∙ Overly focused on violent crime


AJP Chapter 2

∙ Law school doesn’t teach practical skills but are rather  taught how to think like a lawyer



Law school teaches  practical legal skills

Lawyers learn practical  legal skills on the job from their employer

The fomal legal  

education provided by  law schools has always  been the path a career  as a lawyer

Formal elgal education is a relatively new  

development that  

replaced practical  

apprenticeships as the  path to a career in law

All law students are  created equal: they  obtain the same law

Legal education is highly  competitive and  

hierarchical: school, class


school educations and  become lawyers

rank, and activites  

determine job  


The LSAT tests  

students’ knowledge of  the law

The LSAT contains no  questions on law or any  other substantive topic

The LSAT provides an  objective, neutral  

mthod for admitting law students

Minority applicatns have  substantially lower LSAT  scores than white  


Most law students come from wealthy families  who finance their legal  education

Most law students pay for  their legal education  

through student loans

Typical law school  

course consists of  

students taking notes  while their instructor  lectures

Typical law school courses  are conducted via the  Socratic method of  

students answering a  series of questions posed  by instructors

The final grade in a  typical law school  

course is comprised of  multiple elements  

including participation,  quizzes, research  

papers, and exams

The final grade in a typical law school course is based on a single final exam

Law students earn their final grades in typical  law school courses  

regardless of what the  other students earn

Law students final grades  in typical law school  

courses are based on  mandatory curves

Law students must take the bar exam and  

practice law in the state

Law students may sit for  any state’s bar exam and  may practice in any state


in which they attended  law school

Law students should  take many bar exam  subject matter courses  to help them prepare  for the bar exam

Whether there is a  

relationship between  taking these courses and  the passing the bar exam  is still open for debate

(AJP 22)

Early Legal Education

∙ Classroom teaching is a relatively new development ∙ Traditional English model required lengthy period of  ‘reading the law’ and then an apprenticeship in a  barrister office which was followed in the early  

Americans (AJP 24)  

∙ By 1860 a few law school became the preferred method  of learning law  

∙ Proprietary law schools offered a structured and  systematic approach to legal education but also offered  students a more significant practice component than did  university based law schools (AJP 24)

∙ Langdell, the first dean of Harvard Law School, increased law school to three years instead of 18 months along  with introducing entrance exams, graduation exams,  rigorous coursework and casebook method. AJP 25

∙ In Socratic method, professor played devil’s advocate  forcing the student to defend his/her position

Contemporary Legal Education

∙ Highly competitive process

∙ Grades and test scores have most weight in admission  process (AJP 27)


∙ Consider seven things in application

o Personal statement

o Letters of recommendation

o Personal achievements

o A criterion that schools use to foster diversity ∙ Controversy over ranking law schools based on GPA and  LSAT score

∙ Scholars think that this gives too much weight to GPA  and LSAT scores, ignoring other values

∙ LSAT predicts how well a student will do in law school ∙ Grutter v. Bollinger: universities have a compelling  interest in promoting diversity and that an admissions  process that took race into account did not violate the  US Constitution as long as the applicants were evaluated as individuals and race was used as a plus factor (AJP  34)

∙ Law school is functionally a vocational degree, yet law  students are taught few practical skills

∙ Most new lawyers have an understanding of core skills,  but don’t understand court process

History of Legal Education

∙ Rooted in British tradition

∙ The Apprenticeship model come out of medieval  practices in Europe

o They would have some kind of undergraduate  education

o Training was ‘reading law’ in which lawyers would  have you read law and memorize the law

o Performed office tasks, secretarial and otherwise to  progressing to legal work

o Usually lasted 4-5 years


o Ended with a bar exam, but now it changed to state  by state two day written exam with ethics, multi  choice, and logic sections

o Benefited with practical skills

∙ By the 1800’s this was a very complex process ∙ Problems

o Barriers to entry: have to take the bar in a different  state if choosing to practice in multiple states; in  the past law depended on cultural norms (implicit  biases)

o Uneven training: practical skills were only as good  as the people training you; 1800’s: reformers  

wanted a more regular experience for lawyers which moved to law school

Beginning of Law Schools

∙ Proprietary law school wasn’t attached to university  ∙ More consistent training

∙ Harvard starts the longest running law school program in 1817

o Lecture based and undergraduate

o LL.B.: bachelors of law

o Expertise were supposed to be greater

o Very few lawyers chose this route

∙ Christopher Columbus Langdell

o Created the law school system we know today o Casebook and Socratic method

o Start off with open ended questions

o Takes facts apart from the case and apply them o Graduate degree (J.D.) (Juris Doctor)

∙ 20th century: move to professionalization because of the  ABA Accreditation

o protects national standards of law

o universities are accredited which means you can sit  for a bar exam in any state


∙ Undergraduate GPA and LSAT scores are the most  important for admissions because of US News Report LSAT

o Half day timed test

o Designed to test reading comprehension and reasoning  skills

o GPA matters, but it is secondary

o Argument that people who do better on LSAT do better  in law school

o Statistically significant changes of LSAT scores against  groups of people

Margin of Error

LSAT Score

Percentile Rank




























Increasing Diversity

∙ Law schools changed barrier of entry

∙ 1971, 92.6% were white; 1947, 96.5% were male ∙ Arguments for diversity: law is a system of government  and regulation, concern for equality of opportunity,  diverse student bodies better prepare all students for  interactions in a diverse world

o Affirmative action programs benefited white women most

o Racial and ethnic affirmative action proved more  controversial


o Quotas unconstitutional (California v. Bakke (1978)); Bakke rejected for being too old, he wanted to study medicine at UC Davis,

o Race as a “plus” permissible (Grutter v. Bollinger  [2003] and Fisher v. Texas [2016])  

o Economic consideration


∙ Tuition has increased dramatically

∙ Student debt and loan debt is high

Is Law School Worth It?

∙ Should be paid off within 10 years

∙ $1300 payed off a month ($162,882 [salary]) ∙ 940 a month (112,764)  

∙ income based repayment program lowers monthly  payment

o taxable income

∙ public service loan forgiveness  

o not processed as taxable income

Job Market

∙ a JD is worth a million dollars over your lifetime ∙ 2016, 61.8% graduates got long term, full time lawyer  positions

∙ New lawyers make 77K-85K in 2011


∙ Contracts, torts, civil procedure, property, criminal,  constitutional law, legal research are typical classes for  year 1


∙ Contracts, torts, and property are the most common of  civil law and are typically found on the bar exam ∙ Criminal: procedure, constitutional proceedings, and  difference of misdemeanors and felonies

∙ Constitution: how the courts interpret the constitution ∙ Legal Research: fairly new but is now required; build  actual skills

∙ “the first year they scare you to death, the second year  they work you to death, and the third year they bore you to death” (AJP 35)

Why so scary?

∙ Exams and grading is different  

∙ All grades are based off of a final exam

∙ Grades are all given on a curve

o Fixed grading curve for first year

o Your performance is based on everyone else o Deeply competitive environment because of  class rankings

o Combats grade inflation

o Not all schools grade on curve past first year ∙ Exams are very different

o they won’t recite facts or arguments

o they tend to be a set of facts and you are  

required to issue spot and answer  

o designed to not to get all of them right

o grades come out in Jan and Feb

∙ Class rankings Matter

o Jobs with high salaries

o Law reviews and extracurricular

o But this can foster a toxic environment

∙ Booked based training for the first year

∙ Internet such as LexisNexis, Westlaw, NexisUni  make research for attorneys super easy


∙ Work load is very heavy

∙ The Paper Chase (1973), as seen in the book, gives  an example of the Socratic Method and how  

terrifying 1st year of law can be

The Socratic Method

∙ Professor begins by asking the facts of the case ∙ How the law is applied and the rules that are relevant ∙ Hypothetical facts to tease out the applications of the  legal rules


∙ Psychologically abusive and cruel

o 40% of students experience depression

∙ Harsh on women

o Combative and gender formed

o Men going to battle with each other

∙ Mertz: privileges a decontextualized, pragmatic vision of  law

o Understanding anthropological approaches to law  school

 Recorded all interactions

 Paid grad students to take notes on what  


 Question of justice doesn’t matter in law school  Trains people to focus on abstract qualities of  the law rather than real stories

 A lot of professors avoided the topic of sexual  assault and rape

∙ Abstraction rather than practical lawyering skills o The only think that Socratic method can help  achieve is to appellate court in real life


o Most end up negotiating deals, handling contracts  or other forms of paperwork  

o Most don’t step foot in a court room


∙ Better preparation

o Students who are afraid will prepare better

∙ Develops ability to think fast

o Forces to think and defend fast

∙ Requires students to speak publicly  

∙ Teaches effective legal reasoning

o Sympathy doesn’t help win a case

o Mercenary reasoning


∙ The lawyer’s problematic Moral standing was long ago  codified in terms of an association with the devil  (Galanter, 179)

∙ Another common deflation of the lawyer’s claim to  status and repsect is comparison with the “oldest  profession” Example: A young lawyer, walking down the  street with his wife on his arm, was greeted by a  beautiful young lady. The jealous young wife asked him  who his girlfriend was. “Can’t remember her name,” he  said. “Just a girl I met professionally.” “Whose profession, dear, yours or hers?” (Galanter, 180)



Lawyers work in courtrooms

Lawyers work in offices

Law school graduates work  as practicing attorneys

While most law school  

graduates work as practicing attorneys, some work in jobs


that do not require bar  

passage or even law degrees

The legal profession is the  province of older white males

While older white males  continue to dominate the  profession, gender and racial diversity is on the rise

Lawyers win or lose cases for their clients at trial

Lawyers bargain and  

negotiate in an attempt to  stay out of and settle  

disputes long before they  reach trial

Lawyers have broad  

knowledge of all legal  


Lawyers specialize and know  a great deal about the  

relatively narrow area of the  law in which they specialize

Job of a lawyer is prestigious

The prestige level of different law jobs varies greatly, with  some lawyers holding  

positions that are far more  prestigious than others

Everyone is entitled to an  attorney

There is no absolute right to  legal services and  

representation unless one is  accused of a serious crime

Laywers are unhappy

Lawyers are relatively  


Legal advice is costly and  only the rich can afford  attorneys

Low or no cost legal services  areavailable through the  contingency fee system,  clinics, legal insurance, and  legal aid

Lawyers are unethical  


Lawyers are governed by an  enforceable code of ethics by which the vast majority  abides



∙ most of the work involves reading, writing, and  communication via email and phone at a desk, 58 ∙ some jobs don’t require the bar exam (Corley, 58) ∙ job market is not only tied to the law schools from which  lawyers graduated or the type of law graduates choose  to practice. Careers in the law are also tied to issues of  specialization, prestige, and practice settings. (Corley,  62)

∙ two main fields of law: litigation and transactional law  (Corley, 65)

∙ litigation department: employment, securities, product  liability, intellectual property, and insurance (Corley, 67) ∙ Transactional: merger, acquisition, provate equity, and  real estate transactions (Corley, 67)

∙ Pop culture presents attorneys as courtroom  advocates

∙ To Kill a Mockingbird is the best example of this  stereotype

∙ Reality is that lawyers are transactional and negotiators  and never step foot in a court

Admission to the Bar

∙ All states require an attorney to pass the bar exam ∙ State bar associations regulate competence in the  state

o Multistate bar exam multiple choice along with  local essays which has become less important  o Ethics portion of exam so that the attorney  

doesn’t get in trouble

∙ Character and Fitness Committee


o Must submit entire history: employment, law  suits, location history, school records

o Steven Glass for the New Yorker for fabrication  that got him a lot of fame, went back to law  

school, couldn’t take the bar because of prior  


Legal Profession

∙ Required continued legal education

∙ Must pay fees to state bar association

∙ No single profession

o Prestige

o Salary

o Working conditions

Business v. Public Interest  

Focuses on commerce, trade, employment

Focuses on discrimination,  environmental protection,  rights protection, child  


Example is the ACLU

50% want to work in public  interest

15% take jobs as public  defenders, legal aid, or other cause related groups

∙ Salary matters greatly on what type of law you practice ∙ There has been an increase in lawyers

∙ Declined in lawyers during 21st century

∙ Cartel model: push out competition and was met with  any lawsuits

∙ Modern society is more complicated leading to an  increase in lawyers


∙ New York, Massachusetts, Connecticut, Illinois, and New  Jersey have the highest population of attorneys ∙ Idaho, Arizona, North Dakota, South Carolina, and  Arkansas are the lowest

∙ 30% of lawyers are women (2005)

∙ 5% African American

∙ 3.7% Hispanic

∙ 3.4? Asian American  

∙ Resume Experiment is common in gender discrimination  experiments (intersectionality)

∙ Discrimination tends to be talked about as x vs. y, but  there are multiple identities

o Men benefit from being higher class

o Women are hurt by it

o “The perception was that higher-class women do  not need a job because they have enough money  are married to somebody rich or are going to end up being a helicopter mom”

o low class women were helped by it because the  assumption is they will work harder

Two Worlds of Practice

∙ ‘small town’ v. urban lawyers

o solo practioners or 2-5 lawyer ‘firms’

o generalists who handle a wide range of issues o handle case from start to finish

o lower pay and prestige

 more likely to be in large firms; 20 people or  more

 likely to be specialists in relatively narrow legal fields  

 hand off cases to other specialists over time

 highly prestigious and pay well

∙ Law firm are corporate entities that allow lawyers to  work together

o Partners


 Jointly own and direct firm (shareholders)

 Large firms often divide into equity and non equity partners (they don’t share in profits)

o Associates

 Salaried lawyers on track for partnerships

 Average time to partner is 10.5 years

 Hardworking and good along with networking  with clients

 Billable hours are not measured by the day, but how much time is spent working with client and case

 Must submit timesheets

 First few years takes 60 hours to bill 40 hours ∙ Government Attorneys

o Prosecutors  

o public defenders

 government funded clients for poor clients

o Attorneys General

 Appointed by President confirmed by the  


 Oversight of state legal bureaucracy

 Formal opinions

 Agency representation

∙ Department of commerce

∙ Department of state

∙ Don’t pay well; prestige differs depending on the job in  government

Access to Justice

∙ Integral to court and law operations and we care about  justice

∙ Access to lawyers turns on access to money


∙ 6th Amendment: in all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel  for his defense.

∙ SCOTUS: indigent defendants must be provided with  public assistance

o What indigent means is unclear

o Set maximums for indigent

o SCOTUS: Supreme Court of the United States ∙ In civil cases, no right to supported assistance ∙ Median firm hourly rate: $425 (2012)

∙ Legal clinics

o Tend to be connected to law schools

o 3L are assigned under practicing attorneys to  handle cases

o fill out paperwork, give legal advice, and sometimes appear in court

∙ Legal aid

o Non profit

o Operate on the cheap

o Under funded and over worked

o Primarily in cities

∙ Pro bono assistance

o Lawyer donates time

o Can be out of charity

o Write it off in taxes

o Some associates are required to do pro bono  assistance

o Some state bar requires pro bono hours for lawyers ∙ Contingent Fees

o Lawyer works for no charge but receives percentage of judgement, 30-40%

o Purely an American concept

o Damages are determined by the judge, then fees  are discussed

o Pros: widens access and incentivize lawyers to  maximize effort to win


o Fees are separate from contingency fees

o Mostly appears in tort litigation

o Cons: may over pay attorneys, and may incentivize  lawyers to settle early

Lawyers and Public Perception

∙ Declining respect for the profession

∙ Until the 1970’s, public didn’t generally have negative  view of lawyers

∙ The change

o Criminal justice in 1960: more constraints on  prosecution and police

o Liberal activism

o 1980s: profits when the economy was struggling o Personal Experience

o Pop Culture

∙ Cultivation Effect: rarely know much about something,  especially in politics, so you make judgements based on  false information

∙ Lawyers in Film

o Before 1970: 2/3rd movies portray good lawyers o After: 2/3rd became negative

o Michael Clayton and The Devil’s Advocate portray  awful lawyers  

o Law and Order doesn’t portray defense attorneys  well

Lawyer Jokes

∙ Tracked with social judgments on people or professions ∙ A suspect profession

o Engaged in unethical behavior

∙ Selfish

o Screw you over, out for themselves

∙ No redeeming social value

∙ Laboratory jokes

o Use lawyers for medical experiments


∙ Jokes change as people come more negative towards  lawyers and we change as jokes get more negative

Are Lawyers Unhappy?

∙ We are often told yes

∙ 80% express moderate to extreme satisfaction with  career

∙ Dinovitzer and Garth (2007)

o Satisfaction lower in large firms

o Higher salary, higher satisfaction

o Lower tier schools, higher satisfaction



∙ Authority of a court to determine the merits of a dispute ∙ Initial split is between subject matter  

∙ Personal Jurisdiction: power to hear cases involving  particular parties

o Often complicated

o Theory: court should not be able to assert authority  over you in a state you don’t live in

o Operates on contacts  

∙ Original v. Appellate

∙ Venue Shopping

o Care about juries, judges, and trial speed

o Complex rules of jurisdiction allow plaintiffs to  search for more favorable venues

o This matters for businesses a lot

o Now venue shopping is limited, but common Federal Courts

∙ Federal question jurisdiction

o Federal courts can hear any issue under US  

Constitution or federal statutes


o Diversity of citizenship

 New Yorker v. Connecticut Citizen for example  People of two different states can go to federal  court

 Amount at issue must be greater than $75,000  Only applies state law

 Cases arising out of tort

Federal Courts (Art. III)

∙ Judges appointed by president, confirmed by Senate ∙ Serve “during good behavior”

o Comes out of British experience

o Goes back to a time when the judges served at the  discretion of the king

o Only provision for removing a judge is impeachment o Eight judges were removed from office

o Crimes have included bribery, ethics, joining  confederacy, embezzlement, racketeering, perjury,  drunkenness, unlawful rulings

∙ 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  (Article 3)

o This is all we know about the court structure from  Constitution

o No qualifications

o Congress allowed to create other federal courts:  size, pay, appointments, time served

US District Court

∙ Goes back to first Congress

∙ General trial courts, both civil and criminal

∙ 91 federal judicial districts with 673 authorized  judgeships

∙ Each state has at least one district court


Circuit courts of Appeal

∙ 2 supreme court justices were assigned to circuits to  hear appeals

∙ now they are appellate and separate from the Supreme  Court

∙ 167 judges across 12 circuits

∙ haven’t altered since the 70’s

∙ hear appeals in random 3 judge panels

∙ En Banc review: allows additional review and issue  another verdict

o Rarely happens

∙ No overlap between circuits

US Supreme Court

∙ Article 2: chief justice has to preside over impeachment  of president

∙ Primarily appellate

o Original jurisdiction over disputes between states o Term runs from first Monday in October to end of  June

o Writ of Certiorari

 Discretionary jurisdiction

 Can refuse to hear a case today

 Rule of Four: internal to the court

∙ If four want to hear it then all nine have to

State Courts

∙ Much greater variation

∙ Trial courts

o District court, supreme court, court of common  pleas

o Sometimes split between limited and general  jurisdiction courts

 Separate family courts


∙ Intermediate appellate court

o Mandatory appeals

o Might have more than 2 in a state

∙ State supreme court

o Final authority on meaning of state law

o If there is no intermediate appellate court the state  must hear the case

Choosing Federal Judges

Foundational Question

∙ Independence or accountability?

∙ Pushed more towards independence in federal system o Ex. No pay altering and serving life terms

o Impeachment is rare

∙ The president “shall nominate, and by and with the  Advice and Consent of the Senate, Judges of the  supreme court and all other officers of the united states  (Article II)

∙ Nomination

o President’s selection

o Selecting

 Objective qualifications

 Constitution lacks qualification requirements  US Citizen

 Time on the bench

 Law degree  

 Law Practice

∙ Federal bench 30

∙ Private legal 25

∙ Executive branch 22

∙ State bench 21

∙ US Senate 6

∙ State governorship 3

∙ House of representatives 2


∙ Law school professorship 2

∙ State employee 1

 Ideology (the biggest concern)

 Race/Ethnicity

 Gender

∙ Democrats were more aggressive at  

raising gender equality than  


∙ Sandra de O’Connor was appointed in  

1981 to fulfill a campaign promise  


∙ 1968 Lindon Johnson appoints first African  

American justice, Marshall (Brown v. Board

of Education)

 Age  

∙ President prefers younger justices now  

especially in lower 50’s.  

 Region (less important)

 Religion (less important)

∙ Confirmation

o Formal process used by Senate approve or reject a  nomination

o British judges were chosen by monarch

o Presidents have won 125 out of 162 nominations  (77.2%)

 Not all have sat on supreme court

o Far more frequent to reject nominees in the 1800’s o 1900-1969: President’s won all of their nominees  except one

∙ Factors that contribute to success

o Qualifications

o Political climate that favors the president

 Election?

 House control

 Ideological compatibility (care about most)


 Interest group support/opposition

∙ Many of these groups spend time in court

∙ Chamber of commerce want pro-business

∙ ex. Bush administration 2005; 2  

vacancies; one seat was for Harriet Myer,  

but wasn’t well known; conservative  

interest groups found her unacceptable  

o Senate Hearings 1939-1981  

 Have become the norm

 FBI background check, bank account  

statements, and more

 1981: 253 comments to 987 comments since  1986

 Focus: civil rights, criminal justice, ideology

o Robert Bork and the right to privacy (1987)

 Implied right

 Result could not have been reached by proper  interpretation of the Constitution in relation to  Griswald v. Connecticut (203)

 There is no principled way to decide that one  man’s gratifications are more deserving of  

respect than another’s, or that t one form of  

gratification is more worthy than another…Why is sexual gratification more noble than  

economic gratification (203)

 Gender Equality: I suppose that they were glad  to have the choice between sterilization or  

being fired (207)  

 Civil Rights Act of 1964 embraced a principle of unsurpassed ugliness (213)

∙ This killed his nomination

 Free speech only includes politics

 Rejected 42-58

o Modern Nominations


 No paper trail, few expressed ideas

 More thorough background checks

 Modern presidents like federal judges more  


o Justice Scalia’s death Feb. 2016

 Senate would not consider an Obama nominee  because of election

 Trump’s victory ensured a continuing  

conservative majority

 Unlikely nominees will pass opposition Senate  in future

∙ Lower Federal Courts

o Senatorial courtesy and district courts

o Circuit Courts increasingly contentious

o Filibuster and cloture

 Rule: senators can talk for as long as they want to block a vote

 Cloture: allows majority of the chamber to  

force a vote; it takes 60 senatorss

o Nuclear option, Nov. 2013

 Elimination of the filibuster for anyone below  the supreme court

o When senate and president are divided, delay and  blocking is the norm



We want judges to be accountable to the public in the sense  that they do not exercise power arbitrarily, or ways that  undermine the judicial system they have sworn to uphold,  and will render decisions that reflect public values (161)

Some scholars have argued that the original impetus for  popular election of judges was not only the result of pressure  for judicial accountability but also a function of the legal  


profession’s desire to enhance the power and authority of the judiciary, which would gain a popular base of support to serve as a counterweight against executive and legislative bases of  power (162)

Merit selection blends appointive and elective mechanisms,  with the intention of striking a balance between  independence and accountability (163)

Each state’s constitution prescribes the method by which its  judges will be selected (163)

California, maine, and new jersey use gubernational  appointment: governor appoints judges and that choice must  be confirmed (163)

Legislative Appointment: legislature chooses judges;  currently system in South Carolina and Virginia (164)

Popularly Contested Elections is where the voters choose the  judges which emerged around the era of Jacksonian  democracy (165)

Merit selection systems are hybrid systems that blend  appointment and election in an attempt to incorporate  democratic accountability but temper it to avoid unduly  compromising judicial independence (167)


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