Introduction to the American Legal System

Prof. John T. NocklebyDirector, Journalist Law School

Professor John NocklebyDirector, Journalist Law School

Today: Three Goals

1. Overview of legal system—the Third Branch of Government

2. Overview of torts, with special attention to who should pay for losses

3. Perspectives on civil litigation from Pl & Defense lawyers

• Friday: Overview of procedural aspects of civil suits • Breakout: Over view of Class Actions

Co-Equal Branches

Federal

• Legislative• Executive• Judicial

State

• Legislative• Executive• Judicial

Power Relationship of Legal System to Political System

• Judges elected (most states) for term, or appointed (federal & some states)

• Judicial Independence – the idea that neither political system nor powerful

entities should control 3d branch

• Political pressures over 3d branch exercised in limited & controlled fashion

Note: these comments address both Federal and state systems

Political Pressures on 3d Branch

Appropriate:• Public Criticism

• Legislature change underlying law (except Constitutional law)

• Impeachment of judicial officers

• Recall or don’t re-elect judges

• Legislature change law

Not Appropriate:• Ethical constraints: e.g.,

private conferences; judge friends

• Coercion through salary adjustments

• Judges told to do mayor’s, corps’ bidding

• Respond to direct political pressure

• Taking into account status of parties

• Bribes

Political Pressures on 3d Branch

Questionable ?– Contribute large sums to elect judges favorable

to one’s legal position?

The credibility of the legal system hinges on judicial independence

• CEO of Massey Coal Co contributed $3 million to campaign of W.Va. Supreme Court challenger Brent Benjamin, who won.

• Justice Benjamin refused to recuse himself in $50 million lawsuit against Massey ; W.Va SCt ruled 3-2 for Massey Coal

– Caperton v. A. T. Massey Coal Co

Political Pressures on 3d BranchThe credibility of the legal system hinges on judicial independence

– Appeal to US SCt based on due process grounds followed:

» USSCt: 5-4: » held that due process required Benjamin to

recuse himself

– Caperton v. A. T. Massey Coal Co

Political Pressures on 3d Branch

• North Carolina SCt election

Questionable ?

– “Independent” expenditures by Chamber of Commerce attacking a state supreme court justice they don’t like

The credibility of the legal system hinges on judicial independence

Outside Spending Enters Arena of Judicial RacesBy ERIK ECKHOLM

MAY 5, 2014

https://www.youtube.com/watch?v=HgO_Bn8pVfg&feature=youtu.be

Political Pressures on 3d Branch

• To what extent can judges be subjected to political pressures & still remain independent?

• Terri Schiavo case• Institutional Budget coercion

Questionable {State & Federal courts} :

The credibility of the legal system hinges on judicial independence

Relationship of legal system to political system

CONVENIENT MYTHOLOGY:

Political bodies make the law; judicial branch MERELY interprets

The Political Game

SLOGANS:

• “Legislating from the Bench”

• “Strict Constructionist”

• “A Living Constitution”

• “Judges are like umpires; umpires don’t make the rules, they apply them.”

Supreme Court

nominees are asked

about these at confirma-

tion hearings

REAL ISSUES:

• Which theories of judicial lawmaking make the most sense?

• Which theories of interpretation do we want our judges to employ?

• What background and political orientation do we want our judges to have?

Journalists often wonder ….

• What is “the law” concerning a given subject?• How will a certain case come out?

Often difficult to answer because judges make law in the process

of adjudication

Judges make law in THREE Important ways:

1. Judges decide what the general phrases in the Constitution mean (“due process;” “equal protection”)

2. Judges decide what statutes mean, and fill gaps, decipher ambiguities

3. Judges make common law

1. Interpreting the Constitution

A. In U.S., judges have the final word on what the constitution means

• Judicial Review of legislation—Marbury v Madison

B. Judges decide what general phrases mean: • “due process” • “equal protection”• “abridging the freedom of speech”• “Habeas Corpus”

2. Judges Interpret Statutes, Fill Gaps, Adjudicate Ambiguities

• Many statutes incorporate vague language• Entire statutory body of antitrust contained in

few vague phrases (“restraint of trade”; “monopolization”)

• Civil Rights statutes— use broad phrases like “discrimination” or “unequal”

• Political bodies punt difficult issues to judicial system

Legislating from the bench?

3. Common Law

• Examples of common law adjudication:

• Contract disputes [what is a contract? Is that “agreement” enforceable?]

» Arbitration “agreements” in standardized contracts

» “Privacy policies” –websites

• Disputes over property (water rights; land use; nuisance; conflicting uses of land)

In General, Common Law is…

– Judge-made law

– A body of rules and precedents– built up over time—by accretion --i.e., case-by-case; – limited rulemaking for a typically narrow set of

circumstances– Judges make law in the very case that first raises the issue

– This judge-made body of law changes—Over time, judges create new rights and destroy others

Common Law--background

• Antedates U.S. Constitution

• Each state has its own common law—but judges are influenced by developments in other states

• At one time, MOST law in the U.S. was common law; but now:

• Criminal law is entirely legislative• Many statutes, both Fed & State,

intersect/overlap with common law

Common Law

• Examples where judges make the law:• Tort & accident law

» Determine what’s a compensable “harm”» When did someone act “negligently”» What standard should be used to determine

whether products or drugs are defective?• Remedies – damages, injunctions

• Largely employed by state courts (or Fed courts interpreting state law)

• Important because nearly 97% of cases are handled by STATE courts

• A Legislature can change that state’s common law

Common Law

More power dynamics: Legislature >Judicial branch

• Complex conversations between Legislative branch & judicial branch over:– Interpreting statutes– Common law

• Very difficult for the branches to “converse” over Constitutional matters– Constitutional amendment– Appointment of high level judges

“Legal Reasoning”

• A judge will focus on facts of a particular dispute

• She looks to previously-established common law rules

• Adherence to precedent, unless precedent is no longer desirable

• Look for analogies in other areas of law, or to other legal systems

• Look to broader policy goals: what effect will this rule have on society, future disputes?

Legislating?

Civil Litigation: Federal Law vs. State Law

U.S. Constitution State constitution Federal statutes State statutes Federal regulations State regulations Common law .

Federal Law

State Law

CAUTION: Federal courts can hear state law claims; state courts must abide by federal law

U.S. Judicial StructureState Judicial Systems (50 states) Federal Judicial System

Intermediate State Appeals Courts

State Supreme Courts Final word on state law & state constitution

State Trial Courts

U.S. Supreme Court

United States Circuit Courts of Appeals

Federal District Courts (trial court)

[appeals of FEDERAL issues only]

Arbitration Private Judging

Typical appeals: 1. Constitution 2. Pre-emption

OPEN TO

PUBLIC

OPEN TO

PUBLICClosed to public