111 ., I yd, s v" xg, e, r }p n g i A je 16 4- 77- xZ° Ame x xi{ x fit b f P r  OUTLINE OF THE -#r n: x x Bureau of International Information Programs United States Department of State http://usinfo.state.gov 2004  OUTLINE OF THE sri M up' CO0N TE NT S INTRODUCTION The U.S. Legal System ................. ...... .4 CHAPTER 1 History and Organization of the Federal Judicial System ........ .18 CHAPTER 2 History and Organization of State Judicial Systems ...... CHAPTER 3 Jurisdiction and Policy-Making Boundaries ......... ..44 56 CHAPTER 4 Lawyers, Litigants, and Interest Groups in the Judicial Process . . ..72 CHAPTER 5 The Criminal Court Process 90 CHAPTER 6 The Civil Court Process ... 118 CHAPTER 7 Federal Judges .. . ...... 140 CHAPTER 8 Implementation and Impact of Judicial Policies ................ 158 The Constitution of the United States .. .. .. ....... Amendments to the Constitution of the United States 177 ... ... .. 192 Glossary .................................. Bibliography .............................. Index ..................................... ................. ................. 204 212 214  Uf:r t { :® $4 *. . .  I 6 OUTLINE OF THE U.S. LEGAL SYSTEM Every business day, courts throughout the United States render decisions that together affect many thousands of people. Some affect only the parties to a particular legal action, but others ad- judicate rights, benefits, and legal principles that have an impact on vir- tually all Americans. Inevitably, many Americans may welcome a given rul- ing while others - sometimes many others - disapprove. All, however, ac- cept the legitimacy of these decisions, and of the courts' role as final inter- preter of the law. There can be no more potent demonstration of the trust that Americans place in the rule of law and their confidence in the U.S. legal system. The pages that follow survey that system. Much of the discussion ex- plains how U.S. courts are organized and how they work. Courts are central to the legal system, but they are not the entire system. Every day across the predictability and enforceable common norms that the rule of law provides and the U.S. legal system guarantees. This introduction seeks to familiar- ize readers with the basic structure and vocabulary of American law. Subsequent chapters add detail, and afford a sense of how the U.S. legal system has evolved to meet the needs of a growing nation and its ever more complex social realities. economic and A FEDERAL LEGAL SYSTEM: Overview T he American legal system has several layers, more possibly than in most other nations. One reason is the division between federal and state law. To understand this, it helps to recall that the United States was founded not as one nation, America, federal, state, and local but as a union of 13 colonies, each courts interpret laws, adjudicate dis- putes under laws, and at times even strike down laws as violating the fun- damental protections that the Consti- tution guarantees all Americans. At the same time, millions of Americans transact their day-to-day affairs with- out turning to the courts. They, too, rely upon the legal system. The young claiming independence from the British Crown. The Declaration of Independence (1776) thus spoke of "the good People of these Colonies" but also pronounced that "these United Colonies are, and of Right ought to be, FREE AND INDEPEN- DENT STATES." The tension between one people and several states is a couple purchasing their first home, perennial theme in American legal two businessmen entering into a con- tract, parents drawing up a will to pro- vide for their children - all require history. As explained below, the U.S. Constitution (adopted 1787, ratified 1788) began a gradual and at times INTRODUCTION hotly contested shift of power and legal authority away from the states and toward the federal government. Still, even today states retain substan- tial authority. Any student of the American legal system must under- stand how jurisdiction is apportioned between the federal government and the states. The Constitution fixed many of the boundaries between federal and state law. It also divided federal power among legislative, executive, and judi- cial branches of government (thus creating a "separation of powers" between each branch and enshrining a system of "checks-and-balances" to prevent any one branch from overwhelming the others), each of which contributes distinctively to the legal system. Within that system, the Constitution delineated the kinds of laws that Congress might pass. As if this were not sufficiently com- plex, U.S. law is more than the statutes passed by Congress. In some areas,. Congress authorizes administrative agencies to adopt rules that add detail to statutory requirements. And the entire system rests upon the tradition- al legal principles found in English Common Law. Although both the Constitution and statutory law super- sede common law, courts continue to apply unwritten common law principles to fill in the gaps where the Constitution is silent and Congress has not legislated. The United States Constitution Supremacy o Federal Law uring the period 1781-88, an agreement called the Articles of Confederation governed relations among the 13 states. It estab- lished a weak national Congress and left most authority with the states. The Articles made no provision for a feder- al judiciary, save a maritime court, al- though each state was enjoined to honor (afford "full faith and credit" to) the rulings of the others' courts. The drafting and ratification of the Constitution reflected a growing consensus that the federal government needed to be strengthened. The legal system was one of the areas where this was done. Most significant was the "supremacy clause" found in Article VI: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shallbe made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. This paragraph established the first principle of American law: Where the 8 OUTLINE OF THE U.S. LEGAL SYSTEM federal Constitution speaks, no state may contradict it. Left unclear was branches. As James Madison explained in Federalist No. 51, "usurpations are how this prohibition might apply to the federal government itself, and the role of the individual state legal sys- tems in areas not expressly addressed by the new Constitution. Amend- ments would supply part of the an- swer, history still more, but even today Americans continue to wrestle with the precise demarcations between the federal and state domains. Each Branch Plays a Role in the Legal System While the drafters of the Constitution sought to strengthen the federal gov- ernment, they feared strengthening it too much. One means of restraining guarded against by a division of the government into distinct and separate departments." Each of Madison's "de- partments," legislative, executive, judiciary, received a measure and of influence over the legal system. Legislative The Constitution vests in Congress the power to pass legislation. A proposal considered by Congress is called a bill. If a majority of each house of Con- gress - two-thirds should the Presi- dent veto it - votes to adopt a bill, it becomes law. Federal laws are known as statutes. The United States Code is a "codification" of federal statutory law. The Code is not itself a law, it merely the new regime was to divide it into The Constitution has vested the power to pass legislation in Congress, here gathered in a joint session for President George W. Bush's budget speech in 2001. The executive power, in turn, is entrusted to the President. INTRODUCTION 9 presents the statutes in a logical quite specific but others, most notably, arrangement. Title 20, for instance, "To regulate Commerce with foreign contains the various statutes pertain- ing to Education, and Title 22 those covering Foreign Relations. Congress' lawmaking power is lim- ited. More precisely, it is delegated by the American people through the Constitution, which specifies areas where Congress may or may not legis- late. Article I, Section 9 of the Consti- tution forbids Congress from passing certain types of laws. Congress may not, for instance, pass an "ex post facto" law (a law that applies retroactively, or "after the fact"), or levy a tax on ex- ports. Article I, Section 8 lists areas where Congress may legislate. Some of these ("To establish Post Offices") are Nations, and among the several States," are less so. Obviously the power to in- terpret the less precise delegations is extremely important. Early in the young republic's history, the judiciary branch assumed this role and thus se- cured an additional and extremely vital role in the U.S. legal system. Judicial As with the other branches, the U.S. judiciary possesses only those powers the Constitution delegates. The Con- stitution extended federal jurisdiction only to certain kinds of disputes. Arti- cle III, Section 2 lists them. Two of the most significant are cases involving a question of federal law ("all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made...") and "di- versity" cases, or disputes between cit- izens of two different states. Diversity jurisdiction allows each party to avoid litigating his case before the courts of his adversary's state. A second judicial power emerged in the Republic's early years. As explained in Chapter 2, the U.S. Supreme Court in the case of Marbury v. Madison (1803) interpreted its delegated pow- ers to include the authority to deter- mine whether a statute violated the Constitution and, if it did, to declare such a law invalid. A law may be un- constitutional because it violates rights guaranteed to the people by the Con- Laws passed by one of the 50 state legislatures, such as the New York State Assembly shown above during a roll call, apply only to the citizens of that state or outsiders who reside or do business there. IE OUTIN OF THE U.S. LEGAL SYSTEM stitution, or because Article I did not authorize Congress to pass that kind of legislation. The power to interpret the consti- tutional provisions that describe where Congress may legislate is thus very important. Traditionally, Con- gress has justified many statutes as necessary to regulate "commerce... among the several States" or interstate commerce. This is an elastic concept, difficult to describe with precision. In- deed, one might for nearly any statute devise a plausible tie between its ob- ectives and the regulation of interstate commerce. At times, the judicial branch interpreted the "commerce clause" narrowly. In 1935, for instance, the Supreme Court invalidated a federal law regulating the hours and wages of workers at a New York slaughterhouse because the chickens processed there all were sold to New York butchers and retailers and hence not part of interstate commerce. Soon after this, however, the Supreme Court began to afford President Franklin D. Roosevelt's New Deal programs more latitude, and today the federal courts continue to interpret broadly the commerce power, although not so broadly as to justify any legislation that Congress might pass. Executive Article II entrusts to the President of the United States "the executive Power." Under President George Washington (1789-1801), the entire executive branch consisted of the President, Vice President, and the Departments of State, Treasury, War, and Justice. As the nation grew, the ex- ecutive branch grew with it. Today there are 15 Cabinet-level Depart- ments. Each houses a number of Bureaus, Agencies, and other entities. Still other parts of the executive branch lie outside these Departments. All exercise executive power delegated by the President and thus are respon- sible ultimately to him. In some areas, the relationship be- tween the executive and the other two branches is clear. Suppose one or more individuals rob a bank. Congress has passed a statute criminalizing bank robbery ( United States Code, Title 18, Section 2113*). The Federal Bureau of Investigation (FIBI), a bureau within the Department of Justice, would investigate the crime. When it appre- hended one or more suspects, a Federal Prosecutor (also Department of Justice) would attempt to prove the suspect's guilt in'a trial conducted by a U.S. District Court. The bank robbery case is a simple one. But as the nation modernized and * Technically, the statute applies only to a bank that is federally chartered, insured, or a member of the Federal Reserve System. Possibly every bank in the United States meets these criteria, but one that did not, and could not be construed as impacting interstate commerce, would not be subject to federal legislation. Federal statutes typically recite a jurisdictional basis: in this case, the federal charter requirement. INTRODUCTION 11 Federal and state courts hear two kinds of disputes: civil and criminal. Here an attorney representing landowners in a civil action presents his arguments to the South Dakota Supreme Court. divorce. This couple is being married Left, civil law covers statutes pertaining to marriage and in this civil ceremony performed by a judge. At right, a judge in Texas. In the past few decades, the U.S. judiciary has expanded to include more women and minorities. 12 OUTLINE OF THE U.S. LEGAL SYSTEM grew, the relationship of the three branches within the legal system evolved to accommodate the more complex issues of industrial and post- industrial society. The role of the ex- ecutive branch changed most of all. In the bank robbery example, Congress needed little or no special expertise to craft a statute that criminalized bank robbery. Suppose instead that law- makers wished to ban "dangerous" drugs from the marketplace, or re- strict the amount of "unhealthful" pollutants in the air. Congress could, if it chose, specify precise definitions of these terms. Sometimes it does so, but increasingly Congress instead dele- gates a portion of its authority to ad- ministrative agencies housed in the executive branch. The Food and Drug Administration (FDA) thus watches over the purity of the nation's food and pharmaceuticals and the Environ- mental Protection Agency (EPA) reg- ulates how industries impact the earth, water, and air. Although agencies possess only powers that Congress delegates by statute, these can be quite substantial. They can include the authority to promulgate rules that define with pre- cision more general statutory terms. A law might proscribe "dangerous" amounts of pollutants in the atmos- phere, while an EPA rule defines the substances and amounts of each that would be considered dangerous. Sometimes a statute empowers an agency to investigate violations of its rules, to adjudicate those violations, and even to assess penalties! The courts will invalidate a statute that grants an agency too much power. An important statute called the Administrative Procedure Act (United States Code Title 5, Section 551, et. seq.) explains the procedures agencies must follow when promul- gating rules, judging violations, and imposing penalties. It also lays out how a party can seek judicial review of an agency's decision. Other Sources ofLaw The most obvious sources of Ameri- can law are the statutes passed by Congress, as supplemented by admin- istrative regulations. Sometimes these demarcate clearly the boundaries of legal and illegal conduct the bank robbery example again but no government can promulgate enough law to cover every situation. Fortu- nately, another body of legal princi- ples and norms helps fill in the gaps, as explained below Cornron Law Where no statute or constitutional provision controls, both federal and state courts often look to the common law, a collection of judicial decisions, customs, and general principles that began centuries ago in England and continues to develop today. In many states, common law continues to hold an important role in contract dis- putes, as state legislatures have not INTRODUCTION seen fit to pass statutes covering every possible contractual contingency. Judicial Precedent Courts adjudicate alleged violations of and disputes arising under the law. This often requires that they interpret the law. In doing so, courts consider themselves bound by how other courts of equal or superior rank have previously interpreted a law. This is known as the principle of "stare decisis," or simply precedent. It helps to ensure consistency and predictability. Litigants facing unfa- vorable precedent, or case law, try to distinguish the facts of their partic- ular case from those that produced the earlier decisions. Sometimes courts interpret the law differently. The Fifth Amendment to the Constitution, for instance, contains a clause that "[n]o person... shall be compelled in any criminal case to be a witness against himself" From time to time, cases arose where an individual would decline to answer a subpoena or otherwise testify on the grounds that his testimony might subject him to criminal prosecution not in the United States but in another country. Would the self- incrimination clause apply here? The U.S. Court of Appeals for the Second Circuit ruled it did, but the Fourth and Eleventh Circuits held that it did not.* This effectivelv meant that the law differed depending where in the country a case arose! Higher-level courts try to resolve these inconsistencies. The Supreme Court of the United States, for in- stance, often chooses to hear a case when its decision can resolve a divi- sion among the Circuit courts. The Supreme Court precedent will con- trol, or apply to all the lower federal courts. In United States v. Balsys, 524 U.S. 666 (1998), the Supreme Court ruled that fear of foreign prosecution is beyond the scope of the Self- Incrimination Clause. * This ruling became the law of the entire nation, including the Second Circuit. Any federal court subsequent- ly facing the issue was bound by the high court ruling in Balsys. Circuit court decisions similarly bind all the District Courts within that circuit. Stare decisis also applies in the various state court systems. In this way, prece- dent grows both in volume and explanatory reach. *The U.S. Circuit Court for the Second Circuit is an appellate court that hears appeals from the federal district courts in the states of New York, Connecticut, and Vermont. The Fourth Circuit encompasses Maryland, North Carolina, South Carolina, Virginia, and West Virginia, and the Eleventh Alabama, Georgia, and Florida. For more information on the organization of the federal courts, see chapter 1, **The numbers in this sentence comprise the citation to the Balsys decision. They indicate that the Court issued its ruling in the year 1998 and that the decision appears in volume 524 of a series called United States Reports, beginning on page 666. 14 OUTLINE OF THE U.S. LEGAL SYSTEM DIFFERENT LAWS; DIFFERENT REMEDIES Given this growing body of law, it is useful to distinguish among different types of laws and of actions, or lawsuits, brought before the courts and of the remedies the law affords in each type of case. the government can charge someone with murder. The standards of proof and poten- tial penalties also differ. A criminal de- fendant can be convicted only upon the determination of guilt "beyond a reasonable doubt." In a civil case, the plaintiff need only show a "prepon- derance of evidence,' a weaker formu- lation that essentially means "more likely than not." A convicted criminal can be imprisoned, but the losing party in a civil case is liable only for Civil/Criminal Courts hear two kinds of disputes: civil and criminal. A civil action in- volves two or more private parties, at least one of which alleges a violation of a statute or some provision of com- mon law. The party initiating the law- suit is the plaintiff; his opponent the defendant. A defendant can raise a counterclaim against a plaintiff or a cross-claim against a co-defendant, so long as they are related to the plain- tiff's original complaint. Courts prefer to hear in a single lawsuit all the claims arising from a dispute. Busi- ness litigations, as for breach of con- tract, or tort cases, where a party alleges he has been injured by anoth- er's negligence or willful misconduct, are civil cases. legal or equitable remedies, as ex- plained below. Legal and Equitable Remedies The U.S. legal system affords a wide but not unlimited range of remedies. The criminal statutes typically list for a given offense the range of fines or prison time a court may impose. While most civil litigations are between private parties, the federal government or a state government is Other parts of the criminal code may in some jurisdictions allow stiffer penalties for repeat offenders. Punish- ment for the most serious offenses, or felonies, is more severe than for misdemeanors. In civil actions, most American courts are authorized to choose among legal and equitable remedies. The distinction means less today than in the past but is still worth under- standing. In 13th century England, "courts of law" were authorized to de- cree monetary remedies only. If a defendant's breach of contract cost the plaintiff £50, such a court could order the defendant to pay that sum to always a party to a criminal action. It prosecutes, in the name of the people, defendants charged with vio- lating laws that prohibit certain con- duct as injurious to the public welfare. Two businesses might litigate a civil action for breach of contract, but only INTRODUCTION 15 the plaintiff. These damages were sufficient in many instances, but not in others, such as a contract for the sale of a rare artwork or a specific par- cel of land. During the 13th and 14th centuries, "courts of equity" were formed. These tribunals fashioned equitable remedies like specific per- formance, which compelled parties to perform their obligations, rather than merely forcing them to pay damages for the injury caused by their nonperformance. By the 19th century, One famous example illustrates the differences between civil and criminal law, and the remedies that each can offer. The state of California charged the former football star O.J. Simpson with murder. Had Simpson been con- victed, he would have been impris- oned. He was not convicted, however, as the jury ruled the prosecution failed to prove Simpson's guilt beyond a rea- sonable doubt. Afterwards, Mrs. Simpson's family sued Simpson for wrongful death, a civil action. The most American jurisdictions had jury in this case determined that a eliminated the distinction between law and equity. Today, with rare excep- tions, U.S. courts can award either legal or equitable remedies as the situation requires. preponderance of the evidence demonstrated Simpson's responsibili- ty for the death of his wife. It ordered Simpson to pay money damages - a legal remedy - to the plaintiffs. The U.S. Constitution explicitly sets out that large parts of the U.S. legal system remain under the control of the individual states. Here, Cook County, Illinois, Circuit Court Judge William H. Haddad, left, and Illinois Supreme Court Justice Thomas R. Fitzgerald. 16 OUTLINE OF THE U.S. LEGAL SYSTEM THE ROLE OF STATE LAW IN THE FEDERAL SYSTEM Tenth Amendment to the Constitu- tion (1791) made explicit that state he Constitution specifically law would control elsewhere: "The tering forbade the states from adopt- ing certain kinds of laws (en- into treaties with foreign powers not delegated to the United States by the Constitution, nor pro- hibited by it to the States, are reserved nations, coining money). Also, the Ar- ticle VI Supremacy Clause barred state laws that contradicted either the Con- stitution or federal law. Even so, large parts of the legal system remained under state control. The Constitution had carefully specified the areas where Congress might enact legislation. The to the States, respectively, or to the people." There nonetheless remained con- siderable tension between the federal government and the states - over slavery, and ultimately over the right of a state to leave the federal union. The civil conflict of 1861-65 resolved both disputes. It also produced new restrictions on the state role within the legal system: Under the Four- teenth Amendment (1868), "No State shall... deprive any person of life, lib- erty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This amendment greatly ex- panded the federal courts' ability to invalidate state laws. Brown v. Board of Education (1954), which forbade racial segregation in the Arkansas state school system, relied upon this "equal protection clause." Beginning in the mid-20th century, a number of the trends outlined above - the rise of the administrative state, a more forceful and expansive judicial interpretation of due process and equal protection, and a similar expan- sion of Congress' power to regulate commerce - combined to enhance the federal role within the legal system. Even so, much of that system Family law remains almost exclusively a state matter. Here, Attorney Catherine Smith argues a case involving a child caregiver's rights in front of the state Supreme Court in Olympia, Washington. Chief Justice Gerry L. Alexander, right, and Justice Charles Z. Smith listen. INTRODUCTION remains within the state domain. While no state may deny a citizen any right guaranteed by the federal Constitution, many interpret their own constitutions as bestowing even more generous rights and privileges. State courts applying state law contin- ue to decide most contractual dis- putes. The same is true of most criminal cases, and of civil tort ac- tions. Family law, including such mat- ters as marriage and divorce, is almost exclusively a state matter. For most Americans most of the time, the legal system means the police officers and courts of their own state, or of the var- ious municipalities and other political subdivisions within that state. This introduction offers a mere thumbnail sketch of the legal system. The remainder of the volume affords greater detail, flavor, and understand- ing. Chapters 1 and 2 describe respec- tively how the federal and state court systems have been organized, while Chapter 3 explains at length the com- plex question of jurisdiction. The chapter necessarily delineates the bor- ders between the federal and state courts but it also explores the ques- tion of who may sue, and of the kinds of cases courts will hear. Chapter 4 ex- ands the focus from the courts to the groups who appear before them. The practice of law in the United States is studied, and the typical litigants de- scribed. The chapter also explains the role played by interest groups that press particular cases to advance their social and political agendas. Chapter 5 details how the courts handle criminal cases while Chapter 6 turns the focus to civil actions. Chapter 7 describes how federal judges are selected. The final chapter explores how certain ju- dicial decisions those of higher courts especially can themselves amount to a form of policymaking and thus further entwine the judiciary in a complex relationship with the leg- islative and executive branches. a By Michael Jay Friedman Michael Jay Friedman is a Program Officer in the U.S. Department of State, Bureau of International Information Programs. He holds a Ph.D. in American History from the University of Pennsylvania and a J.D. degree from Georgetown University Law Center.  A a + . t , d n t s, bA!° t }. d . r r x e " pk R+  II IV I ml 1m! yAy .nt y rM *^ - -. e ~A., 20 OUTLINE OF THE U.S. LEGAL SYSTEM One of the most important, most in- teresting, and, possibly, most confusing features of the judiciary in the United States is the dual court system; that is, each level of government (state and na- tional) has its own set of courts. Thus, there is a separate court system for each state, one for the District of Columbia, and one for the federal government. Some legal problems are resolved en- tirely in the state courts, whereas others are handled entirely in the federal courts. Still others may receive atten- tion from both sets of tribunals, which sometimes causes friction. The federal courts are discussed in this chapter and the state courts in chapter 2. THE HISTORICAL CONTEXT Prior to the adoption of the Con- stitution, the United States was governed by the Articles of Confederation. Under the Articles, almost all functions of the national government were vested in a single- chamber legislature called Congress. There was no separation of executive and legislative powers. The absence of a national judiciary was considered a major weakness The Constitutional Convention and Article Ill The first proposal presented to the the Constitutional Convention was Virginia Plan, which would have set up both a Supreme Court and inferior federal courts. Opponents of the Virginia Plan responded with the New Jersey Plan, which called for the creation of a single federal supreme tribunal. Supporters of the New Jersey Plan were especially disturbed by the idea of lower federal courts. They ar- gued that the state courts could hear all cases in the first instance and that a right of appeal to the Supreme Court would be sufficient to protect national rights and provide uniform judgments throughout the country. The conflict between the states' rights advocates and the nationalists was resolved by one of the many compromises that characterized the Constitutional Convention. The com- promise is found in Article III of the Constitution, which begins, "The judi- cial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Con- gress may from time to time ordain and establish." of the Articles of Confederation. Consequently, the delegates gathered at the Constitutional Convention in Philadelphia in 1787 expressed wide- spread agreement that a national judi- ciary should be established. A good deal of disagreement arose, however, on the specific form that the judicial branch should take. The Judiciary Act of 1789 Once the Constitution was ratified, action on the federal judiciary came quickly. When the new Congress convened in 1789, its first major concern was judicial organization. Discussion of Senate Bill 1 involved CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 21 THE UNITED STATES COURT SYSTEM Federal Questions SUPREME COURT of the United States from State Courts 0000 i United States Court of Appeal 12 Circuit* i United States Court of Appeal for the Federal Circuit** U.S. Court of International Trade U.S. Court of Federal Claims U.S. Court of Veteran Appeals United States Court of Appeal for the Armed Forces I 94 U.S. Courts and United States Tax Court Army, Navy-Marine Corps, Air Force, and Coast Guard Courts of Criminal Appeals * The 12 regional Courts of Appeals also receive cases from a number of federal agencies. ** The Court of Appeals for the Federal Circuit also receives cases from the International Trade Commission, the Merit Systems Protection Board, the Patent and Trademark Office, and the Board of Contract Appeals. many of the same participants and in state courts. Attempts to resolve arguments as were involved in the Constitutional Convention's debates on the judiciary. Once again, the ques- tion was whether lower federal courts should be created at all or whether federal claims should first be heard this controversy split Congress into two distinct groups. One group, which believed that federal law should be adjudicated in the state courts first and by the U.S. Supreme Court only on appeal, ex- 22 OUTLINE OF THE U.S. LEGAL SYSTEM pressed the fear that the new govern- ment would destroy the rights of the states. The other group of legislators, suspicious of the parochial prejudice of state courts, feared that litigants from other states and other countries would be dealt with unjustly. This lat- ter group naturally favored a judicial system that included lower federal courts. The law that emerged from this debate, the Judiciary Act of 1789, set up a judicial system composed of a Supreme Court, consisting of a chief justice and five associate justices; three circuit courts, each comprising two interpretation of federal laws could not be left to a state court and certain- ly not to several state tribunals, whose judgments might disagree. Thus, the Supreme Court must interpret federal legislation. Another of the Founders' intentions was for the federal govern- ment to act directly upon individual citizens as well as upon the states. Given the Supreme Court's impor- tance to the U.S. system of govern- ment, it was perhaps inevitable that the Court would evoke great contro- versy. Charles Warren, a leading stu- dent of the Supreme Court, said in The Supreme Court in United States History "Nothing in the Court's histo- ry is more striking than the fact that while its significant and necessary place in the Federal form of Govern- justices of the Supreme Court and a district judge; and 13 district courts, each presided over by one district judge. The power to create inferior federal courts, then, was immediately exercised. Congress created not one but two sets of lower courts. THE U.S. SUPREME COURT Supreme Court Justice Charles Evans Hughes wrote in The Supreme Court of the United States (1966) that the Court "is dis- tinctly American in conception and function, and owes little to prior judi- cial institutions." To understand what the framers of the Constitution envi- sioned for the Court, another Ameri- can concept must be considered: the federal form of government. The Founders provided for both a national government and state governments; the courts of the states were to be bound by federal laws. However, final ment has always been recognized by thoughtful and patriotic men, never- theless, no branch of the Government and no institution under the Constitu- tion has sustained more continuous attack or reached its present position after more vigorous opposition." The Court's First Decade George Washington, the first president of the United States, established two important traditions when he ap- pointed the first Supreme Court jus- tices. First, he began the practice of naming to the Court those with whom he was politically compatible. Wash- ington, the only president ever to have an opportunity to appoint the entire federal judiciary, filled federal judge-  Geographical Boundaries of U.S. Courts of Appeals and U.S. District Courts Vermont Maine 2 : New Hampshire Massachusetts Rhode Island Pennsylvania Connecticut New Jersey Delaware " Maryland District of Columbia D.C. Circuit Washington, D.C. Federal Circuit Washington, D.C. Nothern Guam * Mariana Islands 24S OUTLINE OF THE U.S. LEGAL SYSTEM ships, without exception, with faithful members of the Federalist Party. Second, Washington's appointees of- fered roughly equal geographic repre- sentation on the federal courts. His first six appointees to the Supreme Court included three Northerners and three Southerners. The chief justiceship was the most important appointment Washington made. The president felt that the man to head the first Supreme Court should be an eminent lawyer, states- man, executive, and leader. Many names were presented to Washington, and at least one person formally applied for the position. Ultimately, W ashington settled upon John Jay of New York. Although only 44 years old, Jay had experience as a lawyer, a judge, and a diplomat. In addition, he was the main drafter of his state's first constitution. The Supreme Court met for the first time on Monday, February 1, 1790, in the Royal Exchange, a build- ing located in the Wall Street section of New York City, and its first session lasted just 10 days. During this period the Court selected a clerk, chose a seal, and admitted several lawyers to prac- tice before it in the future. There were, of course, no cases to be decided; the Court did not rule on a single case during its first three years. In spite of this insignificant and abbreviated be- ginning, Charles W-arren wrote, "The New York and the Philadelphia news- papers described the proceedings of this first session of the Court more fully than any other event connected with the new government; and their accounts were reproduced in the lead- ing papers of all the states." During its first decade the Court decided only about 50 cases. Given the scarcity of Supreme Court business in the early days, Chief Justice Jay's con- tributions may be traced primarily to his circuit court decisions and his ju- dicial conduct. Perhaps the most important of Jay's contributions, however, was his insis- tence that the Supreme Court could not provide legal advice for the execu- tive branch in the form of an advisory opinion. Jay was asked by Treasury Secretary Alexander Hamilton to issue an opinion on the constitutionality of a resolution passed by the Virginia House of Representatives, and Presi- dent Washington asked Jay for advice on questions relating to his Neutrality Proclamation. In both instances, Jay's response was a firm "No" because Ar- ticle III of the Constitution provides that the Court is to decide only cases pertaining to actual controversies. The Impact o Chief Justice Marshall John Marshall served as chief justice from 1801 to 1835 and dominated the Court to a degree unmatched by any other justice. Marshall's dominance of the Court enabled him to initiate major changes in the way opinions were presented. Prior to his tenure, the CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JDDICIAL SYSTEM TA justices ordinarily wrote separate opinions (called "seriatim" opinions - Latin for "one after the other") in major cases. Under Marshall's stewardship, the Court adopted the practice of handing down a single opinion. Marshall's goal was to keep dissension to a minimum. Arguing that dissent undermined the Court's authority, he tried to persuade the justices to settle their differences pri- vately and then present a united front to the public. Marshall also used his powers to involve the Court in the policy-making process. Early in his tenure as chief justice, for example, the Court asserted its power to declare an act of Congress unconstitutional, in Marbiry v Madison (1803). This case had its beginnings in the presidential election of 1800, when Thomas Jefferson defeated John Adams in his bid for reelection. Before leaving office in March 1801, however, Adams and the lame-duck Federalist Congress created several new federal judgeships. To fill these new positions Adams nominated, and the Senate confirmed, loyal Federalists. In addi- tion, Adams named his outgoing secretary of state, John Mairshall, to be the new chief justice of the Supreme Court. As secretary of state it had been Marshall's job to deliver the cornmi s- sions of the newly appointed judges. Time ran out, however, and 17 of the commissions were not delivered be- fore Jefferson's inauguration. The new president ordered his secretary of state, James Madison, not to deliver the remaining commissions. One of the disappointed nominees was William Marhury. He and three of his colleagues, all confirmed as justices of the peace for the District of Columbia, decided to ask the Supreme Court to force Madison to deliver their com- missions. They relied upon Section 13 of the Judiciary Act of 1789, which granted the Supreme Court the au- thority to issue writs of mand us court orders commanding a public of- ficial to perform an official, nondiscre- tionary duty. The case placed Marshall in a predicament. Some suggested that he disqualify himself because of his earlier involvement as secretary of state. There was also the question of the Court's power. If Marshall were to grant the writ, Madison (under Jefferson's orders) would be almost certain to refuse to deliver the commissions. The Supreme Court would then be powerless to enforce its order. However, if Marshall refused to grant the writ, Jefferson would win by default. The decision Marshall fashioned from this seemingly impossible predicament was evidence of sheer ge- nius. He declared Section 13 of the Ju- diciary Act of 1/89 unconstitutional because it granted original jurisdic- tion to the Supreme Court in excess of that specified in Article 111 of the Con- stitution. Thus the Court's power to 26 OUTLINE OF THE U.S. LEOAL SYSTEM review and determine the constitu- tionality of acts of Congress was estab- lished. This decision is rightly seen as one of the single most important deci- sions the Supreme Court has ever handed down. A few years later the Court also claimed the right of judicial review over actions of state legisla- tures; during Marshall's tenure it over- turned more than a dozen state laws on constitutional grounds. The Changing Issue Ernphasisof the Suprerne Court Until approximately 1865 the legal relationship between the national and state governments, or cases of federal- ism, dominated the Court's docket. John Marshall believed in a strong national government and did not hesitate to restrict state policies that interfered with its activities. A case in point is Gibbons v Ogden (1824), in which the Court overturned a state monopoly over steamboat transporta- tion on the ground that it interfered with national control over interstate commerce. Another good example of Marshall's use of the Court to expand the federal government's powers came in McCulloch v. Maryland (1819), in which the chief justice held that the Constitution permitted Congress to establish a national bank. The Court's insistence on a strong national government did not significantly di- minish after Marshall's death. Roger Taney, who succeeded Marshall as chief justice, served from 1836 to 1864. Although the Court's position during this period was not as uni- formly favorable to the federal govern- ment, the Taney Court did not reverse the Marshall Court's direction. During the period 1865-1937 issues of economic regulation domi- nated the Court's docket. The shift in emphasis from federalism to economic regulation was brought on by a growing number of national and state laws aimed at monitoring business activities. As such laws in- creased, so did the number of cases challenging their constitutionality. Early in this period the Court's position on regulation was mixed, but by the 1920s the bench had become quite hostile toward government regulatory policy. Federal regulations were generally overturned on the ground that they were unsupported by constitutional grants of power to Congress, whereas state laws were thrown out mainly as violations of economic rights protected by the Fourteenth Amendment. Since 1937 the Supreme Court has focused on civil liberties concerns in particular, the constitutional guar- antees of freedom of expression and freedom of religion. In addition, an increasing number of cases have dealt with procedural rights of criminal de- fendants. Finally, the Court has decid- ed a great number of cases concerning equal treatment by the government of racial minorities and other disadvan- taged groups. CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JDDICIAL SYSTEM 27T The Supreme Court as a Policy Maker The Supreme Court's role as a policy maker derives from the fact that it in- terprets the law. Public policy issues come before the Court in the form of legal disputes that must be resolved. An excellent example may be found in the area of racial equality. In the late 1880s many states enacted laws requir- ing the separation of African Ameri- cans and whites in public facilities. In 1890, for instance, Louisiana enacted a law requiring separate but equal rail- road accommodations for African Americans and whites. A challenge came two years later. Homer Plessy, who was one-eighth black, protested against the Louisiana law by refusing to move from a seat in the white car of a train traveling from New Orleans to Covington, Louisiana. Arrested and charged with violating the statute, Plessy contended that the law was un- constitutional. The U.S. Supreme Court, in Plessy v. Ferguson (1896), up- held the Louisiana statute. Thus the Court established the "separate-but- equal" policy that was to reign for about 60 years. During this period many states required that the races sit in different areas of buses, trains, ter- minals, and theaters; use different rest- rooms; and drink from different water fountains. African Americans were sometimxes excluded from restaurants and public libraries. Perhaps most im- portant, African American students often had to attend inferior schools. Separation of the races in public schools was contested in the famous case Brown v. Board of Education (1954). Parents of African American schoolchildren claimed that state laws requiring or permitting segregation deprived them of equal protection of the laws under the Fourteenth Amendment. The Supreme Court ruled that separate educational facili- ties are inherently unequal and, there- fore, segregation constitutes a denial of equal protection. In the Brown deci- sion the Court laid to rest the separate- but-equal doctrine and established a policy of desegregated public schools. In an average year the Court de- cides, with signed opinions, between 80 and 90 cases. Thousands of other cases are disposed of with less than the full treatment. Thus the Court deals at length with a very select set of policy issues that have varied throughout the Court's history. In a democracy, broad matters of public policy are presumed to be left to the elected representatives of the people not to judicial appointees with life terms. Thus, in principle U.S. judges are not supposed to make policy. However, in practice judges cannot help but make policy to some extent. The Supreme Court, however, differs from legislative and executive policy makers. Especially important is the fact that the Court has no self- starting device. The justices must wait for problems to be brought to them; there can be no judicial policy making 2O OUTLINE OF THE U.S. LEOAL SYSTEM if there is no litigation. The president and members of Congress have no such constraints. Moreover, even the most assertive Supreme Court is limited to some extent by the actions of other policy makers, such as lower- court judges, Congress, and the president. The Court depends upon others to implement or carry out its decisions. The Suprerne Court a Final Arbiter The Supreme Court has both original and appellate jurisdiction. Original ju- risdiction means that a court has the power to hear a case for the first time. Appellate jurisdiction means that a higher court has the authority to re- view cases originally decided by a lower court. The Supreme Court is overwhelmingly an appellate court since most of its time is devoted to reviewing decisions of lower courts. It is the highest appellate tribunal in the country. As such, it has the final word in the interpretation of the Constitution, acts of legislative bodies, and treaties -unless the Court's deci- sion is altered by a constitutional amendment or, in some instances, by an act of Congress. Since 1925 a device known as cer- tiorari" has allowed the Supreme Court to exercise discretion in decid- ing which cases it should review. Under this method a person may re- quest Supreme Court review of a lower court decision; then the justices determine whether the request should be granted. If review is granted, the Court issues a writ of certiorari, which is an order to the lower court to send up a complete record of the case. When certiorari is denied, the decision of the lower court stands. The Suprerne Court at Work The formal session of the Supreme Court lasts from the first Monday in October until the business of the term is completed, usually in late June or July. Since 1935 the Supreme Court has had its own building in W ashing- ton, D.C. The imposing five-story marble building has the words "Equal Justice Under Law" carved above the entrance. It stands across the street from the U.S. Capitol. Formal sessions of the Court are held in a large court- room that seats 300 people. At the front of the courtroom is the bench where the justices are seated. When the Court is in session, the chief justice, followed by the eight associate justices in order of seniority, enters through the purple draperies behind the bench and takes a seat. Seats are arranged ac- cording to seniority with the chief jus- tice in the center, the senior associate justice on the chief justice's right, the second-ranking associate justice on the left, and continuing alternately in declining order of seniority. Near the courtroom are the conference room where the justices decide cases and the chambers that contain offices for the justices and their staffs. CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 29 A~ ar I11 4 +. l The U. words S. Supreme Court Building, with the "Equal Justice Under Law" carved above the entrance. a.m. until noon and from 1:00 The Court's term is divided into sittings of approximately two weeks each, during which it meets in open session and holds internal confer- ences, and recesses, during which the justices work behind closed doors as they consider cases and write opin- ions. The 80 to 90 cases per term that receive the Court's full treatment fol- low a fairly routine pattern. Oral Argument. Oral arguments are until 3:00 p.m. Because the procedure is not a trial or the original hearing of a case, no jury is assembled and no witnesses are called. Instead, the two opposing attorneys present their arguments to the justices. The general practice is to allow 30 minutes for each side, al- though the Court may decide that ad- ditional time is necessary. The Court can normally hear four cases in one day. Attorneys presenting oral argu- ments are frequently interrupted with questions from the justices. The oral argument is considered very impor- generally scheduled on Monday through Wednesday during the sit- tings. The sessions run from 10:00 30 OUTLINE OF THE U.S. LEGAL SYSTEM The nine justices of the present U.S. Supreme Court are shown above. Seated, from left to right: Associate Justices Antonin Scalia and John Paul Stevens; Chief Justice William Renhquist; Associate Justices Sandra Day O'Connor and Anthony Kennedy. Standing, left to right: Associate Justices Ruth Bader Ginsburg, Stephen Breyer. tant by both attorneys and justices be- cause it is the only stage in the process that allows such personal exchanges. The Conference. On Fridays preced- ing the two-week sittings the Court holds conferences; during sittings it holds conferences on Wednesday af- ternoon and all day Friday. At the David Souter, Clarence Thomas, and Prior to the Friday conference each justice is given a list of the cases that will be discussed. The conference be- gins at about 9:30 or 10:00 a.m. and runs until 5:30 or 6:00 p.m. As the jus- tices enter the conference room they shake hands and take their seats around a rectangular table. They meet behind locked doors, and no official record is kept of the discussions. The chief justice presides over the confer- ence and offers an opinion first in each case. The other justices follow in de- scending order of seniority. A quorum for a decision on a case is six members; obtaining a quorum is seldom difficult. Cases are sometimes Wednesday meeting the justices dis- cuss the cases argued on Monday. At the Friday conference they discuss the cases that were argued on Tuesday and Wednesday, plus any other matters that need to be considered. The most important of these other matters are the certiorari petitions. CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 31 decided by fewer than nine justices be- cause of vacancies, illnesses, or non- participation resulting from possible conflicts of interest. Supreme Court decisions are made by a majority vote. In case of a tie the lower-court deci- sion is upheld. In most cases a single opinion does obtain majority support, although few rulings are unanimous. Those who disagree with the opinion of the Court are said to dissent. A dissent does not have to be accompanied by an opinion; in recent years, however, it usually has been. Whenever more than one justice dissents, each may write an opinion or all may join in a single opinion. On occasion a justice will agree with the Court's decision but differ in his or her reason for reaching that Opinion Writing. After a tentative decision has been reached in confer- ence, the next step is to assign the Court's opinion to an individual jus- tice. The chief justice, if voting with the majority, either writes the opinion or assigns it to another justice who conclusion. Such a justice may write voted with the majority. When the chief justice votes with the minority, the most senior justice in the majority makes the assignment. After the conference the justice who will write the Court's opinion begins work on an initial draft. Other justices may work on the case by writing alternative opinions. The com- pleted opinion is circulated to justices in both the majority and the minority groups. The writer seeks to persuade justices originally in the minority to change their votes, and to keep his or her majority group intact. A bargain- ing process occurs, and the wording of the opinion may be changed in order to satisfy other justices or obtain their support. A deep division in the Court makes it difficult to achieve a clear, coherent opinion and may even result in a shift in votes or in another jus- tice's opinion becoming the Court's official ruling. what is called a concurring opinion. An opinion labeled "concurring and dissenting" agrees with part of a Court ruling but disagrees with other parts. Finally, the Court occasionally issues a per curiam opinion - an unsigned opinion that is usually quite brief. Such opinions are often used when the Court accepts the case for review but gives it less than full treatment. For ex- ample, it may decide the case without benefit of oral argument and issue a per curiam opinion to explain the dis- position of the case. THE U.S. COURTS OF APPEALS T he courts of appeals receive less media coverage than the Supreme Court, but they are very important in the U.S. judicial system. Considering that the Supreme Court hands down decisions full opinions in only 80 to 90 with cases each year, it is apparent that the 25 OUTLINE OF THE U.S. LEOAL SYSTEM -------------------------------------------------------------------------------------------------- courts of appeals are the courts of last resort for most appeals in the federal court system. Circuit Courts: 1789-1891 The Judiciary Act of 1789 created three circuit courts (courts of ap- peals), each composed of two justices of the Supreme Court and a district judge. The circuit court was to hold two sessions each year in each district within the circuit. The district judge became primarily responsible for es- tablishing the circuit court's workload. The two Supreme Court justices then came into the local area and partici- pated in the cases. This practice tend- ed to give a local rather than national focus to the circuit courts. The circuit court system was re- garded from the beginning as unsatis- factory, especially by Supreme Court justices, who objected to the traveling imposed upon them. Attorney Gener- al Edmund Randolph and President Washington urged relief for the Supreme Court justices. Congress made a slight change in 1793 by alter- ing the circuit court organization to include only one Supreme Court justi e and one district judge. In the closing days of President John Adams's administration in 1801, Congress eliminated circuit riding by the Supreme Court justices, authorized the appointment of 16 new circuit judges, and greatly extended the juris- diction of the lower courts. The new administration of Thomas Jefferson strongly opposed this action, and Congress repealed it. The Circuit Court Act of 1802 restored circuit rid- ing by Supreme Court justices and expanded the number of circuits. However, the legislation allowed the circuit court to be presided over by a single district judge. Such a change may seem slight, but it proved to be of great importance. Increasingly, the district judges began to assume re- sponsibility for both district and cir- cuit courts. In practice, then, original and appellate jurisdiction were both in the hands of the district judges. The next major step in the develop- ment of the courts of appeals did not come until 1869, when Congress ap- proved a measure that authorized the appointment of nine new circuit judges and reduced the Supreme Court justices' circuit court duty to one term every two years. Still, the High Court was flooded with cases be- cause there were no limitations on the right of appeal to the Supreme Court. The Courts o Appeals: 1891 to the Present On March 3, 1891, the Evarts; Act was signed into law, creating new courts know n as circuit courts of appeals. These new tribunals were to hear most of the appeals from district courts. The old circuit courts, which had existed since 1789, also remained. The new circuit court of appeals was to consist of one circuit judge, one circuit court of appeals judge, one CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 33 The courts of appeals review cases appealed from federal district courts. Above, Chief Judge John M. Walker, Jr., U.S. Court of Appeals for the Second Circuit, left, administers the oath of office to Barrington D. Parker, Jr., right, as a judge for the same court. district judge, and a Supreme Court justice. Two judges constituted a quo- rum in these new courts. Following passage of the Evarts Act, the federal judiciary had two trial tri- bunals: district courts and circuit courts. It also had two appellate tri- bunals: circuit courts of appeals and the Supreme Court. Most appeals of trial decisions were to go to the circuit court of appeals, although the act also allowed direct review in some instances by the Supreme Court. In short, creation of the circuit courts of appeals released the Supreme Court from many petty types of cases. Appeals could still be made, but the High Court would now have much greater control over its own workload. Much of its former caseload was thus shifted to the two lower levels of the federal judiciary. The next step in the evolution of the courts of appeals came in 1911. In that year Congress passed legislation abolishing the old circuit courts, which had no appellate jurisdiction and frequently duplicated the func- tions of district courts. Today the intermediate appellate tribunals are officially known as courts of appeals, but they continue to 3 4 OUTLINE OF THE U.S. LEGAL SYSTEM be referred to colloquially as circuit courts. There are now 12 regional courts of appeals, staffed by 179 au- thorized courts of appeals judges. The courts of appeals are responsible for reviewing cases appealed from federal district courts (and in some cases from administrative agencies) within the boundaries of the circuit. A specialized appellate court came into existence in 1982 when Congress established the Federal Circuit, a jurisdictional rather than ageographic circuit. The Review Function o the Courts ofAppeals Most of the cases reviewed by the courts of appeals originate in the fed- eral district courts. Litigants disap- pointed with the lower-court decision may appeal the case to the court of appeals of the circuit in which the fed- eral district court is located. The ap- pellate courts have also been given authority to review the decisions of certain administrative agencies. Because the courts of appeals have no control over which cases are brought to them, they deal with both routine and highly important matters. At one end of the spectrum are frivo- lous appeals or claims that have no substance and little or no chance for success. At the other end of the spec- trum are the cases that raise major questions of public policy and evoke strong disagreement. Decisions by the courts of appeals in such cases are like- ly to establish policy for society as a whole, not just for the specific liti- gants. Civil liberties, reapportion- ment, religion, and education cases provide good examples of the kinds of disputes that may affect all citizens. There are two purposes of review in the courts of appeals. The first is error correction. Judges in the various cir- cuits are called upon to monitor the performance of federal district courts and federal agencies and to supervise their application and interpretation of national and state laws. In doing so, the courts of appeals do not seek out new factual evidence, but instead ex- amine the record of the lower court for errors. In the process of correcting errors the courts of appeals also settle disputes and enforce national law. The second function is sorting out and developing those few cases worthy of Supreme Court review. The circuit judges tackle the legal issues earlier than the Supreme Court justices and may help shape what they consider re- view-worthy claims. Judicial scholars have found that appealed cases often differ in their second hearing from their first. The Courts of Appeals as Policy Makers The Supreme Court's role as a policy maker derives from the fact that it interprets the law, and the same holds true for the courts of appeals. The scope of the courts of appeals' policy-making role takes on added importance, given that they are the CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 35 courts of last resort in the vast major- ity of cases. involving the Fifth Circuit. For several years the University of Texas Law As an illustration of the far- reaching impact of circuit court judges, consider the decision in a case School (as well as many other law schools across the country) had been granting preference to African Ameri- can and Mexican American applicants to increase the enrollment of minority stu- dents. This practice was challenged in a federal dis- trict court on the ground that it discriminated against white and nonpre- ferred minor in violation ity applicants of the Four- COiURT F teenth Amendment. On March 18, 1996, a panel of Fifth Circuit judges ruled in Hopwood v. Texas that the Fourteenth Amendment does not permit the school to discriminate in this way and that the law school may not use race as a factor in law school admissions. The U.S. Supreme Court denied a petition for certiorari in thus leaving a writ of the case, it the law of the land in Texas, Louisiana, and Mississippi, the states comprising the Fifth Circuit. Although it may technically be true that only schools in the Fifth Circuit are affected by the U.S. courts - both at the level of the Appeals Courts and, in several instances, the Supreme Court- often settle passionately contested issues such as affirmative action in higher education. ruling, an editorial in The National Law Journal indi- cates otherwise, noting that 30OUTLINE OF THE U.S. LEGAL SYSTEM while some "might argue that Hop- Woods impact is limited to three states in the South..., the truth is that across the country law school (and other) deans, fearing similar litigation, are scrambling to come up with an alter- native to affirmative action." The Courts o Appeals a Work The courts of appeals do not have the same degree of discretion as the Supreme Court to decide whether to accept a case. Still, circuit judges have developed methods for using their time as efficiently as possible. Screening. During the screening stage the judges decide whether to give an appeala full review or to dispose of it in some other way. The docket may be reduced to some extent by consoli- dating similar claims into single cases, a process that also results in a uniform decision. In deciding which cases can be disposed of without oral argument, the courts of appeals increasingly rely on law clerks or staff attorneys. These court personnel read pe'titions and briefs and then submit recommenda- tions to the judges. As a result, many cases are disposed of without reaching the oral argument stage. Three-Judge Panels. Those cases given the full treatment are normally considered by panels of three judges rather than by all the judges in the cir- cuit. This means that several cases can be heard at the same time by different three-judge panels, often sitting in dif- ferent cities throughout the circuit. Banc Proceedings. Occasionally, different three-judge panels within the same circuit may reach conflicting decisions in similar cases. To resolve such conflicts and to promote circuit unanimity, federal statutes provide for an "en banc" (Old French for high seat) procedure in which all the cir- cuit's judges sit together on a panel and decide a case. The exception to this general rule occurs in the large Ninth Circuit where assembling all the judges becomes too cumbersome. There, en banc panels normally consist of 11 judges. The en banc procedure may also be used when the case concerns an issue of extraordinary importance. Oral Argurent. Cases that have sur- vived the screening process and have not been settled by the litigants are scheduled for oral argument. Attor- neys for each side are given a short amount of time (as little as 10 min- utes) to discuss the points made in their written briefs and to answer questions from the judges. The Decision. Following the oralar- gument, the judges may confer briefly and, if they are in agreement, may an- nounce their decision immediately. Otherwise, a decision will be an- nounced only after the judges confer at greater length. Following the con- ference, some decisions will be CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 37 announced with a brief order or per curiam opinion of the court. A small portion of decisions will be accompa- nied by a longer, signed opinion and perhaps even dissenting and concur- ring opinions. Recent years have seen a general decrease in the number of published opinions, although circuits vary in their practices. U.S. DISTRICT COURTS The U.S. district courts represent the basic point of input for the federal judicial system. Al- though some cases are later taken to a court of appeals or perhaps even to the Supreme Court, most federal cases never move beyond the U.S. trial courts. In terms of sheer numbers of cases handled, the district courts are The First District Judges Each federal district court was to be presided over by a single judge who resided in the district. As soon as this became known, President Washington began receiving letters from individu- als desiring appointment to the vari- ous judgeships. Many asked members of Congress or Vice President John Adams to recommend them to Presi- dent Washington. Personal applica- tions were not necessarily successful and were not the only way in which names came to the president's atten- tion. Harry Innes, for example, was not an applicant for the Kentucky judgeship but received it after being recommended by a member of Con- gress from his state. As new states came into the Union, additional district courts were created. the workhorses of the federal judici- ary. However, their importance ex- tends beyond simply disposing of a large number of cases. The First District Courts Congress made the decision to create a national network of federal trial courts when it passed the Judiciary Act of 1789. Section 2 of the act estab- lished 13 district courts by making each of the 11 states then in the Union a district, and by making the parts of Massachusetts and Virginia that were to become Maine and Kentucky into separate districts. That organizational scheme established the practice, which still exists, of honoring state boundary lines in drawing districts. The additions, along with resigna- tions, gave Washington an opportuni- ty to offer judgeships to 33 people. All of the judges he appointed were mem- bers of the bar, and all but seven had state or local legal experience as judges, prosecutors, or attorneys gen- eral. Presidents have continued to ap- point lawyers with public service backgrounds to the federal bench. Present Organization of the District Courts As the country grew, new district courts were created. Eventually, Con- gress began to divide some states into more than one district. California, New York, and Texas have the most, 3O OUTLINE OF THE U.S. LEOAL SYSTEM with four each. Other than consistent- ly honoring state lines, the organiza- tion of district constituencies appears to follow no rational plan. Size and population vary widely from district to district. Over the years, a court was added for the District of Columbia, and several territories have been served by district courts. There are now U.S. district courts serving the 50 states, the District of Columbia, Guam, Puerto Rico, the Virgin Islands, and the Northern Mariana Islands. The original district courts were each assigned one judge. With the growth in population and litigation, Congress has periodically had to add judges to most of the districts. The Federal Judgeship Act of 1990 created 74 new district judgeships, bringing the current total to 649. Today all districts have more than one judge; the Southern District of New York, which includes Manhattan and the Bronx, currently has 28 judges and is thus the largest. Because each federal district court is normally presided over by a single judge, several trials may be in session within the district at any given time. The District Courts as Trial Courts Congress established the district courts as the trial courts of the federal judicial system and gave them original. jurisdiction over virtually all cases. They are the only federal courts in which attorneys examine and cross- examine witnesses. The factual record is thus established at this level. Subse- quent appeals of the trial court deci- sion focus on correcting errors rather than on reconstructing the facts. The task of determining the facts in a case often falls to a jury, a group of citizens from the community who serve as impartial arbiters of the facts and apply the law to the facts. The Constitution guarantees the right to a jury trial in criminal cases in the Sixth Amendment and the same right in civil cases in the Seventh Amendment. The right can be waived, however, in which case the judge becomes the ar- biter both of questions of fact and of matters of law. Such trials are referred to as bench trials. Two types of juries are associated with federal district courts. The grand jury is a group of men and women convened to determine whether there is probable cause to believe that a per- son has committed the federal crime of which he or she has been accused. Grand jurors meet periodically to hear charges brought by the U.S. attorney. Petit jurors are chosen at random from the community to hear evidence and determine whether a defendant in a civil trial has liability or whether a defendant in a criminal trial is guilty or not guilty. Federal rules call for 12 jurors in criminal cases but permit fewer in civil cases. The federal district courts generally use six-person juries in civil cases. Trial courts are viewed as engaging primarily in norm enforcement, CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 39 whereas appellate courts are seen as having greater opportunity to make policy. Norm enforcement is closely tied to the administration of justice, because all nations develop standards considered essential to a just and or- derly society. Societal norms are embodied in statutes, administrative regulations, prior court decisions, and community traditions. Criminal statutes, for example, incorporate con- cepts of acceptable and unacceptable behavior into law. A judge deciding a case concerning an alleged violation of that law is practicing norm enforce- ment. Because cases of this type rarely allow the judge to escape the strict re- straints of legal and procedural re- quirements, he or she has little chance to make new law or develop new poli- cy. In civil cases, too, judges are often confined to norm enforcement, be- legislative guidelines; and as a conse- quence the opportunity for trial court jurists to write on a clean slate, that is, to make policy, is formidable." CONSTITUTIONAL COURTS AND LEGISLATIVE COURTS he Judiciary Act of 1789 estab- lished the three levels of the federal court system in exis- tence today. Periodically, however, Congress has exercised its power, based on Article III and Article I of the Constitution, to create other federal courts. Courts established under Arti- cle III are known as constitutional courts and those created under Article I are called legislative courts. The Supreme Court, courts of appeals, and federal district courts are constitu- tional courts. Legislative courts cause such litigation generally arises from a private dispute whose outcome is of interest only to the parties in the suit. The district courts also play a policy-making role, however. As Amer- icans have become more litigation- conscious, disputes that were once re- solved informally are now more likely to be decided in a court of law. The courts find themselves increasingly in- volved in domains once considered include the U.S. Court of Military Ap- peals, the United States Tax Court, and the Court of Veterans Appeals. Legislative courts, unlike their constitutional counterparts, often have administrative and quasi-legislative as well as judicial duties. Another differ- ence is that legislative courts are often created for the express purpose of helping to administer a specific con- gressional statute. Constitutional private. What does this mean for the courts, on the other hand, are tribunals established to handle litigation. Finally, the constitutional and leg- islative courts vary in their degree of independence from the other two federal district courts? According to one study, "These new areas of judicial involvement tend to be relatively free branches of government. Article III of clear, precise appellate court and (constitutional court) judges serve 40 OUTLINE OF THE U.S. LEGAL SYSTEM during a period of good behavior, or what amounts to life tenure. Because Article I (legislative court) judges have no constitutional guarantee of good- behavior tenure, Congress may set specific terms of office for them. In sum, the constitutional courts have a greater degree of independence from the other two branches of government than the legislative courts. ADMINISTRATIVE AND STAFF SUPPORT IN THE court for eight-year terms of office, al- though they can be removed before the expiration of the term for "good cause." Within guidelines set by the Congress, the judges in each district court establish the duties and respon- sibilities of their magistrate judges. The legislation permits a magistrate judge, with the consent of the involved parties, to conduct all proceedings in a jury or nonjury civil matter and enter a judgment in the case and to conduct a trial of persons accused of misde- FEDERAL JUDICIARY meanors (less serious offenses than Although judges are the most visible actors in the judicial system, a large supporting cast is also at work. Their efforts are neces- sary to perform the tasks for which judges are unskilled or unsuited, or for which they simply do not have ade- quate time. Some members of the sup- port team, such as law clerks, may work specifically for one judge. Others - for example, U.S. magistrate judges - are assigned to a particular court. Still others may be employees of an agency, such as the Administrative Of- fice of the United States Courts, that serves the entire judicial system. U.S. Magistrate Judges In an effort to help federal district judges deal with increased workloads, Congress in 1968 created a system of felonies) committed within the dis- trict, provided the defendants consent. Because the decision to delegate re- sponsibilities to a magistrate judge is still made by the district judge, howev- er, a magistrate judge's participation in the processing of cases may be more narrow than that permitted by statute. Law Clerks The first use of law clerks by an Amer- ican judge is race Gray of generally traced to Ho- Massachusetts. In the summer of 1875, while serving as chief justice of the Massachusetts Supreme Court, he employed, at his own ex- pense, a highly ranked new graduate of the Harvard Law School. Each year, he employed a new clerk from Har- vard. When Gray was appointed to the U.S. Supreme Court in 1882, he magistrate judges that responds to brought a law clerk with nation's highest court. him to the each district court's specific needs and circumstances. Magistrate judges are Justice Gray's successor on the appointed by the judges of the district High Court was Oliver Wendell CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JDDICIAL SYSTEM A1 Holmes, who also adopted the prac- tice of annually hiring honor gradu- ates of Harvard Law School as his clerks. When W Gilliam Howard Taft, a former law professor at Yale, became chief justice, he secured a new law clerk annually from the dean of the Yale Law School. Harlan Fiske Stone, former dean of the Columbia Law School, joined the Court in 1925 and made it his practice to hire a Colum- bia graduate each year. Since these early beginnings there has been a steady growth in the use of law clerks by all federal courts. More than 2,000 law clerks now work for federal judges, and more than 600 serve bankruptcy judges and U.S. magistrate judges. In addition to the law clerks hired by individual judges, all appellate courts and some district courts hire staff law clerks who serve the entire court. A law clerk's duties vary according to the preferences of the judge for whom he or she works. They also vary according to the type of court. Law clerks for federal district judges often serve primarily as research assistants. They spend a good deal of time exam- ining the various motions filed in civil and criminal cases. They review each motion, noting the issues and the po- sitions of the parties involved, then re- search important points raised in the motions and prepare written memo- randums for the judges. Because their work is devoted to the earliest stages of the litigation process, they may have a substantial amount of contact with attorneys and witnesses. Law clerks at this level may be involved in the initial drafting of opinions. At the appellate level, the law clerk becomes involved in a case first by researching the issues of law and fact presented by an appeal. The courts of appeals do not have the same discre- tion to accept or reject a case that the Supreme Court has, and they use cer- tain screening devices to differentiate between cases that can be handled quictdy and those that require more time and effort. Law clerks are an inte- gral part of this screening process. A number of cases are scheduled for oral argument, and the clerk may be called upon to assist the judge in preparing for it. Intensive analysis of the record by judges prior to oral argument is not always possible. They seldom have time to do more than scan pertinent portions of the record called to -their attention by law clerks. Once a decision has been reached by an appellate court, the law clerk frequently participates in writing the order that accompanies the decision. The clerk's participation generally consists of drafting a preliminary opinion or order pursuant to the judge's directions. A law clerk may also be asked to edit or check citations (references to a statute, precedent- setting case, or legal textbook, in a brief or argument in court) in an opinion written by the judge. OUTLINE OF THE U.S. LEGAL SYSTEM The work of the law clerk for a Supreme Court justice roughly parallels that of a clerk in the other appellate courts. Clerks play an indis- pensable role in helping justices de- cide which cases should be heard. At the suggestion of Justice Lewis . Pow- ell, Jr., in 1972, a majority of the Court's members began to participate in a "certpool"; the justices pool their clerks, divide up all filings, and circu- late a single clerk's certiorari memo to all those participating in the pool. The memo summarizes the facts of the case, the questions of law presented, and the recommended course of action that is, whether the case should be granted a full hearing, denied, or dismissed. Once the justices have voted to hear a case, the law clerks, like their coun- terparts in the courts of appeals, pre- pare bench memorandums that the justices may use during oral argu ment. Finally, law clerks for Supreme Court justices, like those who serve courts of appeals judges, help to draft opinions. Adrninistrative Office the U.S. Courts The administration of the federal judicial system as a whole is managed by the Administrative Office of the U.S. Courts. Since its creation in 1939 it has handled everything from distributing supplies to negotiating with other government agencies for court accommodations in federal buildings to maintaining judicial per- sonnel records and collecting data on cases in the federal courts. The Administrative Office also serves the Judicial Conference of the United States, the central administra- tive policy-making organization of the federal judicial system. In addition to providing statistical information to the conference's many committees, the Administrative Office acts as a reception center and clearinghouse for information and proposals direct- ed to the Judicial Conference. The office also acts as liaison for both the federal judicial system and the Judicial Conference, serving as advocate for the judiciary in its dealings with Congress, the executive branch, pro- fessional groups, and the general public. Especially important is its representative role before Congress where, along with concerned judges, it presents the judiciary's budget pro- posals, requests for additional judge- ships, suggestions for changes in court rules, and other key measures. The Federal Judicial Center The Federal Judicial Center, created in 1967, is the federal courts' agency for continuing education and research. its duties fall generally into three cate- gories: conducting research on the federal courts, making recommenda- tions to improve the administration and management of the federal courts, and developing educational and training programs for personnel of the judicial branch. CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 43 Since its inception, judges have filings alone have risen since 1993. 43 percent benefited from orientation sessions and other educational programs put on by the Federal Judicial Center. In recent years, magistrate judges, bank- ruptcy judges, and administrative per- sonnel have also been the recipients of educational programs. The Federal Ju- dicial Center's extensive use of videos In 1995, 50,072 appeals were filed in one of the regional circuit courts. This figure increased every year, to a high of 60,847 appeals in 2003. How- ever, the number of appeals terminat- ed by the courts of appeals has also been steadily increasing, from in 1995 to 56,586 in 2002. 49,805 and satellite technology allows reach large numbers of people. it to The overall caseload of the FEDERAL COURT WORKLOAD The workload of the courts is heavy for all three levels of the federal judiciary - U.S. district courts, courts of appeals, and the Supreme Court. Supreme Court is large by historical standards; there were 8,255 cases on the docket for the 2002 term. The Supreme Court, however, has discre- tion to decide which cases merit its full attention. As a result, the number of cases argued before the Court has declined rather dramatically over the years. In the 2002 term only 84 cases were argued and 79 were disposed of in 71 signed opinions. 6 For fiscal year 2002 slightly more than 340,000 cases were commenced in the federal district courts. Criminal  ) 19 i N.  HST AN x ORGANI IO 46 OUTLINE OF THE U.S. LEGAL SYSTEM Even prior to the Articles of Confeder- ation and the writing of the U.S. Constitution in 1787, the colonies, as sovereign entities, already had written constitutions. Thus, the development of state court systems can be traced from the colonial period to the present. HISTORICAL DEVELOPMENT OF STATE COURTS No two states are exactly alike when it comes to the organi- zation of courts. Each state is free to adopt any organizational scheme it chooses, create as many courts as it wishes, name those courts whatever it pleases, and establish their jurisdiction as it sees fit. Thus, the or- ganization of state courts does not necessarily resemble the clear-cut, three-tier system found at the federal level. For instance, in the federal sys- tem the trial courts are called district courts and the appellate tribunals are known as circuit courts. However, in well over a dozen states the circuit courts are trial courts. Several other states use the term superior court for their major trial courts. Perhaps the most bewildering situation is found in New York, where the major trial courts are known as supreme courts. Although confusion surrounds the organization of state courts, no doubt exists about their importance. Because statutory law is more extensive in the states than at the federal level, covering everything from the most basic personal relationships to the state's most important public policies, the state courts handle a wide variety of cases, and the number of cases litigated annually in the state courts far exceeds those decided in the federal tribunals. The Colonial Period During the colonial period, political power was concentrated in the hands of the governor appointed by the king of England. Because the governors performed executive, legislative, and judicial functions, an elaborate court system was not necessary. The lowest level of the colonial ju- diciary consisted of local judges called justices of the peace or magistrates. They were appointed by the colony's governor. At the next level in the sys- tem were the county courts, the gener- al trial courts for the colonies. Appeals from all courts were taken to the high- est level - the governor and his coun- cil. Grand and petit juries were also in- troduced during this period and remain prominent features of the state judicial systems. By the early 18th century the legal profession had begun to change. Lawyers trained in the English Inns of Court became more numerous, and as a consequence colonial court proce- dures were slowly replaced by more sophisticated English common law. Early State Courts Following the American Revolution (1775-83), the powers of the govern- CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 47 ment were not only taken over by leg- islative bodies but also greatly re- duced. The former colonists were not eager to see the development of a large, independent judiciary given that many of them harbored a distrust of lawyers and the common law. The state legislatures carefully watched the courts and in some instances removed judges or abolished specific courts be- cause of unpopular decisions. Increasingly, a distrust of the judi- ciary developed as courts declared leg- islative actions unconstitutional. Conflicts between legislatures and judges, often stemming from opposing interests, became more prominent. Legislators seemed more responsive to policies that favored debtors, whereas courts generally reflected the views of creditors. These differences were im- portant because "out of this conflict over legislative and judicial power...the courts gradually emerged as an inde- pendent political institution," accord- ing to David W. Neubauer in America's Courts and the Criminal Justice System. The FRAME ofthe GOVERN MEN T OF THE IN AMERICA glj ot or $ cnmbH L A wW IS Agreed upon in England BY THE GOVERN OUR Diers F R E E- M E N ofte aforda±d PRO VIN CE. ToI he U~h~r Ox plat w anid ConIkned there bhtb i 'Prnt"ridl CrmiIiand rratrd A~frtb that &a01 ~~be heldI tr tey fee mem. re d in Itle Year MDc Lxx L REDUCED FAC-SMIILE. OF TrrLE OF "THE FV1AME OF GOVERNMEr. The colonial period helped establish important legal principles. Left, prominent lawyer Andrew Hamilton's defense of newspaper printer Johann Peter Zenger in 1735 proved a landmark on the road to protecting freedom of the press. Above, a 1682 woodcut of "The Frame of the Government of the Province of Pennsylvania," which included laws agreed upon by the governor and "free men of the aforesaid province." 48 OUTLINE OF THE U.S. LEGAL SYSTEM Modern State Courts From the Civil War (1861-65) to the early 20th century, the state courts were beset by other problems. Increas- ing industrialization and the rapid growth of urban areas created new types of legal disputes and resulted in longer and more complex court cases. The state court systems, largely fash- ioned to handle the problems of a rural, agrarian society, were faced with a crisis of backlogs as they struggled to adjust. One response was to create new courts to handle the increased volume of cases. Often, courts were piled on top of each other. Another strategy was the addition of new courts with jurisdiction over a specific geographic area. Still another response was to cre- ate specialized courts to handle one known as the court unification move- ment. The first well-known legal scholar to speak out in favor of court unification was Roscoe Pound, dean of the Harvard Law School. Pound and others called for the consolidation of trial courts into a single set of courts or two sets of courts, one to hear major cases and one to hear minor cases. A good deal of opposition has aris- en to court unification. Many trial lawyers who are in court almost daily become accustomed to existing court organizations and, therefore, are op- posed to change. Also, judges and other personnel associated with the courts are sometimes opposed to re- form. Their opposition often grows particular type of case. Small claims courts, juvenile courts, and domestic relations courts, for example, became increasingly prominent. The largely unplanned expansion of state and local courts to meet specific needs led to a situation many have referred to as fragmentation. A out of fear - of being transferred to new courts, of having to learn new procedures, or of having to decide cases outside their area of specializa- tion. The court unification movement, then, has not been as successful as many would like. On the other hand, proponents of court reform have se- cured victories in some states. multiplicity of trial courts was only STATE COURT one aspect of fragmentation, however. Many courts had very narrow jurisdic- tion. Furthermore, the jurisdictions of the various courts often overlapped. Early in the 20th century, people began to speak out against the fragmentation in the state court sys- tems. The program of reforms that emerged in response is generally ORGANIZATION S ome states have moved in the di- rection of a unified court system, whereas others still operate with a bewildering complex of courts with overlapping jurisdiction. The state courts may be divided into four general categories or levels: trial courts of limited jurisdiction, trial CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS AS9 courts of general jurisdiction, inter- mediate appellate courts, and courts of last resort. Trial Courts Lirited Jurisdiction Trial courts of limited jurisdiction handle the bulk of litigation in the United States each year and constitute about 90 percent of all courts. They have a variety of names: justice of the peace courts, magistrate courts, mu- nicipal courts, city courts, county courts, juvenile courts, domestic rela- tions courts, and metropolitan courts, to name the more common ones. The jurisdiction of these courts is limited to minor cases. In criminal matters, for example, state courts deal with three levels of violations: infrac- tions (the least serious), misde- meanors (more serious), and felonies (the most serious). Trial courts of lim- ited jurisdiction handle infractions and misdemeanors. They may impose only limited fines (usually no more than $1,000) and jail sentences (generally no more than one year). In civil cases these courts are usually lim- ited to disputes under a certain amount, such as $500. In addition, these types of courts are often limited to certain kinds of matters: traffic vio- lations, domestic relations, or cases involving juveniles, for example. Another difference from trial courts of general jurisdiction is that in many instances these limited courts are not courts of record. Since their proceedings are not recorded, appeals of their decisions usually go to a trial court of general jurisdiction for what is known as a trial "de novo" (new trial). Yet another distinguishing char- acteristic of trial courts of limited ju- risdiction is that the presiding judges of such courts are often not required to have any formal legal training. Many of these courts suffer from a lack of resources. Often, they have no permanent courtroom, meeting instead in grocery stores, restaurants, or private homes. Clerks are frequent- ly not available to keep adequate recor ds. The results are informal pro- ceedings and the processing of cases on a mass basis. Full-fledged trials are rare and cases are disposed of quickly. Finally, trial courts of limited jurisdiction are used in some states to handle preliminary matters in felony criminal cases. They often hold arraignments, set bail, appoint attor- neys for indigent defendants, and conduct preliminary examinations. The case is then transferred to a trial court of general jurisdiction for such matters as hearing pleas, holding trials, and sentencing. Trial Courts General Jurisdiction Most states have one set of major trial courts that handle the more serious criminal and civil cases. In addition, in many states, special categories such as juvenile criminal offenses, do- mestic relations cases, and probate cases are under the jurisdiction of the general trial courts. 50 OUTLINE OF THE U.S. LEGAL SYSTEM Attorney Edward Clancy, left, argues his case before his state's "court of last resort," the New Hampshire State Supreme Court. Washington State's Supreme Court, like other state courts of last resort, follows procedures similar to those of the U.S. Supreme Court. Here, defense attorney Roger Hunko makes closing arguments in the penalty phase of a murder trial. CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 5,1 In most states these courts also have an appellate function. They hear appeals in certain types of cases that originate in trial courts of limited ju- risdiction. These appeals are often heard in a trial de novo or tried again in the court of general jurisdiction. General trial courts are usually di- vided into judicial districts or circuits. Although the practice varies by state, the general rule is to use existing polit- ical boundaries, such as a county or a group of counties, in establishing the district or circuit. In rural areas the judge may ride circuit and hold court in different parts of the territory ac- cording to a fixed schedule. In urban areas, however, judges hold court in a prescribed place throughout the year. In larger counties the group of judges may be divided into specializations. Some may hear only civil cases; others try criminal cases exclusively. The courts at this level have a vari- ety of names. The most common are district, circuit, and superior. The judges at this level are required by law in all states to have law degrees. These courts also maintain clerical help be- cause they are courts of record. Intermediate Appellate Courts The intermediate appellate courts are relative newcomers to the state judicial scene. Only 13 such courts existed in 1911, whereas 39 states had created them by 1995. Their basic purpose is to relieve the workload of the state's highest court. In most instances these courts are called courts of appeals, although other names are occasionally used. Most states have one court of appeals with statewide jurisdiction. The size of intermediate courts varies from state to state. The court of appeals in Alaska, for example, has only three judges. At the other extreme, Texas has 80 courts of appeals judges. In some states the intermediate ap- peals courts sit en banc, whereas in other states they sit in permanent or rotating panels. Courts o Last Resort Every state has a court of last resort. The states of Oldahoma and Texas have two highest courts. Both states have a supreme court with jurisdiction limited to appeals in civil cases and a court of criminal appeals for criminal cases. Most states call their highest courts supreme courts; other designa- tions are the court of appeals (Mary- land and New York), the supreme judicial court (Maine and Massachu- setts), and the supreme court of appeals (West Virginia). The courts of last resort range in size from three to nine judges (or justices in some states). They typically sit en ban -and usually, although not necessarily, con- vene in the state capital. The highest courts have jurisdic- tion in matters pertaining to state law and are, of course, the final arbiters in such matters. In states that have inter- mediate appellate courts, the Supreme 52 OUTLINE OF THE U.S. LEGAL SYSTEM New York and Maryland call their highest courts the "court of appeals." Pictured left to right are New York State Court of Appeals Judge George Bundy Smith, Chief Judge Judith S. Kaye, and Judge Howard A. Levine, as they listen to arguments in a death penalty case. Court's cases come primarily from these mid-level courts. In this situa- tion the high court typically is allowed to exercise discretion in deciding which cases to review. Thus, it is likely to devote more time to cases that deal with the important policy issues of the state. When there is no intermediate court of appeals, cases generally go to the state's highest court on a mandato- ry review basis. In most instances, then, the state courts of last resort resemble the U.S. Supreme Court in that they have a good deal of discretion in determining which cases will occupy their atten- tion. Most state supreme courts also follow procedures similar to those of the U.S. Supreme Court. That is, when a case is accepted for review the opposing parties file written briefs and later present oral arguments. Then, upon reaching a decision, the judges issue written opinions explain- ing that decision. Juvenile Courts Americans are increasingly concerned about the handling of cases involving juveniles, and states have responded to the problem in a variety of ways. Some have established a statewide network CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 53 of courts specifically to handle mat- ters involving juveniles. Two states - Rhode Island and South Carolina - have family courts, which handle do- mestic relations matters as well as those involving juveniles. The most common approach is to give one or more of the state's limited or general trial courts jurisdiction to handle situations involving juveniles. In Alabama, for example, the circuit courts (trial courts of general jurisdic- tion) have jurisdiction over juvenile matters. In Kentucky, however, exclu- sive juvenile jurisdiction is lodged in trial courts of limited jurisdiction - the district courts. Finally, some states apportion juvenile jurisdiction among more than one court. The state of Colorado has a juvenile court for the city of armed robbery, robbery with a firearm, and unlawful use of weapons on school grounds. ADMINISTRATIVE AND STAFF SUPPORT IN THE STATE JUDICIARY he daily operation of the feder- al courts requires the efforts of many individuals and organi- zations. This is no less true for the state court systems. Magistrates State magistrates, who may also be Denver and has given jurisdiction known in some states as commission- ers or referees, are often used to per- form some of the work in the early stages of civil and criminal case pro- cessing. In this way they are similar to U.S. magistrate judges. In some juris- dictions they hold bond hearings and conduct preliminary investigations in criminal cases. They are also author- ized in some states to make decisions in minor cases. Law Clerks In the state courts, law clerks are over juveniles to district courts (gen- eral trial courts) in the other areas of the state. Also, some variation exists among the states as to when jurisdiction belongs to an adult court. States set a standard age at which defendants are tried in an adult court. In addi- tion, many states require that more likely to be found, if at all, in the youthful offenders be tried in an adult court if special circumstances intermediate appellate courts and courts of last resort. Most state trial courts do not utilize law clerks, and they are practically unheard of in local trial courts of limited jurisdic- tion. As at the national level, some law are present. In Illinois, for instance, the standard age at which juvenile jurisdiction transfers to adult courts is 17. The age limit drops to 15, however, for first-degree murder, aggravated criminal sexual assault, clerks serve individual judges while others serve an entire court as a staff attorney. 54 OUTLINE OF THE U.S. LEGAL SYSTEM State courts handle millions of cases a year, at times in facilities like the Berkeley County Courthouse in Martinsburg, West Virginia, which some call "historic" or "charming" and others describe as "inadequate." Administrative Office of the Courts Court Clerks and Court Administrators Every state now has an administrative office of courts or a similarly titled agency that performs a variety of administrative tasks for that state's court system. Among the tasks more commonly associated with adminis- trative offices are budget preparation, data processing, facility management, judicial education, public informa- tion, research, and personnel manage- ment. Juvenile and adult probation are the responsibility of administrative offices in a few states, as is alternative dispute resolution. The clerk of the court has traditional- ly handled the day-to-day routines of the court. This includes making court- room arrangements, keeping records of case proceedings, preparing orders and judgments resulting from court actions, collecting court fines and fees, and disbursing judicial monies. In the majority of states these officials are elected and may be referred to by other titles. The traditional clerks of court have been replaced in many areas by court administrators. In contrast to the CHAPTER 2: HISTORY AND ORGANIZATION OF STATE JUDICIAL SYSTEMS 55 court clerk, who traditionally man- aged the operations of a specific courtroom, the modern court admin- istrator may assist a presiding judge in running the entire courthouse. STATE COURT WORKLOAD The lion's share of the nation's judicial business exists at the state, not the national, level. The fact that federal judges adjudicate several hundred thousand cases a year is impressive; the fact that state courts handle several million a year is overwhelming, even if the most important cases are handled at the federal level. While justice of the peace and magistrate courts at the state level handle relatively minor matters, some of the biggest judgments in civil cases are awarded by ordinary state trial court juries. The National Center for State Courts has compiled figures on the caseloads of state courts of last resort and intermediate appellate courts in 1998. In all, some 261,159 mandatory cases and discretionary petitions were filed in the state appellate courts. Reliable data on cases filed in the state trial courts are harder to come by. Still, the center does an excellent job of tracking figur courts. In 1998, es for states' trial 17,252,940 cases were filed in the general jurisdiction and limited jurisdiction courts. As with the federal courts, the vast ma- jority of the cases are civil, although the criminal cases often receive most publicity. the  4 i 44  I 58 OUTLINE OF THE U.S. LEGAL SYSTEM In setting the jurisdictions of courts, Congress and the U.S. Constitution - and their state counterparts - man- date the types of cases each court may hear. This chapter considers how Con- gress, in particular, can influence judi- cial behavior by redefining the types of cases judges may hear. It also discusses judicial self-restraint, examining 10 principles, derived from legal tradition and constitutional and statutory law, havior, including interstate theft of an automobile, illegal importation of narcotics, assassination of a president, conspiracy to deprive persons of their civil rights, and even the killing of a migratory bird out of season. After charges are filed against an accused, and if no plea bargain has been made, a trial is conducted by a U.S. district judge. In court the defen- dant enjoys all the privileges and im- munities granted in the Bill of Rights (such as the right to a speedy and pub- lic trial) or by congressional legislation that govern a judge's decision about whether to review a case. FEDERAL COURTS or Supreme Court rulings (for in- T he federal court system is divid- ed into three separate levels: the trial courts, the appellate tri- bunals, and the U.S. Supreme Court. U.S. District Courts Congress has set forth the jurisdiction of the federal district courts. These tribunals have original jurisdiction in federal criminal and civil cases; that is, by law, the cases must be first heard in these courts, no matter who the par- ties are or how significant the issues. stance, a 12-person jury must render a unanimous verdict). Defendants may waive the right to a trial by a jury of their peers. A defendant who is found not guilty of the crime is set free and may never be tried again for the same offense (the Fifth Amendment's pro- tection against double jeopardy). If the accused is found guilty, the district judge determines the appropriate sentence within a range set by Congress. The length of a sentence cannot be appealed so long as it is in the range prescribed. A verdict of not guilty may not be appealed by the government, but convicted defendants may appeal if they believe that the judge or jury made an improper legal determination. Civil Cases. A majority of the district court caseload is civil in nature; that is, Criminal Cases. These cases com- mence when the local U.S. attorneys have reason to believe that a violation of the U.S. Penal Code has occurred. After obtaining an indictment from a federal grand jury, the U.S. attorney files charges against the accused in the district court in which he or she serves. Criminal activity as defined by suits between private parties or be- Congress covers a wide range of be- tween the U.S. government, acting in a CHAPTER 3: JURISDICTION AND POLICY- MAKING BOUNDARIES 59 nonprosecutorial capacity, and a pri- vate party. Civil cases that originate in the U.S. district courts may be placed in several categories. The first is litiga- tion concerning the interpretation or application of the Constitution, acts of Congress, or U.S. treaties. Examples of cases in this category include the fol- lowing: a petitioner claims that one of his or her federally protected civil rights has been violated, a litigant al- leges that he or she is being harmed by a congressional statute that is uncon- stitutional, and a plaintiff argues that he or she is suffering injury from a treaty that is improperly affecting him. The key point is that a federal question must be raised in order for the U.S. trial courts to have jurisdiction. Traditionally, some minimal dollar amounts had to be in controversy in some types of cases before the trial courts would hear them, but such amounts have been waived if the case falls into one of several general cate- gories. For example, an alleged viola- tion of a civil rights law, such as the Voting Rights Act of 1965, must be heard by the federal rather than the state judiciary. Other types of cases in this category are patent and copyright claims, passport and naturalization proceedings, admiralty and maritime disputes, and violations of the U.S. postal laws. Another broad category of cases over which the U.S. trial courts exer- cise general original jurisdiction in- cludes what are known as diversity of citizenship disputes. These are dis- putes between parties from different states or between an American citizen and a foreign country or citizen. Federal district courts also have jurisdiction over petitions from con- victed prisoners who contend that their incarceration (or perhaps their denial of parole) is in violation of their federally protected rights. In the vast majority of these cases prisoners ask for a writ of "habeas corpus" (Latin for "you should have the body"), an order issued by a judge to determine whether a person has been lawfully imprisoned or detained. The judge would demand that the prison authorities either justify the detention or release the petitioner. Prisoners convicted in a state court must argue that a federally protected right was violated for example, the right to be represented by counsel at trial. Otherwise, the federal courts would have no jurisdiction. Federal prisoners have a somewhat wider range for their appeals since all their rights and options are within the scope of the U.S. Constitution. Finally, the district courts have the authority to hear any other cases that Congress may validly prescribe by law. U.S. Courts of Appeals The U.S. appellate courts have no orig- inal jurisdiction whatsoever; every case or controversy that comes to one of these intermediate level panels has been first argued in some other forum. 60 OUTLINE OF THE U.S. LEGAL SYSTEM 4*44 >1 ~ - - __ ~- El Judges from the Appellate Division of the New York, hear motion arguments. A dispute must accept it for adjudication. York State Supreme Court in Rochester, New be real and current before a court will agree to These tribunals, like the district includes appeals from certain federal courts, are the creations of Congress, and their structure and functions have varied considerably over time. Basically, Congress has granted the administrative agencies and depart- ments and also from independent reg- ulatory commissions, such as the Secu- rities and Exchange Commission and the National Labor Relations Board. circuit courts appellate jurisdiction over two general categories of cases. The first of these are ordinary civil and criminal appeals from the federal trial courts. In criminal cases the appellant is the defendant because the govern- ment is not free to appeal a verdict of not guilty. In civil cases the party that lost in the trial court is usually the ap- pellant, but the winning party may U.S. Supreme Court The U.S. Supreme Court is the only federal court mentioned by name in the Constitution, which spells out the general contours of the High Court's jurisdiction. Although the Supreme Court is usually thought of as an appel- late tribunal, it does have some general original jurisdiction. Probably the most important subject of such jurisdiction is a suit between two or more states. appeal if it is not satisfied with the lower-court judgment. The second broad category of appellate jurisdiction CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 61 The High Court shares original ju- tionary action. Such a writ (which risdiction (with the U.S. district must be supported by at least four jus- courts) in certain cases brought by or against foreign ambassadors or con- suls, in cases between the United States and a state, and in cases commenced by a state against citizens of another state or another country. In situations such as these, where jurisdiction is shared, the courts are said to have con- current jurisdiction. Cases over which the Supreme Court has original juris- diction are often important, but they do not constitute a sizable proportion of the overall caseload. In recent years less than 1 percent of the High Court's docket consisted of cases heard on original jurisdiction. The U.S. Constitution declares that the Supreme Court "shall have appel- late Jurisdiction...under such Regula- tions as the Congress shall make." Over the years Congress has passed tices) is an order from the Supreme Court to a lower court demanding that it send up a complete record of a case so that the Supreme Court can re- view it. Historically, the Supreme Court has agreed to grant the petition for a writ of certiorari in only a tiny proportion of cases - usually less than 10 percent of the time, and in re- cent years the number has been closer to 1 percent. Another method by which the Supreme Court exercises its appellate jurisdiction is certification. This pro- cedure is followed when one of the ap- peals courts asks the Supreme Court for instructions regarding a question of law. The justices may choose to give the appellate judges binding instruc- tions, or they may ask that the entire record be forwarded to the Supreme Court for review and final judgment. JURISDICTION AND POLICY MAKING OF STATE COURTS he jurisdictions of the 50 sepa- rate state court systems in the United States are established in virtually the same manner as those within the national court system. Each state has a constitution that sets forth the authority and decision-making much legislation "Regulations" d setting forth the etermining which cases may appear before the nation's most august judicial body. Appeals may reach the Supreme Court through two main avenues. First, there may be appeals from all lower federal consti- tutional and territorial courts and also from most, but not all, federal legisla- tive courts. Second, the Supreme Court may hear appeals from the highest court in a state - as long as there is a substantial federal question. powers of its trial and appellate Most of the High Court's docket judges. Likewise, each state legislature passes laws that further detail the spe- cific powers and prerogatives of judges and the rights and obligations of those consists of cases in which it has agreed to issue a writ of certiorari - a discre- 62 OUTLINE OF THE U.S. LEGAL SYSTEM who bring suit in the state courts. Be- cause no two state constitutions or legislative bodies are alike, the juris- dictions of individual state courts vary from one state to another. State courts are extremely impor- tant in terms of policy making in the United States. Well over 99 percent of the judicial workload in the United States consists of state, not federal, cases, and 95 percent of all judges in the United States work at the state level. Moreover, the decisions of state jurists frequently have a great impact on public policy. For example, during the 1970s a number of suits were brought into federal court challenging the constitutionality of a state's spending vastly unequal sums on the education of its schoolchildren. (This these cases, state supreme courts in- validated their state's method of fi- nancing education, thus requiring the reallocation of billions of dollars. JURISDICTION AND LEGISLATIVE POLITICS S ome judges and judicial scholars argue that the U.S. Constitution and the respective state docu- ments confer a certain inherent juris- diction upon the judiciaries in some key areas, independent of the legisla- tive will. Nevertheless, the jurisdic- tional boundaries of American courts are also a product of legislative judg- ments - determinations often influ- enced by politics. Congress may advance a particular cause by giving courts the authority to hear cases in a public policy realm that previously had been forbidden territory for the judiciary. For exam- ple, when Congress passed the Civil Rights Act of 1968, it gave judges the authority to penalize individuals who interfere with "any person because of his race, color, religion or national origin and because he is or has been...traveling in...interstate com- occurred because poorer school dis- tricts could not raise the same amount of money as could wealthy school dis- tricts.) The litigants claimed that chil- dren in the poorer districts were victims of unlawful discrimination in violation of their equal protection rights under the U.S. Constitution. The Supreme Court said they were not, however, in a five-to-four deci- sion in San Antonio Independent School District v. Rodriguez (1973). But the matter did not end there. Litiga- tion was instituted in many states arguing that unequal educational op- portunities were in violation of vari- ous clauses in the state constitutions. Since Rodriguez such suits have been brought 28 times in 24 states. In 14 of merce." Prior to no jurisdiction 1968 the courts had over incidents that one stemmed from interference by person with another's right to travel. Likewise, Congress may discourage a particular social movement by passing legislation to make it virtually impos- sible for its advocates to have any success in the courts. CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 63 The jurisdictions of state courts, like their federal counterparts, also are very much governed by - and the po- litical product of - the will of the state legislatures. JUDICIAL SELF-RESTRAINT The activities that judges are for- bidden to engage in, or at least discouraged from engaging in, deal not so much with jurisdiction as with justiciability - the question of whether judges in the system ought to hear or refrain from hearing certain types of disputes. Ten principles of ju- dicial self-restraint, discussed below, serve to check and contain the power nical legal standards to institute a suit. The dispute must concern the protec- tion of a meaningful, nontrivial right or the prevention or redress of a wrong that directly affects the parties to the suit. There are three corollaries to this general principle. The first is that the federal courts do not render advisory opinions, rul- ings about situations that are hypo- thetical or that have not caused an actual clash between adversaries. A dispute must be real and current be- fore a court will agree to accept it for adjudication. A second corollary is that the par- ties to the suit must have proper of American judges. These maxims standing. This notion deals with the originate from a variety of sources - the U.S. Constitution and state consti- tutions, acts of Congress and of state legislatures, and the common law. Some apply more to appellate courts than to trial courts; most apply to fed- eral and state judicial systems. A Definite Controversy Must Exist The U.S. Constitution states that "the matter of who may bring litigation to court. The person bringing suit must have suffered (or be immediately judicial Power shall extend to all about to suffer) a direct and signifi- cant injury. As a general rule, a litigant cannot bring a claim on behalf of oth- ers (except for parents of minor chil- dren or in special types of suits called class actions). In addition, the alleged injury must be personalized and im- mediate -not part of some general- ized complaint. The third corollary is that courts ordinarily will not hear a case that has become moot - when the basic facts or the status of the parties have signif- icantly changed between the time when the suit was first filed and when Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made...under their Authority" (Article III, Section 2). The key word here is cases. Since 1789 the federal courts have chosen to interpret the term in its most literal sense: There must be an actual controversy between legitimate adversaries who have met all the tech- it comes before the judge(s). The death of a litigant or the fact that the litigants have ceased to be warring t S4 OUTLINE OF THE U.S. LEGAL SYSTEM parties would render a case moot in most tribunals. However, sometimes judges may decide that it is necessary to hear a case, even though the status of the facts and parties would seem to have radically altered. Examples in- clude cases where someone has chal- lenged a state's refusal to permit an abortion or to permit the life-support system of a terminally ill person to be switched off. (In such cases, by the time the suit reaches an appellate court, the woman may already have given birth or the moribund person may have died.) In these cases judges have believed that the issues were so important that they need eto be ad- dressed by the court. To declare such cases moot would, practically speak- ing, prevent them from ever being heard in time by an appellate body. Although federal judges do not rule on abstract, hypothetical issues, many state courts are permitted to do so in some form or other. Federal legislative courts may give advisory opinions as well. Also, American judges are empowered to render declaratory judgments, which define the rights of various parties under a statute, a will, or a contract. The judgments do not entail any type of coercive relief. The federal courts were given the authority to act in this capacity in the Federal Declaratory Judgment Act of 1934, and about three-fourths of the states grant their courts this power. Al- though a difference exists between an abstract dispute that the federal courts must avoid and a situation where a de- claratory judgment is in order, in the real world the line between the two is often a difficult one for jurists to draw. A Plea Must B Specific Another constraint upon the federal judiciary is that judges will hear no case on the merits unless the petition- er is first able to cite a specific part of the Constitution as the basis of the plea. For example, the First Amend- ment forbids government from mak- ing a law "respecting an establishment of religion." In 1989 the state of New York created a special school district solely for the benefit of the Satmar Hasids, a group of Hasidic Jews with East European roots that strongly re- sists assimilation into modern society. Most of the children attended parochial schools in the Village of Kiryas Joel, but these private schools weren't able to accommodate retarded and disabled students, and the Satmars claimed that such children within their community would be tra uma- tized if forced to attend a public school. Responding to this situation, the state legislature created a special district encompassing a single school that served only handicapped children from the Hasidic Jewish community. This arrangement was challenged by the association representing New York state's school boards. In June 1994 the U.S. Supreme Court ruled that the cre- ation of the one-school district effec- tively delegated political power to the CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 65 Circuit courts have appellate jurisdiction over civil appeals from the federal trial courts, such as a 2000 case where the 4th U.S. Circuit Court of Appeals was asked to overturn a federal judge's ruling that the mining industry claimed would end mining in the Appalachian Mountains (shown above). These courts also can hear appeals from certain federal administrative agencies. The two juvenile Mexican spotted owls, left, however, appear unaware that a suit by an environmental group, the Audubon Society, involves their species's habitats. 66 OUTLINE OF THE U.S. LEGAL SYSTEM A H USE f { a Congress has said that federal district courts have jurisdiction in federal civil and criminal cases. In this photo, Justice Department lead attorney David Boies, left, and Connecticut Attorney General Richard Blumenthal, right, discuss the Microsoft Windows 98 case with the media. CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES $T orthodox Jewish group and therefore violated the First Amendment's ban on governmental "establishment of re- ligion." Whether or not everyone agrees that the New York law was con- stitutional, few, if any, would doubt that the school board association met the specific criteria for securing judi- cial review: The Constitution clearly forbids the government from delegat- ing political power to a specific reli- gious entity. The government here readily acknowledged that it had passed a law for the unique benefit of a singular religious community. However, if one went into court and contended that a particular law or official action "violated the spirit of the Bill of Rights" or "offended the val- ues of the Founders," a judge surely would dismiss the proceeding. For if judges were free to give concrete, sub- stantive meaning to vague generalities such as these, there would be little check on what they could do. In the real world this principle is not as sim- ple and clear-cut as it sounds, because the Constitution contains many claus- es that are opento a wide variety of in- terpretations, giving federal judges sufficient room to maneuver and make policy. BeneficiariesMa Not Sue A third aspect of judicial self-restraint is that a petitioner who has been the beneficiary of a law or an official ac- tion may not subsequently challenge that law. For example, suppose that a farmer has long been a member of'a program under which he agreed to take part of his land out of production and periodically was paid a subsidy by the federal government. After years as a participant, the farmer learns that a neighbor is also drawing regular pay- ments for letting all of his farmland lie fallow. The idea that the neighbor is getting something for nothing offends the farmer, and he questions the pro- gram's constitutionality. The farmer challenges the legality of the program in the local federal district court. As soon as it is brought to the judge's at- tention that the farmer had himself been a member of the program and had gained financially from it, the suit is dismissed: One may not benefit from a particular governmental en- deavor or official action and subse- quently attack it in court. Appellate Courts Rule o Legal Not Factual- Questions A working proposition of state and federal appellate court practice is that these courts will generally not hear cases if the grounds for appeal are that the trial judge or jury wrongly amassed and identified the basic factual elements of the case. It is not that trial judges and juries always do a perfect job of making factual determinations. Rather, there is the belief that they are closer to the actual parties and physical evidence of the case, and, therefore, they will do a much better job of making factual t6 0OUTLINE OF THE U.S. LEGAL SYSTEM assessments than would an appellate body reading a transcript of the case some months or years after the trial. However, legal matters which laws to apply to the facts of a case or how to assess the facts in light of the prevailing law are appropriate for appellate review. The Suprerne Court Is Not Bound (Technically) byPrecedents If the High Court is free to overturn or circumvent past and supposedly controlling precedents when it decides a case, this might appear to be an ar- gument for judicial activism not restraint. However, this practice is one of the principles of self-restraint. If the Supreme Court were inescapably bound by the dictates of its prior rulings, it would have very little flexi- bility. By occasionally allowing itself the freedom to overrule a past deci- sion or to ignore a precedent that would seem to be controlling, the Supreme Court establishes a corner of safety to which it can retreat if need be. When wisdom dictates that the Court change direction or at least keep an open mind, this principle of self-restraint is put to use. Other Rernedies Must Be Exhausted Another principle of self-restraint often frustrates the anxious litigant but is essential to the orderly adminis- tration of justice: Courts in the United States will not accept a case until all other remedies, legal and administra- tive, have been exhausted. In its simplest form this doctrine means that one must work up the ladder with one's legal petitions. Federal cases must first be heard by the U.S. trial courts, then reviewed by one of the appellate tribunals, and finally heard by the U.S. Supreme Court. This orderly procedure of events must occur despite the importance of the case or of the petitioners who filed it. In certain circumstances, however, the appellate process can be shortened. Exhaustion of remedies refers to possible administrative relief as well as to adherence to the principle of a three-tiered judicial hierarchy. Such relief might be in the form of an ap- peal to an administrative officer, a hearing before a board or committee, or formal consideration of a matter by a legislative body. Courts Do Not Decide "Political Questions" To U.S. judges, the executive and the legislative branches of government are political in that they are elected by the people for the purpose of making public policy. The judiciary, in con- trast, was not designed by the Founders to be an instrument mani- festing the popular will and is there- fore not political. According to this line of reasoning, then, a political question is one that ought properly to be resolved by one of the other two branches of government. CHAPTER 3: JURISDICTION AND POUICY-MAKING BOUNDARIES 6S9 For example, when the state of Oregon gave its citizens the right to vote on popular statewide referen- dums and initiatives around 1900, the Pacific States Telephone and Telegraph Company objected. (The company feared that voters would bypass the more business-oriented legislature and pass laws restricting its rates and profits.) The company claimed that Article IV, Section 4, of the Constitution guarantees to each state "a Republican Form of Govern- ment" a term that supposedly means that laws are to be made only by the elected representatives of the people, not by the citizens directly. The High Court refused to rule on the merits of the case, declaring the issue to be a political question. The Court reasoned that since Article IV prima- rily prescribes the duties of Congress, it follows that the Founders wanted Congress not the courts to over- see the forms of government in the several states. In recent decades an important political versus nonpolitical dispute has concerned the matter of reappor- tionment of legislative districts. Prior to 1962, a majority on the Supreme Court refused to rule on the constitu- tionality of legislative districts with unequal populations, saying that such matters were "nonjusticiable" and that the Court dared not enter what Justice Felix Frankfurter called "the political thicket." According to traditional Supreme Court thinking, the Founders wanted legislatures to redistrict themselves perhaps with input from the electorate. However, with the Supreme Court's decision in Baker v. Carr (1962), the majority re- versed that thinking. Since then the Court has held in scores of cases that the equal-protection clause of the Fourteenth Amendment requires leg- islative districts to be of equal popula- tion size and, furthermore, that the courts should see to it that this man- date is carried out. The Burden o Proofis o the Petitioner The nation's jurists generally agree that an individual who would chal- lenge the constitutionality of a statute bears the burden of proof. Thus, if someone were to attack a particular statute, he or she would have to do more than demonstrate that it was "questionable or of doubtful constitu- tionality"; the petitioner would have to persuade the court that the evi- dence against the law was clear-cut and overwhelming. The only exception to this burden of proof principle is in the realm of civil rights and liberties. Some jurists who are strong civil libertarians have long contended that when govern- ment attempts to restrict basic human freedoms the burden of proof should shift to the government. And in sever- al specific areas of civil rights ju- risprudence that philosophy now prevails. For example, the U.S. T0 OUTLINE OF THE U.S. LEGAL SYSTEM Supreme Court has ruled in a variety of cases that laws that treat persons differently according to their race or gender are automatically subject to "special scrutiny." This means that the burden of proof shifts to the govern- ment to demonstrate a compelling or overriding need to differentiate per- sons according to their ethnic origins or sex. For instance, the government has long argued (successfully) that some major restrictions can be placed on women in the armed forces that prevent them from being assigned to full combat duty. Laws Are Overturned onthe Narrowest Grounds Only Sometimes during a trial a judge clearly sees that the strictures of the Constitution have been offended by a legislative or executive act. Even here, however, a jurist may proceed with caution. First, a judge may have the option of invalidating an official action on what is called statutory, instead of constitutional, grounds. Statutory invalidation means that a judge overturns an official's action because the official acted beyond the authority delegated to him or her by the law. Such a ruling has the function of saving the law itself while still nullifying the official's misdeed. Second, judges may, if possible, invali- date only that portion of a law they find constitutionally defective instead of overturning the entire statute. NoRulings Are Md nthe "isdor"ofLegislation If followed strictly, this principle means that the only basis for de- claring a law or an official action unconstitutional is that it literally violates the Constitution. Statutes do not offend the Constitution merely because they are unfair, are fiscally wasteful, or constitute bad public pol- icy. If taken truly to heart, this means that judges and justices are not free to invoke their own personal notions of right and wrong or of good and bad public policy when they examine the constitutionality of legislation. Another spinoff of this principle is that a law may be passed that all agree is good and wise but that is neverthe- less unconstitutional; conversely, a statute may legalize the commission of an official deed that all know to be bad and dangerous but that still does not offend the Constitution. The principle of not ruling on the "wisdom" of a law is difficult to follow in the real world. This is so because the Constitution, a rather brief docu- ment, is silent on many areas of public life and contains a number of phrases and admonitions that are open to a variety of interpretations. For instance, the Constitution says that Congress may regulate interstate commerce. But what exactly is com- merce, and how extensive does it have to be before it is of an "interstate" character? As human beings, judges CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 71 have differed in the way they have responded to this question. The Con- stitution guarantees aperson accused of a crime the right to a defense attor- ney. But does this right continue if one appeals a guilty verdict and, if so, for how many appeals? Strict con- structionists and loose construction- ists have responded differently to these queries. In all, despite the inevitable intru- sion of judges' personal values into their interpretation of many portions of the Constitution, virtually every jurist subscribes to the general principle that laws can be invalidated only if they offend the Constitution not the personal preferences of the judges.LP  t t R 3r * f { L. 'Took e x 4 r 4 a ""{z t /q y r y a .ems .f q m n 5 1 td... W 4. t.. a x r rr, 44. y { Y m q J j  0 Aoz SI zPi 4- Lr . u 77i 74 OUTLINE OF THE U.S. LEGAL SYSTEM This chapter focuses on three crucial actors in the judicial process: lawyers, litigants, and interest groups. Judges in the United States make decisions only in the context of cases that are brought to the courts by individuals or groups who have some sort of disagreement or dispute with each other. These ad- versaries, commonly called litigants, sometimes argue their own cases in such minor forums as small claims courts, but they are almost always rep- resented by lawyers in the more im- portant judicial arenas. Following an examination of the legal profession, the chapter discusses the role of indi- vidual litigants and interest groups in the judicial process. LAWYERS AND THE LEGAL PROFESSION The training of attorneys and the practice of law have evolved over time in the United States. Today American lawyers practice in a variety of settings and circumstances. Development of the Legal Profession During the colonial period in America (1607-1776), there were no law schools to train those interested in the legal profession. Some young men Those who aspired to the law during this period generally performed a clerkship or apprenticeship with an established lawyer. After the American Revolution (1775-83), the number of lawyers in- creased rapidly, because neither legal education nor admission to the bar was very strict. The apprenticeship method continued to be the most popular way to receive legal training, but law schools began to come into ex- istence. The first law schools grew out of law offices that specialized in train- ing clerks or apprentices. The earliest such school was the Litchfield School in Connecticut, founded in 1784. This school, which taught by the lecture method, placed primary emphasis on commercial law. Eventually, a few col- leges began to teach law as part of their general curriculum, and in 1817 an in- dependent law school was established at Harvard University. During the second half of the 19th century, the number of law schools in- creased dramatically, from 15 schools in 1850 to 102 in 1900. The law schools of that time and those of today have two major differences. First, law schools then did not usually require any previous college work. Second, in 1850 the standard law school curricu- lum could be completed in one year. Later in the 1800s many law schools instituted two-year programs. went to England for their education and attended the Inns of Court. The Inns were not formal law schools, but were part of the English legal culture and allowed students to In 1870 major changes began at Harvard that were to have a lasting impact on legal training. Harvard in- become familiar with English law. CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 5O stituted stiffer entrance requirements; a student who did not have a college degre ewas required to pass an en- trance test. The law school course was increased to two years in 1871 and to three years in 1876. Also, students were required to pass first-year final examinations before proceeding to the second-year courses. The most lasting change, however, was the introduction of the case method of teaching. This method re- placed lectures and textbooks with casebooks. The casebooks (collections of actual case reports) were designed to explain the principles of law, what they meant, and how they developed. Teachers then used the Socratic method to guide the students to a dis- covery of legal concepts found in the cases. Other schools eventually adopt- ed the Harvard approach, and the case method remains the accepted method of teaching in many law schools today. As the demand for lawyers in- creased during the late 1800s, there was a corresponding acceleration in the creation of new law schools. Open- ing a law school was not expensive, and a number of night schools, using lawyers and judges as part-time facul- ty members, sprang into existence. Standards were often lax and the cur- riculum tended to emphasize local practice. These schools' major contri- bution lay in making training more readily available to poor, immigrant, and working-class students. In the 2th century, the number of people wanting to study law increased dramatically. By the 1960s the number of applicants to law schools had grown so large that nearly all schools became more selective. At the same time, in response to social pressure and litigation, many law schools began actively recruiting female and minority applicants. Also by the 1 960s, the curriculum in some law schools had been expand- ed to include social concerns such as civil rights law and law-and -poverty issues. International law 'ourse.s also became available. A more recent trend in law schools is an emphasis on the use of comput- ers for everything from registration to classroom instruction to accessing court forms to student services. Also noteworthy is that more and more law schools are offering courses or special programs in intellectual property law, a field of specialization that has grown considerably in recent years. Finally, the increasing use of advertising by lawyers has had a profound impact on the legal profession. On television stations across the country one can now see lawyers making appeals to attract new clients. Furthermore, legal clinics, established to handle the busi- ness generated by the increased use of advertising, have spread rapidly. Growth and Stratification The number of lawyers in the United States has increased steadily over the past half century and is currently 76 OUTLINE OF THE U.S. LEGAL SYSTEM estimated at more than 950,000. Where do all the attorneys in the United States find work? The Law School Admission Coun- cil provides some answers in The Offi- cial Guide to U.S. Law Schools, 2001 Edition. Almost three-fourths (72.9 percent) of America's lawyers are in private practice, some in small, one- person offices and some in much larg- er law firms. About 8.2 percent of the legal profession's members work for government agencies, roughly 9.5 per- cent work for private industries and associations as lawyers or managers, about 1.1 percent work for legal aid as- sociations or as public defenders, rep- resenting those who cannot afford to pay a lawyer, and 1 percent are in legal education. Some 5 percent of the na- tion's lawyers are retired or inactive. America's lawyers apply their pro- fessional training in a variety of set- tings. Some environments are more profitable and prestigious than others. This situation has led to what is known as professional stratification. One of the major factors influenc- ing the prestige level is the type of legal specialty and the type of clientele served. Lawyers with specialties who serve big business and large institu- tions occupy the top hemisphere; those who represent individual inter- ests are in the bottom hemisphere. At the top of the prestige ladder are the large national law firms. Attor- neys in these firms have traditionally been known less for court appearances than for the counseling they provide their clients. The clients must be able to pay for this high-powered legal tal- The large national law firms employ associates, librarians, and paralegals to help partners with a myriad of tasks, such as research. CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 7T ent, and thus they tend to be major corporations rather than individuals. However, many of these large national firms often provide "pro bono" (Latin for "the public good," or free) legal services to further civil rights, civil liberties, consumer interests, and envi- ronmental causes. The large national firms consist of partners and associates. Partners own the law firm and are paid a share of the firm's profits. The associates are paid salaries and in essence work for the partners. These large firms compete for the best graduates from the nation's law schools. The most prestigious firms have 250 or more lawyers and also employ hundreds of other people as paralegals (non- lawyers who are specially trained to handle many of the routine aspects of legal work), administrators, librarians, and secretaries. A notch below those working in the large national firms are those employed as attorneys by large corporations. Many corporations use national law firms as outside counsel. Increasingly, however, corpo- rations are hiring their own salaried attorneys as in-house counsel. The legal staff of some corporations rivals those of private firms in size. Further, these corporations compete with the major law firms for the best law school graduates. Instead of representing the corpo- ration in court (a task usually handled by outside counsel when necessary) the legal division handles the multi- tude of legal problems faced by the modern corporation. For example, the legal division monitors the compa- ny's personnel practices to ensure compliance with federal and state regulations concerning hiring and re- moval procedures. The corporation's attorneys may advise the board of directors about such things as contrac- tual agreements, mergers, stock sales, and other business practices. The company lawyers may also help edu- cate other employees about the laws that apply to their specific jobs and make sure that they are in compliance with them. The legal division of a large company also serves as a liaison with outside counsel. Most of the nation's lawyers work in a lower hemisphere of the legal pro- fession in terms of prestige and do not command the high salaries associated with large national law firms and major corporations. However, they are engaged in a wider range of activities and are much more likely to be found, day in and day out, in the courtrooms of the United States. These are the at- torneys who represent clients in per- sonal injury suits, who prosecute and defend persons accused of crimes, who represent husbands and wives in divorce proceedings, who help people conduct real estate transactions, and who help people prepare wills, to name just a few activities. Attorneys who work for the gov- ernment are generally included in the 7 OUTLINE OF THE U.S. LEGAL SYSTEM lower hemisphere. Some, such as the U.S. attorney general and the solicitor general of the United States, occupy quite prestigious positions, but many toil in rather obscure and poorly paid positions. A number of attorneys opt for careers as judges at the federal or state level. Another distinction in terms of specialization in the legal profession is that between plaintiffs and defense at- torneys. The former group initiates lawsuits, whereas the latter group de- fends those accused of wrongdoing in civil and criminal cases. Governrnent Attorneys in the Judicial Process Government attorneys work at all lev- els of the judicial process, from trial courts to the highest state and federal appellate courts. Federal Prosecutors. Each federal judicial district has one U.S. attorney and one or more assistant U.S. attor- neys. They are responsible for prose- cuting defendants in criminal cases in the federal district courts and for de- fending the United States when it is sued in a federal trial court. U.S. attorneys are appointed by the president and confirmed by the Senate. Nominees must reside in the district to which they are appointed and must be lawyers. They serve a formal term of four years but can be reappointed indefinitely or removed at the president's discretion. The assis- tant U.S. attorneys are formally ap- pointed by the U.S. attorney general, although in practice they are chosen by the U.S. attorney for the district, who forwards the selection to the attorney general for ratification. Assistant U.S. attorneys may be fired by the attorney general. In their role as prosecutors, U.S. attorneys have considerable discretion in deciding which criminal cases to prosecute. They also have the authori- ty to determine which civil cases to try to settle out of court and which ones to take to trial. U.S. attorneys, therefore, are in a very good position to influence the federal district court's docket. Also, because they engage in more litigation in the district courts than anyone else, the U.S. attorneys and their staffs are vital participants in policy making in the federal trial courts. Prosecutors a the State Level. Those who prosecute persons accused of violating state criminal statutes are commonly known as district attorneys. In most states they are elected county officials; however, in a few states they are appointed. The district attorney's office usually employs a number of assistants who do most of the actual trial work. Most of these assistant district attorneys are recent graduates of law school, who gain valuable trial experience in these positions. Many later enter private practice, often as criminal defense CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 79 attorneys. Others will seek to district attorneys or judges few years. become after a The district attorney's office has a great deal of discretion in the handling of cases. Given budget and personnel constraints, not all cases can be afforded the same amount of time and attention. Therefore, some cases are dismissed, others are not prosecuted, and still others are prose- cuted vigorously in court. Most cases, however, are subject to plea bargain- ing. This means that the district attorney's office agrees to accept the defendant's plea of guilty to a reduced charge or to drop some charges against the defendant in exchange for pleas of guilty to others. Public Defenders. Often the person charged with violating a state or feder- al criminal statute is unable to pay for the services of a defense attorney. In some areas a government official known as a public defender bears the responsibility for representing indi- gent defendants. Thus, the public de- fender is a counterpart of the prosecu- tor. Unlike the district attorney, however, the public defender is usual- ly appointed rather than elected. In some parts of the country there are statewide public defender systems; in other regions the public defender is a local official, usually associated with a county government. Like the district attorney, the public defender employs assistants and investigative personnel. In some areas, if a person charged with violating a state or federal criminal statute is unable to pay for the services of a defense attorney - as happened with the defendant above, center, facing the judge - a government official known as the public defender is responsible for representing the defendant. 555OUTLINE OF THE U.S. LEGAL SYSTEM Other Governrnent Lawyers. At both the state and federal levels, some government attorneys are better known for their work in appellate courts than in trial courts. For exam- ple, each state has an attorney general who supervises a staff of attorneys who are charged with the responsibili- ty of handling the legal affairs of the state. At the federal level the Depart- ment of Justice has similar responsi- bilities on behalf of the United States. The U.S. Departent f Justice. Al- though the Justice Department is an agency of the executive branch of the government, it has a natural associa- tion with the judicial branch. Many of the cases heard in the federal courts involve the national government in one capacity or another. Sometimes the government is sued; in other in- stances the government initiates the lawsuit. In either case, an attorney must represent the government. Most of the litigation involving the federal government is handled by the Justice Department, although a number of other government agencies have attor- neys on their payrolls. The Justice Department's Office of the Solicitor General is extremely im- portant in cases argued before the Supreme Court. The department also has several legal divisions, each with a staff of specialized lawyers and headed by an assistant attorney general. The legal divisions supervise the handling of litigation by the U.S. attorneys, take cases to the courts of appeals, and aid the solicitor general's office in cases ar- gued before the Supreme Court. U.S. Solicitor General. The solicitor general of the United States, the third- ranking official in the Justice Depart- ment, is assisted by five deputies and about 20 assistant solicitors general. The solicitor general's primary func- tion is to decide, on behalf of the United States, which cases will and will not be presented to the Supreme Court for review. Whenever an execu- tive branch department or agency loses a case in one of the courts of ap- peals and wishes a Supreme Court re- view, that department or agency will request that the Justice Department seek certiorari. The solicitor general will determine whether to appeal the lower court decision. Many factors must be taken into account when making such a decision. Perhaps the most important consider- ation is that the Supreme Court is limited in the number of cases it can hear in a given term. Thus, the solic- itor general must determine whether a particular case deserves extensive con- sideration by the Court. In addition to deciding whether to seek Supreme Court review, the solicitor general per- sonally argues most of the govern- ment's cases heard by the High Court. State Attorneys GeneralEach state has an attorney general who serves as its chief legal official. In most states CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS '1 this official is elected on a partisan statewide ballot. The attorney general oversees a staff of attorneys who pri- marily handle the civil cases involving the state. Although the prosecution of criminal defendants is generally handled by the local district attorneys, the attorney general's office often plays an important role in investigating statewide criminal activities. Thus, the attorney general and his or her staff may work closely with the local dis- trict attorney in preparing a case against a particular defendant. The state attorneys general also issue advisory opinions to state and local agencies. Often, these opinions interpret an aspect of state law not yet ruled on by the courts. Although an advisory opinion might eventually be overruled in a case brought before the courts, the attorney general's opinion is important in determining the be- havior of state and local agencies. Private Lawyers in the Judicial Process In criminal cases in the United States the defendant has a constitutional right to be represented by an attorney. Some jurisdictions have established public defender's offices to represent indigent defendants. In other areas, some method exists of assigning a private attorney to represent a defen- dant who cannot afford to hire one. Those defendants who can afford to hire their own lawyers will do so. In civil cases neither the plaintiff nor the defendant is constitutionally entitled to the services of an attorney. However, in the civil arena the legal issues are often so complex as to de- mand the services of an attorney. Var- ious forms of legal assistance are usu- ally available to those who need help. Assigned Defense Counsel. When a private lawyer must be appointed to represent an indigent defendant, the assignment usually is made by an indi- vidual judge on an ad hoc basis. Local bar associations or lawyers themselves often provide the courts with a list of attorneys who are willing to provide such services. Private Defense Counsel. Some at- torneys in private practice specialize in criminal defense work. Although the lives of criminal defense attorneys may be depicted as glamorous on television and in movies, the average real-life criminal defense lawyer works long hours for low pay and low prestige. The Courtroorn Workgroup Rather than functioning as an occa- sional gathering of strangers who re- solve a particular conflict and then go their separate ways, lawyers and judges who work in a criminal court room become part of a workgroup. The most visible members of the courtroom workgroup -judges, prosecutors, and defense attorneys are associated with specific functions: Prosecutors push for convictions of 82~ OUTLINE OF THE U.S. LEOAL SYSTEM those accused of criminal offenses against the government, defense attor- neys seek acquittals for their clients, and judges serve as neutral arbiters to guarantee a fair trial. Despite their dif- ferent roles, members of the court- room workgroup share certain values and goals and are not the fierce adver- saries that many people imagine. Co- operation among judges, prosecutors, and defense attorneys is the norm. The most important goal of the courtroom workgroup is to handle cases expeditiously. Judges and prose- cutors are interested in disposing of cases quickly to present a picture of accomplishment and efficiency. Because private defense attorneys need to handle a large volume of cases to survive financially, resolving cases quickly works to their advantage. And public defenders seek quick dispositions simply because they lack adequate resources to handle their caseloads. A second important goal of the courtroom workgroup is to maintain group cohesion. Conflict among the members makes work more difficult and interferes with the expeditious handling of cases. Finally, the courtroom workgroup is interested in reducing or controlling uncertainty. In practice this means that all members of the workgroup strive to avoid trials. Trials, especially jury trials, produce a great deal of un- certainty given that they require sub- stantial investments of time and effort without any reasonable guarantee of a desirable outcome. To attain these goals, workgroup members employ several techniques. Although unilateral decisions and adversarial proceedings occur, negoti- ation is the most commonly used technique in criminal courtrooms. The members negotiate over a variety of issues continuances (delays in the court proceedings), hearing dates, and exchange of information, for ex- ample. Plea bargaining, however, is the most critical tool of negotiation. Legal Services for the Poor Although criminal defendants are constitutionally entitled to be repre- sented by a lawyer, those who are de- fendants in a civil case or who wish to initiate a civil case do not have the right to representation. Therefore, those who do not have the funds to hire a lawyer may find it difficult to obtain justice. To deal with this problem, legal aid services are now found in many areas. Legal aid societies were established in New York andChicago as early as the late 1880s, and many other major cities followed suit in the 20th century. Although some legal aid societies are sponsored by bar associations, most are supported by private contribu- tions. Legal aid bureaus also are asso- ciated with charitable organizations in some areas, and many law schools op- erate legal aid clinics to provide both legal assistance for the poor and valu- CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 83 able training for law students. In addi- tion, many lawyers provide legal serv- ices "pro bono publico" (Latin for "for the public good") because they see it as a professional obligation. contests, may either be policy oriented or compensatory." A classic example of private, or ordinary, compensation-oriented liti- gation is when a person injured in an automobile accident sues the driver of the other car in an effort to win mon- LITIGANTS In some cases taken before the courts, the litigants are individu- als, whereas in other cases one or more of the litigants may be a govern- ment agency, a corporation, a union, an interest group, or a university. What motivates a person or group to take a grievance to court? In crimi- nal cases the answer to this question is etary damages as compensation for relatively simple. A state or federal criminal statute has allegedly been vi- olated, and the government prosecutes the party charged with violating the statute. In civil cases the answer is not quite so easy. Although some persons readily take their grievances to court, many others avoid this route because of the time and expense involved. medical expenses incurred. This type of litigation is personal and is not aimed at changing governmental or business policies. Some private law cases, however, are policy oriented or political in na- ture. Personal injury suits and product liability suits may appear on the sur- face to be simply compensatory in na- ture but may also be used to change the manufacturing or business prac- tices of the private firms being sued. A case litigated in North Carolina provides a good example. The case began in 1993 after a five-year-old girl got stuck on the drain of a wading pool after another child had removed the drain cover. Such a powerful suc- tion was created that, before she could be rescued, the drain had sucked out most of her large and small intestines. As a result, the girl will have to spend about 11 hours per day attached to in- travenous feeding tubes for the rest of Political scientist Phillip Cooper points out that judges are called upon to resolve two kinds of disputes: private law cases and public law controversies. Private law disputes are those in which one private citizen or organization sues another. In public law controversies, a citizen or organi- zation contends that a government her life. In 1997 a jury awarded the agency or official has violated a right established by a constitution or statute. In Hard Judicial Choices, girl's family $25 million in compensa- tory damages and, before the jury was to have considered punitive damages, the drain manufacturer and two other defendants settled the case for $30.9 million. The plaintiff's attorney said Cooper writes that "legal actions, whether public law or private law 84 OUTLINE OF THE U.S. LEGAL SYSTEM that the lawsuit revealed similar inci- dents in other areas of the country and presented a stark example of some- thing industry insiders knew but others did not. Not only did the fami- ly win its lawsuit, but the North Car- olina legislature also passed a law re- quiring multiple drains to prevent such injuries in the future. Most political or policy-oriented lawsuits, however, are public law con- troversies. That is, they are suits brought against the government pri- marily to stop allegedly illegal policies or practices. They may also seek dam- ages or some other specific form of re- lief. A case decided by the U.S. Supreme Court, Lucas v. South Caroli- na Coastal Council, provides a good ex- ample. South Carolina's Beachfront Management Act forbade David H. Court. Ordinary compensatory litiga- tion is often terminated early in the judicial process because the litigants find it more profitable to settle their dispute or accept the verdict of a trial court. However, litigants in polit- ical cases generally do little to advance their policy goals by gaining victories at the lower levels of the judiciary. Instead, they prefer the more wide- spread publicity that is attached to a decision by an appellate tribunal. Pursuing cases in the appellate courts is expensive. Therefore, many lawsuits that reach this level are supported in one way or another by interest groups. INTEREST GROUPS IN THE JUDICIAL PROCESS A lthough interest groups are probably better known for their attempts to influence Lucas from building single-fam ily houses on two beachfront lots he owned. A South Carolina trial court ruled that Lucas was entitled to be legislative and executive branch compensated for his loss. The South Carolina Supreme Court reversed the trial court decision, however, and Lucas appealed to the U.S. Supreme Court. The High Court ruled in Lucas's favor, saying that if a property owner is denied all economically viable use of his or her property, a taking has occurred and the Constitution requires that he or she get compensation. decisions, they also pursue their policy goals in the courts. Some groups have found the judicial branch to be more receptive to their efforts than either of the other two branches of government. Interest groups that do not have the economic resources to mount an intensive lobbying effort in Congress or a state legislature may find it much easier to hire a lawyer and find some constitutional or statutory provision upon which to base a court case. Likewise, a small group with few registered voters among its members Political or policy-oriented litiga- tion is more prevalent in the appellate courts than in the trial courts and is most common in the U.S. Supreme may lack the political clout to exert much influence on legislators and ex- CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 85 One of the most famous cases involving special interests was the 1925 "monkey trial," where the American Civil Liberties Union (ACLU) sent Clarence Darrow, left, to defend biology teacher John T. Scopes in his test of Tennessee's law banning the teaching of the theory of evolution. William Jennings Bryan, right, testified for the prosecution as a Bible expert. During the 1950s and 1960s, interest group lawyers such as Thurgood Marshall, then chief counsel of the National Association for the Advancement of Colored People (NAACP), successfully persuaded the courts to support African Americans' struggle for their civil rights. Marshall here is shown with one of his clients, Autherine Lucy, expelled within days of becoming the first African American student to attend the University of Alabama, allegedly "for her own safety" in response to threats. OUTLINE OF THE U.S. LEGAL SYSTEM ecutive branch officials. Large mem- berships and political clout are not prerequisites for filing suits in the courts, however. Interest groups may also turn to the courts because they find the judi- cial branch more sympathetic to their policy goals than the other two branches. Throughout the 1960s in- terest groups with liberal policy goals fared especially well in the federal courts. In addition, the public interest law firm concept gained prominence during this period. The public interest law firms pursue cases that serve the public interest in general including cases in the areas of consumer rights, employment discrimination, occupa- tional safety, civil liberties, and envi- ronmenta I concerns. In the 1970s and 1980s conserva- tive interest groups turned to the fed- eral courts more frequently than they had before. This was in part a reaction to the successes of liberal interest groups. It was also due to the increas- ingly favorable forum that the federal courts provided for conservative viewpoints. Interest group involvement in the judicial process may take several different forms depending upon the goals of the particular group. However, two principal tactics stand out: involvement in test cases and presentation of information before the courts through "amicus curiae" (Latin, meaning "friend of the court") briefs. Test Cases Because the judiciary engages in poli- cy making only by rendering decisions in specific cases, one tactic of interest groups is to make sure that a case appropriate for obtaining its policy goals is brought before the court. In some instances this means that the interest group will initiate and spon- sor the case by providing all the necessary resources. The best-known example of this type of sponsorship is Brown v. Board of Education (1954). In that case, although the suit against the Board of Education of Topeka, Kansas, was filed by the parents of Linda Brown, the National Associa- tion for the Advancement of Colored People (NAACP) supplied the legal help and money necessary to pursue the case all the way to the Supreme Court. Thurgood Marshall, who later became a U.S. Supreme Court justice, argued the suit on behalf of the plain- tiff and the NAACP. As a result, the NAACP gained a victory through the Supreme Court's decision that segre- gation in the public schools violates the equal protection clause of the Fourteenth Amendment. Interest groups may also provide assistance in a case initiated by some- one else, but which nonetheless raises issues of importance to the group. A good example of this situation may be found in a freedom of religion case, Visconsin v Yoder. That case was initi- ated by the state of Wisconsin when it filed criminal complaints charging CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 87 Linda Brown, left, and her younger sister with their parents, who filed the landmark suit Brown v Board of Education (1954) that led to the Supreme Court's decision that segregation in the public schools violates the equal protection clause of the Fourteenth Amendment. Abe Yoder, the Amish youth whose father, along with others of his faith, were charged by the state of Wisconsin with failure to send their children to school until the age of 16, as required by state law. In this freedom of religion case, interest groups came to the defense of the parents. E44 OUTLINE OF THE U.S. LEGAL SYSTEM Jonas Yoder and others with failure to send their children to school until the age of 16 as required by state law. Yoder and the others, members of the Amish faith, believed that education beyond the eighth grade led to the breakdown of the values they cher- ished and to "worldly influences on their children." An organization known as the Na- tional Committee for Amish Religious Freedom (NCARF) came to the de- fense of Yoder and the others. Follow- ing a decision against the Amish in the trial court, the NCARF appealed to a W 'isconsin circuit court, which upheld the trial court's decision. An appeal was made to the Wisconsin Supreme Court, which ruled in favor of the Amish, saying that the compulsory school attendance law violated the free exercise of religion clause of the First Amendment. Wisconsin then ap- pealed to the U.S. Supreme Court, which on May 15, 1972, sustained the religious objection that the NCARF had raised to the compulsory school attendance laws. As these examples illustrate, inter- est group involvement in litigation has focused on cases concerning major constitutional issues that have reached the Supreme Court. Because only a small percentage of cases ever reaches the nation's highest court, however, most of the work of interest group lawyers deals with more routine work at the lower levels of the judiciary. Instead of fashioning major test cases for the appellate courts, these attor- neys may simply be required to deal with the legal problems of their groups' clientele. During the civil rights movement in the 1950s and 1960s, for example, public interest lavyers not only litigated major civil rights questions; they also defended African Americans and civil rights workers who ran into difficul- ties with the local authorities. These interest group attorneys, then, per- formed many of the functions of a specialized legal aid society: They pro- vided legal representation to those in- volved in an important movement for social change. Furthermore, they per- formed the important function of drawing attention to the plight of African Americans by keeping cases before the courts. Amicus Curiae Briefs Submission of amicus curiae briefs is the easiest method by which interest groups can become involved in cases. This method allows a group to get its message before the court even though it does not control the case. Provided it has the permission of the parties to the case or the permission of the court, an interest group may submit an amicus brief to supplement the ar- guments of the parties. The filing of amicus briefs is a tactic used in appel- late rather than trial courts, at both the federal and the state levels. Sometimes these briefs are aimed at strengthening the position of one of CHAPTER 4: LAWYERS, LITICANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS ET5 the parties in the case. When the Wisconsin v Yoder case was argued before the U.S. Supreme Court, the cause of the Amish was supported by amicus curiae briefs filed by the General Conference of Seventh Day Adventists, the National Council of Churches of Christ in the United States, the Synagogue Council of America, the American Jewish Con- gress, the National Jewish Cornmis- sion on Law and Public Affairs, and the Mennonite Central Committee. Sometimes friend-of-the-court briefs are used not to strengthen the arguments of one of the parties but to suggest to the court the group's own view of how the case should be re- solved. Amicus curiae briefs are often filed in an attempt to persuade an ap- pellate court to either grant or deny review of a lower-court decision. A study of the U.S. Supreme Court found that the presence of amicus briefs significantly increased the chances that the Court would give full treatment to a case. Unlike private interest groups, all levels of the government can sub- mit amicus briefs without obtaining permission. The solicitor general of the United States is especially impor- tant in this regard, and in some instances the Supreme Court may invite the solicitor general to present an amicus brief. At  r 4A), s f I5fi