U.S.LEGAL SYSTEM U.S.LEGAL SYSTEMOUTLINE OF THE …...damental protections that the Consti-tution guarantees all Americans. At the same time, millions of Americans transact their day-to-day

U.S.LEGAL SYSTEMU.S.LEGAL SYSTEMOUTLINE OF THEOUTLINE OF THE

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U.S.LEGAL SYSTEMU.S.LEGAL SYSTEMOUTLINE OF THE

INTRODUCTIONThe U.S. Legal System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CHAPTER 1History and Organization of the Federal Judicial System . . . . . . . . . 18

CHAPTER 2History and Organization of State Judicial Systems . . . . . . . . . . . . . . 44

CHAPTER 3Jurisdiction and Policy-Making Boundaries . . . . . . . . . . . . . . . . . . . . 56

CHAPTER 4Lawyers, Litigants, and Interest Groups in the Judicial Process . . . . 72

CHAPTER 5The Criminal Court Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

CHAPTER 6The Civil Court Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

CHAPTER 7Federal Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

CHAPTER 8Implementation and Impact of Judicial Policies . . . . . . . . . . . . . . . . 158

The Constitution of the United States . . . . . . . . . . . . . . . . . . . . . . . . . 177

Amendments to the Constitution of the United States . . . . . . . . . . . 192

Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

C O N T E N T S

U.S.LEGAL SYSTEMU.S.LEGAL SYSTEMOUTLINE OF THE

THEU.S.

LEGALSYSTEM

In this scene from an 1856painting by Junius Brutus Searns,George Washington (standing,right) addresses the ConstitutionalConvention, whose membersdrafted and signed the U.S.Constitution on September 17,1787. The Constitution is theprimary source of law in the United States.

INTRODUCTION

Every business day, courts throughoutthe United States render decisions thattogether affect many thousands ofpeople. Some affect only the parties toa particular legal action, but others ad-judicate rights, benefits, and legalprinciples that have an impact on vir-tually all Americans. Inevitably, manyAmericans may welcome a given rul-ing while others — sometimes manyothers — disapprove. All, however, ac-cept the legitimacy of these decisions,and of the courts’ role as final inter-preter of the law. There can be nomore potent demonstration of thetrust that Americans place in the ruleof law and their confidence in the U.S.legal system.

The pages that follow survey thatsystem. Much of the discussion ex-plains how U.S. courts are organizedand how they work. Courts are centralto the legal system, but they are not the entire system. Every day acrossAmerica, federal, state, and localcourts interpret laws, adjudicate dis-putes under laws, and at times evenstrike down laws as violating the fun-damental protections that the Consti-tution guarantees all Americans. Atthe same time, millions of Americanstransact their day-to-day affairs with-out turning to the courts. They, too,rely upon the legal system. The youngcouple purchasing their first home,two businessmen entering into a con-tract, parents drawing up a will to pro-vide for their children — all require

the predictability and enforceablecommon norms that the rule of lawprovides and the U.S. legal systemguarantees.

This introduction seeks to familiar-ize readers with the basic structureand vocabulary of American law.Subsequent chapters add detail, andafford a sense of how the U.S. legal system has evolved to meet the needs of a growing nation and its ever more complex economic and social realities.

A FEDERAL LEGAL SYSTEM:Overview

The American legal system hasseveral layers, more possiblythan in most other nations.

One reason is the division betweenfederal and state law. To understandthis, it helps to recall that the UnitedStates was founded not as one nation,but as a union of 13 colonies, eachclaiming independence from theBritish Crown. The Declaration ofIndependence (1776) thus spoke of“the good People of these Colonies”but also pronounced that “these United Colonies are, and of Rightought to be, FREE AND INDEPEN-DENT STATES.” The tension betweenone people and several states is aperennial theme in American legalhistory. As explained below, the U.S.Constitution (adopted 1787, ratified1788) began a gradual and at times

6 OUTLINE OF THE U.S. LEGAL SYSTEM

hotly contested shift of power andlegal authority away from the statesand toward the federal government.Still, even today states retain substan-tial authority. Any student of theAmerican legal system must under-stand how jurisdiction is apportionedbetween the federal government andthe states.

The Constitution fixed many of theboundaries between federal and statelaw. It also divided federal poweramong legislative, executive, and judi-cial branches of government (thus creating a “separation of powers”between each branch and enshrining a system of “checks-and-balances”to prevent any one branch from overwhelming the others), each ofwhich contributes distinctively to thelegal system. Within that system, theConstitution delineated the kinds oflaws that Congress might pass.

As if this were not sufficiently com-plex, U.S. law is more than the statutespassed by Congress. In some areas,Congress authorizes administrativeagencies to adopt rules that add detailto statutory requirements. And the entire system rests upon the tradition-al legal principles found in EnglishCommon Law. Although both theConstitution and statutory law super-sede common law, courts continue to apply unwritten common law principles to fill in the gaps where theConstitution is silent and Congresshas not legislated.

SOURCES OF FEDERAL LAW

The United States Constitution

Supremacy of Federal Law

During the period 1781–88, anagreement called the Articlesof Confederation governed

relations among the 13 states. It estab-lished a weak national Congress andleft most authority with the states. TheArticles made no provision for a feder-al judiciary, save a maritime court, al-though each state was enjoined tohonor (afford “full faith and credit”to) the rulings of the others’ courts.

The drafting and ratification ofthe Constitution reflected a growingconsensus that the federal governmentneeded to be strengthened. The legalsystem was one of the areas where this was done. Most significant was the “supremacy clause,” found in Article VI:

This Constitution, and the Laws ofthe United States which shall bemade in Pursuance thereof; and allTreaties made, or which shall bemade, under the Authority of theUnited States, shall be the supremeLaw of the Land; and the Judges inevery State shall be bound thereby,any Thing in the Constitution orLaws of any State to the Contrarynotwithstanding.

This paragraph established the firstprinciple of American law: Where the

INTRODUCTION 7

federal Constitution speaks, no statemay contradict it. Left unclear washow this prohibition might apply tothe federal government itself, and therole of the individual state legal sys-tems in areas not expressly addressedby the new Constitution. Amend-ments would supply part of the an-swer, history still more, but even todayAmericans continue to wrestle withthe precise demarcations between thefederal and state domains.

Each Branch Plays a Role in theLegal System

While the drafters of the Constitutionsought to strengthen the federal gov-ernment, they feared strengthening ittoo much. One means of restrainingthe new regime was to divide it into

branches. As James Madison explainedin Federalist No. 51, “usurpations areguarded against by a division of thegovernment into distinct and separatedepartments.” Each of Madison’s “de-partments,” legislative, executive, andjudiciary, received a measure ofinfluence over the legal system.

Legislative

The Constitution vests in Congress thepower to pass legislation. A proposalconsidered by Congress is called a bill.If a majority of each house of Con-gress — two-thirds should the Presi-dent veto it — votes to adopt a bill, itbecomes law. Federal laws are knownas statutes. The United States Code is a“codification” of federal statutory law.The Code is not itself a law, it merely


The Constitution has vested the power to pass legislation in Congress, here gathered in a jointsession for President George W. Bush’s budget speech in 2001. The executive power, in turn,is entrusted to the President.

presents the statutes in a logicalarrangement. Title 20, for instance,contains the various statutes pertain-ing to Education, and Title 22 thosecovering Foreign Relations.

Congress’ lawmaking power is lim-ited. More precisely, it is delegated bythe American people through theConstitution, which specifies areaswhere Congress may or may not legis-late. Article I, Section 9 of the Consti-tution forbids Congress from passingcertain types of laws. Congress maynot, for instance, pass an “ex post facto”law (a law that applies retroactively, or“after the fact”), or levy a tax on ex-ports. Article I, Section 8 lists areaswhere Congress may legislate. Some ofthese (“To establish Post Offices”) are

quite specific but others, most notably,“To regulate Commerce with foreignNations, and among the several States,”are less so. Obviously the power to in-terpret the less precise delegations isextremely important. Early in theyoung republic’s history, the judiciarybranch assumed this role and thus se-cured an additional and extremelyvital role in the U.S. legal system.

Judicial

As with the other branches, the U.S.judiciary possesses only those powersthe Constitution delegates. The Con-stitution extended federal jurisdictiononly to certain kinds of disputes. Arti-cle III, Section 2 lists them. Two of themost significant are cases involving aquestion of federal law (“all Cases inLaw and Equity, arising under thisConstitution, the Laws of the UnitedStates, and Treaties made…”) and “di-versity” cases, or disputes between cit-izens of two different states. Diversityjurisdiction allows each party to avoidlitigating his case before the courts ofhis adversary’s state.

A second judicial power emerged inthe Republic’s early years. As explainedin Chapter 2, the U.S. Supreme Courtin the case of Marbury v. Madison(1803) interpreted its delegated pow-ers to include the authority to deter-mine whether a statute violated theConstitution and, if it did, to declaresuch a law invalid. A law may be un-constitutional because it violates rightsguaranteed to the people by the Con-

INTRODUCTION 9

Laws passed by one of the 50 statelegislatures, such as the New York StateAssembly shown above during a roll call,apply only to the citizens of that state oroutsiders who reside or do business there.

stitution, or because Article I did notauthorize Congress to pass that kindof legislation.

The power to interpret the consti-tutional provisions that describewhere Congress may legislate is thusvery important. Traditionally, Con-gress has justified many statutes asnecessary to regulate “commerce…among the several States,” or interstatecommerce. This is an elastic concept,difficult to describe with precision. In-deed, one might for nearly any statutedevise a plausible tie between its ob-jectives and the regulation of interstatecommerce. At times, the judicialbranch interpreted the “commerceclause” narrowly. In 1935, for instance,the Supreme Court invalidated a federal law regulating the hours andwages of workers at a New Yorkslaughterhouse because the chickensprocessed there all were sold to NewYork butchers and retailers and hencenot part of interstate commerce. Soonafter this, however, the Supreme Courtbegan to afford President Franklin D.Roosevelt’s New Deal programs morelatitude, and today the federal courtscontinue to interpret broadly the commerce power, although not sobroadly as to justify any legislationthat Congress might pass.

Executive

Article II entrusts to the President of the United States “the executivePower.” Under President GeorgeWashington (1789–1801), the entire

executive branch consisted of the President, Vice President, and the Departments of State, Treasury, War,and Justice. As the nation grew, the ex-ecutive branch grew with it. Todaythere are 15 Cabinet-level Depart-ments. Each houses a number ofBureaus, Agencies, and other entities.Still other parts of the executivebranch lie outside these Departments.All exercise executive power delegatedby the President and thus are respon-sible ultimately to him.

In some areas, the relationship be-tween the executive and the other twobranches is clear. Suppose one or moreindividuals rob a bank. Congress haspassed a statute criminalizing bankrobbery (United States Code, Title 18,Section 2113*). The Federal Bureau of Investigation (FBI), a bureau withinthe Department of Justice, would investigate the crime. When it appre-hended one or more suspects, a Federal Prosecutor (also Departmentof Justice) would attempt to prove thesuspect’s guilt in a trial conducted by aU.S. District Court.

The bank robbery case is a simpleone. But as the nation modernized and


* Technically, the statute applies only to abank that is federally chartered, insured, or amember of the Federal Reserve System.Possibly every bank in the United Statesmeets these criteria, but one that did not,and could not be construed as impactinginterstate commerce, would not be subjectto federal legislation. Federal statutestypically recite a jurisdictional basis: in thiscase, the federal charter requirement.

INTRODUCTION 11

Federal and state courts hear two kinds of disputes: civil and criminal. Here an attorneyrepresenting landowners in a civil action presents his arguments to the South Dakota Supreme Court.

Left, civil law covers statutes pertaining to marriage and divorce. This couple is being marriedin this civil ceremony performed by a judge. At right, a judge in Texas. In the past fewdecades, the U.S. judiciary has expanded to include more women and minorities.

grew, the relationship of the threebranches within the legal systemevolved to accommodate the morecomplex issues of industrial and post-industrial society. The role of the ex-ecutive branch changed most of all. Inthe bank robbery example, Congressneeded little or no special expertise tocraft a statute that criminalized bankrobbery. Suppose instead that law-makers wished to ban “dangerous”drugs from the marketplace, or re-strict the amount of “unhealthful”pollutants in the air. Congress could, ifit chose, specify precise definitions ofthese terms. Sometimes it does so, butincreasingly Congress instead dele-gates a portion of its authority to ad-ministrative agencies housed in theexecutive branch. The Food and DrugAdministration (FDA) thus watchesover the purity of the nation’s foodand pharmaceuticals and the Environ-mental Protection Agency (EPA) reg-ulates how industries impact theearth, water, and air.

Although agencies possess onlypowers that Congress delegates bystatute, these can be quite substantial.They can include the authority topromulgate rules that define with pre-cision more general statutory terms.A law might proscribe “dangerous”amounts of pollutants in the atmos-phere, while an EPA rule defines thesubstances and amounts of each thatwould be considered dangerous.Sometimes a statute empowers anagency to investigate violations of its

rules, to adjudicate those violations,and even to assess penalties!

The courts will invalidate a statutethat grants an agency too muchpower. An important statute called the Administrative Procedure Act(United States Code Title 5, Section551, et. seq.) explains the proceduresagencies must follow when promul-gating rules, judging violations, andimposing penalties. It also lays outhow a party can seek judicial reviewof an agency’s decision.

Other Sources of Law

The most obvious sources of Ameri-can law are the statutes passed byCongress, as supplemented by admin-istrative regulations. Sometimes thesedemarcate clearly the boundaries oflegal and illegal conduct — the bankrobbery example again — but no government can promulgate enoughlaw to cover every situation. Fortu-nately, another body of legal princi-ples and norms helps fill in the gaps,as explained below

Common Law

Where no statute or constitutionalprovision controls, both federal andstate courts often look to the commonlaw, a collection of judicial decisions,customs, and general principles thatbegan centuries ago in England andcontinues to develop today. In manystates, common law continues to holdan important role in contract dis-putes, as state legislatures have not


seen fit to pass statutes covering everypossible contractual contingency.

Judicial Precedent

Courts adjudicate alleged violations of and disputes arising under the law. This often requires that they interpret the law. In doing so, courtsconsider themselves bound by howother courts of equal or superior rankhave previously interpreted a law.This is known as the principle of“stare decisis,” or simply precedent. Ithelps to ensure consistency and predictability. Litigants facing unfa-vorable precedent, or case law, try to distinguish the facts of their partic-ular case from those that produced the earlier decisions.

Sometimes courts interpret the law differently. The Fifth Amendmentto the Constitution, for instance,contains a clause that “[n]o person…shall be compelled in any criminalcase to be a witness against himself.”From time to time, cases arose wherean individual would decline to answera subpoena or otherwise testify on the grounds that his testimony mightsubject him to criminal prosecution— not in the United States but in another country. Would the self-incrimination clause apply here? TheU.S. Court of Appeals for the SecondCircuit ruled it did, but the Fourthand Eleventh Circuits held that it did not.* This effectively meant thatthe law differed depending where in the country a case arose!

Higher-level courts try to resolvethese inconsistencies. The SupremeCourt of the United States, for in-stance, often chooses to hear a casewhen its decision can resolve a divi-sion among the Circuit courts. TheSupreme Court precedent will con-trol, or apply to all the lower federalcourts. In United States v. Balsys, 524U.S. 666 (1998), the Supreme Courtruled that fear of foreign prosecutionis beyond the scope of the Self-Incrimination Clause.**

This ruling became the law of theentire nation, including the SecondCircuit. Any federal court subsequent-ly facing the issue was bound by thehigh court ruling in Balsys. Circuitcourt decisions similarly bind all theDistrict Courts within that circuit.Stare decisis also applies in the variousstate court systems. In this way, prece-dent grows both in volume and explanatory reach.

INTRODUCTION 13

*The U.S. Circuit Court for the SecondCircuit is an appellate court that hearsappeals from the federal district courts in thestates of New York, Connecticut, andVermont. The Fourth Circuit encompassesMaryland, North Carolina, South Carolina,Virginia, and West Virginia, and the EleventhAlabama, Georgia, and Florida. For moreinformation on the organization of thefederal courts, see chapter 1.**The numbers in this sentence comprisethe citation to the Balsys decision. Theyindicate that the Court issued its ruling in theyear 1998 and that the decision appears involume 524 of a series called United StatesReports, beginning on page 666.

DIFFERENT LAWS;DIFFERENT REMEDIES

Given this growing body of law,it is useful to distinguishamong different types of laws

and of actions, or lawsuits, broughtbefore the courts and of the remediesthe law affords in each type of case.

Civil/Criminal

Courts hear two kinds of disputes:civil and criminal. A civil action in-volves two or more private parties, atleast one of which alleges a violationof a statute or some provision of com-mon law. The party initiating the law-suit is the plaintiff; his opponent thedefendant. A defendant can raise acounterclaim against a plaintiff or across-claim against a co-defendant, solong as they are related to the plain-tiff ’s original complaint. Courts preferto hear in a single lawsuit all theclaims arising from a dispute. Busi-ness litigations, as for breach of con-tract, or tort cases, where a party alleges he has been injured by anoth-er’s negligence or willful misconduct,are civil cases.

While most civil litigations are between private parties, the federalgovernment or a state government isalways a party to a criminal action.It prosecutes, in the name of the people, defendants charged with vio-lating laws that prohibit certain con-duct as injurious to the public welfare.Two businesses might litigate a civilaction for breach of contract, but only

the government can charge someonewith murder.

The standards of proof and poten-tial penalties also differ. A criminal de-fendant can be convicted only uponthe determination of guilt “beyond areasonable doubt.” In a civil case, theplaintiff need only show a “prepon-derance of evidence,” a weaker formu-lation that essentially means “morelikely than not.” A convicted criminalcan be imprisoned, but the losingparty in a civil case is liable only forlegal or equitable remedies, as ex-plained below.

Legal and Equitable Remedies

The U.S. legal system affords a widebut not unlimited range of remedies.The criminal statutes typically list for a given offense the range of finesor prison time a court may impose.Other parts of the criminal code mayin some jurisdictions allow stifferpenalties for repeat offenders. Punish-ment for the most serious offenses,or felonies, is more severe than formisdemeanors.

In civil actions, most Americancourts are authorized to chooseamong legal and equitable remedies.The distinction means less today thanin the past but is still worth under-standing. In 13th century England,“courts of law” were authorized to de-cree monetary remedies only. If a defendant’s breach of contract cost the plaintiff £50, such a court couldorder the defendant to pay that sum to


the plaintiff. These damages weresufficient in many instances, but notin others, such as a contract for thesale of a rare artwork or a specific par-cel of land. During the 13th and 14thcenturies, “courts of equity” wereformed. These tribunals fashioned equitable remedies like specific per-formance, which compelled parties to perform their obligations, ratherthan merely forcing them to pay damages for the injury caused by theirnonperformance. By the 19th century,most American jurisdictions hadeliminated the distinction betweenlaw and equity. Today, with rare excep-tions, U.S. courts can award eitherlegal or equitable remedies as the situation requires.

One famous example illustrates thedifferences between civil and criminallaw, and the remedies that each canoffer. The state of California chargedthe former football star O.J. Simpsonwith murder. Had Simpson been con-victed, he would have been impris-oned. He was not convicted, however,as the jury ruled the prosecution failedto prove Simpson’s guilt beyond a rea-sonable doubt. Afterwards, Mrs.Simpson’s family sued Simpson forwrongful death, a civil action. Thejury in this case determined that apreponderance of the evidencedemonstrated Simpson’s responsibili-ty for the death of his wife. It orderedSimpson to pay money damages — alegal remedy — to the plaintiffs.

INTRODUCTION 15

The U.S. Constitution explicitly sets out that large parts of the U.S. legal system remain underthe control of the individual states. Here, Cook County, Illinois, Circuit Court Judge William H.Haddad, left, and Illinois Supreme Court Justice Thomas R. Fitzgerald.

THE ROLE OF STATE LAW INTHE FEDERAL SYSTEM

The Constitution specificallyforbade the states from adopt-ing certain kinds of laws (en-

tering into treaties with foreign nations, coining money). Also, the Ar-ticle VI Supremacy Clause barred statelaws that contradicted either the Con-stitution or federal law. Even so, largeparts of the legal system remainedunder state control. The Constitutionhad carefully specified the areas whereCongress might enact legislation. The

Tenth Amendment to the Constitu-tion (1791) made explicit that statelaw would control elsewhere: “Thepowers not delegated to the UnitedStates by the Constitution, nor pro-hibited by it to the States, are reservedto the States, respectively, or to thepeople.”

There nonetheless remained con-siderable tension between the federalgovernment and the states — overslavery, and ultimately over the rightof a state to leave the federal union.The civil conflict of 1861–65 resolvedboth disputes. It also produced newrestrictions on the state role withinthe legal system: Under the Four-teenth Amendment (1868), “No Stateshall… deprive any person of life, lib-erty or property, without due processof law; nor deny to any person withinits jurisdiction the equal protection ofthe laws.” This amendment greatly ex-panded the federal courts’ ability toinvalidate state laws. Brown v. Board ofEducation (1954), which forbaderacial segregation in the Arkansasstate school system, relied upon this“equal protection clause.”

Beginning in the mid-20th century,a number of the trends outlined above— the rise of the administrative state,a more forceful and expansive judicialinterpretation of due process andequal protection, and a similar expan-sion of Congress’ power to regulatecommerce — combined to enhancethe federal role within the legal system. Even so, much of that system


Family law remains almost exclusively a state matter. Here, Attorney CatherineSmith argues a case involving a childcaregiver’s rights in front of the stateSupreme Court in Olympia, Washington.Chief Justice Gerry L. Alexander, right, andJustice Charles Z. Smith listen.

remains within the state domain.While no state may deny a citizen any right guaranteed by the federalConstitution, many interpret theirown constitutions as bestowing evenmore generous rights and privileges.State courts applying state law contin-ue to decide most contractual dis-putes. The same is true of most criminal cases, and of civil tort ac-tions. Family law, including such mat-ters as marriage and divorce, is almostexclusively a state matter. For mostAmericans most of the time, the legalsystem means the police officers andcourts of their own state, or of the var-ious municipalities and other politicalsubdivisions within that state.

This introduction offers a merethumbnail sketch of the legal system.The remainder of the volume affordsgreater detail, flavor, and understand-ing. Chapters 1 and 2 describe respec-tively how the federal and state courtsystems have been organized, whileChapter 3 explains at length the com-plex question of jurisdiction. Thechapter necessarily delineates the bor-

ders between the federal and statecourts but it also explores the ques-tion of who may sue, and of the kindsof cases courts will hear. Chapter 4 ex-pands the focus from the courts to thegroups who appear before them. Thepractice of law in the United States isstudied, and the typical litigants de-scribed. The chapter also explains therole played by interest groups thatpress particular cases to advance theirsocial and political agendas. Chapter 5details how the courts handle criminalcases while Chapter 6 turns the focusto civil actions. Chapter 7 describeshow federal judges are selected. Thefinal chapter explores how certain ju-dicial decisions — those of highercourts especially — can themselvesamount to a form of policymakingand thus further entwine the judiciaryin a complex relationship with the leg-islative and executive branches. �

— By Michael Jay Friedman

INTRODUCTION 17

Michael Jay Friedman is aProgram Officer in the U.S.Department of State, Bureau ofInternational InformationPrograms. He holds a Ph.D. inAmerican History from theUniversity of Pennsylvania and aJ.D. degree from GeorgetownUniversity Law Center.

C H A P T E R

Chief Justice John Marshall, who headed the U.S. SupremeCourt from 1801 to 1835, in aportrait by Alonzo Chappel.Marshall’s dominance of the Courtallowed him to initiate majorchanges, including adopting thepractice of the Court handingdown a single opinion.

HISTORY AND

ORGANIZATIONOF

THEFEDERALJUDICIALSYSTEM

1

One of the most important, most in-teresting, and, possibly, most confusingfeatures of the judiciary in the UnitedStates is the dual court system; that is,each level of government (state and na-tional) has its own set of courts. Thus,there is a separate court system for eachstate, one for the District of Columbia,and one for the federal government.Some legal problems are resolved en-tirely in the state courts, whereas othersare handled entirely in the federalcourts. Still others may receive atten-tion from both sets of tribunals, whichsometimes causes friction. The federalcourts are discussed in this chapter andthe state courts in chapter 2.

THE HISTORICAL CONTEXT

Prior to the adoption of the Con-stitution, the United States wasgoverned by the Articles of

Confederation. Under the Articles,almost all functions of the nationalgovernment were vested in a single-chamber legislature called Congress.There was no separation of executiveand legislative powers.

The absence of a national judiciarywas considered a major weakness of the Articles of Confederation.Consequently, the delegates gatheredat the Constitutional Convention inPhiladelphia in 1787 expressed wide-spread agreement that a national judi-ciary should be established. A gooddeal of disagreement arose, however,on the specific form that the judicialbranch should take.

The Constitutional Conventionand Article III

The first proposal presented to theConstitutional Convention was theVirginia Plan, which would have setup both a Supreme Court and inferiorfederal courts. Opponents of the Virginia Plan responded with the New Jersey Plan, which called for thecreation of a single federal supremetribunal. Supporters of the New JerseyPlan were especially disturbed by theidea of lower federal courts. They ar-gued that the state courts could hearall cases in the first instance and that aright of appeal to the Supreme Courtwould be sufficient to protect nationalrights and provide uniform judgmentsthroughout the country.

The conflict between the states’rights advocates and the nationalistswas resolved by one of the many compromises that characterized theConstitutional Convention. The com-promise is found in Article III of theConstitution, which begins, “The judi-cial Power of the United States, shallbe vested in one supreme Court, andin such inferior Courts as the Con-gress may from time to time ordainand establish.”

The Judiciary Act of 1789

Once the Constitution was ratified,action on the federal judiciary camequickly. When the new Congress convened in 1789, its first major concern was judicial organization.Discussion of Senate Bill 1 involved


many of the same participants and arguments as were involved in theConstitutional Convention’s debateson the judiciary. Once again, the ques-tion was whether lower federal courtsshould be created at all or whetherfederal claims should first be heard

in state courts. Attempts to resolve this controversy split Congress intotwo distinct groups.

One group, which believed thatfederal law should be adjudicated inthe state courts first and by the U.S.Supreme Court only on appeal, ex-

CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 21

T H E U N I T E D S T A T E S C O U R T S Y S T E M

SUPREME COURT

of the United States

United StatesCourt of Appeal

for theFederal Circuit**


12 Circuit*


for theArmed Forces

U.S. Court of International Trade

U.S. Court of Federal Claims

U.S. Court of Veteran Appeals

Army, Navy-MarineCorps, Air Force,and Coast Guard

Courts of CriminalAppeals

94 U.S. Courts

and

United States Tax Court

* The 12 regional Courts of Appeals also receive cases from a number of federal agencies.

** The Court of Appeals for the Federal Circuit also receives cases from the InternationalTrade Commission, the Merit Systems Protection Board, the Patent and Trademark Office, and the Board of Contract Appeals.

Federal Questions

from State Courts

pressed the fear that the new govern-ment would destroy the rights of thestates. The other group of legislators,suspicious of the parochial prejudiceof state courts, feared that litigantsfrom other states and other countrieswould be dealt with unjustly. This lat-ter group naturally favored a judicialsystem that included lower federalcourts. The law that emerged from thisdebate, the Judiciary Act of 1789, setup a judicial system composed of aSupreme Court, consisting of a chiefjustice and five associate justices; threecircuit courts, each comprising twojustices of the Supreme Court and adistrict judge; and 13 district courts,each presided over by one districtjudge. The power to create inferiorfederal courts, then, was immediatelyexercised. Congress created not onebut two sets of lower courts.

THE U.S. SUPREME COURT

Supreme Court Justice CharlesEvans Hughes wrote in TheSupreme Court of the United

States (1966) that the Court “is dis-tinctly American in conception andfunction, and owes little to prior judi-cial institutions.” To understand whatthe framers of the Constitution envi-sioned for the Court, another Ameri-can concept must be considered: thefederal form of government. TheFounders provided for both a nationalgovernment and state governments;the courts of the states were to bebound by federal laws. However, final

interpretation of federal laws couldnot be left to a state court and certain-ly not to several state tribunals, whosejudgments might disagree. Thus, theSupreme Court must interpret federallegislation. Another of the Founders’intentions was for the federal govern-ment to act directly upon individualcitizens as well as upon the states.

Given the Supreme Court’s impor-tance to the U.S. system of govern-ment, it was perhaps inevitable thatthe Court would evoke great contro-versy. Charles Warren, a leading stu-dent of the Supreme Court, said inThe Supreme Court in United StatesHistory: “Nothing in the Court’s histo-ry is more striking than the fact thatwhile its significant and necessaryplace in the Federal form of Govern-ment has always been recognized bythoughtful and patriotic men, never-theless, no branch of the Governmentand no institution under the Constitu-tion has sustained more continuousattack or reached its present positionafter more vigorous opposition.”

The Court’s First Decade

George Washington, the first presidentof the United States, established twoimportant traditions when he ap-pointed the first Supreme Court jus-tices. First, he began the practice ofnaming to the Court those with whomhe was politically compatible. Wash-ington, the only president ever to havean opportunity to appoint the entirefederal judiciary, filled federal judge-



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ships, without exception, with faithfulmembers of the Federalist Party.Second, Washington’s appointees of-fered roughly equal geographic repre-sentation on the federal courts. Hisfirst six appointees to the SupremeCourt included three Northerners andthree Southerners.

The chief justiceship was the mostimportant appointment Washingtonmade. The president felt that the manto head the first Supreme Courtshould be an eminent lawyer, states-man, executive, and leader. Manynames were presented to Washington,and at least one person formally applied for the position. Ultimately,Washington settled upon John Jay of New York. Although only 44 yearsold, Jay had experience as a lawyer,a judge, and a diplomat. In addition,he was the main drafter of his state’sfirst constitution.

The Supreme Court met for thefirst time on Monday, February 1,1790, in the Royal Exchange, a build-ing located in the Wall Street sectionof New York City, and its first sessionlasted just 10 days. During this periodthe Court selected a clerk, chose a seal,and admitted several lawyers to prac-tice before it in the future. There were,of course, no cases to be decided; theCourt did not rule on a single caseduring its first three years. In spite ofthis insignificant and abbreviated be-ginning, Charles Warren wrote, “TheNew York and the Philadelphia news-papers described the proceedings of

this first session of the Court morefully than any other event connectedwith the new government; and theiraccounts were reproduced in the lead-ing papers of all the states.”

During its first decade the Courtdecided only about 50 cases. Given thescarcity of Supreme Court business inthe early days, Chief Justice Jay’s con-tributions may be traced primarily tohis circuit court decisions and his ju-dicial conduct.

Perhaps the most important of Jay’scontributions, however, was his insis-tence that the Supreme Court couldnot provide legal advice for the execu-tive branch in the form of an advisoryopinion. Jay was asked by TreasurySecretary Alexander Hamilton to issuean opinion on the constitutionality ofa resolution passed by the VirginiaHouse of Representatives, and Presi-dent Washington asked Jay for adviceon questions relating to his NeutralityProclamation. In both instances, Jay’sresponse was a firm “No,” because Ar-ticle III of the Constitution providesthat the Court is to decide only casespertaining to actual controversies.

The Impact of Chief JusticeMarshall

John Marshall served as chief justicefrom 1801 to 1835 and dominated theCourt to a degree unmatched by anyother justice. Marshall’s dominance ofthe Court enabled him to initiatemajor changes in the way opinionswere presented. Prior to his tenure, the


justices ordinarily wrote separateopinions (called “seriatim” opinions –Latin for “one after the other”) inmajor cases. Under Marshall’s stewardship, the Court adopted thepractice of handing down a singleopinion. Marshall’s goal was to keepdissension to a minimum. Arguingthat dissent undermined the Court’sauthority, he tried to persuade the justices to settle their differences pri-vately and then present a united frontto the public. Marshall also used hispowers to involve the Court in the policy-making process. Early in histenure as chief justice, for example, theCourt asserted its power to declare anact of Congress unconstitutional, inMarbury v. Madison (1803).

This case had its beginnings in thepresidential election of 1800, whenThomas Jefferson defeated JohnAdams in his bid for reelection. Beforeleaving office in March 1801, however,Adams and the lame-duck FederalistCongress created several new federaljudgeships. To fill these new positionsAdams nominated, and the Senateconfirmed, loyal Federalists. In addi-tion, Adams named his outgoing secretary of state, John Marshall, to be the new chief justice of theSupreme Court.

As secretary of state it had beenMarshall’s job to deliver the commis-sions of the newly appointed judges.Time ran out, however, and 17 of thecommissions were not delivered be-fore Jefferson’s inauguration. The new

president ordered his secretary ofstate, James Madison, not to deliverthe remaining commissions. One ofthe disappointed nominees wasWilliam Marbury. He and three of hiscolleagues, all confirmed as justices ofthe peace for the District of Columbia,decided to ask the Supreme Court toforce Madison to deliver their com-missions. They relied upon Section 13of the Judiciary Act of 1789, whichgranted the Supreme Court the au-thority to issue writs of mandamus —court orders commanding a public of-ficial to perform an official, nondiscre-tionary duty.

The case placed Marshall in apredicament. Some suggested that he disqualify himself because ofhis earlier involvement as secretary of state. There was also the question of the Court’s power. If Marshall were to grant the writ, Madison(under Jefferson’s orders) would be almost certain to refuse to deliver the commissions. The Supreme Courtwould then be powerless to enforce its order. However, if Marshall refusedto grant the writ, Jefferson would winby default.

The decision Marshall fashionedfrom this seemingly impossiblepredicament was evidence of sheer ge-nius. He declared Section 13 of the Ju-diciary Act of 1789 unconstitutionalbecause it granted original jurisdic-tion to the Supreme Court in excess ofthat specified in Article III of the Con-stitution. Thus the Court’s power to


review and determine the constitu-tionality of acts of Congress was estab-lished. This decision is rightly seen asone of the single most important deci-sions the Supreme Court has everhanded down. A few years later theCourt also claimed the right of judicialreview over actions of state legisla-tures; during Marshall’s tenure it over-turned more than a dozen state lawson constitutional grounds.

The Changing Issue Emphasis ofthe Supreme Court

Until approximately 1865 the legal relationship between the national andstate governments, or cases of federal-ism, dominated the Court’s docket.John Marshall believed in a strong national government and did not hesitate to restrict state policies thatinterfered with its activities. A case in point is Gibbons v. Ogden (1824),in which the Court overturned a statemonopoly over steamboat transporta-tion on the ground that it interferedwith national control over interstatecommerce. Another good example ofMarshall’s use of the Court to expandthe federal government’s powers camein McCulloch v. Maryland (1819), inwhich the chief justice held that the Constitution permitted Congressto establish a national bank. TheCourt’s insistence on a strong nationalgovernment did not significantly di-minish after Marshall’s death. RogerTaney, who succeeded Marshall aschief justice, served from 1836 to

1864. Although the Court’s positionduring this period was not as uni-formly favorable to the federal govern-ment, the Taney Court did not reversethe Marshall Court’s direction.

During the period 1865-1937 issues of economic regulation domi-nated the Court’s docket. The shift in emphasis from federalism to economic regulation was brought onby a growing number of national and state laws aimed at monitoringbusiness activities. As such laws in-creased, so did the number of caseschallenging their constitutionality.Early in this period the Court’s position on regulation was mixed, butby the 1920s the bench had becomequite hostile toward government regulatory policy. Federal regulationswere generally overturned on theground that they were unsupported by constitutional grants of power toCongress, whereas state laws werethrown out mainly as violations ofeconomic rights protected by theFourteenth Amendment.

Since 1937 the Supreme Court hasfocused on civil liberties concerns —in particular, the constitutional guar-antees of freedom of expression andfreedom of religion. In addition, anincreasing number of cases have dealtwith procedural rights of criminal de-fendants. Finally, the Court has decid-ed a great number of cases concerningequal treatment by the government ofracial minorities and other disadvan-taged groups.


The Supreme Court as a PolicyMaker

The Supreme Court’s role as a policymaker derives from the fact that it in-terprets the law. Public policy issuescome before the Court in the form oflegal disputes that must be resolved.

An excellent example may be foundin the area of racial equality. In the late1880s many states enacted laws requir-ing the separation of African Ameri-cans and whites in public facilities. In1890, for instance, Louisiana enacted alaw requiring separate but equal rail-road accommodations for AfricanAmericans and whites. A challengecame two years later. Homer Plessy,who was one-eighth black, protestedagainst the Louisiana law by refusingto move from a seat in the white car ofa train traveling from New Orleans toCovington, Louisiana. Arrested andcharged with violating the statute,Plessy contended that the law was un-constitutional. The U.S. SupremeCourt, in Plessy v. Ferguson (1896), up-held the Louisiana statute. Thus theCourt established the “separate-but-equal” policy that was to reign forabout 60 years. During this periodmany states required that the races sitin different areas of buses, trains, ter-minals, and theaters; use different rest-rooms; and drink from different waterfountains. African Americans weresometimes excluded from restaurantsand public libraries. Perhaps most im-portant, African American studentsoften had to attend inferior schools.

Separation of the races in publicschools was contested in the famouscase Brown v. Board of Education(1954). Parents of African Americanschoolchildren claimed that state lawsrequiring or permitting segregationdeprived them of equal protection of the laws under the FourteenthAmendment. The Supreme Courtruled that separate educational facili-ties are inherently unequal and, there-fore, segregation constitutes a denial ofequal protection. In the Brown deci-sion the Court laid to rest the separate-but-equal doctrine and established apolicy of desegregated public schools.

In an average year the Court de-cides, with signed opinions, between80 and 90 cases. Thousands of othercases are disposed of with less than thefull treatment. Thus the Court deals atlength with a very select set of policyissues that have varied throughout theCourt’s history. In a democracy, broadmatters of public policy are presumedto be left to the elected representativesof the people — not to judicial appointees with life terms. Thus, inprinciple U.S. judges are not supposedto make policy. However, in practicejudges cannot help but make policy tosome extent.

The Supreme Court, however,differs from legislative and executivepolicy makers. Especially important isthe fact that the Court has no self-starting device. The justices must waitfor problems to be brought to them;there can be no judicial policy making


if there is no litigation. The presidentand members of Congress have nosuch constraints. Moreover, even themost assertive Supreme Court is limited to some extent by the actionsof other policy makers, such as lower-court judges, Congress, and the president. The Court depends uponothers to implement or carry out its decisions.

The Supreme Court as FinalArbiter

The Supreme Court has both originaland appellate jurisdiction. Original ju-risdiction means that a court has thepower to hear a case for the first time.Appellate jurisdiction means that ahigher court has the authority to re-view cases originally decided by alower court. The Supreme Court isoverwhelmingly an appellate courtsince most of its time is devoted to reviewing decisions of lower courts. Itis the highest appellate tribunal in the country. As such, it has the finalword in the interpretation of the Constitution, acts of legislative bodies,and treaties — unless the Court’s deci-sion is altered by a constitutionalamendment or, in some instances, byan act of Congress.

Since 1925 a device known as “cer-tiorari” has allowed the SupremeCourt to exercise discretion in decid-ing which cases it should review.Under this method a person may re-quest Supreme Court review of alower court decision; then the justices

determine whether the request shouldbe granted. If review is granted, theCourt issues a writ of certiorari, whichis an order to the lower court to sendup a complete record of the case.When certiorari is denied, the decisionof the lower court stands.

The Supreme Court at Work

The formal session of the SupremeCourt lasts from the first Monday inOctober until the business of the termis completed, usually in late June orJuly. Since 1935 the Supreme Courthas had its own building in Washing-ton, D.C. The imposing five-storymarble building has the words “EqualJustice Under Law” carved above theentrance. It stands across the streetfrom the U.S. Capitol. Formal sessionsof the Court are held in a large court-room that seats 300 people. At thefront of the courtroom is the benchwhere the justices are seated. When theCourt is in session, the chief justice,followed by the eight associate justicesin order of seniority, enters throughthe purple draperies behind the benchand takes a seat. Seats are arranged ac-cording to seniority with the chief jus-tice in the center, the senior associatejustice on the chief justice’s right, thesecond-ranking associate justice onthe left, and continuing alternately indeclining order of seniority. Near thecourtroom are the conference roomwhere the justices decide cases and thechambers that contain offices for thejustices and their staffs.


The Court’s term is divided intosittings of approximately two weekseach, during which it meets in opensession and holds internal confer-ences, and recesses, during which thejustices work behind closed doors asthey consider cases and write opin-ions. The 80 to 90 cases per term thatreceive the Court’s full treatment fol-low a fairly routine pattern.

Oral Argument. Oral arguments aregenerally scheduled on Mondaythrough Wednesday during the sit-tings. The sessions run from 10:00

a.m. until noon and from 1:00 until3:00 p.m. Because the procedure is nota trial or the original hearing of a case,no jury is assembled and no witnessesare called. Instead, the two opposingattorneys present their arguments tothe justices. The general practice is toallow 30 minutes for each side, al-though the Court may decide that ad-ditional time is necessary. The Courtcan normally hear four cases in oneday. Attorneys presenting oral argu-ments are frequently interrupted withquestions from the justices. The oralargument is considered very impor-


The U.S. Supreme Court Building, with thewords “Equal Justice Under Law” carvedabove the entrance.

tant by both attorneys and justices be-cause it is the only stage in the processthat allows such personal exchanges.

The Conference. On Fridays preced-ing the two-week sittings the Courtholds conferences; during sittings itholds conferences on Wednesday af-ternoon and all day Friday. At theWednesday meeting the justices dis-cuss the cases argued on Monday. Atthe Friday conference they discuss thecases that were argued on Tuesday andWednesday, plus any other mattersthat need to be considered. The mostimportant of these other matters arethe certiorari petitions.

Prior to the Friday conference eachjustice is given a list of the cases thatwill be discussed. The conference be-gins at about 9:30 or 10:00 a.m. andruns until 5:30 or 6:00 p.m. As the jus-tices enter the conference room theyshake hands and take their seatsaround a rectangular table. They meetbehind locked doors, and no officialrecord is kept of the discussions. Thechief justice presides over the confer-ence and offers an opinion first in eachcase. The other justices follow in de-scending order of seniority.

A quorum for a decision on a caseis six members; obtaining a quorum isseldom difficult. Cases are sometimes


The nine justices of the present U.S. Supreme Court are shown above. Seated, from left toright: Associate Justices Antonin Scalia and John Paul Stevens; Chief Justice WilliamRenhquist; Associate Justices Sandra Day O’Connor and Anthony Kennedy. Standing, left toright: Associate Justices Ruth Bader Ginsburg, David Souter, Clarence Thomas, and Stephen Breyer.

decided by fewer than nine justices be-cause of vacancies, illnesses, or non-participation resulting from possibleconflicts of interest. Supreme Courtdecisions are made by a majority vote.In case of a tie the lower-court deci-sion is upheld.

Opinion Writing. After a tentativedecision has been reached in confer-ence, the next step is to assign theCourt’s opinion to an individual jus-tice. The chief justice, if voting withthe majority, either writes the opinionor assigns it to another justice whovoted with the majority. When thechief justice votes with the minority,the most senior justice in the majoritymakes the assignment.

After the conference the justicewho will write the Court’s opinion begins work on an initial draft. Otherjustices may work on the case by writing alternative opinions. The com-pleted opinion is circulated to justicesin both the majority and the minoritygroups. The writer seeks to persuadejustices originally in the minority tochange their votes, and to keep his orher majority group intact. A bargain-ing process occurs, and the wording ofthe opinion may be changed in orderto satisfy other justices or obtain theirsupport. A deep division in the Courtmakes it difficult to achieve a clear,coherent opinion and may even resultin a shift in votes or in another jus-tice’s opinion becoming the Court’sofficial ruling.

In most cases a single opinion doesobtain majority support, although fewrulings are unanimous. Those whodisagree with the opinion of the Courtare said to dissent. A dissent does nothave to be accompanied by an opinion;in recent years, however, it usually hasbeen. Whenever more than one justicedissents, each may write an opinion orall may join in a single opinion.

On occasion a justice will agreewith the Court’s decision but differ inhis or her reason for reaching thatconclusion. Such a justice may writewhat is called a concurring opinion.An opinion labeled “concurring anddissenting” agrees with part of a Courtruling but disagrees with other parts.Finally, the Court occasionally issues aper curiam opinion — an unsignedopinion that is usually quite brief.Such opinions are often used when theCourt accepts the case for review butgives it less than full treatment. For ex-ample, it may decide the case withoutbenefit of oral argument and issue aper curiam opinion to explain the dis-position of the case.

THE U.S. COURTS OFAPPEALS

The courts of appeals receive less media coverage than theSupreme Court, but they are

very important in the U.S. judicial system. Considering that the SupremeCourt hands down decisions with full opinions in only 80 to 90 caseseach year, it is apparent that the


courts of appeals are the courts oflast resort for most appeals in the federal court system.

Circuit Courts: 1789-1891

The Judiciary Act of 1789 createdthree circuit courts (courts of ap-peals), each composed of two justicesof the Supreme Court and a districtjudge. The circuit court was to holdtwo sessions each year in each districtwithin the circuit. The district judgebecame primarily responsible for es-tablishing the circuit court’s workload.The two Supreme Court justices thencame into the local area and partici-pated in the cases. This practice tend-ed to give a local rather than nationalfocus to the circuit courts.

The circuit court system was re-garded from the beginning as unsatis-factory, especially by Supreme Courtjustices, who objected to the travelingimposed upon them. Attorney Gener-al Edmund Randolph and PresidentWashington urged relief for theSupreme Court justices. Congressmade a slight change in 1793 by alter-ing the circuit court organization toinclude only one Supreme Court justice and one district judge. In theclosing days of President John Adams’sadministration in 1801, Congresseliminated circuit riding by theSupreme Court justices, authorizedthe appointment of 16 new circuitjudges, and greatly extended the juris-diction of the lower courts.

The new administration of Thomas

Jefferson strongly opposed this action,and Congress repealed it. The CircuitCourt Act of 1802 restored circuit rid-ing by Supreme Court justices and expanded the number of circuits.However, the legislation allowed thecircuit court to be presided over by asingle district judge. Such a changemay seem slight, but it proved to be ofgreat importance. Increasingly, thedistrict judges began to assume re-sponsibility for both district and cir-cuit courts. In practice, then, originaland appellate jurisdiction were both inthe hands of the district judges.

The next major step in the develop-ment of the courts of appeals did notcome until 1869, when Congress ap-proved a measure that authorized theappointment of nine new circuitjudges and reduced the SupremeCourt justices’ circuit court duty toone term every two years. Still, theHigh Court was flooded with cases be-cause there were no limitations on theright of appeal to the Supreme Court.

The Courts of Appeals: 1891 to thePresent

On March 3, 1891, the Evarts Act wassigned into law, creating new courtsknown as circuit courts of appeals.These new tribunals were to hear mostof the appeals from district courts.The old circuit courts, which had existed since 1789, also remained.The new circuit court of appeals wasto consist of one circuit judge, one circuit court of appeals judge, one


district judge, and a Supreme Courtjustice. Two judges constituted a quo-rum in these new courts.

Following passage of the Evarts Act,the federal judiciary had two trial tri-bunals: district courts and circuitcourts. It also had two appellate tri-bunals: circuit courts of appeals andthe Supreme Court. Most appeals oftrial decisions were to go to the circuitcourt of appeals, although the act also allowed direct review in some instances by the Supreme Court. Inshort, creation of the circuit courts ofappeals released the Supreme Courtfrom many petty types of cases.

Appeals could still be made, but theHigh Court would now have muchgreater control over its own workload.Much of its former caseload was thusshifted to the two lower levels of thefederal judiciary.

The next step in the evolution ofthe courts of appeals came in 1911. Inthat year Congress passed legislationabolishing the old circuit courts,which had no appellate jurisdictionand frequently duplicated the func-tions of district courts.

Today the intermediate appellatetribunals are officially known ascourts of appeals, but they continue to


The courts of appeals review cases appealed from federal district courts. Above, Chief JudgeJohn M. Walker, Jr., U.S. Court of Appeals for the Second Circuit, left, administers the oath ofoffice to Barrington D. Parker, Jr., right, as a judge for the same court.

be referred to colloquially as circuitcourts. There are now 12 regionalcourts of appeals, staffed by 179 au-thorized courts of appeals judges. Thecourts of appeals are responsible forreviewing cases appealed from federaldistrict courts (and in some cases fromadministrative agencies) within theboundaries of the circuit. A specializedappellate court came into existence in1982 when Congress established theFederal Circuit, a jurisdictional ratherthan a geographic circuit.

The Review Function of the Courtsof Appeals

Most of the cases reviewed by thecourts of appeals originate in the fed-eral district courts. Litigants disap-pointed with the lower-court decisionmay appeal the case to the court ofappeals of the circuit in which the fed-eral district court is located. The ap-pellate courts have also been given authority to review the decisions ofcertain administrative agencies.

Because the courts of appeals haveno control over which cases arebrought to them, they deal with bothroutine and highly important matters.At one end of the spectrum are frivo-lous appeals or claims that have nosubstance and little or no chance forsuccess. At the other end of the spec-trum are the cases that raise majorquestions of public policy and evokestrong disagreement. Decisions by thecourts of appeals in such cases are like-ly to establish policy for society as a

whole, not just for the specific liti-gants. Civil liberties, reapportion-ment, religion, and education casesprovide good examples of the kinds ofdisputes that may affect all citizens.

There are two purposes of review inthe courts of appeals. The first is errorcorrection. Judges in the various cir-cuits are called upon to monitor theperformance of federal district courtsand federal agencies and to supervisetheir application and interpretation ofnational and state laws. In doing so,the courts of appeals do not seek outnew factual evidence, but instead ex-amine the record of the lower courtfor errors. In the process of correctingerrors the courts of appeals also settledisputes and enforce national law.

The second function is sorting outand developing those few cases worthyof Supreme Court review. The circuitjudges tackle the legal issues earlierthan the Supreme Court justices andmay help shape what they consider re-view-worthy claims. Judicial scholarshave found that appealed cases oftendiffer in their second hearing fromtheir first.

The Courts of Appeals as PolicyMakers

The Supreme Court’s role as a policymaker derives from the fact that it interprets the law, and the same holds true for the courts of appeals.The scope of the courts of appeals’policy-making role takes on added importance, given that they are the


courts of last resort in the vast major-ity of cases.

As an illustration of the far-reaching impact of circuit courtjudges, consider the decision in a case

involving the Fifth Circuit. For severalyears the University of Texas LawSchool (as well as many other lawschools across the country) had beengranting preference to African Ameri-

can and Mexican Americanapplicants to increase theenrollment of minority stu-dents. This practice waschallenged in a federal dis-trict court on the groundthat it discriminatedagainst white and nonpre-ferred minority applicantsin violation of the Four-teenth Amendment. OnMarch 18, 1996, a panel ofFifth Circuit judges ruled inHopwood v. Texas that theFourteenth Amendmentdoes not permit the schoolto discriminate in this wayand that the law school maynot use race as a factor inlaw school admissions. TheU.S. Supreme Court denieda petition for a writ ofcertiorari in the case,thus leaving it the law of the land in Texas,Louisiana, and Mississippi,the states comprising theFifth Circuit. Although itmay technically be true thatonly schools in the FifthCircuit are affected by theruling, an editorial in TheNational Law Journal indi-cates otherwise, noting that


U.S. courts — both at the level of the Appeals Courts and,in several instances, the Supreme Court — often settlepassionately contested issues such as affirmative action inhigher education.

while some “might argue that Hop-wood’s impact is limited to three statesin the South..., the truth is that acrossthe country law school (and other)deans, fearing similar litigation, arescrambling to come up with an alter-native to affirmative action.”

The Courts of Appeals at Work

The courts of appeals do not have thesame degree of discretion as theSupreme Court to decide whether toaccept a case. Still, circuit judges havedeveloped methods for using theirtime as efficiently as possible.

Screening. During the screeningstage the judges decide whether to givean appeal a full review or to dispose ofit in some other way. The docket maybe reduced to some extent by consoli-dating similar claims into single cases,a process that also results in a uniformdecision. In deciding which cases canbe disposed of without oral argument,the courts of appeals increasingly relyon law clerks or staff attorneys. Thesecourt personnel read petitions andbriefs and then submit recommenda-tions to the judges. As a result, manycases are disposed of without reachingthe oral argument stage.

Three-Judge Panels. Those casesgiven the full treatment are normallyconsidered by panels of three judgesrather than by all the judges in the cir-cuit. This means that several cases canbe heard at the same time by different

three-judge panels, often sitting in dif-ferent cities throughout the circuit.

En Banc Proceedings. Occasionally,different three-judge panels within thesame circuit may reach conflicting decisions in similar cases. To resolvesuch conflicts and to promote circuitunanimity, federal statutes provide foran “en banc” (Old French for highseat) procedure in which all the cir-cuit’s judges sit together on a panel anddecide a case. The exception to thisgeneral rule occurs in the large NinthCircuit where assembling all the judgesbecomes too cumbersome. There, enbanc panels normally consist of 11judges. The en banc procedure mayalso be used when the case concernsan issue of extraordinary importance.

Oral Argument. Cases that have sur-vived the screening process and havenot been settled by the litigants arescheduled for oral argument. Attor-neys for each side are given a shortamount of time (as little as 10 min-utes) to discuss the points made intheir written briefs and to answerquestions from the judges.

The Decision. Following the oral ar-gument, the judges may confer brieflyand, if they are in agreement, may an-nounce their decision immediately.Otherwise, a decision will be an-nounced only after the judges conferat greater length. Following the con-ference, some decisions will be


announced with a brief order or percuriam opinion of the court. A smallportion of decisions will be accompa-nied by a longer, signed opinion andperhaps even dissenting and concur-ring opinions. Recent years have seen ageneral decrease in the number ofpublished opinions, although circuitsvary in their practices.

U.S. DISTRICT COURTS

The U.S. district courts representthe basic point of input for thefederal judicial system. Al-

though some cases are later taken to acourt of appeals or perhaps even to theSupreme Court, most federal casesnever move beyond the U.S. trialcourts. In terms of sheer numbers ofcases handled, the district courts arethe workhorses of the federal judici-ary. However, their importance ex-tends beyond simply disposing of alarge number of cases.

The First District Courts

Congress made the decision to create anational network of federal trialcourts when it passed the Judiciary Actof 1789. Section 2 of the act estab-lished 13 district courts by makingeach of the 11 states then in the Uniona district, and by making the parts ofMassachusetts and Virginia that wereto become Maine and Kentucky intoseparate districts. That organizationalscheme established the practice, whichstill exists, of honoring state boundarylines in drawing districts.

The First District Judges

Each federal district court was to bepresided over by a single judge whoresided in the district. As soon as thisbecame known, President Washingtonbegan receiving letters from individu-als desiring appointment to the vari-ous judgeships. Many asked membersof Congress or Vice President JohnAdams to recommend them to Presi-dent Washington. Personal applica-tions were not necessarily successfuland were not the only way in whichnames came to the president’s atten-tion. Harry Innes, for example, wasnot an applicant for the Kentuckyjudgeship but received it after beingrecommended by a member of Con-gress from his state.

As new states came into the Union,additional district courts were created.The additions, along with resigna-tions, gave Washington an opportuni-ty to offer judgeships to 33 people. Allof the judges he appointed were mem-bers of the bar, and all but seven hadstate or local legal experience asjudges, prosecutors, or attorneys gen-eral. Presidents have continued to ap-point lawyers with public servicebackgrounds to the federal bench.

Present Organization of theDistrict Courts

As the country grew, new districtcourts were created. Eventually, Con-gress began to divide some states intomore than one district. California,New York, and Texas have the most,


with four each. Other than consistent-ly honoring state lines, the organiza-tion of district constituencies appearsto follow no rational plan. Size andpopulation vary widely from districtto district. Over the years, a court wasadded for the District of Columbia,and several territories have beenserved by district courts. There arenow U.S. district courts serving the 50states, the District of Columbia,Guam, Puerto Rico, the Virgin Islands,and the Northern Mariana Islands.

The original district courts wereeach assigned one judge. With thegrowth in population and litigation,Congress has periodically had to addjudges to most of the districts. TheFederal Judgeship Act of 1990 created74 new district judgeships, bringingthe current total to 649. Today all districts have more than one judge;the Southern District of New York,which includes Manhattan and theBronx, currently has 28 judges and isthus the largest. Because each federaldistrict court is normally presidedover by a single judge, several trialsmay be in session within the district atany given time.

The District Courts as Trial Courts

Congress established the districtcourts as the trial courts of the federaljudicial system and gave them originaljurisdiction over virtually all cases.They are the only federal courts inwhich attorneys examine and cross-examine witnesses. The factual record

is thus established at this level. Subse-quent appeals of the trial court deci-sion focus on correcting errors ratherthan on reconstructing the facts.

The task of determining the facts ina case often falls to a jury, a group ofcitizens from the community whoserve as impartial arbiters of the factsand apply the law to the facts. TheConstitution guarantees the right to ajury trial in criminal cases in the SixthAmendment and the same right incivil cases in the Seventh Amendment.The right can be waived, however, inwhich case the judge becomes the ar-biter both of questions of fact and ofmatters of law. Such trials are referredto as bench trials.

Two types of juries are associatedwith federal district courts. The grandjury is a group of men and womenconvened to determine whether thereis probable cause to believe that a per-son has committed the federal crimeof which he or she has been accused.Grand jurors meet periodically to hearcharges brought by the U.S. attorney.Petit jurors are chosen at randomfrom the community to hear evidenceand determine whether a defendant ina civil trial has liability or whether adefendant in a criminal trial is guiltyor not guilty. Federal rules call for 12jurors in criminal cases but permitfewer in civil cases. The federal districtcourts generally use six-person juriesin civil cases.

Trial courts are viewed as engagingprimarily in norm enforcement,


whereas appellate courts are seen ashaving greater opportunity to makepolicy. Norm enforcement is closelytied to the administration of justice,because all nations develop standardsconsidered essential to a just and or-derly society. Societal norms are embodied in statutes, administrativeregulations, prior court decisions,and community traditions. Criminalstatutes, for example, incorporate con-cepts of acceptable and unacceptablebehavior into law. A judge deciding acase concerning an alleged violation ofthat law is practicing norm enforce-ment. Because cases of this type rarelyallow the judge to escape the strict re-straints of legal and procedural re-quirements, he or she has little chanceto make new law or develop new poli-cy. In civil cases, too, judges are oftenconfined to norm enforcement, be-cause such litigation generally arisesfrom a private dispute whose outcomeis of interest only to the parties in the suit.

The district courts also play a policy-making role, however. As Amer-icans have become more litigation-conscious, disputes that were once re-solved informally are now more likelyto be decided in a court of law. Thecourts find themselves increasingly in-volved in domains once consideredprivate. What does this mean for thefederal district courts? According toone study, “These new areas of judicialinvolvement tend to be relatively freeof clear, precise appellate court and

legislative guidelines; and as a conse-quence the opportunity for trial courtjurists to write on a clean slate, that is,to make policy, is formidable.”

CONSTITUTIONAL COURTSAND LEGISLATIVE COURTS

The Judiciary Act of 1789 estab-lished the three levels of thefederal court system in exis-

tence today. Periodically, however,Congress has exercised its power,based on Article III and Article I of theConstitution, to create other federalcourts. Courts established under Arti-cle III are known as constitutionalcourts and those created under ArticleI are called legislative courts. TheSupreme Court, courts of appeals, andfederal district courts are constitu-tional courts. Legislative courts include the U.S. Court of Military Ap-peals, the United States Tax Court, andthe Court of Veterans Appeals.

Legislative courts, unlike their constitutional counterparts, often haveadministrative and quasi-legislative aswell as judicial duties. Another differ-ence is that legislative courts are oftencreated for the express purpose ofhelping to administer a specific con-gressional statute. Constitutionalcourts, on the other hand, are tribunalsestablished to handle litigation.

Finally, the constitutional and leg-islative courts vary in their degree ofindependence from the other twobranches of government. Article III(constitutional court) judges serve


during a period of good behavior, orwhat amounts to life tenure. BecauseArticle I (legislative court) judges haveno constitutional guarantee of good-behavior tenure, Congress may setspecific terms of office for them. Insum, the constitutional courts have agreater degree of independence fromthe other two branches of governmentthan the legislative courts.

ADMINISTRATIVE ANDSTAFF SUPPORT IN THEFEDERAL JUDICIARY

Although judges are the mostvisible actors in the judicialsystem, a large supporting cast

is also at work. Their efforts are neces-sary to perform the tasks for whichjudges are unskilled or unsuited, or forwhich they simply do not have ade-quate time. Some members of the sup-port team, such as law clerks, maywork specifically for one judge. Others— for example, U.S. magistrate judges— are assigned to a particular court.Still others may be employees of anagency, such as the Administrative Of-fice of the United States Courts, thatserves the entire judicial system.

U.S. Magistrate Judges

In an effort to help federal districtjudges deal with increased workloads,Congress in 1968 created a system ofmagistrate judges that responds toeach district court’s specific needs andcircumstances. Magistrate judges areappointed by the judges of the district

court for eight-year terms of office, al-though they can be removed beforethe expiration of the term for “goodcause.” Within guidelines set by theCongress, the judges in each districtcourt establish the duties and respon-sibilities of their magistrate judges.The legislation permits a magistratejudge, with the consent of the involvedparties, to conduct all proceedings in ajury or nonjury civil matter and entera judgment in the case and to conducta trial of persons accused of misde-meanors (less serious offenses thanfelonies) committed within the dis-trict, provided the defendants consent.Because the decision to delegate re-sponsibilities to a magistrate judge isstill made by the district judge, howev-er, a magistrate judge’s participation inthe processing of cases may be morenarrow than that permitted by statute.

Law Clerks

The first use of law clerks by an Amer-ican judge is generally traced to Ho-race Gray of Massachusetts. In thesummer of 1875, while serving as chiefjustice of the Massachusetts SupremeCourt, he employed, at his own ex-pense, a highly ranked new graduateof the Harvard Law School. Each year,he employed a new clerk from Har-vard. When Gray was appointed to theU.S. Supreme Court in 1882, hebrought a law clerk with him to thenation’s highest court.

Justice Gray’s successor on theHigh Court was Oliver Wendell


Holmes, who also adopted the prac-tice of annually hiring honor gradu-ates of Harvard Law School as hisclerks. When William Howard Taft, aformer law professor at Yale, becamechief justice, he secured a new lawclerk annually from the dean of theYale Law School. Harlan Fiske Stone,former dean of the Columbia LawSchool, joined the Court in 1925 andmade it his practice to hire a Colum-bia graduate each year.

Since these early beginnings therehas been a steady growth in the use oflaw clerks by all federal courts. Morethan 2,000 law clerks now work forfederal judges, and more than 600serve bankruptcy judges and U.S.magistrate judges. In addition to thelaw clerks hired by individual judges,all appellate courts and some districtcourts hire staff law clerks who servethe entire court.

A law clerk’s duties vary accordingto the preferences of the judge forwhom he or she works. They also varyaccording to the type of court. Lawclerks for federal district judges oftenserve primarily as research assistants.They spend a good deal of time exam-ining the various motions filed in civiland criminal cases. They review eachmotion, noting the issues and the po-sitions of the parties involved, then re-search important points raised in themotions and prepare written memo-randums for the judges. Because theirwork is devoted to the earliest stagesof the litigation process, they may

have a substantial amount of contactwith attorneys and witnesses. Lawclerks at this level may be involved inthe initial drafting of opinions.

At the appellate level, the law clerkbecomes involved in a case first byresearching the issues of law and factpresented by an appeal. The courts ofappeals do not have the same discre-tion to accept or reject a case that theSupreme Court has, and they use cer-tain screening devices to differentiatebetween cases that can be handledquickly and those that require moretime and effort. Law clerks are an inte-gral part of this screening process.

A number of cases are scheduledfor oral argument, and the clerk maybe called upon to assist the judge in preparing for it. Intensive analysisof the record by judges prior to oral argument is not always possible.They seldom have time to do morethan scan pertinent portions of therecord called to their attention by law clerks.

Once a decision has been reachedby an appellate court, the law clerkfrequently participates in writing theorder that accompanies the decision.The clerk’s participation generallyconsists of drafting a preliminaryopinion or order pursuant to thejudge’s directions. A law clerk mayalso be asked to edit or check citations(references to a statute, precedent-setting case, or legal textbook, in abrief or argument in court) in anopinion written by the judge.


The work of the law clerk for aSupreme Court justice roughly parallels that of a clerk in the otherappellate courts. Clerks play an indis-pensable role in helping justices de-cide which cases should be heard. Atthe suggestion of Justice Lewis F. Pow-ell, Jr., in 1972, a majority of theCourt’s members began to participatein a “certpool”; the justices pool theirclerks, divide up all filings, and circu-late a single clerk’s certiorari memo toall those participating in the pool. Thememo summarizes the facts of thecase, the questions of law presented,and the recommended course ofaction — that is, whether the caseshould be granted a full hearing,denied, or dismissed.

Once the justices have voted to heara case, the law clerks, like their coun-terparts in the courts of appeals, pre-pare bench memorandums that thejustices may use during oral argument.Finally, law clerks for Supreme Courtjustices, like those who serve courts ofappeals judges, help to draft opinions.

Administrative Office of the U.S.Courts

The administration of the federal judicial system as a whole is managedby the Administrative Office of theU.S. Courts. Since its creation in 1939it has handled everything from distributing supplies to negotiatingwith other government agencies forcourt accommodations in federalbuildings to maintaining judicial per-

sonnel records and collecting data on cases in the federal courts.

The Administrative Office alsoserves the Judicial Conference of theUnited States, the central administra-tive policy-making organization of thefederal judicial system. In addition toproviding statistical information tothe conference’s many committees,the Administrative Office acts as a reception center and clearinghousefor information and proposals direct-ed to the Judicial Conference. The office also acts as liaison for both thefederal judicial system and the JudicialConference, serving as advocate forthe judiciary in its dealings with Congress, the executive branch, pro-fessional groups, and the general public. Especially important is its representative role before Congresswhere, along with concerned judges, itpresents the judiciary’s budget pro-posals, requests for additional judge-ships, suggestions for changes in courtrules, and other key measures.

The Federal Judicial Center

The Federal Judicial Center, created in1967, is the federal courts’ agency forcontinuing education and research. Itsduties fall generally into three cate-gories: conducting research on thefederal courts, making recommenda-tions to improve the administrationand management of the federalcourts, and developing educationaland training programs for personnelof the judicial branch.


Since its inception, judges havebenefited from orientation sessionsand other educational programs puton by the Federal Judicial Center. Inrecent years, magistrate judges, bank-ruptcy judges, and administrative per-sonnel have also been the recipients ofeducational programs. The Federal Ju-dicial Center’s extensive use of videosand satellite technology allows it toreach large numbers of people.

FEDERAL COURTWORKLOAD

The workload of the courts isheavy for all three levels ofthe federal judiciary — U.S.

district courts, courts of appeals, and the Supreme Court.

For fiscal year 2002 slightly morethan 340,000 cases were commencedin the federal district courts. Criminal

filings alone have risen 43 percentsince 1993.

In 1995, 50,072 appeals were filedin one of the regional circuit courts.This figure increased every year, to ahigh of 60,847 appeals in 2003. How-ever, the number of appeals terminat-ed by the courts of appeals has alsobeen steadily increasing, from 49,805in 1995 to 56,586 in 2002.

The overall caseload of theSupreme Court is large by historicalstandards; there were 8,255 cases onthe docket for the 2002 term. TheSupreme Court, however, has discre-tion to decide which cases merit itsfull attention. As a result, the numberof cases argued before the Court hasdeclined rather dramatically over theyears. In the 2002 term only 84 caseswere argued and 79 were disposed ofin 71 signed opinions. �


Although the organization of statecourts can be confusing, there isno doubt about their importance:They handle far more cases thanthose decided by federal tribunals.Here, a painting depicting theState of Florida Supreme CourtBuilding in Tallahassee.

HISTORY AND

ORGANIZATIONOF

STATE JUDICIALSYSTEMS

C H A P T E R

2

Even prior to the Articles of Confeder-ation and the writing of the U.S.Constitution in 1787, the colonies, assovereign entities, already had writtenconstitutions. Thus, the developmentof state court systems can be tracedfrom the colonial period to the present.

HISTORICAL DEVELOPMENTOF STATE COURTS

No two states are exactly alikewhen it comes to the organi-zation of courts. Each state is

free to adopt any organizationalscheme it chooses, create as manycourts as it wishes, name those courtswhatever it pleases, and establish theirjurisdiction as it sees fit. Thus, the or-ganization of state courts does notnecessarily resemble the clear-cut,three-tier system found at the federallevel. For instance, in the federal sys-tem the trial courts are called districtcourts and the appellate tribunals areknown as circuit courts. However, inwell over a dozen states the circuitcourts are trial courts. Several otherstates use the term superior court fortheir major trial courts. Perhaps themost bewildering situation is found inNew York, where the major trial courtsare known as supreme courts.

Although confusion surrounds theorganization of state courts, no doubtexists about their importance. Becausestatutory law is more extensive in the states than at the federal level,covering everything from the most basic personal relationships to the

state’s most important public policies,the state courts handle a wide variety of cases, and the number of cases litigated annually in the state courtsfar exceeds those decided in the federal tribunals.

The Colonial Period

During the colonial period, politicalpower was concentrated in the handsof the governor appointed by the kingof England. Because the governorsperformed executive, legislative, andjudicial functions, an elaborate courtsystem was not necessary.

The lowest level of the colonial ju-diciary consisted of local judges calledjustices of the peace or magistrates.They were appointed by the colony’sgovernor. At the next level in the sys-tem were the county courts, the gener-al trial courts for the colonies. Appealsfrom all courts were taken to the high-est level — the governor and his coun-cil. Grand and petit juries were also in-troduced during this period andremain prominent features of the statejudicial systems.

By the early 18th century the legalprofession had begun to change.Lawyers trained in the English Inns ofCourt became more numerous, and asa consequence colonial court proce-dures were slowly replaced by moresophisticated English common law.

Early State Courts

Following the American Revolution(1775-83), the powers of the govern-


ment were not only taken over by leg-islative bodies but also greatly re-duced. The former colonists were noteager to see the development of alarge, independent judiciary given thatmany of them harbored a distrust oflawyers and the common law. Thestate legislatures carefully watched thecourts and in some instances removedjudges or abolished specific courts be-cause of unpopular decisions.

Increasingly, a distrust of the judi-ciary developed as courts declared leg-islative actions unconstitutional.Conflicts between legislatures andjudges, often stemming from opposinginterests, became more prominent.Legislators seemed more responsive topolicies that favored debtors, whereascourts generally reflected the views of

creditors. These differences were im-portant because “out of this conflictover legislative and judicial power...thecourts gradually emerged as an inde-pendent political institution,” accord-ing to David W. Neubauer in America’sCourts and the Criminal Justice System.

CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 47

The colonial period helped establishimportant legal principles. Left,prominent lawyer AndrewHamilton’s defense of newspaperprinter Johann Peter Zenger in 1735proved a landmark on the road toprotecting freedom of the press.Above, a 1682 woodcut of “TheFrame of the Government of theProvince of Pennsylvania,” whichincluded laws agreed upon by thegovernor and “free men of theaforesaid province.”

Modern State Courts

From the Civil War (1861-65) to theearly 20th century, the state courtswere beset by other problems. Increas-ing industrialization and the rapidgrowth of urban areas created newtypes of legal disputes and resulted inlonger and more complex court cases.The state court systems, largely fash-ioned to handle the problems of arural, agrarian society, were faced witha crisis of backlogs as they struggled to adjust.

One response was to create newcourts to handle the increased volumeof cases. Often, courts were piled ontop of each other. Another strategywas the addition of new courts withjurisdiction over a specific geographicarea. Still another response was to cre-ate specialized courts to handle oneparticular type of case. Small claimscourts, juvenile courts, and domesticrelations courts, for example, becameincreasingly prominent.

The largely unplanned expansionof state and local courts to meet specific needs led to a situation manyhave referred to as fragmentation. Amultiplicity of trial courts was onlyone aspect of fragmentation, however.Many courts had very narrow jurisdic-tion. Furthermore, the jurisdictions ofthe various courts often overlapped.

Early in the 20th century, peoplebegan to speak out against thefragmentation in the state court sys-tems. The program of reforms thatemerged in response is generally

known as the court unification move-ment. The first well-known legalscholar to speak out in favor of courtunification was Roscoe Pound, dean ofthe Harvard Law School. Pound andothers called for the consolidation of trial courts into a single set ofcourts or two sets of courts, one tohear major cases and one to hearminor cases.

A good deal of opposition has aris-en to court unification. Many triallawyers who are in court almost dailybecome accustomed to existing courtorganizations and, therefore, are op-posed to change. Also, judges andother personnel associated with thecourts are sometimes opposed to re-form. Their opposition often growsout of fear — of being transferred tonew courts, of having to learn newprocedures, or of having to decidecases outside their area of specializa-tion. The court unification movement,then, has not been as successful asmany would like. On the other hand,proponents of court reform have se-cured victories in some states.

STATE COURTORGANIZATION

Some states have moved in the di-rection of a unified court system,whereas others still operate

with a bewildering complex of courtswith overlapping jurisdiction. Thestate courts may be divided into fourgeneral categories or levels: trial courts of limited jurisdiction, trial


courts of general jurisdiction, inter-mediate appellate courts, and courtsof last resort.

Trial Courts of Limited Jurisdiction

Trial courts of limited jurisdictionhandle the bulk of litigation in theUnited States each year and constituteabout 90 percent of all courts. Theyhave a variety of names: justice of thepeace courts, magistrate courts, mu-nicipal courts, city courts, countycourts, juvenile courts, domestic rela-tions courts, and metropolitan courts,to name the more common ones.

The jurisdiction of these courts islimited to minor cases. In criminalmatters, for example, state courts dealwith three levels of violations: infrac-tions (the least serious), misde-meanors (more serious), and felonies(the most serious). Trial courts of lim-ited jurisdiction handle infractionsand misdemeanors. They may imposeonly limited fines (usually no morethan $1,000) and jail sentences(generally no more than one year). Incivil cases these courts are usually lim-ited to disputes under a certainamount, such as $500. In addition,these types of courts are often limitedto certain kinds of matters: traffic vio-lations, domestic relations, or casesinvolving juveniles, for example.

Another difference from trialcourts of general jurisdiction is that inmany instances these limited courtsare not courts of record. Since theirproceedings are not recorded, appeals

of their decisions usually go to a trialcourt of general jurisdiction for whatis known as a trial “de novo” (newtrial). Yet another distinguishing char-acteristic of trial courts of limited ju-risdiction is that the presiding judgesof such courts are often not requiredto have any formal legal training.

Many of these courts suffer from a lack of resources. Often, they haveno permanent courtroom, meetinginstead in grocery stores, restaurants,or private homes. Clerks are frequent-ly not available to keep adequaterecords. The results are informal pro-ceedings and the processing of caseson a mass basis. Full-fledged trials arerare and cases are disposed of quickly.

Finally, trial courts of limited jurisdiction are used in some states to handle preliminary matters infelony criminal cases. They often holdarraignments, set bail, appoint attor-neys for indigent defendants, and conduct preliminary examinations.The case is then transferred to a trialcourt of general jurisdiction for suchmatters as hearing pleas, holding trials, and sentencing.

Trial Courts of General Jurisdiction

Most states have one set of major trialcourts that handle the more seriouscriminal and civil cases. In addition,in many states, special categories —such as juvenile criminal offenses, do-mestic relations cases, and probatecases — are under the jurisdiction ofthe general trial courts.



Attorney Edward Clancy, left, argues his case before his state’s “court of last resort,” the NewHampshire State Supreme Court.

Washington State’s Supreme Court, like other state courts of last resort, follows proceduressimilar to those of the U.S. Supreme Court. Here, defense attorney Roger Hunko makesclosing arguments in the penalty phase of a murder trial.

In most states these courts alsohave an appellate function. They hearappeals in certain types of cases thatoriginate in trial courts of limited ju-risdiction. These appeals are oftenheard in a trial de novo or tried againin the court of general jurisdiction.

General trial courts are usually di-vided into judicial districts or circuits.Although the practice varies by state,the general rule is to use existing polit-ical boundaries, such as a county or agroup of counties, in establishing thedistrict or circuit. In rural areas thejudge may ride circuit and hold courtin different parts of the territory ac-cording to a fixed schedule. In urbanareas, however, judges hold court in aprescribed place throughout the year.In larger counties the group of judgesmay be divided into specializations.Some may hear only civil cases; otherstry criminal cases exclusively.

The courts at this level have a vari-ety of names. The most common aredistrict, circuit, and superior. Thejudges at this level are required by lawin all states to have law degrees. Thesecourts also maintain clerical help be-cause they are courts of record.

Intermediate Appellate Courts

The intermediate appellate courts arerelative newcomers to the state judicialscene. Only 13 such courts existed in1911, whereas 39 states had createdthem by 1995. Their basic purpose isto relieve the workload of the state’shighest court.

In most instances these courts arecalled courts of appeals, althoughother names are occasionally used.Most states have one court of appealswith statewide jurisdiction. The size of intermediate courts varies fromstate to state. The court of appeals in Alaska, for example, has only three judges. At the other extreme,Texas has 80 courts of appeals judges.In some states the intermediate ap-peals courts sit en banc, whereas inother states they sit in permanent orrotating panels.

Courts of Last Resort

Every state has a court of last resort.The states of Oklahoma and Texashave two highest courts. Both stateshave a supreme court with jurisdictionlimited to appeals in civil cases and acourt of criminal appeals for criminalcases. Most states call their highestcourts supreme courts; other designa-tions are the court of appeals (Mary-land and New York), the supreme judicial court (Maine and Massachu-setts), and the supreme court ofappeals (West Virginia). The courts oflast resort range in size from three tonine judges (or justices in somestates). They typically sit en banc andusually, although not necessarily, con-vene in the state capital.

The highest courts have jurisdic-tion in matters pertaining to state lawand are, of course, the final arbiters insuch matters. In states that have inter-mediate appellate courts, the Supreme


Court’s cases come primarily fromthese mid-level courts. In this situa-tion the high court typically is allowedto exercise discretion in decidingwhich cases to review. Thus, it is likelyto devote more time to cases that dealwith the important policy issues of thestate. When there is no intermediatecourt of appeals, cases generally go tothe state’s highest court on a mandato-ry review basis.

In most instances, then, the statecourts of last resort resemble the U.S.Supreme Court in that they have agood deal of discretion in determiningwhich cases will occupy their atten-

tion. Most state supreme courts alsofollow procedures similar to those ofthe U.S. Supreme Court. That is, whena case is accepted for review the opposing parties file written briefs and later present oral arguments.Then, upon reaching a decision, thejudges issue written opinions explain-ing that decision.

Juvenile Courts

Americans are increasingly concernedabout the handling of cases involvingjuveniles, and states have responded tothe problem in a variety of ways. Somehave established a statewide network


New York and Maryland call their highest courts the “court of appeals.” Pictured left to rightare New York State Court of Appeals Judge George Bundy Smith, Chief Judge Judith S. Kaye,and Judge Howard A. Levine, as they listen to arguments in a death penalty case.

of courts specifically to handle mat-ters involving juveniles. Two states —Rhode Island and South Carolina —have family courts, which handle do-mestic relations matters as well asthose involving juveniles.

The most common approach is togive one or more of the state’s limitedor general trial courts jurisdiction tohandle situations involving juveniles.In Alabama, for example, the circuitcourts (trial courts of general jurisdic-tion) have jurisdiction over juvenilematters. In Kentucky, however, exclu-sive juvenile jurisdiction is lodged intrial courts of limited jurisdiction —the district courts.

Finally, some states apportion juvenile jurisdiction among morethan one court. The state of Coloradohas a juvenile court for the city ofDenver and has given jurisdictionover juveniles to district courts (gen-eral trial courts) in the other areas of the state.

Also, some variation exists amongthe states as to when jurisdiction belongs to an adult court. States set a standard age at which defendants are tried in an adult court. In addi-tion, many states require that moreyouthful offenders be tried in an adult court if special circumstancesare present. In Illinois, for instance,the standard age at which juvenile jurisdiction transfers to adult courts is 17. The age limit drops to 15,however, for first-degree murder,aggravated criminal sexual assault,

armed robbery, robbery with afirearm, and unlawful use of weaponson school grounds.

ADMINISTRATIVE ANDSTAFF SUPPORT IN THESTATE JUDICIARY

The daily operation of the feder-al courts requires the efforts ofmany individuals and organi-

zations. This is no less true for thestate court systems.

Magistrates

State magistrates, who may also beknown in some states as commission-ers or referees, are often used to per-form some of the work in the earlystages of civil and criminal case pro-cessing. In this way they are similar toU.S. magistrate judges. In some juris-dictions they hold bond hearings andconduct preliminary investigations incriminal cases. They are also author-ized in some states to make decisionsin minor cases.

Law Clerks

In the state courts, law clerks are likely to be found, if at all, in the intermediate appellate courts andcourts of last resort. Most state trialcourts do not utilize law clerks, andthey are practically unheard of in local trial courts of limited jurisdic-tion. As at the national level, some lawclerks serve individual judges whileothers serve an entire court as a staff attorney.


Administrative Office of theCourts

Every state now has an administrativeoffice of courts or a similarly titledagency that performs a variety ofadministrative tasks for that state’scourt system. Among the tasks morecommonly associated with adminis-trative offices are budget preparation,data processing, facility management,judicial education, public informa-tion, research, and personnel manage-ment. Juvenile and adult probation arethe responsibility of administrative offices in a few states, as is alternativedispute resolution.

Court Clerks and CourtAdministrators

The clerk of the court has traditional-ly handled the day-to-day routines ofthe court. This includes making court-room arrangements, keeping recordsof case proceedings, preparing ordersand judgments resulting from courtactions, collecting court fines and fees,and disbursing judicial monies. In themajority of states these officials areelected and may be referred to byother titles.

The traditional clerks of court havebeen replaced in many areas by courtadministrators. In contrast to the


State courts handle millions of cases a year, at times in facilities like the Berkeley CountyCourthouse in Martinsburg, West Virginia, which some call “historic” or “charming” andothers describe as “inadequate.”

court clerk, who traditionally man-aged the operations of a specificcourtroom, the modern court admin-istrator may assist a presiding judge inrunning the entire courthouse.

STATE COURT WORKLOAD

The lion’s share of the nation’sjudicial business exists at thestate, not the national, level.

The fact that federal judges adjudicateseveral hundred thousand cases a year is impressive; the fact that statecourts handle several million a year is overwhelming, even if the most important cases are handled at thefederal level. While justice of the peaceand magistrate courts at the state level handle relatively minor matters,some of the biggest judgments in civil

cases are awarded by ordinary statetrial court juries.

The National Center for StateCourts has compiled figures on thecaseloads of state courts of last resortand intermediate appellate courts in1998. In all, some 261,159 mandatorycases and discretionary petitions werefiled in the state appellate courts.Reliable data on cases filed in the statetrial courts are harder to come by.Still, the center does an excellent jobof tracking figures for states’ trialcourts. In 1998, 17,252,940 cases were filed in the general jurisdictionand limited jurisdiction courts. Aswith the federal courts, the vast ma-jority of the cases are civil, althoughthe criminal cases often receive themost publicity. �


Beginning with the Supreme Court’sdecision in Baker v. Carr (1962), theCourt has held in several cases thatlegislative districts should be of equalpopulation size and that courtsshould see to it that this mandate iscarried out. Here, Associate JusticeSarah Parker of the Supreme Court ofNorth Carolina looks over a mapduring a court session dealing withredistricting, or reapportionment oflegislative districts.

C H A P T E R

3JURISDICTION

ANDPOLICY-MAKING

BOUNDARIES

In setting the jurisdictions of courts,Congress and the U.S. Constitution —and their state counterparts — man-date the types of cases each court mayhear. This chapter considers how Con-gress, in particular, can influence judi-cial behavior by redefining the types ofcases judges may hear. It also discussesjudicial self-restraint, examining 10principles, derived from legal traditionand constitutional and statutory law,that govern a judge’s decision aboutwhether to review a case.

FEDERAL COURTS

The federal court system is divid-ed into three separate levels: thetrial courts, the appellate tri-

bunals, and the U.S. Supreme Court.

U.S. District Courts

Congress has set forth the jurisdictionof the federal district courts. These tribunals have original jurisdiction infederal criminal and civil cases; that is,by law, the cases must be first heard inthese courts, no matter who the par-ties are or how significant the issues.

Criminal Cases. These cases com-mence when the local U.S. attorneyshave reason to believe that a violationof the U.S. Penal Code has occurred.After obtaining an indictment from afederal grand jury, the U.S. attorneyfiles charges against the accused in thedistrict court in which he or sheserves. Criminal activity as defined byCongress covers a wide range of be-

havior, including interstate theft of anautomobile, illegal importation ofnarcotics, assassination of a president,conspiracy to deprive persons of theircivil rights, and even the killing of amigratory bird out of season.

After charges are filed against anaccused, and if no plea bargain hasbeen made, a trial is conducted by aU.S. district judge. In court the defen-dant enjoys all the privileges and im-munities granted in the Bill of Rights(such as the right to a speedy and pub-lic trial) or by congressional legislationor Supreme Court rulings (for in-stance, a 12-person jury must render aunanimous verdict). Defendants maywaive the right to a trial by a jury oftheir peers. A defendant who is foundnot guilty of the crime is set free andmay never be tried again for the sameoffense (the Fifth Amendment’s pro-tection against double jeopardy). If theaccused is found guilty, the districtjudge determines the appropriate sentence within a range set by Congress. The length of a sentencecannot be appealed so long as it is inthe range prescribed. A verdict of notguilty may not be appealed by the government, but convicted defendantsmay appeal if they believe that thejudge or jury made an improper legaldetermination.

Civil Cases. A majority of the districtcourt caseload is civil in nature; that is,suits between private parties or be-tween the U.S. government, acting in a


nonprosecutorial capacity, and a pri-vate party. Civil cases that originate inthe U.S. district courts may be placedin several categories. The first is litiga-tion concerning the interpretation orapplication of the Constitution, acts ofCongress, or U.S. treaties. Examples ofcases in this category include the fol-lowing: a petitioner claims that one ofhis or her federally protected civilrights has been violated, a litigant al-leges that he or she is being harmed bya congressional statute that is uncon-stitutional, and a plaintiff argues thathe or she is suffering injury from atreaty that is improperly affecting him.The key point is that a federal questionmust be raised in order for the U.S.trial courts to have jurisdiction.

Traditionally, some minimal dollaramounts had to be in controversy insome types of cases before the trialcourts would hear them, but suchamounts have been waived if the casefalls into one of several general cate-gories. For example, an alleged viola-tion of a civil rights law, such as theVoting Rights Act of 1965, must beheard by the federal rather than thestate judiciary. Other types of cases inthis category are patent and copyrightclaims, passport and naturalizationproceedings, admiralty and maritimedisputes, and violations of the U.S.postal laws.

Another broad category of casesover which the U.S. trial courts exer-cise general original jurisdiction in-cludes what are known as diversity of

citizenship disputes. These are dis-putes between parties from differentstates or between an American citizenand a foreign country or citizen.

Federal district courts also have jurisdiction over petitions from con-victed prisoners who contend thattheir incarceration (or perhaps theirdenial of parole) is in violation oftheir federally protected rights. In thevast majority of these cases prisonersask for a writ of “habeas corpus”(Latin for “you should have thebody”), an order issued by a judge todetermine whether a person has beenlawfully imprisoned or detained. Thejudge would demand that the prisonauthorities either justify the detentionor release the petitioner. Prisonersconvicted in a state court must arguethat a federally protected right was violated — for example, the right to be represented by counsel at trial.Otherwise, the federal courts wouldhave no jurisdiction. Federal prisonershave a somewhat wider range for theirappeals since all their rights and options are within the scope of theU.S. Constitution.

Finally, the district courts have theauthority to hear any other cases thatCongress may validly prescribe by law.

U.S. Courts of Appeals

The U.S. appellate courts have no orig-inal jurisdiction whatsoever; everycase or controversy that comes to oneof these intermediate level panels hasbeen first argued in some other forum.

CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 59

These tribunals, like the districtcourts, are the creations of Congress,and their structure and functions havevaried considerably over time.

Basically, Congress has granted thecircuit courts appellate jurisdictionover two general categories of cases.The first of these are ordinary civil andcriminal appeals from the federal trialcourts. In criminal cases the appellantis the defendant because the govern-ment is not free to appeal a verdict ofnot guilty. In civil cases the party thatlost in the trial court is usually the ap-pellant, but the winning party may appeal if it is not satisfied with thelower-court judgment. The secondbroad category of appellate jurisdiction

includes appeals from certain federaladministrative agencies and depart-ments and also from independent reg-ulatory commissions, such as the Secu-rities and Exchange Commission andthe National Labor Relations Board.

U.S. Supreme Court

The U.S. Supreme Court is the onlyfederal court mentioned by name inthe Constitution, which spells out thegeneral contours of the High Court’sjurisdiction. Although the SupremeCourt is usually thought of as an appel-late tribunal, it does have some generaloriginal jurisdiction. Probably the mostimportant subject of such jurisdictionis a suit between two or more states.


Judges from the Appellate Division of the New York State Supreme Court in Rochester, NewYork, hear motion arguments. A dispute must be real and current before a court will agree toaccept it for adjudication.

The High Court shares original ju-risdiction (with the U.S. districtcourts) in certain cases brought by oragainst foreign ambassadors or con-suls, in cases between the United Statesand a state, and in cases commencedby a state against citizens of anotherstate or another country. In situationssuch as these, where jurisdiction isshared, the courts are said to have con-current jurisdiction. Cases over whichthe Supreme Court has original juris-diction are often important, but theydo not constitute a sizable proportionof the overall caseload. In recent yearsless than 1 percent of the High Court’sdocket consisted of cases heard onoriginal jurisdiction.

The U.S. Constitution declares thatthe Supreme Court “shall have appel-late Jurisdiction...under such Regula-tions as the Congress shall make.”Over the years Congress has passedmuch legislation setting forth the“Regulations” determining whichcases may appear before the nation’smost august judicial body. Appealsmay reach the Supreme Court throughtwo main avenues. First, there may beappeals from all lower federal consti-tutional and territorial courts and alsofrom most, but not all, federal legisla-tive courts. Second, the SupremeCourt may hear appeals from thehighest court in a state — as long asthere is a substantial federal question.

Most of the High Court’s docketconsists of cases in which it has agreedto issue a writ of certiorari — a discre-

tionary action. Such a writ (whichmust be supported by at least four jus-tices) is an order from the SupremeCourt to a lower court demandingthat it send up a complete record of acase so that the Supreme Court can re-view it. Historically, the SupremeCourt has agreed to grant the petitionfor a writ of certiorari in only a tinyproportion of cases — usually lessthan 10 percent of the time, and in re-cent years the number has been closerto 1 percent.

Another method by which theSupreme Court exercises its appellatejurisdiction is certification. This pro-cedure is followed when one of the ap-peals courts asks the Supreme Courtfor instructions regarding a questionof law. The justices may choose to givethe appellate judges binding instruc-tions, or they may ask that the entirerecord be forwarded to the SupremeCourt for review and final judgment.

JURISDICTION AND POLICYMAKING OF STATE COURTS

The jurisdictions of the 50 sepa-rate state court systems in theUnited States are established in

virtually the same manner as thosewithin the national court system. Eachstate has a constitution that sets forththe authority and decision-makingpowers of its trial and appellatejudges. Likewise, each state legislaturepasses laws that further detail the spe-cific powers and prerogatives of judgesand the rights and obligations of those


who bring suit in the state courts. Be-cause no two state constitutions orlegislative bodies are alike, the juris-dictions of individual state courts varyfrom one state to another.

State courts are extremely impor-tant in terms of policy making in theUnited States. Well over 99 percent ofthe judicial workload in the UnitedStates consists of state, not federal,cases, and 95 percent of all judges inthe United States work at the statelevel. Moreover, the decisions of statejurists frequently have a great impacton public policy. For example, duringthe 1970s a number of suits werebrought into federal court challengingthe constitutionality of a state’sspending vastly unequal sums on theeducation of its schoolchildren. (Thisoccurred because poorer school dis-tricts could not raise the same amountof money as could wealthy school dis-tricts.) The litigants claimed that chil-dren in the poorer districts were victims of unlawful discrimination inviolation of their equal protectionrights under the U.S. Constitution.The Supreme Court said they werenot, however, in a five-to-four deci-sion in San Antonio IndependentSchool District v. Rodriguez (1973). Butthe matter did not end there. Litiga-tion was instituted in many states arguing that unequal educational op-portunities were in violation of vari-ous clauses in the state constitutions.Since Rodriguez such suits have beenbrought 28 times in 24 states. In 14 of

these cases, state supreme courts in-validated their state’s method of fi-nancing education, thus requiring thereallocation of billions of dollars.

JURISDICTION ANDLEGISLATIVE POLITICS

Some judges and judicial scholarsargue that the U.S. Constitutionand the respective state docu-

ments confer a certain inherent juris-diction upon the judiciaries in somekey areas, independent of the legisla-tive will. Nevertheless, the jurisdic-tional boundaries of American courtsare also a product of legislative judg-ments — determinations often influ-enced by politics.

Congress may advance a particularcause by giving courts the authority to hear cases in a public policy realmthat previously had been forbiddenterritory for the judiciary. For exam-ple, when Congress passed the CivilRights Act of 1968, it gave judges theauthority to penalize individuals whointerfere with “any person because ofhis race, color, religion or national origin and because he is or hasbeen...traveling in...interstate com-merce.” Prior to 1968 the courts hadno jurisdiction over incidents thatstemmed from interference by oneperson with another’s right to travel.Likewise, Congress may discourage aparticular social movement by passinglegislation to make it virtually impos-sible for its advocates to have any success in the courts.


The jurisdictions of state courts,like their federal counterparts, also arevery much governed by — and the po-litical product of — the will of thestate legislatures.

JUDICIAL SELF-RESTRAINT

The activities that judges are for-bidden to engage in, or at leastdiscouraged from engaging in,

deal not so much with jurisdiction aswith justiciability — the question ofwhether judges in the system ought tohear or refrain from hearing certaintypes of disputes. Ten principles of ju-dicial self-restraint, discussed below,serve to check and contain the powerof American judges. These maximsoriginate from a variety of sources —the U.S. Constitution and state consti-tutions, acts of Congress and of statelegislatures, and the common law.Some apply more to appellate courtsthan to trial courts; most apply to fed-eral and state judicial systems.

A Definite Controversy Must Exist

The U.S. Constitution states that “thejudicial Power shall extend to allCases, in Law and Equity, arisingunder this Constitution, the Laws ofthe United States, and Treatiesmade...under their Authority” (ArticleIII, Section 2). The key word here iscases. Since 1789 the federal courtshave chosen to interpret the term in itsmost literal sense: There must be anactual controversy between legitimateadversaries who have met all the tech-

nical legal standards to institute a suit.The dispute must concern the protec-tion of a meaningful, nontrivial rightor the prevention or redress of awrong that directly affects the partiesto the suit. There are three corollariesto this general principle.

The first is that the federal courtsdo not render advisory opinions, rul-ings about situations that are hypo-thetical or that have not caused an actual clash between adversaries. Adispute must be real and current be-fore a court will agree to accept it foradjudication.

A second corollary is that the par-ties to the suit must have properstanding. This notion deals with thematter of who may bring litigation tocourt. The person bringing suit musthave suffered (or be immediatelyabout to suffer) a direct and signifi-cant injury. As a general rule, a litigantcannot bring a claim on behalf of oth-ers (except for parents of minor chil-dren or in special types of suits calledclass actions). In addition, the allegedinjury must be personalized and im-mediate — not part of some general-ized complaint.

The third corollary is that courtsordinarily will not hear a case that hasbecome moot — when the basic factsor the status of the parties have signif-icantly changed between the timewhen the suit was first filed and whenit comes before the judge(s). Thedeath of a litigant or the fact that thelitigants have ceased to be warring


parties would render a case moot inmost tribunals. However, sometimesjudges may decide that it is necessaryto hear a case, even though the statusof the facts and parties would seem tohave radically altered. Examples in-clude cases where someone has chal-lenged a state’s refusal to permit anabortion or to permit the life-supportsystem of a terminally ill person to beswitched off. (In such cases, by thetime the suit reaches an appellatecourt, the woman may already havegiven birth or the moribund personmay have died.) In these cases judgeshave believed that the issues were soimportant that they needed to be ad-dressed by the court. To declare suchcases moot would, practically speak-ing, prevent them from ever beingheard in time by an appellate body.

Although federal judges do not ruleon abstract, hypothetical issues, manystate courts are permitted to do so insome form or other. Federal legislativecourts may give advisory opinions aswell. Also, American judges are empowered to render declaratoryjudgments, which define the rights ofvarious parties under a statute, a will,or a contract. The judgments do notentail any type of coercive relief. Thefederal courts were given the authorityto act in this capacity in the FederalDeclaratory Judgment Act of 1934,and about three-fourths of the statesgrant their courts this power. Al-though a difference exists between anabstract dispute that the federal courts

must avoid and a situation where a de-claratory judgment is in order, in thereal world the line between the two isoften a difficult one for jurists to draw.

A Plea Must Be Specific

Another constraint upon the federaljudiciary is that judges will hear nocase on the merits unless the petition-er is first able to cite a specific part ofthe Constitution as the basis of theplea. For example, the First Amend-ment forbids government from mak-ing a law “respecting an establishmentof religion.” In 1989 the state of NewYork created a special school districtsolely for the benefit of the SatmarHasids, a group of Hasidic Jews withEast European roots that strongly re-sists assimilation into modern society.Most of the children attendedparochial schools in the Village ofKiryas Joel, but these private schoolsweren’t able to accommodate retardedand disabled students, and the Satmarsclaimed that such children withintheir community would be trauma-tized if forced to attend a publicschool. Responding to this situation,the state legislature created a specialdistrict encompassing a single schoolthat served only handicapped childrenfrom the Hasidic Jewish community.This arrangement was challenged bythe association representing New Yorkstate’s school boards. In June 1994 theU.S. Supreme Court ruled that the cre-ation of the one-school district effec-tively delegated political power to the



Circuit courts have appellatejurisdiction over civil appealsfrom the federal trial courts,such as a 2000 case wherethe 4th U.S. Circuit Court ofAppeals was asked tooverturn a federal judge’sruling that the miningindustry claimed would endmining in the AppalachianMountains (shown above).These courts also can hearappeals from certain federaladministrative agencies. Thetwo juvenile Mexican spottedowls, left, however, appearunaware that a suit by anenvironmental group, theAudubon Society, involvestheir species’s habitats.


Congress has said that federal district courts have jurisdiction in federal civil and criminal cases.In this photo, Justice Department lead attorney David Boies, left, and Connecticut AttorneyGeneral Richard Blumenthal, right, discuss the Microsoft Windows 98 case with the media.

orthodox Jewish group and thereforeviolated the First Amendment’s banon governmental “establishment of re-ligion.” Whether or not everyoneagrees that the New York law was con-stitutional, few, if any, would doubtthat the school board association metthe specific criteria for securing judi-cial review: The Constitution clearlyforbids the government from delegat-ing political power to a specific reli-gious entity. The government herereadily acknowledged that it hadpassed a law for the unique benefit ofa singular religious community.

However, if one went into courtand contended that a particular law orofficial action “violated the spirit ofthe Bill of Rights” or “offended the val-ues of the Founders,” a judge surelywould dismiss the proceeding. For ifjudges were free to give concrete, sub-stantive meaning to vague generalitiessuch as these, there would be littlecheck on what they could do. In thereal world this principle is not as sim-ple and clear-cut as it sounds, becausethe Constitution contains many claus-es that are open to a wide variety of in-terpretations, giving federal judgessufficient room to maneuver andmake policy.

Beneficiaries May Not Sue

A third aspect of judicial self-restraintis that a petitioner who has been thebeneficiary of a law or an official ac-tion may not subsequently challengethat law. For example, suppose that a

farmer has long been a member of aprogram under which he agreed totake part of his land out of productionand periodically was paid a subsidy bythe federal government. After years asa participant, the farmer learns that aneighbor is also drawing regular pay-ments for letting all of his farmland liefallow. The idea that the neighbor isgetting something for nothing offendsthe farmer, and he questions the pro-gram’s constitutionality. The farmerchallenges the legality of the programin the local federal district court. Assoon as it is brought to the judge’s at-tention that the farmer had himselfbeen a member of the program andhad gained financially from it, the suitis dismissed: One may not benefitfrom a particular governmental en-deavor or official action and subse-quently attack it in court.

Appellate Courts Rule on Legal —Not Factual — Questions

A working proposition of state andfederal appellate court practice is thatthese courts will generally not hearcases if the grounds for appeal are that the trial judge or jury wronglyamassed and identified the basic factual elements of the case. It is notthat trial judges and juries always do a perfect job of making factual determinations. Rather, there is thebelief that they are closer to the actualparties and physical evidence of thecase, and, therefore, they will do amuch better job of making factual


assessments than would an appellatebody reading a transcript of the casesome months or years after the trial.However, legal matters — which lawsto apply to the facts of a case or how to assess the facts in light of the prevailing law — are appropriate forappellate review.

The Supreme Court Is Not Bound(Technically) by Precedents

If the High Court is free to overturnor circumvent past and supposedlycontrolling precedents when it decidesa case, this might appear to be an ar-gument for judicial activism — notrestraint. However, this practice is oneof the principles of self-restraint. Ifthe Supreme Court were inescapablybound by the dictates of its prior rulings, it would have very little flexi-bility. By occasionally allowing itselfthe freedom to overrule a past deci-sion or to ignore a precedent thatwould seem to be controlling, theSupreme Court establishes a corner ofsafety to which it can retreat if needbe. When wisdom dictates that theCourt change direction or at leastkeep an open mind, this principle ofself-restraint is put to use.

Other Remedies Must BeExhausted

Another principle of self-restraintoften frustrates the anxious litigantbut is essential to the orderly adminis-tration of justice: Courts in the UnitedStates will not accept a case until all

other remedies, legal and administra-tive, have been exhausted. In its simplest form this doctrine meansthat one must work up the ladder with one’s legal petitions. Federalcases must first be heard by the U.S.trial courts, then reviewed by one ofthe appellate tribunals, and finallyheard by the U.S. Supreme Court. Thisorderly procedure of events mustoccur despite the importance of thecase or of the petitioners who filed it.In certain circumstances, however, theappellate process can be shortened.

Exhaustion of remedies refers topossible administrative relief as well as to adherence to the principle of athree-tiered judicial hierarchy. Suchrelief might be in the form of an ap-peal to an administrative officer, ahearing before a board or committee,or formal consideration of a matter bya legislative body.

Courts Do Not Decide “PoliticalQuestions”

To U.S. judges, the executive and thelegislative branches of government arepolitical in that they are elected by thepeople for the purpose of makingpublic policy. The judiciary, in con-trast, was not designed by theFounders to be an instrument mani-festing the popular will and is there-fore not political. According to thisline of reasoning, then, a politicalquestion is one that ought properly tobe resolved by one of the other twobranches of government.


For example, when the state ofOregon gave its citizens the right tovote on popular statewide referen-dums and initiatives around 1900,the Pacific States Telephone and Telegraph Company objected. (Thecompany feared that voters would bypass the more business-orientedlegislature and pass laws restricting its rates and profits.) The companyclaimed that Article IV, Section 4, ofthe Constitution guarantees to eachstate “a Republican Form of Govern-ment” — a term that supposedlymeans that laws are to be made onlyby the elected representatives of thepeople, not by the citizens directly.The High Court refused to rule on themerits of the case, declaring the issueto be a political question. The Courtreasoned that since Article IV prima-rily prescribes the duties of Congress,it follows that the Founders wantedCongress — not the courts — to over-see the forms of government in theseveral states.

In recent decades an important political versus nonpolitical disputehas concerned the matter of reappor-tionment of legislative districts. Prior to 1962, a majority on the SupremeCourt refused to rule on the constitu-tionality of legislative districts withunequal populations, saying that such matters were “nonjusticiable”and that the Court dared not enterwhat Justice Felix Frankfurter called“the political thicket.” According totraditional Supreme Court thinking,

the Founders wanted legislatures toredistrict themselves — perhaps withinput from the electorate. However,with the Supreme Court’s decision inBaker v. Carr (1962), the majority re-versed that thinking. Since then theCourt has held in scores of cases thatthe equal-protection clause of theFourteenth Amendment requires leg-islative districts to be of equal popula-tion size and, furthermore, that thecourts should see to it that this man-date is carried out.

The Burden of Proof Is on thePetitioner

The nation’s jurists generally agreethat an individual who would chal-lenge the constitutionality of a statutebears the burden of proof. Thus, ifsomeone were to attack a particularstatute, he or she would have to domore than demonstrate that it was“questionable or of doubtful constitu-tionality”; the petitioner would haveto persuade the court that the evi-dence against the law was clear-cutand overwhelming.

The only exception to this burdenof proof principle is in the realm ofcivil rights and liberties. Some juristswho are strong civil libertarians havelong contended that when govern-ment attempts to restrict basic humanfreedoms the burden of proof shouldshift to the government. And in sever-al specific areas of civil rights ju-risprudence that philosophy now prevails. For example, the U.S.


Supreme Court has ruled in a varietyof cases that laws that treat personsdifferently according to their race orgender are automatically subject to“special scrutiny.” This means that theburden of proof shifts to the govern-ment to demonstrate a compelling oroverriding need to differentiate per-sons according to their ethnic originsor sex. For instance, the governmenthas long argued (successfully) thatsome major restrictions can be placedon women in the armed forces thatprevent them from being assigned tofull combat duty.

Laws Are Overturned on theNarrowest Grounds Only

Sometimes during a trial a judgeclearly sees that the strictures of theConstitution have been offended by alegislative or executive act. Even here,however, a jurist may proceed withcaution. First, a judge may have theoption of invalidating an official action on what is called statutory,instead of constitutional, grounds.Statutory invalidation means that ajudge overturns an official’s action because the official acted beyond theauthority delegated to him or her bythe law. Such a ruling has the functionof saving the law itself while still nullifying the official’s misdeed.Second, judges may, if possible, invali-date only that portion of a law theyfind constitutionally defective insteadof overturning the entire statute.

No Rulings Are Made on the“Wisdom” of Legislation

If followed strictly, this principlemeans that the only basis for de-claring a law or an official actionunconstitutional is that it literally violates the Constitution. Statutes donot offend the Constitution merelybecause they are unfair, are fiscallywasteful, or constitute bad public pol-icy. If taken truly to heart, this meansthat judges and justices are not free toinvoke their own personal notions ofright and wrong or of good and badpublic policy when they examine theconstitutionality of legislation.

Another spinoff of this principle isthat a law may be passed that all agreeis good and wise but that is neverthe-less unconstitutional; conversely, astatute may legalize the commission ofan official deed that all know to be badand dangerous but that still does notoffend the Constitution.

The principle of not ruling on the“wisdom” of a law is difficult to followin the real world. This is so becausethe Constitution, a rather brief docu-ment, is silent on many areas ofpublic life and contains a number ofphrases and admonitions that areopen to a variety of interpretations.For instance, the Constitution saysthat Congress may regulate interstatecommerce. But what exactly is com-merce, and how extensive does it haveto be before it is of an “interstate”character? As human beings, judges


have differed in the way they have responded to this question. The Con-stitution guarantees a person accusedof a crime the right to a defense attor-ney. But does this right continue ifone appeals a guilty verdict and, if so,for how many appeals? Strict con-structionists and loose construction-ists have responded differently tothese queries.

In all, despite the inevitable intru-sion of judges’ personal values intotheir interpretation of many portionsof the Constitution, virtually every jurist subscribes to the general principle that laws can be invalidatedonly if they offend the Constitution— not the personal preferences ofthe judges. �


New lawyers take their oaths inTopeka, Kansas, to practice in theKansas state court and in theFederal court in the district ofKansas. According to recentestimates, the United States hasmore than 950,000 lawyers.

C H A P T E R

4LAWYERS,

LITIGANTS,AND INTERESTGROUPS IN THE

JUDICIALPROCESS

This chapter focuses on three crucialactors in the judicial process: lawyers,litigants, and interest groups. Judges inthe United States make decisions onlyin the context of cases that are broughtto the courts by individuals or groupswho have some sort of disagreementor dispute with each other. These ad-versaries, commonly called litigants,sometimes argue their own cases insuch minor forums as small claimscourts, but they are almost always rep-resented by lawyers in the more im-portant judicial arenas. Following anexamination of the legal profession,the chapter discusses the role of indi-vidual litigants and interest groups inthe judicial process.

LAWYERS AND THE LEGALPROFESSION

The training of attorneys and thepractice of law have evolvedover time in the United States.

Today American lawyers practice in avariety of settings and circumstances.

Development of the LegalProfession

During the colonial period in America(1607-1776), there were no lawschools to train those interested in the legal profession. Some young menwent to England for their educationand attended the Inns of Court. TheInns were not formal law schools,but were part of the English legal culture and allowed students to become familiar with English law.

Those who aspired to the law duringthis period generally performed aclerkship or apprenticeship with an established lawyer.

After the American Revolution(1775-83), the number of lawyers in-creased rapidly, because neither legaleducation nor admission to the barwas very strict. The apprenticeshipmethod continued to be the mostpopular way to receive legal training,but law schools began to come into ex-istence. The first law schools grew outof law offices that specialized in train-ing clerks or apprentices. The earliestsuch school was the Litchfield Schoolin Connecticut, founded in 1784. Thisschool, which taught by the lecturemethod, placed primary emphasis oncommercial law. Eventually, a few col-leges began to teach law as part of theirgeneral curriculum, and in 1817 an in-dependent law school was establishedat Harvard University.

During the second half of the 19thcentury, the number of law schools in-creased dramatically, from 15 schoolsin 1850 to 102 in 1900. The lawschools of that time and those of todayhave two major differences. First, lawschools then did not usually requireany previous college work. Second, in1850 the standard law school curricu-lum could be completed in one year.Later in the 1800s many law schoolsinstituted two-year programs.

In 1870 major changes began atHarvard that were to have a lastingimpact on legal training. Harvard in-


stituted stiffer entrance requirements;a student who did not have a collegedegree was required to pass an en-trance test. The law school course wasincreased to two years in 1871 and tothree years in 1876. Also, studentswere required to pass first-year finalexaminations before proceeding to thesecond-year courses.

The most lasting change, however,was the introduction of the casemethod of teaching. This method re-placed lectures and textbooks withcasebooks. The casebooks (collectionsof actual case reports) were designedto explain the principles of law, whatthey meant, and how they developed.Teachers then used the Socraticmethod to guide the students to a dis-covery of legal concepts found in thecases. Other schools eventually adopt-ed the Harvard approach, and the casemethod remains the accepted methodof teaching in many law schools today.

As the demand for lawyers in-creased during the late 1800s, therewas a corresponding acceleration inthe creation of new law schools. Open-ing a law school was not expensive,and a number of night schools, usinglawyers and judges as part-time facul-ty members, sprang into existence.Standards were often lax and the cur-riculum tended to emphasize localpractice. These schools’ major contri-bution lay in making training morereadily available to poor, immigrant,and working-class students.

In the 20th century, the number of

people wanting to study law increaseddramatically. By the 1960s the numberof applicants to law schools had grown so large that nearly all schoolsbecame more selective. At the sametime, in response to social pressureand litigation, many law schools began actively recruiting female andminority applicants.

Also by the 1960s, the curriculumin some law schools had been expand-ed to include social concerns such ascivil rights law and law-and-povertyissues. International law courses alsobecame available.

A more recent trend in law schoolsis an emphasis on the use of comput-ers for everything from registration toclassroom instruction to accessingcourt forms to student services. Alsonoteworthy is that more and more lawschools are offering courses or specialprograms in intellectual property law,a field of specialization that has grownconsiderably in recent years. Finally,the increasing use of advertising bylawyers has had a profound impact onthe legal profession. On television stations across the country one cannow see lawyers making appeals to attract new clients. Furthermore, legalclinics, established to handle the busi-ness generated by the increased use ofadvertising, have spread rapidly.

Growth and Stratification

The number of lawyers in the UnitedStates has increased steadily over thepast half century and is currently

CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 75

estimated at more than 950,000.Where do all the attorneys in the United States find work?

The Law School Admission Coun-cil provides some answers in The Offi-cial Guide to U.S. Law Schools, 2001Edition. Almost three-fourths (72.9percent) of America’s lawyers are inprivate practice, some in small, one-person offices and some in much larg-er law firms. About 8.2 percent of thelegal profession’s members work forgovernment agencies, roughly 9.5 per-cent work for private industries andassociations as lawyers or managers,about 1.1 percent work for legal aid as-sociations or as public defenders, rep-resenting those who cannot afford topay a lawyer, and 1 percent are in legaleducation. Some 5 percent of the na-tion’s lawyers are retired or inactive.

America’s lawyers apply their pro-fessional training in a variety of set-tings. Some environments are moreprofitable and prestigious than others.This situation has led to what isknown as professional stratification.

One of the major factors influenc-ing the prestige level is the type of legalspecialty and the type of clienteleserved. Lawyers with specialties whoserve big business and large institu-tions occupy the top hemisphere;those who represent individual inter-ests are in the bottom hemisphere.

At the top of the prestige ladder are the large national law firms. Attor-neys in these firms have traditionallybeen known less for court appearancesthan for the counseling they providetheir clients. The clients must be ableto pay for this high-powered legal tal-


The large national law firms employ associates, librarians, and paralegals to help partners with a myriad of tasks, such as research.

ent, and thus they tend to be majorcorporations rather than individuals.However, many of these large nationalfirms often provide “pro bono” (Latinfor “the public good,” or free) legalservices to further civil rights, civil liberties, consumer interests, and envi-ronmental causes.

The large national firms consist ofpartners and associates. Partners ownthe law firm and are paid a share ofthe firm’s profits. The associates arepaid salaries and in essence work for the partners. These large firmscompete for the best graduates fromthe nation’s law schools. The mostprestigious firms have 250 or morelawyers and also employ hundreds of other people as paralegals (non-lawyers who are specially trained tohandle many of the routine aspects oflegal work), administrators, librarians,and secretaries.

A notch below those working in the large national firms are those employed as attorneys by large corporations. Many corporations use national law firms as outsidecounsel. Increasingly, however, corpo-rations are hiring their own salariedattorneys as in-house counsel. Thelegal staff of some corporations rivalsthose of private firms in size. Further,these corporations compete with the major law firms for the best lawschool graduates.

Instead of representing the corpo-ration in court (a task usually handledby outside counsel when necessary),

the legal division handles the multi-tude of legal problems faced by themodern corporation. For example,the legal division monitors the compa-ny’s personnel practices to ensurecompliance with federal and state regulations concerning hiring and re-moval procedures. The corporation’sattorneys may advise the board ofdirectors about such things as contrac-tual agreements, mergers, stock sales,and other business practices. Thecompany lawyers may also help edu-cate other employees about the lawsthat apply to their specific jobs andmake sure that they are in compliancewith them. The legal division of a largecompany also serves as a liaison withoutside counsel.

Most of the nation’s lawyers workin a lower hemisphere of the legal pro-fession in terms of prestige and do notcommand the high salaries associatedwith large national law firms andmajor corporations. However, they areengaged in a wider range of activitiesand are much more likely to be found,day in and day out, in the courtroomsof the United States. These are the at-torneys who represent clients in per-sonal injury suits, who prosecute anddefend persons accused of crimes,who represent husbands and wives indivorce proceedings, who help peopleconduct real estate transactions, andwho help people prepare wills, toname just a few activities.

Attorneys who work for the gov-ernment are generally included in the


lower hemisphere. Some, such as theU.S. attorney general and the solicitorgeneral of the United States, occupyquite prestigious positions, but manytoil in rather obscure and poorly paidpositions. A number of attorneys optfor careers as judges at the federal orstate level.

Another distinction in terms ofspecialization in the legal profession isthat between plaintiffs and defense at-torneys. The former group initiateslawsuits, whereas the latter group de-fends those accused of wrongdoing incivil and criminal cases.

Government Attorneys in theJudicial Process

Government attorneys work at all lev-els of the judicial process, from trialcourts to the highest state and federalappellate courts.

Federal Prosecutors. Each federaljudicial district has one U.S. attorneyand one or more assistant U.S. attor-neys. They are responsible for prose-cuting defendants in criminal cases inthe federal district courts and for de-fending the United States when it issued in a federal trial court.

U.S. attorneys are appointed by thepresident and confirmed by the Senate. Nominees must reside in thedistrict to which they are appointedand must be lawyers. They serve a formal term of four years but can bereappointed indefinitely or removed atthe president’s discretion. The assis-

tant U.S. attorneys are formally ap-pointed by the U.S. attorney general,although in practice they are chosenby the U.S. attorney for the district,who forwards the selection to the attorney general for ratification.Assistant U.S. attorneys may be firedby the attorney general.

In their role as prosecutors, U.S.attorneys have considerable discretionin deciding which criminal cases toprosecute. They also have the authori-ty to determine which civil cases to try to settle out of court and whichones to take to trial. U.S. attorneys,therefore, are in a very good positionto influence the federal district court’sdocket. Also, because they engage in more litigation in the district courts than anyone else, the U.S.attorneys and their staffs are vital participants in policy making in thefederal trial courts.

Prosecutors at the State Level.Those who prosecute persons accusedof violating state criminal statutes are commonly known as district attorneys. In most states they are elected county officials; however, in a few states they are appointed.The district attorney’s office usuallyemploys a number of assistants who do most of the actual trial work. Mostof these assistant district attorneys are recent graduates of law school, whogain valuable trial experience in thesepositions. Many later enter privatepractice, often as criminal defense


attorneys. Others will seek to becomedistrict attorneys or judges after a few years.

The district attorney’s office has a great deal of discretion in the handling of cases. Given budget and personnel constraints, not all cases can be afforded the same amount oftime and attention. Therefore, somecases are dismissed, others are notprosecuted, and still others are prose-cuted vigorously in court. Most cases,however, are subject to plea bargain-ing. This means that the district attorney’s office agrees to accept thedefendant’s plea of guilty to a reducedcharge or to drop some chargesagainst the defendant in exchange forpleas of guilty to others.

Public Defenders. Often the personcharged with violating a state or feder-al criminal statute is unable to pay for the services of a defense attorney.In some areas a government officialknown as a public defender bears theresponsibility for representing indi-gent defendants. Thus, the public de-fender is a counterpart of the prosecu-tor. Unlike the district attorney,however, the public defender is usual-ly appointed rather than elected.

In some parts of the country thereare statewide public defender systems;in other regions the public defender isa local official, usually associated witha county government. Like the districtattorney, the public defender employsassistants and investigative personnel.


In some areas, if a person charged with violating a state or federal criminal statute is unable topay for the services of a defense attorney — as happened with the defendant above, center,facing the judge — a government official known as the public defender is responsible forrepresenting the defendant.

Other Government Lawyers. Atboth the state and federal levels, somegovernment attorneys are betterknown for their work in appellatecourts than in trial courts. For exam-ple, each state has an attorney generalwho supervises a staff of attorneyswho are charged with the responsibili-ty of handling the legal affairs of thestate. At the federal level the Depart-ment of Justice has similar responsi-bilities on behalf of the United States.

The U.S. Department of Justice. Al-though the Justice Department is anagency of the executive branch of thegovernment, it has a natural associa-tion with the judicial branch. Many ofthe cases heard in the federal courtsinvolve the national government inone capacity or another. Sometimesthe government is sued; in other in-stances the government initiates thelawsuit. In either case, an attorneymust represent the government. Mostof the litigation involving the federalgovernment is handled by the JusticeDepartment, although a number ofother government agencies have attor-neys on their payrolls.

The Justice Department’s Office ofthe Solicitor General is extremely im-portant in cases argued before theSupreme Court. The department alsohas several legal divisions, each with astaff of specialized lawyers and headedby an assistant attorney general. Thelegal divisions supervise the handlingof litigation by the U.S. attorneys, take

cases to the courts of appeals, and aidthe solicitor general’s office in cases ar-gued before the Supreme Court.

U.S. Solicitor General. The solicitorgeneral of the United States, the third-ranking official in the Justice Depart-ment, is assisted by five deputies andabout 20 assistant solicitors general.The solicitor general’s primary func-tion is to decide, on behalf of the United States, which cases will and willnot be presented to the SupremeCourt for review. Whenever an execu-tive branch department or agencyloses a case in one of the courts of ap-peals and wishes a Supreme Court re-view, that department or agency willrequest that the Justice Departmentseek certiorari. The solicitor generalwill determine whether to appeal thelower court decision.

Many factors must be taken intoaccount when making such a decision.Perhaps the most important consider-ation is that the Supreme Court is limited in the number of cases it canhear in a given term. Thus, the solic-itor general must determine whether aparticular case deserves extensive con-sideration by the Court. In addition todeciding whether to seek SupremeCourt review, the solicitor general per-sonally argues most of the govern-ment’s cases heard by the High Court.

State Attorneys General. Each statehas an attorney general who serves asits chief legal official. In most states


this official is elected on a partisanstatewide ballot. The attorney generaloversees a staff of attorneys who pri-marily handle the civil cases involvingthe state. Although the prosecution of criminal defendants is generallyhandled by the local district attorneys,the attorney general’s office often playsan important role in investigatingstatewide criminal activities. Thus, theattorney general and his or her staffmay work closely with the local dis-trict attorney in preparing a caseagainst a particular defendant.

The state attorneys general alsoissue advisory opinions to state andlocal agencies. Often, these opinionsinterpret an aspect of state law not yetruled on by the courts. Although anadvisory opinion might eventually beoverruled in a case brought before thecourts, the attorney general’s opinionis important in determining the be-havior of state and local agencies.

Private Lawyers in the JudicialProcess

In criminal cases in the United Statesthe defendant has a constitutionalright to be represented by an attorney.Some jurisdictions have establishedpublic defender’s offices to representindigent defendants. In other areas,some method exists of assigning a private attorney to represent a defen-dant who cannot afford to hire one.Those defendants who can afford tohire their own lawyers will do so.

In civil cases neither the plaintiff

nor the defendant is constitutionallyentitled to the services of an attorney.However, in the civil arena the legal issues are often so complex as to de-mand the services of an attorney. Var-ious forms of legal assistance are usu-ally available to those who need help.

Assigned Defense Counsel. When aprivate lawyer must be appointed torepresent an indigent defendant, theassignment usually is made by an indi-vidual judge on an ad hoc basis. Localbar associations or lawyers themselvesoften provide the courts with a list ofattorneys who are willing to providesuch services.

Private Defense Counsel. Some at-torneys in private practice specialize incriminal defense work. Although thelives of criminal defense attorneys maybe depicted as glamorous on televisionand in movies, the average real-lifecriminal defense lawyer works longhours for low pay and low prestige.

The Courtroom Workgroup

Rather than functioning as an occa-sional gathering of strangers who re-solve a particular conflict and then gotheir separate ways, lawyers and judgeswho work in a criminal court roombecome part of a workgroup.

The most visible members of thecourtroom workgroup — judges,prosecutors, and defense attorneys —are associated with specific functions:Prosecutors push for convictions of


those accused of criminal offensesagainst the government, defense attor-neys seek acquittals for their clients,and judges serve as neutral arbiters toguarantee a fair trial. Despite their dif-ferent roles, members of the court-room workgroup share certain valuesand goals and are not the fierce adver-saries that many people imagine. Co-operation among judges, prosecutors,and defense attorneys is the norm.

The most important goal of thecourtroom workgroup is to handlecases expeditiously. Judges and prose-cutors are interested in disposing of cases quickly to present a picture of accomplishment and efficiency.Because private defense attorneysneed to handle a large volume ofcases to survive financially, resolvingcases quickly works to their advantage.And public defenders seek quick dispositions simply because they lack adequate resources to handletheir caseloads.

A second important goal of thecourtroom workgroup is to maintaingroup cohesion. Conflict among themembers makes work more difficultand interferes with the expeditioushandling of cases.

Finally, the courtroom workgroupis interested in reducing or controllinguncertainty. In practice this meansthat all members of the workgroupstrive to avoid trials. Trials, especiallyjury trials, produce a great deal of un-certainty given that they require sub-stantial investments of time and effort

without any reasonable guarantee of adesirable outcome.

To attain these goals, workgroupmembers employ several techniques.Although unilateral decisions and adversarial proceedings occur, negoti-ation is the most commonly usedtechnique in criminal courtrooms.The members negotiate over a varietyof issues — continuances (delays inthe court proceedings), hearing dates,and exchange of information, for ex-ample. Plea bargaining, however, is themost critical tool of negotiation.

Legal Services for the Poor

Although criminal defendants areconstitutionally entitled to be repre-sented by a lawyer, those who are de-fendants in a civil case or who wish toinitiate a civil case do not have theright to representation. Therefore,those who do not have the funds tohire a lawyer may find it difficult toobtain justice.

To deal with this problem, legal aidservices are now found in many areas.Legal aid societies were established inNew York and Chicago as early as thelate 1880s, and many other majorcities followed suit in the 20th century.Although some legal aid societies aresponsored by bar associations, mostare supported by private contribu-tions. Legal aid bureaus also are asso-ciated with charitable organizations insome areas, and many law schools op-erate legal aid clinics to provide bothlegal assistance for the poor and valu-


able training for law students. In addi-tion, many lawyers provide legal serv-ices “pro bono publico” (Latin for “forthe public good”) because they see itas a professional obligation.

LITIGANTS

In some cases taken before thecourts, the litigants are individu-als, whereas in other cases one or

more of the litigants may be a govern-ment agency, a corporation, a union,an interest group, or a university.

What motivates a person or groupto take a grievance to court? In crimi-nal cases the answer to this question isrelatively simple. A state or federalcriminal statute has allegedly been vi-olated, and the government prosecutesthe party charged with violating thestatute. In civil cases the answer is notquite so easy. Although some personsreadily take their grievances to court,many others avoid this route becauseof the time and expense involved.

Political scientist Phillip Cooperpoints out that judges are called uponto resolve two kinds of disputes:private law cases and public law controversies. Private law disputes arethose in which one private citizen ororganization sues another. In publiclaw controversies, a citizen or organi-zation contends that a governmentagency or official has violated a rightestablished by a constitution orstatute. In Hard Judicial Choices,Cooper writes that “legal actions,whether public law or private law

contests, may either be policy orientedor compensatory.”

A classic example of private, or ordinary, compensation-oriented liti-gation is when a person injured in anautomobile accident sues the driver ofthe other car in an effort to win mon-etary damages as compensation formedical expenses incurred. This typeof litigation is personal and is notaimed at changing governmental orbusiness policies.

Some private law cases, however,are policy oriented or political in na-ture. Personal injury suits and productliability suits may appear on the sur-face to be simply compensatory in na-ture but may also be used to changethe manufacturing or business prac-tices of the private firms being sued.

A case litigated in North Carolinaprovides a good example. The casebegan in 1993 after a five-year-old girlgot stuck on the drain of a wadingpool after another child had removedthe drain cover. Such a powerful suc-tion was created that, before she couldbe rescued, the drain had sucked outmost of her large and small intestines.As a result, the girl will have to spendabout 11 hours per day attached to in-travenous feeding tubes for the rest ofher life. In 1997 a jury awarded thegirl’s family $25 million in compensa-tory damages and, before the jury wasto have considered punitive damages,the drain manufacturer and two otherdefendants settled the case for $30.9million. The plaintiff ’s attorney said


that the lawsuit revealed similar inci-dents in other areas of the country andpresented a stark example of some-thing industry insiders knew but others did not. Not only did the fami-ly win its lawsuit, but the North Car-olina legislature also passed a law re-quiring multiple drains to preventsuch injuries in the future.

Most political or policy-orientedlawsuits, however, are public law con-troversies. That is, they are suitsbrought against the government pri-marily to stop allegedly illegal policiesor practices. They may also seek dam-ages or some other specific form of re-lief. A case decided by the U.S.Supreme Court, Lucas v. South Caroli-na Coastal Council, provides a good ex-ample. South Carolina’s BeachfrontManagement Act forbade David H.Lucas from building single-familyhouses on two beachfront lots heowned. A South Carolina trial courtruled that Lucas was entitled to becompensated for his loss. The SouthCarolina Supreme Court reversed thetrial court decision, however, andLucas appealed to the U.S. SupremeCourt. The High Court ruled inLucas’s favor, saying that if a propertyowner is denied all economically viableuse of his or her property, a taking hasoccurred and the Constitution requiresthat he or she get compensation.

Political or policy-oriented litiga-tion is more prevalent in the appellatecourts than in the trial courts and ismost common in the U.S. Supreme

Court. Ordinary compensatory litiga-tion is often terminated early in the judicial process because the litigantsfind it more profitable to settle theirdispute or accept the verdict of a trial court. However, litigants in polit-ical cases generally do little to advancetheir policy goals by gaining victoriesat the lower levels of the judiciary.Instead, they prefer the more wide-spread publicity that is attached to adecision by an appellate tribunal.Pursuing cases in the appellate courtsis expensive. Therefore, many lawsuitsthat reach this level are supported inone way or another by interest groups.

INTEREST GROUPS IN THEJUDICIAL PROCESS

Although interest groups areprobably better known fortheir attempts to influence

legislative and executive branch decisions, they also pursue their policy goals in the courts. Somegroups have found the judicial branchto be more receptive to their effortsthan either of the other two branchesof government. Interest groups that do not have the economic resources to mount an intensive lobbying effortin Congress or a state legislature mayfind it much easier to hire a lawyer andfind some constitutional or statutoryprovision upon which to base a courtcase. Likewise, a small group with fewregistered voters among its membersmay lack the political clout to exertmuch influence on legislators and ex-



One of the most famous cases involving special interests was the 1925 “monkey trial,” wherethe American Civil Liberties Union (ACLU) sent Clarence Darrow, left, to defend biologyteacher John T. Scopes in his test of Tennessee’s law banning the teaching of the theory of evolution. William Jennings Bryan, right, testified for the prosecution as a Bible expert.

During the 1950s and 1960s, interest group lawyers such as Thurgood Marshall, then chiefcounsel of the National Association for the Advancement of Colored People (NAACP),successfully persuaded the courts to support African Americans’ struggle for their civil rights.Marshall here is shown with one of his clients, Autherine Lucy, expelled within days ofbecoming the first African American student to attend the University of Alabama, allegedly“for her own safety” in response to threats.


ecutive branch officials. Large mem-berships and political clout are notprerequisites for filing suits in thecourts, however.

Interest groups may also turn tothe courts because they find the judi-cial branch more sympathetic to theirpolicy goals than the other twobranches. Throughout the 1960s in-terest groups with liberal policy goalsfared especially well in the federalcourts. In addition, the public interestlaw firm concept gained prominenceduring this period. The public interestlaw firms pursue cases that serve thepublic interest in general — includingcases in the areas of consumer rights,employment discrimination, occupa-tional safety, civil liberties, and envi-ronmental concerns.

In the 1970s and 1980s conserva-tive interest groups turned to the fed-eral courts more frequently than theyhad before. This was in part a reactionto the successes of liberal interestgroups. It was also due to the increas-ingly favorable forum that the federalcourts provided for conservativeviewpoints.

Interest group involvement in thejudicial process may take several different forms depending upon the goals of the particular group.However, two principal tactics standout: involvement in test cases and presentation of information before the courts through “amicus curiae” (Latin, meaning “friend of thecourt”) briefs.

Test Cases

Because the judiciary engages in poli-cy making only by rendering decisionsin specific cases, one tactic of interestgroups is to make sure that a case appropriate for obtaining its policygoals is brought before the court.In some instances this means that theinterest group will initiate and spon-sor the case by providing all the necessary resources. The best-knownexample of this type of sponsorship is Brown v. Board of Education (1954).In that case, although the suit againstthe Board of Education of Topeka,Kansas, was filed by the parents of Linda Brown, the National Associa-tion for the Advancement of Colored People (NAACP) supplied the legalhelp and money necessary to pursuethe case all the way to the SupremeCourt. Thurgood Marshall, who laterbecame a U.S. Supreme Court justice,argued the suit on behalf of the plain-tiff and the NAACP. As a result, theNAACP gained a victory through theSupreme Court’s decision that segre-gation in the public schools violatesthe equal protection clause of theFourteenth Amendment.

Interest groups may also provideassistance in a case initiated by some-one else, but which nonetheless raisesissues of importance to the group. Agood example of this situation may befound in a freedom of religion case,Wisconsin v. Yoder. That case was initi-ated by the state of Wisconsin when itfiled criminal complaints charging


Linda Brown, left,and her youngersister with theirparents, who filedthe landmark suitBrown v. Board ofEducation (1954)that led to theSupreme Court’sdecision thatsegregation in thepublic schoolsviolates the equalprotection clause ofthe FourteenthAmendment.

Abe Yoder, the Amish youth whose father, along with others of his faith, were charged by the state of Wisconsin with failure to send their children to school until the age of 16, asrequired by state law. In this freedom of religion case, interest groups came to the defense of the parents.


Jonas Yoder and others with failure tosend their children to school until theage of 16 as required by state law.Yoder and the others, members of theAmish faith, believed that educationbeyond the eighth grade led to thebreakdown of the values they cher-ished and to “worldly influences ontheir children.”

An organization known as the Na-tional Committee for Amish ReligiousFreedom (NCARF) came to the de-fense of Yoder and the others. Follow-ing a decision against the Amish in thetrial court, the NCARF appealed to aWisconsin circuit court, which upheldthe trial court’s decision. An appealwas made to the Wisconsin SupremeCourt, which ruled in favor of theAmish, saying that the compulsoryschool attendance law violated the freeexercise of religion clause of the FirstAmendment. Wisconsin then ap-pealed to the U.S. Supreme Court,which on May 15, 1972, sustained thereligious objection that the NCARFhad raised to the compulsory schoolattendance laws.

As these examples illustrate, inter-est group involvement in litigation hasfocused on cases concerning majorconstitutional issues that have reachedthe Supreme Court. Because only asmall percentage of cases ever reachesthe nation’s highest court, however,most of the work of interest grouplawyers deals with more routine workat the lower levels of the judiciary.Instead of fashioning major test cases

for the appellate courts, these attor-neys may simply be required to dealwith the legal problems of theirgroups’ clientele.

During the civil rights movementin the 1950s and 1960s, for example,public interest lawyers not only litigatedmajor civil rights questions; they alsodefended African Americans and civilrights workers who ran into difficul-ties with the local authorities. Theseinterest group attorneys, then, per-formed many of the functions of aspecialized legal aid society: They pro-vided legal representation to those in-volved in an important movement forsocial change. Furthermore, they per-formed the important function ofdrawing attention to the plight ofAfrican Americans by keeping casesbefore the courts.

Amicus Curiae Briefs

Submission of amicus curiae briefs isthe easiest method by which interestgroups can become involved in cases.This method allows a group to get itsmessage before the court even thoughit does not control the case. Providedit has the permission of the parties tothe case or the permission of thecourt, an interest group may submitan amicus brief to supplement the ar-guments of the parties. The filing ofamicus briefs is a tactic used in appel-late rather than trial courts, at boththe federal and the state levels.

Sometimes these briefs are aimedat strengthening the position of one of

the parties in the case. When the Wisconsin v. Yoder case was argued before the U.S. Supreme Court, thecause of the Amish was supported byamicus curiae briefs filed by the General Conference of Seventh DayAdventists, the National Council ofChurches of Christ in the UnitedStates, the Synagogue Council ofAmerica, the American Jewish Con-gress, the National Jewish Commis-sion on Law and Public Affairs, andthe Mennonite Central Committee.

Sometimes friend-of-the-courtbriefs are used not to strengthen thearguments of one of the parties but tosuggest to the court the group’s ownview of how the case should be re-

solved. Amicus curiae briefs are oftenfiled in an attempt to persuade an ap-pellate court to either grant or denyreview of a lower-court decision. Astudy of the U.S. Supreme Courtfound that the presence of amicusbriefs significantly increased thechances that the Court would give fulltreatment to a case.

Unlike private interest groups,all levels of the government can sub-mit amicus briefs without obtainingpermission. The solicitor general ofthe United States is especially impor-tant in this regard, and in some instances the Supreme Court may invite the solicitor general to presentan amicus brief. �


A jury forewoman reads theverdict in court. The SixthAmendment of the Constitutionguarantees Americans the right toan impartial jury.

THECRIMINAL

COURT PROCESS

C H A P T E R

5

The criminal process begins when alaw is first broken and extendsthrough the arrest, indictment, trial,and appeal. There is no single crimi-nal, or civil, court process in the United States. Instead, the federal system has a court process at the national level, and each state and terri-tory has its own set of rules and regu-lations that affect the judicial process.Norms and similarities do exist amongall of these governmental entities,and the discussion will focus primarilyon these, but no two states have iden-tical judicial systems and no state’s sys-tem is identical to that of the nationalgovernment.

THE NATURE ANDSUBSTANCE OF CRIME

An act is not automatically acrime because it is hurtful orsinful. An action constitutes a

true crime only if it specifically vio-lates a criminal statute duly enacted byCongress, a state legislature, or someother public authority. A crime, then,is an offense against the state punish-able by fine, imprisonment, or death.A crime is a violation of obligationsdue the community as a whole andcan be punished only by the state. Thesanctions of imprisonment and deathcannot be imposed by a civil court orin a civil action (although a fine maybe a civil or a criminal penalty).

In the United States most crimesconstitute sins of commission, such asaggravated assault or embezzlement; a

few consist of sins of omission, such asfailing to stop and render aid after atraffic accident or failing to file an in-come tax return. The state considerssome crimes serious, such as murderand treason, and this seriousness is re-flected in the corresponding punish-ments, such as life imprisonment orthe death penalty. The state considersothers crimes only mildly reprehensi-ble, such as double parking or disturb-ing the peace, and consequently punishments of a light fine or a nightin the local jail are akin to an officialslap on the wrist.

Some crimes, such as kidnappingor rape, constitute actions that virtual-ly all citizens consider outside thesphere of acceptable human conduct,whereas other crimes constitute ac-tions about which opinion would bedivided. For example, an 1897 Michi-gan statute makes it illegal to curse infront of a child, and a Nebraska lawforbids bingo games at church sup-pers. Other criminal statutes are plain-ly silly: In Wisconsin it is illegal to singin a bar, and in Louisiana it is forbid-den to appear drunk at a meeting of aliterary society.

The most serious crimes in theUnited States are felonies. In a majori-ty of the states a felony is any offensefor which the penalty may be death (instates that allow it) or imprisonmentin the penitentiary (a federal or stateprison); all other offenses are misde-meanors or infractions. In other states,and under federal law, a felony is an


offense for which the penalty may bedeath or imprisonment for a year ormore. Thus, felonies are distinguishedin some states according to the placewhere the punishment occurs; in somestates and according to the federalgovernment, the length of the sentenceis the key factor. Examples of feloniesinclude murder, forcible rape, andarmed robbery.

Misdemeanors are regarded as pettycrimes by the state, and their punish-ment usually consists of confinementin a city or county jail for less than ayear. Public drunkenness, small-timegambling, and vagrancy are commonexamples of misdemeanor offenses.Some states have a third category ofoffense known as infractions. Oftenthey include minor traffic offenses,such as parking violations, and thepenalty is usually a small fine. Finesmay also be part of the penalty formisdemeanors and felonies.

CATEGORIES OF CRIME

Five broad categories that com-prise the primary criminal of-fenses in the United States today

are conventional, economic, syndicat-ed, political, and consensual.

Conventional Crimes

Property crimes make up the lion’sshare of the 31.3 million conventionalcrimes committed annually in theUnited States. Property crimes are dis-tinguished by the government fromcrimes of violence, although the two

often go hand in glove. For example,the thief who breaks into a house andinadvertently confronts a resistantowner may harm the owner and thusbe involved in more than just theproperty crime of burglary.

The less numerous, but morefeared, conventional crimes are thoseagainst the person. These crimes ofviolence include murder and nonneg-ligent manslaughter, forcible rape,robbery, and aggravated assault.

Economic Crimes

There are four broad categories of eco-nomic crimes:• Personal crimes consist of nonviolent

criminal activity that one personinflicts on another with the hope ofmonetary gain. Examples includeintentionally writing a bad check,cheating on one’s income tax, andcommitting welfare fraud.

• Abuse of trust occurs when businessor government employees violatetheir fidelity to their employer orclients and engage in practices suchas commercial bribery, theft andembezzlement from the workplace,and filling out false expense accounts.

• Business crimes are crimes that arenot part of the central purpose of thebusiness enterprise but are incidentalto (or in furtherance of) it. Mis-leading advertising, violations of theantitrust laws, and false depreciationfigures computed for corporateincome tax purposes are all business crimes.

CHAPTER 5: THE CRIMINAL COURT PROCESS 93

• Con games are white-collar criminalactivities committed under the guiseof a business.

Syndicated, or Organized, Crimes

Syndicated crime is engaged in bygroups of people and is often directedon some type of hierarchical basis. Itrepresents an ongoing activity that isinexorably entwined with fear andcorruption. Organized crime tends tofocus on areas that are particularly lucrative, such as trafficking in illegaldrugs, gambling, prostitution, andloan-sharking (money-lending at ex-orbitant interest rates and high repay-ment rates).

Political Crimes

Political crime usually con-stitutes an offense againstthe government: treason,armed rebellion, assassina-tion of public officials, andsedition. However, the termhas come to include crimescommitted by the govern-ment against individual cit-izens, dissident groups, andforeign governments or na-tionals — for example, ille-gal wiretaps conducted bythe government of politi-cally dissident groups orthe refusal of the military to investigate incidents ofsexual harassment.

Consensual Crimes

So-called victimless crime, such asprostitution, gambling, illegal druguse, and unlawful sexual practices be-tween consenting adults, is called con-sensual because both perpetrator andclient desire the forbidden activity.

ELEMENTS OF A CRIME

Every crime has several distinctelements, and unless the state isable to demonstrate in court the

existence of these essential elementsthere can be no conviction. Althoughthe judicial process in the courtroommay not focus separately and distinct-ly on each of these elements, they areat least implicit throughout the entire


Syndicated crime is one of five broad categories thatcomprise the primary criminal offenses in the UnitedStates today. At this June 20, 2002, press conference, U.S.Attorney General for the Southern District of New YorkJames Comey, left, and Kevin Donovan, right, assistantdirector of the New York FBI field office, announce theindictment of 14 alleged members of the Gambinoorganized crime family in New York.

process of duly convicting someone of a criminal offense.

A Law Defining the Crime and thePunishment

If an act is to be prohibited or re-quired by the law, a duly constitutedauthority (usually Congress or a statelegislature) must properly spell outthe matter so that the citizenry canknow in advance what conduct is pro-hibited or required. Lawmakers mustalso set forth the penalties to be im-posed upon the individual who en-gages in the harmful conduct.

There are several corollaries to thisgeneral principle. One is that the U.S.Constitution forbids criminal laws thatare ex post facto, that is, laws that de-clare certain conduct to be illegal afterthe conduct takes place. Likewise, thestate may not pass bills of attainder,which are laws that single out a partic-ular person or group of persons anddeclare that something is criminal forthem but legal for everyone else. A finalcorollary is that a law defining a crimemust be precise so that the averageperson can determine in advance whatconduct is prohibited or required.

The Actus Reus

“Actus reus” is the Latin phrase mean-ing the criminal action committed bythe accused that gives rise to the legalprosecution. The actus reus is the material element of the crime. This element may be the commission of anaction that is forbidden (for instance,

assault and battery), or it may be thefailure to perform an action that is required (for instance, a person’s refusal to stop and render aid to amotor vehicle accident victim).

The Mens Rea

The “mens rea” (a Latin term) is theessential mental element of the crime.The U.S. legal system has always madea distinction between harm that wascaused intentionally and harm thatwas caused by simple negligence oraccident. Thus, if one person takes the life of another, the state does notalways call it murder. If the killing was done with malice aforethought bya sane individual, it will likely betermed “murder in the first degree.”But if the killing occurred in the passion of a barroom brawl, it wouldmore likely be called “second-degreemurder,” which carries a lesser penal-ty. Reckless driving on the highwaythat results in the death of anotherwould correspondingly be considered“negligent homicide” — a wrong, tobe sure, but not as serious in the eyesof the state as the intentional killing of another.

An Injury or Result

A crime consists of a specific injury ora wrong perpetrated by one personagainst another. The crime may harmsociety at large, such as selling militarysecrets to a foreign government, or theinjury may be inflicted upon an indi-vidual and, because of its nature, is


considered to offend society as awhole. The nature of the injury, aswith the mens rea, often determinesthe nature of the crime itself. For example, consider two drivers whohave been cutting each other off intraffic. Finally they both stop theircars and come out fighting. Supposeone of them hits the other so hard hedies. The crime may be murder (ofsome degree). If the man does not diebut suffers serious bodily harm, thecrime is aggravated assault. If the injury is minor, the charge may besimple assault. Because the nature ofthe injury often determines the of-fense, it is frequently asserted that thenature of the injury is the key legal element of the crime.

Some actions may be criminal eventhough no injury is actually inflicted.Most crimes of criminal conspiracyfall into this category. For instance, ifseveral persons were to plan to assassi-nate a judge or to bribe jurors in an at-tempt to keep a criminal from beingconvicted, the crime would be con-spiracy to obstruct justice. This wouldbe a crime even if the judge went un-harmed and no money was everpassed to the jurors. All that is re-quired is that the crime be plannedand intended and that some specific,overt act be taken by one of the con-spirators in furtherance of their plan(such as the purchase of a weapon orpossession of a map of the route thatthe judge takes between his home andthe courtroom).

A Causal Relationship Between theAction and the Resultant Injury

Before there can be a conviction for acriminal offense, the state must provethat the accused, acting in a naturaland continuous sequence, producedthe harmful situation. Usually provinga causal relationship is not difficult. If“Bill” stabs “John” with a knife and in-flicts a minor wound, there is nodoubt that Bill is guilty of assault witha deadly weapon. But what if Johndoes not obtain proper medical carefor the wound, develops an infection,and subsequently dies? Is Bill nowguilty of manslaughter or murder? Orwhat if after being stabbed, Johnstumbles across a third party andcauses injury to her? Is Bill to blamefor this, too?

Resolution of questions such asthese are often difficult for judges andjuries. The law requires that all cir-cumstances be taken into account.The accused can be convicted only ifthe state can prove that his or her con-duct is the direct, immediate, or deter-mining cause of the resultant harm tothe victim.

PROCEDURES BEFORE ACRIMINAL TRIAL

Before a criminal trial can beheld, federal and state laws re-quire a series of procedures and

events. Some of these stages are man-dated by the U.S. Constitution andstate constitutions, some by court de-cisions, and others by legislative en-


actments. Custom and tradition oftenaccount for the rest. Although the exactnature of these procedural events variesfrom federal to state practice — andfrom one state to another — there aresimilarities throughout the country.These procedures, however, are not asautomatic or routine as they might ap-pear; rather, the judicial system’s deci-sion makers exercise discretion at allstages according to their values, atti-tudes, and views of the world.

The Arrest

The arrest is the first substantial con-tact between the state and the accused.The U.S. legal system provides for twobasic types of arrest — those with awarrant and those without. A warrantis issued after a complaint, filed by oneperson against another, has been pre-sented and reviewed by a magistratewho has found probable cause for thearrest. Arrests without a warrant occurwhen a crime is committed in thepresence of a police officer or when anofficer has probable cause to believethat someone has committed (or isabout to commit) a crime. Such a be-lief must later be established in asworn statement or testimony. In theUnited States up to 95 percent of allarrests are made without a warrant.

An officer’s decision whether tomake an arrest is far from simple orautomatic. To be sure, the officer whowitnesses a murder will make an arreston the spot if possible. But most law-breaking incidents are not that simple

or clear-cut, and police officials pos-sess — and exercise — wide discretionabout whether to take someone intocustody. Sufficient resources are sim-ply not available to the police for themto proceed against all activities thatCongress and the legislatures have for-bidden. Consequently, discretion mustbe exercised in determining how to al-locate the time and resources that doexist. Police discretion is at a maxi-mum in several areas.

Trivial Offenses. Many police manualsadvise their officers that when minorviolations of the law are concerned,a warning is a more appropriate response than an arrest. Traffic viola-tions, misconduct by juveniles, drunk-enness, gambling, and vagrancy allconstitute less serious crimes and en-tail judgment calls by police.

Victim Will Not Seek Prosecution.Nonenforcement of the law is also therule in situations where the victim of acrime will not cooperate with the po-lice in prosecuting a case. In the in-stance of minor property crimes, forexample, the victim is often satisfied ifrestitution occurs and the victim can-not afford the time to testify in court.Unless the police have expended considerable resources in investigatinga particular property crime, they aregenerally obliged to abide by the victim’s wishes.

When the victim of a crime is in acontinuing relationship with the crim-


inal, the police often decline to makean arrest. Such relationships includelandlord and tenant, one neighborand another, and, until recently,husband and wife. In this last case,however, heightened awareness of do-mestic violence has had a significantimpact on police procedures.

Rape and child molestation consti-tute another major category of crimesfor which there are often no arrestsbecause the victims will not or cannotcooperate with the police. Oftentimesthe victim is personally acquaintedwith, or related to, the criminal, andthe fear of reprisals or of ugly publicityinhibits the victim from pressing a complaint.

Victim Also Involved in Misconduct.When police officers perceive that thevictim of a crime is also involved insome type of improper or question-able conduct, the officers frequentlyopt not to make an arrest.

Appearance Before a Magistrate

After a suspect is arrested for a crime,he or she is booked at the police station; that is, the facts surroundingthe arrest are recorded and the accused may be fingerprinted and photographed. Next the accused appears before a lower-level judicialofficial whose title may be judge,magistrate, or commissioner. Such anappearance is supposed to occur“without unnecessary delay”; in 1991the U.S. Supreme Court ruled that

police may detain an individual arrested without a warrant for up to48 hours without a court hearing onwhether the arrest was justified.

This appearance in court is the oc-casion of several important events inthe criminal justice process. First, theaccused must have been informed ofthe precise charges and must be in-formed of all constitutional rights and guarantees. Among others, theserights include those of the now fa-mous Miranda v. Arizona decisionhanded down in 1966 by the SupremeCourt. The accused “must be warnedprior to any questioning that he hasthe right to remain silent, that any-thing he says can be used against himin a court of law, that he has the rightto the presence of an attorney, andthat if he cannot afford an attorneyone will be appointed for him prior toany questioning.” (Such warningsmust also be given by the arresting of-ficer if the officer questions the sus-pect about the crime.) In some statesthe accused must be informed aboutother rights that are provided for inthe state’s Bill of Rights, such as theright to a speedy trial and the right toconfront hostile witnesses.

Second, the magistrate will deter-mine whether the accused is to be re-leased on bail and, if so, what theamount of bail is to be. Constitution-ally, the only requirement for theamount is that it shall not be “exces-sive.” Bail is considered to be a privi-lege — not a right — and it may be


denied altogether in capital punish-ment cases for which the evidence ofguilt is strong or if the magistrate be-lieves that the accused will flee fromprosecution no matter what theamount of bail. An alternative to bailis to release the defendant on recogni-zance, basically on a pledge by the defendant to return to court on theappointed date for trial.

In minor cases the accused may beasked to plead guilty or not guilty. Ifthe plea is guilty, a sentence may bepronounced on the spot. If the defen-dant pleads not guilty, a trial date isscheduled. However, in the typical seri-ous (felony) case, the next primaryduty of the magistrate is to determinewhether the defendant requires a pre-liminary hearing. If such a hearing isappropriate, the matter is adjourned by

the prosecution and a subsequent stageof the criminal justice process begins.

The Grand Jury Process or thePreliminary Hearing

At the federal level all persons accusedof a crime are guaranteed by the FifthAmendment to have their cases con-sidered by a grand jury. However, theSupreme Court has refused to makethis right binding on the states. Todayonly about half of the states use grandjuries; in some of these, they are used for only special types of cases.Those states that do not use grand juries employ a preliminary hearing or an examining trial. (A few states useboth procedures.) Regardless of whichmethod is used, the primary purposeof this stage in the criminal justiceprocess is to determine whether there


Since 1966, police have had to advise suspects about their rights prior to anyinterrogation. They use the so-called “Miranda Warning,” named after ErnestoMiranda, who was granted a retrial because he was not advised about his rights.

is probable cause for the accused to be subjected to a formal trial.

The Grand Jury. Grand juries consistof 16 to 23 citizens, usually selected atrandom from the voter registrationlists, who render decisions by a ma-jority vote. Their terms may last any-where from one month to one year,and some may hear more than a thou-sand cases during their term. Theprosecutor alone presents evidence tothe grand jury. Not only are the ac-cused and his or her attorney absentfrom the proceedings, but usually theyalso have no idea which grand jury ishearing the case or when. If a majoritybelieves probable cause exists, then anindictment, or true bill, is brought.Otherwise the result is a no bill.

Historically two arguments havebeen made in favor of grand juries.One is that grand juries serve as a checkon a prosecutor who might be usingthe office to harass an innocent personfor political or personal reasons. Ideal-ly an unbiased group of citizens wouldinterpose themselves between an un-ethical prosecutor and the defendant.A second justification for grand juriesis to make sure that the district attor-ney has secured enough evidence towarrant the trouble and expense — forboth the state and the accused — of afull-fledged trial.

The Preliminary Hearing. In themajority of states that have abolishedthe grand jury system, a preliminary

hearing is used to determine whetherthere is probable cause for the accusedto be bound over for trial. At thishearing the prosecution presents itscase, and the accused has the right tocross-examine witnesses and to pro-duce favorable evidence. Usually thedefense elects not to fight at this stageof the criminal process; in fact, a pre-liminary hearing is waived by the de-fense in the vast majority of cases.

If the examining judge determinesthat there is probable cause for a trialor if the preliminary hearing is waived,the prosecutor must file a bill ofinformation with the court where thetrial will be held. This serves to outlineprecisely the charges that will be adju-dicated in the new legal setting.

The Arraignment

Arraignment is the process in whichthe defendant is brought before thejudge in the court where he or she is to be tried to respond to the grandjury indictment or the prosecutor’sbill of information. The prosecutor ora clerk usually reads in open court the charges that have been broughtagainst the accused. The defendant isinformed that he or she has a consti-tutional right to be represented by anattorney and that a lawyer will be ap-pointed without charge if necessary.

The defendant has several optionsabout how to plead to the charges. Themost common pleas are guilty and notguilty. But the accused may also pleadnot guilty by reason of insanity, for-


mer jeopardy (having been tried on thesame charge at another time), or “nolocontendere” (from the Latin, no con-test). Nolo contendere means that theaccused does not deny the facts of thecase but claims that he or she has notcommitted any crime, or it may meanthat the defendant does not under-stand the charges. The nolo contendereplea can be entered only with the con-sent of the judge (and sometimes theprosecutor as well). Such a plea hastwo advantages. It may help the ac-cused save face vis-à-vis the public be-cause he or she can later claim thattechnically no guilty verdict wasreached even though a sentence or afine may have been imposed. Also, theplea may spare the defendant fromcertain civil penalties that might fol-low a guilty plea (for example, a civilsuit that might follow from convictionfor fraud or embezzlement).

If the accused pleads not guilty, thejudge will schedule a date for a trial. Ifthe plea is guilty, the defendant may besentenced on the spot or at a later dateset by the judge. Before the court willaccept a guilty plea, the judge mustcertify that the plea was made volun-tarily and that the defendant wasaware of the implications of the plea.A guilty plea is to all intents and purposes the equivalent to a formalverdict of guilty.

The Possibility of a Plea Bargain

At both the state and federal levels atleast 90 percent of all criminal cases

never go to trial. That is because be-fore the trial date a bargain has beenstruck between the prosecutor and thedefendant’s attorney concerning theofficial charges to be brought and thenature of the sentence that the statewill recommend to the court. In effect,some form of leniency is promised inexchange for a guilty plea.

Because plea bargaining virtuallyseals the fate of the defendant beforetrial, the role of the judge is simply toensure that the proper legal and con-stitutional procedures have been fol-lowed. There are three (not mutuallyexclusive) types of plea bargains.

Reduction of Charges. The mostcommon form of agreement betweena prosecutor and a defendant is a reduction of the charge to one less se-rious than that supported by the evi-dence. This exposes the criminal to asubstantially reduced range of sen-tence possibilities. A second reason fora defendant to plead guilty to a re-duced charge is to avoid a record ofconviction for an offense that carries asocial stigma. Another possibility isthat the defendant may wish to avoid afelony record altogether and would bewilling to plead guilty to almost anymisdemeanor offered by the prosecu-tor rather than face a felony charge.

Deletion of Tangent Charges. A sec-ond form of plea bargain is the agree-ment of the district attorney to dropother charges pending against an indi-


vidual. There are two variations onthis theme. One is an agreement not toprosecute “vertically” — that is, not toprosecute more serious charges filedagainst the individual. The secondtype of agreement is to dismiss “hori-zontal” charges; that is to dismiss ad-ditional indictments for the samecrime pending against the accused.

Another variation of this type ofplea bargaining is the agreement inwhich a repeater clause is droppedfrom an indictment. At the federallevel and in many states, a person isconsidered a habitual criminal uponthe third conviction for a violentfelony anywhere in the United States.The mandatory sentence for the habit-ual criminal is life imprisonment. Instate courts the habitual criminalcharge often is dropped in exchangefor a plea of guilty.

Another plea bargain of this type isthe agreement in which indictments indifferent courts are consolidated intoone court in order that the sentencesmay run concurrently. As indictmentsor preliminary hearing rulings arehanded down in many jurisdictions,they are placed on a trial docket on arotation system. This means that a de-fendant charged with four counts offorgery and one charge of possessionof a forged instrument might beplaced on the docket of five differentcourts. Generally it is common prac-tice in such multicourt districts totransfer all of a person’s indictmentsto the first court listed. This gives the

presiding judge the discretion of al-lowing all of the defendant’s sentencesto run concurrently.

Sentence Bargaining. A third formof plea bargaining concerns a plea ofguilty from the defendant in exchangefor a prosecutor’s agreement to ask thejudge for a lighter sentence. Thestrength of the sentence negotiation isbased upon the realities of the limitedresources of the judicial system. At thestate level, at least, prosecutors are ableto promise the defendant a fairly spe-cific sentence with confidence that thejudge will accept the recommenda-tion. If the judge were not to do so, theprosecutor’s credibility would quicklybegin to wane, and many of the defen-dants who had been pleading guiltywould begin to plead not guilty andtake their chances in court. The resultwould be a gigantic increase in courtdockets that would overwhelm the judicial system and bring it to a stand-still. Prosecutors and judges under-stand this reality, and so do the defense attorneys.

Constitutional and Statutory Re-strictions on Plea Bargaining. Atboth the state and federal levels, therequirements of due process of lawmean that plea bargains must be madevoluntarily and with comprehension.This means that the defendant mustbe admonished by the court of theconsequences of a guilty plea (for ex-ample, the defendant waives all oppor-


tunities to change his or her mind at alater date), that the accused must besane, and that, as one state puts it, “Itmust plainly appear that the defen-dant is uninfluenced by any consider-ation of fear or by any persuasion, ordelusive hope of pardon promptinghim to confess his guilt.”

For the first two types of plea bar-gains — reduction of charges anddeletion of tangent charges — somestricter standards govern the federalcourts. One is that the judge may notactually participate in the process ofplea bargaining; at the state leveljudges may play an active role in thisprocess. Likewise, if a plea bargain hasbeen made between the U.S. attorneyand the defendant, the governmentmay not renege on the agreement. Ifthe federal government does so, thefederal district judge must withdrawthe guilty plea. Finally, the FederalRules of Criminal Procedure requirethat before a guilty plea may be ac-cepted, the prosecution must present a summary of the evidence against the accused, and the judge must agreethat there is strong evidence of the defendant’s guilt.

Arguments For and Against PleaBargaining. For the defendant theobvious advantage of the bargain isthat he or she is treated less harshlythan would be the case if the accusedwere convicted and sentenced undermaximum conditions. Also, the ab-sence of a trial often lessens publicity

on the case, and because of personalinterests or social pressures, the ac-cused may wish to avoid the lengthand publicity of a formal trial. Finally,some penologists (professionals in thefield of punishment and rehabilita-tion) argue that the first step towardrehabilitation is for a criminal toadmit guilt and to recognize his or her problem.

Plea bargaining also offers somedistinct advantages for the state andfor society as a whole. The most obvious is the certainty of conviction,because no matter how strong the evidence may appear, an acquittal isalways a possibility as long as a trial ispending. Also, the district attorney’soffice and judges are saved an enormous amount of time and effortby their not having to prepare and preside over cases in which thereis no real contention of innocence or that are not suited to the trialprocess. Finally, when police officersare not required to be in court testify-ing in criminal trials, they have moretime to devote to preventing and solving crimes.

Plea bargains do have a negativeside as well. The most frequent objec-tion to plea bargaining is that the de-fendant’s sentence may be based uponnonpenological grounds. With thelarge volume of cases making plea bar-gaining the rule, the sentence oftenbears no relation to the specific factsof the case, to the correctional needs ofthe criminal, or to society’s legitimate


interest in vigorous prosecution of thecase. A second defect is that if pleabargaining becomes the norm of aparticular system, then undue pres-sure may be placed upon even inno-cent persons to plead guilty. Studieshave shown that, in some jurisdic-tions, the less the chance for convic-tion, the harder the bargaining may bebecause the prosecutor wants to get atleast some form of minimal confes-sion out of the accused.

A third disadvantage of plea bar-gaining is the possibility of the abusecalled overcharging — the processwhereby the prosecutor brings chargesagainst the accused more severe thanthe evidence warrants, with the hopethat this will strengthen his or herhand in subsequent negotiations withthe defense attorney.

Another flaw with the plea bargain-ing system is its very low level of visi-bility. Bargains between prosecutorand defense attorney are not made inopen court presided over by a neutraljurist and for all to observe. Instead,they are more likely made over a cupof coffee in a basement courthousecafeteria where the conscience of thetwo lawyers is the primary guide.

Finally, the system has the potentialto circumvent key procedural andconstitutional rules of evidence. Be-cause the prosecutor need not presentany evidence or witnesses in court, abluff may result in a conviction eventhough the case might not be able topass the muster of the due process

clause. The defense may be at a disad-vantage because the rules of discovery(the laws that allow the defense toknow in detail the evidence the prose-cution will present) in some stateslimit the defense counsel’s case prepa-ration to the period after the plea bargain has occurred. Thus the pleabargain may deprive the accused ofbasic constitutional rights.

The Adversarial Process

The adversarial model is based on theassumption that every case or contro-versy has two sides to it: In criminalcases the government claims a defen-dant is guilty while the defendant con-tends innocence; in civil cases theplaintiff asserts that the person he orshe is suing has caused some injurywhile the respondent denies responsi-bility. In the courtroom each partyprovides his or her side of the story ashe or she sees it. The theory (or hope)underlying this model is that the truthwill emerge if each party is given un-bridled opportunity to present the fullpanoply of evidence, facts, and argu-ments before a neutral and attentivejudge (and jury).

The lawyers representing each sideare the major players in this court-room drama. The judge acts more as apassive, disinterested referee whoseprimary role is to keep both sideswithin the accepted rules of legal pro-cedure and courtroom decorum. Thejudge eventually determines whichside has won in accordance with the


rules of evidence, but only after bothsides have had a full opportunity topresent their case.

PROCEDURES DURING ACRIMINAL TRIAL

Assuming that no plea bargainhas been struck and the ac-cused maintains his or her in-

nocence, a formal trial will take place.This is a right guaranteed by the SixthAmendment to all Americans chargedwith federal crimes and a right guaran-teed by the various state constitutions— and by the Fourteenth Amendment— to all persons charged with state offenses. The accused is providedmany constitutional and statutoryrights during the trial. The followingare the primary rights that are bindingon both the federal and state courts.

Basic Rights Guaranteed Duringthe Trial Process

The Sixth Amendment says, “In allcriminal prosecutions, the accusedshall enjoy the right to a speedy andpublic trial.” The Founders empha-sized the word speedy so that an ac-cused would not languish in prison fora long time prior to the trial or havethe determination of his or her fateput off for an unduly long period oftime. But how soon is speedy? Al-though this word has been defined invarious ways by the Supreme Court,Congress gave new meaning to theterm when it passed the Speedy TrialAct of 1974. The act mandated time

limits, ultimately reaching 100 days,within which criminal charges musteither be brought to trial or dismissed.Most states have similar measures onthe statute books, although the precisetime period varies from one jurisdic-tion to another. By “public trial” theFounders meant to discourage the no-tion of secret proceedings whereby anaccused could be tried without publicknowledge and whisked off to someunknown detention camp.

The Sixth Amendment also guar-antees Americans the right to an im-partial jury. At the least this has meantthat the prospective jurors must not beprejudiced one way or the other beforethe trial begins. For example, a poten-tial juror may not be a friend or rela-tive of the prosecutor or the crime victim; nor may someone serve whobelieves that anyone of the defendant’srace or ethnic ancestry is “probably thecriminal type.” What the concept of animpartial jury of one’s peers has cometo mean in practice is that jurors are tobe selected randomly from the voterregistration lists — supplemented inan increasing number of jurisdictionsby lists based on automobile registra-tions, driver’s licenses, telephonebooks, welfare rolls, and so on. Al-though this system does not provide a perfect cross-section of the commu-nity, because not all persons are regis-tered to vote, the Supreme Court hassaid that this method is good enough.The High Court has also ruled that no class of persons (such as African


Americans or women) may be system-atically excluded from jury service.

Besides being guaranteed the rightto be tried in the same locale where thecrime was committed and to be in-formed of the charges, defendantshave the right to be confronted withthe witnesses against them. They havethe right to know who their accusersare and what they are charging so thata proper defense may be formulated.The accused is also guaranteed the opportunity “to have the Assistance ofCounsel for his defense.” Prior to the1960s this meant that one had thisright (at the state level) only for serious crimes and only if one couldpay for an attorney. However, becauseof a series of Supreme Court deci-sions, the law of the land guaranteesone an attorney if tried for any crimethat may result in a prison term, andthe government must pay for the legaldefense for an indigent defendant.This is the rule at both the nationaland state levels.

The Fifth Amendment to the U.S.Constitution declares that no personshall “be subject for the same offenceto be twice put in jeopardy of life andlimb.” This is the double jeopardyclause and means that no one may betried twice for the same crime by anystate government or by the federalgovernment. It does not mean, however,that a person may not be tried twicefor the same action if that action hasviolated both national and state laws.For example, someone who robs a fed-

erally chartered bank in New Jerseyruns afoul of both federal and statelaw. That person could be legally triedand acquitted for that offense in a NewJersey court and subsequently be triedfor that same action in federal court.

Another important right guaran-teed to the accused at both the stateand federal levels is not to “be com-pelled in any criminal case to be a wit-ness against himself.” This has been interpreted to mean that the fact thatsomeone elects not to testify on his orher own behalf in court may not beused against the person by judge andjury. This guarantee serves to reinforcethe principle that under the U.S. judi-cial system the burden of proof is onthe state; the accused is presumed in-nocent until the government provesotherwise beyond a reasonable doubt.

Finally, the Supreme Court has in-terpreted the guarantee of due processof law to mean that evidence procuredin an illegal search and seizure may notbe used against the accused at trial.The source of this so-called exclusion-ary rule is the Fourth Amendment tothe U.S. Constitution; the SupremeCourt has made its strictures bindingon the states as well. The Court’s pur-pose was to eliminate any incentive thepolice might have to illegally obtainevidence against the accused.

Selection of Jurors

If the accused elects not to have abench trial — that is, not to be triedand sentenced by a judge alone — his


or her fate will be determined by ajury. At the federal level 12 personsmust render a unanimous verdict. Atthe state level such criteria apply onlyto the most serious offenses. In manystates a jury may consist of fewer than12 persons and render verdicts byother than unanimous decisions.

A group of potential jurors is sum-moned to appear in court. They arequestioned in open court about theirgeneral qualifications for jury servicein a process known as “voir dire”(from Old French, meaning “to say thetruth”). The prosecutor and the de-fense attorney ask general and specificquestions of the potential jurors. Arethey citizens of the state? Can theycomprehend the English language?Have they or anyone in their familyever been tried for a criminal offense?Have they read about or formed anyopinions about the case at hand?

In conducting the voir dire, the stateand the defense have two goals. Thefirst is to eliminate all members of thepanel who have an obvious reason whythey might not render an impartial de-cision in the case. Common examplesmight be someone who is excluded bylaw from serving on a jury, a juror whois a friend or relative of a participant inthe trial, and someone who openly ad-mits a strong bias in the case at hand.Objections to jurors in this category areknown as challenges for cause, and thenumber of such challenges is unlimit-ed. It is the judge who determineswhether these challenges are valid.

The second goal that the opposingattorneys have in questioning pros-pective jurors is to eliminate thosewho they believe would be unfavor-able to their side even though no overtreason is apparent for the potentialbias. Each side is allowed a number ofperemptory challenges — requests tothe court to exclude a prospectivejuror with no reason given. Most statescustomarily give the defense moreperemptory challenges than the prose-cution. At the federal level one to threechallenges per jury are usually permit-ted each side, depending on the natureof the offense; as many as 20 are al-lowed in capital cases. The use ofperemptory challenges is more of anart than a science and is usually basedon the hunch of the attorneys.

In the past attorneys were able toexclude potential jurors via theperemptory challenge for virtually anyreason whatsoever. However, in recentyears the Supreme Court has inter-preted the Fourteenth Amendment’sequal protection clause to restrict thisdiscretion by prohibiting prosecutorsfrom using their challenges to excludeAfrican Americans or women fromserving on a criminal jury.

The process of questioning andchallenging prospective jurors contin-ues until all those duly challenged forcause are eliminated, the peremptorychallenges are either used up orwaived, and a jury of 12 (six in somestates) has been created. In some statesalternate jurors are also chosen. They


attend the trial but participate in de-liberations only if one of the originaljurors is unable to continue in the pro-ceedings. Once the panel has been se-lected, they are sworn in by the judgeor the clerk of the court.

Opening Statements

After the formal trial begins, both theprosecution and the defense make anopening statement (although in nostate is the defense compelled to doso). Long and detailed statements aremore likely to be made in jury trialsthan in bench trials. The purpose ofopening statements is to providemembers of the jury — who lack familiarity with the law and with procedures of criminal investigation— with an outline of the major objec-tives of each side’s case, the evidencethat is to be presented, the witnessesthat are to be called, and what eachside seeks to prove. If the openingstatements are well presented, the ju-rors will find it easier to grasp themeaning and significance of the evidence and testimony. The usualprocedure is for the state to make itsopening statement first and for the de-fense to follow with a statement abouthow it will refute that case.

The Prosecution’s Case

After the opening statements the pros-ecutor presents the evidence amassedby the state against the accused. Evi-dence is generally of two types —physical evidence and the testimony of

witnesses. The physical evidence mayinclude things such as bullets, ballisticstests, fingerprints, handwriting sam-ples, blood and urine tests, and otherdocuments or items that serve as phys-ical aids. The defense may object to theadmission of any of these tangibleitems and will, if successful, have theitem excluded from consideration. Ifdefense challenges are unsuccessful,the physical evidence is labeled by oneof the courtroom personnel and be-comes part of the official record.

Most evidence at criminal trialstakes the form of testimony of wit-nesses. The format is a question-and-answer procedure whose purpose is toelicit very specific information in anorderly fashion. The goal is to presentonly evidence that is relevant to theimmediate case at hand and not togive confusing or irrelevant informa-tion or illegal evidence that might result in a mistrial (for example,evidence that the accused had a priorconviction for an identical offense).

After each witness the defense at-torney has the right to cross-examine.The goal of the defense will be to im-peach the testimony of the prosecu-tion witness — that is, to discredit it.The attorney may attempt to confuse,fluster, or anger the witness, causinghim or her to lose self-control andbegin providing confusing or conflict-ing testimony. A prosecution witness’testimony may also be impeached ifdefense witnesses who contradict theversion of events suggested by the state


are subsequently presented. Uponcompletion of the cross-examination,the prosecutor may conduct a redirectexamination, which serves to clarify orcorrect some telling point made dur-ing the cross-examination. After thestate has presented all its evidence andwitnesses, it rests its case.

The Case for the Defense

The presentation of the case for thedefense is similar in style and formatto that of the prosecution. Tangible ev-idence is less common in the defense’scase, and most of the evidence will bethat of witnesses who are prepared torebut or contradict the prosecution’sarguments. The witnesses are ques-tioned by the defense attorney in thesame style as those in the prosecutioncase. Each defense witness may in turnbe cross-examined by the district at-torney, and then a redirect examina-tion is in order.

The difference between the case forthe prosecution and the case for thedefense lies in their obligation beforethe law. The defense is not required bylaw to present any new or additionalevidence or any witnesses at all. Thedefense may consist merely of chal-lenging the credibility or the legality ofthe state’s evidence and witnesses. Thedefense is not obligated to prove theinnocence of the accused; it need showonly that the state’s case is not beyonda reasonable doubt. The defendantneed not even take the stand. (Howev-er, if he or she elects to do so, the ac-

cused faces the same risks of cross-examination as any other witness.)

After the defense has rested its case,the prosecution has the right topresent rebuttal evidence. In turn, thedefense may offer a rejoinder knownas a surrebuttal. After that, each sidedelivers closing arguments. Often-times this is one of the more dramaticepisodes in the trial because each sideseeks to sum up its case, condense itsstrongest arguments, and make onelast appeal to the jury. New evidencemay not be presented at this stage, andthe arguments of both sides tend toring with emotion and appeals to val-ues that transcend the immediate case.The prosecutor may talk about thecrime problem in general, about theneed for law and order, and about theneed not to let compassion for the ac-cused get in the way of empathy forthe crime victim. The defense attor-ney, on the other hand, may remindthe jurors “how we have all made mis-takes in this life” or argue that in a free,democratic society any doubt theyhave should be resolved in favor of theaccused. The prosecution probablyavoids emotionalism more than thedefense attorney, however, becausemany jury verdicts have been reversedon appeal after the district attorney in-jected prejudicial statements into theclosing statements.

Role of the Judge During the Trial

The judge’s role in the trial, althoughvery important, is a relatively passive



Prosecutors and police display a seizure of more than $45 million worth of heroin andcocaine. Illegal drug traffic belongs under either one of two categories of crime:organized crime and consensual crime, also known as victimless crime, because boththe perpetrator and the client desire the forbidden activity.

Witnesses and physical evidence form theprincipal elements of the prosecution’s case inmost trials. Left: Tampa Police Departmentinvestigators take fingerprint samples in anattempt to trace an accused terrorist. Above:An expert witness points to a chart of theparking lot where an alleged crime took place.

one. He or she does not present anyevidence or take an active part in theexamination of the witnesses. Thejudge is called upon to rule on themany motions of the prosecutor andof the defense attorney regarding thetypes of evidence that may be present-ed and the kinds of questions thatmay be asked of the witnesses. Insome jurisdictions the judge is per-mitted to ask substantive questions ofthe witnesses and also to comment tothe jury about the credibility of theevidence that is presented; in otherstates the judge is constrained fromsuch activity. Still, the American legaltradition has room for a variety ofjudicial styles that depend on the per-sonality, training, and wisdom of indi-vidual judges.

First and foremost, the judge is ex-pected to play the part of a disinterest-ed party whose primary job is to see toit that both sides are allowed to present their cases as fully as possiblewithin the confines of the law. Ifjudges depart from the appearance orpractice of being fair and neutral par-ties, they run counter to fundamentaltenets of American jurisprudence andrisk having their decisions overturnedby an appellate court.

Although judges do for the mostpart play such a role, the backgroundsand values of the jurists also affecttheir decisions in the close calls —when they are called upon to rule on a motion for which the arguments

are about equally strong or on a point of law that is open to a variety of interpretations.

Role of the Jury During the Trial

The jurors’ role during the trial is pas-sive. Their job is to listen attentively tothe cases presented by the opposingattorneys and then come to a decisionbased solely on the evidence that is setforth. They are ordinarily not permit-ted to ask questions either of the wit-nesses or of the judge, nor are they allowed to take notes of the proceed-ings. This is not because of constitu-tional or statutory prohibitions butprimarily because it has been the tra-ditional practice of courts in America.

In recent years, however, manyjudges have allowed jurors to becomemore involved in the judicial arena.Chicago’s Chief U.S. District CourtJudge John F. Grady has for over adecade permitted jurors in his court-room to take notes. At least four U.S.appellate courts have given tacit ap-proval to the practice of juror partici-pation in questioning witnesses, aslong as jurors are not permitted toblurt out queries in the midst of trialand attorneys are given a chance toobject to specific questions beforethey are posed to witnesses. In somestates a few trial judges have allowedjurors to take fairly active roles in thetrial. Still, at both state and federal lev-els the role of the jury remains basi-cally passive.


Instructions to the Jury

Although the jury’s job is to weigh andassess the facts of the case, the judgemust instruct the jurors about themeaning of the law and how the law isto be applied. Because many cases areoverturned on appeal as a result offaulty jury instructions, judges tend totake great care that the wording betechnically and legally correct.

All jury instructions must havesome basic elements. One is to definefor the jurors the crime with whichthe accused is charged. This may in-volve giving the jurors a variety of op-tions about what kind of verdict tobring. For example, if one person hastaken the life of another, the state maybe trying the accused for first-degreemurder. Nevertheless, the judge maybe obliged to acquaint the jury withthe legal definition of second-degreemurder or manslaughter if it shoulddetermine that the defendant was thekiller but did not act with maliceaforethought.

The judge must also remind thejury that the burden of proof is on thestate and that the accused is presumedto be innocent. If, after considering all the evidence, the jury still has a reasonable doubt as to the guilt ofthe accused, it must bring in a notguilty verdict.

Finally, the judge usually acquaintsthe jurors with a variety of proceduralmatters: how to contact the judge ifthey have questions, the order inwhich they must consider the charges

if there are more than one, who mustsign the official documents that ex-press the verdict of the jury. After the instructions are read to the jury(and the attorneys for each side havebeen given an opportunity to offerobjections), the jurors retreat into adeliberation room to decide the fate of the accused.

The Jury’s Decision

The jury deliberates in complete privacy; no outsiders observe or par-ticipate in its debate. During their deliberation jurors may request theclarification of legal questions fromthe judge, and they may look at itemsof evidence or selected segments of thecase transcript, but they may consultnothing else — no law dictionaries, nolegal writings, no opinions from ex-perts. When it has reached a decisionby a vote of its members, the jury re-turns to the courtroom to announceits verdict. If it has not reached a deci-sion by nightfall, the jurors are senthome with firm instructions neitherto discuss the case with others norread about the case in the newspapers.In very important or notorious cases,the jury may be sequestered by thejudge, which means that its memberswill spend the night in a local hotelaway from the public eye.

If the jury becomes deadlockedand cannot reach a verdict, it may re-port that fact to the judge. In such anevent the judge may insist that thejury continue its effort to reach a ver-



Defendants in thephotos to the left andabove are shownawaiting the jury’sverdict and listening to the judge’sannouncement of theverdict. Once the verdictis reached, the judgehas several weeks todetermine the penalty,based on the principlethat the punishmentshould fit the crime.Bottom left, a prisoneris led back to his cell.

dict. Or, if the judge is convinced thatthe jury is in fact hopelessly dead-locked, he or she may dismiss the juryand call for a new trial.

Research studies indicate that mostjuries dealing with criminal casesmake their decisions fairly quickly. Al-most all juries take a vote soon afterthey retire to their chambers in orderto see how divided, or united, they are.In 30 percent of the cases it takes onlyone vote to reach a unanimous deci-sion. In 90 percent of the remainder,the majority on the first ballot eventu-ally wins out. Hung juries — those inwhich no verdict can be reached —tend to occur only when a large mi-nority existed on the first ballot.

Scholars have also learned that ju-ries often reach the same verdict thatthe judge would have, had he or shebeen solely responsible for the deci-sion. One large jury study asked judgesto state how they would have decidedjury cases over which they presided.The judge and jury agreed in 81 per-cent of the criminal cases (about thesame as in civil cases). In 19 percent ofthe criminal cases the judge and jurydisagreed, with the judge showing amarked tendency to convict where thejuries had acquitted.

When the members of the jury dofinally reach a decision, they return tothe courtroom and their verdict is an-nounced in open court, often by thejury foreman. At this time either theprosecutor or the defense attorneyoften asks that the jury be polled —

that is, that each juror be asked indi-vidually if the general verdict actuallyreflects his or her own opinion. Thepurpose is to determine whether eachjuror supports the overall verdict orwhether he or she is just caving in togroup pressure. If the polling proce-dure reveals that the jury is indeed notof one mind, it may be sent back to thejury room to continue deliberations;in some jurisdictions a mistrial may be declared. If a mistrial is declared,the case may be tried again before another jury. There is no double jeop-ardy because the original jury did notagree on a verdict. If the jury’s verdictis not guilty, the defendant is dis-charged on the spot and is free to leavethe courtroom.

PROCEDURES AFTER ACRIMINAL TRIAL

At the close of the criminal trial,generally two stages remain for the defendant if he or she

has been found guilty: sentencing andan appeal.

Sentencing

Sentencing is the court’s formal pro-nouncement of judgment upon thedefendant at which time the punish-ment or penalty is set forth.

At the federal level and in moststates, sentences are imposed by thejudge only. However, in several statesthe defendant may elect to be sen-tenced by either a judge or a jury, andin capital cases states generally require


that no death sentence shall be im-posed unless it is the determination of12 unanimous jurors. In some statesafter a jury finds someone guilty, thejury deliberates a second time to de-termine the sentence. In several statesa new jury is empaneled expressly forsentencing. At this time the rules ofevidence are more relaxed, and thejury may be permitted to hear evi-dence that was excluded during the ac-tual trial (for example, the previouscriminal record of the accused).

After the judge pronounces thesentence, several weeks customarilyelapse between the time the defendantis found guilty and the time when thepenalty is imposed. This interval per-mits the judge to hear and considerany posttrial motions that the defenseattorney might make (such as a mo-tion for a new trial) and to allow aprobation officer to conduct a presen-tence investigation. The probation officer is a professional with a back-ground in criminology, psychology,or social work, who makes a recom-mendation to the judge about thelength of the sentence to be imposed.The probation officer customarily examines factors such as the back-ground of the criminal, the serious-ness of the crime committed, and thelikelihood that the criminal will con-tinue to engage in illegal activity.Judges are not required to follow theprobation officer’s recommendation,but it is still a major factor in thejudge’s calculus as to what the sen-

tence shall be. Judges are presentedwith a variety of alternatives and arange of sentences when it comes topunishment for the criminal. Many ofthese alternatives involve the conceptof rehabilitation and call for the assis-tance of professionals in the fields ofcriminology and social science.

The lightest punishment that ajudge can hand down is that of proba-tion. This is often the penalty if thecrime is regarded as minor or if thejudge believes that the guilty person isnot likely to engage in additionalcriminal activity. If a probated sen-tence is handed down, the criminalmay not spend any time in prison aslong as the conditions of the proba-tion are maintained. Such conditionsmight include staying away from con-victed criminals, not committingother crimes, or with increasing fre-quency, performing some type ofcommunity service. If a criminalserves out his or her probation with-out incident, the criminal record isusually wiped clean and in the eyes ofthe law it is as if no crime had everbeen committed.

If the judge is not disposed towardprobation and feels that jail time is inorder, he or she must impose a prisonsentence that is within a range pre-scribed by law. The reason for a rangeof years instead of an automatically as-signed number is that the law recog-nizes that not all crimes and criminalsare alike and that in principle the pun-ishment should fit the crime.


In an effort to eliminate gross disparities in sentencing, the federalgovernment and many states have at-tempted to develop sets of preciseguidelines to create greater consisten-cy among judges. At the national levelthis effort was manifested by the en-actment of the Sentencing Reform Actof 1987, which established guidelinesto structure the sentencing process.

Congress provided that judges maydepart from the guidelines only if theyfind an aggravating or mitigating cir-cumstance that the commission didnot adequately consider. Although thecongressional guidelines do not speci-fy the kinds of factors that could con-stitute grounds for departure from thesentencing guidelines, Congress didstate that such grounds could not in-clude race, gender, national origin,creed, religion, socioeconomic status,drug dependence, or alcohol abuse.

The states, too, have a variety ofprograms for avoiding vast disparitiesin judges’ sentences. By 1995, 22 stateshad created commissions to establishsentencing guidelines for their judges,and as of late 1997 such guidelineswere in effect in 17 states. Likewise, al-most all of the states have now enact-ed mandatory sentencing laws that require an automatic, specific sentenceupon conviction of certain crimes —particularly violent crimes, crimes inwhich a gun was used, or crimes per-petrated by habitual offenders.

Despite the enormous impact thatjudges have on the sentence, they do

not necessarily have the final say onthe matter. Whenever a prison term isset by the judge, it is still subject to theparole laws of the federal governmentand of the states. Thus parole boards(and sometimes the president andgovernors who may grant pardons orcommute sentences) have the final sayabout how long an inmate actuallystays in prison.

An Appeal

At both the state and federal levelseveryone has the right to at least oneappeal upon conviction of a felony,but in reality few criminals avail them-selves of this privilege. An appeal isbased on the contention that an errorof law was made during the trialprocess. Such an error must be re-versible as opposed to harmless. Anerror is considered harmless if its occurrence had no effect on the out-come of the trial. A reversible error,however, is a serious one that mighthave affected the verdict of the judgeor jury. For example, a successful appeal might be based on the argu-ment that evidence was improperlyadmitted at trial, that the judge’s instructions to the jury were flawed,or that a guilty plea was not voluntar-ily made. However, appeals must bebased on questions of procedure andlegal interpretations, not on factualdeterminations of the defendant’sguilt or innocence as such. Further-more, under most circumstances onecannot appeal the length of one’s sen-


tence in the United States (as long as itwas in the range prescribed by law).

Criminal defendants do have somedegree of success on appeal about 20percent of the time, but this does notmean that the defendant goes free.The usual practice is for the appellatecourt to remand the case (send it backdown) to the lower court for a newtrial. At that point the prosecutionmust determine whether the proce-dural errors in the original trial can beovercome in a second trial andwhether it is worth the time and effortto do so. A second trial is not consid-ered to be double jeopardy, since thedefendant has chosen to appeal theoriginal conviction.

The media and others concernedwith the law often call attention to ap-pellate courts that turn loose seeming-ly guilty criminals and to convictions

that are reversed on technicalities.Surely this does happen, and onemight argue that this is inevitable in a democratic country whose legal system is based on fair play and thepresumption of the innocence of the accused. However, about 90 percent of all defendants plead guilty, and this plea virtually excludes the possi-bility of an appeal. Of the remaininggroup, two-thirds are found guilty attrial, and only a small percentage ofthese appeal. Of those who do appeal,only about 20 percent have any measurable degree of success. Ofthose whose convictions are reversed,many are found guilty at a subsequenttrial. Thus the number of personsconvicted of crimes who are subse-quently freed because of reversiblecourt errors is a small fraction of1 percent. �


Multnomah (Oregon) CountyCircuit Judge Roosevelt Robinsonpolls the jury about the verdict in acivil law case involving tort law,specifically, a suit brought againsta corporation for defectiveproducts.

C H A P T E R

6THE

CIVILCOURT

PROCESS

Civil actions are separate and distinctfrom criminal proceedings. This chap-ter focuses on civil courts: how civillaw differs from criminal law, the mostimportant categories of civil law, alter-natives to trials, and a step-by-steplook at the civil trial process.

THE NATURE ANDSUBSTANCE OF CIVIL LAW

The American legal system ob-serves several important dis-tinctions between criminal and

civil law. Criminal law is concernedwith conduct that is offensive to socie-ty as a whole. Civil law pertains prima-rily to the duties of private citizens toeach other. In civil cases the disputesare usually between private individu-als, although the government maysometimes be a party in a civil suit.Criminal cases always involve govern-ment prosecution of an individual foran alleged offense against society.

In a civil case the court attempts tosettle a particular dispute between theparties by determining their legalrights. The court then decides upon anappropriate remedy, such as awardingmonetary damages to the injuredparty or issuing an order that directsone party to perform or refrain from aspecific act. In a criminal case thecourt decides whether the defendant isinnocent or guilty. A guilty defendantmay be punished by a fine, imprison-ment, or both.

In some instances the same act maygive rise to both a criminal proceeding

and a civil suit. Suppose that “Joe” and“Pete,” two political scientists attend-ing a convention in Atlanta, are shar-ing a taxi from the airport to theirdowntown hotel. During the ride theybecome involved in a heated politicaldiscussion. By the time the taxi stopsat their hotel, the discussion has become so heated that they get into aphysical confrontation. If Pete strikesJoe in the ribs with his briefcase as he gets out of the taxi, Pete may be charged with criminal assault. Inaddition, Joe might file a civil suitagainst Pete in an effort to obtain amonetary award sufficient to cover hismedical expenses.

Civil cases far outnumber criminalcases in both the federal and statecourts, although they generally do notattract the same media attention ascriminal trials. Still, they often raiseimportant policy questions and covera broad range of disagreements in so-ciety. Judicial scholar Herbert Jacobsummarizes the breadth of the civillaw field in Justice in America: “Everybroken agreement, every sale thatleaves a dissatisfied customer, everyuncollected debt, every dispute with agovernment agency, every libel andslander, every accidental injury, everymarital breakup, and every death maygive rise to a civil proceeding.”

Thus, virtually any dispute betweentwo or more persons may provide thebasis for a civil suit. The number ofsuits is huge, but most of them fallinto one of five basic categories.


THE MAIN CATEGORIES OFCIVIL LAW

The five main categories of civillaw are contract law, tort law,property law, the law of succes-

sion, and family law.

Contract Law

Contract law is primarily concernedwith voluntary agreements betweentwo or more people. Some commonexamples include agreements to per-form a certain type of work, to buy orsell goods, and to construct or repairhomes or businesses. Basic to theseagreements are a promise by one partyand a counter promise by the otherparty, usually a promise by one partyto pay money for the other party’s

services or goods. For example, as-sume that “Mr. Burns” and “Ms. Cold-er” enter into an agreement wherebyColder agrees to pay Burns $125 if hewill cut and deliver a cord of oak fire-wood to her home on December 10. IfBurns does not deliver the wood onthat date, he has breached the contractand Colder may sue him for damages.

Although many contracts are rela-tively simple and straightforward,some complex fields also build oncontract law or contract ideas. Onesuch field is commercial law, which fo-cuses primarily on sales involvingcredit or the installment plan. Com-mercial law also deals with checks,promissory notes, and other nego-tiable financial instruments.

CHAPTER 6: THE CIVIL COURT PROCESS 121

Bankruptcy and creditors’ rights are important areas in contract law. Above, a jet belonging toAmerican Airlines, which in 2003 narrowly averted a bankruptcy filing.

Another closely related field isbankruptcy and creditors’ rights.Bankrupt individuals or businessesmay go through a process that essen-tially wipes the slate clean and allowsthe person filing for bankruptcy tobegin again. The bankruptcy processis also designed to ensure fairness tocreditors. Bankruptcy law has been amajor concern of legislators for several years, and a large number ofspecial bankruptcy judges are now at-tached to the U.S. district courts.

The final area is the insurance con-tract, which is important because ofits applicability to so many people.The insurance industry is regulated bygovernment agencies and subject to itsown distinct rules.

Tort Law

Tort law may generally be described as the law of civil wrongs. It concernsconduct that causes injury and fails to measure up to some standard set by society.

Actions for personal injury or bodily injury claims are at the heart of tort law, and automobile accidentshave traditionally been responsible for a large number of these claims.One of the most rapidly growing subfields of tort law is product lia-bility. This category has become an increasingly effective way to hold corporations accountable for injuriescaused by defective foods, toys, appli-ances, automobiles, drugs, or a host ofother products.

Perhaps one reason for the growthin product liability cases is a change inthe standard of proof. Traditionally,negligence (generally defined as care-lessness or the failure to use ordinarycare, under the particular circum-stances revealed in the lawsuit) mustbe proven before one person is able tocollect damages for injuries caused bysomeone else. However, some have ar-gued that for many years reliance onthe negligence concept has been de-clining, especially in product liabilitycases. In its place, the courts often usea strict liability standard, which meansthat a victim can recover even if therewas no negligence and even if themanufacturer was careful.

Another reason commonly sug-gested for the growth in the numberof product liability cases is the size ofjury awards when the decision favorsthe plaintiff. Jury awards for damagesmay be of two types: compensatoryand punitive. Compensatory damagesare intended to cover the plaintiff ’sactual loss, such as repair costs, doctorbills, and hospital expenses. Punitive(or exemplary) damages are designed,instead, to punish the defendant orserve as a warning against such behav-ior in the future.

As a result of concern over largejury awards and the increasing num-ber of so-called frivolous cases,government officials, corporate execu-tives, interest groups, and members ofthe legal community have called forlegislation aimed at tort reform.


Throughout the 1990s a number ofstates enacted a variety of tort reformmeasures. The American Tort ReformAssociation, which serves as an advo-cate of tort reform, reports that stateshave limited awards for noneconomicdamages, modified their laws govern-ing punitive damages, or enactedstatutes penalizing plaintiffs who filefrivolous lawsuits.

Another rapidly growing subfieldof tort law is medical malpractice. Thenumber of medical malpractice claimshas increased even as great advanceshave been made in medicine. Two on-going problems in contemporarymedicine are the increased risk im-posed by new treatments and the im-personal character of specialists andhospitals. Patients today have high ex-pectations, and when a doctor failsthem, their anger may lead to a mal-practice suit.

Courts generally use the tradition-al negligence standard rather than thestrict liability doctrine in resolvingmedical malpractice suits. This meansthat the law does not attempt to makedoctors guarantee successful treat-ment, but instead tries to make thedoctor liable if the patient can provethat the physician failed to perform ina manner consistent with acceptedmethods of medical practice. The no-tion of acceptable practice varies fromstate to state, and such questions mustbe resolved by the courts on a case-by-case basis. However, customarily apresumption is made that the conduct

of professionals, including doctors, isreasonable in nature. This means thatto prevail against the doctor in court,the injured patient needs at least thetestimony of one or more expert wit-nesses stating that the doctor’s con-duct was not reasonable.

Property Law

A distinction has traditionally beenmade between real property and per-sonal property. The former normallyrefers to real estate — land, houses,and buildings — and has also includ-ed growing crops. Almost everythingelse is considered personal property,including such things as money,jewelry, automobiles, furniture, andbank deposits.

According to Lawrence M. Fried-man in American Law, “As far as thelaw is concerned, the word propertymeans primarily real property; per-sonal property is of minor impor-tance.” No single special field of law isdevoted to personal property. Instead,personal property is generally consid-ered under the rubric of contract law,commercial law, and bankruptcy law.

Property rights have always beenimportant in the United States, buttoday property rights are more com-plex than mere ownership of some-thing. The notion of property nowincludes, among several other things,the right to use that property.

One important branch of propertylaw today deals with land use controls.The most common type of land use



Product liability is one of the most rapidly growing subfields of tort law, with manymanufacturers increasingly being held liable even when they were careful. Above, productliability attorney Ralph G. Patino displays a tire that his client claimed separated from its casingand caused a serious accident — one of many claims that led the Firestone Company to recallmillions of its tires in 2000.

Property law — the right to use and the right to acquire property — was the principal questionbehind the Federal Communications Commission’s 2003 review of whether to easeregulations on media ownership for corporations.

restriction is zoning, a practice where-by local laws divide a municipalityinto districts designated for differentuses. For instance, one neighborhoodmay be designated as residential, an-other as commercial, and yet anotheras industrial.

Early zoning laws were challengedon the ground that restrictions onland use amounted to a taking of theland by the city in violation of theConstitution, which says, “Nor shallprivate property be taken for publicuse without just compensation.” In asense, zoning laws do take from theowners of land the right to use theirproperty in any way they see fit.Nonetheless, courts have generallyruled that zoning laws are not regard-ed as a taking in violation of the Con-stitution. Today, zoning is a fact of lifein cities and towns of all sizesthroughout the United States. Cityplanners and other city officials recog-nize zoning ordinances as necessary tothe planned and orderly growth ofurban areas.

The Law of Succession

The law of succession considers howproperty is passed along from onegeneration to another. The Americanlegal system recognizes a person’s rightto dispose of his or her property as heor she wishes. One common way to dothis is to execute a will. If a personleaves behind a valid will, the courtswill enforce it. However, if someoneleaves no will (or has improperly

drawn it up), then the person has diedintestate, and the state must dispose ofthe property.

The state’s disposition of the prop-erty is carried out according to thefixed scheme set forth in the statestatutes. By law, intestate propertypasses to the deceased person’s heirs— that is, to his or her nearest relatives. Occasionally a person whodies intestate has no living relatives.In that situation the property escheats,or passes, to the state in which the deceased resided. State statutes oftenprohibit the more remote relatives,such as second cousins and great un-cles and aunts, from inheriting.

Increasingly, Americans are prepar-ing wills to ensure that their propertyis disposed of according to their wishes, not according to a scheme determined by the state. A will is a formal document. It must be verycarefully drafted, and in most states it must be witnessed by at least two persons.

Family Law

Family law concerns such matters asmarriage, divorce, child custody, andchildren’s rights. It clearly touches thelives of a great number of Americanseach year.

The conditions necessary for enter-ing into a marriage are spelled out bystate law. These laws traditionallycover the minimum age of the parties,required blood tests or physical examinations, mental conditions of


the parties, license and fee require-ments, and waiting periods.

The termination of a marriage was once very rare. In the early 19thcentury some states granted divorcesonly through special acts of the legis-lature; one state, South Carolina,simply did not allow divorce. In theother states divorces were granted only when one party proved somegrounds for divorce. In other words,divorces were available only to inno-cent parties whose spouses were guiltyof such things as adultery, desertion,or cruelty.

The 20th century saw an enormouschange in divorce laws. The movementwas away from restrictive laws and to-

ward no-fault divorce. This trend wasthe result of two factors. First, formany years there was an increasing de-mand for divorces. Second, the stigmaonce attached to divorced persons allbut disappeared.

The no-fault divorce system meansthat the parties simply explain that ir-reconcilable differences exist betweenthem and that the marriage is nolonger viable. The no-fault divorcesystem has put an end to the adversar-ial nature of divorce proceedings.

Not so easily solved are some ofthe other problems that may resultfrom an ended marriage. Child custody battles, disputes over childsupport payments, and disagreements


Two children await the results of a custody decision by the Manhattan Family Court. Custodydisputes have become more common as a result of no-fault divorce, and courts increasinglyhave to decide which parent will get custody.

over visitation rights find their wayinto court on a regular basis. Custodydisputes are probably more commonand more contentious today than before no-fault divorce. The child’sneeds come first, and courts no longerautomatically assume that this meansgranting custody to the mother.Fathers are increasingly being grantedcustody, and it is also now commonfor courts to grant joint custody to thedivorced parents.

THE COURTS AND OTHERINSTITUTIONS CONCERNEDWITH CIVIL LAW

Disagreements are common inthe daily lives of Americans.Usually these disagreements

can be settled outside the legal system.Sometimes they are so serious, howev-er, that one of the parties sees no al-ternative but to file a lawsuit.

Deciding Whether to Go to Court

Every year thousands of potential civilcases are resolved without a trial be-cause the would-be litigants settletheir problems in another way or be-cause the prospective plaintiff decidesnot to file suit. When faced with a de-cision to call upon the courts, to try tosettle differences, or to simply forgetthe problem, many people resort to asimple cost-benefit analysis. That is,they weigh the costs associated with atrial against the benefits they are likely to gain if they win.

Alternative Dispute Resolution

In practice few persons make use ofthe entire judicial process. Instead,most cases are settled without resortto a full-fledged trial. In civil cases,a trial may be both slow and expen-sive. In many areas the backlogs are so enormous that it takes three to five years for a case to come to trial.In addition, civil trials may be exceed-ingly complex.

Often, the expense of a trial isenough to discourage potential plain-tiffs. The possibility of losing alwaysexists. The possibility of a long waitalso always exists, even if a plaintiffwins, before the judgment is satisfied— that is, if it is ever completely satis-fied. In other words, a trial may simplycreate a new set of problems for theparties concerned. For all these rea-sons, more and more discussion hasbeen heard about alternative methodsof resolving disputes.

From major corporations to attor-neys to individuals, support for alter-native dispute resolution (ADR) hasbeen growing. Corporate America isinterested in avoiding prolonged andcostly court battles as the only way tosettle complex business disputes. Inaddition, attorneys are more frequent-ly considering alternatives such as me-diation and arbitration where there isa need for faster resolution of cases orconfidential treatment of certain mat-ters. And individual citizens are in-creasingly turning to local mediation


services for help in resolving familydisputes, neighborhood quarrels, andconsumer complaints.

Alternative dispute resolutionprocesses are carried out under a variety of models. These models arecommonly classified as “private,court-referred, and court-annexed,but the latter two together often arecalled court-connected,” writes SusanL. Keita in the Handbook of Court Ad-ministration and Management. Inother words, some private ADRprocesses function independently ofthe courts. A court-referred ADRprocess is one that operates outsidethe court itself but still has some rela-tionship to the court. The court administers the ADR process in acourt-annexed program. Dependingon the model and the issue, “ADRprocesses may be voluntary or manda-tory; they may be binding or allow ap-peals from decisions rendered; andthey may be consensual, adjudicatory,or some hybrid of the two,” accordingto Keita. Some commonly used ADRprocesses are mediation, arbitration,neutral fact-finding, mini-trial, sum-mary jury trial, and private judging.

Mediation. Mediation is a private,confidential process in which an impartial person helps the disputingparties identify and clarify issues of con-cern and reach their own agreement.The mediator does not act as a judge.Instead, the parties themselves maintaincontrol of the final settlement.

Mediation is especially appropriatefor situations in which the disputantshave an ongoing relationship, such asdisputes between family members,neighbors, employers and employees,and landlords and tenants. Mediationis also useful in divorce cases becauseit changes the procedure from one ofconfrontation to one of cooperation.Child custody and visitation rights arefrequently resolved through media-tion as well. And in many areas, per-sonal injury and property claims involving insurance companies aresettled through mediation.

Arbitration. The arbitration processis similar to going to court. After lis-tening to both parties in a dispute, animpartial person called an arbitratordecides how the controversy should beresolved. There is no judge or jury. In-stead, the arbitrator selected by bothparties makes the final decision. Arbi-trators are drawn from all differenttypes of professional backgrounds andfrequently volunteer their time to helppeople resolve their problems.

Disputants choose arbitration be-cause it saves time and money and ismore informal than a court hearing.Most arbitrations are completed infour months or less, as compared with six months to several years forcourt decisions.

Arbitration is used privately to resolve a variety of consumer com-plaints. Examples include disputesover poor automobile repairs, prob-


lems with the return of faulty merchandise, and overcharging forservices. Arbitration is also being usedin court-referred and court-annexedprocesses to resolve several types ofdisputes, including business, commer-cial, and employment disputes.

Neutral Fact-Finding. Neutral fact-finding is an informal process wherebyan agreed-upon neutral party is askedto investigate a dispute. Usually, thedispute involves complex or technicalissues. The neutral third party ana-lyzes the disputed facts and issues hisor her findings in a nonbinding reportor recommendation.

This process can be particularlyuseful in handling allegations of racialor gender discrimination within acompany because such cases oftenprovoke strong emotions and internaldissension. If both parties are employ-ees of the same company, conflicts ofinterest could interfere with a supervi-sor or manager’s ability to conduct animpartial investigation of alleged dis-crimination. To avoid the appearanceof unfairness, a company may turn toa neutral third party in hopes of reach-ing a settlement all the employees canrespect.

Mini-Trial. In a mini-trial each partypresents its position in a trial-likefashion before a panel that consists ofselected representatives for both par-ties and neutral third parties. Everypanel has one neutral advisor. Mini-

trials are designed to help define theissues and develop a basis for realisticsettlement negotiations. The rep-resentatives from the two sides presentan overview of their positions andarguments to the panel. As a result,each party becomes more knowledge-able about the other party’s position.Having heard each side’s presentation,the panel, including the advisor, meetsto develop a compromise solution.The neutral advisor may also issue anadvisory opinion regarding the meritsof the case. This advisory opinion isnonbinding unless the parties haveagreed in writing beforehand to bebound by it.

The primary benefit of a mini-trialis that both parties have an opportuni-ty to develop solutions. It also meansthat each has representation and ac-cess to detailed information.

Summary Jury Trial. A summaryjury trial involves a court-managedprocess that takes place after a case hasbeen filed, but before it reaches trial.In a summary jury trial each partypresents its arguments to a jury (nor-mally six persons). An overview ofeach side’s argument as well as abbre-viated opening and closing argumentsare presented. Attorneys are typicallygiven a short amount of time (an houror less) for their presentations. Theyare limited to the presentation of in-formation that would be admissible attrial. No testimony is taken fromsworn witnesses, and proceedings are


generally not recorded. Because theproceedings are nonbinding, rules ofprocedure and evidence are more flex-ible than in a normal trial.

The jury hands down an advisory,nonbinding decision based on the arguments presented. In this setting,the verdict is designed to give the attorneys and their clients insight into their cases. It may also suggest a basis for settlement of the dispute.If the dispute is not resolved during or immediately following the summa-ry jury trial proceeding, a pretrial conference is held before the court todiscuss settlement.

One of the major advantages of asummary jury trial is the time in-volved. A summary jury trial is typi-cally concluded in less than a day com-pared to several days or weeks forfull-fledged trials.

Private Judging. This method of al-ternative dispute resolution makes useof retired judges who offer their serv-ices for a fee. Advocates claim thatthere are several advantages. First, theparties are able to select a person withthe right qualifications and experienceto handle the matter. Second, the par-ties can be assured that the matter willbe handled when first scheduled andnot be continued because the court’scalendar is too crowded. Finally, thecost can be less than that incurred in full litigation. Critics of privatejudging, however, are concerned bythe high fees charged by some retired

judges. A California appellate court,for instance, has noted that some sitting judges are leaving the bench in order to earn more money as private judges.

Specialized Courts

The state court systems are frequentlycharacterized by a number of special-ized courts that are set up to handlespecific types of civil cases. Domesticrelations courts are often establishedto deal with such matters as divorce,child custody, and child support. Inmany jurisdictions, probate courtshandle the settlement of estates andthe contesting of wills.

Perhaps the best known of the spe-cialized courts are the small-claimscourts. These courts have jurisdictionto handle cases when the money beingsued for is not above a certainamount. The amount varies by juris-diction but the maximum is usually$500 or $1,000. Small-claims courtsallow less complex cases to be resolvedmore informally than in most othertrial courts. Filing fees are low, and theuse of attorneys is often discouraged,making small-claims court affordablefor the average person.

Administrative Bodies

A number of government agencieshave also established administrativebodies with quasi-judicial authority tohandle certain types of cases. At thefederal level, for example, agenciessuch as the Federal Trade Commission


and the Federal CommunicationsCommission carry out an adjudica-tion of sorts within their respectivespheres of authority. An appeal of theruling of one of these agencies may betaken to a federal court of appeals.

At the state level, a common exam-ple of an administrative body that aidsin the resolution of civil claims is aworkers’ compensation board. Thisboard determines whether an em-ployee’s injury is job-related and thuswhether the person is entitled toworkers’ compensation payments.Many state motor vehicle departmentshave hearing boards to make determi-nations about revoking driver’s licens-es. Another type of administrativeboard commonly found in the statesrules on civil rights matters and casesof alleged discrimination.

THE CIVIL TRIAL PROCESS

Anumber of disputes are re-solved through some methodof alternative dispute resolu-

tion, in a specialized court, or by anadministrative body. However, a largenumber of cases each year still manageto find their way into a civil court.

Generally speaking, the adversarialprocess used in criminal trials is alsoused in civil trials, with just a few im-portant differences. First, a litigantmust have standing. This conceptmeans simply that the person initiat-ing the suit must have a personal stakein the outcome of the controversy.Otherwise, there is no real controversy

between the parties and thus no actu-al case for the court to decide.

A second major difference is thatthe standard of proof used in civilcases is a preponderance of the evidence, not the more stringent beyond-a-reasonable-doubt standardused in criminal cases. A preponder-ance of the evidence is generally taken to mean that there is sufficientevidence to overcome doubt or specu-lation. It clearly means that less proof is required in civil cases than in criminal cases.

A third major difference is thatmany of the extensive due processguarantees that a defendant has in acriminal trial do not apply in a civilproceeding. For example, neitherparty is constitutionally entitled tocounsel. The Seventh Amendmentdoes guarantee the right to a jury trialin lawsuits “where the value in contro-versy shall exceed $20.” Although thisamendment has not been madeapplicable to the states, most stateshave similar constitutional guarantees.

Filing a Civil Suit

The person initiating the civil suit isknown as the plaintiff, and the personbeing sued is the defendant or the re-spondent. A civil action is known bythe names of the plaintiff and the de-fendant, such as Jones v. Miller. Theplaintiff ’s name appears first. In a typ-ical situation, the plaintiff ’s attorneypays a fee and files a complaint or pe-tition with the clerk of the proper


court. The complaint states the factson which the action is based, the dam-ages alleged, and the judgment or re-lief being sought.

The decision about which courtshould actually hear the case involvesthe concepts of jurisdiction andvenue: Jurisdiction deals with a court’sauthority to exercise judicial power,and venue means the place where thatpower should be exercised.

Jurisdictional requirements are sat-isfied when the court has legal author-ity over both the subject matter andthe person of the defendant. Thismeans that several courts can have jurisdiction over the same case. Sup-pose, for example, that a resident ofDayton, Ohio, is seriously injured in

an automobile accident in Tennesseewhen the car he is driving is struckfrom the rear by a car driven by a resident of Kingsport, Tennessee.Total damages to the Ohio driver and car come to about $80,000.A state trial court in Ohio has subject matter jurisdiction, and Ohiocan in all likelihood obtain jurisdic-tion over the defendant. In addition,the state courts of Tennessee probablyhave jurisdiction. Federal districtcourts in both Ohio and Tennesseealso have jurisdiction because diversi-ty of citizenship exists and the amountin controversy is over $75,000. Assum-ing that jurisdiction is the only concern, the plaintiff can sue in any of these courts.


Heavy media coverage often prompts defense attorneys to move for a change of venue so asto avoid prejudicing their client’s case, for instance, in auto accidents caused by drunk drivers.

The determination of proper venuemay be prescribed by statute based onavoiding possible prejudice, or it maysimply be a matter of convenience.The federal law states that propervenue is the district in which either theplaintiff or defendant resides, or thedistrict where the injury occurred.State venue statutes vary somewhat,but they usually provide that whereland is involved, proper venue is thecounty where the land is located. Inmost other instances venue is thecounty where the defendant resides.

Venue questions may also be relat-ed to the perceived or feared prejudiceof either the judge or the prospectivejury. Attorneys sometimes object totrials being held in a particular areafor this reason and may move for achange of venue. Although this type of objection is perhaps more com-monly associated with highly publi-cized criminal trials, it is also found in civil trials.

Once the appropriate court hasbeen determined and the complainthas been filed, the court clerk will at-tach a copy of the complaint to a sum-mons, which is then issued to the de-fendant. The summons may be servedby personnel from the sheriff ’s office,a U.S. marshal, or a private process-service agency.

The summons directs the defen-dant to file a response, known as apleading, within a certain period oftime (usually 30 days). If the defen-

dant does not do so, then he or shemay be subject to a default judgment.

These simple actions by the plain-tiff, clerk of the court, and a processserver set in motion the civil case.What happens next is a flurry of activ-ities that precedes an actual trial andmay last for several months. Approxi-mately 75 percent of cases are resolvedwithout a trial during this time.

Pretrial Activities

Motions. Once the summons hasbeen served on the defendant, a num-ber of motions can be made by the defense attorney. A motion to quashrequests that the court void the sum-mons on the ground that it was notproperly served. For example, a defen-dant might contend that the summonswas never delivered personally as re-quired by state law.

Two types of motions are meant toclarify or to object to the plaintiff ’s pe-tition. A motion to strike requests thatthe court excise, or strike, certain partsof the petition because they are preju-dicial, improper, or irrelevant. A mo-tion to make more definite asks thecourt to require the plaintiff to bemore specific about the complaints.

A fourth type of motion often filedin a civil case is a motion to dismiss.This motion may argue that the courtlacks jurisdiction, or it may insist thatthe plaintiff has not presented a legallysound basis for action against the de-fendant even if the allegations are true.


The Answer. If the complaint sur-vives the judge’s rulings on the mo-tions, then the defendant submits ananswer to the complaint. The responsemay contain admissions, denials, de-fenses, and counterclaims. When anadmission is contained in an answer,there is no need to prove that fact dur-ing the trial. A denial, however, bringsup a factual issue to be proven duringthe trial. A defense says that certainfacts set forth in the answer may barthe plaintiff from recovering damages.

The defendant may also create aseparate action known as a counter-claim. If the defendant thinks that acause of action against the plaintiffarises from the same set of events,then he or she must present the claimto the court in response to the plain-tiff ’s claim. The plaintiff may file areply to the defendant’s answer. In thatreply, the plaintiff may admit, deny, ordefend against the allegations of factcontained in the counterclaim.

Discovery. The U.S. legal system pro-vides for discovery procedures; that is,each party is entitled to informationin the possession of the other. Thereare several tools of discovery:• A deposition is testimony of a

witness taken under oath outside thecourt. The same question-and-answer format as in the courtroom isused. All parties to the case must benotified that the deposition is to betaken so that their attorneys may bepresent to cross-examine the witness.

• Interrogatories are written questionsthat must be answered under oath.Interrogatories can be submittedonly to the parties in the case, not towitnesses. They are used to obtaindescriptions of evidence held by theopposing parties in the suit.

• Production of documents may berequested by one of the parties in the suit if they wish to inspectdocuments, writings, drawings,graphs, charts, maps, photographs, orother items held by the other party.

• If there are questions about thephysical or mental condition of oneof the parties, the court may orderthat person to submit to anexamination by a physician.

The Pretrial Conference. Before go-ing to court, the judge may call a pre-trial conference to discuss the issues inthe case informally with the opposingattorneys. The general practice is toallow only the judge and the lawyersto attend the conference, which is nor-mally held in the judge’s chambers.

At this meeting, the judge and theattorneys try to come to agreement onuncontested factual issues, which areknown as stipulations. The purpose ofstipulations is to make the actual trialmore efficient by reducing the num-ber of issues that must be argued incourt. The attorneys also share witheach other a list of witnesses and doc-uments that are part of each case.

Lawyers and judges may also usethe pretrial conference to try to settle


the case. Some judges actively work tobring about a settlement so the casedoes not have to go to trial.

The Civil Trial

Selection of Jury. The right to a jurytrial in a civil suit in a federal court isguaranteed by the Seventh Amend-ment of the U.S. Constitution. Stateconstitutions likewise provide for sucha right. A jury trial may be waived, inwhich case the judge decides the mat-ter. Although the jury traditionallyconsists of 12 persons, today the num-ber varies. Most of the federal districtcourts now use juries of fewer than 12persons in civil cases. A majority ofstates also authorize smaller juries insome or all civil trials.

As in criminal trials, jurors must beselected in a random manner from afair cross-section of the community. Alarge panel of jurors is called to thecourthouse, and when a case is as-signed to a court for trial, a smallergroup of prospective jurors is sent to aparticular courtroom.

Following the voir dire examina-tion, which may include challenges tocertain jurors by the attorneys, a juryto hear the particular case will be seated. Lawyers may challenge aprospective juror for cause, in whichcase the judge must determinewhether the person challenged is im-partial. Each side may also exercise acertain number of peremptory chal-lenges — excusing a juror without


The Seventh Amendment of the Constitution and state constitutions guarantee the right to ajury trial in civil suits. As a result, many citizens such as these women from Macomb County,Michigan, are called to serve as jurors.

stating any reason. However, the U.S.Supreme Court has ruled that theequal protection guarantee of theFourteenth Amendment prohibits theuse of such challenges to disqualify ju-rors from civil trials because of theirrace or gender. Peremptory challengesare fixed by statute or court rule andnormally range from two to six.

Opening Statements. After the juryhas been chosen, the attorneys presenttheir opening statements. The plain-tiff ’s attorney begins. He or she ex-plains to the jury what the case isabout and what the plaintiff ’s side ex-pects to prove. The defendant’s lawyercan usually choose either to make anopening statement immediately afterthe plaintiff ’s attorney finishes or towait until the plaintiff ’s case has beencompletely presented. If the defen-dant’s attorney waits, he or she willpresent the entire case for the defen-dant continuously, from openingstatement onward. Opening state-ments are valuable because they outline the case and make it easier forthe jury to understand the evidence as it is presented.

Presentation of the Plaintiff’s Case.In the normal civil case, the plaintiff ’sside is first to present and attempt toprove its case to the jury and last tomake closing arguments. In present-ing the case, the plaintiff ’s lawyer willnormally call witnesses to testify andproduce documents or other exhibits.

When a witness is called, he or she will undergo direct examinationby the plaintiff ’s attorney. Then the defendant’s attorney will have the opportunity to ask questions or cross-examine the witness. The Arizona Supreme Court recently tooksteps to help jurors do a better job of making decisions in civil cases.Among other things, the state’s highest court voted to allow jurors topose written questions to witnessesthrough the judge. Other states areconsidering implementing Arizona’snew practice. Following the cross-examination, the plaintiff ’s lawyermay conduct a redirect examination,which may then be followed by a second cross-examination by the defendant’s lawyer.

Generally speaking, witnesses maytestify only about matters they haveactually observed; they may not ex-press their opinions. However, an important exception to this generalrule is that expert witnesses are specifically called upon to give theiropinions in matters within their areasof expertise.

To qualify as an expert witness, aperson must possess substantialknowledge about a particular field.Furthermore, this knowledge mustnormally be established in open court.Both sides often present expertswhose opinions are contradictory.When this happens, the jury must ultimately decide which opinion is the correct one.


When the plaintiff ’s side has pre-sented all its evidence, the attorneyrests the case.

Motion for Directed Verdict. Afterthe plaintiff ’s case has been rested, thedefendant will often make a motionfor a directed verdict. With the filingof this motion, the defendant is sayingthat the plaintiff has not proved his orher case and thus should lose. Thejudge must then decide whether theplaintiff could win at this point ifcourt proceedings were to cease.Should the judge determine that theplaintiff has not presented convincingenough evidence, he or she will sus-tain the motion and direct the verdictfor the defendant. Thus the plaintiffwill lose the case. The motion for a di-rected verdict is similar to the pretrialmotion to dismiss.

Presentation of the Defendant’sCase. If the motion for a directed verdict is overruled, the defendantthen presents evidence. The defen-dant’s case is presented in the sameway as the plaintiff ’s case. That is,there is direct examination of witness-es and presentation of documents and other exhibits. The plaintiffhas the right to cross-examine wit-nesses. Redirect and recross questionsmay follow.

Plaintiff’s Rebuttal. After the pres-entation of the defendant’s case, theplaintiff may bring forth rebuttal

evidence, which is aimed at refutingthe defendant’s evidence.

Answer to Plaintiff’s Rebuttal. Thedefendant’s lawyer may present evi-dence to counter the rebuttal evi-dence. This rebuttal-and-answer pattern may continue until the evi-dence has been exhausted.

Closing Arguments. After all the evidence has been presented, thelawyers make closing arguments, orsummations, to the jury. The plain-tiff ’s attorney speaks both first andlast. That is, he or she both opens the argument and closes it, and thedefendant’s lawyer argues in between.In this stage of the process each attor-ney attacks the opponent’s evidencefor its unreliability and may also attempt to discredit the opponent’switnesses. In doing so, the lawyersoften wax eloquent or deliver an emo-tional appeal to the jury. However, thearguments must be based upon factssupported by the evidence and intro-duced at the trial.

Instructions to the Jury. Assumingthat a jury trial has not been waived,the instructions to the jury follow theconclusion of the closing arguments.The judge informs the jury that itmust base its verdict on the evidencepresented at the trial. The judge’s in-structions also inform the jurorsabout the rules, principles, and stan-dards of the particular legal concept


involved. In civil cases, a finding forthe plaintiff is based on a preponder-ance of the evidence. This means thatthe jurors must weigh the evidencepresented during the trial and deter-mine in their minds that the greaterweight of the evidence, in merit and inworth, favors the plaintiff.

The Verdict. The jury retires to theseclusion of the jury room to conductits deliberations. The members mustreach a verdict without outside con-tact. In some instances the delibera-tions are so long and detailed that thejurors must be provided meals andsleeping accommodations until theycan reach a verdict. The verdict, then,represents the jurors’ agreement afterdetailed discussions and analyses ofthe evidence. Sometimes the jury deliberates in all good faith but cannotreach a verdict. When this occurs,the judge may declare a mistrial. Thismeans that a new trial may have to be conducted.

After the verdict is reached, thejury is conducted back into opencourt, where it delivers its verdict tothe judge. The parties are informed ofthe verdict. It is then customary forthe jury to be polled — the jurors areindividually asked by the judgewhether they agree with the verdict.

Post-trial Motions. Once the verdicthas been reached, a dissatisfied partymay pursue a variety of tactics. Thelosing party may file a motion for

judgment notwithstanding the ver-dict. This type of motion is grantedwhen the judge decides that reason-able persons could not have renderedthe verdict the jury reached.

The losing party may also file amotion for a new trial. The usual basisfor this motion is that the verdict goesagainst the weight of the evidence.The judge will grant the motion onthis ground if he or she agrees that theevidence presented simply does notsupport the verdict reached by thejury. A new trial may also be grantedfor a number of other reasons: exces-sive damages, grossly inadequatedamages, the discovery of new evi-dence, and errors in the production ofevidence, to name a few.

In some cases the losing party alsofiles a motion for relief from judg-ment. This type of motion may begranted if the judge finds a clericalerror in the judgment, discovers somenew evidence, or determines that thejudgment was induced by fraud.

Judgment and Execution. A verdictin favor of the defendant ends the trial,but a verdict for the plaintiff requiresanother stage in the process. There isno sentence in a civil case, but theremust be a determination of the reme-dy or damages to be assessed. This de-termination is called the judgment.

In situations where the judgment isfor monetary damages and the defen-dant does not voluntarily pay the setamount, the plaintiff can ask to have


the court clerk issue an order to exe-cute the judgment. The execution isissued to the sheriff and orders thesheriff to seize the defendant’s proper-ty and sell it at auction to satisfy thejudgment. An alternative is to order alien, which is the legal right to holdproperty that may be used for the pay-ment of the judgment.

Appeal. If one party feels that anerror of law was made during the trial,and if the judge refuses to grant aposttrial motion for a new trial, thenthe dissatisfied party may appeal to ahigher court. Probably the most com-

mon grounds for appeal are that thejudge allegedly admitted evidence thatshould have been excluded, refused toadmit evidence that should have beenintroduced, or failed to give properjury instructions.

An attorney lays the groundworkfor an appeal by objecting to the alleged error during the trial. This objection goes into the trial recordand becomes a part of the trial tran-script, which may be reviewed by anappellate court. The appellate courtdecision may call for the lower courtto enforce its earlier verdict or to holda new trial. �


The movement to includeminorities and women in thejudiciary increased during thepresidency of Jimmy Carter.President Ronald Reagan brokethe gender barrier at the SupremeCourt with his 1981 appointmentof Sandra Day O’Connor, right, asAssociate Justice. Chief JusticeWarren Burger, left, is shownswearing her in, while herhusband, John J. O’Connor,center, holds the two family Bibles.

FEDERALJUDGES

C H A P T E R

7

The main actors in the federal systemare the men and women who serve asjudges and justices. What characteris-tics do these people have that distin-guish them from the rest of the citi-zenry? What are the qualifications —both formal and informal — for ap-pointment to the bench? How arejudges selected and who are the partic-ipants in the process? How do judgeslearn to be judges? How are judges dis-ciplined and when are they removedfrom the bench?

BACKGROUNDCHARACTERISTICS OFFEDERAL JUDGES

Americans cling to the notionthat someone born in thehumblest of circumstances

(such as Abraham Lincoln) may oneday grow up to be the president of theUnited States, or at least a U.S. judge.As with most myths, this one has akernel of truth. In principle virtuallyanyone can become a prominent pub-lic official, and a few well-known ex-amples can be cited of people whocame from poor backgrounds yetclimbed to the pinnacle of power.More typically, however, America’sfederal judges, like other public offi-cials and the captains of commerceand industry, come from the nation’smiddle and upper-middle classes.

District Judges

Background data for all federal districtjudges for the past 210 years have

never been collected, but a good deal is known about judges who haveserved in recent decades.

Before assuming the federal bench,a plurality of judges had been judges at the state or local level. The nextlargest blocs were employed either inthe political or governmental realmsor in moderate- to large-sized lawfirms. Those working in small lawfirms or as professors of law made upthe smallest bloc.

Judges’ educational background re-veals something of their elite nature.All graduated from college; about halfattended either costly Ivy Leagueschools or other private universities toreceive their undergraduate and lawdegrees. Judges also differ from thepopulation as a whole in that there is astrong tendency toward “occupationalheredity” — that is, for judges to comefrom families with a tradition of judi-cial and public service.

Although the United States is about51 percent female, judges have been almost exclusively male. Until the pres-idency of Jimmy Carter (1977-81), lessthan 2 percent of district judges werefemale, and even with conscious effortto change this phenomenon, only 14.4percent of Carter’s appointments todistrict judgeships were women. Racialminorities also have been underrepre-sented on the trial bench, not only inabsolute numbers but also in compari-son with figures for the overall popula-tion. Until the present time, onlyJimmy Carter had appointed a signifi-


cant number of non-Anglos to the federal bench — over 21 percent. Dur-ing the administration of President BillClinton (1993-2001), a dramaticchange took place. During his first six years in office, 49 percent of his judicial appointees were either womenor minorities.

About nine out of ten districtjudges have been of the same politicalparty as the appointing president, andhistorically about 60 percent have arecord of active partisanship.

The typical judge has been 49 yearsold at the time of appointment. Agevariations from one presidency to an-other have been small, with no dis-cernible trend over the years from oneadministration to another.

Appeals Court Judges

Appeals judges are much more likelyto have previous judicial experiencethan their counterparts on the trialcourt bench, and they are just as likely,if not more so, to have attended pri-vate and Ivy League schools.

In terms of political party affilia-tion, little difference is seen betweentrial and appellate court appoint-ments. However, appeals judges have aslight tendency to be more active intheir respective parties than their col-leagues on the trial bench.

The Clinton initiative to make thebench more accurately reflect U.S. gen-der and racial demographics is evidentin the ranks of the appellate judges aswell. A third of his appointees were

women, and more African Americans,Hispanics, and Asians were appointedto the appellate court bench by Clinton than by any other president.

President George W. Bush, in turn,also has shown a commitment toracial and gender diversity. Almostone-third of his district court appoint-ments, for example, have been “non-traditional” — women and minorities.

Supreme Court Justices

Since 1789, 106 men and two womenhave sat on the bench of America’shighest judicial tribunal. Althoughperhaps 10 percent of the justices wereessentially of humble origin, a majori-ty of the justices came from politicallyactive families, and about a third were related to jurists and closely connected with families with a tradi-tion of judicial service.

Until the 1960s the High Court hadbeen all white and all male, but in 1967President Lyndon Johnson appointedThurgood Marshall as the first AfricanAmerican member of the Court. WhenMarshall retired in 1991, PresidentGeorge H.W. Bush, father of PresidentGeorge W. Bush, replaced him withanother African American, ClarenceThomas. In 1981 the gender barrierwas broken when President RonaldReagan named Sandra Day O’Connorto the Court, and 13 years later she wasjoined by Ruth Bader Ginsburg.

As for the nonpolitical occupationsof the justices, all 108 had legal train-ing and all had practiced law at some

CHAPTER 7: FEDERAL JUDGES 143

stage in their careers. Only 22 percenthad state or federal judicial experienceimmediately prior to their appoint-ments, although more than half hadserved on the bench at some time be-fore their nomination to the SupremeCourt. As with their colleagues in thelower federal judiciary, the justices weremuch more likely to have been politi-cally active than the average American,and virtually all shared many of theideological and political orientationsof their appointing president.

QUALIFICATIONS OFFEDERAL JUDGES

Despite the absence of formalqualifications for a federaljudgeship, there are well-

defined informal requirements.

Formal Qualifications

No constitutional or statutory qualifi-cations are stipulated for serving onthe Supreme Court or the lower feder-al courts. The Constitution merely in-dicates that “the judicial Power of theUnited States, shall be vested in onesupreme Court” as well as in any lowerfederal courts that Congress may es-tablish (Article III, Section 1) and thatthe president “by and with the Adviceand Consent of the Senate, shall ap-point...Judges of the supreme Court”(Article II, Section 2). Congress hasapplied the same selection procedureto the appeals and the trial courts.There are no exams to pass, no mini-mum age requirement, no stipulation

that judges be native-born citizens orlegal residents, no requirement thatjudges even have a law degree.

Informal Requirements

At least four vital although informalfactors determine who sits on the fed-eral bench in America: professionalcompetence, political qualifications,self-selection, and the element of luck.

Professional Competence: Althoughcandidates for U.S. judicial posts donot have to be attorneys, it has beenthe custom to appoint lawyers whohave distinguished themselves profes-sionally. Although the political rulesmay allow a president to reward an oldally with a seat on the bench, traditionhas created an expectation that thewould-be judge have some reputationfor professional competence, the moreso as the judgeship in question goesfrom the trial court to the appealscourt to the Supreme Court level.

Political Qualifications: Most nomi-nees for judicial office have somerecord of political activity for two rea-sons. First, to some degree judgeshipsare still considered part of the politicalpatronage system; those who haveserved the party are more likely to berewarded with a federal post thanthose who have not. Second, some po-litical activity on the part of thewould-be judge is often necessary, be-cause otherwise the candidate wouldsimply not be visible to the president,


senator(s), or local party leaders whosend forth the names of candidates.

Self-Selection: While many considerit undignified and lacking in judicialtemperament for someone to an-nounce publicly a desire for a federaljudgeship, some would-be jurists or-chestrate discreet campaigns on theirown behalf or at least pass the wordthat they are available for judicial serv-ice. Few will admit to seeking an ap-pointment actively, but credible anec-dotes suggest that attorneys oftenposition themselves in such a way thattheir names will come up when thereis a vacant seat to fill.

The Element of Luck: A good meas-ure of happenstance exists in virtuallyall judicial appointments. Being amember of the right party at the righttime or being visible to the power bro-kers at the right moment often has asmuch to do with becoming a judge asone’s professional background.

THE FEDERAL SELECTIONPROCESS AND ITSPARTICIPANTS

The framework of judicial selec-tion is the same for all federaljudges, although the roles of

the participants vary depending onthe level of the U.S. judiciary. All nom-inations are made by the presidentafter due consultation with the WhiteHouse staff, the attorney general’s of-fice, certain senators, and other politi-

cal operatives. The Federal Bureau ofInvestigation (FBI), an arm of the Jus-tice Department, customarily per-forms a routine security check. Afterthe nomination is announced to thepublic, various interest groups that believe they have a stake in the ap-pointment may lobby for or againstthe candidate. Also, the candidate’squalifications will be evaluated by acommittee of the American Bar Asso-ciation. The candidate’s name is sentto the Senate Judiciary Committee,which conducts an investigation of thenominee’s fitness for the post. If thecommittee’s vote is favorable, thenomination is sent to the floor of theSenate, where it is either approved orrejected by a simple majority vote.

The President

Technically, the president nominatesall judicial candidates, but historicallythe chief executive has been more in-volved in appointments to the SupremeCourt than to the lower courts. This isso for two major reasons.

First, Supreme Court appoint-ments are seen by the president — andby the public at large — as generallymore important and politically signif-icant than openings on the lesser tri-bunals. Presidents often use their fewopportunities for High Court appointments to make a politicalstatement or to set the tone of theiradministration. For example, duringthe period of national stress prior toU.S. entry into World War II, Democ-


ratic President Franklin D. Rooseveltelevated Republican Harlan FiskeStone to chief justice as a gesture ofnational unity. In 1969 PresidentRichard Nixon used his appointmentof the conservative Warren Burger tofulfill his campaign pledge to restore“law and order.” And President Ronald Reagan in 1981 hoped to dispel hisreputation for being unsympathetictoward the women’s movement bybeing the first to name a woman to theHigh Court.

A second reason why presidents arelikely to devote more attention toSupreme Court appointments and lessto lower court appointments is thattradition has allowed for individualsenators and local party leaders to in-fluence, and often dominate, lowercourt appointments. The practiceknown as senatorial courtesy is part of

the appointment process for districtjudges. Under senatorial courtesy, sen-ators of the president’s political partywho are from the home state of thenominee are asked their opinions ofthe candidate by the Senate JudiciaryCommittee. In expressing their viewsabout a particular candidate, thesesenators are in a position to virtuallyveto a nomination. Senatorial courtesydoes not apply to appellate courtappointments, although it is custom-ary for presidents to defer to senatorsof their party from states that make upthe appellate court circuit.

The Department of Justice

Assisting the president and the WhiteHouse staff in the judicial selectionprocess are the two key presidentialappointees in the Justice Department— the attorney general of the United


President Lyndon B. Johnson, right, appointed the first African American member of theSupreme Court, Thurgood Marshall, left, in 1967.

States and the deputy attorney general. Their primary job is to seekout candidates for federal judicialposts who conform to general criteriaset by the president. Once severalnames are obtained, the staff of theJustice Department will subject eachcandidate to further scrutiny. Theymay order an FBI investigation of thecandidate’s character and background;they will usually read copies of all articles or speeches the candidate haswritten or evaluate a sitting judge’swritten opinions; they might checkwith local party leaders to determinethat the candidate is a party faithfuland is in tune with the president’smajor public policy positions.

In the case of district judge ap-pointments, where names are oftensubmitted by home-state senators, theJustice Department’s function is morethat of screener than of initiator. Re-gardless of who comes up with a list ofnames, the Justice Department’s pri-mary duty is to evaluate the candi-date’s personal, professional, and political qualifications. In performingthis role the department may workclosely with the White House staff,with the senators involved in the nom-ination, and with party leaders whomay wish to have some input inchoosing the nominee.

State and Local Party Leaders

Regional party leaders have little to sayin the appointment of Supreme Courtjustices, where presidential prerogative

is dominant, and their role in thechoice of appeals court judges is minimal. However, in the selection ofU.S. trial judges their impact is formi-dable, especially when appointmentsoccur in states in which neither sena-tor is of the president’s political party.In such cases the president will bemore likely to consult with state leaders of his own party rather thanwith the state’s senators.

Interest Groups

A number of pressure groups in theUnited States, representing the wholepolitical spectrum from left to right,often lobby either for or against judi-cial nominations. Leaders of thesegroups — civil liberties, business, or-ganized labor, civil rights — have littlehesitation about urging the presidentto withdraw the nomination of some-one whose political and social valuesare different from their own or aboutlobbying the Senate to support thenomination of someone who is favor-ably perceived. Interest groups lobbyfor and against nominees at all levelsof the federal judiciary.

The American Bar Association(ABA)

For more than five decades, the Com-mittee on the Federal Judiciary of theABA has played a key role in evalu-ating the professional credentials ofpotential nominees for positions onthe federal bench. The committee,whose 15 members represent all the



The Presidentnominates all federaljudicial candidates,but individual senatorsand local party leaderstraditionally wield alot of influence in thecase of lower courtappointments.Above, two U.S.district court judgespresiding in anaturalizationceremony in New YorkState. Center,President George W.Bush congratulates hisnominees to federaljudgeships. Bottom,Senior JudgeConstance BakerMotley, right, of theU.S. District Court forthe Southern Districtof New York speaks ata panel discussion.

U.S. circuits, evaluates candidates onthe basis of three criteria: judicial tem-perament, professional competence,and integrity. A candidate approved bythe committee is rated either “quali-fied” or “well qualified,” whereas anunacceptable candidate is stampedwith a “not qualified” label.

The Senate Judiciary Committee

The rules of the Senate require its Ju-diciary Committee to consider allnominations to the federal bench andto make recommendations to the Sen-ate as a whole. Its role is thus to screenindividuals who have already beennominated, not to suggest names ofpossible candidates. The committeeholds hearings on all nominations, atwhich time witnesses are heard anddeliberations take place behind closeddoors. The hearings for district courtappointments are largely perfunctorybecause the norm of senatorial cour-tesy has, for all intents and purposes,already determined whether the can-didate will be acceptable to the Senate.However, for appeals court nominees— and surely for an appointment tothe Supreme Court — the committeehearing is a serious proceeding.

The Senate

The final step in the judicial appoint-ment process for federal judges is amajority vote by the Senate. Historical-ly, two general views have prevailed ofthe Senate’s prescribed role. Presidentsfrom the time of George Washington

and a few scholars have taken the posi-tion that the Senate ought quietly to goalong with the presidential choices un-less overwhelmingly strong reasonsexist to the contrary. Other scholarsand most senators have held the viewthat the Senate has the right and theobligation to make its own decision re-garding the nominee. In practice therole of the Senate in the judicial confir-mation process has varied, dependingon the level of the federal judgeshipthat is being considered.

For district judges the norm of sen-atorial courtesy prevails. That is, if thepresident’s nominee is acceptable tothe senator(s) of the president’s partyin the state in which the judge is to sit,the Senate is usually happy to confirmthe appointment. For appointments tothe appeals courts, senatorial courtesydoes not apply, since the vacancy to befilled covers more than just the state ofone or possibly two senators. But sen-ators from each state in the circuit inwhich the vacancy has occurred cus-tomarily submit names of possiblecandidates to the president. An un-written rule is that each state in the cir-cuit should have at least one judge onthat circuit’s appellate bench. As longas the norms are adhered to and thepresident’s nominee has reasonablygood qualifications, the Senate as awhole usually goes along with the rec-ommendations of the chief executive.

The Senate has been inclined todispute the president if disagreementarises over a nominee’s fitness for the


High Court. Since 1789, presidentshave sent the names of 144 SupremeCourt nominees to the Senate for itsadvice and consent. Of this number,30 were either rejected or “indefinitelypostponed” by the Senate, or thenames were withdrawn by the presi-dent. Thus presidents have been suc-cessful about 79 percent of the time,and their success rate seems to be im-proving, given that as many as one-third of the nominations were rejectedby the Senate in the 19th century. Therecord shows that presidents have metwith the most success in getting theirHigh Court nominations approvedwhen the nominee comes from a non-controversial background and hasmiddle-of-the-road political leanings,and when the president’s party alsocontrols the Senate, or at least a ma-jority shares the president’s basic atti-tudes and values.

THE JUDICIALSOCIALIZATION PROCESS

In college and law school, futurejudges acquire important analyticand communication skills, in ad-

dition to the basic substance of thelaw. After a couple of decades of legalpractice, the future judge has learned agood bit about how the courts and thelaw actually work and has specializedin several areas of the law. Despite allthis preparation, sometimes called“anticipatory socialization,” most newjudges in America still have a lot tolearn about being a judge.

Not only does the United Stateslack formalized training proceduresfor the judicial profession, but there isan assumption that being a lawyer fora decade or so is all the experience oneneeds to be a judge. On the contrary,becoming a judge in America requiresa good deal of freshman socialization(short-term learning and adjustmentto the new role) and occupational so-cialization (on-the-job training over aperiod of years).

Typical new trial court appointeesmay be first-rate lawyers and expertsin a few areas of the law in which theyhave specialized. As judges, however,they are expected to be experts on alllegal subjects, are required to engagein judicial duties usually unrelated toany tasks they performed as lawyers(for example, sentencing), and aregiven a host of administrative assign-ments for which they have had noprior experience (for example, learn-ing how to docket efficiently severalhundred diverse cases).

At the appeals court level there is also a period of freshman socializa-tion — despite the circuit judge’s possible prior judicial experience —and former trial judges appear tomake the transition more easily.During the transition time, circuitjudges tend to speak less for the courtthan their more experienced col-leagues. They often take longer towrite opinions, defer more often to senior colleagues, or experience aperiod of indecision.


The learning process for newSupreme Court justices is even harder.As with new appeals court judges,novice Supreme Court justices tend to defer to senior associates, to writefewer majority and dissenting opin-ions, and to manifest a degree ofuncertainty. New High Court ap-pointees may have more judicial experience than their lower-court colleagues, but the fact that theSupreme Court is involved in broadjudicial policy making — as opposedto the error correction of the appealscourts and the norm enforcement ofthe trial courts — may account fortheir initial indecisiveness.

Given the need on the part ofall new federal jurists for both fresh-man and occupational socialization,where do they go for instruction? For both the appeals court judges and their trial court peers, most oftheir training comes from their more senior, experienced colleagueson the bench — particularly the chiefjudge of the circuit or district. Like-wise on the Supreme Court, older as-sociates, often the chief justice, play aprimary part in passing on to novicejustices the essential rules and valuesof the Court.

Training seminars provided by theFederal Judicial Center for newly ap-pointed judges also play an importantrole in the training and socializationof new jurists. Although some of theseseminars are conducted by outsiderspecialists — subject matter experts in

the law schools — the key instructorstend to be seasoned judges whose real-life experience on the bench commands the respect of the newmembers of the federal judiciary.

What is the significance of this so-cialization process for the operation ofthe U.S. judicial-legal system? First,the agents of socialization that arereadily available to the novice juristsallow the system to operate moresmoothly, with a minimum of downtime. If new judges were isolated fromtheir more experienced associates, ge-ographically or otherwise, they wouldrequire more time to learn the finepoints of their trade and presumably agreater number of errors would occurin litigation.

Second, the fact that the system isable to provide its own socialization— that the older, experienced juriststrain the novices — serves as a sort ofglue that helps bond the system to-gether. It allows the judicial values,practices, and orientations of one gen-eration of judges to be passed on toanother. It gives continuity and a senseof permanence to a system that oper-ates in a world where chaos and ran-dom behavior are common.

THE RETIREMENT ANDREMOVAL OF JUDGES

Judges cease performing their judicial duties when they retire by choice or because of ill health

or death, or when they are subjected to the disciplinary actions of others.


Disciplinary Action AgainstFederal Judges

All federal judges appointed under theprovisions of Article III of the Consti-tution hold office “during good Be-havior,” which means in effect for lifeor until they choose to step down. Theonly way they can be removed fromthe bench is by impeachment (indict-ment by the House of Representatives)and conviction by the Senate. In ac-cordance with constitutional require-ments (for Supreme Court justices)and legislative standards (for appealsand trial court judges), impeachmentmay occur for “Treason, Bribery, orother high Crimes and Misde-meanors.” An impeached jurist wouldface trial in the Senate, which couldconvict by a vote of two-thirds of themembers present.

Since 1789 the House of Represen-tatives has initiated impeachment proceedings against only 13 jurists —although about an equal number ofjudges resigned just before formal action was taken against them. Ofthese 13 cases, only seven resulted in a conviction, which removed themfrom office.

Although outright acts of criminal-ity by those on the bench are few, agray area of misconduct may put offending judges somewhere betweenacceptable and impeachable behavior.What to do with the federal jurist whohears a case despite an obvious conflict of interest, who consistentlydemonstrates biased behavior in the

courtroom, whose personal habitsnegatively affect his or her perform-ance in court? Historically, little has been done in such cases other than issuance of a mild reprimand by colleagues. In recent decades,however, actions have been taken todiscipline judges.

On October 1, 1980, a new statuteof Congress took effect. Titled the Ju-dicial Councils Reform and JudicialConduct and Disability Act, the lawhas two distinct parts. The first partauthorizes the Judicial Council ineach circuit, composed of both ap-peals and trial court judges andpresided over by the chief judge ofthe circuit, to “make all necessary andappropriate orders for the effectiveand expeditious administration ofjustice within its circuit.” The secondpart of the act establishes a statutorycomplaint procedure against judges.Briefly, it permits an aggrieved partyto file a written complaint with theclerk of the appellate court. The chiefjudge then reviews the charge andmay dismiss it if it appears frivolous,or for a variety of other reasons. If thecomplaint seems valid, the chiefjudge must appoint an investigatingcommittee consisting of himself orherself and an equal number of trialand circuit court judges. After an in-quiry the committee reports to thecouncil, which has several options:the judge may be exonerated; if theoffender is a bankruptcy judge ormagistrate, he or she may be re-


moved; and an Article III judge maybe subject to private or public reprimand or censure, certification ofdisability, request for voluntary resig-nation, or prohibition against furthercase assignments. However, removalof an Article III judge is not permit-ted; impeachment is still the only re-course. If the council determines thatthe conduct might constitutegrounds for impeachment, it will no-tify the Judicial Conference, which inturn may transmit the case to theU.S. House of Representatives forconsideration.

Disability of Federal Judges

Perhaps more problematic than re-moving jurists for misconduct is theremoval of those who have becometoo old and infirm to carry out theirjudicial responsibilities effectively.Congress has tried with some successto tempt the more senior judges intoretirement by making it financiallymore attractive to do so. Since 1984federal judges have been permitted to

retire with full pay and benefits underwhat is called the rule of 80; that is,when the sum of a judge’s age andnumber of years on the bench is 80.Congress has also permitted judges togo on senior status instead of accept-ing full retirement. In exchange for areduced caseload they are permittedto retain their office and staff and —equally important — the prestige andself-respect of being an active judge.

Judges often time their resignationsto occur when their party controls thepresidency so that they will be re-placed by a jurist of similar politicaland judicial orientation. A 1990 studyfound that especially since 1954, “ju-dicial retirement/resignation rateshave been strongly influenced by po-litical/ideological considerations, andinfused with partisanship,” thus indi-cating that many jurists view them-selves as part of a policy link betweenthe people, the judicial appointmentprocess, and the subsequent decisionsof the judges and justices. �



Most state laws and

constitutions provide

few rigid conditions for

being a state judge.

The vast majority of

the states do not

require their justices of

the peace or magistrates

to have law degrees,

but such degrees are

virtually required

(either formally or in

practice) for trial and

appellate judges.

Although women constitute a slight majority of theAmerican population and

despite the upsurge in recentdecades in the number of women in the legal profession, women arestill underrepresented on the bench.Those who do serve as state juristsare much more likely to serve at the lower levels of the statejudiciary than on the supremecourts, although this varies greatlyfrom one state to the next. As ofthe mid-1990s, only about 14percent of all state judges werewomen and 6 percent were eitherAfrican American, Hispanic, orAsian American.

State judges, like their federalcounterparts, have generally stayedin the region where they grew upand were educated. About three-fourths of all state jurists were born in the state in which they serve, and less than a third went outof state for their undergraduatedegrees or for their law degrees.This penchant for localism is alsoreflected in the patterns of workexperience that state judges bring tothe bench. For example, of those

QUALIFICATIONS AND BACKGROUNDS OF STATE JUDGES


serving on the state supreme courtbench, only 13 percent have anyprior federal experience, whereas 93 percent have some type of priorstate experience.

Judges tend to be middle-aged whenthey assume the bench. State trialjudges come to the bench at aboutage 46, which corresponds roughlyto the figure of 49 for federal trialjudges. State appellate court judgestend to be slightly older than theirtrial court colleagues when theybecome jurists — about 53, which isapproximately the same as theirfederal equivalents.

In terms of political party affiliation,state judges, whether they be electedor appointed, tend to mirror theparty that dominates in the judge’sstate. Also, the vast majority of statejudges had been politically activebefore assuming the bench, whetherthey were elected to the bench orappointed by a governor.

Over half the state trial judges cometo the bench from the privatepractice of law, and about a quarterwere elevated from a lower courtjudgeship, such as a magistrate’sposition. Of those who practicedlaw, most reported a general practicewithout specialization. About one infive was recruited from the ranks of

district attorneys, and only 3 percentcome from private criminal lawpractice. Of those serving on statesupreme courts, almost two-thirdscame from the ranks of theintermediate appellate courts orfrom the state trial courts.

THE SELECTION PROCESSFOR STATE JUDGES

At the state level a variety ofmethods are used to selectjurists, and each of these has

many permutations. Basically,there are five routes to a judgeship in any one of the 50 states: partisanelection, nonpartisan election,merit selection, gubernatorialappointment, and appointment bythe legislature.

Election of Judges

The election of judges, on either apartisan or a nonpartisan ballot, isthe norm in the states. This methodbecame popular during the time ofPresident Andrew Jackson (1829-37), an era when Americans soughtto democratize the political process.In practice, however, political partyleaders often regard judicialelections as indirect patronage toreward the party faithful. Also,judges who must run for election


are often forced to solicit campaigncontributions from the lawyers andlaw firms that will eventually appearbefore them in court — a potentialsource of conflict of interest. Finally,voter turnout in judicial elections is extremely low. Voters may knowwhom they prefer for president ormember of Congress or statesenator, but they may be unfamiliarwith the persons running for state judgeships.

As part of the Progressive movementat the turn of the 20th century,reformers sought to take some ofthe partisanship out of judicialelections by having judges run on anonpartisan basis. In principle theywould run on their ideas andqualifications, not on the basis ofwhich party they belonged to.But even in these technicallynonpartisan states, the politicalparties endorse individual judicialcandidates and contribute to theircampaigns so that the candidatesacquire identification with onepolitical party or another.

Merit Selection

Merit selection has been in use sincethe early 1900s as a preferredmethod of selecting judges. The firststate fully to adopt such a method

was Missouri in 1940, and ever sincesuch schemes have come to beknown as generic variants of“the Missouri Plan.”

The states with Missouri-type plansuse a combination of elections andappointments. The governorappoints a judge from among severalcandidates recommended by anominating panel of five or morepeople, usually including attorneys(often chosen by the local barassociation), nonlawyers appointedby the governor, and sometimes asenior local judge. Either by law orby implicit agreement, the governorappoints someone from therecommended list. After serving fora short period of time, often a year,the newly appointed judge muststand for a special election, at whichtime he or she in effect runs on hisor her record. (The voters are asked,“Shall Judge X be retained inoffice?”) If the judge’s tenure issupported by the voters, as isvirtually always the case, the judgewill serve for a regular and fairlylong term.

Gubernatorial Appointment andLegislative Appointment

Today, judges are chosen by thegovernor or by the state legislaturein only a handful of states. Whenjudges are appointed by the


governor, politics almost invariablycomes into play. Governors tend toselect individuals who have beenactive in state politics and whoseactivity has benefited either thegovernor personally or thegovernor’s political party or allies.Also, in making judicialappointments the governor oftenbargains with local political leadersor with state legislators whosesupport he or she needs. A governormay also use a judgeship to reward a legislator or local politician whohas given faithful political support in the past.

Only a few states still allow theirlegislators to appoint state judges.Although a variety of criteria may beused in choosing members of thestate supreme courts, when it comesto filling the state trial benches, statelegislators tend to turn to formermembers of the legislature.

THE RETIREMENT ANDREMOVAL OF JUDGES

Judges who are too old or unfit toserve seem to be less of a prob-lem at the state level than at the

federal level. A number of states havemandatory retirement plans.Minimum ages for retirement rangefrom 65 to 75, with 70 being the

most common. Some states havedeclining retirement benefit plansfor judges who serve beyond thedesired tenure; that is, the longerjudges stay on the bench, the lowertheir retirement benefits.

Retirement plans, no matter howeffective in getting the older judge toresign, are of little use against theyounger jurist who is incompetent,corrupt, or unethical. ThroughoutAmerican history the states have used procedures such asimpeachment, recall elections, andconcurrent resolutions of thelegislature to dismiss these judges.These methods were only minimallyeffective, however, either becausethey proved to be politically difficult to put into operation orbecause of their time-consuming,cumbersome nature.

More recently, the states have begun to set up special commissions,often made up of the judgesthemselves, to police their ownmembers. Such commissions are not always effective, however,because judges are often loath toexpose a colleague to public censureand discipline.

C H A P T E R

IMPLEMENTATIONAND

IMPACT OF

JUDICIALPOLICIES

8

A prosecuting attorney argues beforethe Washington State Supreme Court,one of the lower courts normally seenas the enforcers of the policies madeby rulings by appellate courts, notablythe U.S. Supreme Court.

After a court’s decision is reached, avariety of individuals — other judges,public officials, even private citizens— may be called upon to implementthe decision. This chapter looks at the various actors involved in the im-plementation process, their reactionsto judicial policies, and the methodsby which they may respond to acourt’s decision.

Depending upon the nature of thecourt’s ruling, the judicial policy mayhave a very narrow or a very broad im-pact. A suit for damages incurred in anautomobile accident would directly af-fect only the persons involved and per-haps their immediate families. But thefamous Gideon v. Wainwright (1963)decision has directly affected millionsof people in one way or another. InGideon the Supreme Court held thatstates must provide an attorney for in-digent defendants in felony trials.Scores of people — defendants,judges, lawyers, taxpayers — have feltthe effects of that judicial policy.

THE IMPACT OF HIGHER-COURT DECISIONS ONLOWER COURTS

Appellate courts, notably theU.S. Supreme Court, often areviewed as the most likely

courts to be involved in policy mak-ing, while the trial courts are generallyseen as norm enforcers. However,lower-court judges have a great deal ofindependence from the appellatecourts and may be viewed, according

to one study, as “independent actors...who will not follow the lead ofhigher courts unless conditions are fa-vorable for their doing so.”

Lower-Court Discretion

Why do the lower-court judges have somuch discretion when it comes to im-plementing a higher court’s policy? Inpart, the answer may be found in thestructure of the U.S. judicial system.The judiciary has always been charac-terized by independence, decentraliza-tion, and individualism. Federaljudges, for example, are protected bylife tenure and traditionally have beenable to run their courts as they see fit.Disciplinary measures are not at allcommon, and federal judges have his-torically had little fear of impeach-ment. To retain their positions, thestate trial court judges generally haveonly to keep the electorate satisfied.

The discretion exercised by a lower-court judge may also be a product ofthe higher court’s decision itself. Forexample, following the famous schooldesegregation case, Brown v. Board ofEducation of Topeka (1954), theSupreme Court told federal districtjudges, who had the task of enforcingthe ruling, that the public schools wereto make a prompt and reasonable startand then proceed with all deliberatespeed to bring about desegregation.What constitutes a prompt and reasonable start? How rapidly must a school district proceed in order to be moving with all deliberate speed?


CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 161

The Supreme Court did not providespecific answers to these questions.

Although not all High Court decisions are so open to interpreta-tion, a good number of them are. Acourt’s decision may be unclear forseveral reasons. Sometimes the issueor subject matter may be so complexthat it is difficult to fashion a clear policy. In obscenity cases, for instance,the Supreme Court has had little difficulty in deciding that porno-graphic material is not entitled to protection as free speech under theFirst Amendment to the Constitution.Defining obscenity has proven to be another matter, however. Phrases such as “prurient interest,” “patentlyoffensive,” “contemporary communitystandards,” and “without redeemingsocial value” have become common-place in obscenity opinions, but theseterms leave a good deal of room forsubjective interpretation.

Policies established by collegialcourts are often ambiguous becausethe majority opinion is written to accommodate several judges. The ma-jority opinion may also be accompa-nied by several concurring opinions.When this happens, lower courtjudges are left without a clear-cutprecedent to follow. For example,in Furman v. Georgia (1972), theSupreme Court struck down the deathpenalty in several states, but for a variety of reasons. Some justices opposed the death penalty per se, onthe ground that it constituted cruel

and unusual punishment in violation of the Eighth Amendment to the Constitution. Others voted to strikedown the state laws because they wereapplied in a discriminatory manner.The uncertainty created by the 1972decision affected not only lower-courtjudges but also state legislatures.The states passed a rash of widely divergent death penalty statutes andcaused a considerable amount ofnew litigation.

A lower-court judge’s discretion in the implementation process mayalso be affected by the manner inwhich a higher court’s policy is com-municated. Certainly the court fromwhich a case has been appealed will beinformed of the decision. However,systematic, formal efforts are notmade to inform other courts of thedecision or to see that lower-courtjudges have access to a copy of theopinion. The decisions that containthe new judicial policy are made avail-able to the public in printed form oron the Internet, and judges are expect-ed to read them if they have the timeand inclination.

Opinions of the Supreme Court,lower federal courts, and state appel-late courts are available in a largenumber of courthouse, law school,and university libraries. They are alsoincreasingly available on the Internet.This widespread availability does notguarantee that they will be read andclearly understood, however. Manylower-level state judges, such as jus-


tices of the peace and juvenile courtjudges, are nonlawyers who have littleinterest or skill in reading complex judicial decisions. Finally, even thosejudges who have an interest in higher-court decisions and the ability to understand them do not have ade-quate time to keep abreast of all thenew opinions.

Given these problems, how dojudges become aware of upper-courtdecisions? One way is to hear of themthrough lawyers presenting cases inthe lower courts. It is generally as-sumed that the opposing attorneyswill present relevant precedents intheir arguments before the judge.Those judges who have law clerks mayalso rely upon them to search out re-cent decisions from higher courts.

Thus some higher-court policiesare not quickly and strictly enforcedsimply because lower-court judges arenot aware of them. Even those policieswhich lower-court judges are aware ofmay not be so clear to them. Eitherreason contributes to the discretionexercised by lower-court judges placedin the position of having to imple-ment judicial policies.

Interpretation by Lower Courts

One study noted that “important policy announcements almost alwaysrequire interpretation by someoneother than the policy maker.” This is certainly true in the case of judicialpolicies established by appellatecourts. The first exercise of a lower-

court judge’s discretion may be to interpret what the higher court’s decision means.

The manner in which a lower-court judge interprets a policy estab-lished by a higher court depends upon a number of factors. Many policies are not clearly stated. Thusreasonable people may disagree overthe proper interpretation. Even policypronouncements that do not sufferfrom ambiguity, however, are some-times interpreted differently by differ-ent judges.

A judge’s own personal policy pref-erences will also have an effect uponthe interpretation he or she gives to ahigher-court policy. Judges come tothe courts with their own uniquebackground characteristics. Some areRepublican, others are Democrat; onejudge may be more lenient, anotherstrict. They come from different re-gions of the country. Some have beenprosecutors; others have been prima-rily defense lawyers or corporatelawyers. In short, their backgroundsmay influence their own particularpolicy preferences. Thus the lower-court judges may read their own ideasinto a higher-court policy. The resultis that a policy may be enthusiasticallyembraced by some judges yet totallyrejected by others.

Strategies Employed by LowerCourts

Judges who favor and accept a highercourt’s policy will naturally try to en-


force it and perhaps even expandupon it. Some judges even have riskedsocial ostracism and various kinds ofharassment in order to implementpolicies they believed in but that werenot popular in their communities.

Judges who do not like a highercourt’s policy decision may imple-ment it sparingly or only underduress. A judge who basically dis-agrees with a policy established by ahigher court can employ a number ofstrategies. One rarely used strategy isdefiance, whereby a judge simply doesnot apply the higher court’s policy in acase before a lower court.

Such outright defiance is highlyunusual. Other strategies are not soextreme. One is simply to avoid hav-ing to apply the policy. A case may bedisposed of on technical or procedur-al grounds so that the judge does nothave to rule on the actual merits of thecase. It may be determined, for exam-ple, that the plaintiff does not havestanding to sue or that the case has become moot because the issue wasresolved before the trial commenced.Lower-court judges sometimes avoidaccepting a policy by declaring a portion of the higher-court decisionto be “dicta” (Latin, meaning an authoritative declaration). Dicta refersto the part of the opinion that doesnot contribute to the central logic of the decision. It may be useful asguidance but is not seen as binding.What constitutes dicta is open to varying interpretations.

Another strategy used by judgeswho are in basic disagreement with a judicial policy is to apply it as narrowly as possible. One method is for the lower-court judge to rulethat a precedent is not controlling because factual differences exist be-tween the higher-court case and thecase before the lower courts. That is,because the two cases may be distin-guished, the precedent does not haveto be followed.

Influences on Lower-Court Judges

At times the lower courts must decidecases for which no precise standardshave been provided by the highercourts. Whenever this occurs, lower-court judges must turn elsewhere for guidance in deciding a case beforethem. One study notes that lower-court judges in such a position “may take their cues on how to decidea particular case from a wide varietyof factors including their party affiliation, their ideology, or their regional norms.”

CONGRESSIONALINFLUENCES ON THEIMPLEMENTATION PROCESS

Once a federal judicial decisionis made, Congress can offer avariety of responses: It may

aid or hinder the implementation of adecision. In addition, it can alter acourt’s interpretation of the law. Fi-nally, Congress can mount an attackon an individual judge.


In the course of deciding cases, thecourts are often called upon to inter-pret federal statutes. On occasion thejudicial interpretation may differ fromwhat a majority in Congress intended.When that situation occurs, Congresscan change the statute in new legisla-tion that in effect overrules the court’sinitial interpretation. However, thevast majority of the federal judiciary’sstatutory decisions are not changed by Congress.

Besides ruling on statutes, the fed-eral courts interpret the Constitution.Congress has two methods to reverseor alter the effects of a constitutionalinterpretation it does not like. First,Congress can respond with anotherstatute designed to avoid the constitu-tional problems. Second, a constitu-tional decision can be overturned directly by an amendment to the U.S. Constitution. Although manysuch amendments have been intro-

President Lyndon B. Johnson, after signing into law the Civil Rights Act of 1964, reaches toshake hands with Dr. Martin Luther King, Jr. This law was an example of Congress’ key role inimplementing a decision by the Supreme Court, in this instance, school desegregation policy.


duced over the years, it is not easy to obtain the necessary two-thirdsvote in each house of Congress to propose the amendment and thenachieve ratification by three-fourths of the states. Only four SupremeCourt decisions in the history ofthe Court have been overturned byconstitutional amendments.

Congressional attacks on the fed-eral courts in general and on certainjudges in particular are anothermethod of responding to judicial deci-sions. These attacks may take the formof verbal denouncements by a mem-ber of Congress, threats of impeach-ment of sitting judges, or more thorough investigations of the judicialphilosophies of potential nominees tothe federal bench.

Congress and the federal courts arenot natural adversaries, however. Re-taliations against the federal judiciaryare fairly rare, and often the twobranches work in harmony towardsimilar policy goals. For example,Congress played a key role in imple-menting the Supreme Court’s schooldesegregation policy by enacting theCivil Rights Act of 1964, which em-powered the Justice Department toinitiate suits against school districtsthat failed to comply with the Brown v.Board of Education decision. Title VIof the Act also provided a potentweapon in the desegregation struggleby threatening the denial of federalfunds to schools guilty of segregation.In 1965 Congress further solidified its

support for a policy of desegregatedpublic schools by passing the Elemen-tary and Secondary Education Act.This act gave the federal government amuch larger role in financing publiceducation and thus made the threat tocut off federal funds a serious problemfor many segregated school districts.Such support from Congress was sig-nificant because the likelihood ofcompliance with a policy is increasedwhen there is unity between branchesof government.

EXECUTIVE BRANCHINFLUENCES ON THEIMPLEMENTATION PROCESS

At times the president may becalled upon directly to imple-ment a judicial decision. An

example is United States v. Nixon(1974). A Senate committee investiga-tion into the cover-up of a break-in atthe Democratic Party headquarters inthe Watergate Hotel in Washington,D.C., led directly to high governmentofficials working close to the presi-dent. It was also revealed during theinvestigation that President RichardNixon had installed an automatic taping system in the Oval Office. LeonJaworski, who had been appointedspecial prosecutor to investigate theWatergate affair, subpoenaed certaintapes that he felt might provide evidence needed in his prosecution ofhigh-ranking officials. Nixon refusedto turn over the tapes on grounds ofexecutive privilege and the need for


confidentiality in discussions leadingto presidential decisions. The SupremeCourt’s decision instructed the presi-dent to surrender the subpoenaedtapes to Judge John J. Sirica, who was handling the trials of the govern-ment officials. Nixon did comply withthe High Court’s directive and thus a decision was implemented thatquickly led to his downfall. Within twoweeks he resigned from the presiden-cy, in August 1974.

Even when not directly involved inthe enforcement of a judicial policy,the president may be able to influenceits impact. Because of the status andvisibility of the position, a president,simply by words and actions, may en-courage support for, or resistance to, anew judicial policy.

A president can propose legislationthat directly affects the courts. Presi-dent Franklin D. Roosevelt, for in-stance, unsuccessfully urged Congressto increase the size of the SupremeCourt so he could “pack” it with jus-tices who supported his administra-tion’s legislative agenda.

The appointment power also givesthe president an opportunity to influ-ence federal judicial policies, as thepresident appoints all federal judges,with the advice and consent ofthe Senate.

A president can influence judicialpolicy making through the activities ofthe Justice Department, a part of theexecutive branch. The attorney gener-al and staff subordinates can empha-

size specific issues according to theoverall policy goals of the president.The other side of the coin, however, isthat the Justice Department may, at itsdiscretion, de-emphasize specific poli-cies by not pursuing them vigorouslyin the courts.

Another official who is in a position to influence judicial policymaking is the solicitor general. Histor-ically, this official has been seen ashaving dual responsibility to both thejudicial and executive branches. Be-cause of the solicitor general’s close re-lationship with the Supreme Court,this official is sometimes referred to asthe “tenth justice.” The solicitor gener-al is often seen as a counselor who ad-vises the Court about the meaning offederal statutes and the Constitution.The solicitor general also determineswhich of the cases involving the feder-al government as a party will be appealed to the Supreme Court. Fur-thermore, he or she may file an amicus curiae brief urging the Court to grantor deny another litigant’s certioraripetition or supporting or opposing aparticular policy being urged upon theHigh Court.

Many judicial decisions are actuallyimplemented by the various depart-ments, agencies, bureaus, and com-missions of the executive branch. Forexample, the Supreme Court decisionin Frontiero v. Richardson (1973)called upon the U.S. Air Force to playthe major implementation role. TheFrontiero case questioned congres-


sional statutes that provided benefitsfor married male members of the AirForce but did not provide similar ben-efits for married female members.Lieutenant Sharron Frontiero chal-lenged the policy on the ground that itconstituted sexual discrimination. Afederal district court in Alabama issued a decision upholding the AirForce policy. Lieutenant Frontiero ap-pealed to the Supreme Court, whichoverturned the lower court decisionand required the Air Force to imple-ment a new policy.

OTHER IMPLEMENTERS

The implementation of judicialpolicies is often performed bystate as well as federal officials.

Many of the Supreme Court’s criminaldue process decisions, such as Gideonv. Wainwright and Miranda v. Arizona(1966), have been enforced by statecourt judges and other state officials.State and local police officers, for instance, have played a major role inimplementing the Miranda require-ment that criminal suspects must beadvised of their rights. The Gideonruling that an attorney must be pro-vided at state expense for indigent defendants in felony trials has beenimplemented by public defenders,local bar associations, and individualcourt-appointed lawyers.

State legislators and executives are also frequently drawn into the implementation process. A judge whodetermines that a wrong has been

committed may choose from a varietyof options to remedy the wrong.Among the more common options are process remedies, performancestandards, and specified remedial actions. Process remedies provide forsuch things as advisory committees,citizen participation, educational pro-grams, evaluation committees, disputeresolution procedures, and specialmasters to address a problem andcome up with a solution. The remediesdo not specify a particular form ofaction. Performance standards call forspecific remedies — for example, acertain number of housing units orschools or a certain level of staffing in a prison or mental health facility.The specific means of attaining thesegoals are left to the discretion of theofficials named in the suit. Examplesof specified remedial actions areschool busing, altered school atten-dance zones, and changes in the sizeand condition of prison cells or hospi-tal rooms. This type of remedy pro-vides the defendant with no flexibilityconcerning the specific remedy or themeans of attaining it.

Implementation of these remedialdecrees often devolves, at least partial-ly, to the state legislatures. An ordercalling for a certain number of prisoncells or a certain number of guards inthe prison system might require newstate expenditures, which the legisla-ture would have to fund. Similarly, anorder to construct more modern men-tal health facilities or provide more


modern equipment would mean anincrease in state expenditures. Gover-nors would also be involved in carry-ing out these types of remedial decreesbecause they typically are heavily in-volved in state budgeting procedures.Also, they may sign or veto laws.

Sometimes judges appoint certainindividuals to assist in carrying out theremedial decree. Special masters areusually given some decision-makingauthority. Court-appointed monitorsare also used in some situations, butthey do not relieve the judge of deci-sion-making responsibilities. Instead,the monitor is an information gather-er who reports on the defendant’sprogress in complying with the reme-dial decree. When orders are not implemented or when barriers ofone kind or another block progress in providing a remedy, a judge mayname someone as a receiver and empower him or her to disregard nor-mal organizational barriers to get thejob done.

One group of individuals has beendeeply involved in implementing judi-cial policies: the thousands of menand women who constitute schoolboards throughout the country. Twomajor policy areas stand out as havingembroiled school board members inconsiderable controversy as they facedthe task of trying to carry out SupremeCourt policy.

First, when the High Court ruled in 1954 that segregation has no place in the public schools, school

boards and school superintendents,along with federal district judges, borethe brunt of implementing that deci-sion. Their role in this process has affected the lives of millions of school-children, parents, and taxpayers allover America.

The second area that has involvedschool boards is the Supreme Court’spolicies on religion in the publicschools. In Engel v. Vitale (1962), theCourt held unconstitutional a NewYork requirement that a state-writtenprayer be recited daily in the publicschools. Some school districts re-sponded to the decision by requiringinstead the recitation of a Bible verseor the Lord’s Prayer. Their reasoningwas that since the state did not writethe Lord’s Prayer or the Bible, theywere not violating the Court’s policy.A year later, the Supreme Court struckdown these new practices, pointingout that the constitutional violationlay in endorsing the religious activityand its determination did not dependon whether the state had written the prayer.

THE IMPACT OF JUDICIALPOLICIES

The ultimate importance ofthe Supreme Court’s decisionsdepends primarily on their

impact on American society as awhole. A few policies that have hadsignificant effects are in the areas ofracial equality, criminal due process,and abortion.


Racial Equality

Many point to the Supreme Court’sdecision in Brown v. Board of Educa-tion as the impetus for the drive forracial equality in the United States.However, Congress and the executivebranch were also involved in theprocess of ensuring implementationof the decision’s desegregation policy.Still, the courts initiated the pursuitfor a national policy of racial equalitywith the Brown ruling.

In the beginning, the court deci-sions were often vague, leading to eva-sion of the new policy. The SupremeCourt justices and many lower federaljudges were persistent, however, andkept the policy of racial equality on

the national political agenda. Theirpersistence paid off with passage ofthe 1964 Civil Rights Act, 10 yearsafter the Brown decision. That act,which had the strong support ofPresidents John F. Kennedy (1961-63)and Lyndon B. Johnson (1963-69),squarely placed Congress and thepresident on record as being support-ive of racial equality in America.

One other aspect of the federal ju-diciary’s importance in the policy-making process is illustrated by theBrown decision and the cases that fol-lowed it. Although the courts stoodvirtually alone in the quest for racialequality for several years, their deci-sions did not go unnoticed. Charles A.

Virginia Military Institute cadets say grace before their evening meal of April 2, 2001, shortlyafter the American Civil Liberties Union filed suit to force the school to drop the prayers. The role of religion in public schools has been one of the most disputed issues before the U.S.court system in the past 40 years.


Johnson and Bradley C. Canon arguein Judicial Policies: Implementationand Impact that the Brown decision“was a highly visible Court decision, ajudicial attempt to generate one of thegreatest social reforms in Americanhistory. And certainly in the years thatfollowed, African Americans and theirallies brought considerable pressureson other governmental bodies to de-segregate the schools. Indeed, thepressures soon went far beyondschools to demand integration of allaspects of American life.”

Criminal Due Process

Judicial policy making in the area ofcriminal due process is most closelyassociated with Earl Warren’s tenureas U.S. chief justice (1953-69). Speak-ing of this era, Archibald Cox, a for-mer solicitor general, said, “Never hasthere been such a thorough-going re-form of criminal procedure within soshort a time.” The Warren Court deci-sions were aimed primarily at chang-ing the procedures followed by thestates in dealing with criminal defen-dants. By the time Warren left theSupreme Court, new policies hadbeen established to deal with a widerange of activities; among the morefar-reaching were Mapp v. Ohio(1961), Gideon v. Wainwright, and Mi-randa v. Arizona.

The Mapp decision extended theexclusionary rule, which had appliedto the national government for anumber of years, to the states. Thisrule required state courts to excludefrom trial evidence that had been illegally seized by the police. Althoughsome police departments, especially in major urban areas, have tried to establish specific guidelines fortheir officers to follow in obtainingevidence, such efforts have not beenuniversal. Because of variations in police practices and differing lower-court interpretations of what con-stitutes a valid search and seizure,implementation of Mapp has not been consistent throughout the United States.

After Clarence Earl Gideon petitioned theSupreme Court that he had not had legalrepresentation before a Florida court, theJustices ruled in 1963 that indigentdefendants must be provided attorneyswhen they go to trial in felony cases.


Perhaps even more important inreducing the expected impact of Mappwas the lack of solid support for theexclusionary rule among the SupremeCourt justices. The decision was not aunanimous one to begin with, andover the years some justices have been openly critical of the exclusion-

ary rule. Furthermore, subsequentSupreme Court decisions have broad-ened the scope of legal searches, thuslimiting the applicability of the rule.

The Gideon v. Wainwright decisionheld that indigent defendants must beprovided attorneys when they go totrial in a felony case in the state courts.

U.S. Chief Justice Earl Warren, seen here in a 1961 photo. During his tenure, 1953-69, theSupreme Court sparked major reforms in criminal procedure through landmark decisions,including Gideon v. Wainwright and Miranda v. Arizona.


Many states routinely provided attor-neys in such trials even before theCourt’s decision. The other statesbegan to comply in a variety of ways.Public defender programs were estab-lished in many regions. In other areas,local bar associations cooperated withjudges to implement some method of complying with the SupremeCourt’s new policy.

The impact of the Gideon decisionis clearer and more consistent thanthat of Mapp. One reason, no doubt, isthe fact that many states had alreadyimplemented the policy called for byGideon. It was simply more widely ac-cepted than the policy established byMapp. The policy announced inGideon was also more sharply definedthan the one in Mapp. Although theCourt did not specify whether a publicdefender or a court-appointed lawyermust be provided, it is still clear thatthe indigent defendant must have thehelp of an attorney. Also, the SupremeCourt under the next chief justice,Warren Burger (1969-86), did not re-treat from the Warren Court’s policyof providing an attorney for indigentdefendants as it did in the search andseizure area addressed by Mapp. Allthese factors add up to a more recog-nizable impact for the policy an-nounced in Gideon.

In Miranda v. Arizona the SupremeCourt went a step further and ruledthat police officers must advise sus-pects taken into custody of their con-stitutional rights, one of which is to

have an attorney present during ques-tioning. Suspects must also be advisedthat they have a right to remain silentand that any statement they make maybe used in court; that if they cannotafford an attorney, one will be provid-ed at state expense; and that they havethe right to stop answering questionsat any time. These requirements are soclearly stated that police departmentshave actually copied them down oncards for officers to carry in their shirtpockets. Then, when suspects aretaken into custody, the police officerssimply remove the card and read thesuspects their rights.

In terms of whether police officers read the Miranda rights topersons they arrest, there has been ahigh level of compliance with theSupreme Court policy. Some re-searchers, however, have questionedthe impact of Miranda because of themethod by which suspects may be ad-vised of their rights. It is one thing toread to a person from a card; it is an-other to explain what is meant by theHigh Court’s requirements and thentry to make the suspect understandthem. Looked at in this manner, theimpact of the policy announced in Miranda is not quite as clear.

The Burger Court did not show aninclination to lend its solid support tothe Warren Court’s Miranda policy.Although Miranda has not been over-ruled, its impact has been limitedsomewhat. In Harris v. New York(1971), for example, the Burger Court


ruled that statements made by an indi-vidual who had not been given the Mi-randa warning could be used to chal-lenge the credibility of his testimony attrial. Then, the Court, under the lead-ership of Chief Justice William Rehn-quist (1986- ), ruled in Davis v. UnitedStates (1994) that police are not re-quired to stop questioning a suspectwho makes an ambiguous request tohave an attorney present.

Congress reacted to Miranda, twoyears after the decision, by enacting a statute that in essence made the admissibility of a suspect’s statementsturn solely on whether they were madevoluntarily. The statute received littleattention until 1999 when the FourthCircuit Court of Appeals, in a case involving an alleged bank robber whomoved to suppress a statement hemade to the FBI on grounds that hehad not received “Miranda warnings”before being interrogated, held thatthe statute was satisfied because hisstatement was voluntary. The court of appeals decision raised the question whether the congressionalstatute or the High Court’s Mirandadecision should be followed. On June 26, 2000, the U.S. Supreme Court held that Miranda, being a constitutional decision of the Court,could not in effect be overruled by an act of Congress. In other words,the Miranda decision still governs theadmissibility of statements made during custodial interrogation in stateand federal courts.

In sum, the impact of the SupremeCourt’s criminal justice policies hasbeen mixed, for several reasons. Insome instances ambiguity is a prob-lem. In other cases, less than solid sup-port for the policy may be evidentamong justices or support erodeswhen one Court replaces another. Allthese variables translate into greaterdiscretion for the implementers.

Abortion

In Roe v. Wade (1973) the SupremeCourt ruled that a woman has an absolute right to an abortion duringthe first trimester of pregnancy; that a state may regulate the abortion procedure during the second trimesterin order to protect the mother’shealth; and that, during the thirdtrimester, the state may regulate oreven prohibit abortions, except wherethe life or health of the mother is endangered.

The reaction to this decision wasimmediate, and primarily negative. Itcame in the form of letters to individ-ual justices, public speeches, the intro-duction of resolutions in Congress,and the advocacy of “right to life”amendments in Congress. Given thecontroversial nature of the Court’s de-cision, hospitals did not wholeheart-edly offer to support the decision bychanging their abortion policies.

Reaction to the Court’s abortionpolicy has not only continued but alsohas moved into new areas. Recentpresidential elections have seen the


two major party platforms and can-didates take opposing stands on theabortion issue. Democratic platformsand nominees have generally ex-pressed support for Roe v. Wade,whereas the Republican platforms and contenders have noted oppositionto the Supreme Court’s decision.

Congress has also been a hotbed ofactivity in response to the SupremeCourt’s abortion decision. Unable tosecure passage of a constitutionalamendment to overturn Roe v. Wade,antiabortion — also known as pro-life — forces successfully lobbied for

amendments to appropriations billspreventing the expenditure of federalfunds for elective abortions. In 1980the Supreme Court, in a five-to-fourvote, upheld the constitutionality ofsuch a prohibition.

Most of the legislation in the after-math of the Roe decision has been atthe state level. One study reports thatwithin two years of the decision 32states had passed 62 laws relating toabortion, most aimed at limiting ac-cess to abortions, regulating abortionprocedures, or prohibiting abortionsunder certain conditions.

Since the Supreme Court’s Roe v. Wade abortion ruling, the battles between supporters and opponents of abortion are being fought in Congress, at all levels of the judiciary, and inthe political arena.


Interest group activity increaseddramatically after the Roe decision.Groups opposing the decision oftenorganized public demonstrationsagainst the decision and later began topicket clinics. Interest groups that sup-port the Roe v. Wade decision havebeen more likely to focus their effortson the courts.

While battles over the abortionissue were being fought in the courts,political campaigns, and legislativearenas, others preferred a more directapproach, demonstrating at andblockading abortion centers. TheSupreme Court has ruled, however,that reasonable time, place, and man-ner restrictions may be placed on suchdemonstrations. That position wasreaffirmed on June 28, 2000, when theCourt upheld a Colorado statute making it unlawful for a person toknowingly approach another personwithout that person’s consent to handout a leaflet, display a sign, or orallyprotest within 100 feet of a health care facility.

Conclusions

Some judicial policies have a greaterimpact on society than others. The judiciary plays a greater role in de-veloping the nation’s policies than the constitutional framers envisioned.However, “American courts are not all-powerful institutions,” writes Gerald N. Rosenberg in Hollow Hope:Can Courts Bring About Social Change?“They were designed with severe

limitations and placed in a politicalsystem of divided powers. To ask themto produce significant social reforms is to forget their history and ignoretheir constraints.”

Within this complex framework ofcompeting political and social de-mands and expectations is a policy-making role for the courts. Becausethe other two branches of governmentare sometimes not receptive to the demands of certain segments of socie-ty, the only alternative for those indi-viduals or groups is to turn to thecourts. Civil rights organizations, forexample, made no real headway untilthey found the Supreme Court to be a supportive forum for their schooldesegregation efforts.

As civil rights groups attained some success in the federal courts,others were encouraged to employ lit-igation as a strategy. For example,women’s rights supporters followed apattern established by minoritygroups when they began taking theirgrievances to the courts. What beganas a more narrow pursuit for racialequality was thus broadened to a questfor equality for other disadvantagedgroups in society.

Clearly, then, the courts can an-nounce policy decisions that attractnational attention and perhaps stressthe fact that other policy makers havefailed to act. In this way the judiciarymay invite the other branches to exercise their policy-making powers.Follow-up decisions indicate the


judiciary’s determination to pursue aparticular policy and help keep alivethe invitation for other policy makersto join in the endeavor.

All things considered, the courtsseem best equipped to develop andimplement narrow policies that areless controversial in nature. The policyestablished in the Gideon case pro-vides a good example. The decisionthat indigent defendants in state crim-inal trials must be provided with anattorney did not meet any strong

outcries of protest. Furthermore, itwas a policy that primarily requiredthe support of judges and lawyers; ac-tion by Congress and the presidentwas not really necessary. A policy ofequality for all segments of society,on the other hand, is so broad andcontroversy-laden that it must movebeyond the judiciary. As it does so,the courts become simply one part, al-beit an important part, of the policy-making process. �

177

The following text of the United States Constitution reflects the originalspelling and usage. Brackets [ ] indicate parts that have been changed or setaside by amendments.

PREAMBLE:

We the People of the United States, in Order to form a more perfectUnion, establish Justice, insure domestic Tranquility, provide for thecommon defence, promote the general Welfare, and secure the Blessings ofLiberty to ourselves and our Posterity, do ordain and establish thisConstitution for the United States of America.

ARTICLE. I.

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of theUnited States, which shall consist of a Senate and House of Representatives.

Section. 2.

The House of Representatives shall be composed of Members chosen everysecond Year by the People of the several States, and the Electors in each Stateshall have the Qualifications requisite for Electors of the most numerousBranch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age oftwenty five Years, and been seven Years a Citizen of the United States, andwho shall not, when elected, be an Inhabitant of that State in which he shallbe chosen.

Representatives and direct Taxes shall be apportioned among the severalStates [which may be included within this Union, according to theirrespective Numbers, which shall be determined by adding to the wholeNumber of free Persons, including those bound to Service for a Term ofYears, and excluding Indians not taxed, three fifths of all other Persons.] The

177

THE CONSTITUTION OF THE UNITED STATES


actual Enumeration shall be made within three Years after the first Meeting ofthe Congress of the United States, and within every subsequent Term of tenYears, in such Manner as they shall by Law direct. The number ofRepresentatives shall not exceed one for every thirty Thousand, but each Stateshall have at Least one Representative; and until such enumeration shall bemade, the State of New Hampshire shall be entitled to chuse three,Massachusetts eight, Rhode-Island and Providence Plantations one,Connecticut five, New-York six, New Jersey four, Pennsylvania eight,Delaware one, Maryland six, Virginia ten, North Carolina five, SouthCarolina five, and Georgia three.

When vacancies happen in the Representation from any State, the ExecutiveAuthority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers;and shall have the sole Power of Impeachment.

Section. 3.

The Senate of the United States shall be composed of two Senators from eachState, [chosen by the Legislature thereof,] for six Years; and each Senator shallhave one Vote.

Immediately after they shall be assembled in Consequence of the firstElection, they shall be divided as equally as may be into three Classes. TheSeats of the Senators of the first Class shall be vacated at the Expiration of thesecond Year, of the second Class at the Expiration of the fourth Year, and ofthe third Class at the Expiration of the sixth Year; so that one third may bechosen every second Year; [and if Vacancies happen by Resignation, orotherwise, during the Recess of the Legislature of any State, the Executivethereof may make temporary Appointments until the next Meeting of theLegislature, which shall then fill such Vacancies.]

No Person shall be a Senator who shall not have attained to the Age of thirtyYears, and been nine Years a Citizen of the United States, and who shall not,when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, butshall have no Vote, unless they be equally divided.

179THE CONSTITUTION OF THE UNITED STATES 179

The Senate shall chuse their other Officers, and also a President pro tempore,in the Absence of the Vice President, or when he shall exercise the Office ofPresident of the United States.

The Senate shall have the sole Power to try all Impeachments. When sittingfor that Purpose, they shall be on Oath or Affirmation. When the President ofthe United States is tried, the Chief Justice shall preside: And no Person shallbe convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removalfrom Office, and disqualification to hold and enjoy any Office of honor, Trustor Profit under the United States: but the Party convicted shall neverthelessbe liable and subject to Indictment, Trial, Judgment and Punishment,according to Law.

Section. 4.

The Times, Places and Manner of holding Elections for Senators andRepresentatives, shall be prescribed in each State by the Legislature thereof;but the Congress may at any time by Law make or alter such Regulations,[except as to the Places of chusing Senators.]

The Congress shall assemble at least once in every Year, [and such Meeting shall be on the first Monday in December,] unless they shall by Lawappoint a different Day.

Section. 5.

Each House shall be the Judge of the Elections, Returns and Qualifications ofits own Members, and a Majority of each shall constitute a Quorum to doBusiness; but a smaller Number may adjourn from day to day, and may beauthorized to compel the Attendance of absent Members, in such Manner,and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Membersfor disorderly Behaviour; and, with the Concurrence of two thirds, expel aMember.


Each House shall keep a Journal of its Proceedings, and from time to timepublish the same, excepting such Parts as may in their Judgment requireSecrecy; and the Yeas and Nays of the Members of either House on anyquestion shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent ofthe other, adjourn for more than three days, nor to any other Place than thatin which the two Houses shall be sitting.

Section. 6.

The Senators and Representatives shall receive a Compensation for theirServices, to be ascertained by Law, and paid out of the Treasury of the UnitedStates. They shall in all Cases, except Treason, Felony and Breach of thePeace, be privileged from Arrest during their Attendance at the Session oftheir respective Houses, and in going to and returning from the same; and forany Speech or Debate in either House, they shall not be questioned in anyother Place.

No Senator or Representative shall, during the Time for which he was elected,be appointed to any civil Office under the Authority of the United States,which shall have been created, or the Emoluments whereof shall have beenencreased during such time; and no Person holding any Office under theUnited States, shall be a Member of either House during his Continuance inOffice.

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives;but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and theSenate, shall, before it become a Law, be presented to the President of theUnited States; If he approve he shall sign it, but if not he shall return it, withhis Objections to that House in which it shall have originated, who shall enterthe Objections at large on their Journal, and proceed to reconsider it. If aftersuch Reconsideration two thirds of that House shall agree to pass the Bill, itshall be sent, together with the Objections, to the other House, by which it


shall likewise be reconsidered, and if approved by two thirds of that House, itshall become a Law. But in all such Cases the Votes of both Houses shall bedetermined by yeas and Nays, and the Names of the Persons voting for andagainst the Bill shall be entered on the Journal of each House respectively. Ifany Bill shall not be returned by the President within ten Days (Sundaysexcepted) after it shall have been presented to him, the Same shall be a Law, inlike Manner as if he had signed it, unless the Congress by their Adjournmentprevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate andHouse of Representatives may be necessary (except on a question ofAdjournment) shall be presented to the President of the United States; andbefore the Same shall take Effect, shall be approved by him, or beingdisapproved by him, shall be repassed by two thirds of the Senate and Houseof Representatives, according to the Rules and Limitations prescribed in theCase of a Bill.

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts andprovide for the common Defence and general Welfare of the United States;but all Duties, Imposts and Excises shall be uniform throughout the UnitedStates;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States,and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on thesubject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix theStandard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and currentCoin of the United States;


To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limitedTimes to Authors and Inventors the exclusive Right to their respectiveWritings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, andOffences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rulesconcerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Useshall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and navalForces;

To provide for calling forth the Militia to execute the Laws of the Union,suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and forgoverning such Part of them as may be employed in the Service of the UnitedStates, reserving to the States respectively, the Appointment of the Officers,and the Authority of training the Militia according to the disciplineprescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District(not exceeding ten Miles square) as may, by Cession of particular States, andthe Acceptance of Congress, become the Seat of the Government of theUnited States, and to exercise like Authority over all Places purchased by theConsent of the Legislature of the State in which the Same shall be, for theErection of Forts, Magazines, Arsenals, dock-Yards, and other needfulBuildings;—And


To make all Laws which shall be necessary and proper for carrying intoExecution the foregoing Powers, and all other Powers vested by thisConstitution in the Government of the United States, or in any Departmentor Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States nowexisting shall think proper to admit, shall not be prohibited by the Congressprior to the Year one thousand eight hundred and eight, but a Tax or dutymay be imposed on such Importation, not exceeding ten dollars for eachPerson.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unlesswhen in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, [or other direct,] Tax shall be laid, unless in Proportion to theCensus or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue tothe Ports of one State over those of another: nor shall Vessels bound to, orfrom, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence ofAppropriations made by Law; and a regular Statement and Account of theReceipts and Expenditures of all public Money shall be published from timeto time.

No Title of Nobility shall be granted by the United States: And no Personholding any Office of Profit or Trust under them, shall, without the Consentof the Congress, accept of any present, Emolument, Office, or Title, of anykind whatever, from any King, Prince, or foreign State.


Section. 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Lettersof Marque and Reprisal; coin Money; emit Bills of Credit; make any Thingbut gold and silver Coin a Tender in Payment of Debts; pass any Bill ofAttainder, ex post facto Law, or Law impairing the Obligation of Contracts, orgrant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts orDuties on Imports or Exports, except what may be absolutely necessary forexecuting it’s inspection Laws: and the net Produce of all Duties and Imposts,laid by any State on Imports or Exports, shall be for the Use of the Treasury ofthe United States; and all such Laws shall be subject to the Revision andControul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage,keep Troops, or Ships of War in time of Peace, enter into any Agreement orCompact with another State, or with a foreign Power, or engage in War,unless actually invaded, or in such imminent Danger as will not admit ofdelay.

ARTICLE. II.

Section. 1.

The executive Power shall be vested in a President of the United States ofAmerica. He shall hold his Office during the Term of four Years, and, togetherwith the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof maydirect, a Number of Electors, equal to the whole Number of Senators andRepresentatives to which the State may be entitled in the Congress: but noSenator or Representative, or Person holding an Office of Trust or Profitunder the United States, shall be appointed an Elector.

[The Electors shall meet in their respective States, and vote by Ballot for twoPersons, of whom one at least shall not be an Inhabitant of the same Statewith themselves. And they shall make a List of all the Persons voted for, and of


the Number of Votes for each; which List they shall sign and certify, andtransmit sealed to the Seat of the Government of the United States, directedto the President of the Senate. The President of the Senate shall, in thePresence of the Senate and House of Representatives, open all the Certificates,and the Votes shall then be counted. The Person having the greatest Numberof Votes shall be the President, if such Number be a Majority of the wholeNumber of Electors appointed; and if there be more than one who have suchMajority, and have an equal Number of Votes, then the House ofRepresentatives shall immediately chuse by Ballot one of them for President;and if no Person have a Majority, then from the five highest on the List thesaid House shall in like Manner chuse the President. But in chusing thePresident, the Votes shall be taken by States, the Representation from eachState having one Vote; A quorum for this Purpose shall consist of a Memberor Members from two thirds of the States, and a Majority of all the Statesshall be necessary to a Choice. In every Case, after the Choice of thePresident, the Person having the greatest Number of Votes of the Electorsshall be the Vice President. But if there should remain two or more who haveequal Votes, the Senate shall chuse from them by Ballot the Vice President.]

The Congress may determine the Time of chusing the Electors, and the Dayon which they shall give their Votes; which Day shall be the same throughoutthe United States.

No Person except a natural born Citizen, or a Citizen of the United States, atthe time of the Adoption of this Constitution, shall be eligible to the Office ofPresident; neither shall any person be eligible to that Office who shall nothave attained to the Age of thirty five Years, and been fourteen Years aResident within the United States.

In Case of the Removal of the President from Office, or of his Death,Resignation, or Inability to discharge the Powers and Duties of the saidOffice, the Same shall devolve on the Vice President, and the Congress may byLaw provide for the Case of Removal, Death, Resignation or Inability, both ofthe President and Vice President, declaring what Officer shall then act asPresident, and such Officer shall act accordingly, until the Disability beremoved, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation,which shall neither be increased nor diminished during the Period for which


he shall have been elected, and he shall not receive within that Period anyother Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the followingOath or Affirmation: — “I do solemnly swear (or affirm) that I will faithfullyexecute the Office of President of the United States, and will to the best of myAbility, preserve, protect and defend the Constitution of the United States.”

Section. 2.

The President shall be Commander in Chief of the Army and Navy of theUnited States, and of the Militia of the several States, when called into theactual Service of the United States; he may require the Opinion, in writing, ofthe principal Officer in each of the executive Departments, upon any Subjectrelating to the Duties of their respective Offices, and he shall have Power togrant Reprieves and Pardons for Offences against the United States, except inCases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, tomake Treaties, provided two thirds of the Senators present concur; and heshall nominate, and by and with the Advice and Consent of the Senate, shallappoint Ambassadors, other public Ministers and Consuls, Judges of thesupreme Court, and all other Officers of the United States, whoseAppointments are not herein otherwise provided for, and which shall beestablished by Law: but the Congress may by Law vest the Appointment ofsuch inferior Officers, as they think proper, in the President alone, in theCourts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happenduring the Recess of the Senate, by granting Commissions which shall expireat the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State ofthe Union, and recommend to their Consideration such Measures as he shalljudge necessary and expedient; he may, on extraordinary Occasions, conveneboth Houses, or either of them, and in Case of Disagreement between them,with Respect to the Time of Adjournment, he may adjourn them to such


Time as he shall think proper; he shall receive Ambassadors and other publicMinisters; he shall take Care that the Laws be faithfully executed, and shallCommission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shallbe removed from Office on Impeachment for, and Conviction of, Treason,Bribery, or other high Crimes and Misdemeanors.

ARTICLE. III.

Section. 1.

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 ordainand establish. The Judges, both of the supreme and inferior Courts, shall holdtheir Offices during good Behaviour; and shall, at stated Times, receive fortheir Services, a Compensation, which shall not be diminished during theirContinuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising underthis Constitution, the Laws of the United States, and Treaties made, or whichshall be made, under their Authority;— to all Cases affecting Ambassadors,other public Ministers and Consuls;— to all Cases of admiralty and maritimeJurisdiction;— to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— [between a State and Citizensof another State;]— between Citizens of different States,— between Citizensof the same State claiming Lands under Grants of different States, and betweena State, or the Citizens thereof, and foreign States, [Citizens or Subjects.]

In all Cases affecting Ambassadors, other public Ministers and Consuls, andthose in which a State shall be Party, the supreme Court shall have originalJurisdiction. In all the other Cases before mentioned, the supreme Court shallhave appellate Jurisdiction, both as to Law and Fact, with such Exceptions,and under such Regulations as the Congress shall make.


The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; andsuch Trial shall be held in the State where the said Crimes shall have beencommitted; but when not committed within any State, the Trial shall be atsuch Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War againstthem, or in adhering to their Enemies, giving them Aid and Comfort. NoPerson shall be convicted of Treason unless on the Testimony of twoWitnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but noAttainder of Treason shall work Corruption of Blood, or Forfeiture exceptduring the Life of the Person attainted.

ARTICLE. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records,and judicial Proceedings of every other State. And the Congress may bygeneral Laws prescribe the Manner in which such Acts, Records andProceedings shall be proved, and the Effect thereof.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities ofCitizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shallflee from Justice, and be found in another State, shall on Demand of theexecutive Authority of the State from which he fled, be delivered up, to beremoved to the State having Jurisdiction of the Crime.

[No Person held to Service or Labour in one State, under the Laws thereof,escaping into another, shall, in Consequence of any Law or Regulationtherein, be discharged from such Service or Labour, but shall be delivered upon Claim of the Party to whom such Service or Labour may be due.]


Section. 3.

New States may be admitted by the Congress into this Union; but no newState shall be formed or erected within the Jurisdiction of any other State; norany State be formed by the Junction of two or more States, or Parts of States,without the Consent of the Legislatures of the States concerned as well as ofthe Congress.

The Congress shall have Power to dispose of and make all needful Rules andRegulations respecting the Territory or other Property belonging to theUnited States; and nothing in this Constitution shall be so construed as toPrejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a RepublicanForm of Government, and shall protect each of them against Invasion; andon Application of the Legislature, or of the Executive (when the Legislaturecannot be convened) against domestic Violence.

ARTICLE. V.

The Congress, whenever two thirds of both Houses shall deem it necessary,shall propose Amendments to this Constitution, or, on the Application of theLegislatures of two thirds of the several States, shall call a Convention forproposing Amendments, which, in either Case, shall be valid to all Intentsand Purposes, as Part of this Constitution, when ratified by the Legislatures ofthree fourths of the several States, or by Conventions in three fourths thereof,as the one or the other Mode of Ratification may be proposed by the Congress;Provided [that no Amendment which may be made prior to the Year Onethousand eight hundred and eight shall in any Manner affect the first andfourth Clauses in the Ninth Section of the first Article; and] that no State,without its Consent, shall be deprived of its equal Suffrage in the Senate.

ARTICLE. VI.

All Debts contracted and Engagements entered into, before the Adoption ofthis Constitution, shall be as valid against the United States under thisConstitution, as under the Confederation.


This Constitution, and the Laws of the United States which shall be made inPursuance thereof; and all Treaties made, or which shall be made, under theAuthority of the United States, shall be the supreme Law of the Land; and theJudges in every State shall be bound thereby, any Thing in the Constitution orLaws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members ofthe several State Legislatures, and all executive and judicial Officers, both ofthe United States and of the several States, shall be bound by Oath orAffirmation, to support this Constitution; but no religious Test shall ever berequired as a Qualification to any Office or public Trust under the United States.

ARTICLE. VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

(The following statement reflects copyist’s corrections to the original document.)

The Word,“the,” being interlined between the seventh and eighth Lines of thefirst Page, The Word “Thirty” being partly written on an Erazure in thefifteenth Line of the first Page, The Words “is tried” being interlined betweenthe thirty second and thirty third Lines of the first Page and the Word “the”being interlined between the forty third and forty fourth Lines of the second Page.

Attest William Jackson Secretary

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand sevenhundred and Eighty seven and of the Independence of the United States ofAmerica the Twelfth In witness whereof We have hereunto subscribed our Names,

Go. WASHINGTON — Presid.t and deputy from Virginia


Delaware Geo: ReadGunning Bedford junJohn Dickinson Richard Bassett Jaco: Broom

MarylandJames McHenryDan of St Thos. Jenifer Danl Carroll

VirginiaJohn Blair—James Madison Jr.

North CarolinaWm. BlountRichd. Dobbs SpaightHu Williamson

South CarolinaJ. RutledgeCharles Cotesworth PinckneyCharles PinckneyPierce Butler

Georgia William FewAbr Baldwin

New HampshireJohn LangdonNicholas Gilman

MassachusettsNathaniel GorhamRufus King

ConnecticutWm. Saml. JohnsonRoger Sherman

New YorkAlexander Hamilton

New JerseyWil: LivingstonDavid Brearley.Wm. Paterson.Jona: Dayton

PennsylvaniaB FranklinThomas MifflinRobt MorrisGeo. ClymerThos. FitzSimons Jared Ingersoll James Wilson Gouv Morris


(The first ten amendments, known as the Bill of Rights, were ratified in1791.)

The Preamble to The Bill of Rights

Congress of the United Statesbegun and held at the City of New-York, onWednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of theiradopting the Constitution, expressed a desire, in order to preventmisconstruction or abuse of its powers, that further declaratory and restrictiveclauses should be added: And as extending the ground of public confidence inthe Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United Statesof America, in Congress assembled, two thirds of both Houses concurring,that the following Articles be proposed to the Legislatures of the severalStates, as amendments to the Constitution of the United States, all, or any ofwhich Articles, when ratified by three fourths of the said Legislatures, to bevalid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the UnitedStates of America, proposed by Congress, and ratified by the Legislatures ofthe several States, pursuant to the fifth Article of the original Constitution.

AMENDMENT I

Congress shall make no law respecting an establishment of religion, orprohibiting the free exercise thereof; or abridging the freedom of speech, or ofthe press; or the right of the people peaceably to assemble, and to petition theGovernment for a redress of grievances.

AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES

193AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES 193

AMENDMENT II

A well regulated Militia, being necessary to the security of a free State, theright of the people to keep and bear Arms, shall not be infringed.

AMENDMENT III

No Soldier shall, in time of peace be quartered in any house, without theconsent of the Owner; nor in time of war, but in a manner to be prescribed by law.

AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures, shall not be violated, andno Warrants shall issue, but upon probable cause, supported by Oath oraffirmation, and particularly describing the place to be searched, and thepersons or things to be seized.

AMENDMENT V

No person shall be held to answer for a capital, or otherwise infamous crime,unless on a presentment or indictment of a Grand Jury, except in cases arisingin the land or naval forces, or in the Militia, when in actual service in time ofWar or public danger; nor shall any person be subject for the same offence tobe twice put in jeopardy of life or limb; nor shall be compelled in anycriminal case to be a witness against himself, nor be deprived of life, liberty,or property, without due process of law; nor shall private property be takenfor public use without just compensation.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy andpublic trial, by an impartial jury of the State and district wherein the crimeshall have been committed, which district shall have been previouslyascertained by law, and to be informed of the nature and cause of theaccusation; to be confronted with the witnesses against him; to havecompulsory process for obtaining witnesses in his favor, and to have theAssistance of Counsel for his defence.


AMENDMENT VII

In Suits at common law, where the value in controversy shall exceed twentydollars, the right of trial by jury shall be preserved, and no fact tried by a jury,shall be otherwise re-examined in any Court of the United States, thanaccording to the rules of the common law.

AMENDMENT VIII

Excessive bail shall not be required, nor excessive fines imposed, nor crueland unusual punishments inflicted.

AMENDMENT IX

The enumeration in the Constitution, of certain rights, shall not be construedto deny or disparage others retained by the people.

AMENDMENT X

The powers not delegated to the United States by the Constitution, norprohibited by it to the States, are reserved to the States respectively, or to the people.

AMENDMENT XI (1795)

The Judicial power of the United States shall not be construed to extend toany suit in law or equity, commenced or prosecuted against one of the UnitedStates by Citizens of another State, or by Citizens or Subjects of any ForeignState.

AMENDMENT XII (1804)

The Electors shall meet in their respective states, and vote by ballot forPresident and Vice-President, one of whom, at least, shall not be aninhabitant of the same state with themselves; they shall name in their ballotsthe person voted for as President, and in distinct ballots the person voted foras Vice-President, and they shall make distinct lists of all persons voted for asPresident, and of all persons voted for as Vice-President, and of the numberof votes for each, which lists they shall sign and certify, and transmit sealed to


the seat of the government of the United States, directed to the President ofthe Senate;—The President of the Senate shall, in the presence of the Senateand House of Representatives, open all the certificates and the votes shall thenbe counted;—The person having the greatest number of votes for President,shall be the President, if such number be a majority of the whole number ofElectors appointed; and if no person have such majority, then from thepersons having the highest numbers not exceeding three on the list of thosevoted for as President, the House of Representatives shall chooseimmediately, by ballot, the President. But in choosing the President, the votesshall be taken by states, the representation from each state having one vote; aquorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to achoice. {And if the House of Representatives shall not choose a Presidentwhenever the right of choice shall devolve upon them, before the fourth dayof March next following, then the Vice-President shall act as President, as inthe case of the death or other constitutional disability of the President}* —The person having the greatest number of votes as Vice-President, shall be theVice-President, if such number be a majority of the whole number of Electorsappointed, and if no person have a majority, then from the two highestnumbers on the list, the Senate shall choose the Vice-President; a quorum forthe purpose shall consist of two-thirds of the whole number of Senators, anda majority of the whole number shall be necessary to a choice. But no personconstitutionally ineligible to the office of President shall be eligible to that ofVice-President of the United States.

*Superseded by Section 3 of the Twentieth Amendment.

AMENDMENT XIII (1865)

Section 1.Neither slavery nor involuntary servitude, except as a punishment for crimewhereof the party shall have been duly convicted, shall exist within theUnited States, or any place subject to their jurisdiction.

Section 2.Congress shall have power to enforce this article by appropriate legislation.


AMENDMENT XIV (1868)

Section 1.

All persons born or naturalized in the United States and subject to thejurisdiction thereof, are citizens of the United States and of the State whereinthey reside. No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; nor shall any Statedeprive any person of life, liberty, or property, without due process of law; nordeny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several States according totheir respective numbers, counting the whole number of persons in eachState, [excluding Indians not taxed.] But when the right to vote at anyelection for the choice of electors for President and Vice President of theUnited States, Representatives in Congress, the Executive and Judicial officersof a State, or the members of the Legislature thereof, is denied to any of themale inhabitants of such State, being twenty-one years of age,* and citizens ofthe United States, or in any way abridged, except for participation inrebellion, or other crime, the basis of representation therein shall be reducedin the proportion which the number of such male citizens shall bear to thewhole number of male citizens twenty-one years of age in such State.

*Changed by Section 1 of the Twenty-sixth Amendment.

Section 3.

No person shall be a Senator or Representative in Congress, or elector ofPresident and Vice President, or hold any office, civil or military, under theUnited States, or under any State, who, having previously taken an oath, as amember of Congress, or as an officer of the United States, or as a member ofany State legislature, or as an executive or judicial officer of any State, tosupport the Constitution of the United States, shall have engaged ininsurrection or rebellion against the same, or given aid or comfort to theenemies thereof. But Congress may by a vote of two-thirds of each House,remove such disability.


Section 4.The validity of the public debt of the United States, authorized by law,including debts incurred for payment of pensions and bounties for servicesin suppressing insurrection or rebellion, shall not be questioned. But neitherthe United States nor any State shall assume or pay any debt or obligationincurred in aid of insurrection or rebellion against the United States, or anyclaim for the loss or emancipation of any slave; but all such debts, obligationsand claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, theprovisions of this article.

AMENDMENT XV (1870)

Section 1.

The right of citizens of the United States to vote shall not be denied orabridged by the United States or by any State on account of race, color, orprevious condition of servitude.

Section 2.

The Congress shall have power to enforce this article by appropriatelegislation.

AMENDMENT XVI (1913)

The Congress shall have power to lay and collect taxes on incomes, fromwhatever source derived, without apportionment among the several States,and without regard to any census or enumeration.

AMENDMENT XVII (1913)

The Senate of the United States shall be composed of two Senators from eachState, elected by the people thereof, for six years; and each Senator shall haveone vote. The electors in each State shall have the qualifications requisite forelectors of the most numerous branch of the State legislatures.


When vacancies happen in the representation of any State in the Senate, theexecutive authority of such State shall issue writs of election to fill suchvacancies: Provided, That the legislature of any State may empower theexecutive thereof to make temporary appointments until the people fill thevacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term ofany Senator chosen before it becomes valid as part of the Constitution.

AMENDMENT XVIII (1919, repealed by Amendment XXI)

Section 1.

After one year from the ratification of this article the manufacture, sale, ortransportation of intoxicating liquors within, the importation thereof into, orthe exportation thereof from the United States and all territory subject to thejurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.

The Congress and the several States shall have concurrent power to enforcethis article by appropriate legislation.

Section 3.

This article shall be inoperative unless it shall have been ratified as anamendment to the Constitution by the legislatures of the several States, asprovided in the Constitution, within seven years from the date of thesubmission hereof to the States by the Congress.

AMENDMENT XIX (1920)

The right of citizens of the United States to vote shall not be denied orabridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.


AMENDMENT XX (1933)

Section 1.

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noonon the 3d day of January, of the years in which such terms would have endedif this article had not been ratified; and the terms of their successors shallthen begin.

Section 2.

The Congress shall assemble at least once in every year, and such meetingshall begin at noon on the 3d day of January, unless they shall by law appointa different day.

Section 3.

If, at the time fixed for the beginning of the term of the President, thePresident elect shall have died, the Vice President elect shall becomePresident. If a President shall not have been chosen before the time fixed forthe beginning of his term, or if the President elect shall have failed to qualify,then the Vice President elect shall act as President until a President shall havequalified; and the Congress may by law provide for the case wherein neither aPresident elect nor a Vice President elect shall have qualified, declaring whoshall then act as President, or the manner in which one who is to act shall beselected, and such person shall act accordingly until a President or VicePresident shall have qualified.

Section 4.

The Congress may by law provide for the case of the death of any of thepersons from whom the House of Representatives may choose a Presidentwhenever the right of choice shall have devolved upon them, and for the caseof the death of any of the persons from whom the Senate may choose a VicePresident whenever the right of choice shall have devolved upon them.


Section 5.

Sections 1 and 2 shall take effect on the 15th day of October following theratification of this article.

Section 6.

This article shall be inoperative unless it shall have been ratified as anamendment to the Constitution by the legislatures of three-fourths of theseveral States within seven years from the date of its submission.

AMENDMENT XXI (1933)

Section 1.

The eighteenth article of amendment to the Constitution of the United Statesis hereby repealed.

Section 2.The transportation or importation into any State, Territory, or possession ofthe United States for delivery or use therein of intoxicating liquors, inviolation of the laws thereof, is hereby prohibited.

Section 3.

This article shall be inoperative unless it shall have been ratified as anamendment to the Constitution by conventions in the several States, asprovided in the Constitution, within seven years from the date of thesubmission hereof to the States by the Congress.

AMENDMENT XXII (1951)

Section 1.

No person shall be elected to the office of the President more than twice, andno person who has held the office of President, or acted as President, formore than two years of a term to which some other person was electedPresident shall be elected to the office of the President more than once. Butthis article shall not apply to any person holding the office of President when


this article was proposed by the Congress, and shall not prevent any personwho may be holding the office of President, or acting as President, during theterm within which this article becomes operative from holding the office ofPresident or acting as President during the remainder of such term.

Section 2.

This article shall be inoperative unless it shall have been ratified as anamendment to the Constitution by the legislatures of three-fourths of theseveral states within seven years from the date of its submission to the statesby the Congress.

AMENDMENT XXIII (1961)

Section 1.

The District constituting the seat of government of the United States shallappoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the wholenumber of Senators and Representatives in Congress to which the Districtwould be entitled if it were a state, but in no event more than the leastpopulous state; they shall be in addition to those appointed by the states, butthey shall be considered, for the purposes of the election of President andVice President, to be electors appointed by a state; and they shall meet in theDistrict and perform such duties as provided by the twelfth article ofamendment.

Section 2.


AMENDMENT XXIV (1964)

Section 1.

The right of citizens of the United States to vote in any primary or otherelection for President or Vice President, for electors for President or Vice


President, or for Senator or Representative in Congress, shall not be denied orabridged by the United States or any state by reason of failure to pay any polltax or other tax.

Section 2.


AMENDMENT XXV (1967)

Section 1.

In case of the removal of the President from office or of his death orresignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the Presidentshall nominate a Vice President who shall take office upon confirmation by amajority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senateand the Speaker of the House of Representatives his written declaration thathe is unable to discharge the powers and duties of his office, and until hetransmits to them a written declaration to the contrary, such powers andduties shall be discharged by the Vice President as Acting President.

Section 4.

Whenever the Vice President and a majority of either the principal officers ofthe executive departments or of such other body as Congress may by lawprovide, transmit to the President pro tempore of the Senate and the Speakerof the House of Representatives their written declaration that the President isunable to discharge the powers and duties of his office, the Vice Presidentshall immediately assume the powers and duties of the office as ActingPresident.


Thereafter, when the President transmits to the President pro tempore of theSenate and the Speaker of the House of Representatives his writtendeclaration that no inability exists, he shall resume the powers and duties ofhis office unless the Vice President and a majority of either the principalofficers of the executive department or of such other body as Congress mayby law provide, transmit within four days to the President pro tempore of theSenate and the Speaker of the House of Representatives their writtendeclaration that the President is unable to discharge the powers and duties ofhis office. Thereupon Congress shall decide the issue, assembling withinforty-eight hours for that purpose if not in session. If the Congress, withintwenty-one days after receipt of the latter written declaration, or, if Congressis not in session, within twenty-one days after Congress is required toassemble, determines by two-thirds vote of both Houses that the President isunable to discharge the powers and duties of his office, the Vice Presidentshall continue to discharge the same as Acting President; otherwise, thePresident shall resume the powers and duties of his office.

AMENDMENT XXVI (1971)

Section 1.

The right of citizens of the United States, who are 18 years of age or older, tovote, shall not be denied or abridged by the United States or any State onaccount of age.

Section 2.

The Congress shall have the power to enforce this article by appropriatelegislation.

AMENDMENT XXVII (1992)

No law, varying the compensation for the services of the Senators andRepresentatives, shall take effect, until an election of Representatives shallhave intervened.


Activism (judicial). The willingnessof a judge to inject into a case his orher own personal values about what isgood and bad public policy. See alsoself-restraint (judicial).

Actus reus. The material element ofthe crime, which may be thecommission of a forbidden action (forexample, robbery) or the failure toperform a required action (forexample, to stop and render aid to amotor vehicle accident victim).

Adversarial process. The processused in American courtrooms wherethe trial is seen as a battle between twoopposing sides, and the role of thejudge is to act as a sort of passivereferee. See also inquisitorial method.

Advisory opinions. Rendering adecision on an abstract orhypothetical question (something that American courts are notsupposed to do).

Alternative dispute resolution(ADR). Methods of resolving disputes(often with the help of neutral thirdparties) without a trial. Mediationand arbitration are two well-knownADR techniques.

Amicus curiae. (“Friend of thecourt.”) A person (or group), not aparty to a case, who submits views(usually in the form of written briefs)about how the case should be decided.

Answer. The formal writtenstatement by a defendant respondingto a civil complaint and setting forththe grounds for his or her defense.

Appellate jurisdiction. Theauthority of a higher court to reviewthe decision of a lower court.

Arraignment. The process in whichthe defendant is brought before thejudge in the court where he or she is tobe tried to respond to the grand juryindictment or the prosecutor’s bill ofinformation.

Bail. A sum of money put up with the court by the defendant to ensurethat he or she will appear at the timeof trial.

Bench trial. Trial without a jury inwhich the judge decides which partyprevails.

G L O S S A R Y

205GLOSSARY 205

Bill of attainder. A law, forbidden bythe U.S. Constitution, that makesconduct illegal for one person (or classof persons) but not for the populationin general.

Bill of information. A statement ofthe charges against the accusedprepared by the prosecutor, which, ifapproved by a judge, will require theaccused to stand trial for the allegedcrimes. This is used in states that donot employ a grand jury.

Certification. The procedure bywhich one of the U.S. appeals courtsasks the U.S. Supreme Court forinstructions or clarification about aparticular legal matter. Either thejustices may choose to honor thisrequest or not, or they may requestthat the entire record of the case besent to the Supreme Court for reviewand final judgment.

Civil law. The law that pertains to therelationship between one privatecitizen and another, between a privatecitizen and a corporation, or betweenone corporation and another.

Class action. A suit brought bypersons having similar grievancesagainst a common entity; for example,a group of smokers with lung cancersuing a tobacco company.

Collegial courts. Courts havingmore than one judge, which are almostalways appellate courts.

Common law. A system of lawinherited from England based on legalprecedents or tradition instead ofstatutory law or systematic legal codes.

Complaint. A written statement filedby the plaintiff that initiates a civilcase. It states the wrongs allegedlycommitted by the defendant andrequests relief from the court.

Concurrent jurisdiction. A situationin which two courts have a legal rightto hear the same case. For example,both the U.S. Supreme Court and U.S.trial courts have concurrentjurisdiction in certain cases brought byor against ambassadors or counsels.

Concurring opinion. An opinion bya member of a court that agrees withthe result reached in a case but offersits own rationale for the decision.

Corpus juris. The entire body of lawfor a particular legal entity.

Courtroom workgroup. The regularparticipants in the day-to-dayactivities of a particular courtroom.The most visible members of thisgroup are judges, prosecutors, anddefense attorneys.


Court of appeals. A court that ishigher than an ordinary trial court andhas the function of reviewing orcorrecting the decisions of trial judges.

Crime. An offense against the statepunishable by fine, imprisonment, ordeath.

Criminal law. The law that pertainsto offenses against the state itself,actions that may be directed against aperson but that are deemed to beoffensive to society as a whole — forexample, armed robbery or rape.

Cross-examination. During a trial,the questions posed to a witness whohas been called to the stand by theopposing attorney.

Damages. Money paid by defendantsto successful plaintiffs in civil cases tocompensate the plaintiffs for theirinjuries. Compensatory damages aredesigned to cover the plaintiff ’s actualloss; punitive damages are designed topunish the defendant.

Declaratory judgment. When acourt outlines the rights of the partiesunder a statute, a will, or a contract.

Defendant. In a civil case, the personor organization against whom theplaintiff brings suit; in a criminal case,the person accused of the crime.

Deposition. An oral statement madebefore an officer authorized by law toadminister oaths. Such statements areoften taken to examine potentialwitnesses in the discovery process.

Discovery. The process by whichlawyers learn about their opponent’scase in preparation for trial. Typicaltools of discovery include depositions,interrogatories, and requests fordocuments.

Dissenting opinion. An opinion by amember of a court that disagrees withthe result reached in the case by thecourt.

Diversity of citizenship suit. A civillegal proceeding brought by a citizenof one state against a citizen of anotherstate.

En banc. (“In the bench” or “as a fullbench.”) Court sessions with the entiremembership of a court participating,not just a smaller panel of judges.

Equity. That realm of the law inwhich the judge is able to issue aremedy that will either prevent or curethe wrong that is about to happen; forexample, an injunction against anillegal strike by a union.

Ex post facto law. Forbidden by theU.S. Constitution, this law declaresconduct to be illegal after the conducttakes place.

207GLOSSARY 207

Federal question. If a court casecenters around the interpretation of afederal law, the U.S. Constitution, or atreaty, then it contains a federalquestion and the case may be heard bya U.S. court.

Felony. Any offense for which thepenalty may be death orimprisonment in a penitentiary.

Grand jury. A body of 16 to 23citizens who listen to evidence ofcriminal allegations, which ispresented by the prosecutors, anddetermine whether probable causeexists to believe an individualcommitted an offense. See alsoindictment.

Habeas corpus. A writ (court order)that is usually used to bring a prisonerbefore the court to determine thelegality of his or her imprisonment.

Impeachment. The only way inwhich a federal judge may be removedfrom office. The House ofRepresentatives brings the charge(s),and the Senate, following trial,convicts by a two-thirds vote of themembership.

Indictment. The decision of a grandjury to order a defendant to stand trialbecause the jury believes that probablecause exists to warrant a trial.

Inquisitorial method. Theprocedure used in most European andLatin American courtrooms in whichthe judge and jury take an active rolein the trial and the attorneys act onlyto aid and supplement the judicialinquiry. See also adversarial process.

Interrogatories. Written questionssent by one party in a lawsuit to anopposing party as part of pretrialdiscovery in civil cases. The partyreceiving the interrogatories isrequired to answer them in writingunder oath.

Judgment. The official decision of acourt finally resolving the disputebetween the parties to the lawsuit.

Judicial review. The power of thejudicial branch to declare acts of theexecutive and legislative branchesunconstitutional.

Jurisdiction. The authority of a courtto hear and decide legal disputes andto enforce its rulings.

Justiciability. Whether a judge oughtto hear or refrain from hearing certaintypes of cases. It differs fromjurisdiction, which pertains to thetechnical right of a judge to hear acase. For example, lawsuits dealingwith political questions are considerednonjusticiable.


Law. A social norm that is sanctionedin threat or in fact by the applicationof physical force. The party thatexercises such physical force isrecognized by society as legitimatelyhaving this kind of authority, such as apolice officer.

Magistrate. A lower level judicialofficial to whom the accused isbrought after the arrest. A magistratehas the obligation of informing theaccused of the charges against him orher and of his or her legal rights.

Mandatory sentencing laws.Statutes that require automatic jailtime for a convicted criminal, usuallyfor a minimum period of time. Theselaws are often for violent crimes inwhich a gun was used and for habitualoffenders.

Mens rea. The mental element of thecrime — that is, what was intended bythe perpetrator of the crime. Usuallythe more intentional and willful themental state, the more serious thecrime.

Merit selection. A method ofselecting state judges that requires thegovernor to make the appointmentfrom a short list of names submittedby a special commission establishedfor that purpose. After serving for ashort period of time, the judge must

run in a retention election. Voters thusdetermine whether the judge shouldbe retained for a full term.

Misdemeanor. A petty crime.Punishment usually is confinement ina city or county jail for less than a year.

Moot. Describes a case when thebasic facts or the status of the partieshave significantly changed in theinterim when the suit was filed andwhen it comes before the judge.

Nolo contendere. (“No contest.”) Aplea by a criminal defendant in whichhe or she does not deny the facts of thecase but claims that he or she has notcommitted any crime, or it may meanthat the defendant does notunderstand the charges.

Opinion of the court. A judge’swritten explanation of the court’sdecision. Because the case may beheard by a panel of judges in anappellate court, the opinion can taketwo forms. If all the judges completelyagree with the result, one judge willwrite the opinion for all. If all thejudges do not agree, the formaldecision will be based on the view ofthe majority, and one member of themajority will write the decision.

209GLOSSARY 209

Oral argument. An opportunity forlawyers to summarize their positionbefore the court and to answer thejudges’ questions.

Ordinance-making power. Thepower of state governors to fill in thedetails of legislation passed by statelegislatures.

Original jurisdiction. The court thatby law must be the first to hear aparticular type of case. For example,in suits with at least $75,000 at stakebetween citizens from different states,the federal district courts are thecourts of original jurisdiction.

Overcharging. The process wherebya prosecutor charges a criminaldefendant with crimes more seriousthan the facts warrant to obtain amore favorable plea bargain from thedefendant’s attorney.

Per curiam. (“By the court.”) Anunsigned opinion of the court, oftenbrief.

Peremptory challenge. Anobjection that an attorney might haveto a prospective juror. The juror maybe eliminated from the array withoutthe attorney having to give a publicreason for the objection. The numberof such challenges is limited by law.

Petit jury (or trial jury). A group ofcitizens who hear the evidencepresented by both sides at trial anddetermine the facts in dispute.

Plaintiff. The person who files thecomplaint in a civil lawsuit.

Plea bargain. A bargain or deal thathas been struck between theprosecutor and the defendant’sattorney whereby some form ofleniency is promised in exchange for aguilty plea.

Political question. When the courtsrefuse to rule because they believe thatunder the U.S. Constitution thefounders meant that the matter athand should be dealt with by Congressor the president.

Private law. This deals with therights and obligations that privateindividuals and institutions have whenthey relate to one another.

Probation. Punishment for a crimethat allows the offender to remain inthe community and out of jail so longas he or she follows court-orderedguidelines about his or her behavior.

Pro bono publico. (“For the publicgood.”) Usually refers to legalrepresentation undertaken without feefor some charitable or public purpose.


Public law. The relationships thatindividuals have with the state as asovereign entity — for example, thetax code, criminal laws, and SocialSecurity legislation.

Recess appointment. Anappointment made by the presidentwhen Congress is in recess. Personsappointed in this manner may holdoffice only until Congress reconvenes.

Reversible error. An errorcommitted at the trial court level thatis so serious that it requires theappellate court to reverse the decisionof the trial judge.

Rule of four. On the Supreme Courtat least four justices must agree to takea case before the Court as a whole willconsider it.

Rule of 80. When the sum of afederal judge’s age and number ofyears on the bench is 80, Congresspermits the individual to retire withfull pay and benefits.

Self-restraint (judicial). Thereluctance of a judge to inject into acase his or her own personal ideas ofwhat is good or bad public policy. Seealso activism (judicial).

Senatorial courtesy. Under thispractice, senators of the president’spolitical party who object to acandidate that the president wishes toappoint to a district judgeship in theirhome state have a virtual veto over thenomination.

Sequestration (of jury). In veryimportant or notorious cases the jurymay be kept away from the public eyeby the judge, and this usually meansthat the jury is housed and fed as agroup at taxpayers’ expense.

Socialization (judicial). The processby which a new judge is formally andinformally trained to perform thespecific tasks of the judgeship.

Standing. The status of someonewho wishes to bring a lawsuit. To havestanding, the person must havesuffered (or be immediately about tosuffer) a direct and significant injury.

Stare decisis, the doctrine of.(“Stand by what has been decided.”) Ineffect, the tradition of honoring andfollowing previous decisions of thecourts and established points of law.

Statutory law. The type of lawenacted by a legislative body, such asCongress, a state legislature, or a citycouncil.

211GLOSSARY 211

Three-judge panels (of appellatecourts). Most decisions of the U.S.courts of appeals are not made by theentire court sitting together but bythree judges, often selected at random,to hear any given case.

Three-judge district courts. Withsome types of important casesCongress has mandated that the casecannot be heard by a U.S. trial judgeacting alone but has to be decided by apanel of three judges, one of whommust be an appeals court judge.

Tort. A civil wrong or breach of dutyto another person.

Trial de novo. A new trial in whichthe entire case is retried as if no priortrial had occurred.

Venue. The geographical location inwhich a case is tried.

Voir dire. The procedure by whichopposing attorneys question potentialjurors to determine whether the jurorsmight be prejudicial to their individualcases.

Warrant. Issued after a complaint,filed by one person against another,has been presented and reviewed by amagistrate who has found probablecause for the arrest.

Writ of certiorari. An order issuedby the U.S. Supreme Court directingthe lower court to transfer records fora case that it will hear on appeal.

Writ of mandamus. A court ordercompelling a public official to performhis or her duty.


BOOKS

Administrative Office of the UnitedStates Courts. United States Courts:Their Jurisdiction and Work.Washington, DC: 1989.

Fallon, Richard H., Hart, HenryMelvin, and Wechsler, Herbert. Hartand Wechsler’s the Federal Courts andthe Federal System, 5th ed. New York,NY: Foundation Press, 2003.

Baum, Lawrence. American Courts:Process and Policy. 5th ed. Boston, MA:Houghton Mifflin, 2001.

Chemerinsky, Erwin. FederalJurisdiction, 4th ed. New York, NY:Aspen Publishers, 2003.

Feinman, Jay M. Law 101: EverythingYou Need to Know About the AmericanLegal System. New York, NY: OxfordUniversity Press, Inc., 2000.

Franklin, Carl J. Constitutional Lawfor the Criminal Justice Professional.Boca Raton, FL: CRC Press, 1999.

Friedman, Lawrence Meir. Law inAmerica: A Short History. New York,NY: Modern Library, 2002.

Mullenix, Linda S., Martin Redish, andGeorgene Vairo. UnderstandingFederal Courts and Jurisdiction. NewYork, NY: Matthew Bender, 1998.

Posner, Richard A. The Federal Courts:Challenge and Reform. Cambridge,MA: Harvard University Press, 1996.

Stumpf, Harry P. American JudicialPolitics, 2nd ed. Upper Saddle River,NJ: Prentice Hall, 1998.

WEB SITES

Facts About the American JudicialSystemhttp://www.abanet.org/media/factbooks/judifact.pdf

Federal Courts and What They Dohttp://www.fjc.gov/public/pdf.nsf/lookup/FCtsWhat.pdf/$file/FCtsWhat.pdf

The Federal Court System in theUnited States: An Introduction forJudges and Judicial Administrators inOther Countrieshttp://www.uscourts.gov/library/internationalbook-fedcts2.pdf

B I B L I O G R A P H Y

213BIBLIOGRAPHY 213

InfoUSA — Judicial Branch http://usinfo.state.gov/usa/infousa/politics/judbranc.htm

Introduction to the Legal System http://www.cec.org/pubs_info_resources/law_treat_agree/summary_enviro_law/publication/usdoc.cfm?varlan=english&topic=1

JURIST: The Legal EducationNetworkhttp://www.jurist.law.pitt.edu/

Law Library Resource Exchangehttp://www.llrx.com/

Legal Encyclopediahttp://www.nolo.com/lawcenter/ency/index.cfm

Library of Congress: Guide to LawOnlinehttp://www.loc.gov/law/guide/us.html

National Center for State Courts —Court Information Databasehttp://www.ncsconline.org/WCDS/index.htm

Prosecutors in State Courts, 2001http://www.ojp.usdoj.gov/bjs/pub/pdf/psc01.pdf

State Court Organization, 1998 http://www.ojp.usdoj.gov/bjs/pub/pdf/sco98.pdf

The Supreme Court of the UnitedStateshttp://www.supremecourtus.gov

Understanding the Federal Courtshttp://www.uscourts.gov/understand02/


AAbortion, 173–175Actus reus, 95Administrative law, 7, 12, 60

quasi-judicial bodies, 130, 131Administrative Procedure Act, 12Administrative law courts, 39Advisory opinions, 24, 63, 64, 81Advocates

... see LawyersAffirmative action, 35, 36Alternative dispute resolution, 127–131

arbitration, 128, 129mediation, 128mini-trial, 129neutral fact-finding, 129private judging, 130summary jury trial, 129, 130

American Bar Association, 145, 147–149Amicus curiae, 86–89Anticipatory socialization, 150, 151Appeals, 116, 117, 139Appellate courts

... see Jurisdiction; U. S. Courts ofAppeal; U. S. Supreme Court

Arbitration, 128, 129Arraignment, 100, 101Arrest, 97Article I, 9, 10, 39Article II, 144, 149Article III, 20, 152, 153

jurisdiction, 9, 24, 25, 63courts, creation of, 39, 144

Article IV, 69Article VI, 7, 8, 16Articles of Confederation, 7Assistance of counsel

... see Counsel, assistance ofAttorneys

... see Lawyers

BBail, 98, 99Baker v. Carr, 69Bankruptcy, 122Bench trial, 106Bill

... see LawsBill of information, 100Bill of Rights

bail, 98, 99bills of attainder, 95counsel, assistance of, 79, 81–83, 106,160, 171–173double jeopardy, 58, 101, 106, 114,117Eighth Amendment, 161ex post facto laws, 95Fifth Amendment, 13, 58, 99, 106First Amendment, 88, 161Fourth Amendment, 106Miranda rights, 98, 99, 167, 170, 172,173public trial, 38, 105self-incrimination, 106Seventh Amendment, 38, 131, 135Sixth Amendment, 38, 105speedy trial, 98, 99, 105Tenth Amendment, 16text of, 192–194witnesses, confronting, 98, 100, 106,108, 109

Bills of attainder, 95Briefs, 86–89Brown v. Board of Education, 16, 27, 86,160, 165, 169Burden of proof, 69, 70, 106

in criminal trial, 112Burger, Warren, 146, 172

I N D E X

CCapital punishment, 114, 115, 161Case citation format, 13, 131Certified question, 61Certiorari, writ of, 28, 61Challenge for cause, 107Checks and balances, 7Child custody, 126, 127Church and state, separation of, 168, 169Circuit riding, 32Circuit Court Act of 1802, 32City courts, 49Civil law

adversarial process in, 131alternative dispute resolution,127–131categories of, 121–127constitutional rights, 81, 82criminal law, comparison to, 15damages, 122, 123definition of, 120federal, 59remedies, 14standard of proof, 14, 131, 138trials, costs of, 127

Civil procedureanswer, 134appeals, 139counter claims, 134default judgment, 133discovery, 134filing, 131, 132judgment and execution, 138jurisdiction, 132jury selection, 135, 136motions, 133peremptory challenges, 135, 136pleadings, 133post-trial motions, 138pretrial conference, 134service of process, 133standing, 131summons, 133trial, 136–138

venue, 132, 133voir dire, 135

Civil Rights Act of 1964, 165, 169Civil Rights Act of 1968, 62Clerk of the court, 54, 55Closing argument, 109, 137Colonial era

courts in, 46, 47legal profession in, 74

Commerce clause, 9, 10Commercial law, 121Common law, 7, 12, 13Compensatory damages, 122Compensatory litigation, 83, 84Concurring opinions, 31Consensual crime, 94Constitution

... see U. S. ConstitutionConstitutional Convention, 20Constitutional courts, 39Contract law, 121, 122Conventional crime

... see Crimes of violence; Propertycrime

Counsel, assistance of, 76, 131right to, 81-83, 106, 160, 171-172

Counterclaims, 134County courts, 49Court unification movement, 48Courtroom workgroup, 81, 82Courts

civil, 130conflicts with legislatures, 9, 10, 47domestic relations, 130jurisdiction, requirements for, 63–71 probate, 130and public policy, 26, 61–71,160–163, 168–176small claims, 130... see also Federal courts; State courts

Courts of Appeal... see under State Courts,intermediate appellate courts

Courts of equity, 15

INDEX 215

Creditors’ rights, 122Crime

actus reus, 95consensual, 94definition of, 92, 93degrees of, 49

felony, 92, 93infractions, 93misdemeanors, 93

domestic violence, 98economic, 93, 94elements of, 94–96homicide, 95, 96injury, nature of, 96mens rea, 95of violence, 93organized, 94political, 94property, 93, 97punishment, 92, 93, 102, 114, 115,161

Crimes against the person, 93Crimes of violence, 93Criminal due process, 170–173Criminal law, 120

burden of proof, 69, 70, 106, 112capital punishment, 114, 115, 161categories of, 92, 93civil law, comparison to, 15constitutional rights, 81, 82federal, 58plea bargaining, 79, 82, 101–104police discretion, 97, 98sentencing, 114–116, 161standard of proof, 14, 112trials, roles of judges and lawyers, 81,82... see also Crime; Defendant’s rights;Trial

Criminal procedurearraignment, 100, 101arrest, 97assistance of counsel, 106, 160,171–173

bail, 98, 99bill of information, 100burden of proof, 106constitutional rights, 105, 106cross examination, 108, 109double jeopardy, 114due process, 170–173exclusionary rule, 106, 170–172grand jury, 99, 100indictment, 100innocence, presumption of, 106magistrate, appearance before, 98mistrial, 108, 114plea bargaining, 79, 82, 101–104pleas, 100, 101preliminary hearing, 99, 100voir dire, 107warrant, 97... see also Defendant’s rightsCriminal trial... see under Trial

Cross-examination, 108, 109, 136

DDamages, 122, 123, 138, 139Davis v. U. S., 173Death penalty

... see Capital punishmentDeclaration of Independence, 6Declaratory judgments, 64Default judgment, 133Defendant’s rights

assistance of counsel, 79, 81–83, 106,160, 171–173bail, 98, 99bills of attainder, 95Davis v. U. S., 173double jeopardy, 58, 101, 106, 114,117ex post facto laws, 9, 95Gideon v. Wainwright, 160, 167,170–172, 176Harris v. New York, 172, 173jury, 38, 105


Mapp v. Ohio, 170–172Miranda rights, 98, 99, 167, 170, 172,173public trial, 38, 105self incrimination, 106speedy trial, 98, 99, 105trials, 105, 106witnesses, confronting, 98, 100, 106,108, 109

Defendantsindigent, 76, 79, 81–83... see also Counsel, assistance of

Delegation of powers, 8, 9, 12Depositions, 134Desegregation

... see Racial equalityDicta, 163Discovery, 134Dissenting opinions, 31District Attorney

... see ProsecutorsDiversity jurisdiction, 9, 10, 59Divorce, 126, 127Domestic relations courts, 49, 130Domestic violence, 98Double jeopardy, 58, 101, 106, 114, 117

EEconomic crime, 93, 94Eighth Amendment, 161Elementary and Secondary EducationAct, 165En banc proceedings, 36Engel v. Vitale, 168Equal protection clause, 16, 27, 35, 36Equitable remedies, 14, 15Establishment of religion, 64–67Evarts Act, 32, 33Evidence, 106, 108, 109, 137Ex post facto laws, 9, 95Exclusionary rule, 106, 170–172Executive branch, 10, 12

influence on judicial decisions,165–167

Executive privilege, 165, 166Exemplary damages, 122Exhaustion of remedies, 68Expert witnesses, 136

FFamily law, 125–128Federal Bureau of Investigation, 10, 145,147Federal courts

administration of, 40–43advisory opinions, 63, 64chart of, 22creation of, 20–22jurisdiction of

diversity, 59original, 28, 59–61

mootness, 63, 64standing, 63structure of, 20–22workload of, 43... see also U. S. Courts of Appeal;U. S. District Courts; U. S. SupremeCourt

Federal criminal law, 58Federal Declaratory Judgment Act of1934, 64Federal executive branch

development of, 10, 12interaction with judiciary, 10

Federal judges... see under Judges

Federal Judgeship Act of 1990, 38Federal law

civil law, 59components of, 6, 7judicial interpretation of, 164relationship to state law, 6, 7, 17sources of, 7–13

Felonies, 49, 92, 93Fifth Amendment, 13, 58, 99, 106First Amendment, 88, 161Former jeopardy

... see Double jeopardy

INDEX 217

Fourteenth Amendment, 16, 26, 105equal protection, 27, 35, 36, 69, 107

Fourth Amendment, 106Freedom of religion, 86–88Freedom of speech, 161Freedom of the press, 47Friend of the court brief

... see Amicus curiaeFrontiero v. Richardson, 166, 167Furman v. Georgia, 161

GGibbons v. Ogden, 26Gideon v. Wainwright, 160, 167, 170–172,176Ginsburg, Ruth, 143Grand jury, 38, 99, 100Guilty plea, 101

HHabeas corpus, 59Habitual criminal, 102Harmless error, 116Harris v. New York, 172, 173Holmes, Oliver Wendell, 40, 41Homicide, 95, 96Hopwood v. Texas, 35, 36Hung jury, 114

IImpeachment, 152, 153, 157Indictment, 58, 100Indigent defendants, 76, 79, 81–83Infractions, 49, 93Innocence, presumption of, 106Insurance law, 122, 128Interest groups, 84–89Interrogatories, 134Intestate succession, 125

JJay, John, 24Judgment n.o.v., 138Judgments, 138

Judgescriminal trial, role in, 81, 82, 104, 105,109, 111, 112decisions

access to, 161, 162Congressional influence on,163–165, 173dicta, 163executive branch influence on,165–167implementation of, 166–168precedential value of, 160–163

discretion of, 160, 161en banc panels, 36federal

American Bar Association, 147,149anticipatory socialization, 150,151appointment of, 144–150disability of, 153disciplinary action against, 152diversity, 142, 143educational background, 142impeachment, 152, 153 and political views, 150, 153prebench experience, 142, 143qualifications of, 144, 145removal of, 152, 153Senate Judiciary Committee, 145,149senatorial courtesy, 146, 149senior status, 153tenure, 151–153, 160training, 150, 151

panels of, 36private judging, 130state

appointment of, 155–157diversity, 154election of, 155, 156Missouri Plan, 156and political views, 157removal of, 157


tenure, 157tenure, 39, 40, 151–153, 157, 160terms of, 39, 40training of, 42, 43, 49, 51

Judgmentsdefault, 133enforcement and implementation of,138, 139, 163–168impact of, 168–175precedential value of, 13, 68, 160–163

Judicial Councils Reform and JudicialConduct and Disability Act, 152Judicial panels, 36Judicial policy, 61–71, 160–163, 168–176Judicial precedent, 13, 68, 160–163Judicial review, 25, 26Judicial self-restraint, 63–71Judiciary Act of 1789, 20–22, 25, 32, 37,39Jurisdiction

actual controversy, 63appellate, 28beneficiaries of law, 67burden of proof, 69, 70concurrent, 61determined by legislature, 62, 63diversity, 9, 10, 59exhaustion of remedies, 68federal, 9-12judicial self restraint, 63legal versus factual questions, 67, 68mootness, 63original, 28, 59–61personal, 132prerequisites to, 63–71separation of powers, 68, 69specificity of plea, 65, 67standing, 63state courts, 12, 13subject matter, 132

Jurychallenges, 107, 135, 136civil trial

number of jurors, 135

peremptory challenges, 135, 136role in, 136, 138selection of jurors, 135voir dire, 135

constitutional issues, 105, 106criminal trial

deliberations, 112 –114number of jurors, 107, 108role in, 111–114selection of jurors, 106, 107, 108voir dire, 107

deadlock, 112–114hung, 114impartial, 105instructions, 112, 137, 138number of, 38, 107, 108, 135polling, 114, 138right to, 38sequestration of, 112Seventh Amendment, 38Sixth Amendment, 38summary jury trial, 129, 130verdict, 114voir dire, 107, 135… see also Grand jury

Justice of the peace courts, 49Justiciability, as prerequisite tojurisdiction, 63–71Juvenile courts, 52-53

age of offenders, 53jurisdiction of, 53

LLand use law, 123–125Law clerks, 40–42, 53Law firms, 76, 77Law schools, 74, 75Laws

adoption of, 8, 9creation of, 7–9education in, 74, 75relation of state and federal law, 17sources of, 9–13U.S. Code, 8, 9

INDEX 219

… see also Civil law; Criminal lawLawyers

criminal trials, role in, 81, 82development of the legal profession,74, 75education of, 74, 75government, 78–81number of, 76pro bono services, 77professional opportunities for, 75–81professional stratification of, 76–78role of, 81… see also Prosecutors; Publicdefenders

Legal aid... see Counsel, assistance of

Legal Aid societies, 82Legal profession, 74–78

... see also LawyersLegal remedies, 14, 15Legislative courts, 39Legislatures, conflicts with courts, 9, 10,47Liens, 139Litigants, 83, 84Lucas v. South Carolina Coastal Council,84

MMagistrate courts, 49Magistrates, 53

appearance before, 98-99Mandamus, 25Mandatory sentence, 102, 116Mapp v. Ohio, 170–173Marbury v. Madison, 9, 25, 26Marriage, law of, 125, 126Marshall, John, 24, 26Marshall, Thurgood, 86, 143McCulloch v. Maryland, 26Mediation, 128Medical malpractice, 123Mens rea, 95Metropolitan courts, 49

Miranda rights... see under Defendant’s rights

Miranda v. Arizona, 98, 99, 167, 170, 172,173Misdemeanors, 49, 93Missouri Plan, 156Mistrial, 108, 114, 138Mootness, 63Motions

civil, 133, 137, 138post-trial, 115, 138

Municipal courts, 49Murder, 95, 96

NNegligence, 122New Jersey Plan, 20No-fault divorce, 126Nolo contendere, 101Norm enforcement, 38, 39

OO’Connor, Sandra Day, 143Obscenity, 161Opening statements, 108, 136Opinions, by courts, 30, 31Oral argument, 29, 30, 36Organized crime, 94Original jurisdiction, 28, 59–61

PParalegals, 77Pardons, 116Penalties

… see Remedies; SentencingPeremptory challenge, 107Personal injury law, 122Personal jurisdiction, 132Personal property, 123Petit jury, 38

…see also JuryPhysical evidence, 108Plea bargaining, 79, 82

restrictions on, 102, 103


sentencing, 102types of, 101, 102value of, 103, 104

Pleadings, 133, 134Pleas, 100, 101Plessy v. Ferguson, 27Police, discretion of, 97, 98Political crime, 94Political interest groups, 147Post trial motions, 115Powell, Lewis F., 42Precedent

…see Judicial precedentPreliminary hearing, 99, 100Preponderance of the evidence, 14, 131,138Private law, 83, 84Pro bono services, 77Probable cause, 97Probate courts, 130Probation, 115Product liability law, 122Property crime, 93, 97Property law, 123–125Prosecutors

federal, 78state, 78, 79

Public defenders, 76, 79, 81–83Public interest law firm, 86Public law, 83, 84Public policy and courts, 26, 61–71,160–163, 168–176Public trial, 105Punitive damages, 122

RRacial equality, 26, 27, 165, 175, 176

Brown v. Board of Education, 27, 86,87Civil Rights Act of 1968, 62equal protection, 62Hopwood v. Texas, 35, 36Plessy v. Ferguson, 27San Antonio Ind. School Dist. v.

Rodriguez, 62separate but equal, 27U. S. Supreme Court decisions,168–170

Real property, 123, 124Reapportionment, 69Reasonable doubt, 112Rebuttal evidence, 109, 137Recognizance, 99Rehnquist, William, 173Remedies, 14, 15, 167Repeat offender, 102Roe v. Wade, 173–175Rules of Criminal Procedure, 103

SSan Antonio Ind. School Dist. v.Rodriguez, 62Search and seizure, 106Segregation

... see Racial equalitySelf incrimination, 106Senate Judiciary Committee, 145, 149Senatorial courtesy, 146, 149Senior status, 153Sentencing

capital punishment, 114, 115, 161concurrent sentence, 102guidelines, 115, 116mandatory, 102, 116pardons, 116probation, 115

Separation of powers, 7–11, 21, 68, 69executive branch, 10, 11judicial branch, 9, 10, 12legislative branch, 8, 9

Service of process, 133Seventh Amendment, 38, 131, 135Sixth Amendment, 38, 105Small claims courts, 130Special scrutiny, 69Specialized courts, 130Speedy trial, 105Speedy Trial Act of 1974, 105

INDEX 221

Standard of proof, 14in civil courts, 131, 138in criminal courts, 112

Standing, 63Stare decisis, 13State Attorneys General, 80, 81State constitutions, 17, 61, 62

jury trials, 135State courts

administration of, 53–55caseloads of, 55, 62clerk of the court, 54, 55courts of last resort (SupremeCourts), 49, 51, 52development of, 46–48family courts, 53intermediate appellate courts (courtsof appeal), 49, 51jurisdiction of, 61, 62juvenile courts, 52, 53law clerks in, 53magistrates, 53organization of, 46, 48–53specialized courts, 48trial courts of general jurisdiction, 49,51trial courts of limited jurisdiction, 48,49

State law, relation to federal law, 17States, powers of under the U. S.Constitution, 16Statutes

... see LawsStipulations, 134Stone, Harlan Fiske, 41, 146Strict liability, 122Subject matter jurisdiction, 132Succession, law of, 125Summons, 133Supremacy clause, 7, 8Supreme Court

... see U. S. Supreme CourtSupreme Courts

... see under State Courts, courts of

last resortSyndicated crime

... see Organized crime

TTaft, William Howard, 41Taney, Roger, 26Tenth Amendment, 16Tenure

... see under JudgesTestaments, 125Thomas, Clarence, 143Tort law, 122, 123Trial

adversarial process, 104, 105bench trial, 106civil

adversarial process in, 131appeal, 139closing arguments, 137cross-examination, 136discovery, 134judgments, 138, 139jury, 135–138motions, 133, 137opening statements, 136plaintiff ’s case, 136post-trial motions, 138pretrial conference, 134-135rebuttal evidence, 137standard of proof, 14, 131, 138suit, filing of, 131, 132testimony, 136, 137verdict, 138witnesses, 136, 137

criminalappeal, 116, 117burden of proof, 69, 70, 106closing arguments, 109cross-examination, 108, 109defendant’s case, 109errors in, 116evidence in, 108, 109hung jury, 114


judge, role of, 104, 105, 109–112jury polling, 114jury selection, 106, 108jury, role of, 111, 112opening statement, 108post trial motions, 115prosecution case, 108-109rebuttal evidence, 109sentencing, 114–116, 161standard of proof, 14, 112verdict, 114witnesses, confronting, 98, 106

evidence, 108participants in

lawyers, 81, 82litigants, 83, 84

summary jury trial, 129, 130voir dire, 107

Trial courts… see U. S. District Courts

Trial de novo, 49, 50

UU. S. Attorney General, 78, 146, 147U. S. Circuit Courts, 32, 33U. S. Code, 8, 9U. S. Congress

advice and consent, 144influence on judicial decisions,163–165, 173powers of, 12, 22

to create courts, 39under the U. S. Constitution, 8, 9,144

Senate, 144–147, 149, 150U. S. Constitution

amendment of, 164, 165Article I, 9, 10, 39Article II, 10, 12, 144, 149Article III, 9, 20, 24, 25, 39, 63, 144,152, 153Article IV, 69Article VI, 7, 8, 16assistance of counsel, 106, 131,

170–172bail, 98, 99bills of attainder, 95burden of proof, 106commerce clause, 9, 10Congress, powers of, 8, 9delegation of powers, 8, 9, 12double jeopardy, 101, 106, 114, 117due process rights, 131Eighth Amendment, 161equal protection clause, 16, 62establishment of religion, 64–67ex post facto law, 95exclusionary rule, 106, 170–172executive branch, 10, 12federal judiciary, 9, 10Fifth Amendment, 13, 58, 99, 106First Amendment, 88, 161Fourteenth Amendment, 16, 26, 27,35, 36, 69, 105, 107Fourth Amendment, 106freedom of religion, 86-88freedom of speech, 161freedom of the press, 47interpretation of, 164jury, 38, 105Miranda rights, 98, 99, 167, 170, 172,173obscenity, 161probable cause, 97public trial, 105real property, 125rights under, 81, 82, 131search and seizure, 106self incrimination, 106separation of church and state, 168,169Seventh Amendment, 38, 131, 135Sixth Amendment, 38, 105speedy trial, 98, 99, 105states, 16Tenth Amendment, 16text of, 177–203trials, 105, 106

INDEX 223

witnesses, confronting, 98, 100, 106,108, 109zoning, 125… see also Bill of Rights; Defendant’srights; Separation of powers

U. S. Court of Military Appeals, 39U. S. Court of Veterans Appeals, 39U. S. Court system

creation and structure of, 20–22... see also Federal courts; State courts

U. S. Courts of Appeal, 31–37appeals

from administrative law tribunals,60from U. S. District Courts, 60

caseload of, 43development of, 32, 33en banc proceedings, 36equal protection, 35, 36geographical boundaries of, 23hearings before, 36Hopwood v. Texas, 35, 36jurisdiction of, 34, 59, 60law clerks in, 41opinions in, 36, 37oral argument in, 36role of, 34, 35three judge panels, 36

U. S. Department of Justice, 10, 80, 146,147, 166U. S. District Courts

appeals from, 58caseload of, 43civil cases in, 58, 59creation of, 37criminal cases in, 58geographical boundaries of, 23jurisdiction of, 38, 58, 61law clerks in, 41organization of, 37, 39role of, 38, 39U. S. Attorneys, 78

U. S. Governmentfederal form of, 22

relationship between branches, 7–13U. S. Magistrate judges, 40U. S. Penal Code, 58U. S. Solicitor General, 78, 80, 89, 166U. S. Supreme Court

caseload of, 43, 61cases

Baker v. Carr, 69Brown v. Board of Education, 27,86, 87, 160, 165, 169Davis v. U. S., 173Engel v. Vitale, 168Frontiero v. Richardson, 166, 167Furman v. Georgia, 161Gibbons v. Ogden, 26Gideon v. Wainwright, 160, 167,170–172, 176Harris v. New York, 172, 173Lucas v. South Carolina CoastalCouncil, 84Mapp v. Ohio, 170–173Marbury v. Madison, 25, 26McCulloch v. Maryland, 26Miranda v. Arizona, 167, 170, 172,173Plessy v. Ferguson, 27Roe v. Wade, 173–175San Antonio Ind. School Dist. v.Rodriguez, 62U. S. v. Nixon, 165, 166Wisconsin v. Yoder, 86–89

certified question, 61certiorari, 28conferences in, 30, 31courtpacking, 166criminal due process, 170–173decisions of

impact, 168–175implementation, 160, 163–168overturning, 164, 165, 173

development of, 22–26first justices of, 22, 24first sitting of, 24freedom of religion, 86–88


hearings before, 29, 30issues before, 26, 27, 169-174Judiciary Act of 1789, 20–22, 25jurisdiction of, 13, 22, 24–26

appellate, 27, 61concurrent, 61original, 27, 60, 61

justicesappointment of, 143–150, 166Burger, Warren, 146, 172Ginsburg, Ruth, 143Jay, John, 24Marshall, John, 24, 26Marshall, Thurgood, 86, 143O’Connor, Sandra Day, 143Powell, Lewis F., 41Rehnquist, William, 173Stone, Harlan Fiske, 41, 146Taft, William Howard, 41Taney, Roger, 26Thomas, Clarence, 143training of, 150, 151Warren, Earl, 170

law clerks in, 40–42opinions

concurring, 31dissenting, 31precedential value of, 13, 68, 160-163writing of, 24, 25

oral argument before, 29, 30racial equality, decisions concerning,27, 62, 86, 87, 160, 165, 168–170right to counsel, 170–172role of, 27, 28scrutiny, standards of, 69sessions of, 28, 29… see also Defendant’s rights

U. S. Tax Court, 39U. S. v. Nixon, 165, 166

VVenue, 132, 133Verdict, 114, 138

Virginia Plan, 20Voir dire, 107, 135

WWarrant, arrest, 97Warren, Earl, 170Watergate affair, 165, 166Wills and estates, 125Wisconsin v. Yoder, 86–89Witnesses

confronting, 98, 106cross-examination, 108, 109, 136, 137

Workload of courts, 43, 55, 61, 62Writs

certiorari, 28, 61habeas corpus, 59mandamus, 25

ZZoning, 123–125

INDEX 225

ACKNOWLEDGMENT

Outline of the American Legal System is a publication ofthe United States Department of State. Chapters 1 through 8 are

adapted with permission from the book Judicial Process in America,5th edition, by Robert A. Carp and Ronald Stidham,

published by Congressional Quarterly, Inc.

Copyright © 2001 Congressional Quarterly Inc. All rights reserved.

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