E OURNALS OF THEU. S. I GENCY Democracy issues of

D e m o c r a c yi s s u e s o f

E L E C T R O N I C J O U R N A L S O F T H E U . S . I N F O R M A T I O N A G E N C Y

S E P T E M B E R 1 9 9 9

V O L U M E 4 N U M B E R 2

H O W U. S . C O U R T S

W O R K

THE SEPARATION of powers and thechecks and balances in the U.S. Constitutionamong the executive, legislative and judiciaryis one of the most cherished hallmarks ofAmerican democracy. It guarantees not onlythe independence of the judiciary, but also itsformidable power. The idea dates back toancient Greece, and was articulated in moderntimes by British philosopher John Locke andFrench philosopher Baron de Montesquieu.

But it was the Founding Fathers in writingthe U.S. Constitution, and James Madison inparticular, who gave these ideas living expres-sion in the new republican form of governmentthey established after independence was won.The independence of the judiciary is enshrinedin Article III of the Constitution and is givenfurther expression in the Bill of Rights, the first10 Amendments that were subsequently added.

This journal focuses not so much on judi-cial independence nor, more broadly, on therole of the judiciary in the U.S. system of gov-ernment. Rather, it is a guide to how the U.S.court system works in practice — the system’s

players, its structure, its functions and its ethi-cal safeguards. But it is important to under-stand that the U.S. courts exist in an overallconstitutional framework that guarantees theirindependence.

Presidents, for example, may appoint fed-eral judges, but they cannot remove them. Thatpower, seldom used, is the preserve ofCongress. Judges for their part can overturnpresidential or congressional actions, declaringthem unconstitutional — a feature of the U.S.system that foreign observers often find aston-ishing. But this power of judicial review is notabsolute, for the laws can be rewritten and theConstitution can, if necessary, be amended.

The mechanics of the U.S. court system arecovered in an article by Professor Toni M. Fine,associate director of the Global Law SchoolProgram at New York University School of Law.She discusses the distinction between the fed-eral and state courts, the role of administrativecourts, and the all-important appeals processwhich can filter through special appeals courtsat a number of different levels, and may some-

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F r o m t h e E d i t o r s

How U.S. Courts Work

times go all the way to the Supreme Court of theUnited States which, in the U.S. system, has thefinal say on judicial and Constitutional matters.

The U.S. system of justice essentially is anadversary process. It is based on the belief thattruth is more likely to emerge when both sides— defense and prosecution — are able to pre-sent their case aggressively to a jury underimpartial rules of evidence before a disinterest-ed judge. These are clear and distinct roles thatare explored in a series of interviews with anassistant U.S. attorney (prosecutor), a publicdefender, an attorney and a judge, conducted bycontributing editors Stuart Gorin and BruceCarey.

There are two, very distinct forms of trialsin the American system — civil and criminal.The rules for each, the responsibilities of thecourt, and the rights of defendants differ con-siderably. E. Osborne Ayscue, Jr., a civil trialattorney and current president of the AmericanCollege of Trial Lawyers, explores these differ-ences in his portrayal of the course of a civiland a criminal trial. To illustrate his points, hegives examples of some high-profile cases,well-known to worldwide audiences.

A key component of the U.S. judicial sys-tem is the notion of common law or judge-madelaw (written and unwritten), as contrasted withcivil law, which largely is composed of writtencodes. Judge Peter J. Messitte, U.S. DistrictCourt (Maryland) explains the tradition of com-mon law as it was inherited by the newAmerican government from Britain, the colonialpower.

No court system can function justly oreffectively without built-in safeguards to

ensure, as far as possible, the highest ethicalstandards for judges, attorneys and othersinvolved in the process. Their fair-mindedness,professionalism, and integrity are absolutelyessential to public confidence and support. Ina telepress conference to judges in Slovenia,U.S. Supreme Court Justice Anthony Kennedyexplores the issue of how ethical standards canbe established and maintained to ensure theneutrality of the rule of law.

From the inception of the Republic, therole of courts in the U.S. has been not just toprosecute crimes, but to affirm rights enshrinedin the Constitution. In an article on Brown v.Board of Education, contributing editor DavidPitts traces the history of one of the most impor-tant decisions in the history of U.S. constitu-tional law. It tells the story of how a small groupof citizens went to court to overturn a state lawthey saw as unjust. Their concerns led to aSupreme Court ruling that overturned that statelaw and similar laws in 24 other states.

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issues of Democracy

C o n t e n t s

September 1999

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H O W T H E U . S . C O U R T S Y S T E M F U N C T I O N S

Professor Toni Fine, associate director, Global Law School Program, New York University School of Law,

discusses the mechanics of the U.S. court system and how each set of courts fits into the overall scheme.

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P L AY E R S I N T H E J U D I C I A L P R O C E S S

Contributing editors Stuart Gorin and Bruce Carey interview an assistant U.S. attorney, a public defender,

an attorney and a judge on their roles in the judicial process.

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

E. Osborne Ayscue, Jr. president of the American College of Trial Lawyers, writes on the two separate forms

of court proceedings: criminal and civil, and explains the distinctions that are key to an understanding of

the U.S system of justice.

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C O M M O N L A W V. C I V I L L A W S Y S T E M S

Judge Peter J. Messitte, U.S. District Court (Maryland), looks at the origins of common and civil law systems

and how both function today.

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J U D I C I A L E T H I C S A N D T H E R U L E O F L A W

In a telepress conference to Slovenian judges, U.S. Supreme Court Justice Anthony Kennedy talks about

how the judicial branch of government must guarantee the neutrality of the rule of law.

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B R O W N V. B O A R D O F E D U C AT I O N : T H E S U P R E M E C O U R T

D E C I S I O N T H AT C H A N G E D A N AT I O N

Contributing editor David Pitts traces the origins of one of the most important decisions in the history of

U.S. constitutional law — Brown v. Board of Education — that changed the nation.

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B I B L I O G R A P H Y

Articles, books and videos on the U.S. courts and legal system.

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I N T E R N E T S I T E S

Sites in cyberspace that feature sites on the U.S. Courts and legal system.

The opinions expressed on other Internet sites listed here do not necessarily

represent the views of the U.S. government.

PUBL I SHER Judith Siegel

ED ITOR Anthony W. Sariti

MANAGING EDITOR Deborah M.S. Brown

CONSULT ING EDITOR Wayne Hall

INTERNET/TEXT EDITOR Deborah M.S. Brown

CONTR IBUT ING EDITORS Estelle Baird

Bruce Carey

Mona Esquetini

Stuart Gorin

Charla Hatton

John Jasik

David Pitts

REFERENCE SPEC IAL I STS Carol Norton

Barbara Sanders

ART DIRECTOR Diane Woolverton

GRAPH ICS ASS I STANT Sylvia Scott

GRAPHICS DESIGN Chloe Ellis

ED ITOR IAL BOARD Howard Cincotta

Judith Siegel

Leonardo Williams

USIA’s electronic journals, published and transmitted worldwide at three-week intervals, examine major issues facing the United States and the International Community. The journals—EconomicPerspectives, Global Issues, Issues of Democracy, U.S. Foreign Policy Agenda, and U.S. Society & Values—provide analysis, commentary, and background information in their thematic areas. Arabic, French,Portuguese, Russian, and Spanish versions will appear approximately two weeks after the English. The opinions expressed in the journals do not necessarily reflect the views or policies of the U.S.Government. Articles may be reproduced and translated outside the United States unless there are copyright restrictions cited somewhere on the articles. • Current or back issues of the journalscan be found on the U.S. Information Service (USIS) Home Page on the World Wide Web at “http://www.usia.gov/journals/journals.htm.”They are available in several electronic formats to facilitateviewing on-line, transferring, downloading, and printing. Comments are welcome at your local USIS post or at the editorial offices:Editor, Issues of Democracy (I/TDHR), U.S. Information Agency,

301 4th Street, S.W.,Washington, D.C. 20547, United States of America.


I S S U E S O F H O W T H E U . S . C O U R T S W O R K

B U R E A U O F I N F O R M A T I O N • U . S . I N F O R M A T I O N A G E N C Y • e j d e m o s @ u s i a . g o v

S E P T E M B E R 1 9 9 9

IT IS SOMETHING of a myth to speakabout a single U.S. court system because theU.S. judicial system is in reality composed ofmultiple autonomous courts. There is the feder-al court system, an integrated system dividedinto numerous geographic units and variouslevels of hierarchy; in addition, each state hasits own court system with a system of localcourts that operate within the state. Under thisdual federal/state court structure, the U.S.Supreme Court is the final arbiter of federallaw, while the highest court of each state (usu-ally called supreme courts) has the ultimateauthority to interpret matters of the law of itsstate. When federal constitutional or statutorymatters are involved, the federal courts havethe power to decide whether the state law vio-lates federal law.

The functioning of these systems is com-plicated by the fact that there are multiplesources of law, and courts of one system areoften called upon to interpret and apply the

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H o w U . S . C o u r t s W o r k

How the U.S. Court System Functions

By Ton i M . F ine

The U.S. Constitution establishes a system

of federalism under which the federal

government is granted limited authority,

with all remaining authority left to the

states.This model of shared powers

defines the relationship between the

federal and state courts. In this overview

of the various levels of the U.S. courts,

Toni M. Fine, associate director of the

Global Law School Program at New York

University Law School, explains how the

court system functions.

laws of another jurisdiction. In addition, morethan one court may have sovereignty to hear aparticular case.

The federal judiciary and the individualstate judicial systems are each constructed likea pyramid. Entry-level courts at both the stateand federal levels are trial courts, in which wit-nesses are called, other evidence is presentedand the “fact-finder” (a jury and/or sometimesa judge) is called upon to decide issues of factbased on the law.

At the top of each pyramid structure is the“court of last resort” (at the federal level, theU.S. Supreme Court; at the state level, the statesupreme court) which has the authority to inter-pret the law of that jurisdiction. In most statesand in the federal system there is also a mid-level court of appeals.

The vast majority of courts at both the stateand federal levels are “courts of general juris-diction,” meaning that they have authority todecide cases of many different types. There are

no special constitutional courts in the U.S. —any court has the power to declare a law oraction of a government executive to be uncon-stitutional, subject to review by a higher-levelcourt.

The Feder a l Cour ts

Traditional federal courts are known asArticle III Courts because they have the powerof judicial review and certain protections underArticle III of the U.S. Constitution. These courtsare organized in a three-tiered hierarchicalstructure and along geographic divisions. At thelowest level are the U.S. District Courts, whichare the trial courts. Appeals from the U.S.District Courts are taken to the U.S. Courts ofAppeals, often referred to as U.S. Circuit Courts.From there, cases may be brought to the U.S.Supreme Court. Much of the Supreme Court’sreview power is discretionary, and only a smallpercentage of cases brought to it are actuallyruled on by the Court.

The U.S. District Courts are entry-levelcourts of general jurisdiction, meaning theyhear cases involving various criminal and civilmatters. There are 94 U.S. federal judicial dis-tricts, with at least one district court in eachstate. In the largest and most heavily populatedstates, there are several districts, but districtsdo not cross state lines. The number of judgesdepends on the size and population — andhence workload — of each district court.Although each district court has numerousjudges, a single judge presides over each case.

The U.S. Courts of Appeals is the interme-diate-level federal court. The courts of appealsare considered the workhorse of the federalcourt system because the brunt of cases are

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Ton i M . F ine

resolved there. Appeals are taken from U.S. dis-trict courts to the U.S. courts of appeals if a los-ing party feels that the judge in the districtcourt made an error of law. Appeals may not betaken to correct perceived errors of fact, unlessthere is a clear error of law. Thus, for example,a losing party may argue that the judge erred byadmitting a certain document into evidence;but the losing party may not argue that thejudge or jury reached a bad conclusion basedonly on that document.

The U.S. Courts of Appeals are dividedgeographically into 12 circuits –- 11 numberedcircuits, each covering at least three states, andthe U.S. Court of Appeals for the District ofColumbia (D.C. Circuit), which also hears casesinvolving the federal government. Each circuithears appeals from the district courts within itsterritory.

The number of judges in each circuitvaries widely and is determined by the popula-tion and size of each circuit. A panel of threejudges — chosen at random — sits on eachcase, and different combinations of judges siton different cases.

The U.S. Courts of Appeals may decidecases on the basis of written briefs submitted bythe litigants or may order oral argument. Adecision is based on written opinion drafted byone of the judges and circulated to the other twopanel members. The opinion of the court alsomust be signed by at least two panel members.Any of the judges on the panel may write a con-curring opinion in which the judge agrees withthe result reached in the majority opinion butfor different or additional reasons. A judge thatdisagrees with the opinion of the court mayinstead write a dissenting opinion explaining

why he or she has reached a different conclu-sion. Although dissenting and concurring opin-ions do not have the force of law, they may behighly influential in subsequent court deci-sions.

After the three-judge panel has rendered adecision, litigants have several options: theymay seek “reconsideration” of the decision bythe same three-judge panel; they may seek“rehearing” of the panel’s decision by all of thejudges of that circuit sitting together; or theymay seek review by the U.S. Supreme Court byfiling a motion for a writ of certiorari (when thelower courts have ruled on the case and dis-agreed on their opinions). Each of these mea-sures of relief is discretionary, however, and israrely granted.

The U.S. Supreme Court is at the apex ofthe federal court system and consists of ninejustices who hear and decide cases. As in theU.S. Courts of Appeals, justices may join themajority opinion or may write or join a concur-ring or dissenting one.

The Supreme Court’s general jurisdictionis largely discretionary through the process ofcertiorari. Under the so-called “rule of four,” iffour of the nine justices favor hearing a casethen certiorari will be granted. The Court oftenaccepts cases in which there is a split of author-ity among different U.S. circuit courts or inwhich important constitutional or other legalprinciples are implicated. The denial of certio-rari does not imply agreement with the lowercourts’ decisions, but simply indicates that therequisite number of justices for whatever reasondid not want to hear the case.

Besides a writ of certiorari, the SupremeCourt can review cases on appeal from federal

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courts or state supreme courts whose decisionsare based on an issue of federal law (for exam-ple, when a federal appeals court invalidates astate statute; or when a state court strikes downa federal statute). The Court also may decidespecific legal issues referred to it by lower fed-eral courts.

The Supreme Court also has “originaljurisdiction” over certain limited cases: contro-versies between two states; controversiesbetween the United States and an individualstate; actions by a state against a citizen ofanother state or an alien; and cases brought byor against a foreign ambassador or consul.

Spec ia l Cour ts

In general, the federal court system doesnot create special courts for specific matters.Two notable exceptions to this rule are the U.S.Court of Federal Claims which handles mone-tary suits brought against the United States, andthe U.S. Court of International Trade, which isauthorized to hear and decide civil actionsagainst the United States, federal agencies ortheir employees, arising out of any law pertain-ing to international trade.

There is also one specialized federalappeals court — the U.S. Court of Appeals forthe Federal Circuit. This court has jurisdictionover appeals from all district courts in casesarising under patent laws as well as overappeals from the U.S. Court of Federal Claimsand the U.S. Court of International Trade.

The federal system also embraces a num-ber of courts known as legislative or Article ICourts, referring to Article I of the U.S.Constitution. Article I courts act pursuant to

Congress’ legislative powers and have theauthority to decide factual questions relating tospecific matters. Examples of Article I courtsinclude the U.S. Court of Appeals for the ArmedForces, the U.S. Court of Veterans Appeals, theU.S. Tax Court and the U.S. Bankruptcy Courts.Appeals from these courts may be brought tothe U.S. Courts of Appeals.

Admin is t r at ive Cour ts

Federal agencies play an enormous role indeveloping and carrying out U.S. laws on a widearray of topics, from the regulation of naturalresources to the health and safety of workers.Often, this means that an agency will sit as afact-finding tribunal in applying federal regula-tions. When disagreements occur, the partiespresent their evidence to an administrative lawjudge (ALJ), who acts as the fact-finder. Eitherparty may appeal the judge’s decision, usuallyto a board or commission established by thefederal agency that issued the regulations.Because the ALJ has already served the fact-finding function that would normally be under-taken by a federal district court, appeals fromrulings of major agencies (e.g., National LaborRelations Board or the Federal TradeCommission) are brought directly before theU.S. Courts of Appeals. Although such appealsmay be brought in any circuit, as a practicalmatter the D.C. Circuit hears most appeals fromfederal agencies.

The State Cour ts

Each state, as well as the District ofColumbia and the Commonwealth of PuertoRico, has its own independent judicial system

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that operates independently. The highest courtin each state is the ultimate authority on whatthe law is with regard to state law, from thestate’s point of view.

The structure of state courts, like that ofthe federal courts, is in the form of a pyramid.Most states have a three-tiered judicial systemcomposed of a trial-court level (sometimescalled superior courts, district courts or circuitcourts), an appellate court (often called the courtof appeals) and a court of last resort (usuallycalled the supreme court). Some states simplyhave one level of appeal.

As in the federal court system, trials arepresided over by a single judge (often sittingwith a jury); entry-level appellate cases areheard by a three-judge panel; and in statesupreme courts, cases are heard by all membersof the court, which usually number seven ornine justices.

Also like the federal system, state courtcases begin at the trial-court level. These courtsare often divided into two levels: courts of gen-eral jurisdiction and specialized courts.

Cases decided by a trial court are subjectto appeal to and review by an appellate court. Insome states, as noted above, there is only onelevel of appeal from the lowest state court. Instates in which there are two courts of appeals,rules differ as to whether a case will automati-cally go to the appeals court or the statesupreme court. In some states, appeals from thetrial court are brought to the mid-level stateappellate court, with subsequent discretionaryreview by the state supreme court. In otherstates, litigants bring appeals from the trial-level court directly to the supreme court, whichdecides whether to hear the case itself or tohave the appeal resolved by the intermediate

appeals court. Under either of these scenarios,the state supreme court generally reviews casesthat involve significant matters of state law orpolicy.

Specialized state courts are trial-levelcourts of limited jurisdiction that only hearcases that deal with specific kinds of legalissues or disputes. Although these courts varyfrom state to state, many states have specializedcourts for traffic matters, family law matters,probate for the administration of decedents’estates, and small claims (for cases involvingless than a specific sum of money). Rulings ofthese specialized courts are subject to appealand review by state courts of general jurisdic-tion.

Loca l Cour ts

Each of the 50 states is divided into local-ities or municipalities called cities, counties,towns or villages. Local governments, like theirstate counterparts, have their own court sys-tems, which are presided over by local “magis-trates,” who are public civil officers possessingjudicial power delegated under the local gov-erning laws. This may include the power to ruleon laws relating to zoning authority, the collec-tion and expenditure of local taxes, or the estab-lishment and operation of public schools.

Conclus ion

One of the elements of the U.S. legal sys-tem that makes it at once so complex and sointeresting is the fact that both the federal gov-ernment and each state has its own judicial sys-tem. Each judicial system is marked by differ-ences in function and operation. Moreover, thefact that there is overlapping jurisdiction and

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that any court may hear issues of federal andstate law complicates the functioning of thesesystems further.

At bottom, all court systems in the UnitedStates are similar in most fundamental respects.U.S. courts are, for the most part, courts of gen-eral jurisdiction. In addition, each system is inthe hierarchical form of a pyramidal structure,allowing review and — if necessary — revisionby upper-level courts.

Issues of Democracy, USIA Electronic Journals,Vol. 4, No. 2, September 1999

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The Prosecutor

FEDERAL PROSECUTORS divide theircases into two major categories — reactive andproactive — says Assistant U.S. Attorney RosaRodriguez Mera, whose responsibilities includeprosecuting narcotics cases in south Florida.

“Reactive cases are instantaneous: forexample, a crime that has been committed atthe airport involving drugs,” Rodriguez Merasays. In proactive cases, which can be time-consuming, there is a lot of investigative workthat is done before a person is arrested. Thesetypes of cases usually are pursued in coopera-tion with such federal agencies as the DrugEnforcement Administration, the FederalBureau of Investigation and the U.S. CustomsService, Rodriguez Mera adds. When prosecu-tors interview law enforcement witnesses, shenotes, the agents have to explain such things ashow they carried out surveillance. Tapes andtranscripts also are reviewed with informantwitnesses who will be testifying in the case.

Players in the Judicial Process

By S tuar t Gor in and Br uce Carey

Besides the defendant in a trial, there are other

players who bring their own unique perspec-

tives to the process. In separate interviews,

contributing editors Stuart Gorin and Bruce

Carey talk with Assistant U.S. Attorney Rosa

Rodriguez Mera, Southern District of Florida,

on the role of the prosecutor; Martin Sabelli, a

public defender in San Francisco discusses the

fairly new civil right in the U.S. of the right to

counsel in a criminal trial; Steve Mayo, a San

Francisco attorney who serves as the director

of the Institute for the Study of Legal Systems,

comments on the process for jury selection;

and Judge Laura Safer Espinoza, a New York

state judge, explains the mechanics of the

courtroom.

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In either event, says Rodriguez Mera, “it isthe role of the U.S. Attorney’s office to prose-cute violations of federal law.”

Once a crime has been committed and asuspect is in custody, the agent notifies the on-duty prosecutor, who determines what evidencethere is for an arrest. Such questions as “Wherewere the drugs?” and “How do we know thedefendant knew there were drugs in the suit-case?” are asked of the arresting agents. Theprosecutor then contacts the magistrate judgeon duty, who authorizes the arrest warrant anddecides how much bond will be set for a defen-dant.

The defendant makes an initial appear-ance before the magistrate within 48 hours. Atthat hearing, an attorney is appointed to thedefendant if he or she needs one; the defendantis informed of the charges and bond is set.Rodriguez Mera says that if a large amount ofdrugs is involved or there is a risk of flight or a

danger to the community, then the governmentwill request the suspect be held without bond.Otherwise, the judge can set bond in the caseand free the defendant pending trial.

After the defendant has been indicted, ifhe or she decides to plead “not guilty,” a num-ber of steps can delay the start of a trial, includ-ing motions by the defense to suppress evi-dence — which the judge rules upon — and“discovery” — when the prosecutor turns overcopies of statements, lab reports, tapes or otherevidence to the defense counsel.

Rodriguez Mera says on a case-by-casebasis within set guidelines there is a smallamount of discretion for “plea bargaining.” Inreturn for a guilty plea, for example, the gov-ernment can ask for a lesser amount of prisontime for a defendant if the defendant renders“substantial assistance in a case, such as coop-erating against a co-defendant,” she adds. Asan example, she cites a case involving 10 kilosof cocaine, which carries a mandatory 10-yearprison sentence. Rodriguez Mera says that if thedefense provides substantial assistance, thegovernment could file a motion requesting thatthe sentence be reduced, but she also points outthat the judge does not have to accept the recommendation.

The Publ ic Defender

The right to counsel in a criminal trial “isa relatively new civil right in the UnitedStates,” says public defender Martin Sabelli, anattorney whose job it is to defend personsaccused of federal crimes.

“At least at the state level,” Sabelli contin-ues, “in the long list of rights that the courts

Assistant U. S Attorney Rosa Rodriguez Mera

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have inferred from the Constitution and haveadded to those originally written by the framers,this one can be traced only to the 1960s and hastaken much of the past 30 years to developeffectively.”

The right to counsel stems from the 1963case of Clarence Gideon, a poor, uneducatedman in Florida, who was accused of a minorcrime. Gideon appeared in court without moneyor counsel and asked the court to appoint hima lawyer. But the judge refused because Floridalaw allowed court-appointed counsel only incases that could carry the death penalty. Gideonwas convicted and sentenced to prison butappealed his case through the Florida statecourt system and eventually to the U.S.Supreme Court.

“That alone is a magnificent thing,”Sabelli says. “For a poor man with little school-ing to have the right to petition the courts all theway to the Supreme Court for an injustice he

suffered tells much about the vital importanceof protecting individual liberty in our system oflaw.”

In Gideon’s case, the Supreme Court ruledin a unanimous decision that every criminaldefendant in both federal and state courts has aright to counsel, and if he cannot afford anattorney, then the court must appoint one.Gideon was given a lawyer and a new trial inFlorida. With the help of his court-appointedcounsel, Gideon was found not guilty.

The Gideon ruling is regarded as a land-mark in the ongoing refinement and advance-ment of human rights, Sabelli says. “Gideon ledto the development of the office of the publicdefender (P.D.) in both the federal court systemand in all 50 states,” he continues. “Under cer-tain special circumstances, the court appoints alawyer from a private firm to defend an accusedperson. But the bulk of ordinary indigent defen-dants get their lawyers from the P.D. office.”

The public defender is, in fact, part of thecourt itself. “We are a part of the judiciary, andthe judges oversee our operation to ensureproper ethical behavior and good administra-tion,” Sabelli points out. But no judge — infact, no person — can interfere with the privi-leged relationship between a public defenderand his client. And public defenders workharder knowing that their own presence willcause the prosecutor to work harder, Sabellinotes. Over the years, he has watched opposingcounsel — U.S. attorneys — take greater carein preparing cases and treating the accusedwith fairness and dignity when they know that apublic defender is on the other side.

“The right to counsel is the most basicright of all,” Sabelli concludes. “Without it, theother precious rights could not be guaranteed

Public Defender Martin Sabelli

—the 4th Amendment right to be free fromunreasonable searches and seizures; the 5thAmendment right against double jeopardy andagainst self-incrimination, and the right to dueprocess; the 6th Amendment right to a speedypublic trial, to be allowed to confront witness-es, and to obtain favorable evidence. The rightto counsel makes all the other rights possible,”he says. And in the long run, “it gives us betterjustice and confidence in our government.”

The Jur y

The responsibility of the jury in the U.S.judicial process “is to make factual determina-tions,” says Steve Mayo, a San Francisco attor-ney who serves as director of the Institute forthe Study of Legal Systems. He notes that if

there were no jury, then the judge would have tomake all of the decisions in law and in fact.

Instead, the jury makes its decisions based onfacts presented during the trial, on the testimo-ny of live witnesses, documents and argumentsbetween the parties presented in court.

Selection of a jury of one’s peers is a strict-ly random process, Mayo continues. The clerksof local court systems compile names from anumber of lists, including, but not limited to,voter registration, automobile registration anddrivers’ licenses. Anyone who is at least 18years of age, is a U.S. citizen and has no felonyconviction record is eligible, and is required toreport to the courthouse on a given day as partof a jury pool. Some states require persons inthe pool to return every day for a given lengthof time; others use a “one day or one trial” sys-tem, after which the citizen is excused from fur-ther duty. In either case, usually a person is notcalled back for several years.

Mayo says that on a typical day severalhundred prospective jurors are called to a courthouse and are asked questions by thejudge and the lawyers to determine their eligi-bility to serve. Examples of questions include“Do you speak and understand English?” and“Have you been the victim of a crime?”

In the criminal system, he says, the lawyerson both sides have a number of challenges toexcuse prospective jurors without giving a spe-cific reason why. Ultimately, they agree on 12men and women to serve on a trial and alsoselect three alternates who serve if one of the 12has to drop out during the course of the trial. Forcivil cases, sometimes only six jurors are needed.

Occasionally — often for some high-pro-file criminal cases — a jury is “sequestered”for the length of the trial, Mayo says. Thatmeans the jury members cannot go home and

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Attorney Steve Mayo

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are kept in hotel rooms where they do not haveaccess to radio, television or newspapers sothey cannot be influenced by what the mediasays about a case.

Immediately prior to a trial, Mayo says, thelawyers — in agreement with the judge — haveto decide what evidence is going to be allowedto go to the jury. He adds that the lawyers alsocome up with “questions to put to jury membersso when they go to deliberate they will havespecific questions they factually have toanswer.” For example, he says a question in acivil case might be “Was the person negligentwhen he ran into the other car?” In a criminalcase, a lawyer might ask “Did the defendantknowingly shoot the person?”

Specific instructions of law to the jury alsohave to be worked out by the lawyers and thejudge. Mayo says this could include such thingsas definitions of terms brought up during thetrial, how to treat circumstantial evidence andhow to treat expert witnesses.

Once the jury goes into deliberation, itselects a foreman from among its members.“This person serves as a moderator of the dis-cussions,” Mayo says, noting that “frequentlypeople become very firm in their beliefs andthey are not willing to listen to others presenttheir views.” The foreman allows everyone tomake their views known and keeps the discus-sion on track.

Deliberations can take hours or even sev-eral days because decisions have to be unani-mous. A mistrial can be declared if a jury can-not reach a verdict. In a criminal case, if aguilty verdict is reached, the sentence is usual-ly handed down by the judge at a later date.And guilty or innocent, at the conclusion of thetrial the jury is excused with the thanks of the

court for carrying out its civic duty.

With very few exceptions, Mayo concludes,the jury system does its job properly, and thedecisions reached are almost always the sameas the judge would have determined if there hadbeen no jury.

The Judge

“Judicial independence is of great impor-tance” in the United States, and openness to thepress and the public “is a good check on thejudiciary,” says Laura Safer Espinoza, a NewYork state judge. As such, the role of the judgeunder the common law system in the UnitedStates is as “a neutral, impartial finder of factsand in some cases a finder of the law as well.”

This differs from the civil law system prac-ticed in many other countries, Espinoza contin-ues, where a judge “takes the role of investiga-tor and formulator of charges as well as the trierof cases.” She points out, however, that in bothsystems, in the event of a guilty finding, thejudge usually determines the sentence.

In a criminal trial in the United States,Espinoza notes, defendants have the right toface an accuser, opposing counsel have theright to cross-examine witnesses, and all of thistakes place before a judge and/or jury, whomake “independent determinations of fact” inthe case. No judge is allowed to have exparte, orout-of-court, conversations without both of theattorneys being present, she adds. “This isrequired by our code of ethics, and is a criticalcomponent to maintaining honesty and a lack ofpossibilities for corruption in the system.”

Regarding courtroom decorum, Espinozasays that trials are open to the public and “anycitizen has the right to observe what is taking

place.” She adds that the judge has to maintain

order among both the spectators and the twosides in the trial, while moving the proceedingsalong. If attorneys do not behave in a profes-sional manner, Espinoza says, the judge has thepower to hold them in contempt of court andthey could face either a fine or a short jail sen-tence, though this rarely happens.

In recent years, a firestorm of controversyhas erupted in the United States over whetheror not to allow trials to be televised. It is anargument about the balance between the rightsof the public to know about the case and therights of the accused to a measure of privacy.

Espinoza allows that the written press hasa right to be in the courtroom, but she believesthat cameras “can lead to a distortion of theproceedings,” especially in high-profile cases.Different state legislatures set their own rulesrelating to TV in the courtroom, she says, but

even where it is allowed, a judge still has thediscretion to ban it in certain cases. By con-trast, television cameras are not allowed in fed-eral courtrooms.

The selection process for becoming a judgein the United States varies depending upon thestate, but generally follows one of two mainroutes — through popular election or appoint-ment by a governor or mayor. In Espinoza’shome state of New York, a candidate has to be apracticing attorney for a minimum of 10 yearsand face a merit-selection screening panel ofrepresentatives of law schools, bar associationsand community organizations. The panels thenpass to electoral officials names for considera-tion to be placed on ballots, or to the selectingofficial if the appointment system is used.Terms for judges in New York are for 10 yearsfor lower courts and 14 years for higher courts.Depending upon their performance, judges thenmay or may not be reelected or reappointed.


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Judge Laura Safer Espinoza

As provided for in the Constitution, the U.S. has two

distinct court systems — federal and state. Each court

system has two completely separate forms of court

proceedings — criminal and civil. E. Osborne Ayscue, Jr.,

a civil trial attorney practicing in Charlotte, North

Carolina, and the current president of the American

College of Trial Lawyers, explains these distinctions

which are key to an understanding of the U.S system

of justice.

IT WAS A TRIAL that dominated theheadlines for months not only in the UnitedStates, but also around the world — the case ofthe state of California versus famed athlete, O.J. Simpson, on charges of first-degree murder.Americans were fascinated as they tuned in bythe millions to the daily televised coverage.But viewers overseas were often confused. Whywas Simpson prosecuted in state rather thanfederal court? Why was the defendant notrequired to testify? And why, after he wasfound not guilty, was he tried again in a civiltrial where this time he was required to testify?Wasn’t that double jeopardy?

The answers to these questions lie in thecomplex nature of the U.S. judicial system andits parallel system of federal and state courts.The U.S. Constitution assigns specific powers,including certain law-making powers, to thefederal government, reserving all other powersto the states. Accordingly, there are federalcourts for prosecution of violations of federallaw, and state courts for violations of state law.Most crimes are violations of state law.

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Key Distinctions in the U.S. Court System

By E . Osborne Ayscue , J r.

Even the serious crime of murder, in mostcases, is a violation of state law in the UnitedStates. That is why O.J. Simpson was prosecut-ed by the state of California, where the crimeoccurred, and not in the federal courts. Simpsonwas not required to testify at his murder trialbecause he had the constitutional right not to,unless he so chose. In fact, defendants in theUnited States have a myriad of rights thatemanate from the Constitution itself, whether ornot they are prosecuted in state or federal court.Simpson would have had the same right not totestify against himself in a federal criminaltrial, for example.

But how could Simpson be tried twice —once in a criminal trial where he was found notguilty of the murders of his wife, Nicole

Simpson and her friend, Ron Goldman — andagain in a civil trial where he was held respon-sible for their deaths and required to pay theplaintiffs? The answer is that the U.S. criminaland civil trial systems are totally separate withdifferent penalties imposed and different rulesof procedure.

In the Simpson civil trial, the defendantwas required to testify and the standard of proofwas lower. In the civil case, instead of guiltbeyond a reasonable doubt, the jury had to findonly the preponderance of evidence as toSimpson’s guilt. The defendant has fewer pro-cedural rights in a civil trial, where the result ismost often limited to monetary damages.

Civ i l v. Cr imina l Tr ia l s

The rules for civil v. criminal trials varysomewhat in the federal and state systems, butare similar in most respects since, under theConstitution, all trials must confer specificrights to defendants, and since the rules of evi-dence are generally the same in both. But thereare major differences in procedure for civil andcriminal trials:

— Pleading. The statement of the claim orcharge is more precise and detailed in a crimi-nal case.

— Discovery. The ability of each side —prosecution and defense — to gather informa-tion to support their position, is more limited ina criminal case.

— Higher Burden. In a criminal trial, adefendant must be proved guilty beyond a rea-sonable doubt. But in a civil trial, the plaintiffand the party bringing the case must prove theclaim only by the greater weight of evidence, a

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E . Osborne Ayscue , J r.

test, for example, the Simpson jury in the civiltrial believed was met.

— Greater Protection. Because of the moresevere penalties that can be imposed, a defen-dant in a criminal trial is accorded more proce-dural rights and safeguards than a defendant ina civil trial.

— Right to Appeal. If a criminal defendantis acquitted, the prosecution’s right to appeal isalmost nonexistent since the defendant cannotstand trial twice for the same crime. In a civilcase the loser has the right to appeal.

— Speedy Trial. In jurisdictions withspeedy trial laws, criminal cases may be triedmore promptly than civil cases.

Cr imina l Tr ia l s and the R ightsof Defendants

Much of the world’s image of U.S. criminaltrials is created by Hollywood television dra-mas — from Perry Mason, who rarely if everfailed to win acquittal for his clients, to L.A.Law. These shows do not necessarily accurate-ly reflect the basic structure of a U.S courtroomin a criminal trial. In reality, criminal trials inthe U.S. are rarely as dramatic as film portray-als, and are often more ponderous and deliber-ate.

The judge is the manager of the trial andthe final arbiter of the applicable law. The jurydecides whether the prosecution has presentedenough evidence to convict the defendantbeyond a reasonable doubt. The prosecutionand the defense team present their case, underthe rules of procedure, in an adversary system.What is often amazing to overseas observers isthe array of rights that surround a criminal

defendant once he or she is accused of a crime.This is known in the United States as “dueprocess of law.” Those rights include:

— Prosecution only after a preliminaryjudicial procedure that finds probable causebased on credible evidence presented by theprosecution.

— Right to be brought into open court,where the charges are read to the defendant,who must then enter a guilty or not guilty plea.

— Right to counsel except in trials forminor offenses. This includes the right to acourt-appointed lawyer at government expenseif the defendant cannot afford one. The defen-dant also has the right to require the attendanceof witnesses and to confront them — throughhis lawyer — at trial.

— Entitlement to a trial in open court by ajury of one’s peers — in other words, fellow cit-izens. In the United States, verdicts in criminaltrials require a unanimous jury verdict in mostjurisdictions and, unlike in other countries withjury systems, both the prosecution and thedefense have a limited right to excuse jurorsfrom duty whom they believe will not be fair.

— Only one trial for the same offense. Thisis the celebrated protection against “doublejeopardy” that protects defendants from over-zealous prosecutors determined to eventuallyfind a jury that will convict.

— Right against self-incrimination. In theUnited States, a defendant cannot be compelledto testify against himself, a right O.J. Simpson,for example, invoked in his criminal trial. If adefendant chooses to testify, however, he mustanswer questions from the prosecution as wellas the defense.

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— Competence to stand trial. A defendantmust be mentally competent to understand theoffenses of which he is charged.

— A speedy trial. The Constitution guar-antees a speedy trial by an impartial jury in thejurisdiction where the offense was committed.The trial, however, also may be moved to anoth-er jurisdiction if it is felt that an impartial jurycannot be found.

— Pretrial proceedings. A defendant hasthe right to adequate time to prepare a defenseand can waive his right to a speedy trial. Healso has the right to obtain any evidence in thepossession of the prosecution that might provehis innocence. In addition, he has the right tointerview witnesses before trial.

The Cour se of a Cr imina l Tr ia l

A criminal trial begins with opening state-ments — first by the prosecution and then bythe defense. The prosecution then presents itsevidence and witnesses, who are subject tocross-examination by the defense. The court —in essence, the judge — can dismiss the case atthis stage if he or she believes the evidencedoes not prove the defendant committed thecrime.

The defense then has the opportunity topresent its evidence and witnesses. After thedefense case has been presented, the prosecu-tion may present rebuttal evidence. As in a civiltrial, the judge supervises the proceedings andrules on disputes about admissibility of evi-dence. The trial ends with closing statementsby both sides and deliberation by the jury, fol-lowing instructions by the judge.

The jury must find the defendant guilty ornot guilty on each charge. A verdict of not guiltyterminates the proceedings and the defendantis freed. In the case of a defendant who is foundguilty or who has pled guilty, obviating the needfor a trial, the sentencing phase begins, exceptin death penalty cases, where the jury isrequired to decide between death and a lesserpenalty.

The sentencing process includes a pre-sentencing investigation and the filing of areport on all matters germane to the defendant’ssentence. The defendant can review and com-ment on that report. The defendant also has theright to counsel at his sentencing hearing. Thecourt then enters an order, specifying the pun-ishment imposed on the defendant and how thatpunishment is to be carried out. The judgeimposes the sentence subject to any sentencingguidelines that may have been prescribed bylaw.

Significantly, all defendants in criminaltrials have the right to appeal to a higher court,including in some cases, up to the U.S. SupremeCourt. A trial verdict can be overturned if errorsof law have occurred, or a defendant’s rightshave been violated. The appeals process is anintegral part of the U.S. judicial system. Manydefendants have had their sentences overturnedor reduced by appeals courts.

One of the most famous examples of theoverturning of a sentence on appeal is the caseof Dr. Sam Sheppard who, in 1954, was con-victed of murdering his wife. Sheppard’s initialappeals, including one that went to theSupreme Court, were rejected. But in 1966, theSupreme Court overturned the verdict and ruledthat Sheppard was entitled to a new trial. Later

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that year, he was acquitted by a new jury.Sheppard’s case was big news at the time andbecame even more famous when it became thebasis for The Fugitive, a long-running, 1960stelevision show. But many less famous defen-dants have won new trials, or had verdicts over-turned as a result of the appeals process.

The Cour se of a Civ i l Tr ia l

In civil trials, a defendant has many, butnot all of the rights that would be available in acriminal trial. A civil action begins with a writ-ten statement of a plaintiff ’s claim and therelief he seeks, called a “complaint.” The courtthen issues a summons, asking for a response tothe complaint within a specific timeframe afterthe defendant receives it.

The defendant must admit or deny eachallegation and present any defense. He mayalso assert claims against the plaintiff, a co-defendant or a person not originally part of thecase. He may also move to dismiss the suit forfailure to state a valid claim. He could also askthe court to dismiss the suit, claiming lack ofjurisdiction over either the subject of the suit orthe defendant himself. He might also suggestthe plaintiff brought suit in the wrong court orthat the defendant was not properly notified ofthe pending case.

The next phase is a broad “discoveryprocess,” which does not normally involve thecourt. A party seeking discovery, however,requests help from the court to compel a reluc-tant opponent or other person to give informa-tion. Similarly, a party from whom unreason-able discovery is sought may seek the court’sprotection.

Discovery may include: written questionsto be answered under oath; oral depositionunder oath; requests for pertinent documents;physical or mental examinations where injury isclaimed; and requests to admit facts not in dis-pute. Before trial, either party may move forsummary judgment on any issue the evidencedoes not support. If the case continues to trial,the court may enter a pretrial order, defining theissues to be decided by the trial and makingother provisions to expedite it.

Civil cases sometimes concern gravecrimes, as in the Simpson case. Often, however,they concern less serious offenses, such aslandlord-tenant disputes. In some instances,third parties are sued. For example, in the caseof a recent shooting in Atlanta, Georgia, inwhich the alleged triggerman was killed, a rel-ative of one of his victims sued the investmentcompany where the shootings occurred, theowners of the building, the company responsi-ble for security there and the estate of thedeceased gunman.

Civil actions are normally tried in a courtopen to the public before a judge and jury of sixto 12 jurors chosen at random, unless the par-ties agree to a trial by a judge only. As in acriminal trial, the parties have the right to dis-miss certain jurors. The judge manages the trialproceedings and declares the applicable law.After opening statements, the plaintiff, who hasthe burden of proof, offers his evidence. If theevidence does not sustain the claim, it is dis-missed at this point. If the evidence is deemedsufficient, the defendant presents his case.

After both sides present their evidence, thejudge may dismiss any or all claims that are notsupportable. Each party is then allowed to make

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a closing statement, and then, the judgeexplains the law to the jury. If the case goes tothe jury, it alone must decide what the facts areand decide the case accordingly. In a case triedwithout a jury, the judge decides the outcome.

Civil penalties are generally much lessonerous than those imposed in criminal trials.In the Simpson civil trial, for example, an $8.5million verdict was imposed on the defendant.Although this may seem severe, it is consider-ably less punitive than the life prison termSimpson would have faced had he been foundguilty in the criminal trial. Simpson was con-victed unanimously in the civil case, but, underCalifornia law, he could have been convicted bya 9-3 decision. In the criminal trial, however, aunanimous verdict was required.

In addition to financial recoveries, civilpenalties may include ordering a party to per-form or refrain from a specific act or otherappropriate relief. The judge may also imposecourt costs on the losing party. Those costs arenominal and do not ordinarily include attor-neys’ fees. As in criminal cases, the losingparty has the right to appeal the decision.

Conclus ion

The U.S. court system may seem overlycomplex to some foreign observers. It is anadversary system based on trial-by-jury that isby no means perfect. But it does have theadvantage of being independent from govern-ment. No citizen in America goes to jailbecause the government wants him there. Thatdecision is made by a jury of his peers — hisfellow citizens — who decide the case based onimpartial rules of evidence that are designed, as

far as possible, to ensure that only the guilty areconvicted and punished.


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Judicial independence is a hallmark of the American legal

system. As a co-equal branch of government, the judi-

ciary — to a remarkable degree — operates free of

control by the executive and legislative branches, decid-

ing cases impartially, uninfluenced by popular opinion.

The American people respect their courts and judges,

even if they sometimes criticize them. In this contrast of

common v. civil law, U.S. District Court Judge Peter J.

Messitte (Maryland), considers some basic aspects of

both systems and explains how the American common

law system compares with that of civil law.

THE TWO PRINCIPAL legal systems inthe world today are those of civil law and com-mon law. Continental Europe, Latin America,most of Africa and many Central European andAsian nations are part of the civil law system;the United States, along with England and othercountries once part of the British Empire,belong to the common law system.

The civil law system has its roots inancient Roman law, updated in the 6th centuryA.D. by the Emperor Justinian and adapted inlater times by French and German jurists.

The common law system began developingin England almost a millennium ago. By thetime England’s Parliament was established, itsroyal judges had already begun basing theirdecisions on customary law “common” to therealm. A body of decisions was accumulating.Able lawyers assisted the process. On theEuropean continent, Justinian’s resurrectedlaw-books and the legal system of the CatholicChurch played critical roles in harmonizing athousand local laws. England, in the midst of

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Common Law v. Civil Law Systems

By Judge Peter J. Messitte

constructing a flexible legal system of its own,was less influenced by these sources. It neverembraced the sentiment of the FrenchRevolution that the power of judges should becurbed, that they should be strictly limited toapplying the law such as the legislature mightdeclare.

Thus, British colonists in America weresteeped in this tradition. Indeed, among thegrievances enumerated in the AmericanDeclaration of Independence were that theEnglish king had deprived the colonists of therights of Englishmen, that he had made colonialjudges “dependent on his will alone for thetenure of their offices” and that he had deniedthe people “the benefits of Trial by Jury.”

After the American Revolution, Englishcommon law was enthusiastically embraced by

the newly independent American states. In themore than 200 years since that time, the com-mon law in America has seen many changes —economic, political and social — and hasbecome a system distinctive both in its tech-niques and its style of adjudication.

How does America’s common law systemcompare with that of civil law?

“ Judge-made” Law

It is often said that the common law systemconsists of unwritten “judge-made” law whilethe civil law system is composed of writtencodes. For the most part, law in the UnitedStates today is “made” by the legislativebranch. To some extent, however, the judge-made law analogy is true.

Historically, much law in the Americancommon law system has been created by judi-cial decisions, especially in such importantareas as the law of property, contracts and torts— what in civil law countries would be knownas private delicts. Civil law countries, in con-trast, have adopted comprehensive civil codescovering such topics as persons, things, obliga-tions and inheritance, as well as penal codes,codes of procedure and codes covering suchmatters as commercial law.

But it would be incorrect to say that com-mon law is unwritten law. The judicial deci-sions that have interpreted the law have, in fact,been written and have always been accessible.From the earliest times — Magna Carta is agood example — there has been “legislation,”what in civil law systems would be called“enacted law.” In the United States, thisincludes constitutions (both federal and state)

25

U.S. District Court Judge Peter J. Messitte

as well as enactments by Congress and statelegislatures.

In addition, at both the federal and statelevels, much law has in fact been codified. Atthe federal level, for example, there is an inter-nal revenue code. State legislatures have adopt-ed uniform codes in such areas as penal andcommercial law. There are also uniform rules ofcivil and criminal procedure which, althoughtypically adopted by the highest courts of thefederal and state systems, are ultimately rati-fied by the legislatures. Still, it must be notedthat many statutes and rules simply codify theresults reached by common or “case” law.Judicial decisions interpreting constitutionsand legislative enactments also become sourcesof the law themselves, so in the end the basicperception that the American system is one ofjudge-made law remains valid.

At the same time, not all law in civil lawcountries is codified in the sense that it is orga-nized into a comprehensive organic, wholestatement of the law on a given subject.Sometimes individual statutes are enacted todeal with specific issues without being codified.These simply exist alongside the more compre-hensive civil or penal codes of the system. Andwhile decisions of the higher courts in a civillaw jurisdiction may not have the binding forceof law in succeeding cases (as they do in a com-mon law system), the fact is that in many civillaw countries lower courts tend to follow thedecisions of higher courts in the systembecause of their persuasive argumentation.Nevertheless, a judge in the civil law system isnot legally bound by the previous decision of ahigher court in an identical or similar case andis quite free to ignore the decision altogether.

The Concept of Precedent

In the United States, judicial decisions dohave the force of law and must be respected bythe public, by lawyers and of course, by thecourts themselves. This is what is signified bythe “concept of precedent,” as expressed in theLatin phrase stare decisis — “let it [the deci-sion] stand.” The decisions of a higher court inthe same jurisdiction as a lower court must berespected in the same or similar cases decidedby the lower court.

This tradition, inherited by the UnitedStates from England, is based on several policyconsiderations. These include predictability ofresults, the desire to treat equally everyone whofaces the same or similar legal problems, theadvantages to be gained when an issue is decid-ed that affects all subsequent cases, andrespect for the accumulated wisdom of lawyersand judges in the past. But it is also understoodthat primary responsibility for making lawbelongs to the legislative authority; judges areexpected to interpret the law, at most filling ingaps when constitutions or statutes are ambigu-ous or silent.

Thus, there are important limiting featuresto the concept of precedent. First and foremost,a court decision will only bind a lower court ifthe court rendering the decision is higher in thesame line of authority. For example, a decisionof the U.S. Supreme Court on a matter of con-stitutional or ordinary federal law will bind allU.S. courts everywhere because all courts arelower and in the same line of authority as theSupreme Court in such matters. But decisionsof one of the several U.S. Courts of Appeals —the intermediate federal appeals courts — willonly bind federal trial courts within their

26

respective regions. Decisions of a state supremecourt on the meaning of a state law where thatcourt sits will be binding everywhere, so long asthe state court’s decisions do not conflict withconstitutional or federal statutory law.

American judges tend to be very cautiousin their decision-making. As a rule, they onlyentertain actual cases or controversies broughtby litigants whose interests are in some waydirectly affected. In addition, judges usuallydecide cases on the narrowest possible grounds,avoiding, for example, constitutional issueswhen cases may be disposed of on non-consti-tutional grounds. Then, too, the “law” thatjudges state is only so much of their decision asis absolutely necessary to decide the case. Anyother pronouncement on the law is unofficial.

Another important limiting feature of theconcept of precedent is that the later case mustbe the same or closely related to the previousone. Unless the facts are identical or substan-tially similar, the later court will be able to dis-tinguish the earlier case and not be bound by it.

The highest court of a jurisdiction, e.g., theU.S. Supreme Court for the United States or astate supreme court within its own state, canover-rule a precedent even where the facts of thelater case are identical or substantially similarto the earlier case. In 1954, for example, in thefamous school integration of Brown v. Board ofEducation, the U.S. Supreme Court over-ruledan analogous decision it had rendered in 1896.

But such direct over-ruling is not common.What is more likely is that the high court, by dis-tinguishing later cases over time, will move awayfrom an earlier precedent which has becomeundesirable. But for the most part, the longstanding precedents of the high courts remain.

An Organ ized Law

Where does one go to find the law inAmerica? It might be supposed that with bothenacted law and judicial decisions comprisingthe law, the search would be difficult. But thetask in fact is relatively easy. Even though muchAmerican law is not codified, it still has beensystematized and organized by subject matter.Legal encyclopedias and treatises written bylearned professors and practitioners set out thelaw in logical sequence, typically providing his-torical perspectives as well. These books ofauthority contain references to the principlesand specific rules of law in a given branch oflaw, as well as citations to relevant statutes andjudicial decisions. Accessing statutes in “code-books” and cases in bound volumes calledcourt reports, and nowadays accessing both bycomputer, is a relatively straightforward under-taking.

But it also bears noting that in the commonlaw system, treatise writers do not have thesame importance that they do in the civil lawsystem. In civil law countries, such authoritiesare often considered sources of law, looked tofor the development of the doctrine relative to agiven subject matter. Their statements are givenconsiderable weight by civil law judges. In theUnited States, in contrast, doctrine developedby treatise writers lacks binding force, althoughit may be cited for its persuasive effect.

Common Law v. Civ i l Law

Apart from these features, there are a num-ber of institutions associated with the commonlaw system not usually found in civil law sys-tems. Principal among these is the jury which,

27

at the option of the litigants, functions in bothcivil and criminal cases. The jury is a group ofcitizens, traditionally 12 in number, summonedat random to determine the facts in a lawsuit.When a trial by jury is held, the judge willinstruct the jury on the law, but it remains forthe jury to decide the facts. This means thatordinary citizens will decide which party willprevail in a civil case, and whether, in a crimi-nal case, the accused is guilty or innocent of thecharge against him or her.

The institution of the jury has had animportant shaping effect on the common law.Because jurors are brought in on a temporarybasis to resolve factual issues, common law tri-als are usually concentrated events, sometimesonly a matter of days (although occasionallypossibly weeks or months in duration).Emphasis is on the oral testimony of witnesses,although documents also are presented as evi-dence. Lawyers have responsibility for prepar-ing the case; the trial judge performs no inves-tigation of the case prior to trial. Lawyers, act-ing as adversaries, take the lead in questioningthe witnesses at trial, while the judge actsessentially as a referee. Testimony is recordedverbatim by a court reporter or electronically.

The trial court, which is the “court of firstinstance” (i.e., where the case is first heard) inthe American system, is where the factualrecord of the case is made. Generally speaking,appeals courts confine their review of the lowercourt record to errors of law, not of fact. No newevidence is received on appeal.

All this stands in marked contrast to whatis usually found in civil law systems, where jurytrials are for the most part unknown. In a givencase, instead of a single continuous trial, a

series of court hearings may be held over anextended period. Documents play a moreimportant role than witness testimony. Thejudge actively investigates the case and alsoconducts the questioning of the witnesses.Instead of a verbatim record of the proceedings,the judge’s notes and findings of fact comprisethe record. Appeals may be taken both on thefacts and the law, and the appeals court can,and sometimes does, open the record to receivenew evidence.

Despite their differences, both the com-mon and civil law systems have as their goal thejust, speedy and inexpensive determination ofdisputes.

U.S. courts have become particularly sen-sitive in recent years for the need to continu-ously reappraise their processes in order toimprove the quality of justice. As a conse-quence of these efforts, there are many otheraspects of court activity in the U.S. These rangefrom alternate dispute resolution mechanisms(including arbitration and mediation) to suchprocedural devices as default and summaryjudgment, used by judges to decide cases at anearly stage without having to proceed to a for-mal trial.


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J U D I C I A L R E V I E W

A unique characteristic exercised by theU.S. judicial system, “judicial review,” is notmentioned in the Constitution. It is consid-ered, however, a legitimate right permittinga court “to declare invalid and thus setaside legislation or executive action whichhas been deemed contrary” to the meaningor interpretation of the Constitution.

The concept of judicial review was firstdeveloped in Marbury v. Madison (1803) inone of the Supreme Court’s earliest andmost celebrated cases, when WilliamMarbury was appointed a justice of thepeace by the outgoing president, JohnAdams. Marbury had never received hiscommission, however, because of infightingbetween Adams and the new president,Thomas Jefferson, who had orderedSecretary of State James Madison to withhold the commission. Marbury success-fully petitioned the Supreme Court to issuea writ of mandamus, which forced govern-ment officials to perform their duties, eventhough they might disagree with the results.

In the unanimous decision by the SupremeCourt, Chief Justice John Marshall laid thegroundwork for the future authority of theCourt by stating that the judicial branch ofthe government is responsible “to say whatthe law is....This is the very essence of judi-cial duty.” Although the Judiciary Act of1789 had allowed the Court to issue writsof mandamus in the first place, the justiceshad previously considered them contradic-tory to the meaning of the Constitution.

Marbury v. Madison thus established animportant function of the Supreme Court,as well as all other U.S. federal courts.Although Marbury v. Madison did not holdthat the justices amend the law or theConstitution — they could only interpret it— the premise of judicial review gave theCourt, and thus, the entire U.S. judicial sys-tem, much greater power.

— Deborah M.S. Brown

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30

JUDICIAL ETHICS are closely linked tojudicial independence, and it’s hard to talkabout one without talking about the other.

The law is a promise. The promise is neu-trality. If the promise is broken, if there is noneutrality in the enforcement, in the adminis-tration, in the interpretation of the law, then thelaw as we know it ceases to exist.

Judicial independence is closely related toneutrality. It is the duty of the judiciary toinsist that the other branches of governmentgive to the judiciary the resources and the sup-port and the defense that the judiciary needs todo its job. But it is difficult to convince theother branches of government, in part, becausesome legislators think judges have an easy job.Legislators are reluctant to raise judges’salaries or to appoint more judges. It is alsodifficult because resources are scarce, and leg-islators have to be concerned with building hos-pitals and schools and roads. A functioninglegal system is as important to a growing

Judicial Ethics and the Rule of Law

By Supreme Cour t Ju s t i ce Anthony Kennedy

The rule of law underlies a constitutional democracy,

and one of the critical components of the rule of law in

a constitutional democracy is neutrality. In a telepress

conference to Slovenian judges, U.S. Supreme Court

Justice Anthony Kennedy talks about how the judicial

branch of government must guarantee the neutrality of

the rule of law while maintaining a delicate balance

between judicial ethics and independence.

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economy and to a progressive society as arehospitals and schools and roads. And so, it isthe duty of the judge to explain that the courtsand the law are an important part of the capitalinfrastructure of any society.

The Concept of Jud ic ia l Eth ics

Closely related to judicial independence isthe whole concept of judicial ethics. If a judgeis asked to speak to his or her colleagues on thesubject of judicial ethics, at first he or she mightbe reluctant or diffident; but it is very importantfor judges to talk about judicial ethics. It doesn’tmean that the speaker is perfect. It means thatwe are concerned enough to ensure that thejudiciary has the reputation and the reality ofintegrity and neutrality in all that it does.Judicial ethics — as well as judicial indepen-dence — concerns appearances and reality. Ifthe appearance, if the perception of unfairness

exists, a cloud is cast over the judiciary.

One way to think about an ethical code forjudges is to say that it has three parts. The firstpart is that each judge must have as his or herpersonal code the highest possible standards forpersonal and professional conduct. Your per-sonal life, the way in which you relate to yourfamily and your society inescapably becomesknown to the public, and you must comportyourself with the demeanor, with the fairness,with the integrity, with the rectitude that weexpect of our most responsible citizens.

From a professional standpoint, the judgemust maintain a demeanor that befits a highjudicial official. Demeanor and temperamentare very important. For instance, it is some-times difficult for a judge to be restrained whenan attorney is deliberately attempting to arguewith the court.... But the judge must insist thatthe attorney respect not the judge’s personaldignity, but the dignity of the office that thejudge represents. And it is an art to learn howto control the attorneys in your courtroom.

Some of the finest judges that I know in thefederal system have never held an attorney incontempt, have never punished an attorney. Bytheir demeanor, by their stature, by the way theycomport themselves, they bring such respect tothe courtroom that no attorney would ever darecross the line of improper conduct before thatjudge.

Every litigant wants a fair hearing. Andthat hearing has to have the perception and thereality of being neutral.... The judge mustensure that the hearing is fair in any number ofways. He or she has to give equal time to allsides. He or she has to be expeditious.

And if a litigant gets a fair hearing, most of

U. S. Supreme Court Justice Anthony Kennedy

them think that justice has been done. Mostpeople who have a cause that they bring to thecourt are convinced that if only a neutral, fairperson will listen to them, justice will be done.

Batt le for Neutr a l i ty

Judges, as part of their personal and pro-fessional code, must avoid conflicts of interest.Judger may have families in agriculture or busi-ness or industry. Does this affect their mind-set? Does this affect their attitude? Is a judgefrom a particular region of the country so thatthis affects the way he or she decides a case?These things all have a bearing on the outlookof a judge.

But the secret of being a judge who has ahigh standard of ethics is that you never stopexploring yourself. I have been a judge for over20 years, and I am surprised how often I haveto go back to the very beginning and ask, “Am Icontrolled by some hidden bias, some predispo-sition, some predilection, some prejudice thateven I cannot see? What is it that is urging meto decide the case in this particular way?” Ihave to examine my own background and myown intellectual position to ensure that I ambeing fair.

The battle for neutrality, the battle for fair-ness in the judge’s mind, never ends. You haveto have some outward structures that enable youto strive for perfect neutrality...but you maynever reach it because we are all the product ofour own biases and background.

Canons of Eth ics

There are, however, certain basic rules fora fair hearing. First, you do not have a financial

or a personal interest in the case that you’rehearing. This sounds simple enough, but whatif a member of your family owns stock in a cor-poration or some of your friends have told youthat they hope the case will come out a certainway? This is a conflict of interest and you mustresist it.

In the United States — and I’m talkingabout the federal judiciary — the personal codeof conduct is fortified by written canons ofethics. So in my view, the personal code of con-duct should be reflected in a written code ofethics, and judges should talk about that code.

When you hear or read the U.S. code ofethics, it sounds so simple, so basic, so ele-mentary, that you might think everybody wouldagree with it. It sounds almost simplistic, likea platitude. Let me read the seven canons ofethics. These precepts are principles withwhich no one could disagree.

— A judge should uphold the integrityand independence of the judiciary.

— A judge should avoid impropriety andthe appearance of impropriety in all activities.

— A judge should perform the duties ofthe office impartially and diligently.

— A judge may engage in extra-judicialactivities to improve the law, the legal systemand the administration of justice.

— A judge should regulate extra-judicialactivities to minimize the risk of conflict withjudicial duties.

— A judge should regularly file reports ofcompensation received for law-related andextra-judicial activities; and

— A judge should refrain from politicalactivity.

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Some of these canons, including disclo-sure, reflect the official position of the judiciaryof the United States principally to avoid finan-cial conflicts. We are required by law to file apublic statement that lists all of our property, allof our assets, all of our holdings and all of ourincome.... We were so concerned to ensure theappearance of neutrality, that we insisted thatall the judge’s holdings must be disclosed. Forexample, if a judge owns even one share ofstock, or if a spouse or a member of the judge’sfamily owns one share of stock, that judge ismandatorily disqualified from participating in acase that is connected to that company.... Or ifthe judge thinks that he or she has a sufficientinterest in a case so that neutrality cannot beensured, the judge should not sit, even if theattorneys ask the judge to do so.

A Committee of Judges

In the U.S. federal judiciary, we have acommittee of judges that answers questionsfrom all members of the judiciary who haveconcerns about judicial ethics.... The commit-tee gives the judge not only some advice andsome principles to think about and to consider,but it also gives the judge some protection. Ifthe judge is later criticized for hearing a case,he or she says, “Well, I wrote about this to thecommittee and the committee agrees with me.”

Let me give you an example. We had ajudge who had spent time on a very complexanti-trust case. During the case, he met a ladyand they were married. He found out that hiswife had a substantial number of shares of stockin the corporations that he was dealing with,and so he wrote to the committee asking whathe should do....

So, an ethical system should have a per-sonal and professional code; it should have awritten system of ethics, and it should have amechanism for enforcing them.

Acknowledging a Judic ia l Code

From time to time, a judge will dishonorthe judicial oath and dishonor the bench. Thisbrings the law as a whole into disrepute. It istragic, but judges are human, and of course,they are subject to human failings....

In the federal system in the United States,a judge can be removed only by beingimpeached by the U.S. Senate. There havebeen only seven instances in our 200-year his-tory in which the Senate has had to remove ajudge. Some other judges have resigned underpressure...because of such things as corruption,bribes, alcoholism or mental instability.

In addition to removal of a judge byimpeachment, the United States has a discipli-nary mechanism in which judges are admon-ished or reprimanded for misbehavior. This iscontrolled by the judiciary itself, and I think itvery important that any mechanism for the cen-sure or reprimand of judges short of removalshould be within the hands of the judiciary. Butin turn, the judiciary ought to have a strongenough ethic, a strong enough tradition of fair-ness and independence that it can deal with itsown problems....

This is part of judicial independence. Itdoesn’t mean that we must conceal or protectmembers of our own guild; it means we must beforthright and vigorous in acknowledging thatthere must be a judicial code, that it must bespecific, that we must understand what it is andthat we must enforce it.

I have gone on for some time, and now Iwould like to take your questions.

QUESTION: The Slovenian constitution hasa special provision stipulating that a judge maybe a member of a political party, but he or sheshall not hold any office in a political organiza-tion. Serious questions arose during the localand state election campaigns as to whether ajudge may identify himself or herself as a mem-ber of a political party, and whether a judge maypublicly endorse a non-judicial candidate forpublic office. Do you think that such politicalactivity may be considered inappropriate?

JUSTICE KENNEDY: In the U.S. structurewe have a federal judiciary, of which I am amember, and 50 separate state judiciaries.Some of the answers that I will give you todayreflect the federal tradition, which is more rig-orous, more remote, more insistent on separa-tion of powers. And so I’ll give you twoanswers: a state answer and a federal answer.

In the federal tradition, we would be horri-fied if a judge endorsed a political candidate.We think this is inconsistent with the separationof powers that must pertain in our constitution-al system. We think judges should not have apolitical identity.

In the state system, a number of judges areelected. This causes our friends in manyEuropean countries to wonder if that judge canever be independent if he or she is chosen byelection. This is beginning to cause a tremen-dous amount of discussion in the United States,too, because we have the problem of tremen-dous amounts of money being put into televi-sion campaigns, sometimes for judges. So the

question you ask about judges and politics is avery sensitive one in the United States.

If the judiciary is going to be independent,it must divorce itself from political activities. Ajudiciary cannot be caught up in the partisandisputes that a vigorous political system neces-sarily engages in. And so I do not think that itis wise to have judicial/political labels added toa judge’s name, and I certainly do not think thata judge should endorse a political candidate.One of the sacrifices that you make when you goto the judiciary is that there are certain parts ofpublic and private life that you can no longerparticipate in, and ultimately, you will bringdisrespect to the neutrality of the judiciary ifyou engage in political affairs.…

I think promotions and evaluations ofjudges must be on their merits as scholars andof their commitment to the neutral principles ofthe law. So to the extent that your culture andyour political system allow it, I would takeevery possible step to divorce the judge frompolitical endorsements and political activity.

QUESTION: Slovenia is now in the middle ofa debate about constitutional changes. Do yousee any obstacles for an association of judges tocontribute to the improvement of the constitu-tional law by organizing discussions or partici-pating in preparing a constitutional draft?

JUSTICE KENNEDY: Judges exercise poweras part of the governmental apparatus. And so,it is necessary for judges — with their profes-sional experience and their commitment to neu-trality — to engage in those discussions andactivities which will improve the law.

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In the United States, we have specific rul-ings in our canons which not only permit butencourage judges to teach, to engage in activi-ties to improve the legal system....

When U.S. judges look for allies, we oftengo to our friends and former colleagues.... Wedo this openly, explaining in a public letterwhat our judicial concerns are. We cannot beso removed from the world that we can orshould ignore issues and legislation and poli-cies that affect the judiciary, and I think it’squite appropriate for a judge to engage in suchactivities and discussions.

A judge must be very careful though, tomake clear that the judge is doing this as anextra-judicial activity, and will not engage insuch discussions on the bench or put it in his orher opinions or writings.

QUESTION: I have read your code of judi-cial conduct...and I would like to know some-thing more about the provisions of the enforce-ment of these rules, and in case of transgression,what are the consequences and who enforcesthem?

JUSTICE KENNEDY: In the judiciary of theUnited States, we have in each region what wecall a judicial circuit. Every state and theDistrict of Columbia belongs to one of 12 dif-ferent circuits. Each of those circuits has achief judge and each one of those chief judgeshas a committee, and it consists of half trialjudges and half appellate judges. Any citizencan make — or any other judge can make — acomplaint about another judge.

Some of these complaints are simply frivo-

lous. They come from a disappointed litigantwho makes some unfounded charge against thejudge. These are quickly investigated and dis-missed. If there are more serious transgres-sions alleged, then there is a series of steps. Insome instances, the chief judge and the com-mittee simply call the judge before the commit-tee and in private, counsel the judge.... Thereis no record of the proceedings of the commit-tee other than to say that the complaint wasacknowledged and disposed of.... The commit-tee urges that this conduct not be repeated,points out the ethical violation and the damagethat this judge does to the judiciary.

If the transgression is either repeated or ismore serious, the discipline can include a pub-lic censure and an order from the chief judgethat certain cases be withdrawn from theoffending judge. The judge’s calendar will belimited or cases which he or she has mishan-dled will be taken away.

If the transgression is very serious,amounting to a gross breach of judicial ethics ora crime, the chief judge refers the offendingjudge to the U.S. Senate for impeachment. Thishas happened twice, I think, in the last 10years, and in both cases the judge wasimpeached.

Some of these problems occur because ajudge is indifferent, insensitive or sometimeslazy.... Judges must be scholars. Some judgesthink that when they get on the bench, they canstop learning. They’re wrong. When you get onthe bench, that’s when you have to begin yourlearning. This is part of your ethical duties.And some American judges — all of whom areoverworked and overloaded — simply becomecareless and insensitive. That’s why our best

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technique is counseling by other judges, and itworks most of the time.

Let me just say that in some U.S. states,there are judicial removal commissions withprivate citizens represented, not judges. That’snot the federal system. The mechanisms in thestates are quite different from the ones I havedescribed.

QUESTION: Allow me to pose a questionregarding independence of judges through thefollowing example. There is a bankruptcy casepending against a firm that issued junk bonds.There is a congressional investigation concern-ing responsibility of politicians involved in theissue of these junk bonds. Might a judge hear-ing the bankruptcy case be a witness in the inves-tigation? And, if the answer is affirmative, whatare the judge’s devices against the questions ofinvestigators about the rulings made in thepending bankruptcy case?

JUSTICE KENNEDY: I’m reluctant to com-ment on any specific case where I don’t knowall of the background, but your question doesallow me to address certain general principles.

For the most part, our rules specifically prohib-it a judge from being a character witness.…

But if a judge has certain information aboutactivities that are under investigation, then likeany other witness, the judge must give to theinvestigating authorities the facts that are with-in his or her knowledge.…

QUESTION: Your code of judicial conductsays that “Judges may write, lecture, teach andspeak on non-legal subjects and engage in thearts, sports and other social and recreational

activities, but it must not conflict with their judi-cial duties.” I would like to know, first, do theyneed any consent? For example, in our countrywe must have the consent of our president of thecourt if we want to engage in any extra-judicialactivity. Second, can they receive payment forthat extra-judicial activity? And third, is therea limit for that payment? For example, can ajudge earn money from extra-judicial activities?

JUSTICE KENNEDY: In the federal system,judges can earn money from teaching and fromwriting. That salary is limited by federal law,and it is roughly 10 percent of the judge’ssalary. But you must get the permission of thechief judge of your court before doing so inorder to ensure that it will not conflict with yourjudicial activities.... We can never take a fee forlecturing to any group that has an interestbefore the court. And we must lecture only tolaw schools or professional associations.Insofar as engaging in other activities likeprotests and rallies and so forth, judges cannotdo that.

••••••••••••

In closing, I’d like to say that this has beena fascinating hour for me. There is a kinship, abond, a tie of affection among all judges world-wide. We share the same aspirations, the samebeliefs, the same trials and tribulations, thesame sense of fulfillment and excitement whenwe advance the rule of law. As this centurycomes to a close, I think historians will say thatone of the great advances in our civilizationduring this last 100 years has been the gift oflaw to people across the world. The rule of law

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is understood as being the birthright of everyman and woman, and judges symbolize both thereality and the aspirations of that rule of law.

Thank you very much.


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IN THE SPRING of 1954, Oliver Brownwas the most famous father in America. But hewas not the only plaintiff in the Brown v. Boardof Education case, which originally was filed in1951. Twelve other plaintiffs in Topeka joinedwith Brown to represent their children — 20 inall — who were required by law to attend seg-regated elementary schools. The initial lawsuitwas championed by the Topeka chapter of theNational Association for the Advancement ofColored People (NAACP), the nation’s oldestcivil rights organization.

The Brown case, however, was not the firstchallenge to legally mandated, segregated edu-cation in the United States. As early as 1849, alawsuit had been filed in Boston,Massachusetts. In Kansas alone, between 1881and 1949, there were 11 suits filed against seg-regated school systems. By the time the Topekasuit reached the Supreme Court, racial segrega-tion in public schools was the norm acrossmuch of the nation and was permitted or legal-


Brown v. Board of Education The Supreme Court Decision thatChanged a Nation

By Dav id P i t t s

In May 1954 — in a landmark decision,

Brown v. Board of Education — the U.S.

Supreme Court ruled that segregated

public schools were unconstitutional. The

case name, Brown, refers to Oliver Brown,

an African American, who sought legal

redress when his seven-year-old daughter,

Linda, was refused admission to an all-

white elementary school in the small, mid-

western city of Topeka, Kansas, where they

lived. Contributing editor David Pitts

traces the origins of one of the most

important decisions in the history of U.S.

constitutional law that changed not only

Topeka, but the entire nation.

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ly required in 24 states. The Brown case standsout because it was the first successful one of itskind, because of the scope of the SupremeCourt ruling and because of its radical effect onAmerican society in the mid-20th century.

An Unsung Hero

“The unsung hero of the lawsuit in Topekais McKinley Burnett,” who was then presidentof the local chapter of the NAACP, says C.E.(Sonny) Scroggins, head of the KansasCommittee to Commemorate Brown v. Board ofEducation. “It was Burnett who recruitedOliver Brown and the other parents and pushedthe legal challenge with the help of the localattorneys,” Scroggins adds, a viewpoint con-

firmed by other sources in Topeka. In effect,Burnett — with the help of NAACP secretaryLucinda Todd and attorneys Charles Scott, JohnScott, Elisha Scott and Charles Bledsoe —devised a strategy to win the case.

Burnett died in 1970. His son, Marcus,who was 13 at the time of the initial suit andwho still lives in Topeka, says challenging seg-regation “was a life-long struggle for my father.He was an ordinary working man who believedsegregation could be crushed through thecourts. He was always convinced we wouldwin.” Marcus Burnett’s sister, Marita Davis,who now lives in Kansas City, Kansas, concurs.“My father was always fighting for his rights,”she says. “I remember that, even as a veryyoung girl. He was always writing letters andholding meetings. Fighting school segregationbecame very important to him.”

The P la int i f f s

According to some sources in Topeka,Oliver Brown was the lead plaintiff in the caseprincipally because he was the only man amongthem. But Charles Scott, Jr., son of the leadlocal attorney, says Oliver Brown “was madethe lead plaintiff because his name came firstalphabetically. This case was driven by myfather and the other local attorneys in coopera-tion with Mr. Burnett and the NAACP.”

Linda Brown Thompson, now 55 and stillliving in Topeka, is reluctant to discuss herexperience and her father’s role in challengingthe system, partly because she feels too muchemphasis has been placed by the media on her,to the exclusion of the other 12 plaintiffs inTopeka. Her sister, Cheryl Brown Henderson,executive director of the Brown Foundation for

Left,Walter White, executive vice president of the NAACP. Right, McKinley Burnett, president of the

Topeka Chapter, NAACP, in the early 1950s.

Court

esy

Morita

Dav

is

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Educational Equity, Excellence and Research,agrees with Charles Scott, Jr.’s assessment.“We are very proud of what our father did,”Henderson says. “But it is important not tooversimplify the Brown case — not to forget theattorneys, the other plaintiffs in Topeka and theplaintiffs in the other states who eventuallywere included in the Brown case.”

Zelma Henderson and Vivian Scales, twoof the Topeka plaintiffs who also still live there,were young mothers in the early 1950s. Bothwomen were eager to be part of the suit. Andthey both pay tribute to McKinley Burnett andthe local lawyers, saying it was their leadershipthat made the fight for integration possible.

“I had to drive my two children right

across town, past two all-white schools, to anall-black school,” says Henderson. “My chil-dren always were proud of our role in makinghistory,” she continues. “Donald Andrew isstill here in Topeka. He’s 55 now. But I lost mydaughter, Vicki Ann, to cancer in 1984.”

Scales says she also had to take her child,Ruth Ann, “past an all-white school which wasright across from where we lived. My daughter,who still lives here and is 57 now, feels verygood about what happened. I feel we accom-plished something very important.”

The F i r s t Ru l ing

Burnett and the plaintiffs got their day incourt in Topeka on February 28, 1951, beforethe U.S. District Court for the District ofKansas. Raymond Carter, now a federal judgein New York, was then an attorney with theNAACP Legal Defense Fund. With the assis-tance of the local attorneys, he argued the caseand requested an injunction that would forbidthe segregation of Topeka’s public elementaryschools.

The judges were sympathetic to the plain-tiffs’ case, saying in their decision,“Segregation of white and colored children inpublic schools has a detrimental effect upon thecolored children.” But ultimately, the judgesruled against the plaintiffs because theSupreme Court had decreed in an 1896 deci-sion — Plessy v. Ferguson — that “separate butequal” school systems for blacks and whiteswere, in fact, constitutional, a decision that hadnot been overturned. The Kansas court thusfelt compelled to rule in favor of the Topeka

Zelma Henderson, one of the plaintiffs in the Brown case.

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Board of Education and against the plaintiffsbecause of the Plessy precedent.

“In one sense, my father, the other localattorneys and Mr. Burnett were not disappoint-ed,” says Charles Scott, Jr. “They knew that theonly way for segregation to be overturnedthroughout the nation and not just in Topekawas for the case to be lost and then appealed tothe Supreme Court.”

The Supreme Cour t Dec is ion

On October 1, 1951, in preparation for it togo to the nation’s highest court, the Brown casewas combined with other lawsuits that chal-lenged school segregation in South Carolina,Virginia, Delaware and the District ofColumbia. The combined cases officiallybecame Oliver L. Brown et al. v. The Board ofEducation of Topeka, et al. Thurgood Marshall,who later became the first African American tosit on the Supreme Court, was the nationalNAACP legal counsel who successfully arguedthe case for the plaintiffs.

The unanimous decision declaring segre-gated schools unconstitutional was read on May 17, 1954, by Supreme Court Chief JusticeEarl Warren. “We conclude,” he said, “that inthe field of public education the doctrine of‘separate but equal’ has no place. Separateeducational facilities are inherently unequal.Therefore, we hold that the plaintiffs and otherssimilarly situated for whom the actions havebeen brought are, by reason of the segregationcomplained of, deprived of the equal protectionof the laws guaranteed by the 14th Amendment.”

A Great Lega l Tr iumph

The outcome of Brown v. Board ofEducation was hailed as a great legal triumph,a landmark case evidencing that, in America,the courts exist not just to prosecute crimes butto affirm rights. “The ruling ranks high amongall Supreme Court decisions,” says RobertBarker, a law professor and expert on constitu-tional law at Duquesne University School ofLaw in Pittsburgh, Pennsylvania.

It is important, he adds, that the SupremeCourt relied on the equal protection clause ofthe 14th Amendment to the U.S. Constitution inrendering its decision. “The Court applied theequal protection clause in the manner it wasintended — to provide protection for AfricanAmericans in particular.” But there is a broad-er significance, Barker says. “The 1954 deci-sion led to a great deal of other litigation inwhich the equal protection clause was refer-enced, benefiting women and other groups whofelt they were denied equal rights.”

Asked how the Court could rule one way— for segregation in Plessy v. Ferguson andagainst it in the Brown case — Barker respondsthat the Court “had more than 50 years of evi-dence that racial segregation as practiced, wasin fact, a method of oppressing one racial group,and not ‘separate but equal.’”

Mark Tushnet seconds Barker’s pro-nouncement in his definitive book, Brown v.Board of Education: The Battle for Integration.“Even today,” he writes, “Brown stands as theCourt’s deepest statement on the central issuein American history — how Americans of allraces should treat one another. In that sense, itis a triumph of American constitutionalism.”

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Paul Wilson, the Kansas state assistantattorney general, who argued the case in courtfor segregation, agrees. The Supreme Court rul-ing, he says, “enlarged the definition of basicjustice in intercommunity relations.” Wilson,who details the story of the lawsuit in A Time ToLose: Representing Kansas in Brown v. Board ofEducation, writes that the decision also “gavenew dimension to the constitutional concept ofequal protection and due process of law.”

Aftermath of the Ru l ing

The Topeka Board of Education did not waitfor the Court to rule before amalgamating its blackand white elementary schools. Before the Browncase, Kansas law had provided for the segregationof elementary schools in communities with popu-lations larger than 15,000. Its junior and seniorhigh schools never had been segregated.

But over much of the nation, the task wouldprove more difficult. That’s one reason why theSupreme Court, in a lesser known follow-up deci-sion in 1955, issued an implementation rulingordering a “prompt and reasonable start towardfull compliance” and the achievement of schoolintegration “with all deliberate speed.”

Even so, resistance was widespread and thewillingness of executive branch officials to useforce to implement the Court decision wasrequired in some places. The most famousinstance was in 1957 when President DwightEisenhower sent federal troops to Little Rock,Arkansas, after the governor of the state, OrvilleFaubus, failed to obey a federal court order to inte-grate the schools there — the first time federaltroops had entered the South to protect AfricanAmericans since the early years after the CivilWar.

Elsewhere in the South, the picture wasmixed. In most places, school desegregationproceeded smoothly, if not always quickly. Bythe 1956-1957 school year, “desegregationaffecting 300,000 black children was underwayin 723 school districts,” according to DavidGoldfield, who details the story of school deseg-regation in Black, White and Southern.

On the other hand, Goldfield says,Southern lawmakers passed 450 laws “designedto circumvent the Supreme Court ruling,” andas late as 1960 “less than one percent of theSouth’s students attended integrated schools.”Progress was much faster in Topeka, and in theMidwest generally, with the South finally catch-ing up in the late 1960s and early 1970s.Although the battle against legally mandatedsegregation was won long ago, the federal courtstoday are still dealing with school district seg-regation issues that result from voluntary resi-dential patterns.

The Cour ts ChangeEntrenched Views

The struggle against segregation showshow difficult it is to change entrenched viewsand customs in any society, particularly thosedeeply rooted in tradition and history, says JohnPaul Jones, a law professor and constitutionalexpert at the University of Richmond inVirginia. “It is significant that the change,when it did come, mostly was a result of courtaction to enforce inalienable rights enshrined inthe U.S. Constitution, rather than as a result ofmeasures passed by popularly elected legisla-tures and executives.” Without an independentjudiciary and the Constitution’s guarantees forminority rights, he adds, the desegregation fightwould have been much more difficult.

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Gary Orfield and Susan Eaton agree. Thecourts, including the Supreme Court, played akey role compared with the other branches ofgovernment, they write in DismantlingSegregation. They add: “With the exception ofthe years 1964 to 1968, courts — not the leg-islative or executive branches — have been thedominant policy-setters in desegregation.”

Although the Supreme Court struck downsegregation only in public schools, its impactwas much broader. It helped trigger an all-outoffensive against segregation in all spheres ofAmerican life, including public services andemployment. Just a year and a half after theruling, in December 1955, Dr. Martin LutherKing, Jr. led a successful bus boycott in

Montgomery, Alabama, to protest segregation inpublic transport there.

In the years that followed, court ordersagainst segregation were issued against a back-drop of mass action undertaken by a myriad ofnongovernmental organizations that togetherformed the civil rights movement. With thepassage of the Civil Rights Act in 1964 and theVoting Rights Act in 1965, segregation was allbut vanquished.

“We Did the R ight Th ing”

Civil rights historians, in particular, stressthe importance of the Brown decision in forgingprogress in race relations in general. “It pro-

Marcus Burnett, left, son of Topeka NAACP leader McKinley Burnett,and political activist Sonny Scroggins, at the entrance to MonroeElementary School.

Dav

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vided a yardstick of color-blind justice againstwhich Americans could measure their progresstoward the ideal of equal opportunity,” writesRobert Wiesbrot in Freedom Bound: A Historyof America’s Civil Rights Movement.

It is still a source of immense pride to thesurviving plaintiffs almost a half century later.“I can remember it as though it were yester-day,” says Zelma Henderson. “I first learnedabout it from the newspaper, the Topeka StateJournal. I can see the massive headline now,‘School Segregation Banned.’ I was just elated.I felt then and I feel now that we did the rightthing.” Vivian Scales adds, “It’s all so long agonow, but it’s something you never forget, thatalways stays with you.”

Marcus Burnett doesn’t remember hisfather’s specific reaction on the day theSupreme Court struck down segregation. “Buthe always believed that justice would come, soI’m sure he was very happy,” Burnett says. “Myfather believed the courts were the right way tochallenge segregation. He never lost faith thatthe courts would ultimately uphold theConstitution and the Bill of Rights and end seg-regation.”

On October 26, 1992, President GeorgeBush signed Public Law 12-525 establishingthe Brown v. Board of Education NationalHistoric Site to commemorate the 1954Supreme Court decision. The site is located inTopeka at the Monroe Elementary School, thesame school attended by Linda Brown almost ahalf century ago before it was desegregated.The memorial — the work of the BrownFoundation and the Kansas Committee toCommemorate Brown v. Board of Education,among others — will house audio-visual mate-

rials and a research library and is due to opento the public in 2002. “We hope people willvisit to gain a greater understanding of thescope and complexity of the Brown decision,”says Qefiri Colbert, a spokesman for theNational Park Service, which will maintain thememorial.

Oliver Brown, Zelma Henderson, VivianScales and the other parents easily could haveresigned themselves to disappointment, butthey translated their anger into action, saysSonny Scroggins of the Kansas Committee toCommemorate Brown. “The parents showedenormous courage back then,” he adds. Theend result was not only an end to segregation,but a fundamental change in the wayAmericans think about race and equality underthe law.

“I’m a very old woman now, but if I had todo it again, I would,” says Vivian Scales.“When you get right down to it, the message ofthe Brown decision and the memorial is reallythat all human beings of all races are createdequal,” adds Zelma Henderson. “We went tothe Supreme Court of the United States to affirmthat fact, and we won.”


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H OW T H E S U P R E M EC O U RT S E L E C T S A N DD E C I D E S C A S E S

In the last decades of the 19th century, theSupreme Court was in danger of becomingoverwhelmed with cases. So in 1891,Congress responded to the Court’s plight bycreating an intermediate level of federalcourts known as circuit courts of appeal, orappellate courts, which heard appeals fromlower district courts. Today, the district courtsare divided geographically into 11 circuits,each headed by a court of appeals. An additional court of appeals in the District ofColumbia hears cases generated by the federal government.

A citizen can press a claim in either set ofcourts — district or appellate — but if thatperson feels that the lower court has ruledunfairly or incorrectly, he or she has theoption of petitioning the Supreme Court tohear the case. If the Court decides to takethe case, its opinion is final. There is no otherlegal action that the plaintiff may take. If theSupreme Court refuses to hear a case, thenthe decision of the previous lower courtstands. The Court’s refusal to review a case,however, in no way implies that the justicesagree or disagree with the lower court’s ruling.

The Supreme Court only can hear certaintypes of cases stipulated in the U.S.Constitution. The Court’s jurisdiction extendsonly to controversies between two states;controversies between the United States andan individual state; actions by a state against acitizen of another state or an alien; and casesbrought by or against a foreign ambassador orconsul.

Out of the thousands upon thousands ofrequests each year, the Court selects onlyabout 300 cases, and of those, about half areargued before the Court and receive a finalopinion.

The justices tend to focus on several types ofcases. One of these is called certiorari, whenseveral lower courts have ruled and disagreedon opinions, and thus a “higher authority’s”opinion is sought. The Court also looks atcases where a lower court has given an opin-ion on a matter sent to the Court earlier, butthat at the time was rejected by it for review,or cases where the Court’s views havechanged and the justices wish to issue a newopinion.

The Court also has special jurisdiction toanswer so-called “certified questions,” involv-ing cases in which a lower court of appealswas unable to make a judgment. Either thelower court asks the Supreme Court to pro-vide instructions that the lower court follows,or the lower court asks the Court to takeover the case and make the final decision.

In order for a case to receive Supreme Courtreview, four of the nine justices must agreethat the case merits the Court’s attention. Ifthe Court agrees to review a case, it maydecide the case on the basis of written briefssubmitted by each side, or it may schedule aformal oral argument with the Court in ses-sion. Formal argument provides a moredetailed presentation of the litigation, althoughno new factual evidence may be introduced.Sometimes the Court invites an amicus curiae,or friend of the court, who shows a plausibleinterest in the dispute and presents argu-ments other than those of the litigants.

Once the Court decides to hear a case, atleast six of the nine Supreme Court justicesmust be present. When all the arguments

have been heard, the nine justices meet pri-vately. The chief justice begins by summarizinga particular case and giving his views on it.After he has spoken, the other eight justicesspeak in order of seniority, giving their opin-ions. The justices may also try to persuadedissenting colleagues or, if undecided, to gath-er more information. When the chief justicebelieves that no more discussion is needed,he calls for a vote. As they did when speak-ing, the justices vote in order of seniority, withthe chief justice casting his vote first.

Once a vote has been taken, an opinion isassigned to be written. If the chief justice is inthe majority, he can either appoint anothermajority member to write the opinion, or hecan write it himself. If the chief justice is inthe minority, the senior associate justice in themajority makes the assignment. He or shecan write the opinion or pass it on to anotherjustice in the majority.

Once an opinion is written, the justice whowrote it circulates it to the rest of the Courtmembers, who have the option of addingtheir own additions or suggestions, whichoften can be polar opposites. In writing opin-ions, justices have been known to changetheir mind, and thus shift from the minority tothe majority and vice versa.

Although only one justice writes the Court’sfinal opinion, any other justice is free to writehis or her own thoughts on a case. In theend, the final opinion must have the approvalof at least five justices before it is released asthe opinion of the Court.

— Deborah M.S. Brown


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Amar,Akhil Reed and Vikram David Amar“Improving the Judicial System: Unlocking the JuryBox.” Current, no. 384, July 1996, pp. 11-21.

American Bar AssociationLaw and the Courts: A Handbook About UnitedStates Law and Court Procedures, with a Glossary ofLegal Terms. ABA Press, 1987.

Apple, James G. and Robert P. DeylingA Primer on the Civil-Law System. Washington, D.C.:Federal Judicial Center, 1995.

Biskupic, Joan and Elder WittGuide to the U.S. Supreme Court. 2 vols. 3d ed.Washington, D.C.: Congressional Quarterly Press, 1997.

Biskupic, Joan“Inside the Supreme Court.” Washington Post.comhttp://www.washingtonpost.com/wp-srv/interact/longterm/horizon/100996/court1.htmIncludes “Who’s Who,” “How the Court Works”and “Notable Cases.”

Boatright, Robert G.Improving Citizen Response to Jury Summonses.The American Judicature Society, 1998.

Breyer, Stephen G.“Judicial Independence in the U.S.” Remarks byU.S. Supreme Court Associate Justice Breyer, deliv-ered at the Conference of Supreme Courts of theAmericas,Washington, D.C., October 1995.http://www.usia.gov/topical/rights/law/breyer.htm

Caplan, Lincoln“Unequal Loyalty: Can Federal Public DefendersServe Two Masters,When One Is the Judges WhoAppoint Them, and the Other is the Clients TheyRepresent?” ABA Journal, vol. 81, July 1995,pp. 54-60.

Carp, Robert A. and Ronald StidhamJudicial Process in America. 4th ed. Washington,D.C.: Congressional Quarterly Press, 1998.See especially Chapter 7, “The Criminal CourtProcess” and Chapter 8, “The Civil Court Process.”

“Civil Law Glossary.” Update on Law-RelatedEducation, vol. 21, no. 3, Fall 1997, pp. 60-62.

Cohn, Marjorie and David Dow.Cameras in the Courtroom:Television and the Pursuitof Justice. Jefferson, NC: McFarland & Company,1998.

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B i b l i o g r a p h y

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Fur ther in format ion on the U.S . Cour t s

and the Lega l Sys tem

Commission on the Bicentennial of the UnitedStates ConstitutionThe Supreme Court of the United States: ItsBeginnings and Its Justices, 1790-1991. TheCommission, 1992.

Committee on Codes of Conduct. JudicialConference of the United States.Code of Conduct for United States Judges.Washington, D.C.: Office of the General Counsel,Administrative Office of the United States Courts,March 1997.

“Covering the Courts.” Media Studies Journal,vol. 12, no. 1,Winter 1998.Entire issue is devoted to media coverage of thecourts, including live-camera coverage, and may beviewed at the following website:http://www.mediastudies.org/courts/cov.html

“Defining Drug Courts:The Key Components.”U.S. Department of Justice, Office of JusticePrograms, Drug Court Program Office,January 1997.http://www.drugcourt.org/key/welcome.html

“Drug Courts: Overview of Growth,Characteristics and Results.” U.S. GeneralAccounting Office. Report to the Committee onthe Judiciary, U.S. Senate, and the Committee onthe Judiciary, House of Representatives, July 1997.GAO GGD-97-106.

Esterling, Kevin M.“Public Outreach: the Cornerstone of JudicialIndependence.” Judicature, vol. 82, no. 3,November-December 1998, pp. 112-117.

Esterling, Kevin M.“Judicial Accountability the Right Way: OfficialPerformance Evaluations Help the Electorate aswell as the Bench.” Judicature, vol. 82, no. 5,March-April 1999, pp. 206-215.

“Facts on Drug Courts.” National Association ofDrug Court Professionals, NAD.C.Phttp://www.drugcourt.org/fdc.htm

Feeley, Malcolm M. and Edward L. RubinJudicial Policy Making and the Modern State:How the Courts Reformed America’s Prisons.Cambridge, MA: Cambridge University Press, 1998.

Fine,Toni M.American Legal Systems: A Resource and ReferenceGuide. Cincinatti, OH: Anderson Publishing Co., 1997.

Gideon v.Wainwright, 372 U.S. 335The landmark Supreme Court decision that established the right of counsel for all defendants.http://www.marin.org/mc/pd/gideon.html

Glazer, Elizabeth“How Federal Prosecutors Can Reduce Crime.”Public Interest, Issue 136, Summer 1999,pp. 85-99.

Goldfield, David R.Black,White and Southern: Race Relations andSouthern Culture, 1940 to the Present. BatonRouge, LA: Louisiana State University Press, 1991.

Goldman, Sheldon and Elliot Slotnick“Clinton’s Second-Term Judiciary: Picking JudgesUnder Fire.” Judicature, vol. 8, no. 6, May-June 1999,pp. 264-284.

Grossman, Joel B.“American Legal Culture.” Janosik, Robert J. in theEncyclopedia of the American Judicial System, pp.767-782. New York, NY: Charles Scribner’s Sons,1987

“Guide to Law Clerks and Clerking at the U.S.Supreme Court.” Jurist,The Law Professors’Network.Discussion of the law clerk selection process thathas recently become a subject of academic andpublic debate.http://jurist.law.pitt.edu/clerk.htm

Hays, Steven et al.“Symposium - Evaluating the AdministrativePerformance of the Courts - Very Long-RangeJudicial Planning in the Public Policy Process.”

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Public Administration Quarterly, vol. 22, no. 4,Winter1999.Includes six articles analyzing various aspects offederal and state-court management issues.

“How the Public Views the State Courts: A 1999National Survey.” National Center for StateCourts, 1999.http://www.ncsc.dni.us./PTC/results/nms4.htm

“Independence of the Judiciary.” USIA ElectronicJournal, Issues of Democracy, vol. 1, no. 18,December 1996.http://www.usia.gov/journals/itdhr/1296/ijde/ijde1296.htm

Jost, Kenneth“The Federal Judiciary: Are the Attacks on U.S.Courts Justified?” CQ Researcher, vol. 8, no. 10,March 13, 1998, pp. 217-240.

Jost, Kenneth“Plea Bargaining: Does the Widespread PracticePromote Justice?” CQ Researcher, vol. 9, no. 6,February 12, 1999, pp. 113-136.

Judicial Ethics and the Administration of Justice:A Videotaped Instructional Program on Judicial Ethics.American Judicature Society, 1990.This two-tape program covers such topics ascourtroom demeanor, conflict of interest and disqualification, off-the-bench conduct and supervision of court personnel.

Law Enforcement Coordinating Committee“Victim and Witness Rights: United StatesAttorneys’ Responsibilities.” 3d ed., July 1999.VictimWitness Staff of the Executive Office for UnitedStates Attorneys. U.S. Department of Justice.

McFadden, PatrickElecting Justice:The Law and Ethics of JudicialElection Campaigns. American Judicature Society,1990.

Meador, Daniel JohnAmerican Courts. St. Paul, MN:West Publishing Co.1991.

O’Connor, Sandra Day“Confidence in the Courts.”Final address by the Associate Justice of the U.S.Supreme Court at the National Conference onPublic Trust and Confidence in the Justice System.Washington, D.C., May 16, 1999.http://www.ncsc.dni.us/PTC/trans/trans.htm#oconnor

Orfield, GaryDismantling Desegregation:The Quiet Reversal ofBrown v. Board of Education. New York, NY: NewPress, 1996.

Payne, Robert E.“Difficulties, Dangers & Challenges Facing theJudiciary Today.” University of Richmond Law Review,vol. 32, no. 3, May 1998, pp. 891-903.

Rehnquist,William H.“The Future of the Federal Courts.”Remarks by the Chief Justice of the U.S. SupremeCourt at the Washington College of LawCentennial Celebration, American University,April 9, 1996.http://supct.law.cornell.edu/supct/justices/rehnau96.htm

Rehnquist,William H.“Building Public Confidence in Our Judicial System.”Keynote address by the Chief Justice of the U.S.Supreme Court at the National Conference onPublic Trust and Confidence in the Justice System.Washington, D.C., May 14, 1999.http://www.uscourts.gov/misc/cjnation.html

For a description of the conference see:http://www.ncsc.dni.us/PTC/ptc2.htm

Smith,Alexa J.“Federal Judicial Impeachment: Defining ProcessDue.” Hastings Law Journal, vol. 46, January 1995,pp. 639-674.

Smith, Christopher E.Judicial Self-Interest: Federal Judges and CourtAdministration. Westport, CT: Praeger, 1995.

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Stein, Robert, et al.“Judicial Outreach Initiatives — Panel Discussion.”Sponsored by the American Bar Association.Albany Law Review, vol 62, no. 4, February 1999,pp. 1401-1424.

Stumpf, Harry P. and John H. CulverThe Politics of State Courts. New York, NY:Longman Press, 1992.

Sunstein, Cass R.One Case at a Time: Judicial Minimalism on theSupreme Court. Cambridge: Harvard UniversityPress, 1999.

The Judicial Branch,Videocassette, 16 min.Bakersfield, CA: Centurion Video, 1997.Covers the court structure including the SupremeCourt, Circuit Courts of Appeals, district courtsand special courts; appeals, cases, responsibilities ofthe courts and of citizens.

Tushnet, Mark V.Brown v. Board of Education:The Battle forIntegration. New York, NY: Franklin Watts, 1995.

Tushnet, Mark V.Taking the Constitution Away from the Courts.Princeton, NJ: Princeton University Press, 1999.

Wheeler, Russell R. and Cynthia HarrisonCreating the Federal Judicial System, 2d ed. FederalJudicial Center, 1994.

Weisbrot, RobertFreedom Bound: A History of America’s Civil RightsMovement. New York, NY: Plume, 1990.

Wilson, Paul E.A Time to Lose: Representing Kansas in Brown v.Board of Education. Lawrence, KS: University Pressof Kansas, 1995.


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American Bar Association

http://www.abanet.org/

American Judicature Society

http://www.ajs.org/index.html

A nonpartisan organization interested in theadministration of justice through educational pro-grams and publications, judicial independence,ethics in the courts, judicial selection, the jury,court administration, and public understanding ofthe justice system.

Appellate Courts

http://www.rossrunkel.com/links.htm

Hot links to the relevant web pages are consoli-dated in one place, including the U.S. SupremeCourt, all federal courts of appeals, the highestcourts for 48 states and intermediate courts for32 states.

Association of Trial Lawyers of America (ATLA)

http://www.atlanet.org/

ATLA promotes justice and fairness for injuredpersons, safeguards victims’ rights — particularlythe right to trial by jury — and strengthens thecivil justice system through education and disclo-sure of information critical to public health andsafety.

Brown v. Board of Education National Historic Site

http://www.nps.gov/brvb/

Learn more about the historic Brown decision.

Code of Conduct for United States Judges

http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/judicial/

The “code of ethics” that U.S. judges abide by.

Constitutional Law Center

http://supreme.findlaw.com/

Department of Justice

http://www.usdoj.gov/

The law organ of the executive branch, serves ascounsel for all U.S. citizens and, among otherthings, represents the federal government in legalmatters, generally rendering legal advice and opin-ions, upon request, to the president and to theheads of the executive departments.

Federal Bar Association

http://www.fedbar.org/

The primary professional organization for U.S. pri-vate and government lawyers and judges involvedin federal practice.

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I n t e r n e t S i t e s

I n ter net S i tes on the U.S . Cour t s

and the Lega l Sys tem

Federal Judicial Center (FJC)

http://www.fjc.gov/

Provides annotated links to other WWW serversof interest.The FJC is the federal courts’ agency forresearch and continuing education.

FindLaw

http://www.findlaw.com/

An index to legal resources on the Web.

Glossary of Legal Terms

http://www.uscourts.gov/understanding_courts/gloss.htm

Justice Information Center

http://www.ncjrs.org/

Part of the National Criminal Justice ReferenceService, this Department of Justice link is one of themost extensive sources of information on criminaland juvenile justice in the world, providing servicesto an international community of policymakers andprofessionals.

Legal Information Institute

http://www.law.cornell.edu/index.html

Maintained by Cornell University, this website haslinks to other relevant law-related websites.

Library of Congress’ Law Library

http://lcweb2.loc.gov/glin/us-court.html

Contains an annotated list of federal courtresources.

National Center for State Courts

http://www.ncsc.dni.us/

An independent, nonprofit organization dedicatedto providing leadership and service to the statecourts through development of policies, advance-ment of state courts’ interests within the federalgovernment, strengthening state court leadership,and providing a model for organizational adminis-tration.

Office of Administrative Law Judges (OALJ)

http://www.oalj.dol.gov/

Under the auspices of the U.S. Department ofLabor, the OALJ presides over formal hearingsconcerning many labor-related matters.

Rules of the Supreme Court of the United States

http://www.law.cornell.edu/rules/supct/overview.html

Everything you ever wanted to know about theU.S. Supreme Court.

Understanding the Federal Courts

http://www.uscourts.gov/understanding_courts/899_toc.htm

This primer on the U.S. judicial system outlines theconstitutional powers of the federal courts,describes the roles of state courts and explainsthe protections given to federal judges by the U.S.Constitution.

U.S. Court of Appeals for the Armed ForcesHomepage

http://www.armfor.uscourts.gov/

U.S. Federal Judiciary Home Page

http://www.uscourts.gov/

Serves as a clearinghouse for information fromand about the judicial branch of the U.S. govern-ment and the U.S. courts system.

U.S. Sentencing Commission

http://www.ussc.gov/

Establishes sentencing policies and practices forU.S. federal courts.The commission is also chargedwith evaluating the effects of sentencing guidelineson the criminal justice system.


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