WWS 500 Introduction to American Political Institutions - PowerPoint Presentation

Slide1

WWS 500Introduction to American Political Institutions

Session

5

American Courts and Legal System

Slide2

Outline

What do courts do?

Two ways to organize a legal system

Sources of American law

Judicial Federalism: Federal vs state courts

The Organization of the Federal Courts

The Politics of Administrative Law

The Supreme Court and Social Change

Slide3

What Do Courts Do?

And, what are they good for?

Slide4

The Job(s) of a Court

A court is ALWAYS a

dispute resolution

device

A conflict arises between 2 or more parties

The court definitively resolves their dispute (one side wins, the other side loses) using a rule (law)

One party may be the government

Courts are an alternative to violence or anarchy

In common law systems like the US, high appellate courts are also

policy makers

Slide5

What are courts good for?

Courts provide the scaffolding for markets and impersonal exchange in complex interdependent societies

Think: Contracts, torts, real property, intellectual property, commercial law, family law, criminal law, securities, bankruptcy

“Private law”

This is what courts are about, mostly

Slide6

Imagine …

We tend to take the “scaffolding” for granted but its actually amazing

Think about all that’s involved whenever you use a credit card

The backstopping from courts makes it possible

Slide7

Joined at the Hip …

Because the

Administrative State

affects markets and exchange so profoundly,

courts

are necessarily involved in overseeing agencies

The government as “insurance company” interjects itself into markets throughout the economy

The government then becomes a party in disputes

If the government is to be one of laws, rather than men, Administrative Law necessarily follows

Slide8

Courts and social change

As policy makers, common law courts sometimes act as agents of social change

But this isn’t their real job & its hard and rare for them to do this successfully

Slide9

Two Ways to Organize Judicial Systems

Civil law systems vs. common law systems

Slide10

Civil Law System: Introduction

Also called Roman Law, Code-based law

Prevails in Western Europe, Latin America, parts of Africa, & in Japan

Differs from “common law” system in content, terminology, official sources of law, institutional framework, and structure of legal profession

Almost everything!

Also, its easier to understand

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Civil Law Systems: Basic Features

Source of law is the

legislature

, esp. via a

comprehensive written legal code

Judges are

bureaucrats

who (supposedly) apply the law, not create it

Their decisions have no

official

precedential value

Code contains general principles, for gap filling

Much larger role for scholarly commentary (“legal scientists”)

But, emphasis on a static code

Not on techniques of legal reasoning

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Civil Law Systems: Organization

Two sets of courts, not one unified set

Ordinary Courts

Trial courts

High court (Court of Cassation)

Decides matters of law, not cases

Administrative law courts

Strict SOP

French Revolution

Limited judicial review/constitutional court

Constitutional law is a kind of aberration in a legal system with legislative supremacy

Slide13

Civil Law Systems: Professions

In the US, a lawyer is a lawyer

In Civil Law systems, distinct career paths

Judge (

civil servant

)

Prosecutor (

civil servant

)

Similar to a local District Attorney or federal US Attorney (prosecutor), in criminal matters

But also involved in civil ones, to represent impartial “public interest”

Advocate (similar to attorney-at-law)

Notary (much more important than in US)

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Common Law: Introduction

System based on case law, or

judge-made law

“common” law – same everywhere, not based on local area

Prevails in Britain, countries of the British Commonwealth, and the US (sort of)

US as usual is complicated but has big common law attributes

Slide15

Common Law: History

Originated in decisions of English judges during early Middle Ages

PRECEDES law from Parliament

English Royal courts systematized in early 12

th

century

Precedes modern legislatures

Early emphasis on property law

Development of case reports, concept of precedent or “stare decisis”

Current court is obliged to follow the rules of previous courts

Slide16

Common Law: Basic Features

Key is

incremental creation of rules via dispute resolution

Thus, emphasis on methods of “legal reasoning”: the rules for making rules

Judgment, holding, dictum, ratio

decidendi

Importance of revered “great judges,” cult of the robe

Holmes, Brandeis, Cardozo, Hand; Coke, Mansfield

Slide17

Common Law: Professions

Early apprentice system (“reading” law)

Professionalization of law schools in late 19

th

century

British system of barristers and

soliciters

, vs US system

IMPORTANT: US Judges are quasi-political appointees

In some states, they are elected (!)

Slide18

Sources of American Law

Five Sources

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Five Sources of American Law

Constitution

– made by the Constitutional Convention (if written).

Statutes

– made by Congress and state legislatures

Regulations

– made by bureaucrats and have the power of law (the biggest source of law today)

Decree

– made by President or state governors

Case Law

– made by judges themselves, as they hear cases

Slide20

Constitutional Law

Often terse, ambiguous or silent

Judges may “interpret” the Constitution

Sometimes in rather amazing or fanciful ways

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Statutes

Statutes may be encompassing (codes) but more frequently are sketchy, ambiguous, confused, poorly written, inconsistent or flat-out contradictory

Judges “interpret” (declare) the meaning of statutes

Judges may review the legality of the legislature’s laws, striking down laws or parts of laws as unconstitutional

Not explicit in the Constitution but has become well-established over time (a complicated and interesting story)

Slide22

Regulation & Agency Actions

Judges may review the legality of a regulation

Procedurally: Under the Administrative Procedures Act (more later!)

Substantively: Under the statute giving the agency authority to issue the regulation

Judges may interpret the meaning of regulation

Judges may also review whether the agency otherwise acted legally

Slide23

Executive Decree

Ditto

Does the President have the authority to do this?

What does the executive order actually mean?

Slide24

Case Law

Judge-made law

Judges can apply or change

Slide25

Judicial Federalism

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Judicial Federalism

Federalism: system of jointly sovereign national and state governments

Result: 51 different judicial systems in the US (!)

Relationship between them very complicated, hinges on “jurisdiction”

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Jurisdiction

Jurisdiction = Court has authority to hear a case and decide it

State courts – courts of

general jurisdiction

Jurisdiction presumed until demonstrated otherwise

Federal courts – courts of

limited jurisdiction

Jurisdiction must be affirmatively proven

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1. Initial Balance of Power

Four periods

Period 1: 1789-1864. Dual federalism: Federal courts essentially residual courts

Possibility of no lower federal courts, states do everything with appeals to SC of the 9 original jurisdiction matters

[1801-02 interlude]

Rooted in slavery

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2. Post-Civil War Period

1865-1932: Modified Dual Federalism

Passage of 13

th

, 14

th

, & 15

th

Amendments

Potential expansion of federal role

Retreat by Supreme Court

Slaughterhouse cases

Invalidation of Civil Rights Act of 1875Limited defn of national citizenship

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3. Rise of the Administrative State

1932-present: the Roosevelt Revolution and its wake

Congress creates a vast administrative state (without constitutional amendment)

End of dual federalism: states become quasi- administrative units of the federal govt

Supreme Court validates via rulings

Concurrent expansion of federal judicial power, via administrative law

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4. Rights Consciousness

1940s, 1950s, 1960s: Re-definition of rights and liberties

Led by courts,

esp

US Supreme Court

Key role of interest groups

“Incorporation” of Bill of Rights

Application on Bill of Rights to state & local

govt

Discovery of new rights (e.g., privacy, gay marriage)

Slide32

Judicial Federalism Today

State and local courts still primary

They deal with contracts, torts, property, family law, etc etc

But, huge expansion of federal jurisdiction, hand in hand with rise of administrative state and rights revolution

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Organization of the Federal Judiciary

Slide34

Organization of Federal Courts

“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.” Art III Sec 1

Note extreme importance of

judiciary acts

!

Congress created the federal courts, Congress can change them

Judges have strong protections, the judiciary itself very little

Slide35

Organization

Three tier hierarchy

Did not take current form until late 19

th

century

Geographic organization

Tier 1: District Courts

The trial courts, witnesses and testimony

etc

Tier 2: Courts of Appeal (Circuit Courts)

Must hear all appeals: arguments by lawyers but no witnesses

etc

Tier 3: the Supreme Court

“Discretionary docket” – it chooses its own cases

Slide36

A Medium-Sized Bureaucracy

632 District court judges sitting in 94 district courts

168 judges setting in 13 courts of appeal

The top: 9 justices of the Supreme Court

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Basic Procedures

Trial court: one judge, sometimes a jury (jury is fact oriented)

Courts of Appeals: Each Court has many judges (say, 10+); each case heard by a “panel” of three; cases assigned randomly

Rare “

en

banc” review of own panel decision

Supreme Court: Each case heard by all 9 justices, each may write an opinion, but the opinion or part of opinions receiving majority support is “the” opinion

Slide38

The Pyramid of Review

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Who Appeals?

Critically: The Losing Litigant

An appeal from the district court to a court of appeal is “of right”: the appeals court must hear the case

But, appeals to the Supreme Court are not: the Supreme Court chooses which cases to hear (with a few exceptions)

“discretionary docket” – allows focus on law creation

Slide40

What Do Lower Federal Courts Do?

Criminal cases:15%-20% (War on Drugs)

U.S. Civil: <20%

Private Civil: 60%

Civil rights

Prisoner rights (esp in states)

Administrative: 8% (DC Circuit)

Slide41

What About the Supreme Court?

About 100 cases

75 from federal courts

25 from state courts

Of federal – 10 criminal, 65 civil. From the latter, about half involve the federal government

Perhaps 6 administrative law, 10 directly about civil rights

Slide42

Why a Hierarchy?

Two tasks:

Rule application – in all systems

Law Creation – in common law systems

Claim:

hierarchy is a way to do those tasks better, than without hierarchy

Team/legal approach: better law, less adjudicatory errors

P/A approach: more conformity to principal’s wishes

Slide43

The Politics of Administrative Law

Slide44

The Reality of the Administrative State

Enormous growth of government

The biggest source of law in the modern age is administrative agencies, not legislatures

Administrative rules have the force of law

E.g., the EPA, IRS, OHSA

etc

can do bad things to you

Slide45

Administrative Law: A Missing Part of the Constitution

Where bureaucracy in the Constitution?

So, how to bring bureaucracy within the ambit of the rule of law?

Severe problem for democratic theory … and the lives of citizens

Modern states use one of two methods to handle it

Slide46

English Tradition

Albert Venn Dicey,

Law of the Constitution

Government no different than any other litigant

And, subject to the jurisdiction of general courts

Thus, citizens can sue agencies in general courts, in order to protect their rights

Slide47

French Tradition

Government special

Raison d’etat

Special courts with favorable treatment for the government

Government above the law

Slide48

New Deal Improvisations

Move toward the English model in late 19

th

century, early 20

th

century

But, New Dealers more inclined to French model

Result: series of improvisations, often forced on FDR by the Supreme Court

Example: “Sick Chicken” Case leads to Federal Register

Slide49

Administrative Procedures Act

Key moment: APA 1946

Moves to fill the gap in the US Constitution

But peculiar & partial

Distinction between

substance

&

procedures

Essentially silent about substance

Very

very

prescriptive about procedures (which look rather judicial)

Public notice of intent to issue a regulationPublished draft reg with opportunity for anyone to comment

Agency forced to respond to comments

Then, the agency can be sued in court for failures

Slide50

Results …

Structurally

, federal courts have the opportunity to actively intervene in the substance of agency decisions if they wish

They may need to claim they do so on procedural groups

But, they will be constrained by Congressional commitment to agency purposes

That is: if a federal court strikes down a rule as incompatible with the statute, Congress may override the court (Congress is the 800

lb

gorilla!)

But, in an age of gridlock, Congress often can’t act – giving courts enormous power if they want

Slide51

Partisan Logic of Administrative Law

If: Congress & President aligned

Result: Both want courts to be deferential to agencies

If: Congress & President opposed

And If: Courts aligned with the party controlling Congress

Result: Congress wants hard look at agency actions, President wants deference to agencies

Agencies may face hostile judicial review [like now]

If: Courts aligned with the party controlling the President

Result: Congress can stop the agencies only if gridlock allows legislation

So … Agencies probably free to act aggressively [Trump second term]

Slide52

The Supreme Court & Social Change

Slide53

The Supreme Court has been involved in major social controversies

The rights of freed slaves

Post-Civil War segregation and discrimination against African-Americans

Modern civil rights & school desegregation

Modern voting rights of racial/ethnic minorities

Prayer and religious practice in public schools

Abortion

Gay marriage

Discrimination against homosexuals

Gun control

Slide54

The ability of courts to make real social change … Large or Small?

Overall a very mixed record

Example of limited power:

Brown v Board

and school desegregation

Example of considerable power: state restrictions on gay marriage

Slide55

Why so mixed a record?

“The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Federalist 78

Slide56

Modern social science mostly confirms Hamilton’s insight

There is more to be said on this subject … but not here!