Types of Law

• Civil Law

• Criminal Law

Some Terms• Litigants

– Plaintiff– Defendant

• Standing

• Class Action Suits

• Interest Groups– ACLU, NAACP– Amicus Curiae

Class Action Law Suits have been filed against Maytag for

their defective "Maytag Neptune Washing Machine."

According to allegations in the complaints, the front-loading

machines are prone to mechanical and electronic problems, do not properly

wash clothes, and even have problems with mold, causing the machines and the clothes

washed to smell bad.

The Constitution & the Creation of the National Judiciary

•The Vagueness of Article III

•Resolved by Giving Congress the Power to Create any Lower Courts that Might be Deemed Necessary

Judiciary Act of 1789

Founder’s View• Federalist #87: Alexander

Hamilton Declared the Judiciary “the Weakest of the Three Departments of Power”

• Federalist #78:”Least Dangerous”- Congress has “the purse”, the president has the “sword”.

The Supreme Court Would be the Referee

Structure of the American Legal System

Dual Court System

Dual Sovereignty System

Both Systems are Three-Tiered

Bottom Layer: District Courts

Middle Layer: Appellate Courts

Top Layer: The Supreme Court

Federal Court Structure

Jurisdiction •Original Jurisdiction

Jury Trial

Hear the facts of the case

•Appellate Jurisdiction

Legal and Procedural Issues

No Testimony

Federal-Question Cases-

Diversity Cases-

Federal Court Structure

• Presently 91 Federal District Courts– 3-28 Federal Court Judges – U.S. Attorney

Three Categories of Cases Heard: • Federal Government is a Party to the Case • Questions of Federal Law • Civil Suits Involving Citizens from Different

States & +$50,000 at Issue

Federal Court Structure• Circuit Courts of Appeal• Losing Party Has the Right to Appeal

an Adverse Result from the District Courts

• Eleven Circuit Courts, Plus one in D.C.– 6-28 Judges– Usually Sit in Three- Judge Panels – En Banc

Federal Court Structure• Supreme Court• 9 Justices• Appellate

– From Circuit, or State Supreme Courts

– Must involve a Federal Question of Significance

• Original– Foreign Diplomat– US v. State or State v.

State

Supreme Court Purposes• Decide Cases

• Resolve Conflicts Among States

• Maintain National Supremacy of Law

• Uniformity of Interpretation of National Law

Judicial Selection• No Set Qualifications for Judges• President Nominates, Senate Confirms

Lower Court Appointments• Senatorial CourtesySupreme Court Appointments• Attorney General and Justice Department

Litmus Test or Not?

Presidents Attempt to ‘Put their Stamp’ on the Judiciary

Presidents Attempt to ‘Put their Stamp’ on the Judiciary

Supreme Court Choosing a Case

• Hear 100 out of 8000 considered.

• Discuss List

• Rule of Four

• Writ of Certiorari

• In Forma Pauperis

The Solicitor General

•Fourth-Ranking Member of the Justice Department

•Responsible for Dealing w/ all Arguments on Behalf of the Federal Govt.

•Appears Frequently Before the Supreme Court

•Often Described as the ’9 ½ Justice’

Ted Olson42nd Solicitor

General

Hearing a Case• October – June

• Two Week Cycles– Hearing Cases– Conferences/Opinions

• Prepare Briefs

• Oral Arguments– 30 Minutes Each Side

• Conferences– Role of Seniority in Discussion and Voting

Decisions, Decisions

Opinions

• Per Curiam

• Opinion of the Court

• Dissenting

• Concurring

Impact

• Stare Decisis

Implementation of Court Decisions“John Marshall has made his decision, now let him

enforce it.”Decisions Translating into Policy1. Interpreting Population2. Implementing Population

• Slippage

3. Consumer Population

Brown v. Board of Education Example• Executive Role• Legislative Role

Historical CourtsMarshall Court

Dominant Questions:

1. Legitimacy and Strength of the Federal Government

– Marbury v. Madison• Judicial Review

– Gibbons v. Ogden

2. Slavery– Scott v. Sandford

The New Deal Court

• FDR and Liberal Congress

• Conservative Court

• Court Packing Plan

• Switch in time...

Historical Courts

Historical Courts

Warren Court (1953-1969)

• Active Court– Civil Rights– Civil Liberties

Burger Court

• Conservative Court?

Historical Courts

Rehnquist Court

• Conservative in What Way?– Reversed Warren Court Decision

Or– Limited Warren Court Decision– 6-3 or 5-4 Decisons-Explain.

Judicial Power IssuesJudicial Activism vs. Judicial Restraint

Judicial Restraint- Strict Constructionism

“Change in public opinion unaccompanied by a constitutional amendment should not change the meaning of the constitution.”

1. Un-elected Judges

2. Questionable Expertise of Judges

3. Leave Policy-Making to Executive and Legislative Branches

4. Original Intention of the Framers

Judicial Power Issues

Judicial Activism vs. Judicial Restraint

Judicial Activism- Loose Constructionism

1. Insulated judges• Un-elected is an advantage• Not pressured by Public Opinion, Politics,

Interest Groups

2. Judicial Restraint leads to “frozen law”

3. Court of ‘Last Resort”

Checks on Judicial Power1. Executive

• Appoints

2. Congress• Confirms• Begins the

Constitutional Amendment Process

• Alter Lower Courts and Jurisdiction

3. Informal Checks?