A system by which society makes choices that allocate its scarce resources and organize relations among individuals and institutions in order to achieve predictability in business and personal affairs. *includes the rules of conduct that govern human relations. **A system (special language, rules that apply, public attitudes.

The acquisition, retention, and exercise of power for the purpose of collective action. That action allocates the benefits and the burdens of life in civil society. **who gets what, when , and how – means for making decision/basis for decision.

A personal wrong; a civil as opposed to a criminal wrong or injury.

A philosophy of law focusing on the actual workings of legal procedure and court generated rules of litigation, as it is created and carried out by and through human beings and the various institutions of their making. * Legal realism maintained that when judges decided cases, they made law by choosing between conflicting values according to their individual public policy preferences.

aka political scientists; political ideology is the most important factor that explains judge’s decisions.

A self-conscious group of legal scholars founded the Conference on Critical Legal Studies (CLS) in 1977. Most of them had been law students in the 1960s and early 1970s, and had been involved with the civil rights movement, Vietnam protests, and the political and cultural challenges to authority that characterized that period. CLS scholars and those they have influenced try to explain both why legal principles and doctrines do not yield determinate answers to specific disputes and how legal decisions reflect cultural and political values that shift over time.

this perspective acknowledges that courts make public policy and that judges public policy preferences can and do affect case outcomes.

aka public policy preferences. The term "political philosophy" often refers to a general view, or specific ethic, political belief or attitude, about politics that does not necessarily belong to the technical discipline of philosophy. **liberal, conservative, political in nature

judges views  about the way in which law should develop and about the role that courts should play in the American political system. **what judges are supposed to do, role constitution should play.

Paula Jones/President Clinton sexual harassment case – returned to lower court so it could proceed with a resolution – case settled for 850k Nov. 21 1988 – no apology, no admission guilt.

American law grew out of the common law of England. The colonist brought to North American in the 17^th and 18^th centuries. “Judge made law”. It evolved through court decisions that created legal rules and principles that shaped outcomes in later, similar cases. Gradually became American laws of contracts, property, and torts

Older Myth: law and politics are unrelated. **Courts have neither force nor will, merely judgment.

Newer Myth: law and politics are identical; therefore legal reasoning is merely a justification for judges public policy preferences. **Jones/Clinton Case ex – led by political beliefs.

High-level development of policy, especially official government policy. While law can compel or prohibit behaviors (e.g. a law requiring the payment of taxes on income), policy merely guides actions toward those that are most likely to achieve a desired outcome.  The formulation of ideas or plans that are used by an organization or government as a basis for making decisions. Ex: Clinton v. Jones policy making decision, president can be sued while in office.

The original organic law of the United States, which granted most of the power to the states, as it denied the newly formed federal government the power to levy taxes, raise troops, and regulate commerce, all of which constitute the basic elements of sovereignty. The document proved a severely delimited and unworkable document for the federal government and was later replaced by the U. S. Constitution. **Constitution was written in response to the Articles of Confederation. Government could only regulate in certain areas.

One of the core principles that underlies the U. S. Constitution. Federalism divides power between the national, or federal government and the 50 states.

The lowest court in a unified court system. Trial courts are the first courts to hear cases. They resolve cases by determining the facts and then applying relevant law to the facts. *decide on both questions of law and questions of fact.

Hear appeals by parties who lost in the trial courts. Appellate courts determine whether trial court proceedings were fair. Ensure the law was carried out correctly. **Correct errors of law. Panel of judges, generally three review – to win 2 out of three must agree. Decide only on questions of law.

Minor offenses for which the penalty is a jail term of less than one year and a fine of less than $1000 ($5000 in some states). Minor assaults, drunk and disorderly conduct, and possession of small amounts of marijuana suitable only for personal use are examples of misdemeanors.

The defendant pleads guilty, usually to a lesser charge than he originally faced, and pays a fine and/or accepts some form of punishment (i.e. jail, probation, home confinement, suspension of a driver’s license). **giving up rights, reduced sentence, does not have to take a chance in court. Judge is safeguard, ensures person knows what they are pleading to.

aka the state Supreme Court. All states have one, OK & TX have two (one for civil, one for criminal). In the states that have a court of appeals, most of the caseloads of the Supreme Court are discretionary; the court will hear an appeal only if a majority of its members wish to do so. The court’s mandatory jurisdiction might be limited to capital cases, in which a trial court has sentenced a criminal defendant to death, or cases in which two separate panels of the court of appeals have interpreted a state law or a provision of the state constitution differently.

Present disputes between a person or persons and the state that arise from alleged violations of criminal law.

Present disputes between individuals (you and another motorist), institutions (your college and the food service that operates its cafeteria) that commonly arise from personal injuries, broken business agreements, and/or damage to property.

major crimes (murder, rape, arson, armed robbery, etc..) that are punishable either by death or by a prison term of more than one year.

a law clerk prepares an initial draft of the opinion of the court, and the assigned justice revises it. When a satisfactory draft option is complete, the author circulates it among the other justices. Members of the majority suggest changes, and the author then makes the changes necessary to preserve a majority. Sometimes the author must revise the opinion several times in order to satisfy his/her colleagues. Occasionally, it is impossible to satisfy one’s colleagues, and the majority collapses. *or changes the decision.

The parties typically agree that the defendant will pay the plaintiff a sum of money in return for the plaintiff’s promise to end the law suit.

A trial court of limited jurisdiction. Probably the best know and most successful type of problem-solving court. Drug courts use judicial power to direct non-violent addicts to intensive, court-monitored treatment instead of to prison.

A jury of ordinary citizens determines whether, in a civil case, the defendant is liable for the plaintiff’s injury; in a criminal case, the defendant is guilty or not guilty. The judge informs the jury about the legal principles that govern the case, but the jury applies those principles to the facts of the case in order to reach a verdict.

A confirming or reassertion of an existing law or former judgment; The confirmation of an appellate court on a lower court’s ruling, order, or decree.

The overturning or setting aside of a lower court’s decision by an appellate court.

consider civil claims up to a specified dollar amount, crimes punishable by less than one year in jail and a $1000 fine, traffic, family, estate, juvenile, and small claims cases. **civil, criminal specific, fine, time, etc..

Bread and butter – serious matters. Named: superior court, district court, county court. These courts hear both criminal and civil cases.

Employs means other than lawsuits to resolve disputes. Besides mediation, those means include arbitration and mini-trials. Arbitration features a neutral decision maker known as an arbitrator who unlike a mediator renders a decision after hearing presentations by both parties.
In a mini-trial, a judge hears cases, also shed traditional courtroom procedures for presenting evidence. – These ADRs save the parties and the judiciary time and money. The decisions reached are not binding precedents that other parties can rely on in future disputes.

Appellate Court is required to hear. The appellants have a constitutional right to file. *Court of Appeals hear mostly mandatory appeals.

not mandatory, but demand a hearing because they raise important legal and public policy issues.

These courts are also known as legislative courts. Congress created them pursuant to its power under Article I, Section 8, Clause 9 of the constitution to “constitute tribunals inferior to the Supreme Court”. They often have administrative as well as judicial duties and they are sometimes created for the express purpose of helping to administer a particular law.  Judges who serve in Article I courts do not enjoy the lifetime tenure or the protection against salary reductions while they are in office like Article III judges. ex.: (4) – Court of Federal Claims, Court of Appeals for the Armed Forces, Court of Veteran’s Appeals, and Tax Court.

Also known as constitutional courts, of which the district courts, courts of appeals, and Supreme Court are most familiar. Article III courts exist pursuant to Congress’s power under Article III, Section1 to “from time to time ordain and establish” courts inferior to the Supreme Court. The Court of International Trade is the only specialized federal court that is an Article III court.

District Courts have original jurisdiction, which means that they hear cases in the first instance, not on appeal, in both civil and criminal matters.

An error by a judge in applying the law to a particular case, establishing grounds for an appeal.

At trial for example, a jury will decide whether the defendant meets the physical description of the person a witness saw leaving the scene of the crime, a question of fact.

The trial judge will decide whether to exclude certain evidence against the defendant that the police obtained by means of a constitutionally dubious search, a question of law.

Pertains to disputes that derive from conflicting interpretations of a federal law or treaty, or of a provision of the federal constitution. These disputes raise federal questions that Congress has authorized district courts to resolve.

Disputes between residents of different states in which the plaintiff’s claim amounts to $75,000 or more. Federal judges have long argued that Congress ought to abolish diversity jurisdiction because 1) diversity cases clutter federal courts with matters that belong in state courts 2)state courts are no longer biased against non-residents. Ex: NJ resident injures WA resident in ski accident, they can take it to state court(NJ or WA) or federal court.

civil cases in which prisoners’ bring petitions pursuant to the writ of habeas corpus, which ask the judge to order prison authorities either to show cause why they are holding the prisoner or to release the prisoner. (private disputes between prisoners and wardens).

the least likely route to Supreme Court. It is a request by a lower federal court, usually a court of appeals, for a final answer to questions of law in a particular case.

a more common route to the Supreme Court, primarily because federal law requires the Court to accept and decide cases that arrive by this method. The court need not hear oral arguments or write opinions in these cases. They often merit a one or two line order that indicates whether the justices have affirmed or reversed the decision of the court of appeals.

the most common route to the Supreme Court. The judiciary act of 1925 gave the court discretion to grant or deny a petition for certiorari. If four justices decide to grant cert, the court requests a certified copy of the case’s written record from the lower court and places the case on its docket.

A concurring opinion agrees with the majority’s conclusion, but for reasons other than those that persuaded the majority.

A dissenting opinion disagrees with the majorities reasoning and with its conclusion.

The doctrine of preemption prohibits state courts from hearing cases about subjects that Congress has assigned exclusively to federal courts, such as bankruptcy, antitrust, and Indian Treaty matters. Federal law preempts states law in those cases, so only federal courts can hear them.

The doctrine of abstention prohibits federal courts from deciding cases in which questions of state law remain to be answered and the answers could resolve the cases.

All the members of the court hear oral arguments together, rather than in panels of two or three.**The lawyer from each side  usually receives 15 min to argue the case but usually spends the bulk of that time answering questions from the bench.

A method of teaching law, the standard method of teaching law. This method replaced lectures with classroom discussions of appellate court decisions that illustrated principles of law that the professor wished to convey. The professor asked students questions about decisions, and each answer generated another question from the professor, until the class had dissected a particular decision.

Advise clients and draft documents.

Trie cases in court.

In the early 1870s when Myra Bradwell sought admission to the Bar of the State of Illinois, the law barred women from participating in that state. Ms. Bradwell challenged the Illinois law in litigation that ended in the U.S. Supreme Court in 1873. Her lawyer argued that the IL law abridged the privileges and immunities that the 14^th amendment guaranteed to Ms. Bradwell and all American citizens, the Supreme Court disagreed.

aka legal aid lawyers, provide free legal representation to impoverished clients in criminal and civil cases, respectively.

elective courses in which students earn academic credit by representing, under faculty supervision, low-income clients in civil matters, prisoners, or persons accused of crimes who cannot afford a private attorney.

A tradition that influences modern law. The Puritans believed that the most important purpose of law was to protect individual freedom. They also believed that individuals should be free to choose how to live their lives and government should not coerce them in those matters. The Puritans also believed that people must accept the consequences of their choices; they should not expect government to rescue them from foolishness.

All acts of government are subject to review in the courts and that no person is beyond the court’s jurisdiction.

developed from the English King’s enforcement of his royal rights. Its most fundamental principle is supremacy of law. *Judges bear the major responsibility for interpreting the law. They interpret the law by deciding cases, which gives them the power because power to interpret the law is power to make the law, especially when no prior, similar cases are available to guide judges.

According to Professor Carrie Menkel-Meadow, “ I take care of my side and you take care of yours and almost anything we do to win our rights is justified.”  Federal courts are prohibited from issuing “advisory” opinions, or opinions that do not involve a live case or controversy.

A two-day affair, 48 states and the District of Columbia administer a multi-state bar examination on the first day; it consists of 200 multiple choice questions on contracts, torts, property, civil procedure, criminal law, and constitutional law. The second day of the exam consists of essay questions, written by the state’s board of bar examiners that test ones knowledge of the law in that particular state. Bar exams are pass/fail. Successful examinees will be formally sworn into the bars of their perspective states and can begin their legal careers.

Partners in large law firms enjoy something like the tenure many professors have. Firms typically hire several young associates every year who were fresh out of law school, trained them for five-six years, and then offered them partnerships in the firm, which they would enjoy until retirement.

The traditional arrangement, whereby a corporation paid a law firm an annual fee (retainer) to perform all of the corporation’s legal work during the year.
**a relic of a bygone era.

Free legal work.

The lawyer’s fee is a percentage of the amount the client wins at trial or obtains by settlement.

Billing clients by the hour instead of charging an annual retainer and recording the time spent working on a client’s business. **Became standard practice in the 50’s – eventually went away due to competition between law firms for clients, became sources of considerable frustration.

The national professional association for lawyers. Its fundamental purpose is to maintain and improve the standards of legal service and the overall administration and justice in the United States. Any licensed attorney in any of the various states who is in good standing may be accepted as a member.

The sole mechanism for federal judicial selection is presidential appointment, subject to the advise and consent of the Senate.

election, appointment, appointment-plus-election, and legislative selection. Those choices reflect the states’ respective judgments’ about the relative importance of independence and accountability among judges.

38 states require at least some judges to win election to the bench. 21 states choose some or all of their trial judges in partisan elections. 8 states choose some or all of their appellate judges in partisan elections. 19 states choose some or all of their trial judges in non-partisan elections and in 14 states choose some or all of their appellate judges in non-partisan elections.

Name and Party affiliation on the ballot.

Only name on ballot.

In 47 states the governor appoints some or all appellate judges, either alone (13) or with the consent of the legislature (3), subject to the approval of an elected executive council (1) from a list of candidates compiled by a nominating commission (21), from a list of candidates compiled by judicial nominating committee and with legislative approval (8), or from the nominating commissions list subject to the approval of an elected executive council (1).
Appointed judges serve terms 4 to 12 years after which they are eligible for reappointment.

Missouri Plan

aka Merit System

The combined appointive-elective mechanism known as the Missouri Plan because it originated in Missouri in1940, aka the Merit Plan. Judicial nominating commissions, which consists of judges, lawyers, and ordinary citizens, screen applicants for judicial vacancies and recommend several qualified candidates to the governor, who then appoints one of those candidates. After the appointee serves a designated period of time, he or she faces the voters in a retention election.

Appointee runs unopposed. After an appointee serves for a designated period of time, he/she faces the voters in a retention election in which a ballot question asks the voters: “Shall Judge ____ be retained as a judge of the ____ court? Voters cast their votes by indicating Yes or No; therefore the judge runs against his/her own record, but not against another candidate.

Least commonly used method of choosing judges. Only used in SC & VA. In SC the legislature appoints all appellate judges and some trial judges. In VA the legislature appoints both appellate and trial judges, but only when a full term of office is available. The governor usually appoints when the appointee will serve out the remainder of the predecessor’s term. *out of favor in modern America because it offers neither the direct political accountability of judicial elections nor the emphasis on professional qualifications of the Missouri Plan.

A criminal inquisitory proceeding conducted to determine whether a public officer should be charged by the lower house, i.e. the House of Representatives and tried by the upper house of the legislature, i.e. the Senate which functions as the jury. The House of Representatives functions much like a grand jury, determining whether to file articles of impeachment (the functional equivalent of an indictment or true bill) against a public official. The impeachment trial is conducted by the Senate, and in the federal government is overseen by the chief justice of the Supreme Court.

Another rarely used method of removal used in 12 states. In 8 the governor can remove a judge from office if both houses of the state legislature pass a resolution that requests the governor to remove the judge; 7 require a 2/3 vote of each house before the governor can act.

Despite a lifetime appointment, district judges and courts of appeals judges commonly accept senior status at age 70, which enables them to work part-time in return for a full salary. Supreme Court justices, however, frequently work full-time long past 70.

After the president selects a nominee, the Senate Judiciary Committee considers the nomination and votes on it. –When the Judiciary Committee receives a nomination, counsel for the committee sends blue slips to the two senators from the nominee’s state. If either senator returns the blue slip marked “objection”, senatorial courtesy takes place and the nomination will die.

When a blue slip is returned marked “objection” – no hearing will take place and the nomination dies. “Who knows the nominees better than the Senators in their respective states’.

The concept that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests. Judicial Independence is vital and important to the idea of separation of powers.

In governance, accountability has expanded beyond the basic definition of "being called to account for one's actions.”It is frequently described as an account-giving relationship between individuals, e.g. "A is accountable to B when A is obliged to inform B about A’s (past or future) actions and decisions, to justify them, and to suffer punishment in the case of eventual misconduct". Accountability cannot exist without proper accounting practices; in other words, an absence of accounting means an absence of accountability.

Recall elections are used to remove judges, a ballot question asks the voters whether a particular judge should be removed from office. The question  an qualify for the ballot only if a sufficient number of voters sign a petition to place it on the ballot.

Censure means a written action of the commission that requires a respondent to appear personally before the commission and that finds that conduct of the respondent violates a rule of judicial conduct, detrimentally affects the integrity of the judiciary, undermines public confidence in the administration of justice, and may or may not require a recommendation to the supreme court that the respondent be suspended (with or without pay) or removed. A censure shall include a requirement that the respondent follow a specified corrective course of action. Censure is the most severe disciplinary action the commission can issue.

A reprimand is a severe, formal or official reproof. Reprimanding takes in different forms in different legal systems. A reprimand may be a formal legal action issued by a government agency or professional governing board (e.g. medical board, bar council). It may also be an administrative warning issued by an employer or school.

The Senate’s venerable device for prolonging debate indefinitely, to prevent the president’s nomination from coming to a vote.

In 1987 the Senate rejected President Reagan’s nomination of Judge Robert Bork, even though it had unanimously approved his nomination to the federal appellate bench years earlier, because of a fear that he would make the court to conservative – Democrats feared he would make the Supreme Court to hostile to interests of women and minorities. Judge Bork lost on both fronts. He lost on partisan from because the Democrats outnumbered the Republicans in the Senate. Judge Bork lost on the institutional front because the timing of his nomination which occurred just six months before the start of President Reagan’s final year in office.

Someone who is under the radar. Someone who has not spoken or written about hot button issues; basically unknown outside his/her home state.

President Bush’s stealth nominee. His lack of public record on abortion enabled him to credibly claim during his confirmation hearing that he had not made up his mind on that issue and the he would approach it objectively. He was confirmed as the Supreme Court’s 105 Justice. While nominated by George H. Bush, George W. Bush believed that Mr. Souter was a monumental mistake due to his liberal voting record in the court.

1)formal power of a court to exercise judicial authority over a particular matter.

 2) May speak of matters being within or beyond the jurisdiction of any other government entity.

American legal system is based on a system of federalism, or decentralization. While the federal government itself possesses significant powers, the individual states retain powers not specifically enumerated as exclusively federal.

relies heavily on court precedent in formal adjudications. Judicial determinations in earlier court cases are extremely critical to the court’s resolution of the matter before it.

”judge-made law”. Cases are legal determinations based on a set of particular facts involving parties with a genuine interest in the controversy.

rely less on court precedent and more on codes, which explicitly provide rules of decision for many specific disputes.

Stare decisis

aka precedent

“Let it Stand”. Depends on 2 factors. 1) Jurisdiction, geographic region from which the case in question arose (state court ? state, federal court, ?district/circuit). 2) Court Hierarchy – the level of the court in whoch the case arose. **these are important because the doctrine only applies only with respect to cases decided within the same jurisdiction and by a higher level court.

If the court finds that the issues of law and fact are similar as a legal matter, then the court will most likely analogize to the earlier case and apply the precedent to the later case.

If the court finds that the issues of law and or fact are dissimilar from a legal perspective, then the court will probably not apply the precedent.

Depending on the circumstances and the needs of the client, the lawyer may be a counselor, a negotiator, and/or a litigator. In each of these toles the lawyer will need to engage in factual investigation.

Counselor: Advise client how to order his/her affairs, how or whether to proceed with aproposed course of action, or how to proceed with respect to pending or potential litigation or settlement.

Negotiator: Lawyer will work with opposing counsel to try to get a favorable resolution for the client with respect to a pending dispute.

Litigator: Trial Lawyer

a group of local citizens is the fact-finder in most trials.

The final arbitrator of law. Charged with the duty to state, as positive matter, what the law is. At trial – umpire. Evidentiary rulings, charge the jury, and maintain order.

Court in subsequent litigation “overrules” a rule of law that was announced in earlier, different litigation involving different parties.