Transcript Slide 1

Introduction to the American
Legal System
Prof. John T. Nockleby
Director, Journalist Law School
Today: Three Goals
1. Overview of legal system—the Third Branch
of Government
2. Overview of torts, with special attention to
who should pay for losses
3. Perspectives on civil litigation from Pl &
Defense lawyers
•
•
Friday: Overview of procedural aspects of civil suits
Breakout: Over view of Class Actions
Co-Equal Branches
Federal
• Legislative
• Executive
• Judicial
State
• Legislative
• Executive
• Judicial
Power Relationship of Legal System to
Political System
• Judges elected (most states) for term, or
appointed (federal & some states)
• Judicial Independence
– the idea that neither political system nor powerful
entities should control 3d branch
• Political pressures over 3d branch exercised in
limited & controlled fashion
Note: these comments address
both Federal and state systems
Political Pressures on 3d Branch
Appropriate:
• Public Criticism
• Legislature change
underlying law (except
Constitutional law)
• Impeachment of judicial
officers
• Recall or don’t re-elect
judges
• Legislature change law
Not Appropriate:
• Ethical constraints: e.g.,
private conferences; judge
friends
• Coercion through salary
adjustments
• Judges told to do mayor’s,
corps’ bidding
• Respond to direct political
pressure
• Taking into account status of
parties
• Bribes
Political Pressures on 3d Branch
The credibility of the legal system hinges on
judicial independence
Questionable ?
– Contribute large sums to elect judges favorable to
one’s legal position?
– Caperton v. A. T. Massey Coal Co
• CEO of Massey Coal Co contributed $3 million to campaign of
W.Va. Supreme Court challenger Brent Benjamin, who won.
• Justice Benjamin refused to recuse himself in $50 million
lawsuit against Massey ; W.Va SCt ruled 3-2 for Massey Coal
Political Pressures on 3d Branch
The credibility of the legal system hinges on
judicial independence
– Caperton v. A. T. Massey Coal Co
– Appeal to US SCt based on due process grounds
followed:
» USSCt: 5-4:
» held that due process required Benjamin to
recuse himself
Political Pressures on 3d Branch
The credibility of the legal system hinges on
judicial independence
Questionable ?
– “Independent” expenditures by Chamber
of Commerce attacking a state supreme
court justice they don’t like
• North Carolina SCt election
Outside Spending Enters Arena of Judicial Races
By ERIK ECKHOLM
MAY 5, 2014
https://www.yo
utube.com/wat
ch?v=HgO_Bn
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ature=youtu.be
Political Pressures on 3d Branch
The credibility of the legal system hinges on
judicial independence
Questionable {State & Federal courts} :
• To what extent can judges be subjected to
political pressures & still remain independent?
• Terri Schiavo case
• Institutional Budget coercion
Relationship of legal system to
political system
CONVENIENT MYTHOLOGY:
Political bodies make the law; judicial
branch MERELY interprets
The Political Game
SLOGANS:
• “Legislating from the Bench”
• “Strict Constructionist”
• “A Living Constitution”
• “Judges are like umpires; umpires
don’t make the rules, they apply
them.”
Supreme
Court
nominees
are asked
about these
at confirmation
hearings
REAL ISSUES:
• Which theories of judicial lawmaking make
the most sense?
• Which theories of interpretation do we want
our judges to employ?
• What background and political orientation do
we want our judges to have?
Journalists often wonder ….
• What is “the law” concerning a given subject?
• How will a certain case come out?
Often difficult to answer because
judges make law in the process
of adjudication
Judges make law in THREE Important
ways:
1.
Judges decide what the general phrases in the
Constitution mean (“due process;” “equal
protection”)
2.
Judges decide what statutes mean, and fill gaps,
decipher ambiguities
3.
Judges make common law
1. Interpreting the Constitution
A. In U.S., judges have the final word on what
the constitution means
•
Judicial Review of legislation—Marbury v Madison
B. Judges decide what general phrases mean:
•
•
•
•
“due process”
“equal protection”
“abridging the freedom of speech”
“Habeas Corpus”
2. Judges Interpret Statutes, Fill
Adjudicate Ambiguities
Gaps,
• Many statutes incorporate vague language
• Entire statutory body of antitrust contained in
few vague phrases (“restraint of trade”;
“monopolization”)
• Civil Rights statutes— use broad phrases like
“discrimination” or “unequal”
• Political bodies punt difficult issues to judicial
system
Legislating from the bench?
3. Common Law
• Examples of common law adjudication:
• Contract disputes [what is a contract? Is that
“agreement” enforceable?]
» Arbitration “agreements” in standardized
contracts
» “Privacy policies” –websites
• Disputes over property (water rights; land use;
nuisance; conflicting uses of land)
In General, Common Law is…
– Judge-made law
– A body of rules and precedents
– built up over time—by accretion --i.e., case-by-case;
– limited rulemaking for a typically narrow set of
circumstances
– Judges make law in the very case that first raises the issue
– This judge-made body of law changes—Over time, judges
create new rights and destroy others
Common Law--background
• Antedates U.S. Constitution
• Each state has its own common law—but judges
are influenced by developments in other states
• At one time, MOST law in the U.S. was common
law; but now:
• Criminal law is entirely legislative
• Many statutes, both Fed & State,
intersect/overlap with common law
Common Law
• Examples where judges make the law:
• Tort & accident law
» Determine what’s a compensable “harm”
» When did someone act “negligently”
» What standard should be used to determine
whether products or drugs are defective?
• Remedies – damages, injunctions
Common Law
• Largely employed by state courts (or Fed courts
interpreting state law)
• Important because nearly
STATE courts
of cases are handled by
• A Legislature can change that state’s common law
More power dynamics:
Legislature >Judicial branch
• Complex conversations between Legislative
branch & judicial branch over:
– Interpreting statutes
– Common law
• Very difficult for the branches to “converse” over
Constitutional matters
– Constitutional amendment
– Appointment of high level judges
“Legal Reasoning”
• A judge will focus on facts of a particular dispute
• She looks to previously-established common law rules
• Adherence to precedent, unless precedent is no longer
desirable
• Look for analogies in other areas of law, or to other legal
systems
• Look to broader policy goals: what effect will this rule
have on society, future disputes?
Legislating?
Civil Litigation:
Federal Law vs. State Law
Federal Law
U.S. Constitution
Federal statutes
Federal regulations
State Law
State constitution
State statutes
State regulations
Common law .
CAUTION: Federal courts can hear state law
claims; state courts must abide by federal law
U.S. Judicial Structure
State Judicial Systems (50 states)
State Supreme
Courts
Final word on
state law &
state
constitution
Intermediate
State Appeals
Courts
Federal Judicial System
U.S. Supreme
Court
[appeals of
FEDERAL
issues only]
Typical
appeals:
1. Constitution
2. Pre-emption
State Trial
Courts
Arbitration
Private
Judging
Federal
District
Courts (trial
court)
OPEN
OPEN
TO
PUBLIC
United States
Circuit
Courts of
Appeals
Closed to public
TO
PUBLIC