Outline of The US Legal System

O
OUUT
TLLIIN
NEE O
OFF T
THHE
E
U.S.LEGAL SYSTEM
OUTLINE OF THE
U.S.LEGAL SYSTEM
Bureau of International Information Programs

United States Department of State
http://usinfo.state.gov
2004
OUTLINE OF THE
U.S.LEGAL SYSTEM
C O N T E N T 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 . . . . . . . . . . . . . . 44
CHAPTER 3
Jurisdiction and Policy-Making Boundaries . . . . . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . . . . . . . . . . 177
Amendments to the Constitution of the United States . . . . . . . . . . . 192
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
INTRODUCTION
THE
U.S.
LEGAL
SYSTEM
In this scene from an 1856

painting by Junius Brutus Searns,
George Washington (standing,
right) addresses the Constitutional
Convention, whose members
drafted and signed the U.S.
Constitution on September 17,
1787. The Constitution is the
primary source of law in the
United States.
6 OUTLINE OF THE U.S. LEGAL SYSTEM
Every business day, courts throughout the predictability and enforceable

the United States render decisions that common norms that the rule of law
together affect many thousands of provides and the U.S. legal system
people. Some affect only the parties to guarantees.
a particular legal action, but others ad- This introduction seeks to familiar-
judicate rights, benefits, and legal ize readers with the basic structure
principles that have an impact on vir- and vocabulary of American law.
tually all Americans. Inevitably, many Subsequent chapters add detail, and
Americans may welcome a given rul- afford a sense of how the U.S. legal
ing while others — sometimes many system has evolved to meet the
others — disapprove. All, however, ac- needs of a growing nation and its
cept the legitimacy of these decisions, ever more complex economic and
and of the courts’ role as final inter- social realities.
preter of the law. There can be no
more potent demonstration of the
trust that Americans place in the rule A FEDERAL LEGAL SYSTEM:
of law and their confidence in the U.S. Overview
legal system. he American legal system has
The pages that follow survey that
system. Much of the discussion ex-
plains how U.S. courts are organized
T several layers, more possibly
than in most other nations.
One reason is the division between
and how they work. Courts are central federal and state law. To understand
to the legal system, but they are not this, it helps to recall that the United
the entire system. Every day across 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- claiming independence from the
putes under laws, and at times even British Crown. The Declaration of
strike down laws as violating the fun- Independence (1776) thus spoke of
damental protections that the Consti- “the good People of these Colonies”
tution guarantees all Americans. At but also pronounced that “these
the same time, millions of Americans United Colonies are, and of Right
transact their day-to-day affairs with- ought to be, FREE AND INDEPEN-
out turning to the courts. They, too, DENT STATES.” The tension between
rely upon the legal system. The young one people and several states is a
couple purchasing their first home, perennial theme in American legal
two businessmen entering into a con- history. As explained below, the U.S.
tract, parents drawing up a will to pro- Constitution (adopted 1787, ratified
vide for their children — all require 1788) began a gradual and at times
INTRODUCTION 7
hotly contested shift of power and SOURCES OF FEDERAL LAW

legal authority away from the states
and toward the federal government. The United States Constitution
Still, even today states retain substan-
tial authority. Any student of the Supremacy of Federal Law
American legal system must under- uring the period 1781–88, an
stand how jurisdiction is apportioned
between the federal government and
the states.
D agreement called the Articles
of Confederation governed
relations among the 13 states. It estab-
The Constitution fixed many of the lished a weak national Congress and
boundaries between federal and state left most authority with the states. The
law. It also divided federal power Articles made no provision for a feder-
among legislative, executive, and judi- al judiciary, save a maritime court, al-
cial branches of government (thus though each state was enjoined to
creating a “separation of powers” honor (afford “full faith and credit”
between each branch and enshrining to) the rulings of the others’ courts.
a system of “checks-and-balances” The drafting and ratification of
to prevent any one branch from the Constitution reflected a growing
overwhelming the others), each of consensus that the federal government
which contributes distinctively to the needed to be strengthened. The legal
legal system. Within that system, the system was one of the areas where
Constitution delineated the kinds of this was done. Most significant was
laws that Congress might pass. the “supremacy clause,” found in
As if this were not sufficiently com- Article VI:
plex, U.S. law is more than the statutes This Constitution, and the Laws of
passed by Congress. In some areas, the United States which shall be
Congress authorizes administrative made in Pursuance thereof; and all
agencies to adopt rules that add detail Treaties made, or which shall be
to statutory requirements. And the made, under the Authority of the
entire system rests upon the tradition- United States, shall be the supreme
al legal principles found in English Law of the Land; and the Judges in
Common Law. Although both the every State shall be bound thereby,
Constitution and statutory law super- any Thing in the Constitution or
sede common law, courts continue Laws of any State to the Contrary
to apply unwritten common law notwithstanding.
principles to fill in the gaps where the
Constitution is silent and Congress This paragraph established the first
has not legislated. principle of American law: Where the
federal Constitution speaks, no state branches. As James Madison explained

may contradict it. Left unclear was in Federalist No. 51, “usurpations are
how this prohibition might apply to guarded against by a division of the
the federal government itself, and the government into distinct and separate
role of the individual state legal sys- departments.” Each of Madison’s “de-
tems in areas not expressly addressed partments,” legislative, executive, and
by the new Constitution. Amend- judiciary, received a measure of
ments would supply part of the an- influence over the legal system.
swer, history still more, but even today
Americans continue to wrestle with Legislative
the precise demarcations between the The Constitution vests in Congress the
federal and state domains. power to pass legislation. A proposal
considered by Congress is called a bill.
Each Branch Plays a Role in the If a majority of each house of Con-
Legal System gress — two-thirds should the Presi-
While the drafters of the Constitution dent veto it — votes to adopt a bill, it
sought to strengthen the federal gov- becomes law. Federal laws are known
ernment, they feared strengthening it as statutes. The United States Code is a
too much. One means of restraining “codification” of federal statutory law.
the new regime was to divide it into The Code is not itself a law, it merely
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- Nations, and among the several States,”
ing to Education, and Title 22 those are less so. Obviously the power to in-
covering Foreign Relations. terpret the less precise delegations is
Congress’ lawmaking power is lim- extremely important. Early in the
ited. More precisely, it is delegated by young republic’s history, the judiciary
the American people through the branch assumed this role and thus se-
Constitution, which specifies areas cured an additional and extremely
where Congress may or may not legis- vital role in the U.S. legal system.
late. Article I, Section 9 of the Consti-
tution forbids Congress from passing Judicial
certain types of laws. Congress may As with the other branches, the U.S.
not, for instance, pass an “ex post facto” judiciary possesses only those powers
law (a law that applies retroactively, or the Constitution delegates. The Con-
“after the fact”), or levy a tax on ex- stitution extended federal jurisdiction
ports. Article I, Section 8 lists areas only to certain kinds of disputes. Arti-
where Congress may legislate. Some of cle III, Section 2 lists them. Two of the
these (“To establish Post Offices”) are 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
Laws passed by one of the 50 state Constitution and, if it did, to declare
legislatures, such as the New York State
such a law invalid. A law may be un-
Assembly shown above during a roll call,
apply only to the citizens of that state or constitutional because it violates rights
outsiders who reside or do business there. guaranteed to the people by the Con-
stitution, or because Article I did not executive branch consisted of the

authorize Congress to pass that kind President, Vice President, and the
of legislation. Departments of State, Treasury, War,
The power to interpret the consti- and Justice. As the nation grew, the ex-
tutional provisions that describe ecutive branch grew with it. Today
where Congress may legislate is thus there are 15 Cabinet-level Depart-
very important. Traditionally, Con- ments. Each houses a number of
gress has justified many statutes as Bureaus, Agencies, and other entities.
necessary to regulate “commerce… Still other parts of the executive
among the several States,” or interstate branch lie outside these Departments.
commerce. This is an elastic concept, All exercise executive power delegated
difficult to describe with precision. In- by the President and thus are respon-
deed, one might for nearly any statute sible ultimately to him.
devise a plausible tie between its ob- In some areas, the relationship be-
jectives and the regulation of interstate tween the executive and the other two
commerce. At times, the judicial branches is clear. Suppose one or more
branch interpreted the “commerce individuals rob a bank. Congress has
clause” narrowly. In 1935, for instance, passed a statute criminalizing bank
the Supreme Court invalidated a robbery (United States Code, Title 18,
federal law regulating the hours and Section 2113*). The Federal Bureau
wages of workers at a New York of Investigation (FBI), a bureau within
slaughterhouse because the chickens the Department of Justice, would
processed there all were sold to New investigate the crime. When it appre-
York butchers and retailers and hence hended one or more suspects, a
not part of interstate commerce. Soon Federal Prosecutor (also Department
after this, however, the Supreme Court of Justice) would attempt to prove the
began to afford President Franklin D. suspect’s guilt in a trial conducted by a
Roosevelt’s New Deal programs more U.S. District Court.
latitude, and today the federal courts The bank robbery case is a simple
continue to interpret broadly the one. But as the nation modernized and
commerce power, although not so
broadly as to justify any legislation * Technically, the statute applies only to a
that Congress might pass. bank that is federally chartered, insured, or a
member of the Federal Reserve System.
Possibly every bank in the United States
Executive meets these criteria, but one that did not,
Article II entrusts to the President and could not be construed as impacting
interstate commerce, would not be subject
of the United States “the executive to federal legislation. Federal statutes
Power.” Under President George typically recite a jurisdictional basis: in this
Washington (1789–1801), the entire 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.
Left, civil law covers statutes pertaining to marriage and divorce. This couple is being married
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.
grew, the relationship of the three rules, to adjudicate those violations,

branches within the legal system and even to assess penalties!
evolved to accommodate the more The courts will invalidate a statute
complex issues of industrial and post- that grants an agency too much
industrial society. The role of the ex- power. An important statute called
ecutive branch changed most of all. In the Administrative Procedure Act
the bank robbery example, Congress (United States Code Title 5, Section
needed little or no special expertise to 551, et. seq.) explains the procedures
craft a statute that criminalized bank agencies must follow when promul-
robbery. Suppose instead that law- gating rules, judging violations, and
makers wished to ban “dangerous” imposing penalties. It also lays out
drugs from the marketplace, or re- how a party can seek judicial review
strict the amount of “unhealthful” of an agency’s decision.
pollutants in the air. Congress could, if
it chose, specify precise definitions of Other Sources of Law
these terms. Sometimes it does so, but The most obvious sources of Ameri-
increasingly Congress instead dele- can law are the statutes passed by
gates a portion of its authority to ad- Congress, as supplemented by admin-
ministrative agencies housed in the istrative regulations. Sometimes these
executive branch. The Food and Drug demarcate clearly the boundaries of
Administration (FDA) thus watches legal and illegal conduct — the bank
over the purity of the nation’s food robbery example again — but no
and pharmaceuticals and the Environ- government can promulgate enough
mental Protection Agency (EPA) reg- law to cover every situation. Fortu-
ulates how industries impact the nately, another body of legal princi-
earth, water, and air. ples and norms helps fill in the gaps,
Although agencies possess only as explained below
powers that Congress delegates by
statute, these can be quite substantial. Common Law
They can include the authority to Where no statute or constitutional
promulgate rules that define with pre- provision controls, both federal and
cision more general statutory terms. state courts often look to the common
A law might proscribe “dangerous” law, a collection of judicial decisions,
amounts of pollutants in the atmos- customs, and general principles that
phere, while an EPA rule defines the began centuries ago in England and
substances and amounts of each that continues to develop today. In many
would be considered dangerous. states, common law continues to hold
Sometimes a statute empowers an an important role in contract dis-
agency to investigate violations of its putes, as state legislatures have not
INTRODUCTION 13
seen fit to pass statutes covering every Higher-level courts try to resolve

possible contractual contingency. these inconsistencies. The Supreme
Court of the United States, for in-
Judicial Precedent stance, often chooses to hear a case
Courts adjudicate alleged violations when its decision can resolve a divi-
of and disputes arising under the sion among the Circuit courts. The
law. This often requires that they Supreme Court precedent will con-
interpret the law. In doing so, courts trol, or apply to all the lower federal
consider themselves bound by how courts. In United States v. Balsys, 524
other courts of equal or superior rank U.S. 666 (1998), the Supreme Court
have previously interpreted a law. ruled that fear of foreign prosecution
This is known as the principle of is beyond the scope of the Self-
“stare decisis,” or simply precedent. It Incrimination Clause.**
helps to ensure consistency and This ruling became the law of the
predictability. Litigants facing unfa- entire nation, including the Second
vorable precedent, or case law, try Circuit. Any federal court subsequent-
to distinguish the facts of their partic- ly facing the issue was bound by the
ular case from those that produced high court ruling in Balsys. Circuit
the earlier decisions. court decisions similarly bind all the
Sometimes courts interpret the District Courts within that circuit.
law differently. The Fifth Amendment Stare decisis also applies in the various
to the Constitution, for instance, state court systems. In this way, prece-
contains a clause that “[n]o person… dent grows both in volume and
shall be compelled in any criminal explanatory reach.
case to be a witness against himself.”
From time to time, cases arose where
an individual would decline to answer *The U.S. Circuit Court for the Second
Circuit is an appellate court that hears
a subpoena or otherwise testify on appeals from the federal district courts in the
the grounds that his testimony might states of New York, Connecticut, and
subject him to criminal prosecution Vermont. The Fourth Circuit encompasses
Maryland, North Carolina, South Carolina,
— not in the United States but in
Virginia, and West Virginia, and the Eleventh
another country. Would the self- Alabama, Georgia, and Florida. For more
incrimination clause apply here? The information on the organization of the
U.S. Court of Appeals for the Second federal courts, see chapter 1.
**The numbers in this sentence comprise
Circuit ruled it did, but the Fourth the citation to the Balsys decision. They
and Eleventh Circuits held that it indicate that the Court issued its ruling in the
did not.* This effectively meant that year 1998 and that the decision appears in
volume 524 of a series called United States
the law differed depending where Reports, beginning on page 666.
in the country a case arose!
DIFFERENT LAWS; the government can charge someone

DIFFERENT REMEDIES with murder.
iven this growing body of law, The standards of proof and poten-
G it is useful to distinguish
among different types of laws
and of actions, or lawsuits, brought
tial penalties also differ. A criminal de-
fendant can be convicted only upon
the determination of guilt “beyond a
before the courts and of the remedies reasonable doubt.” In a civil case, the
the law affords in each type of case. plaintiff need only show a “prepon-
derance of evidence,” a weaker formu-
Civil/Criminal lation that essentially means “more
Courts hear two kinds of disputes: likely than not.” A convicted criminal
civil and criminal. A civil action in- can be imprisoned, but the losing
volves two or more private parties, at party in a civil case is liable only for
least one of which alleges a violation legal or equitable remedies, as ex-
of a statute or some provision of com- plained below.
mon law. The party initiating the law-
suit is the plaintiff; his opponent the Legal and Equitable Remedies
defendant. A defendant can raise a The U.S. legal system affords a wide
counterclaim against a plaintiff or a but not unlimited range of remedies.
cross-claim against a co-defendant, so The criminal statutes typically list
long as they are related to the plain- for a given offense the range of fines
tiff ’s original complaint. Courts prefer or prison time a court may impose.
to hear in a single lawsuit all the Other parts of the criminal code may
claims arising from a dispute. Busi- in some jurisdictions allow stiffer
ness litigations, as for breach of con- penalties for repeat offenders. Punish-
tract, or tort cases, where a party ment for the most serious offenses,
alleges he has been injured by anoth- or felonies, is more severe than for
er’s negligence or willful misconduct, misdemeanors.
are civil cases. In civil actions, most American
While most civil litigations are courts are authorized to choose
between private parties, the federal among legal and equitable remedies.
government or a state government is The distinction means less today than
always a party to a criminal action. in the past but is still worth under-
It prosecutes, in the name of the standing. In 13th century England,
people, defendants charged with vio- “courts of law” were authorized to de-
lating laws that prohibit certain con- cree monetary remedies only. If a
duct as injurious to the public welfare. defendant’s breach of contract cost
Two businesses might litigate a civil the plaintiff £50, such a court could
action for breach of contract, but only order the defendant to pay that sum to
INTRODUCTION 15
the plaintiff. These damages were One famous example illustrates the
sufficient in many instances, but not differences between civil and criminal
in others, such as a contract for the law, and the remedies that each can
sale of a rare artwork or a specific par- offer. The state of California charged
cel of land. During the 13th and 14th the former football star O.J. Simpson
centuries, “courts of equity” were with murder. Had Simpson been con-
formed. These tribunals fashioned victed, he would have been impris-
equitable remedies like specific per- oned. He was not convicted, however,
formance, which compelled parties as the jury ruled the prosecution failed
to perform their obligations, rather to prove Simpson’s guilt beyond a rea-
than merely forcing them to pay sonable doubt. Afterwards, Mrs.
damages for the injury caused by their Simpson’s family sued Simpson for
nonperformance. By the 19th century, wrongful death, a civil action. The
most American jurisdictions had jury in this case determined that a
eliminated the distinction between preponderance of the evidence
law and equity. Today, with rare excep- demonstrated Simpson’s responsibili-
tions, U.S. courts can award either ty for the death of his wife. It ordered
legal or equitable remedies as the Simpson to pay money damages — a
situation requires. 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.
THE ROLE OF STATE LAW IN Tenth Amendment to the Constitu-

THE FEDERAL SYSTEM tion (1791) made explicit that state
he Constitution specifically law would control elsewhere: “The
T forbade the states from adopt-

ing certain kinds of laws (en-
tering 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- to the States, respectively, or to the
ticle VI Supremacy Clause barred state people.”
laws that contradicted either the Con- There nonetheless remained con-
stitution or federal law. Even so, large siderable tension between the federal
parts of the legal system remained government and the states — over
under state control. The Constitution slavery, and ultimately over the right
had carefully specified the areas where of a state to leave the federal union.
Congress might enact legislation. The 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
Family law remains almost exclusively a
state matter. Here, Attorney Catherine
equal protection, and a similar expan-
Smith argues a case involving a child sion of Congress’ power to regulate
caregiver’s rights in front of the state commerce — combined to enhance
Supreme Court in Olympia, Washington.
the federal role within the legal
Chief Justice Gerry L. Alexander, right, and
Justice Charles Z. Smith listen. system. Even so, much of that system
INTRODUCTION 17
remains within the state domain. ders between the federal and state
While no state may deny a citizen courts but it also explores the ques-
any right guaranteed by the federal tion of who may sue, and of the kinds
Constitution, many interpret their of cases courts will hear. Chapter 4 ex-
own constitutions as bestowing even pands the focus from the courts to the
more generous rights and privileges. groups who appear before them. The
State courts applying state law contin- practice of law in the United States is
ue to decide most contractual dis- studied, and the typical litigants de-
putes. The same is true of most scribed. The chapter also explains the
criminal cases, and of civil tort ac- role played by interest groups that
tions. Family law, including such mat- press particular cases to advance their
ters as marriage and divorce, is almost social and political agendas. Chapter 5
exclusively a state matter. For most details how the courts handle criminal
Americans most of the time, the legal cases while Chapter 6 turns the focus
system means the police officers and to civil actions. Chapter 7 describes
courts of their own state, or of the var- how federal judges are selected. The
ious municipalities and other political final chapter explores how certain ju-
subdivisions within that state. dicial decisions — those of higher
This introduction offers a mere courts especially — can themselves
thumbnail sketch of the legal system. amount to a form of policymaking
The remainder of the volume affords and thus further entwine the judiciary
greater detail, flavor, and understand- in a complex relationship with the leg-
ing. Chapters 1 and 2 describe respec- islative and executive branches.
tively how the federal and state court
systems have been organized, while — By Michael Jay Friedman
Chapter 3 explains at length the com- Michael Jay Friedman is a
plex question of jurisdiction. The Program Officer in the U.S.
Department of State, Bureau of
chapter necessarily delineates the bor- 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.
C H A P T E R
1
HISTORY
AND
ORGANIZATION
OF
THE
FEDERAL
JUDICIAL
SYSTEM
Chief Justice John Marshall,

who headed the U.S. Supreme
Court from 1801 to 1835, in a
portrait by Alonzo Chappel.
Marshall’s dominance of the Court
allowed him to initiate major
changes, including adopting the
practice of the Court handing
down a single opinion.
One of the most important, most in- The Constitutional Convention

teresting, and, possibly, most confusing and Article III
features of the judiciary in the United The first proposal presented to the
States is the dual court system; that is, Constitutional Convention was the
each level of government (state and na- Virginia Plan, which would have set
tional) has its own set of courts. Thus, up both a Supreme Court and inferior
there is a separate court system for each federal courts. Opponents of the
state, one for the District of Columbia, Virginia Plan responded with the
and one for the federal government. New Jersey Plan, which called for the
Some legal problems are resolved en- creation of a single federal supreme
tirely in the state courts, whereas others tribunal. Supporters of the New Jersey
are handled entirely in the federal Plan were especially disturbed by the
courts. Still others may receive atten- idea of lower federal courts. They ar-
tion from both sets of tribunals, which gued that the state courts could hear
sometimes causes friction. The federal all cases in the first instance and that a
courts are discussed in this chapter and right of appeal to the Supreme Court
the state courts in chapter 2. would be sufficient to protect national
rights and provide uniform judgments
THE HISTORICAL CONTEXT throughout the country.
rior to the adoption of the Con- The conflict between the states’
P stitution, the United States was

governed by the Articles of
Confederation. Under the Articles,
rights advocates and the nationalists
was resolved by one of the many
compromises that characterized the
almost all functions of the national Constitutional Convention. The com-
government were vested in a single- promise is found in Article III of the
chamber legislature called Congress. Constitution, which begins, “The judi-
There was no separation of executive cial Power of the United States, shall
and legislative powers. be vested in one supreme Court, and
The absence of a national judiciary in such inferior Courts as the Con-
was considered a major weakness gress may from time to time ordain
of the Articles of Confederation. and establish.”
Consequently, the delegates gathered
at the Constitutional Convention in The Judiciary Act of 1789
Philadelphia in 1787 expressed wide- Once the Constitution was ratified,
spread agreement that a national judi- action on the federal judiciary came
ciary should be established. A good quickly. When the new Congress
deal of disagreement arose, however, convened in 1789, its first major
on the specific form that the judicial concern was judicial organization.
branch should take. Discussion of Senate Bill 1 involved
CHAPTER 1: HISTORY AND ORGANIZATION OF THE FEDERAL JUDICIAL SYSTEM 21
T H E U N I T E D S TAT E S C O U RT S Y S T E M
SUPREME COURT Federal Questions

of the United States from State Courts
United States United States

United States
Court of Appeal Court of Appeal
Court of Appeal
for the for the
12 Circuit*
Federal Circuit** Armed Forces
U.S. Court of
94 U.S. Courts International Trade Army, Navy-Marine
Corps, Air Force,
and U.S. Court of
and Coast Guard
Federal Claims
United States Courts of Criminal
Tax Court U.S. Court of Appeals
Veteran 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 this controversy split Congress into
Constitutional Convention’s debates two distinct groups.
on the judiciary. Once again, the ques- One group, which believed that
tion was whether lower federal courts federal law should be adjudicated in
should be created at all or whether the state courts first and by the U.S.
federal claims should first be heard Supreme Court only on appeal, ex-
pressed the fear that the new govern- interpretation of federal laws could
ment would destroy the rights of the not be left to a state court and certain-
states. The other group of legislators, ly not to several state tribunals, whose
suspicious of the parochial prejudice judgments might disagree. Thus, the
of state courts, feared that litigants Supreme Court must interpret federal
from other states and other countries legislation. Another of the Founders’
would be dealt with unjustly. This lat- intentions was for the federal govern-
ter group naturally favored a judicial ment to act directly upon individual
system that included lower federal citizens as well as upon the states.
courts. The law that emerged from this Given the Supreme Court’s impor-
debate, the Judiciary Act of 1789, set tance to the U.S. system of govern-
up a judicial system composed of a ment, it was perhaps inevitable that
Supreme Court, consisting of a chief the Court would evoke great contro-
justice and five associate justices; three versy. Charles Warren, a leading stu-
circuit courts, each comprising two dent of the Supreme Court, said in
justices of the Supreme Court and a The Supreme Court in United States
district judge; and 13 district courts, History: “Nothing in the Court’s histo-
each presided over by one district ry is more striking than the fact that
judge. The power to create inferior while its significant and necessary
federal courts, then, was immediately place in the Federal form of Govern-
exercised. Congress created not one ment has always been recognized by
but two sets of lower courts. thoughtful and patriotic men, never-
theless, no branch of the Government
THE U.S. SUPREME COURT and no institution under the Constitu-
upreme Court Justice Charles
S
tion has sustained more continuous
Evans Hughes wrote in The attack or reached its present position
Supreme Court of the United after more vigorous opposition.”
States (1966) that the Court “is dis-
tinctly American in conception and The Court’s First Decade
function, and owes little to prior judi- George Washington, the first president
cial institutions.” To understand what of the United States, established two
the framers of the Constitution envi- important traditions when he ap-
sioned for the Court, another Ameri- pointed the first Supreme Court jus-
can concept must be considered: the tices. First, he began the practice of
federal form of government. The naming to the Court those with whom
Founders provided for both a national he was politically compatible. Wash-
government and state governments; ington, the only president ever to have
the courts of the states were to be an opportunity to appoint the entire
bound by federal laws. However, final federal judiciary, filled federal judge-
Geographical Boundaries of U.S. Courts of Appeals and U.S. District Courts
Washington
1
Puerto Rico
Montana North Dakota

Vermont
1
Maine
Oregon New Hampshire

Minnesota 2 Massachusetts
Idaho South Dakota Wisconsin New York
Michigan Rhode Island
Wyoming 8
9 Pennsylvania Connecticut
Iowa 3 New Jersey
Nebraska Ohio
Nevada 7 Virgin Islands
Delaware
Utah Colorado Illinois Indiana West
3
Virginia Maryland
California 6 Virginia
Kansas District of Columbia
Missouri Kentucky
10 4
North Carolina
Tennessee
Arizona Oklahoma South D.C. Circuit
New Mexico Arkansas Carolina Washington, D.C.
11
Alabama Georgia
Federal Circuit
Mississippi Washington, D.C.
Texas 5 Louisiana
Alaska
Florida
Hawaii
Nothern 9
Mariana Guam
Islands
ships, without exception, with faithful this first session of the Court more
members of the Federalist Party. fully than any other event connected
Second, Washington’s appointees of- with the new government; and their
fered roughly equal geographic repre- accounts were reproduced in the lead-
sentation on the federal courts. His ing papers of all the states.”
first six appointees to the Supreme During its first decade the Court
Court included three Northerners and decided only about 50 cases. Given the
three Southerners. scarcity of Supreme Court business in
The chief justiceship was the most the early days, Chief Justice Jay’s con-
important appointment Washington tributions may be traced primarily to
made. The president felt that the man his circuit court decisions and his ju-
to head the first Supreme Court dicial conduct.
should be an eminent lawyer, states- Perhaps the most important of Jay’s
man, executive, and leader. Many contributions, however, was his insis-
names were presented to Washington, tence that the Supreme Court could
and at least one person formally not provide legal advice for the execu-
applied for the position. Ultimately, tive branch in the form of an advisory
Washington settled upon John Jay opinion. Jay was asked by Treasury
of New York. Although only 44 years Secretary Alexander Hamilton to issue
old, Jay had experience as a lawyer, an opinion on the constitutionality of
a judge, and a diplomat. In addition, a resolution passed by the Virginia
he was the main drafter of his state’s House of Representatives, and Presi-
first constitution. dent Washington asked Jay for advice
The Supreme Court met for the on questions relating to his Neutrality
first time on Monday, February 1, Proclamation. In both instances, Jay’s
1790, in the Royal Exchange, a build- response was a firm “No,” because Ar-
ing located in the Wall Street section ticle III of the Constitution provides
of New York City, and its first session that the Court is to decide only cases
lasted just 10 days. During this period pertaining to actual controversies.
the Court selected a clerk, chose a seal,
and admitted several lawyers to prac- The Impact of Chief Justice
tice before it in the future. There were, Marshall
of course, no cases to be decided; the John Marshall served as chief justice
Court did not rule on a single case from 1801 to 1835 and dominated the
during its first three years. In spite of Court to a degree unmatched by any
this insignificant and abbreviated be- other justice. Marshall’s dominance of
ginning, Charles Warren wrote, “The the Court enabled him to initiate
New York and the Philadelphia news- major changes in the way opinions
papers described the proceedings of were presented. Prior to his tenure, the
justices ordinarily wrote separate president ordered his secretary of

opinions (called “seriatim” opinions – state, James Madison, not to deliver
Latin for “one after the other”) in the remaining commissions. One of
major cases. Under Marshall’s the disappointed nominees was
stewardship, the Court adopted the William Marbury. He and three of his
practice of handing down a single colleagues, all confirmed as justices of
opinion. Marshall’s goal was to keep the peace for the District of Columbia,
dissension to a minimum. Arguing decided to ask the Supreme Court to
that dissent undermined the Court’s force Madison to deliver their com-
authority, he tried to persuade the missions. They relied upon Section 13
justices to settle their differences pri- of the Judiciary Act of 1789, which
vately and then present a united front granted the Supreme Court the au-
to the public. Marshall also used his thority to issue writs of mandamus —
powers to involve the Court in the court orders commanding a public of-
policy-making process. Early in his ficial to perform an official, nondiscre-
tenure as chief justice, for example, the tionary duty.
Court asserted its power to declare an The case placed Marshall in a
act of Congress unconstitutional, in predicament. Some suggested that
Marbury v. Madison (1803). he disqualify himself because of
This case had its beginnings in the his earlier involvement as secretary
presidential election of 1800, when of state. There was also the question
Thomas Jefferson defeated John of the Court’s power. If Marshall
Adams in his bid for reelection. Before were to grant the writ, Madison
leaving office in March 1801, however, (under Jefferson’s orders) would be
Adams and the lame-duck Federalist almost certain to refuse to deliver
Congress created several new federal the commissions. The Supreme Court
judgeships. To fill these new positions would then be powerless to enforce
Adams nominated, and the Senate its order. However, if Marshall refused
confirmed, loyal Federalists. In addi- to grant the writ, Jefferson would win
tion, Adams named his outgoing by default.
secretary of state, John Marshall, to The decision Marshall fashioned
be the new chief justice of the from this seemingly impossible
Supreme Court. predicament was evidence of sheer ge-
As secretary of state it had been nius. He declared Section 13 of the Ju-
Marshall’s job to deliver the commis- diciary Act of 1789 unconstitutional
sions of the newly appointed judges. because it granted original jurisdic-
Time ran out, however, and 17 of the tion to the Supreme Court in excess of
commissions were not delivered be- that specified in Article III of the Con-
fore Jefferson’s inauguration. The new stitution. Thus the Court’s power to
review and determine the constitu- 1864. Although the Court’s position
tionality of acts of Congress was estab- during this period was not as uni-
lished. This decision is rightly seen as formly favorable to the federal govern-
one of the single most important deci- ment, the Taney Court did not reverse
sions the Supreme Court has ever the Marshall Court’s direction.
handed down. A few years later the During the period 1865-1937
Court also claimed the right of judicial issues of economic regulation domi-
review over actions of state legisla- nated the Court’s docket. The shift
tures; during Marshall’s tenure it over- in emphasis from federalism to
turned more than a dozen state laws economic regulation was brought on
on constitutional grounds. by a growing number of national
and state laws aimed at monitoring
The Changing Issue Emphasis of business activities. As such laws in-
the Supreme Court creased, so did the number of cases
Until approximately 1865 the legal challenging their constitutionality.
relationship between the national and Early in this period the Court’s
state governments, or cases of federal- position on regulation was mixed, but
ism, dominated the Court’s docket. by the 1920s the bench had become
John Marshall believed in a strong quite hostile toward government
national government and did not regulatory policy. Federal regulations
hesitate to restrict state policies that were generally overturned on the
interfered with its activities. A case ground that they were unsupported
in point is Gibbons v. Ogden (1824), by constitutional grants of power to
in which the Court overturned a state Congress, whereas state laws were
monopoly over steamboat transporta- thrown out mainly as violations of
tion on the ground that it interfered economic rights protected by the
with national control over interstate Fourteenth Amendment.
commerce. Another good example of Since 1937 the Supreme Court has
Marshall’s use of the Court to expand focused on civil liberties concerns —
the federal government’s powers came in particular, the constitutional guar-
in McCulloch v. Maryland (1819), in antees of freedom of expression and
which the chief justice held that freedom of religion. In addition, an
the Constitution permitted Congress increasing number of cases have dealt
to establish a national bank. The with procedural rights of criminal de-
Court’s insistence on a strong national fendants. Finally, the Court has decid-
government did not significantly died a great number of cases concerning
minish after Marshall’s death. Roger equal treatment by the government of
Taney, who succeeded Marshall as racial minorities and other disadvan-
chief justice, served from 1836 to taged groups.
The Supreme Court as a Policy Separation of the races in public

Maker schools was contested in the famous
The Supreme Court’s role as a policy case Brown v. Board of Education
maker derives from the fact that it in- (1954). Parents of African American
terprets the law. Public policy issues schoolchildren claimed that state laws
come before the Court in the form of requiring or permitting segregation
legal disputes that must be resolved. deprived them of equal protection
An excellent example may be found of the laws under the Fourteenth
in the area of racial equality. In the late Amendment. The Supreme Court
1880s many states enacted laws requir- ruled that separate educational facili-
ing the separation of African Ameri- ties are inherently unequal and, there-
cans and whites in public facilities. In fore, segregation constitutes a denial of
1890, for instance, Louisiana enacted a equal protection. In the Brown deci-
law requiring separate but equal rail- sion the Court laid to rest the separate-
road accommodations for African but-equal doctrine and established a
Americans and whites. A challenge policy of desegregated public schools.
came two years later. Homer Plessy, In an average year the Court de-
who was one-eighth black, protested cides, with signed opinions, between
against the Louisiana law by refusing 80 and 90 cases. Thousands of other
to move from a seat in the white car of cases are disposed of with less than the
a train traveling from New Orleans to full treatment. Thus the Court deals at
Covington, Louisiana. Arrested and length with a very select set of policy
charged with violating the statute, issues that have varied throughout the
Plessy contended that the law was un- Court’s history. In a democracy, broad
constitutional. The U.S. Supreme matters of public policy are presumed
Court, in Plessy v. Ferguson (1896), up- to be left to the elected representatives
held the Louisiana statute. Thus the of the people — not to judicial
Court established the “separate-but- appointees with life terms. Thus, in
equal” policy that was to reign for principle U.S. judges are not supposed
about 60 years. During this period to make policy. However, in practice
many states required that the races sit judges cannot help but make policy to
in different areas of buses, trains, ter- some extent.
minals, and theaters; use different rest- The Supreme Court, however,
rooms; and drink from different water differs from legislative and executive
fountains. African Americans were policy makers. Especially important is
sometimes excluded from restaurants the fact that the Court has no self-
and public libraries. Perhaps most im- starting device. The justices must wait
portant, African American students for problems to be brought to them;
often had to attend inferior schools. there can be no judicial policy making
if there is no litigation. The president determine whether the request should

and members of Congress have no be granted. If review is granted, the
such constraints. Moreover, even the Court issues a writ of certiorari, which
most assertive Supreme Court is is an order to the lower court to send
limited to some extent by the actions up a complete record of the case.
of other policy makers, such as lower- When certiorari is denied, the decision
court judges, Congress, and the of the lower court stands.
president. The Court depends upon
others to implement or carry out The Supreme Court at Work
its decisions. The formal session of the Supreme
Court lasts from the first Monday in
The Supreme Court as Final October until the business of the term
Arbiter is completed, usually in late June or
The Supreme Court has both original July. Since 1935 the Supreme Court
and appellate jurisdiction. Original ju- has had its own building in Washing-
risdiction means that a court has the ton, D.C. The imposing five-story
power to hear a case for the first time. marble building has the words “Equal
Appellate jurisdiction means that a Justice Under Law” carved above the
higher court has the authority to re- entrance. It stands across the street
view cases originally decided by a from the U.S. Capitol. Formal sessions
lower court. The Supreme Court is of the Court are held in a large court-
overwhelmingly an appellate court room that seats 300 people. At the
since most of its time is devoted to front of the courtroom is the bench
reviewing decisions of lower courts. It where the justices are seated. When the
is the highest appellate tribunal in Court is in session, the chief justice,
the country. As such, it has the final followed by the eight associate justices
word in the interpretation of the in order of seniority, enters through
Constitution, acts of legislative bodies, the purple draperies behind the bench
and treaties — unless the Court’s deci- and takes a seat. Seats are arranged ac-
sion is altered by a constitutional cording to seniority with the chief jus-
amendment or, in some instances, by tice in the center, the senior associate
an act of Congress. justice on the chief justice’s right, the
Since 1925 a device known as “cer- second-ranking associate justice on
tiorari” has allowed the Supreme the left, and continuing alternately in
Court to exercise discretion in decid- declining order of seniority. Near the
ing which cases it should review. courtroom are the conference room
Under this method a person may re- where the justices decide cases and the
quest Supreme Court review of a chambers that contain offices for the
lower court decision; then the justices justices and their staffs.
The U.S. Supreme Court Building, with the

words “Equal Justice Under Law” carved
above the entrance.
The Court’s term is divided into a.m. until noon and from 1:00 until
sittings of approximately two weeks 3:00 p.m. Because the procedure is not
each, during which it meets in open a trial or the original hearing of a case,
session and holds internal confer- no jury is assembled and no witnesses
ences, and recesses, during which the are called. Instead, the two opposing
justices work behind closed doors as attorneys present their arguments to
they consider cases and write opin- the justices. The general practice is to
ions. The 80 to 90 cases per term that allow 30 minutes for each side, al-
receive the Court’s full treatment fol- though the Court may decide that ad-
low a fairly routine pattern. ditional time is necessary. The Court
can normally hear four cases in one
Oral Argument. Oral arguments are day. Attorneys presenting oral argu-
generally scheduled on Monday ments are frequently interrupted with
through Wednesday during the sit- questions from the justices. The oral
tings. The sessions run from 10:00 argument is considered very impor-
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, David Souter, Clarence Thomas, and
Stephen Breyer.
tant by both attorneys and justices be- Prior to the Friday conference each
cause it is the only stage in the process justice is given a list of the cases that
that allows such personal exchanges. will be discussed. The conference be-
gins at about 9:30 or 10:00 a.m. and
The Conference. On Fridays preced- runs until 5:30 or 6:00 p.m. As the jus-
ing the two-week sittings the Court tices enter the conference room they
holds conferences; during sittings it shake hands and take their seats
holds conferences on Wednesday af- around a rectangular table. They meet
ternoon and all day Friday. At the behind locked doors, and no official
Wednesday meeting the justices dis- record is kept of the discussions. The
cuss the cases argued on Monday. At chief justice presides over the confer-
the Friday conference they discuss the ence and offers an opinion first in each
cases that were argued on Tuesday and case. The other justices follow in de-
Wednesday, plus any other matters scending order of seniority.
that need to be considered. The most A quorum for a decision on a case
important of these other matters are is six members; obtaining a quorum is
the certiorari petitions. seldom difficult. Cases are sometimes
decided by fewer than nine justices be- In most cases a single opinion does
cause of vacancies, illnesses, or non- obtain majority support, although few
participation resulting from possible rulings are unanimous. Those who
conflicts of interest. Supreme Court disagree with the opinion of the Court
decisions are made by a majority vote. are said to dissent. A dissent does not
In case of a tie the lower-court deci- have to be accompanied by an opinion;
sion is upheld. in recent years, however, it usually has
been. Whenever more than one justice
Opinion Writing. After a tentative dissents, each may write an opinion or
decision has been reached in confer- all may join in a single opinion.
ence, the next step is to assign the On occasion a justice will agree
Court’s opinion to an individual jus- with the Court’s decision but differ in
tice. The chief justice, if voting with his or her reason for reaching that
the majority, either writes the opinion conclusion. Such a justice may write
or assigns it to another justice who what is called a concurring opinion.
voted with the majority. When the An opinion labeled “concurring and
chief justice votes with the minority, dissenting” agrees with part of a Court
the most senior justice in the majority ruling but disagrees with other parts.
makes the assignment. Finally, the Court occasionally issues a
After the conference the justice per curiam opinion — an unsigned
who will write the Court’s opinion opinion that is usually quite brief.
begins work on an initial draft. Other Such opinions are often used when the
justices may work on the case by Court accepts the case for review but
writing alternative opinions. The com- gives it less than full treatment. For ex-
pleted opinion is circulated to justices ample, it may decide the case without
in both the majority and the minority benefit of oral argument and issue a
groups. The writer seeks to persuade per curiam opinion to explain the dis-
justices originally in the minority to position of the case.
change their votes, and to keep his or
her majority group intact. A bargain- THE U.S. COURTS OF
ing process occurs, and the wording of APPEALS
the opinion may be changed in order he courts of appeals receive
to satisfy other justices or obtain their
support. A deep division in the Court
makes it difficult to achieve a clear,
T less media coverage than the
Supreme Court, but they are
very important in the U.S. judicial
coherent opinion and may even result system. Considering that the Supreme
in a shift in votes or in another jus- Court hands down decisions with
tice’s opinion becoming the Court’s full opinions in only 80 to 90 cases
official ruling. each year, it is apparent that the
courts of appeals are the courts of Jefferson strongly opposed this action,
last resort for most appeals in the and Congress repealed it. The Circuit
federal court system. Court Act of 1802 restored circuit rid-
ing by Supreme Court justices and
Circuit Courts: 1789-1891 expanded the number of circuits.
The Judiciary Act of 1789 created However, the legislation allowed the
three circuit courts (courts of ap- circuit court to be presided over by a
peals), each composed of two justices single district judge. Such a change
of the Supreme Court and a district may seem slight, but it proved to be of
judge. The circuit court was to hold great importance. Increasingly, the
two sessions each year in each district district judges began to assume re-
within the circuit. The district judge sponsibility for both district and cir-
became primarily responsible for es- cuit courts. In practice, then, original
tablishing the circuit court’s workload. and appellate jurisdiction were both in
The two Supreme Court justices then the hands of the district judges.
came into the local area and partici- The next major step in the develop-
pated in the cases. This practice tend- ment of the courts of appeals did not
ed to give a local rather than national come until 1869, when Congress ap-
focus to the circuit courts. proved a measure that authorized the
The circuit court system was re- appointment of nine new circuit
garded from the beginning as unsatis- judges and reduced the Supreme
factory, especially by Supreme Court Court justices’ circuit court duty to
justices, who objected to the traveling one term every two years. Still, the
imposed upon them. Attorney Gener- High Court was flooded with cases be-
al Edmund Randolph and President cause there were no limitations on the
Washington urged relief for the right of appeal to the Supreme Court.
Supreme Court justices. Congress
made a slight change in 1793 by alter- The Courts of Appeals: 1891 to the
ing the circuit court organization to Present
include only one Supreme Court On March 3, 1891, the Evarts Act was
justice and one district judge. In the signed into law, creating new courts
closing days of President John Adams’s known as circuit courts of appeals.
administration in 1801, Congress These new tribunals were to hear most
eliminated circuit riding by the of the appeals from district courts.
Supreme Court justices, authorized The old circuit courts, which had
the appointment of 16 new circuit existed since 1789, also remained.
judges, and greatly extended the juris- The new circuit court of appeals was
diction of the lower courts. to consist of one circuit judge, one
The new administration of Thomas circuit court of appeals judge, one
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 Appeals could still be made, but the
justice. Two judges constituted a quo- High Court would now have much
rum in these new courts. greater control over its own workload.
Following passage of the Evarts Act, Much of its former caseload was thus
the federal judiciary had two trial tri- shifted to the two lower levels of the
bunals: district courts and circuit federal judiciary.
courts. It also had two appellate tri- The next step in the evolution of
bunals: circuit courts of appeals and the courts of appeals came in 1911. In
the Supreme Court. Most appeals of that year Congress passed legislation
trial decisions were to go to the circuit abolishing the old circuit courts,
court of appeals, although the act which had no appellate jurisdiction
also allowed direct review in some and frequently duplicated the func-
instances by the Supreme Court. In tions of district courts.
short, creation of the circuit courts of Today the intermediate appellate
appeals released the Supreme Court tribunals are officially known as
from many petty types of cases. courts of appeals, but they continue to
be referred to colloquially as circuit whole, not just for the specific liti-
courts. There are now 12 regional gants. Civil liberties, reapportion-
courts of appeals, staffed by 179 au- ment, religion, and education cases
thorized courts of appeals judges. The provide good examples of the kinds of
courts of appeals are responsible for disputes that may affect all citizens.
reviewing cases appealed from federal There are two purposes of review in
district courts (and in some cases from the courts of appeals. The first is error
administrative agencies) within the correction. Judges in the various cir-
boundaries of the circuit. A specialized cuits are called upon to monitor the
appellate court came into existence in performance of federal district courts
1982 when Congress established the and federal agencies and to supervise
Federal Circuit, a jurisdictional rather their application and interpretation of
than a geographic circuit. national and state laws. In doing so,
the courts of appeals do not seek out
The Review Function of the Courts new factual evidence, but instead ex-
of Appeals amine the record of the lower court
Most of the cases reviewed by the for errors. In the process of correcting
courts of appeals originate in the fed- errors the courts of appeals also settle
eral district courts. Litigants disap- disputes and enforce national law.
pointed with the lower-court decision The second function is sorting out
may appeal the case to the court of and developing those few cases worthy
appeals of the circuit in which the fed- of Supreme Court review. The circuit
eral district court is located. The ap- judges tackle the legal issues earlier
pellate courts have also been given than the Supreme Court justices and
authority to review the decisions of may help shape what they consider re-
certain administrative agencies. view-worthy claims. Judicial scholars
Because the courts of appeals have have found that appealed cases often
no control over which cases are differ in their second hearing from
brought to them, they deal with both their first.
routine and highly important matters.
At one end of the spectrum are frivo- The Courts of Appeals as Policy
lous appeals or claims that have no Makers
substance and little or no chance for The Supreme Court’s role as a policy
success. At the other end of the spec- maker derives from the fact that it
trum are the cases that raise major interprets the law, and the same
questions of public policy and evoke holds true for the courts of appeals.
strong disagreement. Decisions by the The scope of the courts of appeals’
courts of appeals in such cases are like- policy-making role takes on added
ly to establish policy for society as a importance, given that they are the
courts of last resort in the vast major- involving the Fifth Circuit. For several
ity of cases. years the University of Texas Law
As an illustration of the far- School (as well as many other law
reaching impact of circuit court schools across the country) had been
judges, consider the decision in a case 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 minority applicants
in violation of the Four-
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 a writ of
certiorari in the case,
thus leaving 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 ruling, an editorial in The
passionately contested issues such as affirmative action in National Law Journal indi-
higher education. cates otherwise, noting that
while some “might argue that Hop- three-judge panels, often sitting in dif-
wood’s impact is limited to three states ferent cities throughout the circuit.
in the South..., the truth is that across
the country law school (and other) En Banc Proceedings. Occasionally,
deans, fearing similar litigation, are different three-judge panels within the
scrambling to come up with an alter- same circuit may reach conflicting
native to affirmative action.” decisions in similar cases. To resolve
such conflicts and to promote circuit
The Courts of Appeals at Work unanimity, federal statutes provide for
The courts of appeals do not have the an “en banc” (Old French for high
same degree of discretion as the seat) procedure in which all the cir-
Supreme Court to decide whether to cuit’s judges sit together on a panel and
accept a case. Still, circuit judges have decide a case. The exception to this
developed methods for using their general rule occurs in the large Ninth
time as efficiently as possible. Circuit where assembling all the judges
becomes too cumbersome. There, en
Screening. During the screening banc panels normally consist of 11
stage the judges decide whether to give judges. The en banc procedure may
an appeal a full review or to dispose of also be used when the case concerns
it in some other way. The docket may an issue of extraordinary importance.
be reduced to some extent by consoli-
dating similar claims into single cases, Oral Argument. Cases that have sur-
a process that also results in a uniform vived the screening process and have
decision. In deciding which cases can not been settled by the litigants are
be disposed of without oral argument, scheduled for oral argument. Attor-
the courts of appeals increasingly rely neys for each side are given a short
on law clerks or staff attorneys. These amount of time (as little as 10 min-
court personnel read petitions and utes) to discuss the points made in
briefs and then submit recommenda- their written briefs and to answer
tions to the judges. As a result, many questions from the judges.
cases are disposed of without reaching
the oral argument stage. The Decision. Following the oral ar-
gument, the judges may confer briefly
Three-Judge Panels. Those cases and, if they are in agreement, may an-
given the full treatment are normally nounce their decision immediately.
considered by panels of three judges Otherwise, a decision will be an-
rather than by all the judges in the cir- nounced only after the judges confer
cuit. This means that several cases can at greater length. Following the con-
be heard at the same time by different ference, some decisions will be
announced with a brief order or per The First District Judges

curiam opinion of the court. A small Each federal district court was to be
portion of decisions will be accompa- presided over by a single judge who
nied by a longer, signed opinion and resided in the district. As soon as this
perhaps even dissenting and concur- became known, President Washington
ring opinions. Recent years have seen a began receiving letters from individu-
general decrease in the number of als desiring appointment to the vari-
published opinions, although circuits ous judgeships. Many asked members
vary in their practices. of Congress or Vice President John
Adams to recommend them to Presi-
U.S. DISTRICT COURTS dent Washington. Personal applica-
he U.S. district courts represent tions were not necessarily successful
T the basic point of input for the

federal judicial system. Al-
though some cases are later taken to a
and were not the only way in which
names came to the president’s atten-
tion. Harry Innes, for example, was
court of appeals or perhaps even to the not an applicant for the Kentucky
Supreme Court, most federal cases judgeship but received it after being
never move beyond the U.S. trial recommended by a member of Con-
courts. In terms of sheer numbers of gress from his state.
cases handled, the district courts are As new states came into the Union,
the workhorses of the federal judici- additional district courts were created.
ary. However, their importance ex- The additions, along with resigna-
tends beyond simply disposing of a tions, gave Washington an opportuni-
large number of cases. ty to offer judgeships to 33 people. All
of the judges he appointed were mem-
The First District Courts bers of the bar, and all but seven had
Congress made the decision to create a state or local legal experience as
national network of federal trial judges, prosecutors, or attorneys gen-
courts when it passed the Judiciary Act eral. Presidents have continued to ap-
of 1789. Section 2 of the act estab- point lawyers with public service
lished 13 district courts by making backgrounds to the federal bench.
each of the 11 states then in the Union
a district, and by making the parts of Present Organization of the
Massachusetts and Virginia that were District Courts
to become Maine and Kentucky into As the country grew, new district
separate districts. That organizational courts were created. Eventually, Con-
scheme established the practice, which gress began to divide some states into
still exists, of honoring state boundary more than one district. California,
lines in drawing districts. New York, and Texas have the most,
with four each. Other than consistent- is thus established at this level. Subse-
ly honoring state lines, the organiza- quent appeals of the trial court deci-
tion of district constituencies appears sion focus on correcting errors rather
to follow no rational plan. Size and than on reconstructing the facts.
population vary widely from district The task of determining the facts in
to district. Over the years, a court was a case often falls to a jury, a group of
added for the District of Columbia, citizens from the community who
and several territories have been serve as impartial arbiters of the facts
served by district courts. There are and apply the law to the facts. The
now U.S. district courts serving the 50 Constitution guarantees the right to a
states, the District of Columbia, jury trial in criminal cases in the Sixth
Guam, Puerto Rico, the Virgin Islands, Amendment and the same right in
and the Northern Mariana Islands. civil cases in the Seventh Amendment.
The original district courts were The right can be waived, however, in
each assigned one judge. With the which case the judge becomes the ar-
growth in population and litigation, biter both of questions of fact and of
Congress has periodically had to add matters of law. Such trials are referred
judges to most of the districts. The to as bench trials.
Federal Judgeship Act of 1990 created Two types of juries are associated
74 new district judgeships, bringing with federal district courts. The grand
the current total to 649. Today all jury is a group of men and women
districts have more than one judge; convened to determine whether there
the Southern District of New York, is probable cause to believe that a per-
which includes Manhattan and the son has committed the federal crime
Bronx, currently has 28 judges and is of which he or she has been accused.
thus the largest. Because each federal Grand jurors meet periodically to hear
district court is normally presided charges brought by the U.S. attorney.
over by a single judge, several trials Petit jurors are chosen at random
may be in session within the district at from the community to hear evidence
any given time. and determine whether a defendant in
a civil trial has liability or whether a
The District Courts as Trial Courts defendant in a criminal trial is guilty
Congress established the district or not guilty. Federal rules call for 12
courts as the trial courts of the federal jurors in criminal cases but permit
judicial system and gave them original fewer in civil cases. The federal district
jurisdiction over virtually all cases. courts generally use six-person juries
They are the only federal courts in in civil cases.
which attorneys examine and cross- Trial courts are viewed as engaging
examine witnesses. The factual record primarily in norm enforcement,
whereas appellate courts are seen as legislative guidelines; and as a conse-

having greater opportunity to make quence the opportunity for trial court
policy. Norm enforcement is closely jurists to write on a clean slate, that is,
tied to the administration of justice, to make policy, is formidable.”
because all nations develop standards
considered essential to a just and or- CONSTITUTIONAL COURTS
derly society. Societal norms are AND LEGISLATIVE COURTS
embodied in statutes, administrative he Judiciary Act of 1789 estab-
regulations, prior court decisions,
and community traditions. Criminal
statutes, for example, incorporate con-
T lished the three levels of the
federal court system in exis-
tence today. Periodically, however,
cepts of acceptable and unacceptable Congress has exercised its power,
behavior into law. A judge deciding a based on Article III and Article I of the
case concerning an alleged violation of Constitution, to create other federal
that law is practicing norm enforce- courts. Courts established under Arti-
ment. Because cases of this type rarely cle III are known as constitutional
allow the judge to escape the strict re- courts and those created under Article
straints of legal and procedural re- I are called legislative courts. The
quirements, he or she has little chance Supreme Court, courts of appeals, and
to make new law or develop new poli- federal district courts are constitu-
cy. In civil cases, too, judges are often tional courts. Legislative courts
confined to norm enforcement, be- include the U.S. Court of Military Ap-
cause such litigation generally arises peals, the United States Tax Court, and
from a private dispute whose outcome the Court of Veterans Appeals.
is of interest only to the parties in Legislative courts, unlike their
the suit. constitutional counterparts, often have
The district courts also play a administrative and quasi-legislative as
policy-making role, however. As Amer- well as judicial duties. Another differ-
icans have become more litigation- ence is that legislative courts are often
conscious, disputes that were once re- created for the express purpose of
solved informally are now more likely helping to administer a specific con-
to be decided in a court of law. The gressional statute. Constitutional
courts find themselves increasingly in- courts, on the other hand, are tribunals
volved in domains once considered established to handle litigation.
private. What does this mean for the Finally, the constitutional and leg-
federal district courts? According to islative courts vary in their degree of
one study, “These new areas of judicial independence from the other two
involvement tend to be relatively free branches of government. Article III
of clear, precise appellate court and (constitutional court) judges serve
during a period of good behavior, or court for eight-year terms of office, al-
what amounts to life tenure. Because though they can be removed before
Article I (legislative court) judges have the expiration of the term for “good
no constitutional guarantee of good- cause.” Within guidelines set by the
behavior tenure, Congress may set Congress, the judges in each district
specific terms of office for them. In court establish the duties and respon-
sum, the constitutional courts have a sibilities of their magistrate judges.
greater degree of independence from The legislation permits a magistrate
the other two branches of government judge, with the consent of the involved
than the legislative courts. parties, to conduct all proceedings in a
jury or nonjury civil matter and enter
ADMINISTRATIVE AND a judgment in the case and to conduct
STAFF SUPPORT IN THE a trial of persons accused of misde-
FEDERAL JUDICIARY meanors (less serious offenses than
lthough judges are the most felonies) committed within the dis-
A visible actors in the judicial

system, a large supporting cast
is also at work. Their efforts are neces-
trict, provided the defendants consent.
Because the decision to delegate re-
sponsibilities to a magistrate judge is
sary to perform the tasks for which still made by the district judge, howev-
judges are unskilled or unsuited, or for er, a magistrate judge’s participation in
which they simply do not have ade- the processing of cases may be more
quate time. Some members of the sup- narrow than that permitted by statute.
port team, such as law clerks, may
work specifically for one judge. Others Law Clerks
— for example, U.S. magistrate judges The first use of law clerks by an Amer-
— are assigned to a particular court. ican judge is generally traced to Ho-
Still others may be employees of an race Gray of Massachusetts. In the
agency, such as the Administrative Of- summer of 1875, while serving as chief
fice of the United States Courts, that justice of the Massachusetts Supreme
serves the entire judicial system. Court, he employed, at his own ex-
pense, a highly ranked new graduate
U.S. Magistrate Judges of the Harvard Law School. Each year,
In an effort to help federal district he employed a new clerk from Har-
judges deal with increased workloads, vard. When Gray was appointed to the
Congress in 1968 created a system of U.S. Supreme Court in 1882, he
magistrate judges that responds to brought a law clerk with him to the
each district court’s specific needs and nation’s highest court.
circumstances. Magistrate judges are Justice Gray’s successor on the
appointed by the judges of the district High Court was Oliver Wendell
Holmes, who also adopted the prac- have a substantial amount of contact
tice of annually hiring honor gradu- with attorneys and witnesses. Law
ates of Harvard Law School as his clerks at this level may be involved in
clerks. When William Howard Taft, a the initial drafting of opinions.
former law professor at Yale, became At the appellate level, the law clerk
chief justice, he secured a new law becomes involved in a case first by
clerk annually from the dean of the researching the issues of law and fact
Yale Law School. Harlan Fiske Stone, presented by an appeal. The courts of
former dean of the Columbia Law appeals do not have the same discre-
School, joined the Court in 1925 and tion to accept or reject a case that the
made it his practice to hire a Colum- Supreme Court has, and they use cer-
bia graduate each year. tain screening devices to differentiate
Since these early beginnings there between cases that can be handled
has been a steady growth in the use of quickly and those that require more
law clerks by all federal courts. More time and effort. Law clerks are an inte-
than 2,000 law clerks now work for gral part of this screening process.
federal judges, and more than 600 A number of cases are scheduled
serve bankruptcy judges and U.S. for oral argument, and the clerk may
magistrate judges. In addition to the be called upon to assist the judge
law clerks hired by individual judges, in preparing for it. Intensive analysis
all appellate courts and some district of the record by judges prior to
courts hire staff law clerks who serve oral argument is not always possible.
the entire court. They seldom have time to do more
A law clerk’s duties vary according than scan pertinent portions of the
to the preferences of the judge for record called to their attention by
whom he or she works. They also vary law clerks.
according to the type of court. Law Once a decision has been reached
clerks for federal district judges often by an appellate court, the law clerk
serve primarily as research assistants. frequently participates in writing the
They spend a good deal of time exam- order that accompanies the decision.
ining the various motions filed in civil The clerk’s participation generally
and criminal cases. They review each consists of drafting a preliminary
motion, noting the issues and the po- opinion or order pursuant to the
sitions of the parties involved, then re- judge’s directions. A law clerk may
search important points raised in the also be asked to edit or check citations
motions and prepare written memo- (references to a statute, precedent-
randums for the judges. Because their setting case, or legal textbook, in a
work is devoted to the earliest stages brief or argument in court) in an
of the litigation process, they may opinion written by the judge.
The work of the law clerk for a sonnel records and collecting data
Supreme Court justice roughly on cases in the federal courts.
parallels that of a clerk in the other The Administrative Office also
appellate courts. Clerks play an indis- serves the Judicial Conference of the
pensable role in helping justices de- United States, the central administra-
cide which cases should be heard. At tive policy-making organization of the
the suggestion of Justice Lewis F. Pow- federal judicial system. In addition to
ell, Jr., in 1972, a majority of the providing statistical information to
Court’s members began to participate the conference’s many committees,
in a “certpool”; the justices pool their the Administrative Office acts as a
clerks, divide up all filings, and circu- reception center and clearinghouse
late a single clerk’s certiorari memo to for information and proposals direct-
all those participating in the pool. The ed to the Judicial Conference. The
memo summarizes the facts of the office also acts as liaison for both the
case, the questions of law presented, federal judicial system and the Judicial
and the recommended course of Conference, serving as advocate for
action — that is, whether the case the judiciary in its dealings with
should be granted a full hearing, Congress, the executive branch, pro-
denied, or dismissed. fessional groups, and the general
Once the justices have voted to hear public. Especially important is its
a case, the law clerks, like their coun- representative role before Congress
terparts in the courts of appeals, pre- where, along with concerned judges, it
pare bench memorandums that the presents the judiciary’s budget pro-
justices may use during oral argument. posals, requests for additional judge-
Finally, law clerks for Supreme Court ships, suggestions for changes in court
justices, like those who serve courts of rules, and other key measures.
appeals judges, help to draft opinions.
The Federal Judicial Center
Administrative Office of the U.S. The Federal Judicial Center, created in
Courts 1967, is the federal courts’ agency for
The administration of the federal continuing education and research. Its
judicial system as a whole is managed duties fall generally into three cate-
by the Administrative Office of the gories: conducting research on the
U.S. Courts. Since its creation in 1939 federal courts, making recommenda-
it has handled everything from tions to improve the administration
distributing supplies to negotiating and management of the federal
with other government agencies for courts, and developing educational
court accommodations in federal and training programs for personnel
buildings to maintaining judicial per- of the judicial branch.
Since its inception, judges have filings alone have risen 43 percent
benefited from orientation sessions since 1993.
and other educational programs put In 1995, 50,072 appeals were filed
on by the Federal Judicial Center. In in one of the regional circuit courts.
recent years, magistrate judges, bank- This figure increased every year, to a
ruptcy judges, and administrative per- high of 60,847 appeals in 2003. How-
sonnel have also been the recipients of ever, the number of appeals terminat-
educational programs. The Federal Ju- ed by the courts of appeals has also
dicial Center’s extensive use of videos been steadily increasing, from 49,805
and satellite technology allows it to in 1995 to 56,586 in 2002.
reach large numbers of people. The overall caseload of the
Supreme Court is large by historical
FEDERAL COURT standards; there were 8,255 cases on
WORKLOAD the docket for the 2002 term. The
he workload of the courts is Supreme Court, however, has discre-
T heavy for all three levels of

the federal judiciary — U.S.
district courts, courts of appeals, and
tion to decide which cases merit its
full attention. As a result, the number
of cases argued before the Court has
the Supreme Court. declined rather dramatically over the
For fiscal year 2002 slightly more years. In the 2002 term only 84 cases
than 340,000 cases were commenced were argued and 79 were disposed of
in the federal district courts. Criminal in 71 signed opinions.
C H A P T E R
HISTORY
2
AND
ORGANIZATION
OF
STATE
JUDICIAL
SYSTEMS
Although the organization of state

courts can be confusing, there is
no doubt about their importance:
They handle far more cases than
those decided by federal tribunals.
Here, a painting depicting the
State of Florida Supreme Court
Building in Tallahassee.
Even prior to the Articles of Confeder- state’s most important public policies,
ation and the writing of the U.S. the state courts handle a wide variety
Constitution in 1787, the colonies, as of cases, and the number of cases
sovereign entities, already had written litigated annually in the state courts
constitutions. Thus, the development far exceeds those decided in the
of state court systems can be traced federal tribunals.
from the colonial period to the present.
The Colonial Period
HISTORICAL DEVELOPMENT During the colonial period, political
OF STATE COURTS power was concentrated in the hands
o two states are exactly alike of the governor appointed by the king
N when it comes to the organi-

zation of courts. Each state is
free to adopt any organizational
of England. Because the governors
performed executive, legislative, and
judicial functions, an elaborate court
scheme it chooses, create as many system was not necessary.
courts as it wishes, name those courts The lowest level of the colonial ju-
whatever it pleases, and establish their diciary consisted of local judges called
jurisdiction as it sees fit. Thus, the or- justices of the peace or magistrates.
ganization of state courts does not They were appointed by the colony’s
necessarily resemble the clear-cut, governor. At the next level in the sys-
three-tier system found at the federal tem were the county courts, the gener-
level. For instance, in the federal sys- al trial courts for the colonies. Appeals
tem the trial courts are called district from all courts were taken to the high-
courts and the appellate tribunals are est level — the governor and his coun-
known as circuit courts. However, in cil. Grand and petit juries were also in-
well over a dozen states the circuit troduced during this period and
courts are trial courts. Several other remain prominent features of the state
states use the term superior court for judicial systems.
their major trial courts. Perhaps the By the early 18th century the legal
most bewildering situation is found in profession had begun to change.
New York, where the major trial courts Lawyers trained in the English Inns of
are known as supreme courts. Court became more numerous, and as
Although confusion surrounds the a consequence colonial court proce-
organization of state courts, no doubt dures were slowly replaced by more
exists about their importance. Because sophisticated English common law.
statutory law is more extensive in
the states than at the federal level, Early State Courts
covering everything from the most Following the American Revolution
basic personal relationships to the (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- creditors. These differences were im-
islative bodies but also greatly re- portant because “out of this conflict
duced. The former colonists were not over legislative and judicial power...the
eager to see the development of a courts gradually emerged as an inde-
large, independent judiciary given that pendent political institution,” accord-
many of them harbored a distrust of ing to David W. Neubauer in America’s
lawyers and the common law. The Courts and the Criminal Justice System.
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
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.”
Modern State Courts known as the court unification move-

From the Civil War (1861-65) to the ment. The first well-known legal
early 20th century, the state courts scholar to speak out in favor of court
were beset by other problems. Increas- unification was Roscoe Pound, dean of
ing industrialization and the rapid the Harvard Law School. Pound and
growth of urban areas created new others called for the consolidation
types of legal disputes and resulted in of trial courts into a single set of
longer and more complex court cases. courts or two sets of courts, one to
The state court systems, largely fash- hear major cases and one to hear
ioned to handle the problems of a minor cases.
rural, agrarian society, were faced with A good deal of opposition has aris-
a crisis of backlogs as they struggled en to court unification. Many trial
to adjust. lawyers who are in court almost daily
One response was to create new become accustomed to existing court
courts to handle the increased volume organizations and, therefore, are op-
of cases. Often, courts were piled on posed to change. Also, judges and
top of each other. Another strategy other personnel associated with the
was the addition of new courts with courts are sometimes opposed to re-
jurisdiction over a specific geographic form. Their opposition often grows
area. Still another response was to cre- out of fear — of being transferred to
ate specialized courts to handle one new courts, of having to learn new
particular type of case. Small claims procedures, or of having to decide
courts, juvenile courts, and domestic cases outside their area of specializa-
relations courts, for example, became tion. The court unification movement,
increasingly prominent. then, has not been as successful as
The largely unplanned expansion many would like. On the other hand,
of state and local courts to meet proponents of court reform have se-
specific needs led to a situation many cured victories in some states.
have referred to as fragmentation. A
multiplicity of trial courts was only STATE COURT
one aspect of fragmentation, however. ORGANIZATION
Many courts had very narrow jurisdic- ome states have moved in the di-
tion. Furthermore, the jurisdictions of
the various courts often overlapped.
Early in the 20th century, people
S rection of a unified court system,
whereas others still operate
with a bewildering complex of courts
began to speak out against the with overlapping jurisdiction. The
fragmentation in the state court sys- state courts may be divided into four
tems. The program of reforms that general categories or levels: trial
emerged in response is generally courts of limited jurisdiction, trial
courts of general jurisdiction, inter- of their decisions usually go to a trial

mediate appellate courts, and courts court of general jurisdiction for what
of last resort. is known as a trial “de novo” (new
trial). Yet another distinguishing char-
Trial Courts of Limited Jurisdiction acteristic of trial courts of limited ju-
Trial courts of limited jurisdiction risdiction is that the presiding judges
handle the bulk of litigation in the of such courts are often not required
United States each year and constitute to have any formal legal training.
about 90 percent of all courts. They Many of these courts suffer from
have a variety of names: justice of the a lack of resources. Often, they have
peace courts, magistrate courts, mu- no permanent courtroom, meeting
nicipal courts, city courts, county instead in grocery stores, restaurants,
courts, juvenile courts, domestic rela- or private homes. Clerks are frequent-
tions courts, and metropolitan courts, ly not available to keep adequate
to name the more common ones. records. The results are informal pro-
The jurisdiction of these courts is ceedings and the processing of cases
limited to minor cases. In criminal on a mass basis. Full-fledged trials are
matters, for example, state courts deal rare and cases are disposed of quickly.
with three levels of violations: infrac- Finally, trial courts of limited
tions (the least serious), misde- jurisdiction are used in some states
meanors (more serious), and felonies to handle preliminary matters in
(the most serious). Trial courts of lim- felony criminal cases. They often hold
ited jurisdiction handle infractions arraignments, set bail, appoint attor-
and misdemeanors. They may impose neys for indigent defendants, and
only limited fines (usually no more conduct preliminary examinations.
than $1,000) and jail sentences The case is then transferred to a trial
(generally no more than one year). In court of general jurisdiction for such
civil cases these courts are usually lim- matters as hearing pleas, holding
ited to disputes under a certain trials, and sentencing.
amount, such as $500. In addition,
these types of courts are often limited Trial Courts of General Jurisdiction
to certain kinds of matters: traffic vio- Most states have one set of major trial
lations, domestic relations, or cases courts that handle the more serious
involving juveniles, for example. criminal and civil cases. In addition,
Another difference from trial in many states, special categories —
courts of general jurisdiction is that in such as juvenile criminal offenses, do-
many instances these limited courts mestic relations cases, and probate
are not courts of record. Since their cases — are under the jurisdiction of
proceedings are not recorded, appeals the general trial courts.
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.
In most states these courts also In most instances these courts are
have an appellate function. They hear called courts of appeals, although
appeals in certain types of cases that other names are occasionally used.
originate in trial courts of limited ju- Most states have one court of appeals
risdiction. These appeals are often with statewide jurisdiction. The size
heard in a trial de novo or tried again of intermediate courts varies from
in the court of general jurisdiction. state to state. The court of appeals
General trial courts are usually di- in Alaska, for example, has only
vided into judicial districts or circuits. three judges. At the other extreme,
Although the practice varies by state, Texas has 80 courts of appeals judges.
the general rule is to use existing polit- In some states the intermediate ap-
ical boundaries, such as a county or a peals courts sit en banc, whereas in
group of counties, in establishing the other states they sit in permanent or
district or circuit. In rural areas the rotating panels.
judge may ride circuit and hold court
in different parts of the territory ac- Courts of Last Resort
cording to a fixed schedule. In urban Every state has a court of last resort.
areas, however, judges hold court in a The states of Oklahoma and Texas
prescribed place throughout the year. have two highest courts. Both states
In larger counties the group of judges have a supreme court with jurisdiction
may be divided into specializations. limited to appeals in civil cases and a
Some may hear only civil cases; others court of criminal appeals for criminal
try criminal cases exclusively. cases. Most states call their highest
The courts at this level have a vari- courts supreme courts; other designa-
ety of names. The most common are tions are the court of appeals (Mary-
district, circuit, and superior. The land and New York), the supreme
judges at this level are required by law judicial court (Maine and Massachu-
in all states to have law degrees. These setts), and the supreme court of
courts also maintain clerical help be- appeals (West Virginia). The courts of
cause they are courts of record. last resort range in size from three to
nine judges (or justices in some
Intermediate Appellate Courts states). They typically sit en banc and
The intermediate appellate courts are usually, although not necessarily, con-
relative newcomers to the state judicial vene in the state capital.
scene. Only 13 such courts existed in The highest courts have jurisdic-
1911, whereas 39 states had created tion in matters pertaining to state law
them by 1995. Their basic purpose is and are, of course, the final arbiters in
to relieve the workload of the state’s such matters. In states that have inter-
highest court. mediate appellate courts, the Supreme
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 tion. Most state supreme courts also
these mid-level courts. In this situa- follow procedures similar to those of
tion the high court typically is allowed the U.S. Supreme Court. That is, when
to exercise discretion in deciding a case is accepted for review the
which cases to review. Thus, it is likely opposing parties file written briefs
to devote more time to cases that deal and later present oral arguments.
with the important policy issues of the Then, upon reaching a decision, the
state. When there is no intermediate judges issue written opinions explain-
court of appeals, cases generally go to ing that decision.
the state’s highest court on a mandato-
ry review basis. Juvenile Courts
In most instances, then, the state Americans are increasingly concerned
courts of last resort resemble the U.S. about the handling of cases involving
Supreme Court in that they have a juveniles, and states have responded to
good deal of discretion in determining the problem in a variety of ways. Some
which cases will occupy their atten- have established a statewide network
of courts specifically to handle mat- armed robbery, robbery with a

ters involving juveniles. Two states — firearm, and unlawful use of weapons
Rhode Island and South Carolina — on school grounds.
have family courts, which handle do-
mestic relations matters as well as ADMINISTRATIVE AND
those involving juveniles. STAFF SUPPORT IN THE
The most common approach is to STATE JUDICIARY
give one or more of the state’s limited he daily operation of the feder-
or general trial courts jurisdiction to
handle situations involving juveniles.
In Alabama, for example, the circuit
T al courts requires the efforts of
many individuals and organi-
zations. This is no less true for the
courts (trial courts of general jurisdic- state court systems.
tion) have jurisdiction over juvenile
matters. In Kentucky, however, exclu- Magistrates
sive juvenile jurisdiction is lodged in State magistrates, who may also be
trial courts of limited jurisdiction — known in some states as commission-
the district courts. ers or referees, are often used to per-
Finally, some states apportion form some of the work in the early
juvenile jurisdiction among more stages of civil and criminal case pro-
than one court. The state of Colorado cessing. In this way they are similar to
has a juvenile court for the city of U.S. magistrate judges. In some juris-
Denver and has given jurisdiction dictions they hold bond hearings and
over juveniles to district courts (gen- conduct preliminary investigations in
eral trial courts) in the other areas criminal cases. They are also author-
of the state. ized in some states to make decisions
Also, some variation exists among in minor cases.
the states as to when jurisdiction
belongs to an adult court. States set Law Clerks
a standard age at which defendants In the state courts, law clerks are
are tried in an adult court. In addi- likely to be found, if at all, in the
tion, many states require that more intermediate appellate courts and
youthful offenders be tried in an courts of last resort. Most state trial
adult court if special circumstances courts do not utilize law clerks, and
are present. In Illinois, for instance, they are practically unheard of in
the standard age at which juvenile local trial courts of limited jurisdic-
jurisdiction transfers to adult courts tion. As at the national level, some law
is 17. The age limit drops to 15, clerks serve individual judges while
however, for first-degree murder, others serve an entire court as a
aggravated criminal sexual assault, staff attorney.
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 Court Clerks and Court

Courts Administrators
Every state now has an administrative The clerk of the court has traditional-
office of courts or a similarly titled ly handled the day-to-day routines of
agency that performs a variety of the court. This includes making court-
administrative tasks for that state’s room arrangements, keeping records
court system. Among the tasks more of case proceedings, preparing orders
commonly associated with adminis- and judgments resulting from court
trative offices are budget preparation, actions, collecting court fines and fees,
data processing, facility management, and disbursing judicial monies. In the
judicial education, public informa- majority of states these officials are
tion, research, and personnel manage- elected and may be referred to by
ment. Juvenile and adult probation are other titles.
the responsibility of administrative The traditional clerks of court have
offices in a few states, as is alternative been replaced in many areas by court
dispute resolution. administrators. In contrast to the
court clerk, who traditionally man- cases are awarded by ordinary state
aged the operations of a specific trial court juries.
courtroom, the modern court admin- The National Center for State
istrator may assist a presiding judge in Courts has compiled figures on the
running the entire courthouse. caseloads of state courts of last resort
and intermediate appellate courts in
STATE COURT WORKLOAD 1998. In all, some 261,159 mandatory
he lion’s share of the nation’s cases and discretionary petitions were
T judicial business exists at the

state, not the national, level.
The fact that federal judges adjudicate
filed in the state appellate courts.
Reliable data on cases filed in the state
trial courts are harder to come by.
several hundred thousand cases a Still, the center does an excellent job
year is impressive; the fact that state of tracking figures for states’ trial
courts handle several million a year courts. In 1998, 17,252,940 cases
is overwhelming, even if the most were filed in the general jurisdiction
important cases are handled at the and limited jurisdiction courts. As
federal level. While justice of the peace with the federal courts, the vast ma-
and magistrate courts at the state jority of the cases are civil, although
level handle relatively minor matters, the criminal cases often receive the
some of the biggest judgments in civil most publicity.
C H A P T E R
3
JURISDICTION
AND
POLICY-
MAKING
BOUNDARIES
Beginning with the Supreme Court’s

decision in Baker v. Carr (1962), the
Court has held in several cases that
legislative districts should be of equal
population size and that courts
should see to it that this mandate is
carried out. Here, Associate Justice
Sarah Parker of the Supreme Court of
North Carolina looks over a map
during a court session dealing with
redistricting, or reapportionment of
legislative districts.
In setting the jurisdictions of courts, havior, including interstate theft of an

Congress and the U.S. Constitution — automobile, illegal importation of
and their state counterparts — man- narcotics, assassination of a president,
date the types of cases each court may conspiracy to deprive persons of their
hear. This chapter considers how Con- civil rights, and even the killing of a
gress, in particular, can influence judi- migratory bird out of season.
cial behavior by redefining the types of After charges are filed against an
cases judges may hear. It also discusses accused, and if no plea bargain has
judicial self-restraint, examining 10 been made, a trial is conducted by a
principles, derived from legal tradition U.S. district judge. In court the defen-
and constitutional and statutory law, dant enjoys all the privileges and im-
that govern a judge’s decision about munities granted in the Bill of Rights
whether to review a case. (such as the right to a speedy and pub-
lic trial) or by congressional legislation
FEDERAL COURTS or Supreme Court rulings (for in-
he federal court system is divid- stance, a 12-person jury must render a
T ed into three separate levels: the

trial courts, the appellate tri-
bunals, and the U.S. Supreme Court.
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
U.S. District Courts may never be tried again for the same
Congress has set forth the jurisdiction offense (the Fifth Amendment’s pro-
of the federal district courts. These tection against double jeopardy). If the
tribunals have original jurisdiction in accused is found guilty, the district
federal criminal and civil cases; that is, judge determines the appropriate
by law, the cases must be first heard in sentence within a range set by
these courts, no matter who the par- Congress. The length of a sentence
ties are or how significant the issues. cannot be appealed so long as it is in
the range prescribed. A verdict of not
Criminal Cases. These cases com- guilty may not be appealed by the
mence when the local U.S. attorneys government, but convicted defendants
have reason to believe that a violation may appeal if they believe that the
of the U.S. Penal Code has occurred. judge or jury made an improper legal
After obtaining an indictment from a determination.
federal grand jury, the U.S. attorney
files charges against the accused in the Civil Cases. A majority of the district
district court in which he or she court caseload is civil in nature; that is,
serves. Criminal activity as defined by suits between private parties or be-
Congress covers a wide range of between the U.S. government, acting in a
CHAPTER 3: JURISDICTION AND POLICY-MAKING BOUNDARIES 59
nonprosecutorial capacity, and a pri- citizenship disputes. These are dis-

vate party. Civil cases that originate in putes between parties from different
the U.S. district courts may be placed states or between an American citizen
in several categories. The first is litiga- and a foreign country or citizen.
tion concerning the interpretation or Federal district courts also have
application of the Constitution, acts of jurisdiction over petitions from con-
Congress, or U.S. treaties. Examples of victed prisoners who contend that
cases in this category include the fol- their incarceration (or perhaps their
lowing: a petitioner claims that one of denial of parole) is in violation of
his or her federally protected civil their federally protected rights. In the
rights has been violated, a litigant al- vast majority of these cases prisoners
leges that he or she is being harmed by ask for a writ of “habeas corpus”
a congressional statute that is uncon- (Latin for “you should have the
stitutional, and a plaintiff argues that body”), an order issued by a judge to
he or she is suffering injury from a determine whether a person has been
treaty that is improperly affecting him. lawfully imprisoned or detained. The
The key point is that a federal question judge would demand that the prison
must be raised in order for the U.S. authorities either justify the detention
trial courts to have jurisdiction. or release the petitioner. Prisoners
Traditionally, some minimal dollar convicted in a state court must argue
amounts had to be in controversy in that a federally protected right was
some types of cases before the trial violated — for example, the right to
courts would hear them, but such be represented by counsel at trial.
amounts have been waived if the case Otherwise, the federal courts would
falls into one of several general cate- have no jurisdiction. Federal prisoners
gories. For example, an alleged viola- have a somewhat wider range for their
tion of a civil rights law, such as the appeals since all their rights and
Voting Rights Act of 1965, must be options are within the scope of the
heard by the federal rather than the U.S. Constitution.
state judiciary. Other types of cases in Finally, the district courts have the
this category are patent and copyright authority to hear any other cases that
claims, passport and naturalization Congress may validly prescribe by law.
proceedings, admiralty and maritime
disputes, and violations of the U.S. U.S. Courts of Appeals
postal laws. The U.S. appellate courts have no orig-
Another broad category of cases inal jurisdiction whatsoever; every
over which the U.S. trial courts exer- case or controversy that comes to one
cise general original jurisdiction in- of these intermediate level panels has
cludes what are known as diversity of been first argued in some other forum.
Judges from the Appellate Division of the New York State Supreme Court in Rochester, New
York, hear motion arguments. A dispute must be real and current before a court will agree to
accept it for adjudication.
These tribunals, like the district includes appeals from certain federal
courts, are the creations of Congress, administrative agencies and depart-
and their structure and functions have ments and also from independent reg-
varied considerably over time. ulatory commissions, such as the Secu-
Basically, Congress has granted the rities and Exchange Commission and
circuit courts appellate jurisdiction the National Labor Relations Board.
over two general categories of cases.
The first of these are ordinary civil and U.S. Supreme Court
criminal appeals from the federal trial The U.S. Supreme Court is the only
courts. In criminal cases the appellant federal court mentioned by name in
is the defendant because the govern- the Constitution, which spells out the
ment is not free to appeal a verdict of general contours of the High Court’s
not guilty. In civil cases the party that jurisdiction. Although the Supreme
lost in the trial court is usually the ap- Court is usually thought of as an appel-
pellant, but the winning party may late tribunal, it does have some general
appeal if it is not satisfied with the original jurisdiction. Probably the most
lower-court judgment. The second important subject of such jurisdiction
broad category of appellate jurisdiction is a suit between two or more states.
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 tices) is an order from the Supreme
against foreign ambassadors or con- Court to a lower court demanding
suls, in cases between the United States that it send up a complete record of a
and a state, and in cases commenced case so that the Supreme Court can re-
by a state against citizens of another view it. Historically, the Supreme
state or another country. In situations Court has agreed to grant the petition
such as these, where jurisdiction is for a writ of certiorari in only a tiny
shared, the courts are said to have con- proportion of cases — usually less
current jurisdiction. Cases over which than 10 percent of the time, and in re-
the Supreme Court has original juris- cent years the number has been closer
diction are often important, but they to 1 percent.
do not constitute a sizable proportion Another method by which the
of the overall caseload. In recent years Supreme Court exercises its appellate
less than 1 percent of the High Court’s jurisdiction is certification. This pro-
docket consisted of cases heard on cedure is followed when one of the ap-
original jurisdiction. peals courts asks the Supreme Court
The U.S. Constitution declares that for instructions regarding a question
the Supreme Court “shall have appel- of law. The justices may choose to give
late Jurisdiction...under such Regula- the appellate judges binding instruc-
tions as the Congress shall make.” tions, or they may ask that the entire
Over the years Congress has passed record be forwarded to the Supreme
much legislation setting forth the Court for review and final judgment.
“Regulations” determining which
cases may appear before the nation’s JURISDICTION AND POLICY
most august judicial body. Appeals MAKING OF STATE COURTS
may reach the Supreme Court through he jurisdictions of the 50 sepa-
two main avenues. First, there may be
appeals from all lower federal consti-
tutional and territorial courts and also
T rate state court systems in the
United States are established in
virtually the same manner as those
from most, but not all, federal legisla- within the national court system. Each
tive courts. Second, the Supreme state has a constitution that sets forth
Court may hear appeals from the the authority and decision-making
highest court in a state — as long as powers of its trial and appellate
there is a substantial federal question. judges. Likewise, each state legislature
Most of the High Court’s docket passes laws that further detail the spe-
consists of cases in which it has agreed cific powers and prerogatives of judges
to issue a writ of certiorari — a discre- and the rights and obligations of those
who bring suit in the state courts. Be- these cases, state supreme courts in-
cause no two state constitutions or validated their state’s method of fi-
legislative bodies are alike, the juris- nancing education, thus requiring the
dictions of individual state courts vary reallocation of billions of dollars.
from one state to another.
State courts are extremely impor- JURISDICTION AND
tant in terms of policy making in the LEGISLATIVE POLITICS
United States. Well over 99 percent of ome judges and judicial scholars
the judicial workload in the United
States consists of state, not federal,
cases, and 95 percent of all judges in
S argue that the U.S. Constitution
and the respective state docu-
ments confer a certain inherent juris-
the United States work at the state diction upon the judiciaries in some
level. Moreover, the decisions of state key areas, independent of the legisla-
jurists frequently have a great impact tive will. Nevertheless, the jurisdic-
on public policy. For example, during tional boundaries of American courts
the 1970s a number of suits were are also a product of legislative judg-
brought into federal court challenging ments — determinations often influ-
the constitutionality of a state’s enced by politics.
spending vastly unequal sums on the Congress may advance a particular
education of its schoolchildren. (This cause by giving courts the authority
occurred because poorer school dis- to hear cases in a public policy realm
tricts could not raise the same amount that previously had been forbidden
of money as could wealthy school dis- territory for the judiciary. For exam-
tricts.) The litigants claimed that chil- ple, when Congress passed the Civil
dren in the poorer districts were Rights Act of 1968, it gave judges the
victims of unlawful discrimination in authority to penalize individuals who
violation of their equal protection interfere with “any person because of
rights under the U.S. Constitution. his race, color, religion or national
The Supreme Court said they were origin and because he is or has
not, however, in a five-to-four deci- been...traveling in...interstate com-
sion in San Antonio Independent merce.” Prior to 1968 the courts had
School District v. Rodriguez (1973). But no jurisdiction over incidents that
the matter did not end there. Litiga- stemmed from interference by one
tion was instituted in many states person with another’s right to travel.
arguing that unequal educational op- Likewise, Congress may discourage a
portunities were in violation of vari- particular social movement by passing
ous clauses in the state constitutions. legislation to make it virtually impos-
Since Rodriguez such suits have been sible for its advocates to have any
brought 28 times in 24 states. In 14 of success in the courts.
The jurisdictions of state courts, nical legal standards to institute a suit.

like their federal counterparts, also are The dispute must concern the protec-
very much governed by — and the po- tion of a meaningful, nontrivial right
litical product of — the will of the or the prevention or redress of a
state legislatures. wrong that directly affects the parties
to the suit. There are three corollaries
JUDICIAL SELF-RESTRAINT to this general principle.
he activities that judges are for- The first is that the federal courts
T bidden to engage in, or at least

discouraged from engaging in,
deal not so much with jurisdiction as
do not render advisory opinions, rul-
ings about situations that are hypo-
thetical or that have not caused an
with justiciability — the question of actual clash between adversaries. A
whether judges in the system ought to dispute must be real and current be-
hear or refrain from hearing certain fore a court will agree to accept it for
types of disputes. Ten principles of ju- adjudication.
dicial self-restraint, discussed below, A second corollary is that the par-
serve to check and contain the power ties to the suit must have proper
of American judges. These maxims standing. This notion deals with the
originate from a variety of sources — matter of who may bring litigation to
the U.S. Constitution and state consti- court. The person bringing suit must
tutions, acts of Congress and of state have suffered (or be immediately
legislatures, and the common law. about to suffer) a direct and signifi-
Some apply more to appellate courts cant injury. As a general rule, a litigant
than to trial courts; most apply to fed- cannot bring a claim on behalf of oth-
eral and state judicial systems. ers (except for parents of minor chil-
dren or in special types of suits called
A Definite Controversy Must Exist class actions). In addition, the alleged
The U.S. Constitution states that “the injury must be personalized and im-
judicial Power shall extend to all mediate — not part of some general-
Cases, in Law and Equity, arising ized complaint.
under this Constitution, the Laws of The third corollary is that courts
the United States, and Treaties ordinarily will not hear a case that has
made...under their Authority” (Article become moot — when the basic facts
III, Section 2). The key word here is or the status of the parties have signif-
cases. Since 1789 the federal courts icantly changed between the time
have chosen to interpret the term in its when the suit was first filed and when
most literal sense: There must be an it comes before the judge(s). The
actual controversy between legitimate death of a litigant or the fact that the
adversaries who have met all the tech- litigants have ceased to be warring
parties would render a case moot in must avoid and a situation where a de-
most tribunals. However, sometimes claratory judgment is in order, in the
judges may decide that it is necessary real world the line between the two is
to hear a case, even though the status often a difficult one for jurists to draw.
of the facts and parties would seem to
have radically altered. Examples in- A Plea Must Be Specific
clude cases where someone has chal- Another constraint upon the federal
lenged a state’s refusal to permit an judiciary is that judges will hear no
abortion or to permit the life-support case on the merits unless the petition-
system of a terminally ill person to be er is first able to cite a specific part of
switched off. (In such cases, by the the Constitution as the basis of the
time the suit reaches an appellate plea. For example, the First Amend-
court, the woman may already have ment forbids government from mak-
given birth or the moribund person ing a law “respecting an establishment
may have died.) In these cases judges of religion.” In 1989 the state of New
have believed that the issues were so York created a special school district
important that they needed to be ad- solely for the benefit of the Satmar
dressed by the court. To declare such Hasids, a group of Hasidic Jews with
cases moot would, practically speak- East European roots that strongly re-
ing, prevent them from ever being sists assimilation into modern society.
heard in time by an appellate body. Most of the children attended
Although federal judges do not rule parochial schools in the Village of
on abstract, hypothetical issues, many Kiryas Joel, but these private schools
state courts are permitted to do so in weren’t able to accommodate retarded
some form or other. Federal legislative and disabled students, and the Satmars
courts may give advisory opinions as claimed that such children within
well. Also, American judges are their community would be trauma-
empowered to render declaratory tized if forced to attend a public
judgments, which define the rights of school. Responding to this situation,
various parties under a statute, a will, the state legislature created a special
or a contract. The judgments do not district encompassing a single school
entail any type of coercive relief. The that served only handicapped children
federal courts were given the authority from the Hasidic Jewish community.
to act in this capacity in the Federal This arrangement was challenged by
Declaratory Judgment Act of 1934, the association representing New York
and about three-fourths of the states state’s school boards. In June 1994 the
grant their courts this power. Al- U.S. Supreme Court ruled that the cre-
though a difference exists between an ation of the one-school district effec-
abstract dispute that the federal courts tively delegated political power to the
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.
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.
orthodox Jewish group and therefore farmer has long been a member of a
violated the First Amendment’s ban program under which he agreed to
on governmental “establishment of re- take part of his land out of production
ligion.” Whether or not everyone and periodically was paid a subsidy by
agrees that the New York law was con- the federal government. After years as
stitutional, few, if any, would doubt a participant, the farmer learns that a
that the school board association met neighbor is also drawing regular pay-
the specific criteria for securing judi- ments for letting all of his farmland lie
cial review: The Constitution clearly fallow. The idea that the neighbor is
forbids the government from delegat- getting something for nothing offends
ing political power to a specific reli- the farmer, and he questions the pro-
gious entity. The government here gram’s constitutionality. The farmer
readily acknowledged that it had challenges the legality of the program
passed a law for the unique benefit of in the local federal district court. As
a singular religious community. soon as it is brought to the judge’s at-
However, if one went into court tention that the farmer had himself
and contended that a particular law or been a member of the program and
official action “violated the spirit of had gained financially from it, the suit
the Bill of Rights” or “offended the val- is dismissed: One may not benefit
ues of the Founders,” a judge surely from a particular governmental en-
would dismiss the proceeding. For if deavor or official action and subse-
judges were free to give concrete, sub- quently attack it in court.
stantive meaning to vague generalities
such as these, there would be little Appellate Courts Rule on Legal —
check on what they could do. In the Not Factual — Questions
real world this principle is not as sim- A working proposition of state and
ple and clear-cut as it sounds, because federal appellate court practice is that
the Constitution contains many claus- these courts will generally not hear
es that are open to a wide variety of in- cases if the grounds for appeal are
terpretations, giving federal judges that the trial judge or jury wrongly
sufficient room to maneuver and amassed and identified the basic
make policy. factual elements of the case. It is not
that trial judges and juries always
Beneficiaries May Not Sue do a perfect job of making factual
A third aspect of judicial self-restraint determinations. Rather, there is the
is that a petitioner who has been the belief that they are closer to the actual
beneficiary of a law or an official ac- parties and physical evidence of the
tion may not subsequently challenge case, and, therefore, they will do a
that law. For example, suppose that a much better job of making factual
assessments than would an appellate other remedies, legal and administra-

body reading a transcript of the case tive, have been exhausted. In its
some months or years after the trial. simplest form this doctrine means
However, legal matters — which laws that one must work up the ladder
to apply to the facts of a case or how with one’s legal petitions. Federal
to assess the facts in light of the cases must first be heard by the U.S.
prevailing law — are appropriate for trial courts, then reviewed by one of
appellate review. the appellate tribunals, and finally
heard by the U.S. Supreme Court. This
The Supreme Court Is Not Bound orderly procedure of events must
(Technically) by Precedents occur despite the importance of the
If the High Court is free to overturn case or of the petitioners who filed it.
or circumvent past and supposedly In certain circumstances, however, the
controlling precedents when it decides appellate process can be shortened.
a case, this might appear to be an ar- Exhaustion of remedies refers to
gument for judicial activism — not possible administrative relief as well
restraint. However, this practice is one as to adherence to the principle of a
of the principles of self-restraint. If three-tiered judicial hierarchy. Such
the Supreme Court were inescapably relief might be in the form of an ap-
bound by the dictates of its prior peal to an administrative officer, a
rulings, it would have very little flexi- hearing before a board or committee,
bility. By occasionally allowing itself or formal consideration of a matter by
the freedom to overrule a past deci- a legislative body.
sion or to ignore a precedent that
would seem to be controlling, the Courts Do Not Decide “Political
Supreme Court establishes a corner of Questions”
safety to which it can retreat if need To U.S. judges, the executive and the
be. When wisdom dictates that the legislative branches of government are
Court change direction or at least political in that they are elected by the
keep an open mind, this principle of people for the purpose of making
self-restraint is put to use. public policy. The judiciary, in con-
trast, was not designed by the
Other Remedies Must Be Founders to be an instrument mani-
Exhausted festing the popular will and is there-
Another principle of self-restraint fore not political. According to this
often frustrates the anxious litigant line of reasoning, then, a political
but is essential to the orderly adminis- question is one that ought properly to
tration of justice: Courts in the United be resolved by one of the other two
States will not accept a case until all branches of government.
For example, when the state of the Founders wanted legislatures to

Oregon gave its citizens the right to redistrict themselves — perhaps with
vote on popular statewide referen- input from the electorate. However,
dums and initiatives around 1900, with the Supreme Court’s decision in
the Pacific States Telephone and Baker v. Carr (1962), the majority re-
Telegraph Company objected. (The versed that thinking. Since then the
company feared that voters would Court has held in scores of cases that
bypass the more business-oriented the equal-protection clause of the
legislature and pass laws restricting Fourteenth Amendment requires leg-
its rates and profits.) The company islative districts to be of equal popula-
claimed that Article IV, Section 4, of tion size and, furthermore, that the
the Constitution guarantees to each courts should see to it that this man-
state “a Republican Form of Govern- date is carried out.
ment” — a term that supposedly
means that laws are to be made only The Burden of Proof Is on the
by the elected representatives of the Petitioner
people, not by the citizens directly. The nation’s jurists generally agree
The High Court refused to rule on the that an individual who would chal-
merits of the case, declaring the issue lenge the constitutionality of a statute
to be a political question. The Court bears the burden of proof. Thus, if
reasoned that since Article IV prima- someone were to attack a particular
rily prescribes the duties of Congress, statute, he or she would have to do
it follows that the Founders wanted more than demonstrate that it was
Congress — not the courts — to over- “questionable or of doubtful constitu-
see the forms of government in the tionality”; the petitioner would have
several states. to persuade the court that the evi-
In recent decades an important dence against the law was clear-cut
political versus nonpolitical dispute and overwhelming.
has concerned the matter of reappor- The only exception to this burden
tionment of legislative districts. Prior of proof principle is in the realm of
to 1962, a majority on the Supreme civil rights and liberties. Some jurists
Court refused to rule on the constitu- who are strong civil libertarians have
tionality of legislative districts with long contended that when govern-
unequal populations, saying that ment attempts to restrict basic human
such matters were “nonjusticiable” freedoms the burden of proof should
and that the Court dared not enter shift to the government. And in sever-
what Justice Felix Frankfurter called al specific areas of civil rights ju-
“the political thicket.” According to risprudence that philosophy now
traditional Supreme Court thinking, prevails. For example, the U.S.
Supreme Court has ruled in a variety No Rulings Are Made on the

of cases that laws that treat persons “Wisdom” of Legislation
differently according to their race or If followed strictly, this principle
gender are automatically subject to means that the only basis for de-
“special scrutiny.” This means that the claring a law or an official action
burden of proof shifts to the govern- unconstitutional is that it literally
ment to demonstrate a compelling or violates the Constitution. Statutes do
overriding need to differentiate per- not offend the Constitution merely
sons according to their ethnic origins because they are unfair, are fiscally
or sex. For instance, the government wasteful, or constitute bad public pol-
has long argued (successfully) that icy. If taken truly to heart, this means
some major restrictions can be placed that judges and justices are not free to
on women in the armed forces that invoke their own personal notions of
prevent them from being assigned to right and wrong or of good and bad
full combat duty. public policy when they examine the
constitutionality of legislation.
Laws Are Overturned on the Another spinoff of this principle is
Narrowest Grounds Only that a law may be passed that all agree
Sometimes during a trial a judge is good and wise but that is neverthe-
clearly sees that the strictures of the less unconstitutional; conversely, a
Constitution have been offended by a statute may legalize the commission of
legislative or executive act. Even here, an official deed that all know to be bad
however, a jurist may proceed with and dangerous but that still does not
caution. First, a judge may have the offend the Constitution.
option of invalidating an official The principle of not ruling on the
action on what is called statutory, “wisdom” of a law is difficult to follow
instead of constitutional, grounds. in the real world. This is so because
Statutory invalidation means that a the Constitution, a rather brief docu-
judge overturns an official’s action ment, is silent on many areas of
because the official acted beyond the public life and contains a number of
authority delegated to him or her by phrases and admonitions that are
the law. Such a ruling has the function open to a variety of interpretations.
of saving the law itself while still For instance, the Constitution says
nullifying the official’s misdeed. that Congress may regulate interstate
Second, judges may, if possible, invali- commerce. But what exactly is com-
date only that portion of a law they merce, and how extensive does it have
find constitutionally defective instead to be before it is of an “interstate”
of overturning the entire statute. character? As human beings, judges
have differed in the way they have In all, despite the inevitable intru-
responded to this question. The Con- sion of judges’ personal values into
stitution guarantees a person accused their interpretation of many portions
of a crime the right to a defense attor- of the Constitution, virtually every
ney. But does this right continue if jurist subscribes to the general
one appeals a guilty verdict and, if so, principle that laws can be invalidated
for how many appeals? Strict con- only if they offend the Constitution
structionists and loose construction- — not the personal preferences of
ists have responded differently to the judges.
these queries.
C H A P T E R
4
LAWYERS,
LITIGANTS,
AND INTEREST
GROUPS IN THE
JUDICIAL
PROCESS
New lawyers take their oaths in

Topeka, Kansas, to practice in the
Kansas state court and in the
Federal court in the district of
Kansas. According to recent
estimates, the United States has
more than 950,000 lawyers.
This chapter focuses on three crucial Those who aspired to the law during
actors in the judicial process: lawyers, this period generally performed a
litigants, and interest groups. Judges in clerkship or apprenticeship with an
the United States make decisions only established lawyer.
in the context of cases that are brought After the American Revolution
to the courts by individuals or groups (1775-83), the number of lawyers in-
who have some sort of disagreement creased rapidly, because neither legal
or dispute with each other. These ad- education nor admission to the bar
versaries, commonly called litigants, was very strict. The apprenticeship
sometimes argue their own cases in method continued to be the most
such minor forums as small claims popular way to receive legal training,
courts, but they are almost always rep- but law schools began to come into ex-
resented by lawyers in the more im- istence. The first law schools grew out
portant judicial arenas. Following an of law offices that specialized in train-
examination of the legal profession, ing clerks or apprentices. The earliest
the chapter discusses the role of indi- such school was the Litchfield School
vidual litigants and interest groups in in Connecticut, founded in 1784. This
the judicial process. school, which taught by the lecture
method, placed primary emphasis on
LAWYERS AND THE LEGAL commercial law. Eventually, a few col-
PROFESSION leges began to teach law as part of their
he training of attorneys and the general curriculum, and in 1817 an in-
T practice of law have evolved

over time in the United States.
Today American lawyers practice in a
dependent law school was established
at Harvard University.
During the second half of the 19th
variety of settings and circumstances. century, the number of law schools in-
creased dramatically, from 15 schools
Development of the Legal in 1850 to 102 in 1900. The law
Profession schools of that time and those of today
During the colonial period in America have two major differences. First, law
(1607-1776), there were no law schools then did not usually require
schools to train those interested in any previous college work. Second, in
the legal profession. Some young men 1850 the standard law school curricu-
went to England for their education lum could be completed in one year.
and attended the Inns of Court. The Later in the 1800s many law schools
Inns were not formal law schools, instituted two-year programs.
but were part of the English legal In 1870 major changes began at
culture and allowed students to Harvard that were to have a lasting
become familiar with English law. impact on legal training. Harvard in-
CHAPTER 4: LAWYERS, LITIGANTS, AND INTEREST GROUPS IN THE JUDICIAL PROCESS 75
stituted stiffer entrance requirements; people wanting to study law increased

a student who did not have a college dramatically. By the 1960s the number
degree was required to pass an en- of applicants to law schools had
trance test. The law school course was grown so large that nearly all schools
increased to two years in 1871 and to became more selective. At the same
three years in 1876. Also, students time, in response to social pressure
were required to pass first-year final and litigation, many law schools
examinations before proceeding to the began actively recruiting female and
second-year courses. minority applicants.
The most lasting change, however, Also by the 1960s, the curriculum
was the introduction of the case in some law schools had been expand-
method of teaching. This method re- ed to include social concerns such as
placed lectures and textbooks with civil rights law and law-and-poverty
casebooks. The casebooks (collections issues. International law courses also
of actual case reports) were designed became available.
to explain the principles of law, what A more recent trend in law schools
they meant, and how they developed. is an emphasis on the use of comput-
Teachers then used the Socratic ers for everything from registration to
method to guide the students to a dis- classroom instruction to accessing
covery of legal concepts found in the court forms to student services. Also
cases. Other schools eventually adopt- noteworthy is that more and more law
ed the Harvard approach, and the case schools are offering courses or special
method remains the accepted method programs in intellectual property law,
of teaching in many law schools today. a field of specialization that has grown
As the demand for lawyers in- considerably in recent years. Finally,
creased during the late 1800s, there the increasing use of advertising by
was a corresponding acceleration in lawyers has had a profound impact on
the creation of new law schools. Open- the legal profession. On television
ing a law school was not expensive, stations across the country one can
and a number of night schools, using now see lawyers making appeals to
lawyers and judges as part-time facul- attract new clients. Furthermore, legal
ty members, sprang into existence. clinics, established to handle the busi-
Standards were often lax and the cur- ness generated by the increased use of
riculum tended to emphasize local advertising, have spread rapidly.
practice. These schools’ major contri-
bution lay in making training more Growth and Stratification
readily available to poor, immigrant, The number of lawyers in the United
and working-class students. States has increased steadily over the
In the 20th century, the number of past half century and is currently
estimated at more than 950,000. America’s lawyers apply their pro-

Where do all the attorneys in the fessional training in a variety of set-
United States find work? tings. Some environments are more
The Law School Admission Coun- profitable and prestigious than others.
cil provides some answers in The Offi- This situation has led to what is
cial Guide to U.S. Law Schools, 2001 known as professional stratification.
Edition. Almost three-fourths (72.9 One of the major factors influenc-
percent) of America’s lawyers are in ing the prestige level is the type of legal
private practice, some in small, one- specialty and the type of clientele
person offices and some in much larg- served. Lawyers with specialties who
er law firms. About 8.2 percent of the serve big business and large institu-
legal profession’s members work for tions occupy the top hemisphere;
government agencies, roughly 9.5 per- those who represent individual inter-
cent work for private industries and ests are in the bottom hemisphere.
associations as lawyers or managers, At the top of the prestige ladder
about 1.1 percent work for legal aid as- are the large national law firms. Attor-
sociations or as public defenders, rep- neys in these firms have traditionally
resenting those who cannot afford to been known less for court appearances
pay a lawyer, and 1 percent are in legal than for the counseling they provide
education. Some 5 percent of the na- their clients. The clients must be able
tion’s lawyers are retired or inactive. 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.
ent, and thus they tend to be major the legal division handles the multi-
corporations rather than individuals. tude of legal problems faced by the
However, many of these large national modern corporation. For example,
firms often provide “pro bono” (Latin the legal division monitors the compa-
for “the public good,” or free) legal ny’s personnel practices to ensure
services to further civil rights, civil compliance with federal and state
liberties, consumer interests, and envi- regulations concerning hiring and re-
ronmental causes. moval procedures. The corporation’s
The large national firms consist of attorneys may advise the board of
partners and associates. Partners own directors about such things as contrac-
the law firm and are paid a share of tual agreements, mergers, stock sales,
the firm’s profits. The associates are and other business practices. The
paid salaries and in essence work company lawyers may also help edu-
for the partners. These large firms cate other employees about the laws
compete for the best graduates from that apply to their specific jobs and
the nation’s law schools. The most make sure that they are in compliance
prestigious firms have 250 or more with them. The legal division of a large
lawyers and also employ hundreds company also serves as a liaison with
of other people as paralegals (non- outside counsel.
lawyers who are specially trained to Most of the nation’s lawyers work
handle many of the routine aspects of in a lower hemisphere of the legal pro-
legal work), administrators, librarians, fession in terms of prestige and do not
and secretaries. command the high salaries associated
A notch below those working with large national law firms and
in the large national firms are those major corporations. However, they are
employed as attorneys by large engaged in a wider range of activities
corporations. Many corporations and are much more likely to be found,
use national law firms as outside day in and day out, in the courtrooms
counsel. Increasingly, however, corpo- of the United States. These are the at-
rations are hiring their own salaried torneys who represent clients in per-
attorneys as in-house counsel. The sonal injury suits, who prosecute and
legal staff of some corporations rivals defend persons accused of crimes,
those of private firms in size. Further, who represent husbands and wives in
these corporations compete with divorce proceedings, who help people
the major law firms for the best law conduct real estate transactions, and
school graduates. who help people prepare wills, to
Instead of representing the corpo- name just a few activities.
ration in court (a task usually handled Attorneys who work for the gov-
by outside counsel when necessary), ernment are generally included in the
lower hemisphere. Some, such as the tant U.S. attorneys are formally ap-
U.S. attorney general and the solicitor pointed by the U.S. attorney general,
general of the United States, occupy although in practice they are chosen
quite prestigious positions, but many by the U.S. attorney for the district,
toil in rather obscure and poorly paid who forwards the selection to the
positions. A number of attorneys opt attorney general for ratification.
for careers as judges at the federal or Assistant U.S. attorneys may be fired
state level. by the attorney general.
Another distinction in terms of In their role as prosecutors, U.S.
specialization in the legal profession is attorneys have considerable discretion
that between plaintiffs and defense at- in deciding which criminal cases to
torneys. The former group initiates prosecute. They also have the authori-
lawsuits, whereas the latter group de- ty to determine which civil cases to
fends those accused of wrongdoing in try to settle out of court and which
civil and criminal cases. ones to take to trial. U.S. attorneys,
therefore, are in a very good position
Government Attorneys in the to influence the federal district court’s
Judicial Process docket. Also, because they engage
Government attorneys work at all lev- in more litigation in the district
els of the judicial process, from trial courts than anyone else, the U.S.
courts to the highest state and federal attorneys and their staffs are vital
appellate courts. participants in policy making in the
federal trial courts.
Federal Prosecutors. Each federal
judicial district has one U.S. attorney Prosecutors at the State Level.
and one or more assistant U.S. attor- Those who prosecute persons accused
neys. They are responsible for prose- of violating state criminal statutes
cuting defendants in criminal cases in are commonly known as district
the federal district courts and for de- attorneys. In most states they are
fending the United States when it is elected county officials; however, in
sued in a federal trial court. a few states they are appointed.
U.S. attorneys are appointed by the The district attorney’s office usually
president and confirmed by the employs a number of assistants who
Senate. Nominees must reside in the do most of the actual trial work. Most
district to which they are appointed of these assistant district attorneys are
and must be lawyers. They serve a recent graduates of law school, who
formal term of four years but can be gain valuable trial experience in these
reappointed indefinitely or removed at positions. Many later enter private
the president’s discretion. The assis- practice, often as criminal defense
attorneys. Others will seek to become Public Defenders. Often the person
district attorneys or judges after a charged with violating a state or feder-
few years. al criminal statute is unable to pay
The district attorney’s office has for the services of a defense attorney.
a great deal of discretion in the In some areas a government official
handling of cases. Given budget and known as a public defender bears the
personnel constraints, not all cases responsibility for representing indi-
can be afforded the same amount of gent defendants. Thus, the public de-
time and attention. Therefore, some fender is a counterpart of the prosecu-
cases are dismissed, others are not tor. Unlike the district attorney,
prosecuted, and still others are prose- however, the public defender is usual-
cuted vigorously in court. Most cases, ly appointed rather than elected.
however, are subject to plea bargain- In some parts of the country there
ing. This means that the district are statewide public defender systems;
attorney’s office agrees to accept the in other regions the public defender is
defendant’s plea of guilty to a reduced a local official, usually associated with
charge or to drop some charges a county government. Like the district
against the defendant in exchange for attorney, the public defender employs
pleas of guilty to others. 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.
Other Government Lawyers. At cases to the courts of appeals, and aid

both the state and federal levels, some the solicitor general’s office in cases ar-
government attorneys are better gued before the Supreme Court.
known for their work in appellate
courts than in trial courts. For exam- U.S. Solicitor General. The solicitor
ple, each state has an attorney general general of the United States, the third-
who supervises a staff of attorneys ranking official in the Justice Depart-
who are charged with the responsibili- ment, is assisted by five deputies and
ty of handling the legal affairs of the about 20 assistant solicitors general.
state. At the federal level the Depart- The solicitor general’s primary func-
ment of Justice has similar responsi- tion is to decide, on behalf of the
bilities on behalf of the United States. United States, which cases will and will
not be presented to the Supreme
The U.S. Department of Justice. Al- Court for review. Whenever an execu-
though the Justice Department is an tive branch department or agency
agency of the executive branch of the loses a case in one of the courts of ap-
government, it has a natural associa- peals and wishes a Supreme Court re-
tion with the judicial branch. Many of view, that department or agency will
the cases heard in the federal courts request that the Justice Department
involve the national government in seek certiorari. The solicitor general
one capacity or another. Sometimes will determine whether to appeal the
the government is sued; in other in- lower court decision.
stances the government initiates the Many factors must be taken into
lawsuit. In either case, an attorney account when making such a decision.
must represent the government. Most Perhaps the most important consider-
of the litigation involving the federal ation is that the Supreme Court is
government is handled by the Justice limited in the number of cases it can
Department, although a number of hear in a given term. Thus, the solic-
other government agencies have attor- itor general must determine whether a
neys on their payrolls. particular case deserves extensive con-
The Justice Department’s Office of sideration by the Court. In addition to
the Solicitor General is extremely im- deciding whether to seek Supreme
portant in cases argued before the Court review, the solicitor general per-
Supreme Court. The department also sonally argues most of the govern-
has several legal divisions, each with a ment’s cases heard by the High Court.
staff of specialized lawyers and headed
by an assistant attorney general. The State Attorneys General. Each state
legal divisions supervise the handling has an attorney general who serves as
of litigation by the U.S. attorneys, take its chief legal official. In most states
this official is elected on a partisan nor the defendant is constitutionally

statewide ballot. The attorney general entitled to the services of an attorney.
oversees a staff of attorneys who pri- However, in the civil arena the legal
marily handle the civil cases involving issues are often so complex as to de-
the state. Although the prosecution mand the services of an attorney. Var-
of criminal defendants is generally ious forms of legal assistance are usu-
handled by the local district attorneys, ally available to those who need help.
the attorney general’s office often plays
an important role in investigating Assigned Defense Counsel. When a
statewide criminal activities. Thus, the private lawyer must be appointed to
attorney general and his or her staff represent an indigent defendant, the
may work closely with the local dis- assignment usually is made by an indi-
trict attorney in preparing a case vidual judge on an ad hoc basis. Local
against a particular defendant. bar associations or lawyers themselves
The state attorneys general also often provide the courts with a list of
issue advisory opinions to state and attorneys who are willing to provide
local agencies. Often, these opinions such services.
interpret an aspect of state law not yet
ruled on by the courts. Although an Private Defense Counsel. Some at-
advisory opinion might eventually be torneys in private practice specialize in
overruled in a case brought before the criminal defense work. Although the
courts, the attorney general’s opinion lives of criminal defense attorneys may
is important in determining the be- be depicted as glamorous on television
havior of state and local agencies. and in movies, the average real-life
criminal defense lawyer works long
Private Lawyers in the Judicial hours for low pay and low prestige.
Process
In criminal cases in the United States The Courtroom Workgroup
the defendant has a constitutional Rather than functioning as an occa-
right to be represented by an attorney. sional gathering of strangers who re-
Some jurisdictions have established solve a particular conflict and then go
public defender’s offices to represent their separate ways, lawyers and judges
indigent defendants. In other areas, who work in a criminal court room
some method exists of assigning a become part of a workgroup.
private attorney to represent a defen- The most visible members of the
dant who cannot afford to hire one. courtroom workgroup — judges,
Those defendants who can afford to prosecutors, and defense attorneys —
hire their own lawyers will do so. are associated with specific functions:
In civil cases neither the plaintiff Prosecutors push for convictions of
those accused of criminal offenses without any reasonable guarantee of a

against the government, defense attor- desirable outcome.
neys seek acquittals for their clients, To attain these goals, workgroup
and judges serve as neutral arbiters to members employ several techniques.
guarantee a fair trial. Despite their dif- Although unilateral decisions and
ferent roles, members of the court- adversarial proceedings occur, negoti-
room workgroup share certain values ation is the most commonly used
and goals and are not the fierce adver- technique in criminal courtrooms.
saries that many people imagine. Co- The members negotiate over a variety
operation among judges, prosecutors, of issues — continuances (delays in
and defense attorneys is the norm. the court proceedings), hearing dates,
The most important goal of the and exchange of information, for ex-
courtroom workgroup is to handle ample. Plea bargaining, however, is the
cases expeditiously. Judges and prose- most critical tool of negotiation.
cutors are interested in disposing
of cases quickly to present a picture Legal Services for the Poor
of accomplishment and efficiency. Although criminal defendants are
Because private defense attorneys constitutionally entitled to be repre-
need to handle a large volume of sented by a lawyer, those who are de-
cases to survive financially, resolving fendants in a civil case or who wish to
cases quickly works to their advantage. initiate a civil case do not have the
And public defenders seek quick right to representation. Therefore,
dispositions simply because they those who do not have the funds to
lack adequate resources to handle hire a lawyer may find it difficult to
their caseloads. obtain justice.
A second important goal of the To deal with this problem, legal aid
courtroom workgroup is to maintain services are now found in many areas.
group cohesion. Conflict among the Legal aid societies were established in
members makes work more difficult New York and Chicago as early as the
and interferes with the expeditious late 1880s, and many other major
handling of cases. cities followed suit in the 20th century.
Finally, the courtroom workgroup Although some legal aid societies are
is interested in reducing or controlling sponsored by bar associations, most
uncertainty. In practice this means are supported by private contribu-
that all members of the workgroup tions. Legal aid bureaus also are asso-
strive to avoid trials. Trials, especially ciated with charitable organizations in
jury trials, produce a great deal of un- some areas, and many law schools op-
certainty given that they require sub- erate legal aid clinics to provide both
stantial investments of time and effort legal assistance for the poor and valu-
able training for law students. In addi- contests, may either be policy oriented
tion, many lawyers provide legal serv- or compensatory.”
ices “pro bono publico” (Latin for “for A classic example of private, or
the public good”) because they see it ordinary, compensation-oriented liti-
as a professional obligation. gation is when a person injured in an
automobile accident sues the driver of
LITIGANTS the other car in an effort to win mon-
n some cases taken before the
I
etary damages as compensation for
courts, the litigants are individu- medical expenses incurred. This type
als, whereas in other cases one or of litigation is personal and is not
more of the litigants may be a govern- aimed at changing governmental or
ment agency, a corporation, a union, business policies.
an interest group, or a university. Some private law cases, however,
What motivates a person or group are policy oriented or political in na-
to take a grievance to court? In crimi- ture. Personal injury suits and product
nal cases the answer to this question is liability suits may appear on the sur-
relatively simple. A state or federal face to be simply compensatory in na-
criminal statute has allegedly been vi- ture but may also be used to change
olated, and the government prosecutes the manufacturing or business prac-
the party charged with violating the tices of the private firms being sued.
statute. In civil cases the answer is not A case litigated in North Carolina
quite so easy. Although some persons provides a good example. The case
readily take their grievances to court, began in 1993 after a five-year-old girl
many others avoid this route because got stuck on the drain of a wading
of the time and expense involved. pool after another child had removed
Political scientist Phillip Cooper the drain cover. Such a powerful suc-
points out that judges are called upon tion was created that, before she could
to resolve two kinds of disputes: be rescued, the drain had sucked out
private law cases and public law most of her large and small intestines.
controversies. Private law disputes are As a result, the girl will have to spend
those in which one private citizen or about 11 hours per day attached to in-
organization sues another. In public travenous feeding tubes for the rest of
law controversies, a citizen or organi- her life. In 1997 a jury awarded the
zation contends that a government girl’s family $25 million in compensa-
agency or official has violated a right tory damages and, before the jury was
established by a constitution or to have considered punitive damages,
statute. In Hard Judicial Choices, the drain manufacturer and two other
Cooper writes that “legal actions, defendants settled the case for $30.9
whether public law or private law million. The plaintiff ’s attorney said
that the lawsuit revealed similar inci- Court. Ordinary compensatory litiga-
dents in other areas of the country and tion is often terminated early in the
presented a stark example of some- judicial process because the litigants
thing industry insiders knew but find it more profitable to settle their
others did not. Not only did the fami- dispute or accept the verdict of a
ly win its lawsuit, but the North Car- trial court. However, litigants in polit-
olina legislature also passed a law re- ical cases generally do little to advance
quiring multiple drains to prevent their policy goals by gaining victories
such injuries in the future. at the lower levels of the judiciary.
Most political or policy-oriented Instead, they prefer the more wide-
lawsuits, however, are public law con- spread publicity that is attached to a
troversies. That is, they are suits decision by an appellate tribunal.
brought against the government pri- Pursuing cases in the appellate courts
marily to stop allegedly illegal policies is expensive. Therefore, many lawsuits
or practices. They may also seek dam- that reach this level are supported in
ages or some other specific form of re- one way or another by interest groups.
lief. A case decided by the U.S.
Supreme Court, Lucas v. South Caroli- INTEREST GROUPS IN THE
na Coastal Council, provides a good ex- JUDICIAL PROCESS
ample. South Carolina’s Beachfront lthough interest groups are
Management Act forbade David H.
Lucas from building single-family
houses on two beachfront lots he
A probably better known for
their attempts to influence
legislative and executive branch
owned. A South Carolina trial court decisions, they also pursue their
ruled that Lucas was entitled to be policy goals in the courts. Some
compensated for his loss. The South groups have found the judicial branch
Carolina Supreme Court reversed the to be more receptive to their efforts
trial court decision, however, and than either of the other two branches
Lucas appealed to the U.S. Supreme of government. Interest groups that
Court. The High Court ruled in do not have the economic resources
Lucas’s favor, saying that if a property to mount an intensive lobbying effort
owner is denied all economically viable in Congress or a state legislature may
use of his or her property, a taking has find it much easier to hire a lawyer and
occurred and the Constitution requires find some constitutional or statutory
that he or she get compensation. provision upon which to base a court
Political or policy-oriented litiga- case. Likewise, a small group with few
tion is more prevalent in the appellate registered voters among its members
courts than in the trial courts and is may lack the political clout to exert
most common in the U.S. Supreme much influence on legislators and ex-
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.
ecutive branch officials. Large mem- Test Cases

berships and political clout are not Because the judiciary engages in poli-
prerequisites for filing suits in the cy making only by rendering decisions
courts, however. in specific cases, one tactic of interest
Interest groups may also turn to groups is to make sure that a case
the courts because they find the judi- appropriate for obtaining its policy
cial branch more sympathetic to their goals is brought before the court.
policy goals than the other two In some instances this means that the
branches. Throughout the 1960s in- interest group will initiate and spon-
terest groups with liberal policy goals sor the case by providing all the
fared especially well in the federal necessary resources. The best-known
courts. In addition, the public interest example of this type of sponsorship
law firm concept gained prominence is Brown v. Board of Education (1954).
during this period. The public interest In that case, although the suit against
law firms pursue cases that serve the the Board of Education of Topeka,
public interest in general — including Kansas, was filed by the parents
cases in the areas of consumer rights, of Linda Brown, the National Associa-
employment discrimination, occupa- tion for the Advancement of Colored
tional safety, civil liberties, and envi- People (NAACP) supplied the legal
ronmental concerns. help and money necessary to pursue
In the 1970s and 1980s conserva- the case all the way to the Supreme
tive interest groups turned to the fed- Court. Thurgood Marshall, who later
eral courts more frequently than they became a U.S. Supreme Court justice,
had before. This was in part a reaction argued the suit on behalf of the plain-
to the successes of liberal interest tiff and the NAACP. As a result, the
groups. It was also due to the increas- NAACP gained a victory through the
ingly favorable forum that the federal Supreme Court’s decision that segre-
courts provided for conservative gation in the public schools violates
viewpoints. the equal protection clause of the
Interest group involvement in the Fourteenth Amendment.
judicial process may take several Interest groups may also provide
different forms depending upon assistance in a case initiated by some-
the goals of the particular group. one else, but which nonetheless raises
However, two principal tactics stand issues of importance to the group. A
out: involvement in test cases good example of this situation may be
and presentation of information found in a freedom of religion case,
before the courts through “amicus Wisconsin v. Yoder. That case was initi-
curiae” (Latin, meaning “friend of the ated by the state of Wisconsin when it
court”) briefs. filed criminal complaints charging
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.
Jonas Yoder and others with failure to for the appellate courts, these attor-
send their children to school until the neys may simply be required to deal
age of 16 as required by state law. with the legal problems of their
Yoder and the others, members of the groups’ clientele.
Amish faith, believed that education During the civil rights movement
beyond the eighth grade led to the in the 1950s and 1960s, for example,
breakdown of the values they cher- public interest lawyers not only litigated
ished and to “worldly influences on major civil rights questions; they also
their children.” defended African Americans and civil
An organization known as the Na- rights workers who ran into difficul-
tional Committee for Amish Religious ties with the local authorities. These
Freedom (NCARF) came to the de- interest group attorneys, then, per-
fense of Yoder and the others. Follow- formed many of the functions of a
ing a decision against the Amish in the specialized legal aid society: They pro-
trial court, the NCARF appealed to a vided legal representation to those in-
Wisconsin circuit court, which upheld volved in an important movement for
the trial court’s decision. An appeal social change. Furthermore, they per-
was made to the Wisconsin Supreme formed the important function of
Court, which ruled in favor of the drawing attention to the plight of
Amish, saying that the compulsory African Americans by keeping cases
school attendance law violated the free before the courts.
exercise of religion clause of the First
Amendment. Wisconsin then ap- Amicus Curiae Briefs
pealed to the U.S. Supreme Court, Submission of amicus curiae briefs is
which on May 15, 1972, sustained the the easiest method by which interest
religious objection that the NCARF groups can become involved in cases.
had raised to the compulsory school This method allows a group to get its
attendance laws. message before the court even though
As these examples illustrate, inter- it does not control the case. Provided
est group involvement in litigation has it has the permission of the parties to
focused on cases concerning major the case or the permission of the
constitutional issues that have reached court, an interest group may submit
the Supreme Court. Because only a an amicus brief to supplement the ar-
small percentage of cases ever reaches guments of the parties. The filing of
the nation’s highest court, however, amicus briefs is a tactic used in appel-
most of the work of interest group late rather than trial courts, at both
lawyers deals with more routine work the federal and the state levels.
at the lower levels of the judiciary. Sometimes these briefs are aimed
Instead of fashioning major test cases at strengthening the position of one of
the parties in the case. When the solved. Amicus curiae briefs are often
Wisconsin v. Yoder case was argued filed in an attempt to persuade an ap-
before the U.S. Supreme Court, the pellate court to either grant or deny
cause of the Amish was supported by review of a lower-court decision. A
amicus curiae briefs filed by the study of the U.S. Supreme Court
General Conference of Seventh Day found that the presence of amicus
Adventists, the National Council of briefs significantly increased the
Churches of Christ in the United chances that the Court would give full
States, the Synagogue Council of treatment to a case.
America, the American Jewish Con- Unlike private interest groups,
gress, the National Jewish Commis- all levels of the government can sub-
sion on Law and Public Affairs, and mit amicus briefs without obtaining
the Mennonite Central Committee. permission. The solicitor general of
Sometimes friend-of-the-court the United States is especially impor-
briefs are used not to strengthen the tant in this regard, and in some
arguments of one of the parties but to instances the Supreme Court may
suggest to the court the group’s own invite the solicitor general to present
view of how the case should be re- an amicus brief.
C H A P T E R
5
THE
CRIMINAL
COURT
PROCESS
A jury forewoman reads the

verdict in court. The Sixth
Amendment of the Constitution
guarantees Americans the right to
an impartial jury.
The criminal process begins when a few consist of sins of omission, such as
law is first broken and extends failing to stop and render aid after a
through the arrest, indictment, trial, traffic accident or failing to file an in-
and appeal. There is no single crimi- come tax return. The state considers
nal, or civil, court process in the some crimes serious, such as murder
United States. Instead, the federal and treason, and this seriousness is re-
system has a court process at the flected in the corresponding punish-
national level, and each state and terri- ments, such as life imprisonment or
tory has its own set of rules and regu- the death penalty. The state considers
lations that affect the judicial process. others crimes only mildly reprehensi-
Norms and similarities do exist among ble, such as double parking or disturb-
all of these governmental entities, ing the peace, and consequently
and the discussion will focus primarily punishments of a light fine or a night
on these, but no two states have iden- in the local jail are akin to an official
tical judicial systems and no state’s sys- slap on the wrist.
tem is identical to that of the national Some crimes, such as kidnapping
government. or rape, constitute actions that virtual-
ly all citizens consider outside the
THE NATURE AND sphere of acceptable human conduct,
SUBSTANCE OF CRIME whereas other crimes constitute ac-
n act is not automatically a tions about which opinion would be
A crime because it is hurtful or

sinful. An action constitutes a
true crime only if it specifically vio-
divided. For example, an 1897 Michi-
gan statute makes it illegal to curse in
front of a child, and a Nebraska law
lates a criminal statute duly enacted by forbids bingo games at church sup-
Congress, a state legislature, or some pers. Other criminal statutes are plain-
other public authority. A crime, then, ly silly: In Wisconsin it is illegal to sing
is an offense against the state punish- in a bar, and in Louisiana it is forbid-
able by fine, imprisonment, or death. den to appear drunk at a meeting of a
A crime is a violation of obligations literary society.
due the community as a whole and The most serious crimes in the
can be punished only by the state. The United States are felonies. In a majori-
sanctions of imprisonment and death ty of the states a felony is any offense
cannot be imposed by a civil court or for which the penalty may be death (in
in a civil action (although a fine may states that allow it) or imprisonment
be a civil or a criminal penalty). in the penitentiary (a federal or state
In the United States most crimes prison); all other offenses are misde-
constitute sins of commission, such as meanors or infractions. In other states,
aggravated assault or embezzlement; a and under federal law, a felony is an
CHAPTER 5: THE CRIMINAL COURT PROCESS 93
offense for which the penalty may be often go hand in glove. For example,
death or imprisonment for a year or the thief who breaks into a house and
more. Thus, felonies are distinguished inadvertently confronts a resistant
in some states according to the place owner may harm the owner and thus
where the punishment occurs; in some be involved in more than just the
states and according to the federal property crime of burglary.
government, the length of the sentence The less numerous, but more
is the key factor. Examples of felonies feared, conventional crimes are those
include murder, forcible rape, and against the person. These crimes of
armed robbery. violence include murder and nonneg-
Misdemeanors are regarded as petty ligent manslaughter, forcible rape,
crimes by the state, and their punish- robbery, and aggravated assault.
ment usually consists of confinement
in a city or county jail for less than a Economic Crimes
year. Public drunkenness, small-time There are four broad categories of eco-
gambling, and vagrancy are common nomic crimes:
examples of misdemeanor offenses. • Personal crimes consist of nonviolent
Some states have a third category of criminal activity that one person
offense known as infractions. Often inflicts on another with the hope of
they include minor traffic offenses, monetary gain. Examples include
such as parking violations, and the intentionally writing a bad check,
penalty is usually a small fine. Fines cheating on one’s income tax, and
may also be part of the penalty for committing welfare fraud.
misdemeanors and felonies. • Abuse of trust occurs when business
or government employees violate
CATEGORIES OF CRIME their fidelity to their employer or
ive broad categories that com- clients and engage in practices such
F prise the primary criminal of-

fenses in the United States today
are conventional, economic, syndicat-
as commercial bribery, theft and
embezzlement from the workplace,
and filling out false expense accounts.
ed, political, and consensual. • Business crimes are crimes that are
not part of the central purpose of the
Conventional Crimes business enterprise but are incidental
Property crimes make up the lion’s to (or in furtherance of) it. Mis-
share of the 31.3 million conventional leading advertising, violations of the
crimes committed annually in the antitrust laws, and false depreciation
United States. Property crimes are dis- figures computed for corporate
tinguished by the government from income tax purposes are all
crimes of violence, although the two business crimes.
• Con games are white-collar criminal Consensual Crimes

activities committed under the guise So-called victimless crime, such as
of a business. prostitution, gambling, illegal drug
use, and unlawful sexual practices be-
Syndicated, or Organized, Crimes tween consenting adults, is called con-
Syndicated crime is engaged in by sensual because both perpetrator and
groups of people and is often directed client desire the forbidden activity.
on some type of hierarchical basis. It
represents an ongoing activity that is ELEMENTS OF A CRIME
inexorably entwined with fear and very crime has several distinct
corruption. Organized crime tends to
focus on areas that are particularly
lucrative, such as trafficking in illegal
E elements, and unless the state is
able to demonstrate in court the
existence of these essential elements
drugs, gambling, prostitution, and there can be no conviction. Although
loan-sharking (money-lending at ex- the judicial process in the courtroom
orbitant interest rates and high repay- may not focus separately and distinct-
ment rates). ly on each of these elements, they are
at least implicit throughout the entire
Political Crimes
Political crime usually con-
stitutes an offense against
the government: treason,
armed rebellion, assassina-
tion of public officials, and
sedition. However, the term
has come to include crimes
committed by the govern-
ment against individual cit-
izens, dissident groups, and
foreign governments or na-
tionals — for example, ille-
gal wiretaps conducted by
the government of politi- Syndicated crime is one of five broad categories that
cally dissident groups or comprise the primary criminal offenses in the United
the refusal of the military States today. At this June 20, 2002, press conference, U.S.
Attorney General for the Southern District of New York
to investigate incidents of James Comey, left, and Kevin Donovan, right, assistant
sexual harassment. director of the New York FBI field office, announce the
indictment of 14 alleged members of the Gambino
organized crime family in New York.
process of duly convicting someone assault and battery), or it may be the

of a criminal offense. failure to perform an action that is
required (for instance, a person’s
A Law Defining the Crime and the refusal to stop and render aid to a
Punishment motor vehicle accident victim).
If an act is to be prohibited or re-
quired by the law, a duly constituted The Mens Rea
authority (usually Congress or a state The “mens rea” (a Latin term) is the
legislature) must properly spell out essential mental element of the crime.
the matter so that the citizenry can The U.S. legal system has always made
know in advance what conduct is pro- a distinction between harm that was
hibited or required. Lawmakers must caused intentionally and harm that
also set forth the penalties to be im- was caused by simple negligence or
posed upon the individual who en- accident. Thus, if one person takes
gages in the harmful conduct. the life of another, the state does not
There are several corollaries to this always call it murder. If the killing
general principle. One is that the U.S. was done with malice aforethought by
Constitution forbids criminal laws that a sane individual, it will likely be
are ex post facto, that is, laws that de- termed “murder in the first degree.”
clare certain conduct to be illegal after But if the killing occurred in the
the conduct takes place. Likewise, the passion of a barroom brawl, it would
state may not pass bills of attainder, more likely be called “second-degree
which are laws that single out a partic- murder,” which carries a lesser penal-
ular person or group of persons and ty. Reckless driving on the highway
declare that something is criminal for that results in the death of another
them but legal for everyone else. A final would correspondingly be considered
corollary is that a law defining a crime “negligent homicide” — a wrong, to
must be precise so that the average be sure, but not as serious in the eyes
person can determine in advance what of the state as the intentional killing
conduct is prohibited or required. of another.
The Actus Reus An Injury or Result

“Actus reus” is the Latin phrase mean- A crime consists of a specific injury or
ing the criminal action committed by a wrong perpetrated by one person
the accused that gives rise to the legal against another. The crime may harm
prosecution. The actus reus is the society at large, such as selling military
material element of the crime. This secrets to a foreign government, or the
element may be the commission of an injury may be inflicted upon an indi-
action that is forbidden (for instance, vidual and, because of its nature, is
considered to offend society as a A Causal Relationship Between the

whole. The nature of the injury, as Action and the Resultant Injury
with the mens rea, often determines Before there can be a conviction for a
the nature of the crime itself. For criminal offense, the state must prove
example, consider two drivers who that the accused, acting in a natural
have been cutting each other off in and continuous sequence, produced
traffic. Finally they both stop their the harmful situation. Usually proving
cars and come out fighting. Suppose a causal relationship is not difficult. If
one of them hits the other so hard he “Bill” stabs “John” with a knife and in-
dies. The crime may be murder (of flicts a minor wound, there is no
some degree). If the man does not die doubt that Bill is guilty of assault with
but suffers serious bodily harm, the a deadly weapon. But what if John
crime is aggravated assault. If the does not obtain proper medical care
injury is minor, the charge may be for the wound, develops an infection,
simple assault. Because the nature of and subsequently dies? Is Bill now
the injury often determines the of- guilty of manslaughter or murder? Or
fense, it is frequently asserted that the what if after being stabbed, John
nature of the injury is the key legal stumbles across a third party and
element of the crime. causes injury to her? Is Bill to blame
Some actions may be criminal even for this, too?
though no injury is actually inflicted. Resolution of questions such as
Most crimes of criminal conspiracy these are often difficult for judges and
fall into this category. For instance, if juries. The law requires that all cir-
several persons were to plan to assassi- cumstances be taken into account.
nate a judge or to bribe jurors in an at- The accused can be convicted only if
tempt to keep a criminal from being the state can prove that his or her con-
convicted, the crime would be conduct is the direct, immediate, or deter-
spiracy to obstruct justice. This would mining cause of the resultant harm to
be a crime even if the judge went un- the victim.
harmed and no money was ever
passed to the jurors. All that is re- PROCEDURES BEFORE A
quired is that the crime be planned CRIMINAL TRIAL
and intended and that some specific, efore a criminal trial can be
overt act be taken by one of the con-
spirators in furtherance of their plan
(such as the purchase of a weapon or
B held, federal and state laws re-
quire a series of procedures and
events. Some of these stages are man-
possession of a map of the route that dated by the U.S. Constitution and
the judge takes between his home and state constitutions, some by court de-
the courtroom). cisions, and others by legislative en-
actments. Custom and tradition often or clear-cut, and police officials pos-
account for the rest. Although the exact sess — and exercise — wide discretion
nature of these procedural events varies about whether to take someone into
from federal to state practice — and custody. Sufficient resources are sim-
from one state to another — there are ply not available to the police for them
similarities throughout the country. to proceed against all activities that
These procedures, however, are not as Congress and the legislatures have for-
automatic or routine as they might ap- bidden. Consequently, discretion must
pear; rather, the judicial system’s deci- be exercised in determining how to al-
sion makers exercise discretion at all locate the time and resources that do
stages according to their values, atti- exist. Police discretion is at a maxi-
tudes, and views of the world. mum in several areas.
The Arrest Trivial Offenses. Many police manuals

The arrest is the first substantial con- advise their officers that when minor
tact between the state and the accused. violations of the law are concerned,
The U.S. legal system provides for two a warning is a more appropriate
basic types of arrest — those with a response than an arrest. Traffic viola-
warrant and those without. A warrant tions, misconduct by juveniles, drunk-
is issued after a complaint, filed by one enness, gambling, and vagrancy all
person against another, has been pre- constitute less serious crimes and en-
sented and reviewed by a magistrate tail judgment calls by police.
who has found probable cause for the
arrest. Arrests without a warrant occur Victim Will Not Seek Prosecution.
when a crime is committed in the Nonenforcement of the law is also the
presence of a police officer or when an rule in situations where the victim of a
officer has probable cause to believe crime will not cooperate with the po-
that someone has committed (or is lice in prosecuting a case. In the in-
about to commit) a crime. Such a be- stance of minor property crimes, for
lief must later be established in a example, the victim is often satisfied if
sworn statement or testimony. In the restitution occurs and the victim can-
United States up to 95 percent of all not afford the time to testify in court.
arrests are made without a warrant. Unless the police have expended
An officer’s decision whether to considerable resources in investigating
make an arrest is far from simple or a particular property crime, they are
automatic. To be sure, the officer who generally obliged to abide by the
witnesses a murder will make an arrest victim’s wishes.
on the spot if possible. But most law- When the victim of a crime is in a
breaking incidents are not that simple continuing relationship with the crim-
inal, the police often decline to make police may detain an individual
an arrest. Such relationships include arrested without a warrant for up to
landlord and tenant, one neighbor 48 hours without a court hearing on
and another, and, until recently, whether the arrest was justified.
husband and wife. In this last case, This appearance in court is the oc-
however, heightened awareness of do- casion of several important events in
mestic violence has had a significant the criminal justice process. First, the
impact on police procedures. accused must have been informed of
Rape and child molestation consti- the precise charges and must be in-
tute another major category of crimes formed of all constitutional rights
for which there are often no arrests and guarantees. Among others, these
because the victims will not or cannot rights include those of the now fa-
cooperate with the police. Oftentimes mous Miranda v. Arizona decision
the victim is personally acquainted handed down in 1966 by the Supreme
with, or related to, the criminal, and Court. The accused “must be warned
the fear of reprisals or of ugly publicity prior to any questioning that he has
inhibits the victim from pressing the right to remain silent, that any-
a complaint. thing he says can be used against him
in a court of law, that he has the right
Victim Also Involved in Misconduct. to the presence of an attorney, and
When police officers perceive that the that if he cannot afford an attorney
victim of a crime is also involved in one will be appointed for him prior to
some type of improper or question- any questioning.” (Such warnings
able conduct, the officers frequently must also be given by the arresting of-
opt not to make an arrest. ficer if the officer questions the sus-
pect about the crime.) In some states
Appearance Before a Magistrate the accused must be informed about
After a suspect is arrested for a crime, other rights that are provided for in
he or she is booked at the police the state’s Bill of Rights, such as the
station; that is, the facts surrounding right to a speedy trial and the right to
the arrest are recorded and the confront hostile witnesses.
accused may be fingerprinted and Second, the magistrate will deter-
photographed. Next the accused mine whether the accused is to be re-
appears before a lower-level judicial leased on bail and, if so, what the
official whose title may be judge, amount of bail is to be. Constitution-
magistrate, or commissioner. Such an ally, the only requirement for the
appearance is supposed to occur amount is that it shall not be “exces-
“without unnecessary delay”; in 1991 sive.” Bail is considered to be a privi-
the U.S. Supreme Court ruled that lege — not a right — and it may be
denied altogether in capital punish- the prosecution and a subsequent stage

ment cases for which the evidence of of the criminal justice process begins.
guilt is strong or if the magistrate be-
lieves that the accused will flee from The Grand Jury Process or the
prosecution no matter what the Preliminary Hearing
amount of bail. An alternative to bail At the federal level all persons accused
is to release the defendant on recogni- of a crime are guaranteed by the Fifth
zance, basically on a pledge by the Amendment to have their cases con-
defendant to return to court on the sidered by a grand jury. However, the
appointed date for trial. Supreme Court has refused to make
In minor cases the accused may be this right binding on the states. Today
asked to plead guilty or not guilty. If only about half of the states use grand
the plea is guilty, a sentence may be juries; in some of these, they are
pronounced on the spot. If the defen- used for only special types of cases.
dant pleads not guilty, a trial date is Those states that do not use grand
scheduled. However, in the typical seri- juries employ a preliminary hearing
ous (felony) case, the next primary or an examining trial. (A few states use
duty of the magistrate is to determine both procedures.) Regardless of which
whether the defendant requires a pre- method is used, the primary purpose
liminary hearing. If such a hearing is of this stage in the criminal justice
appropriate, the matter is adjourned by process is to determine whether there
Since 1966, police have had to advise suspects about their rights prior to any
interrogation. They use the so-called “Miranda Warning,” named after Ernesto
Miranda, who was granted a retrial because he was not advised about his rights.
is probable cause for the accused to hearing is used to determine whether

be subjected to a formal trial. there is probable cause for the accused
to be bound over for trial. At this
The Grand Jury. Grand juries consist hearing the prosecution presents its
of 16 to 23 citizens, usually selected at case, and the accused has the right to
random from the voter registration cross-examine witnesses and to pro-
lists, who render decisions by a ma- duce favorable evidence. Usually the
jority vote. Their terms may last any- defense elects not to fight at this stage
where from one month to one year, of the criminal process; in fact, a pre-
and some may hear more than a thou- liminary hearing is waived by the de-
sand cases during their term. The fense in the vast majority of cases.
prosecutor alone presents evidence to If the examining judge determines
the grand jury. Not only are the ac- that there is probable cause for a trial
cused and his or her attorney absent or if the preliminary hearing is waived,
from the proceedings, but usually they the prosecutor must file a bill of
also have no idea which grand jury is information with the court where the
hearing the case or when. If a majority trial will be held. This serves to outline
believes probable cause exists, then an precisely the charges that will be adju-
indictment, or true bill, is brought. dicated in the new legal setting.
Otherwise the result is a no bill.
Historically two arguments have The Arraignment
been made in favor of grand juries. Arraignment is the process in which
One is that grand juries serve as a check the defendant is brought before the
on a prosecutor who might be using judge in the court where he or she is
the office to harass an innocent person to be tried to respond to the grand
for political or personal reasons. Ideal- jury indictment or the prosecutor’s
ly an unbiased group of citizens would bill of information. The prosecutor or
interpose themselves between an un- a clerk usually reads in open court
ethical prosecutor and the defendant. the charges that have been brought
A second justification for grand juries against the accused. The defendant is
is to make sure that the district attor- informed that he or she has a consti-
ney has secured enough evidence to tutional right to be represented by an
warrant the trouble and expense — for attorney and that a lawyer will be ap-
both the state and the accused — of a pointed without charge if necessary.
full-fledged trial. The defendant has several options
about how to plead to the charges. The
The Preliminary Hearing. In the most common pleas are guilty and not
majority of states that have abolished guilty. But the accused may also plead
the grand jury system, a preliminary not guilty by reason of insanity, for-
mer jeopardy (having been tried on the never go to trial. That is because be-
same charge at another time), or “nolo fore the trial date a bargain has been
contendere” (from the Latin, no con- struck between the prosecutor and the
test). Nolo contendere means that the defendant’s attorney concerning the
accused does not deny the facts of the official charges to be brought and the
case but claims that he or she has not nature of the sentence that the state
committed any crime, or it may mean will recommend to the court. In effect,
that the defendant does not under- some form of leniency is promised in
stand the charges. The nolo contendere exchange for a guilty plea.
plea can be entered only with the con- Because plea bargaining virtually
sent of the judge (and sometimes the seals the fate of the defendant before
prosecutor as well). Such a plea has trial, the role of the judge is simply to
two advantages. It may help the ac- ensure that the proper legal and con-
cused save face vis-à-vis the public be- stitutional procedures have been fol-
cause he or she can later claim that lowed. There are three (not mutually
technically no guilty verdict was exclusive) types of plea bargains.
reached even though a sentence or a
fine may have been imposed. Also, the Reduction of Charges. The most
plea may spare the defendant from common form of agreement between
certain civil penalties that might fol- a prosecutor and a defendant is a
low a guilty plea (for example, a civil reduction of the charge to one less se-
suit that might follow from conviction rious than that supported by the evi-
for fraud or embezzlement). dence. This exposes the criminal to a
If the accused pleads not guilty, the substantially reduced range of sen-
judge will schedule a date for a trial. If tence possibilities. A second reason for
the plea is guilty, the defendant may be a defendant to plead guilty to a re-
sentenced on the spot or at a later date duced charge is to avoid a record of
set by the judge. Before the court will conviction for an offense that carries a
accept a guilty plea, the judge must social stigma. Another possibility is
certify that the plea was made volun- that the defendant may wish to avoid a
tarily and that the defendant was felony record altogether and would be
aware of the implications of the plea. willing to plead guilty to almost any
A guilty plea is to all intents and misdemeanor offered by the prosecu-
purposes the equivalent to a formal tor rather than face a felony charge.
verdict of guilty.
Deletion of Tangent Charges. A sec-
The Possibility of a Plea Bargain ond form of plea bargain is the agree-
At both the state and federal levels at ment of the district attorney to drop
least 90 percent of all criminal cases other charges pending against an indi-
vidual. There are two variations on presiding judge the discretion of al-
this theme. One is an agreement not to lowing all of the defendant’s sentences
prosecute “vertically” — that is, not to to run concurrently.
prosecute more serious charges filed
against the individual. The second Sentence Bargaining. A third form
type of agreement is to dismiss “hori- of plea bargaining concerns a plea of
zontal” charges; that is to dismiss ad- guilty from the defendant in exchange
ditional indictments for the same for a prosecutor’s agreement to ask the
crime pending against the accused. judge for a lighter sentence. The
Another variation of this type of strength of the sentence negotiation is
plea bargaining is the agreement in based upon the realities of the limited
which a repeater clause is dropped resources of the judicial system. At the
from an indictment. At the federal state level, at least, prosecutors are able
level and in many states, a person is to promise the defendant a fairly spe-
considered a habitual criminal upon cific sentence with confidence that the
the third conviction for a violent judge will accept the recommenda-
felony anywhere in the United States. tion. If the judge were not to do so, the
The mandatory sentence for the habit- prosecutor’s credibility would quickly
ual criminal is life imprisonment. In begin to wane, and many of the defen-
state courts the habitual criminal dants who had been pleading guilty
charge often is dropped in exchange would begin to plead not guilty and
for a plea of guilty. take their chances in court. The result
Another plea bargain of this type is would be a gigantic increase in court
the agreement in which indictments in dockets that would overwhelm the
different courts are consolidated into judicial system and bring it to a stand-
one court in order that the sentences still. Prosecutors and judges under-
may run concurrently. As indictments stand this reality, and so do the
or preliminary hearing rulings are defense attorneys.
handed down in many jurisdictions,
they are placed on a trial docket on a Constitutional and Statutory Re-
rotation system. This means that a de- strictions on Plea Bargaining. At
fendant charged with four counts of both the state and federal levels, the
forgery and one charge of possession requirements of due process of law
of a forged instrument might be mean that plea bargains must be made
placed on the docket of five different voluntarily and with comprehension.
courts. Generally it is common prac- This means that the defendant must
tice in such multicourt districts to be admonished by the court of the
transfer all of a person’s indictments consequences of a guilty plea (for ex-
to the first court listed. This gives the ample, the defendant waives all oppor-
tunities to change his or her mind at a on the case, and because of personal
later date), that the accused must be interests or social pressures, the ac-
sane, and that, as one state puts it, “It cused may wish to avoid the length
must plainly appear that the defen- and publicity of a formal trial. Finally,
dant is uninfluenced by any consider- some penologists (professionals in the
ation of fear or by any persuasion, or field of punishment and rehabilita-
delusive hope of pardon prompting tion) argue that the first step toward
him to confess his guilt.” rehabilitation is for a criminal to
For the first two types of plea bar- admit guilt and to recognize his or
gains — reduction of charges and her problem.
deletion of tangent charges — some Plea bargaining also offers some
stricter standards govern the federal distinct advantages for the state and
courts. One is that the judge may not for society as a whole. The most
actually participate in the process of obvious is the certainty of conviction,
plea bargaining; at the state level because no matter how strong the
judges may play an active role in this evidence may appear, an acquittal is
process. Likewise, if a plea bargain has always a possibility as long as a trial is
been made between the U.S. attorney pending. Also, the district attorney’s
and the defendant, the government office and judges are saved an
may not renege on the agreement. If enormous amount of time and effort
the federal government does so, the by their not having to prepare
federal district judge must withdraw and preside over cases in which there
the guilty plea. Finally, the Federal is no real contention of innocence
Rules of Criminal Procedure require or that are not suited to the trial
that before a guilty plea may be ac- process. Finally, when police officers
cepted, the prosecution must present are not required to be in court testify-
a summary of the evidence against ing in criminal trials, they have more
the accused, and the judge must agree time to devote to preventing and
that there is strong evidence of the solving crimes.
defendant’s guilt. Plea bargains do have a negative
side as well. The most frequent objec-
Arguments For and Against Plea tion to plea bargaining is that the de-
Bargaining. For the defendant the fendant’s sentence may be based upon
obvious advantage of the bargain is nonpenological grounds. With the
that he or she is treated less harshly large volume of cases making plea bar-
than would be the case if the accused gaining the rule, the sentence often
were convicted and sentenced under bears no relation to the specific facts
maximum conditions. Also, the ab- of the case, to the correctional needs of
sence of a trial often lessens publicity the criminal, or to society’s legitimate
interest in vigorous prosecution of the clause. The defense may be at a disad-

case. A second defect is that if plea vantage because the rules of discovery
bargaining becomes the norm of a (the laws that allow the defense to
particular system, then undue pres- know in detail the evidence the prose-
sure may be placed upon even inno- cution will present) in some states
cent persons to plead guilty. Studies limit the defense counsel’s case prepa-
have shown that, in some jurisdic- ration to the period after the plea
tions, the less the chance for convic- bargain has occurred. Thus the plea
tion, the harder the bargaining may be bargain may deprive the accused of
because the prosecutor wants to get at basic constitutional rights.
least some form of minimal confes-
sion out of the accused. The Adversarial Process
A third disadvantage of plea bar- The adversarial model is based on the
gaining is the possibility of the abuse assumption that every case or contro-
called overcharging — the process versy has two sides to it: In criminal
whereby the prosecutor brings charges cases the government claims a defen-
against the accused more severe than dant is guilty while the defendant con-
the evidence warrants, with the hope tends innocence; in civil cases the
that this will strengthen his or her plaintiff asserts that the person he or
hand in subsequent negotiations with she is suing has caused some injury
the defense attorney. while the respondent denies responsi-
Another flaw with the plea bargain- bility. In the courtroom each party
ing system is its very low level of visi- provides his or her side of the story as
bility. Bargains between prosecutor he or she sees it. The theory (or hope)
and defense attorney are not made in underlying this model is that the truth
open court presided over by a neutral will emerge if each party is given un-
jurist and for all to observe. Instead, bridled opportunity to present the full
they are more likely made over a cup panoply of evidence, facts, and argu-
of coffee in a basement courthouse ments before a neutral and attentive
cafeteria where the conscience of the judge (and jury).
two lawyers is the primary guide. The lawyers representing each side
Finally, the system has the potential are the major players in this court-
to circumvent key procedural and room drama. The judge acts more as a
constitutional rules of evidence. Be- passive, disinterested referee whose
cause the prosecutor need not present primary role is to keep both sides
any evidence or witnesses in court, a within the accepted rules of legal pro-
bluff may result in a conviction even cedure and courtroom decorum. The
though the case might not be able to judge eventually determines which
pass the muster of the due process side has won in accordance with the
rules of evidence, but only after both limits, ultimately reaching 100 days,
sides have had a full opportunity to within which criminal charges must
present their case. either be brought to trial or dismissed.
Most states have similar measures on
PROCEDURES DURING A the statute books, although the precise
CRIMINAL TRIAL time period varies from one jurisdic-
ssuming that no plea bargain tion to another. By “public trial” the
A has been struck and the ac-

cused maintains his or her in-
nocence, a formal trial will take place.
Founders meant to discourage the no-
tion of secret proceedings whereby an
accused could be tried without public
This is a right guaranteed by the Sixth knowledge and whisked off to some
Amendment to all Americans charged unknown detention camp.
with federal crimes and a right guaran- The Sixth Amendment also guar-
teed by the various state constitutions antees Americans the right to an im-
— and by the Fourteenth Amendment partial jury. At the least this has meant
— to all persons charged with state that the prospective jurors must not be
offenses. The accused is provided prejudiced one way or the other before
many constitutional and statutory the trial begins. For example, a poten-
rights during the trial. The following tial juror may not be a friend or rela-
are the primary rights that are binding tive of the prosecutor or the crime
on both the federal and state courts. victim; nor may someone serve who
believes that anyone of the defendant’s
Basic Rights Guaranteed During race or ethnic ancestry is “probably the
the Trial Process criminal type.” What the concept of an
The Sixth Amendment says, “In all impartial jury of one’s peers has come
criminal prosecutions, the accused to mean in practice is that jurors are to
shall enjoy the right to a speedy and be selected randomly from the voter
public trial.” The Founders empha- registration lists — supplemented in
sized the word speedy so that an ac- an increasing number of jurisdictions
cused would not languish in prison for by lists based on automobile registra-
a long time prior to the trial or have tions, driver’s licenses, telephone
the determination of his or her fate books, welfare rolls, and so on. Al-
put off for an unduly long period of though this system does not provide
time. But how soon is speedy? Al- a perfect cross-section of the commu-
though this word has been defined in nity, because not all persons are regis-
various ways by the Supreme Court, tered to vote, the Supreme Court has
Congress gave new meaning to the said that this method is good enough.
term when it passed the Speedy Trial The High Court has also ruled that
Act of 1974. The act mandated time no class of persons (such as African
Americans or women) may be system- erally chartered bank in New Jersey

atically excluded from jury service. runs afoul of both federal and state
Besides being guaranteed the right law. That person could be legally tried
to be tried in the same locale where the and acquitted for that offense in a New
crime was committed and to be in- Jersey court and subsequently be tried
formed of the charges, defendants for that same action in federal court.
have the right to be confronted with Another important right guaran-
the witnesses against them. They have teed to the accused at both the state
the right to know who their accusers and federal levels is not to “be com-
are and what they are charging so that pelled in any criminal case to be a wit-
a proper defense may be formulated. ness against himself.” This has been
The accused is also guaranteed the interpreted to mean that the fact that
opportunity “to have the Assistance of someone elects not to testify on his or
Counsel for his defense.” Prior to the her own behalf in court may not be
1960s this meant that one had this used against the person by judge and
right (at the state level) only for jury. This guarantee serves to reinforce
serious crimes and only if one could the principle that under the U.S. judi-
pay for an attorney. However, because cial system the burden of proof is on
of a series of Supreme Court deci- the state; the accused is presumed in-
sions, the law of the land guarantees nocent until the government proves
one an attorney if tried for any crime otherwise beyond a reasonable doubt.
that may result in a prison term, and Finally, the Supreme Court has in-
the government must pay for the legal terpreted the guarantee of due process
defense for an indigent defendant. of law to mean that evidence procured
This is the rule at both the national in an illegal search and seizure may not
and state levels. be used against the accused at trial.
The Fifth Amendment to the U.S. The source of this so-called exclusion-
Constitution declares that no person ary rule is the Fourth Amendment to
shall “be subject for the same offence the U.S. Constitution; the Supreme
to be twice put in jeopardy of life and Court has made its strictures binding
limb.” This is the double jeopardy on the states as well. The Court’s pur-
clause and means that no one may be pose was to eliminate any incentive the
tried twice for the same crime by any police might have to illegally obtain
state government or by the federal evidence against the accused.
government. It does not mean, however,
that a person may not be tried twice Selection of Jurors
for the same action if that action has If the accused elects not to have a
violated both national and state laws. bench trial — that is, not to be tried
For example, someone who robs a fed- and sentenced by a judge alone — his
or her fate will be determined by a The second goal that the opposing
jury. At the federal level 12 persons attorneys have in questioning pros-
must render a unanimous verdict. At pective jurors is to eliminate those
the state level such criteria apply only who they believe would be unfavor-
to the most serious offenses. In many able to their side even though no overt
states a jury may consist of fewer than reason is apparent for the potential
12 persons and render verdicts by bias. Each side is allowed a number of
other than unanimous decisions. peremptory challenges — requests to
A group of potential jurors is sum- the court to exclude a prospective
moned to appear in court. They are juror with no reason given. Most states
questioned in open court about their customarily give the defense more
general qualifications for jury service peremptory challenges than the prose-
in a process known as “voir dire” cution. At the federal level one to three
(from Old French, meaning “to say the challenges per jury are usually permit-
truth”). The prosecutor and the de- ted each side, depending on the nature
fense attorney ask general and specific of the offense; as many as 20 are al-
questions of the potential jurors. Are lowed in capital cases. The use of
they citizens of the state? Can they peremptory challenges is more of an
comprehend the English language? art than a science and is usually based
Have they or anyone in their family on the hunch of the attorneys.
ever been tried for a criminal offense? In the past attorneys were able to
Have they read about or formed any exclude potential jurors via the
opinions about the case at hand? peremptory challenge for virtually any
In conducting the voir dire, the state reason whatsoever. However, in recent
and the defense have two goals. The years the Supreme Court has inter-
first is to eliminate all members of the preted the Fourteenth Amendment’s
panel who have an obvious reason why equal protection clause to restrict this
they might not render an impartial de- discretion by prohibiting prosecutors
cision in the case. Common examples from using their challenges to exclude
might be someone who is excluded by African Americans or women from
law from serving on a jury, a juror who serving on a criminal jury.
is a friend or relative of a participant in The process of questioning and
the trial, and someone who openly ad- challenging prospective jurors contin-
mits a strong bias in the case at hand. ues until all those duly challenged for
Objections to jurors in this category are cause are eliminated, the peremptory
known as challenges for cause, and the challenges are either used up or
number of such challenges is unlimit- waived, and a jury of 12 (six in some
ed. It is the judge who determines states) has been created. In some states
whether these challenges are valid. alternate jurors are also chosen. They
attend the trial but participate in de- witnesses. The physical evidence may
liberations only if one of the original include things such as bullets, ballistics
jurors is unable to continue in the pro- tests, fingerprints, handwriting sam-
ceedings. Once the panel has been se- ples, blood and urine tests, and other
lected, they are sworn in by the judge documents or items that serve as phys-
or the clerk of the court. ical aids. The defense may object to the
admission of any of these tangible
Opening Statements items and will, if successful, have the
After the formal trial begins, both the item excluded from consideration. If
prosecution and the defense make an defense challenges are unsuccessful,
opening statement (although in no the physical evidence is labeled by one
state is the defense compelled to do of the courtroom personnel and be-
so). Long and detailed statements are comes part of the official record.
more likely to be made in jury trials Most evidence at criminal trials
than in bench trials. The purpose of takes the form of testimony of wit-
opening statements is to provide nesses. The format is a question-and-
members of the jury — who lack answer procedure whose purpose is to
familiarity with the law and with elicit very specific information in an
procedures of criminal investigation orderly fashion. The goal is to present
— with an outline of the major objec- only evidence that is relevant to the
tives of each side’s case, the evidence immediate case at hand and not to
that is to be presented, the witnesses give confusing or irrelevant informa-
that are to be called, and what each tion or illegal evidence that might
side seeks to prove. If the opening result in a mistrial (for example,
statements are well presented, the ju- evidence that the accused had a prior
rors will find it easier to grasp the conviction for an identical offense).
meaning and significance of the After each witness the defense at-
evidence and testimony. The usual torney has the right to cross-examine.
procedure is for the state to make its The goal of the defense will be to im-
opening statement first and for the de- peach the testimony of the prosecu-
fense to follow with a statement about tion witness — that is, to discredit it.
how it will refute that case. The attorney may attempt to confuse,
fluster, or anger the witness, causing
The Prosecution’s Case him or her to lose self-control and
After the opening statements the pros- begin providing confusing or conflict-
ecutor presents the evidence amassed ing testimony. A prosecution witness’
by the state against the accused. Evi- testimony may also be impeached if
dence is generally of two types — defense witnesses who contradict the
physical evidence and the testimony of version of events suggested by the state
are subsequently presented. Upon cused faces the same risks of cross-
completion of the cross-examination, examination as any other witness.)
the prosecutor may conduct a redirect After the defense has rested its case,
examination, which serves to clarify or the prosecution has the right to
correct some telling point made dur- present rebuttal evidence. In turn, the
ing the cross-examination. After the defense may offer a rejoinder known
state has presented all its evidence and as a surrebuttal. After that, each side
witnesses, it rests its case. delivers closing arguments. Often-
times this is one of the more dramatic
The Case for the Defense episodes in the trial because each side
The presentation of the case for the seeks to sum up its case, condense its
defense is similar in style and format strongest arguments, and make one
to that of the prosecution. Tangible ev- last appeal to the jury. New evidence
idence is less common in the defense’s may not be presented at this stage, and
case, and most of the evidence will be the arguments of both sides tend to
that of witnesses who are prepared to ring with emotion and appeals to val-
rebut or contradict the prosecution’s ues that transcend the immediate case.
arguments. The witnesses are ques- The prosecutor may talk about the
tioned by the defense attorney in the crime problem in general, about the
same style as those in the prosecution need for law and order, and about the
case. Each defense witness may in turn need not to let compassion for the ac-
be cross-examined by the district at- cused get in the way of empathy for
torney, and then a redirect examina- the crime victim. The defense attor-
tion is in order. ney, on the other hand, may remind
The difference between the case for the jurors “how we have all made mis-
the prosecution and the case for the takes in this life” or argue that in a free,
defense lies in their obligation before democratic society any doubt they
the law. The defense is not required by have should be resolved in favor of the
law to present any new or additional accused. The prosecution probably
evidence or any witnesses at all. The avoids emotionalism more than the
defense may consist merely of chal- defense attorney, however, because
lenging the credibility or the legality of many jury verdicts have been reversed
the state’s evidence and witnesses. The on appeal after the district attorney in-
defense is not obligated to prove the jected prejudicial statements into the
innocence of the accused; it need show closing statements.
only that the state’s case is not beyond
a reasonable doubt. The defendant Role of the Judge During the Trial
need not even take the stand. (Howev- The judge’s role in the trial, although
er, if he or she elects to do so, the ac- very important, is a relatively passive
Prosecutors and police display a seizure of more than $45 million worth of heroin and
cocaine. Illegal drug traffic belongs under either one of two categories of crime:
organized crime and consensual crime, also known as victimless crime, because both
the perpetrator and the client desire the forbidden activity.
Witnesses and physical evidence form the

principal elements of the prosecution’s case in
most trials. Left: Tampa Police Department
investigators take fingerprint samples in an
attempt to trace an accused terrorist. Above:
An expert witness points to a chart of the
parking lot where an alleged crime took place.
one. He or she does not present any are about equally strong or on a
evidence or take an active part in the point of law that is open to a variety
examination of the witnesses. The of interpretations.
judge is called upon to rule on the
many motions of the prosecutor and Role of the Jury During the Trial
of the defense attorney regarding the The jurors’ role during the trial is pas-
types of evidence that may be present- sive. Their job is to listen attentively to
ed and the kinds of questions that the cases presented by the opposing
may be asked of the witnesses. In attorneys and then come to a decision
some jurisdictions the judge is per- based solely on the evidence that is set
mitted to ask substantive questions of forth. They are ordinarily not permit-
the witnesses and also to comment to ted to ask questions either of the wit-
the jury about the credibility of the nesses or of the judge, nor are they
evidence that is presented; in other allowed to take notes of the proceed-
states the judge is constrained from ings. This is not because of constitu-
such activity. Still, the American legal tional or statutory prohibitions but
tradition has room for a variety of primarily because it has been the tra-
judicial styles that depend on the per- ditional practice of courts in America.
sonality, training, and wisdom of indi- In recent years, however, many
vidual judges. judges have allowed jurors to become
First and foremost, the judge is ex- more involved in the judicial arena.
pected to play the part of a disinterest- Chicago’s Chief U.S. District Court
ed party whose primary job is to see to Judge John F. Grady has for over a
it that both sides are allowed to decade permitted jurors in his court-
present their cases as fully as possible room to take notes. At least four U.S.
within the confines of the law. If appellate courts have given tacit ap-
judges depart from the appearance or proval to the practice of juror partici-
practice of being fair and neutral par- pation in questioning witnesses, as
ties, they run counter to fundamental long as jurors are not permitted to
tenets of American jurisprudence and blurt out queries in the midst of trial
risk having their decisions overturned and attorneys are given a chance to
by an appellate court. object to specific questions before
Although judges do for the most they are posed to witnesses. In some
part play such a role, the backgrounds states a few trial judges have allowed
and values of the jurists also affect jurors to take fairly active roles in the
their decisions in the close calls — trial. Still, at both state and federal lev-
when they are called upon to rule on els the role of the jury remains basi-
a motion for which the arguments cally passive.
Instructions to the Jury if there are more than one, who must
Although the jury’s job is to weigh and sign the official documents that ex-
assess the facts of the case, the judge press the verdict of the jury. After
must instruct the jurors about the the instructions are read to the jury
meaning of the law and how the law is (and the attorneys for each side have
to be applied. Because many cases are been given an opportunity to offer
overturned on appeal as a result of objections), the jurors retreat into a
faulty jury instructions, judges tend to deliberation room to decide the fate
take great care that the wording be of the accused.
technically and legally correct.
All jury instructions must have The Jury’s Decision
some basic elements. One is to define The jury deliberates in complete
for the jurors the crime with which privacy; no outsiders observe or par-
the accused is charged. This may in- ticipate in its debate. During their
volve giving the jurors a variety of op- deliberation jurors may request the
tions about what kind of verdict to clarification of legal questions from
bring. For example, if one person has the judge, and they may look at items
taken the life of another, the state may of evidence or selected segments of the
be trying the accused for first-degree case transcript, but they may consult
murder. Nevertheless, the judge may nothing else — no law dictionaries, no
be obliged to acquaint the jury with legal writings, no opinions from ex-
the legal definition of second-degree perts. When it has reached a decision
murder or manslaughter if it should by a vote of its members, the jury re-
determine that the defendant was the turns to the courtroom to announce
killer but did not act with malice its verdict. If it has not reached a deci-
aforethought. sion by nightfall, the jurors are sent
The judge must also remind the home with firm instructions neither
jury that the burden of proof is on the to discuss the case with others nor
state and that the accused is presumed read about the case in the newspapers.
to be innocent. If, after considering In very important or notorious cases,
all the evidence, the jury still has a the jury may be sequestered by the
reasonable doubt as to the guilt of judge, which means that its members
the accused, it must bring in a not will spend the night in a local hotel
guilty verdict. away from the public eye.
Finally, the judge usually acquaints If the jury becomes deadlocked
the jurors with a variety of procedural and cannot reach a verdict, it may re-
matters: how to contact the judge if port that fact to the judge. In such an
they have questions, the order in event the judge may insist that the
which they must consider the charges jury continue its effort to reach a ver-
Defendants in the
photos to the left and
above are shown
awaiting the jury’s
verdict and listening
to the judge’s
announcement of the
verdict. Once the verdict
is reached, the judge
has several weeks to
determine the penalty,
based on the principle
that the punishment
should fit the crime.
Bottom left, a prisoner
is led back to his cell.
dict. Or, if the judge is convinced that that is, that each juror be asked indi-
the jury is in fact hopelessly dead- vidually if the general verdict actually
locked, he or she may dismiss the jury reflects his or her own opinion. The
and call for a new trial. purpose is to determine whether each
Research studies indicate that most juror supports the overall verdict or
juries dealing with criminal cases whether he or she is just caving in to
make their decisions fairly quickly. Al- group pressure. If the polling proce-
most all juries take a vote soon after dure reveals that the jury is indeed not
they retire to their chambers in order of one mind, it may be sent back to the
to see how divided, or united, they are. jury room to continue deliberations;
In 30 percent of the cases it takes only in some jurisdictions a mistrial may
one vote to reach a unanimous deci- be declared. If a mistrial is declared,
sion. In 90 percent of the remainder, the case may be tried again before
the majority on the first ballot eventu- another jury. There is no double jeop-
ally wins out. Hung juries — those in ardy because the original jury did not
which no verdict can be reached — agree on a verdict. If the jury’s verdict
tend to occur only when a large mi- is not guilty, the defendant is dis-
nority existed on the first ballot. charged on the spot and is free to leave
Scholars have also learned that ju- the courtroom.
ries often reach the same verdict that
the judge would have, had he or she PROCEDURES AFTER A
been solely responsible for the deci- CRIMINAL TRIAL
sion. One large jury study asked judges t the close of the criminal trial,
to state how they would have decided
jury cases over which they presided.
The judge and jury agreed in 81 per-
A generally two stages remain
for the defendant if he or she
has been found guilty: sentencing and
cent of the criminal cases (about the an appeal.
same as in civil cases). In 19 percent of
the criminal cases the judge and jury Sentencing
disagreed, with the judge showing a Sentencing is the court’s formal pro-
marked tendency to convict where the nouncement of judgment upon the
juries had acquitted. defendant at which time the punish-
When the members of the jury do ment or penalty is set forth.
finally reach a decision, they return to At the federal level and in most
the courtroom and their verdict is an- states, sentences are imposed by the
nounced in open court, often by the judge only. However, in several states
jury foreman. At this time either the the defendant may elect to be sen-
prosecutor or the defense attorney tenced by either a judge or a jury, and
often asks that the jury be polled — in capital cases states generally require
that no death sentence shall be im- tence shall be. Judges are presented
posed unless it is the determination of with a variety of alternatives and a
12 unanimous jurors. In some states range of sentences when it comes to
after a jury finds someone guilty, the punishment for the criminal. Many of
jury deliberates a second time to de- these alternatives involve the concept
termine the sentence. In several states of rehabilitation and call for the assis-
a new jury is empaneled expressly for tance of professionals in the fields of
sentencing. At this time the rules of criminology and social science.
evidence are more relaxed, and the The lightest punishment that a
jury may be permitted to hear evi- judge can hand down is that of proba-
dence that was excluded during the action. This is often the penalty if the
tual trial (for example, the previous crime is regarded as minor or if the
criminal record of the accused). judge believes that the guilty person is
After the judge pronounces the not likely to engage in additional
sentence, several weeks customarily criminal activity. If a probated sen-
elapse between the time the defendant tence is handed down, the criminal
is found guilty and the time when the may not spend any time in prison as
penalty is imposed. This interval per- long as the conditions of the proba-
mits the judge to hear and consider tion are maintained. Such conditions
any posttrial motions that the defense might include staying away from con-
attorney might make (such as a mo- victed criminals, not committing
tion for a new trial) and to allow a other crimes, or with increasing fre-
probation officer to conduct a presen- quency, performing some type of
tence investigation. The probation community service. If a criminal
officer is a professional with a back- serves out his or her probation with-
ground in criminology, psychology, out incident, the criminal record is
or social work, who makes a recom- usually wiped clean and in the eyes of
mendation to the judge about the the law it is as if no crime had ever
length of the sentence to be imposed. been committed.
The probation officer customarily If the judge is not disposed toward
examines factors such as the back- probation and feels that jail time is in
ground of the criminal, the serious- order, he or she must impose a prison
ness of the crime committed, and the sentence that is within a range pre-
likelihood that the criminal will con- scribed by law. The reason for a range
tinue to engage in illegal activity. of years instead of an automatically as-
Judges are not required to follow the signed number is that the law recog-
probation officer’s recommendation, nizes that not all crimes and criminals
but it is still a major factor in the are alike and that in principle the pun-
judge’s calculus as to what the sen- ishment should fit the crime.
In an effort to eliminate gross not necessarily have the final say on

disparities in sentencing, the federal the matter. Whenever a prison term is
government and many states have at- set by the judge, it is still subject to the
tempted to develop sets of precise parole laws of the federal government
guidelines to create greater consisten- and of the states. Thus parole boards
cy among judges. At the national level (and sometimes the president and
this effort was manifested by the en- governors who may grant pardons or
actment of the Sentencing Reform Act commute sentences) have the final say
of 1987, which established guidelines about how long an inmate actually
to structure the sentencing process. stays in prison.
Congress provided that judges may
depart from the guidelines only if they An Appeal
find an aggravating or mitigating cir- At both the state and federal levels
cumstance that the commission did everyone has the right to at least one
not adequately consider. Although the appeal upon conviction of a felony,
congressional guidelines do not speci- but in reality few criminals avail them-
fy the kinds of factors that could con- selves of this privilege. An appeal is
stitute grounds for departure from the based on the contention that an error
sentencing guidelines, Congress did of law was made during the trial
state that such grounds could not in- process. Such an error must be re-
clude race, gender, national origin, versible as opposed to harmless. An
creed, religion, socioeconomic status, error is considered harmless if its
drug dependence, or alcohol abuse. occurrence had no effect on the out-
The states, too, have a variety of come of the trial. A reversible error,
programs for avoiding vast disparities however, is a serious one that might
in judges’ sentences. By 1995, 22 states have affected the verdict of the judge
had created commissions to establish or jury. For example, a successful
sentencing guidelines for their judges, appeal might be based on the argu-
and as of late 1997 such guidelines ment that evidence was improperly
were in effect in 17 states. Likewise, al- admitted at trial, that the judge’s
most all of the states have now enact- instructions to the jury were flawed,
ed mandatory sentencing laws that or that a guilty plea was not voluntar-
require an automatic, specific sentence ily made. However, appeals must be
upon conviction of certain crimes — based on questions of procedure and
particularly violent crimes, crimes in legal interpretations, not on factual
which a gun was used, or crimes per- determinations of the defendant’s
petrated by habitual offenders. guilt or innocence as such. Further-
Despite the enormous impact that more, under most circumstances one
judges have on the sentence, they do cannot appeal the length of one’s sen-
tence in the United States (as long as it that are reversed on technicalities.
was in the range prescribed by law). Surely this does happen, and one
Criminal defendants do have some might argue that this is inevitable in
degree of success on appeal about 20 a democratic country whose legal
percent of the time, but this does not system is based on fair play and the
mean that the defendant goes free. presumption of the innocence of the
The usual practice is for the appellate accused. However, about 90 percent
court to remand the case (send it back of all defendants plead guilty, and
down) to the lower court for a new this plea virtually excludes the possi-
trial. At that point the prosecution bility of an appeal. Of the remaining
must determine whether the proce- group, two-thirds are found guilty at
dural errors in the original trial can be trial, and only a small percentage of
overcome in a second trial and these appeal. Of those who do appeal,
whether it is worth the time and effort only about 20 percent have any
to do so. A second trial is not consid- measurable degree of success. Of
ered to be double jeopardy, since the those whose convictions are reversed,
defendant has chosen to appeal the many are found guilty at a subsequent
original conviction. trial. Thus the number of persons
The media and others concerned convicted of crimes who are subse-
with the law often call attention to ap- quently freed because of reversible
pellate courts that turn loose seeming- court errors is a small fraction of
ly guilty criminals and to convictions 1 percent.
C H A P T E R
6THE
CIVIL
COURT
PROCESS
Multnomah (Oregon) County

Circuit Judge Roosevelt Robinson
polls the jury about the verdict in a
civil law case involving tort law,
specifically, a suit brought against
a corporation for defective
products.
Civil actions are separate and distinct and a civil suit. Suppose that “Joe” and
from criminal proceedings. This chap- “Pete,” two political scientists attend-
ter focuses on civil courts: how civil ing a convention in Atlanta, are shar-
law differs from criminal law, the most ing a taxi from the airport to their
important categories of civil law, alter- downtown hotel. During the ride they
natives to trials, and a step-by-step become involved in a heated political
look at the civil trial process. discussion. By the time the taxi stops
at their hotel, the discussion has
THE NATURE AND become so heated that they get into a
SUBSTANCE OF CIVIL LAW physical confrontation. If Pete strikes
he American legal system ob-
T
Joe in the ribs with his briefcase as
serves several important dis- he gets out of the taxi, Pete may
tinctions between criminal and be charged with criminal assault. In
civil law. Criminal law is concerned addition, Joe might file a civil suit
with conduct that is offensive to socie- against Pete in an effort to obtain a
ty as a whole. Civil law pertains prima- monetary award sufficient to cover his
rily to the duties of private citizens to medical expenses.
each other. In civil cases the disputes Civil cases far outnumber criminal
are usually between private individu- cases in both the federal and state
als, although the government may courts, although they generally do not
sometimes be a party in a civil suit. attract the same media attention as
Criminal cases always involve govern- criminal trials. Still, they often raise
ment prosecution of an individual for important policy questions and cover
an alleged offense against society. a broad range of disagreements in so-
In a civil case the court attempts to ciety. Judicial scholar Herbert Jacob
settle a particular dispute between the summarizes the breadth of the civil
parties by determining their legal law field in Justice in America: “Every
rights. The court then decides upon an broken agreement, every sale that
appropriate remedy, such as awarding leaves a dissatisfied customer, every
monetary damages to the injured uncollected debt, every dispute with a
party or issuing an order that directs government agency, every libel and
one party to perform or refrain from a slander, every accidental injury, every
specific act. In a criminal case the marital breakup, and every death may
court decides whether the defendant is give rise to a civil proceeding.”
innocent or guilty. A guilty defendant Thus, virtually any dispute between
may be punished by a fine, imprison- two or more persons may provide the
ment, or both. basis for a civil suit. The number of
In some instances the same act may suits is huge, but most of them fall
give rise to both a criminal proceeding into one of five basic categories.
CHAPTER 6: THE CIVIL COURT PROCESS 121
THE MAIN CATEGORIES OF services or goods. For example, as-

CIVIL LAW sume that “Mr. Burns” and “Ms. Cold-
he five main categories of civil er” enter into an agreement whereby
T law are contract law, tort law,

property law, the law of succes-
sion, and family law.
Colder agrees to pay Burns $125 if he
will cut and deliver a cord of oak fire-
wood to her home on December 10. If
Burns does not deliver the wood on
Contract Law that date, he has breached the contract
Contract law is primarily concerned and Colder may sue him for damages.
with voluntary agreements between Although many contracts are rela-
two or more people. Some common tively simple and straightforward,
examples include agreements to per- some complex fields also build on
form a certain type of work, to buy or contract law or contract ideas. One
sell goods, and to construct or repair such field is commercial law, which fo-
homes or businesses. Basic to these cuses primarily on sales involving
agreements are a promise by one party credit or the installment plan. Com-
and a counter promise by the other mercial law also deals with checks,
party, usually a promise by one party promissory notes, and other nego-
to pay money for the other party’s tiable financial instruments.
Bankruptcy and creditors’ rights are important areas in contract law. Above, a jet belonging to
American Airlines, which in 2003 narrowly averted a bankruptcy filing.
Another closely related field is Perhaps one reason for the growth
bankruptcy and creditors’ rights. in product liability cases is a change in
Bankrupt individuals or businesses the standard of proof. Traditionally,
may go through a process that essen- negligence (generally defined as care-
tially wipes the slate clean and allows lessness or the failure to use ordinary
the person filing for bankruptcy to care, under the particular circum-
begin again. The bankruptcy process stances revealed in the lawsuit) must
is also designed to ensure fairness to be proven before one person is able to
creditors. Bankruptcy law has been a collect damages for injuries caused by
major concern of legislators for someone else. However, some have ar-
several years, and a large number of gued that for many years reliance on
special bankruptcy judges are now at- the negligence concept has been de-
tached to the U.S. district courts. clining, especially in product liability
The final area is the insurance con- cases. In its place, the courts often use
tract, which is important because of a strict liability standard, which means
its applicability to so many people. that a victim can recover even if there
The insurance industry is regulated by was no negligence and even if the
government agencies and subject to its manufacturer was careful.
own distinct rules. Another reason commonly sug-
gested for the growth in the number
Tort Law of product liability cases is the size of
Tort law may generally be described jury awards when the decision favors
as the law of civil wrongs. It concerns the plaintiff. Jury awards for damages
conduct that causes injury and fails may be of two types: compensatory
to measure up to some standard set and punitive. Compensatory damages
by society. are intended to cover the plaintiff ’s
Actions for personal injury or actual loss, such as repair costs, doctor
bodily injury claims are at the heart bills, and hospital expenses. Punitive
of tort law, and automobile accidents (or exemplary) damages are designed,
have traditionally been responsible instead, to punish the defendant or
for a large number of these claims. serve as a warning against such behav-
One of the most rapidly growing ior in the future.
subfields of tort law is product lia- As a result of concern over large
bility. This category has become an jury awards and the increasing num-
increasingly effective way to hold ber of so-called frivolous cases,
corporations accountable for injuries government officials, corporate execu-
caused by defective foods, toys, appli- tives, interest groups, and members of
ances, automobiles, drugs, or a host of the legal community have called for
other products. legislation aimed at tort reform.
Throughout the 1990s a number of of professionals, including doctors, is

states enacted a variety of tort reform reasonable in nature. This means that
measures. The American Tort Reform to prevail against the doctor in court,
Association, which serves as an advo- the injured patient needs at least the
cate of tort reform, reports that states testimony of one or more expert wit-
have limited awards for noneconomic nesses stating that the doctor’s con-
damages, modified their laws govern- duct was not reasonable.
ing punitive damages, or enacted
statutes penalizing plaintiffs who file Property Law
frivolous lawsuits. A distinction has traditionally been
Another rapidly growing subfield made between real property and per-
of tort law is medical malpractice. The sonal property. The former normally
number of medical malpractice claims refers to real estate — land, houses,
has increased even as great advances and buildings — and has also includ-
have been made in medicine. Two oned growing crops. Almost everything
going problems in contemporary else is considered personal property,
medicine are the increased risk im- including such things as money,
posed by new treatments and the im- jewelry, automobiles, furniture, and
personal character of specialists and bank deposits.
hospitals. Patients today have high ex- According to Lawrence M. Fried-
pectations, and when a doctor fails man in American Law, “As far as the
them, their anger may lead to a mal- law is concerned, the word property
practice suit. means primarily real property; per-
Courts generally use the tradition- sonal property is of minor impor-
al negligence standard rather than the tance.” No single special field of law is
strict liability doctrine in resolving devoted to personal property. Instead,
medical malpractice suits. This means personal property is generally consid-
that the law does not attempt to make ered under the rubric of contract law,
doctors guarantee successful treat- commercial law, and bankruptcy law.
ment, but instead tries to make the Property rights have always been
doctor liable if the patient can prove important in the United States, but
that the physician failed to perform in today property rights are more com-
a manner consistent with accepted plex than mere ownership of some-
methods of medical practice. The nothing. The notion of property now
tion of acceptable practice varies from includes, among several other things,
state to state, and such questions must the right to use that property.
be resolved by the courts on a case-by- One important branch of property
case basis. However, customarily a law today deals with land use controls.
presumption is made that the conduct The most common type of land use
Product liability is one of the most rapidly growing subfields of tort law, with many
manufacturers increasingly being held liable even when they were careful. Above, product
liability attorney Ralph G. Patino displays a tire that his client claimed separated from its casing
and caused a serious accident — one of many claims that led the Firestone Company to recall
millions of its tires in 2000.
Property law — the right to use and the right to acquire property — was the principal question
behind the Federal Communications Commission’s 2003 review of whether to ease
regulations on media ownership for corporations.
restriction is zoning, a practice where- drawn it up), then the person has died
by local laws divide a municipality intestate, and the state must dispose of
into districts designated for different the property.
uses. For instance, one neighborhood The state’s disposition of the prop-
may be designated as residential, an- erty is carried out according to the
other as commercial, and yet another fixed scheme set forth in the state
as industrial. statutes. By law, intestate property
Early zoning laws were challenged passes to the deceased person’s heirs
on the ground that restrictions on — that is, to his or her nearest
land use amounted to a taking of the relatives. Occasionally a person who
land by the city in violation of the dies intestate has no living relatives.
Constitution, which says, “Nor shall In that situation the property escheats,
private property be taken for public or passes, to the state in which the
use without just compensation.” In a deceased resided. State statutes often
sense, zoning laws do take from the prohibit the more remote relatives,
owners of land the right to use their such as second cousins and great un-
property in any way they see fit. cles and aunts, from inheriting.
Nonetheless, courts have generally Increasingly, Americans are prepar-
ruled that zoning laws are not regarding wills to ensure that their property
ed as a taking in violation of the Con- is disposed of according to their
stitution. Today, zoning is a fact of life wishes, not according to a scheme
in cities and towns of all sizes determined by the state. A will is a
throughout the United States. City formal document. It must be very
planners and other city officials recog- carefully drafted, and in most states
nize zoning ordinances as necessary to it must be witnessed by at least
the planned and orderly growth of two persons.
urban areas.
Family Law
The Law of Succession Family law concerns such matters as
The law of succession considers how marriage, divorce, child custody, and
property is passed along from one children’s rights. It clearly touches the
generation to another. The American lives of a great number of Americans
legal system recognizes a person’s right each year.
to dispose of his or her property as he The conditions necessary for enter-
or she wishes. One common way to do ing into a marriage are spelled out by
this is to execute a will. If a person state law. These laws traditionally
leaves behind a valid will, the courts cover the minimum age of the parties,
will enforce it. However, if someone required blood tests or physical
leaves no will (or has improperly examinations, mental conditions of
the parties, license and fee require- ward no-fault divorce. This trend was
ments, and waiting periods. the result of two factors. First, for
The termination of a marriage many years there was an increasing de-
was once very rare. In the early 19th mand for divorces. Second, the stigma
century some states granted divorces once attached to divorced persons all
only through special acts of the legis- but disappeared.
lature; one state, South Carolina, The no-fault divorce system means
simply did not allow divorce. In the that the parties simply explain that ir-
other states divorces were granted reconcilable differences exist between
only when one party proved some them and that the marriage is no
grounds for divorce. In other words, longer viable. The no-fault divorce
divorces were available only to inno- system has put an end to the adversar-
cent parties whose spouses were guilty ial nature of divorce proceedings.
of such things as adultery, desertion, Not so easily solved are some of
or cruelty. the other problems that may result
The 20th century saw an enormous from an ended marriage. Child
change in divorce laws. The movement custody battles, disputes over child
was away from restrictive laws and to- support payments, and disagreements
Two children await the results of a custody decision by the Manhattan Family Court. Custody
disputes have become more common as a result of no-fault divorce, and courts increasingly
have to decide which parent will get custody.
over visitation rights find their way Alternative Dispute Resolution

into court on a regular basis. Custody In practice few persons make use of
disputes are probably more common the entire judicial process. Instead,
and more contentious today than most cases are settled without resort
before no-fault divorce. The child’s to a full-fledged trial. In civil cases,
needs come first, and courts no longer a trial may be both slow and expen-
automatically assume that this means sive. In many areas the backlogs are
granting custody to the mother. so enormous that it takes three to
Fathers are increasingly being granted five years for a case to come to trial.
custody, and it is also now common In addition, civil trials may be exceed-
for courts to grant joint custody to the ingly complex.
divorced parents. Often, the expense of a trial is
enough to discourage potential plain-
THE COURTS AND OTHER tiffs. The possibility of losing always
INSTITUTIONS CONCERNED exists. The possibility of a long wait
WITH CIVIL LAW also always exists, even if a plaintiff
isagreements are common in wins, before the judgment is satisfied
D the daily lives of Americans.

Usually these disagreements
can be settled outside the legal system.
— that is, if it is ever completely satis-
fied. In other words, a trial may simply
create a new set of problems for the
Sometimes they are so serious, howev- parties concerned. For all these rea-
er, that one of the parties sees no al- sons, more and more discussion has
ternative but to file a lawsuit. been heard about alternative methods
of resolving disputes.
Deciding Whether to Go to Court From major corporations to attor-
Every year thousands of potential civil neys to individuals, support for alter-
cases are resolved without a trial be- native dispute resolution (ADR) has
cause the would-be litigants settle been growing. Corporate America is
their problems in another way or be- interested in avoiding prolonged and
cause the prospective plaintiff decides costly court battles as the only way to
not to file suit. When faced with a de- settle complex business disputes. In
cision to call upon the courts, to try to addition, attorneys are more frequent-
settle differences, or to simply forget ly considering alternatives such as me-
the problem, many people resort to a diation and arbitration where there is
simple cost-benefit analysis. That is, a need for faster resolution of cases or
they weigh the costs associated with a confidential treatment of certain mat-
trial against the benefits they are ters. And individual citizens are in-
likely to gain if they win. creasingly turning to local mediation
services for help in resolving family Mediation is especially appropriate

disputes, neighborhood quarrels, and for situations in which the disputants
consumer complaints. have an ongoing relationship, such as
Alternative dispute resolution disputes between family members,
processes are carried out under a neighbors, employers and employees,
variety of models. These models are and landlords and tenants. Mediation
commonly classified as “private, is also useful in divorce cases because
court-referred, and court-annexed, it changes the procedure from one of
but the latter two together often are confrontation to one of cooperation.
called court-connected,” writes Susan Child custody and visitation rights are
L. Keita in the Handbook of Court Ad- frequently resolved through media-
ministration and Management. In tion as well. And in many areas, per-
other words, some private ADR sonal injury and property claims
processes function independently of involving insurance companies are
the courts. A court-referred ADR settled through mediation.
process is one that operates outside
the court itself but still has some rela- Arbitration. The arbitration process
tionship to the court. The court is similar to going to court. After lis-
administers the ADR process in a tening to both parties in a dispute, an
court-annexed program. Depending impartial person called an arbitrator
on the model and the issue, “ADR decides how the controversy should be
processes may be voluntary or manda- resolved. There is no judge or jury. In-
tory; they may be binding or allow ap- stead, the arbitrator selected by both
peals from decisions rendered; and parties makes the final decision. Arbi-
they may be consensual, adjudicatory, trators are drawn from all different
or some hybrid of the two,” according types of professional backgrounds and
to Keita. Some commonly used ADR frequently volunteer their time to help
processes are mediation, arbitration, people resolve their problems.
neutral fact-finding, mini-trial, sum- Disputants choose arbitration be-
mary jury trial, and private judging. cause it saves time and money and is
more informal than a court hearing.
Mediation. Mediation is a private, Most arbitrations are completed in
confidential process in which an four months or less, as compared
impartial person helps the disputing with six months to several years for
parties identify and clarify issues of con- court decisions.
cern and reach their own agreement. Arbitration is used privately to
The mediator does not act as a judge. resolve a variety of consumer com-
Instead, the parties themselves maintain plaints. Examples include disputes
control of the final settlement. over poor automobile repairs, prob-
lems with the return of faulty trials are designed to help define the
merchandise, and overcharging for issues and develop a basis for realistic
services. Arbitration is also being used settlement negotiations. The rep-
in court-referred and court-annexed resentatives from the two sides present
processes to resolve several types of an overview of their positions and
disputes, including business, commer- arguments to the panel. As a result,
cial, and employment disputes. each party becomes more knowledge-
able about the other party’s position.
Neutral Fact-Finding. Neutral fact- Having heard each side’s presentation,
finding is an informal process whereby the panel, including the advisor, meets
an agreed-upon neutral party is asked to develop a compromise solution.
to investigate a dispute. Usually, the The neutral advisor may also issue an
dispute involves complex or technical advisory opinion regarding the merits
issues. The neutral third party ana- of the case. This advisory opinion is
lyzes the disputed facts and issues his nonbinding unless the parties have
or her findings in a nonbinding report agreed in writing beforehand to be
or recommendation. bound by it.
This process can be particularly The primary benefit of a mini-trial
useful in handling allegations of racial is that both parties have an opportuni-
or gender discrimination within a ty to develop solutions. It also means
company because such cases often that each has representation and ac-
provoke strong emotions and internal cess to detailed information.
dissension. If both parties are employ-
ees of the same company, conflicts of Summary Jury Trial. A summary
interest could interfere with a supervi- jury trial involves a court-managed
sor or manager’s ability to conduct an process that takes place after a case has
impartial investigation of alleged dis- been filed, but before it reaches trial.
crimination. To avoid the appearance In a summary jury trial each party
of unfairness, a company may turn to presents its arguments to a jury (nor-
a neutral third party in hopes of reach- mally six persons). An overview of
ing a settlement all the employees can each side’s argument as well as abbre-
respect. viated opening and closing arguments
are presented. Attorneys are typically
Mini-Trial. In a mini-trial each party given a short amount of time (an hour
presents its position in a trial-like or less) for their presentations. They
fashion before a panel that consists of are limited to the presentation of in-
selected representatives for both par- formation that would be admissible at
ties and neutral third parties. Every trial. No testimony is taken from
panel has one neutral advisor. Mini- sworn witnesses, and proceedings are
generally not recorded. Because the judges. A California appellate court,

proceedings are nonbinding, rules of for instance, has noted that some
procedure and evidence are more flex- sitting judges are leaving the bench
ible than in a normal trial. in order to earn more money as
The jury hands down an advisory, private judges.
nonbinding decision based on the
arguments presented. In this setting, Specialized Courts
the verdict is designed to give the The state court systems are frequently
attorneys and their clients insight characterized by a number of special-
into their cases. It may also suggest ized courts that are set up to handle
a basis for settlement of the dispute. specific types of civil cases. Domestic
If the dispute is not resolved during relations courts are often established
or immediately following the summa- to deal with such matters as divorce,
ry jury trial proceeding, a pretrial child custody, and child support. In
conference is held before the court to many jurisdictions, probate courts
discuss settlement. handle the settlement of estates and
One of the major advantages of a the contesting of wills.
summary jury trial is the time in- Perhaps the best known of the spe-
volved. A summary jury trial is typi- cialized courts are the small-claims
cally concluded in less than a day com- courts. These courts have jurisdiction
pared to several days or weeks for to handle cases when the money being
full-fledged trials. sued for is not above a certain
amount. The amount varies by juris-
Private Judging. This method of al- diction but the maximum is usually
ternative dispute resolution makes use $500 or $1,000. Small-claims courts
of retired judges who offer their serv- allow less complex cases to be resolved
ices for a fee. Advocates claim that more informally than in most other
there are several advantages. First, the trial courts. Filing fees are low, and the
parties are able to select a person with use of attorneys is often discouraged,
the right qualifications and experience making small-claims court affordable
to handle the matter. Second, the par- for the average person.
ties can be assured that the matter will
be handled when first scheduled and Administrative Bodies
not be continued because the court’s A number of government agencies
calendar is too crowded. Finally, the have also established administrative
cost can be less than that incurred bodies with quasi-judicial authority to
in full litigation. Critics of private handle certain types of cases. At the
judging, however, are concerned by federal level, for example, agencies
the high fees charged by some retired such as the Federal Trade Commission
and the Federal Communications between the parties and thus no actu-
Commission carry out an adjudica- al case for the court to decide.
tion of sorts within their respective A second major difference is that
spheres of authority. An appeal of the the standard of proof used in civil
ruling of one of these agencies may be cases is a preponderance of the
taken to a federal court of appeals. evidence, not the more stringent
At the state level, a common exam- beyond-a-reasonable-doubt standard
ple of an administrative body that aids used in criminal cases. A preponder-
in the resolution of civil claims is a ance of the evidence is generally
workers’ compensation board. This taken to mean that there is sufficient
board determines whether an em- evidence to overcome doubt or specu-
ployee’s injury is job-related and thus lation. It clearly means that less
whether the person is entitled to proof is required in civil cases than
workers’ compensation payments. in criminal cases.
Many state motor vehicle departments A third major difference is that
have hearing boards to make determi- many of the extensive due process
nations about revoking driver’s licens- guarantees that a defendant has in a
es. Another type of administrative criminal trial do not apply in a civil
board commonly found in the states proceeding. For example, neither
rules on civil rights matters and cases party is constitutionally entitled to
of alleged discrimination. counsel. The Seventh Amendment
does guarantee the right to a jury trial
THE CIVIL TRIAL PROCESS in lawsuits “where the value in contro-
number of disputes are re- versy shall exceed $20.” Although this
A solved through some method

of alternative dispute resolu-
tion, in a specialized court, or by an
amendment has not been made
applicable to the states, most states
have similar constitutional guarantees.
administrative body. However, a large
number of cases each year still manage Filing a Civil Suit
to find their way into a civil court. The person initiating the civil suit is
Generally speaking, the adversarial known as the plaintiff, and the person
process used in criminal trials is also being sued is the defendant or the re-
used in civil trials, with just a few im- spondent. A civil action is known by
portant differences. First, a litigant the names of the plaintiff and the de-
must have standing. This concept fendant, such as Jones v. Miller. The
means simply that the person initiat- plaintiff ’s name appears first. In a typ-
ing the suit must have a personal stake ical situation, the plaintiff ’s attorney
in the outcome of the controversy. pays a fee and files a complaint or pe-
Otherwise, there is no real controversy tition with the clerk of the proper
court. The complaint states the facts an automobile accident in Tennessee

on which the action is based, the dam- when the car he is driving is struck
ages alleged, and the judgment or re- from the rear by a car driven by a
lief being sought. resident of Kingsport, Tennessee.
The decision about which court Total damages to the Ohio driver
should actually hear the case involves and car come to about $80,000.
the concepts of jurisdiction and A state trial court in Ohio has
venue: Jurisdiction deals with a court’s subject matter jurisdiction, and Ohio
authority to exercise judicial power, can in all likelihood obtain jurisdic-
and venue means the place where that tion over the defendant. In addition,
power should be exercised. the state courts of Tennessee probably
Jurisdictional requirements are sat- have jurisdiction. Federal district
isfied when the court has legal author- courts in both Ohio and Tennessee
ity over both the subject matter and also have jurisdiction because diversi-
the person of the defendant. This ty of citizenship exists and the amount
means that several courts can have in controversy is over $75,000. Assum-
jurisdiction over the same case. Sup- ing that jurisdiction is the only
pose, for example, that a resident of concern, the plaintiff can sue in any
Dayton, Ohio, is seriously injured in of these courts.
Heavy media coverage often prompts defense attorneys to move for a change of venue so as
to avoid prejudicing their client’s case, for instance, in auto accidents caused by drunk drivers.
The determination of proper venue dant does not do so, then he or she
may be prescribed by statute based on may be subject to a default judgment.
avoiding possible prejudice, or it may These simple actions by the plain-
simply be a matter of convenience. tiff, clerk of the court, and a process
The federal law states that proper server set in motion the civil case.
venue is the district in which either the What happens next is a flurry of activ-
plaintiff or defendant resides, or the ities that precedes an actual trial and
district where the injury occurred. may last for several months. Approxi-
State venue statutes vary somewhat, mately 75 percent of cases are resolved
but they usually provide that where without a trial during this time.
land is involved, proper venue is the
county where the land is located. In Pretrial Activities
most other instances venue is the Motions. Once the summons has
county where the defendant resides. been served on the defendant, a num-
Venue questions may also be relat- ber of motions can be made by the
ed to the perceived or feared prejudice defense attorney. A motion to quash
of either the judge or the prospective requests that the court void the sum-
jury. Attorneys sometimes object to mons on the ground that it was not
trials being held in a particular area properly served. For example, a defen-
for this reason and may move for a dant might contend that the summons
change of venue. Although this type was never delivered personally as re-
of objection is perhaps more com- quired by state law.
monly associated with highly publi- Two types of motions are meant to
cized criminal trials, it is also found clarify or to object to the plaintiff ’s pe-
in civil trials. tition. A motion to strike requests that
Once the appropriate court has the court excise, or strike, certain parts
been determined and the complaint of the petition because they are preju-
has been filed, the court clerk will at- dicial, improper, or irrelevant. A mo-
tach a copy of the complaint to a sum- tion to make more definite asks the
mons, which is then issued to the de- court to require the plaintiff to be
fendant. The summons may be served more specific about the complaints.
by personnel from the sheriff ’s office, A fourth type of motion often filed
a U.S. marshal, or a private process- in a civil case is a motion to dismiss.
service agency. This motion may argue that the court
The summons directs the defen- lacks jurisdiction, or it may insist that
dant to file a response, known as a the plaintiff has not presented a legally
pleading, within a certain period of sound basis for action against the de-
time (usually 30 days). If the defen- fendant even if the allegations are true.
The Answer. If the complaint sur- • Interrogatories are written questions

vives the judge’s rulings on the mo- that must be answered under oath.
tions, then the defendant submits an Interrogatories can be submitted
answer to the complaint. The response only to the parties in the case, not to
may contain admissions, denials, de- witnesses. They are used to obtain
fenses, and counterclaims. When an descriptions of evidence held by the
admission is contained in an answer, opposing parties in the suit.
there is no need to prove that fact dur- • Production of documents may be
ing the trial. A denial, however, brings requested by one of the parties in
up a factual issue to be proven during the suit if they wish to inspect
the trial. A defense says that certain documents, writings, drawings,
facts set forth in the answer may bar graphs, charts, maps, photographs, or
the plaintiff from recovering damages. other items held by the other party.
The defendant may also create a • If there are questions about the
separate action known as a counter- physical or mental condition of one
claim. If the defendant thinks that a of the parties, the court may order
cause of action against the plaintiff that person to submit to an
arises from the same set of events, examination by a physician.
then he or she must present the claim
to the court in response to the plain- The Pretrial Conference. Before go-
tiff ’s claim. The plaintiff may file a ing to court, the judge may call a pre-
reply to the defendant’s answer. In that trial conference to discuss the issues in
reply, the plaintiff may admit, deny, or the case informally with the opposing
defend against the allegations of fact attorneys. The general practice is to
contained in the counterclaim. allow only the judge and the lawyers
to attend the conference, which is nor-
Discovery. The U.S. legal system pro- mally held in the judge’s chambers.
vides for discovery procedures; that is, At this meeting, the judge and the
each party is entitled to information attorneys try to come to agreement on
in the possession of the other. There uncontested factual issues, which are
are several tools of discovery: known as stipulations. The purpose of
• A deposition is testimony of a stipulations is to make the actual trial
witness taken under oath outside the more efficient by reducing the num-
court. The same question-and- ber of issues that must be argued in
answer format as in the courtroom is court. The attorneys also share with
used. All parties to the case must be each other a list of witnesses and doc-
notified that the deposition is to be uments that are part of each case.
taken so that their attorneys may be Lawyers and judges may also use
present to cross-examine the witness. the pretrial conference to try to settle
the case. Some judges actively work to As in criminal trials, jurors must be
bring about a settlement so the case selected in a random manner from a
does not have to go to trial. fair cross-section of the community. A
large panel of jurors is called to the
The Civil Trial courthouse, and when a case is as-
Selection of Jury. The right to a jury signed to a court for trial, a smaller
trial in a civil suit in a federal court is group of prospective jurors is sent to a
guaranteed by the Seventh Amend- particular courtroom.
ment of the U.S. Constitution. State Following the voir dire examina-
constitutions likewise provide for such tion, which may include challenges to
a right. A jury trial may be waived, in certain jurors by the attorneys, a jury
which case the judge decides the mat- to hear the particular case will be
ter. Although the jury traditionally seated. Lawyers may challenge a
consists of 12 persons, today the num- prospective juror for cause, in which
ber varies. Most of the federal district case the judge must determine
courts now use juries of fewer than 12 whether the person challenged is im-
persons in civil cases. A majority of partial. Each side may also exercise a
states also authorize smaller juries in certain number of peremptory chal-
some or all civil trials. lenges — excusing a juror without
The Seventh Amendment of the Constitution and state constitutions guarantee the right to a
jury trial in civil suits. As a result, many citizens such as these women from Macomb County,
Michigan, are called to serve as jurors.
stating any reason. However, the U.S. When a witness is called, he or

Supreme Court has ruled that the she will undergo direct examination
equal protection guarantee of the by the plaintiff ’s attorney. Then
Fourteenth Amendment prohibits the the defendant’s attorney will have
use of such challenges to disqualify ju- the opportunity to ask questions
rors from civil trials because of their or cross-examine the witness. The
race or gender. Peremptory challenges Arizona Supreme Court recently took
are fixed by statute or court rule and steps to help jurors do a better job
normally range from two to six. of making decisions in civil cases.
Among other things, the state’s
Opening Statements. After the jury highest court voted to allow jurors to
has been chosen, the attorneys present pose written questions to witnesses
their opening statements. The plain- through the judge. Other states are
tiff ’s attorney begins. He or she ex- considering implementing Arizona’s
plains to the jury what the case is new practice. Following the cross-
about and what the plaintiff ’s side ex- examination, the plaintiff ’s lawyer
pects to prove. The defendant’s lawyer may conduct a redirect examination,
can usually choose either to make an which may then be followed by a
opening statement immediately after second cross-examination by the
the plaintiff ’s attorney finishes or to defendant’s lawyer.
wait until the plaintiff ’s case has been Generally speaking, witnesses may
completely presented. If the defen- testify only about matters they have
dant’s attorney waits, he or she will actually observed; they may not ex-
present the entire case for the defen- press their opinions. However, an
dant continuously, from opening important exception to this general
statement onward. Opening state- rule is that expert witnesses are
ments are valuable because they specifically called upon to give their
outline the case and make it easier for opinions in matters within their areas
the jury to understand the evidence of expertise.
as it is presented. To qualify as an expert witness, a
person must possess substantial
Presentation of the Plaintiff’s Case. knowledge about a particular field.
In the normal civil case, the plaintiff ’s Furthermore, this knowledge must
side is first to present and attempt to normally be established in open court.
prove its case to the jury and last to Both sides often present experts
make closing arguments. In present- whose opinions are contradictory.
ing the case, the plaintiff ’s lawyer will When this happens, the jury must
normally call witnesses to testify and ultimately decide which opinion is
produce documents or other exhibits. the correct one.
When the plaintiff ’s side has pre- evidence, which is aimed at refuting
sented all its evidence, the attorney the defendant’s evidence.
rests the case.
Answer to Plaintiff’s Rebuttal. The
Motion for Directed Verdict. After defendant’s lawyer may present evi-
the plaintiff ’s case has been rested, the dence to counter the rebuttal evi-
defendant will often make a motion dence. This rebuttal-and-answer
for a directed verdict. With the filing pattern may continue until the evi-
of this motion, the defendant is saying dence has been exhausted.
that the plaintiff has not proved his or
her case and thus should lose. The Closing Arguments. After all the
judge must then decide whether the evidence has been presented, the
plaintiff could win at this point if lawyers make closing arguments, or
court proceedings were to cease. summations, to the jury. The plain-
Should the judge determine that the tiff ’s attorney speaks both first and
plaintiff has not presented convincing last. That is, he or she both opens
enough evidence, he or she will sus- the argument and closes it, and the
tain the motion and direct the verdict defendant’s lawyer argues in between.
for the defendant. Thus the plaintiff In this stage of the process each attor-
will lose the case. The motion for a di- ney attacks the opponent’s evidence
rected verdict is similar to the pretrial for its unreliability and may also
motion to dismiss. attempt to discredit the opponent’s
witnesses. In doing so, the lawyers
Presentation of the Defendant’s often wax eloquent or deliver an emo-
Case. If the motion for a directed tional appeal to the jury. However, the
verdict is overruled, the defendant arguments must be based upon facts
then presents evidence. The defen- supported by the evidence and intro-
dant’s case is presented in the same duced at the trial.
way as the plaintiff ’s case. That is,
there is direct examination of witness- Instructions to the Jury. Assuming
es and presentation of documents that a jury trial has not been waived,
and other exhibits. The plaintiff the instructions to the jury follow the
has the right to cross-examine wit- conclusion of the closing arguments.
nesses. Redirect and recross questions The judge informs the jury that it
may follow. must base its verdict on the evidence
presented at the trial. The judge’s in-
Plaintiff’s Rebuttal. After the pres- structions also inform the jurors
entation of the defendant’s case, the about the rules, principles, and stan-
plaintiff may bring forth rebuttal dards of the particular legal concept
involved. In civil cases, a finding for judgment notwithstanding the ver-

the plaintiff is based on a preponder- dict. This type of motion is granted
ance of the evidence. This means that when the judge decides that reason-
the jurors must weigh the evidence able persons could not have rendered
presented during the trial and deter- the verdict the jury reached.
mine in their minds that the greater The losing party may also file a
weight of the evidence, in merit and in motion for a new trial. The usual basis
worth, favors the plaintiff. for this motion is that the verdict goes
against the weight of the evidence.
The Verdict. The jury retires to the The judge will grant the motion on
seclusion of the jury room to conduct this ground if he or she agrees that the
its deliberations. The members must evidence presented simply does not
reach a verdict without outside con- support the verdict reached by the
tact. In some instances the delibera- jury. A new trial may also be granted
tions are so long and detailed that the for a number of other reasons: exces-
jurors must be provided meals and sive damages, grossly inadequate
sleeping accommodations until they damages, the discovery of new evi-
can reach a verdict. The verdict, then, dence, and errors in the production of
represents the jurors’ agreement after evidence, to name a few.
detailed discussions and analyses of In some cases the losing party also
the evidence. Sometimes the jury files a motion for relief from judg-
deliberates in all good faith but cannot ment. This type of motion may be
reach a verdict. When this occurs, granted if the judge finds a clerical
the judge may declare a mistrial. This error in the judgment, discovers some
means that a new trial may have to new evidence, or determines that the
be conducted. judgment was induced by fraud.
After the verdict is reached, the
jury is conducted back into open Judgment and Execution. A verdict
court, where it delivers its verdict to in favor of the defendant ends the trial,
the judge. The parties are informed of but a verdict for the plaintiff requires
the verdict. It is then customary for another stage in the process. There is
the jury to be polled — the jurors are no sentence in a civil case, but there
individually asked by the judge must be a determination of the reme-
whether they agree with the verdict. dy or damages to be assessed. This de-
termination is called the judgment.
Post-trial Motions. Once the verdict In situations where the judgment is
has been reached, a dissatisfied party for monetary damages and the defen-
may pursue a variety of tactics. The dant does not voluntarily pay the set
losing party may file a motion for amount, the plaintiff can ask to have
the court clerk issue an order to exe- mon grounds for appeal are that the
cute the judgment. The execution is judge allegedly admitted evidence that
issued to the sheriff and orders the should have been excluded, refused to
sheriff to seize the defendant’s proper- admit evidence that should have been
ty and sell it at auction to satisfy the introduced, or failed to give proper
judgment. An alternative is to order a jury instructions.
lien, which is the legal right to hold An attorney lays the groundwork
property that may be used for the pay- for an appeal by objecting to the
ment of the judgment. alleged error during the trial. This
objection goes into the trial record
Appeal. If one party feels that an and becomes a part of the trial tran-
error of law was made during the trial, script, which may be reviewed by an
and if the judge refuses to grant a appellate court. The appellate court
posttrial motion for a new trial, then decision may call for the lower court
the dissatisfied party may appeal to a to enforce its earlier verdict or to hold
higher court. Probably the most com- a new trial.
C H A P T E R
7
FEDERAL
JUDGES
The movement to include

minorities and women in the
judiciary increased during the
presidency of Jimmy Carter.
President Ronald Reagan broke
the gender barrier at the Supreme
Court with his 1981 appointment
of Sandra Day O’Connor, right, as
Associate Justice. Chief Justice
Warren Burger, left, is shown
swearing her in, while her
husband, John J. O’Connor,
center, holds the two family Bibles.
The main actors in the federal system never been collected, but a good deal
are the men and women who serve as is known about judges who have
judges and justices. What characteris- served in recent decades.
tics do these people have that distin- Before assuming the federal bench,
guish them from the rest of the citi- a plurality of judges had been judges
zenry? What are the qualifications — at the state or local level. The next
both formal and informal — for ap- largest blocs were employed either in
pointment to the bench? How are the political or governmental realms
judges selected and who are the partic- or in moderate- to large-sized law
ipants in the process? How do judges firms. Those working in small law
learn to be judges? How are judges dis- firms or as professors of law made up
ciplined and when are they removed the smallest bloc.
from the bench? Judges’ educational background re-
veals something of their elite nature.
BACKGROUND All graduated from college; about half
CHARACTERISTICS OF attended either costly Ivy League
FEDERAL JUDGES schools or other private universities to
mericans cling to the notion receive their undergraduate and law
A that someone born in the

humblest of circumstances
(such as Abraham Lincoln) may one
degrees. Judges also differ from the
population as a whole in that there is a
strong tendency toward “occupational
day grow up to be the president of the heredity” — that is, for judges to come
United States, or at least a U.S. judge. from families with a tradition of judi-
As with most myths, this one has a cial and public service.
kernel of truth. In principle virtually Although the United States is about
anyone can become a prominent pub- 51 percent female, judges have been
lic official, and a few well-known ex- almost exclusively male. Until the pres-
amples can be cited of people who idency of Jimmy Carter (1977-81), less
came from poor backgrounds yet than 2 percent of district judges were
climbed to the pinnacle of power. female, and even with conscious effort
More typically, however, America’s to change this phenomenon, only 14.4
federal judges, like other public offi- percent of Carter’s appointments to
cials and the captains of commerce district judgeships were women. Racial
and industry, come from the nation’s minorities also have been underrepre-
middle and upper-middle classes. sented on the trial bench, not only in
absolute numbers but also in compari-
District Judges son with figures for the overall popula-
Background data for all federal district tion. Until the present time, only
judges for the past 210 years have Jimmy Carter had appointed a signifi-
CHAPTER 7: FEDERAL JUDGES 143
cant number of non-Anglos to the women, and more African Americans,

federal bench — over 21 percent. Dur- Hispanics, and Asians were appointed
ing the administration of President Bill to the appellate court bench by
Clinton (1993-2001), a dramatic Clinton than by any other president.
change took place. During his first President George W. Bush, in turn,
six years in office, 49 percent of his also has shown a commitment to
judicial appointees were either women racial and gender diversity. Almost
or minorities. one-third of his district court appoint-
About nine out of ten district ments, for example, have been “non-
judges have been of the same political traditional” — women and minorities.
party as the appointing president, and
historically about 60 percent have a Supreme Court Justices
record of active partisanship. Since 1789, 106 men and two women
The typical judge has been 49 years have sat on the bench of America’s
old at the time of appointment. Age highest judicial tribunal. Although
variations from one presidency to an- perhaps 10 percent of the justices were
other have been small, with no dis- essentially of humble origin, a majori-
cernible trend over the years from one ty of the justices came from politically
administration to another. active families, and about a third
were related to jurists and closely
Appeals Court Judges connected with families with a tradi-
Appeals judges are much more likely tion of judicial service.
to have previous judicial experience Until the 1960s the High Court had
than their counterparts on the trial been all white and all male, but in 1967
court bench, and they are just as likely, President Lyndon Johnson appointed
if not more so, to have attended pri- Thurgood Marshall as the first African
vate and Ivy League schools. American member of the Court. When
In terms of political party affilia- Marshall retired in 1991, President
tion, little difference is seen between George H.W. Bush, father of President
trial and appellate court appoint- George W. Bush, replaced him with
ments. However, appeals judges have a another African American, Clarence
slight tendency to be more active in Thomas. In 1981 the gender barrier
their respective parties than their col- was broken when President Ronald
leagues on the trial bench. Reagan named Sandra Day O’Connor
The Clinton initiative to make the to the Court, and 13 years later she was
bench more accurately reflect U.S. gen- joined by Ruth Bader Ginsburg.
der and racial demographics is evident As for the nonpolitical occupations
in the ranks of the appellate judges as of the justices, all 108 had legal train-
well. A third of his appointees were ing and all had practiced law at some
stage in their careers. Only 22 percent that judges be native-born citizens or

had state or federal judicial experience legal residents, no requirement that
immediately prior to their appoint- judges even have a law degree.
ments, although more than half had
served on the bench at some time be- Informal Requirements
fore their nomination to the Supreme At least four vital although informal
Court. As with their colleagues in the factors determine who sits on the fed-
lower federal judiciary, the justices were eral bench in America: professional
much more likely to have been politi- competence, political qualifications,
cally active than the average American, self-selection, and the element of luck.
and virtually all shared many of the
ideological and political orientations Professional Competence: Although
of their appointing president. candidates for U.S. judicial posts do
not have to be attorneys, it has been
QUALIFICATIONS OF the custom to appoint lawyers who
FEDERAL JUDGES have distinguished themselves profes-
espite the absence of formal sionally. Although the political rules
D qualifications for a federal

judgeship, there are well-
defined informal requirements.
may allow a president to reward an old
ally with a seat on the bench, tradition
has created an expectation that the
would-be judge have some reputation
Formal Qualifications for professional competence, the more
No constitutional or statutory qualifi- so as the judgeship in question goes
cations are stipulated for serving on from the trial court to the appeals
the Supreme Court or the lower feder- court to the Supreme Court level.
al courts. The Constitution merely in-
dicates that “the judicial Power of the Political Qualifications: Most nomi-
United States, shall be vested in one nees for judicial office have some
supreme Court” as well as in any lower record of political activity for two rea-
federal courts that Congress may es- sons. First, to some degree judgeships
tablish (Article III, Section 1) and that are still considered part of the political
the president “by and with the Advice patronage system; those who have
and Consent of the Senate, shall ap- served the party are more likely to be
point...Judges of the supreme Court” rewarded with a federal post than
(Article II, Section 2). Congress has those who have not. Second, some po-
applied the same selection procedure litical activity on the part of the
to the appeals and the trial courts. would-be judge is often necessary, be-
There are no exams to pass, no mini- cause otherwise the candidate would
mum age requirement, no stipulation simply not be visible to the president,
senator(s), or local party leaders who cal operatives. The Federal Bureau of
send forth the names of candidates. Investigation (FBI), an arm of the Jus-
tice Department, customarily per-
Self-Selection: While many consider forms a routine security check. After
it undignified and lacking in judicial the nomination is announced to the
temperament for someone to an- public, various interest groups that
nounce publicly a desire for a federal believe they have a stake in the ap-
judgeship, some would-be jurists or- pointment may lobby for or against
chestrate discreet campaigns on their the candidate. Also, the candidate’s
own behalf or at least pass the word qualifications will be evaluated by a
that they are available for judicial serv- committee of the American Bar Asso-
ice. Few will admit to seeking an ap- ciation. The candidate’s name is sent
pointment actively, but credible anec- to the Senate Judiciary Committee,
dotes suggest that attorneys often which conducts an investigation of the
position themselves in such a way that nominee’s fitness for the post. If the
their names will come up when there committee’s vote is favorable, the
is a vacant seat to fill. nomination is sent to the floor of the
Senate, where it is either approved or
The Element of Luck: A good meas- rejected by a simple majority vote.
ure of happenstance exists in virtually
all judicial appointments. Being a The President
member of the right party at the right Technically, the president nominates
time or being visible to the power bro- all judicial candidates, but historically
kers at the right moment often has as the chief executive has been more in-
much to do with becoming a judge as volved in appointments to the Supreme
one’s professional background. Court than to the lower courts. This is
so for two major reasons.
THE FEDERAL SELECTION First, Supreme Court appoint-
PROCESS AND ITS ments are seen by the president — and
PARTICIPANTS by the public at large — as generally
he framework of judicial selec- more important and politically signif-
T tion is the same for all federal

judges, although the roles of
the participants vary depending on
icant than openings on the lesser tri-
bunals. Presidents often use their few
opportunities for High Court
the level of the U.S. judiciary. All nom- appointments to make a political
inations are made by the president statement or to set the tone of their
after due consultation with the White administration. For example, during
House staff, the attorney general’s of- the period of national stress prior to
fice, certain senators, and other politi- U.S. entry into World War II, Democ-
ratic President Franklin D. Roosevelt the appointment process for district

elevated Republican Harlan Fiske judges. Under senatorial courtesy, sen-
Stone to chief justice as a gesture of ators of the president’s political party
national unity. In 1969 President who are from the home state of the
Richard Nixon used his appointment nominee are asked their opinions of
of the conservative Warren Burger to the candidate by the Senate Judiciary
fulfill his campaign pledge to restore Committee. In expressing their views
“law and order.” And President Ronald about a particular candidate, these
Reagan in 1981 hoped to dispel his senators are in a position to virtually
reputation for being unsympathetic veto a nomination. Senatorial courtesy
toward the women’s movement by does not apply to appellate court
being the first to name a woman to the appointments, although it is custom-
High Court. ary for presidents to defer to senators
A second reason why presidents are of their party from states that make up
likely to devote more attention to the appellate court circuit.
Supreme Court appointments and less
to lower court appointments is that The Department of Justice
tradition has allowed for individual Assisting the president and the White
senators and local party leaders to in- House staff in the judicial selection
fluence, and often dominate, lower process are the two key presidential
court appointments. The practice appointees in the Justice Department
known as senatorial courtesy is part of — the attorney general of the United
President Lyndon B. Johnson, right, appointed the first African American member of the
Supreme Court, Thurgood Marshall, left, in 1967.
States and the deputy attorney is dominant, and their role in the
general. Their primary job is to seek choice of appeals court judges is
out candidates for federal judicial minimal. However, in the selection of
posts who conform to general criteria U.S. trial judges their impact is formi-
set by the president. Once several dable, especially when appointments
names are obtained, the staff of the occur in states in which neither sena-
Justice Department will subject each tor is of the president’s political party.
candidate to further scrutiny. They In such cases the president will be
may order an FBI investigation of the more likely to consult with state
candidate’s character and background; leaders of his own party rather than
they will usually read copies of all with the state’s senators.
articles or speeches the candidate has
written or evaluate a sitting judge’s Interest Groups
written opinions; they might check A number of pressure groups in the
with local party leaders to determine United States, representing the whole
that the candidate is a party faithful political spectrum from left to right,
and is in tune with the president’s often lobby either for or against judi-
major public policy positions. cial nominations. Leaders of these
In the case of district judge ap- groups — civil liberties, business, or-
pointments, where names are often ganized labor, civil rights — have little
submitted by home-state senators, the hesitation about urging the president
Justice Department’s function is more to withdraw the nomination of some-
that of screener than of initiator. Re- one whose political and social values
gardless of who comes up with a list of are different from their own or about
names, the Justice Department’s pri- lobbying the Senate to support the
mary duty is to evaluate the candi- nomination of someone who is favor-
date’s personal, professional, and ably perceived. Interest groups lobby
political qualifications. In performing for and against nominees at all levels
this role the department may work of the federal judiciary.
closely with the White House staff,
with the senators involved in the nom- The American Bar Association
ination, and with party leaders who (ABA)
may wish to have some input in For more than five decades, the Com-
choosing the nominee. mittee on the Federal Judiciary of the
ABA has played a key role in evalu-
State and Local Party Leaders ating the professional credentials of
Regional party leaders have little to say potential nominees for positions on
in the appointment of Supreme Court the federal bench. The committee,
justices, where presidential prerogative whose 15 members represent all the
The President
nominates all federal
judicial candidates,
but individual senators
and local party leaders
traditionally wield a
lot of influence in the
case of lower court
appointments.
Above, two U.S.
district court judges
presiding in a
naturalization
ceremony in New York
State. Center,
President George W.
Bush congratulates his
nominees to federal
judgeships. Bottom,
Senior Judge
Constance Baker
Motley, right, of the
U.S. District Court for
the Southern District
of New York speaks at
a panel discussion.
U.S. circuits, evaluates candidates on and a few scholars have taken the posi-
the basis of three criteria: judicial tem- tion that the Senate ought quietly to go
perament, professional competence, along with the presidential choices un-
and integrity. A candidate approved by less overwhelmingly strong reasons
the committee is rated either “quali- exist to the contrary. Other scholars
fied” or “well qualified,” whereas an and most senators have held the view
unacceptable candidate is stamped that the Senate has the right and the
with a “not qualified” label. obligation to make its own decision re-
garding the nominee. In practice the
The Senate Judiciary Committee role of the Senate in the judicial confir-
The rules of the Senate require its Ju- mation process has varied, depending
diciary Committee to consider all on the level of the federal judgeship
nominations to the federal bench and that is being considered.
to make recommendations to the Sen- For district judges the norm of sen-
ate as a whole. Its role is thus to screen atorial courtesy prevails. That is, if the
individuals who have already been president’s nominee is acceptable to
nominated, not to suggest names of the senator(s) of the president’s party
possible candidates. The committee in the state in which the judge is to sit,
holds hearings on all nominations, at the Senate is usually happy to confirm
which time witnesses are heard and the appointment. For appointments to
deliberations take place behind closed the appeals courts, senatorial courtesy
doors. The hearings for district court does not apply, since the vacancy to be
appointments are largely perfunctory filled covers more than just the state of
because the norm of senatorial cour- one or possibly two senators. But sen-
tesy has, for all intents and purposes, ators from each state in the circuit in
already determined whether the can- which the vacancy has occurred cus-
didate will be acceptable to the Senate. tomarily submit names of possible
However, for appeals court nominees candidates to the president. An un-
— and surely for an appointment to written rule is that each state in the cir-
the Supreme Court — the committee cuit should have at least one judge on
hearing is a serious proceeding. that circuit’s appellate bench. As long
as the norms are adhered to and the
The Senate president’s nominee has reasonably
The final step in the judicial appoint- good qualifications, the Senate as a
ment process for federal judges is a whole usually goes along with the rec-
majority vote by the Senate. Historical- ommendations of the chief executive.
ly, two general views have prevailed of The Senate has been inclined to
the Senate’s prescribed role. Presidents dispute the president if disagreement
from the time of George Washington arises over a nominee’s fitness for the
High Court. Since 1789, presidents Not only does the United States
have sent the names of 144 Supreme lack formalized training procedures
Court nominees to the Senate for its for the judicial profession, but there is
advice and consent. Of this number, an assumption that being a lawyer for
30 were either rejected or “indefinitely a decade or so is all the experience one
postponed” by the Senate, or the needs to be a judge. On the contrary,
names were withdrawn by the presi- becoming a judge in America requires
dent. Thus presidents have been suc- a good deal of freshman socialization
cessful about 79 percent of the time, (short-term learning and adjustment
and their success rate seems to be im- to the new role) and occupational so-
proving, given that as many as one- cialization (on-the-job training over a
third of the nominations were rejected period of years).
by the Senate in the 19th century. The Typical new trial court appointees
record shows that presidents have met may be first-rate lawyers and experts
with the most success in getting their in a few areas of the law in which they
High Court nominations approved have specialized. As judges, however,
when the nominee comes from a non- they are expected to be experts on all
controversial background and has legal subjects, are required to engage
middle-of-the-road political leanings, in judicial duties usually unrelated to
and when the president’s party also any tasks they performed as lawyers
controls the Senate, or at least a ma- (for example, sentencing), and are
jority shares the president’s basic atti- given a host of administrative assign-
tudes and values. ments for which they have had no
prior experience (for example, learn-
THE JUDICIAL ing how to docket efficiently several
SOCIALIZATION PROCESS hundred diverse cases).
n college and law school, future
I
At the appeals court level there
judges acquire important analytic is also a period of freshman socializa-
and communication skills, in ad- tion — despite the circuit judge’s
dition to the basic substance of the possible prior judicial experience —
law. After a couple of decades of legal and former trial judges appear to
practice, the future judge has learned a make the transition more easily.
good bit about how the courts and the During the transition time, circuit
law actually work and has specialized judges tend to speak less for the court
in several areas of the law. Despite all than their more experienced col-
this preparation, sometimes called leagues. They often take longer to
“anticipatory socialization,” most new write opinions, defer more often
judges in America still have a lot to to senior colleagues, or experience a
learn about being a judge. period of indecision.
The learning process for new the law schools — the key instructors
Supreme Court justices is even harder. tend to be seasoned judges whose real-
As with new appeals court judges, life experience on the bench
novice Supreme Court justices tend commands the respect of the new
to defer to senior associates, to write members of the federal judiciary.
fewer majority and dissenting opin- What is the significance of this so-
ions, and to manifest a degree of cialization process for the operation of
uncertainty. New High Court ap- the U.S. judicial-legal system? First,
pointees may have more judicial the agents of socialization that are
experience than their lower-court readily available to the novice jurists
colleagues, but the fact that the allow the system to operate more
Supreme Court is involved in broad smoothly, with a minimum of down
judicial policy making — as opposed time. If new judges were isolated from
to the error correction of the appeals their more experienced associates, ge-
courts and the norm enforcement of ographically or otherwise, they would
the trial courts — may account for require more time to learn the fine
their initial indecisiveness. points of their trade and presumably a
Given the need on the part of greater number of errors would occur
all new federal jurists for both fresh- in litigation.
man and occupational socialization, Second, the fact that the system is
where do they go for instruction? able to provide its own socialization
For both the appeals court judges — that the older, experienced jurists
and their trial court peers, most of train the novices — serves as a sort of
their training comes from their glue that helps bond the system to-
more senior, experienced colleagues gether. It allows the judicial values,
on the bench — particularly the chief practices, and orientations of one gen-
judge of the circuit or district. Like- eration of judges to be passed on to
wise on the Supreme Court, older as- another. It gives continuity and a sense
sociates, often the chief justice, play a of permanence to a system that oper-
primary part in passing on to novice ates in a world where chaos and ran-
justices the essential rules and values dom behavior are common.
of the Court.
Training seminars provided by the THE RETIREMENT AND
Federal Judicial Center for newly ap- REMOVAL OF JUDGES
pointed judges also play an important udges cease performing their
role in the training and socialization
of new jurists. Although some of these
seminars are conducted by outsider
J judicial duties when they retire
by choice or because of ill health
or death, or when they are subjected
specialists — subject matter experts in to the disciplinary actions of others.
Disciplinary Action Against courtroom, whose personal habits

Federal Judges negatively affect his or her perform-
All federal judges appointed under the ance in court? Historically, little
provisions of Article III of the Consti- has been done in such cases other
tution hold office “during good Be- than issuance of a mild reprimand
havior,” which means in effect for life by colleagues. In recent decades,
or until they choose to step down. The however, actions have been taken to
only way they can be removed from discipline judges.
the bench is by impeachment (indict- On October 1, 1980, a new statute
ment by the House of Representatives) of Congress took effect. Titled the Ju-
and conviction by the Senate. In ac- dicial Councils Reform and Judicial
cordance with constitutional require- Conduct and Disability Act, the law
ments (for Supreme Court justices) has two distinct parts. The first part
and legislative standards (for appeals authorizes the Judicial Council in
and trial court judges), impeachment each circuit, composed of both ap-
may occur for “Treason, Bribery, or peals and trial court judges and
other high Crimes and Misde- presided over by the chief judge of
meanors.” An impeached jurist would the circuit, to “make all necessary and
face trial in the Senate, which could appropriate orders for the effective
convict by a vote of two-thirds of the and expeditious administration of
members present. justice within its circuit.” The second
Since 1789 the House of Represen- part of the act establishes a statutory
tatives has initiated impeachment complaint procedure against judges.
proceedings against only 13 jurists — Briefly, it permits an aggrieved party
although about an equal number of to file a written complaint with the
judges resigned just before formal clerk of the appellate court. The chief
action was taken against them. Of judge then reviews the charge and
these 13 cases, only seven resulted may dismiss it if it appears frivolous,
in a conviction, which removed them or for a variety of other reasons. If the
from office. complaint seems valid, the chief
Although outright acts of criminal- judge must appoint an investigating
ity by those on the bench are few, a committee consisting of himself or
gray area of misconduct may put herself and an equal number of trial
offending judges somewhere between and circuit court judges. After an in-
acceptable and impeachable behavior. quiry the committee reports to the
What to do with the federal jurist who council, which has several options:
hears a case despite an obvious the judge may be exonerated; if the
conflict of interest, who consistently offender is a bankruptcy judge or
demonstrates biased behavior in the magistrate, he or she may be re-
moved; and an Article III judge may retire with full pay and benefits under
be subject to private or public what is called the rule of 80; that is,
reprimand or censure, certification of when the sum of a judge’s age and
disability, request for voluntary resig- number of years on the bench is 80.
nation, or prohibition against further Congress has also permitted judges to
case assignments. However, removal go on senior status instead of accept-
of an Article III judge is not permit- ing full retirement. In exchange for a
ted; impeachment is still the only re- reduced caseload they are permitted
course. If the council determines that to retain their office and staff and —
the conduct might constitute equally important — the prestige and
grounds for impeachment, it will no- self-respect of being an active judge.
tify the Judicial Conference, which in Judges often time their resignations
turn may transmit the case to the to occur when their party controls the
U.S. House of Representatives for presidency so that they will be re-
consideration. placed by a jurist of similar political
and judicial orientation. A 1990 study
Disability of Federal Judges found that especially since 1954, “ju-
Perhaps more problematic than re- dicial retirement/resignation rates
moving jurists for misconduct is the have been strongly influenced by po-
removal of those who have become litical/ideological considerations, and
too old and infirm to carry out their infused with partisanship,” thus indi-
judicial responsibilities effectively. cating that many jurists view them-
Congress has tried with some success selves as part of a policy link between
to tempt the more senior judges into the people, the judicial appointment
retirement by making it financially process, and the subsequent decisions
more attractive to do so. Since 1984 of the judges and justices.
federal judges have been permitted to
QUALIFICATIONS AND BACKGROUNDS

OF STATE JUDGES
lthough women constitute

Most state laws and
constitutions provide A a slight majority of the

American population and
despite the upsurge in recent
few rigid conditions for decades in the number of women
in the legal profession, women are
being a state judge. still underrepresented on the bench.
Those who do serve as state jurists
The vast majority of are much more likely to serve
at the lower levels of the state
the states do not judiciary than on the supreme
courts, although this varies greatly
require their justices of
from one state to the next. As of
the peace or magistrates the mid-1990s, only about 14
percent of all state judges were
to have law degrees, women and 6 percent were either
African American, Hispanic, or
but such degrees are Asian American.
virtually required State judges, like their federal

counterparts, have generally stayed
(either formally or in in the region where they grew up
and were educated. About three-
practice) for trial and
fourths of all state jurists were
appellate judges. born in the state in which they
serve, and less than a third went out
of state for their undergraduate
degrees or for their law degrees.
This penchant for localism is also
reflected in the patterns of work
experience that state judges bring to
the bench. For example, of those
serving on the state supreme court district attorneys, and only 3 percent
bench, only 13 percent have any come from private criminal law
prior federal experience, whereas practice. Of those serving on state
93 percent have some type of prior supreme courts, almost two-thirds
state experience. came from the ranks of the
intermediate appellate courts or
Judges tend to be middle-aged when from the state trial courts.
they assume the bench. State trial
judges come to the bench at about THE SELECTION PROCESS
age 46, which corresponds roughly FOR STATE JUDGES
to the figure of 49 for federal trial
judges. State appellate court judges t the state level a variety of
tend to be slightly older than their
trial court colleagues when they
become jurists — about 53, which is
approximately the same as their
A methods are used to select
jurists, and each of these has
many permutations. Basically,
there are five routes to a judgeship
federal equivalents. in any one of the 50 states: partisan
election, nonpartisan election,
In terms of political party affiliation, merit selection, gubernatorial
state judges, whether they be elected appointment, and appointment by
or appointed, tend to mirror the the legislature.
party that dominates in the judge’s
state. Also, the vast majority of state Election of Judges
judges had been politically active
before assuming the bench, whether The election of judges, on either a
they were elected to the bench or partisan or a nonpartisan ballot, is
appointed by a governor. the norm in the states. This method
became popular during the time of
Over half the state trial judges come President Andrew Jackson (1829-
to the bench from the private 37), an era when Americans sought
practice of law, and about a quarter to democratize the political process.
were elevated from a lower court In practice, however, political party
judgeship, such as a magistrate’s leaders often regard judicial
position. Of those who practiced elections as indirect patronage to
law, most reported a general practice reward the party faithful. Also,
without specialization. About one in judges who must run for election
five was recruited from the ranks of
are often forced to solicit campaign was Missouri in 1940, and ever since
contributions from the lawyers and such schemes have come to be
law firms that will eventually appear known as generic variants of
before them in court — a potential “the Missouri Plan.”
source of conflict of interest. Finally,
voter turnout in judicial elections The states with Missouri-type plans
is extremely low. Voters may know use a combination of elections and
whom they prefer for president or appointments. The governor
member of Congress or state appoints a judge from among several
senator, but they may be unfamiliar candidates recommended by a
with the persons running for nominating panel of five or more
state judgeships. people, usually including attorneys
(often chosen by the local bar
As part of the Progressive movement association), nonlawyers appointed
at the turn of the 20th century, by the governor, and sometimes a
reformers sought to take some of senior local judge. Either by law or
the partisanship out of judicial by implicit agreement, the governor
elections by having judges run on a appoints someone from the
nonpartisan basis. In principle they recommended list. After serving for
would run on their ideas and a short period of time, often a year,
qualifications, not on the basis of the newly appointed judge must
which party they belonged to. stand for a special election, at which
But even in these technically time he or she in effect runs on his
nonpartisan states, the political or her record. (The voters are asked,
parties endorse individual judicial “Shall Judge X be retained in
candidates and contribute to their office?”) If the judge’s tenure is
campaigns so that the candidates supported by the voters, as is
acquire identification with one virtually always the case, the judge
political party or another. will serve for a regular and fairly
long term.
Merit Selection
Gubernatorial Appointment and
Merit selection has been in use since Legislative Appointment
the early 1900s as a preferred
method of selecting judges. The first Today, judges are chosen by the
state fully to adopt such a method governor or by the state legislature
in only a handful of states. When
judges are appointed by the
governor, politics almost invariably most common. Some states have

comes into play. Governors tend to declining retirement benefit plans
select individuals who have been for judges who serve beyond the
active in state politics and whose desired tenure; that is, the longer
activity has benefited either the judges stay on the bench, the lower
governor personally or the their retirement benefits.
governor’s political party or allies.
Also, in making judicial Retirement plans, no matter how
appointments the governor often effective in getting the older judge to
bargains with local political leaders resign, are of little use against the
or with state legislators whose younger jurist who is incompetent,
support he or she needs. A governor corrupt, or unethical. Throughout
may also use a judgeship to reward American history the states
a legislator or local politician who have used procedures such as
has given faithful political support impeachment, recall elections, and
in the past. concurrent resolutions of the
legislature to dismiss these judges.
Only a few states still allow their These methods were only minimally
legislators to appoint state judges. effective, however, either because
Although a variety of criteria may be they proved to be politically
used in choosing members of the difficult to put into operation or
state supreme courts, when it comes because of their time-consuming,
to filling the state trial benches, state cumbersome nature.
legislators tend to turn to former
members of the legislature. More recently, the states have
begun to set up special commissions,
THE RETIREMENT AND often made up of the judges
REMOVAL OF JUDGES themselves, to police their own
members. Such commissions are
udges who are too old or unfit to not always effective, however,
J serve seem to be less of a prob-

lem at the state level than at the
federal level. A number of states have
because judges are often loath to
expose a colleague to public censure
and discipline.
mandatory retirement plans.
Minimum ages for retirement range
from 65 to 75, with 70 being the
C H A P T E R
8
IMPLEMENTATION
AND
IMPACT
OF
JUDICIAL
POLICIES
A prosecuting attorney argues before

the Washington State Supreme Court,
one of the lower courts normally seen
as the enforcers of the policies made
by rulings by appellate courts, notably
the U.S. Supreme Court.
After a court’s decision is reached, a to one study, as “independent

variety of individuals — other judges, actors...who will not follow the lead of
public officials, even private citizens higher courts unless conditions are fa-
— may be called upon to implement vorable for their doing so.”
the decision. This chapter looks at
the various actors involved in the im- Lower-Court Discretion
plementation process, their reactions Why do the lower-court judges have so
to judicial policies, and the methods much discretion when it comes to im-
by which they may respond to a plementing a higher court’s policy? In
court’s decision. part, the answer may be found in the
Depending upon the nature of the structure of the U.S. judicial system.
court’s ruling, the judicial policy may The judiciary has always been charac-
have a very narrow or a very broad im- terized by independence, decentraliza-
pact. A suit for damages incurred in an tion, and individualism. Federal
automobile accident would directly af- judges, for example, are protected by
fect only the persons involved and per- life tenure and traditionally have been
haps their immediate families. But the able to run their courts as they see fit.
famous Gideon v. Wainwright (1963) Disciplinary measures are not at all
decision has directly affected millions common, and federal judges have his-
of people in one way or another. In torically had little fear of impeach-
Gideon the Supreme Court held that ment. To retain their positions, the
states must provide an attorney for in- state trial court judges generally have
digent defendants in felony trials. only to keep the electorate satisfied.
Scores of people — defendants, The discretion exercised by a lower-
judges, lawyers, taxpayers — have felt court judge may also be a product of
the effects of that judicial policy. the higher court’s decision itself. For
example, following the famous school
THE IMPACT OF HIGHER- desegregation case, Brown v. Board of
COURT DECISIONS ON Education of Topeka (1954), the
LOWER COURTS Supreme Court told federal district
ppellate courts, notably the
A
judges, who had the task of enforcing
U.S. Supreme Court, often are the ruling, that the public schools were
viewed as the most likely to make a prompt and reasonable start
courts to be involved in policy mak- and then proceed with all deliberate
ing, while the trial courts are generally speed to bring about desegregation.
seen as norm enforcers. However, What constitutes a prompt and
lower-court judges have a great deal of reasonable start? How rapidly must
independence from the appellate a school district proceed in order to
courts and may be viewed, according be moving with all deliberate speed?
CHAPTER 8: IMPLEMENTATION AND IMPACT OF JUDICIAL POLICIES 161
The Supreme Court did not provide and unusual punishment in violation
specific answers to these questions. of the Eighth Amendment to the
Although not all High Court Constitution. Others voted to strike
decisions are so open to interpreta- down the state laws because they were
tion, a good number of them are. A applied in a discriminatory manner.
court’s decision may be unclear for The uncertainty created by the 1972
several reasons. Sometimes the issue decision affected not only lower-court
or subject matter may be so complex judges but also state legislatures.
that it is difficult to fashion a clear The states passed a rash of widely
policy. In obscenity cases, for instance, divergent death penalty statutes and
the Supreme Court has had little caused a considerable amount of
difficulty in deciding that porno- new litigation.
graphic material is not entitled to A lower-court judge’s discretion
protection as free speech under the in the implementation process may
First Amendment to the Constitution. also be affected by the manner in
Defining obscenity has proven to which a higher court’s policy is com-
be another matter, however. Phrases municated. Certainly the court from
such as “prurient interest,” “patently which a case has been appealed will be
offensive,” “contemporary community informed of the decision. However,
standards,” and “without redeeming systematic, formal efforts are not
social value” have become common- made to inform other courts of the
place in obscenity opinions, but these decision or to see that lower-court
terms leave a good deal of room for judges have access to a copy of the
subjective interpretation. opinion. The decisions that contain
Policies established by collegial the new judicial policy are made avail-
courts are often ambiguous because able to the public in printed form or
the majority opinion is written to on the Internet, and judges are expect-
accommodate several judges. The ma- ed to read them if they have the time
jority opinion may also be accompa- and inclination.
nied by several concurring opinions. Opinions of the Supreme Court,
When this happens, lower court lower federal courts, and state appel-
judges are left without a clear-cut late courts are available in a large
precedent to follow. For example, number of courthouse, law school,
in Furman v. Georgia (1972), the and university libraries. They are also
Supreme Court struck down the death increasingly available on the Internet.
penalty in several states, but for a This widespread availability does not
variety of reasons. Some justices guarantee that they will be read and
opposed the death penalty per se, on clearly understood, however. Many
the ground that it constituted cruel lower-level state judges, such as jus-
tices of the peace and juvenile court court judge’s discretion may be to
judges, are nonlawyers who have little interpret what the higher court’s
interest or skill in reading complex decision means.
judicial decisions. Finally, even those The manner in which a lower-
judges who have an interest in higher- court judge interprets a policy estab-
court decisions and the ability to lished by a higher court depends
understand them do not have ade- upon a number of factors. Many
quate time to keep abreast of all the policies are not clearly stated. Thus
new opinions. reasonable people may disagree over
Given these problems, how do the proper interpretation. Even policy
judges become aware of upper-court pronouncements that do not suffer
decisions? One way is to hear of them from ambiguity, however, are some-
through lawyers presenting cases in times interpreted differently by differ-
the lower courts. It is generally as- ent judges.
sumed that the opposing attorneys A judge’s own personal policy pref-
will present relevant precedents in erences will also have an effect upon
their arguments before the judge. the interpretation he or she gives to a
Those judges who have law clerks may higher-court policy. Judges come to
also rely upon them to search out re- the courts with their own unique
cent decisions from higher courts. background characteristics. Some are
Thus some higher-court policies Republican, others are Democrat; one
are not quickly and strictly enforced judge may be more lenient, another
simply because lower-court judges are strict. They come from different re-
not aware of them. Even those policies gions of the country. Some have been
which lower-court judges are aware of prosecutors; others have been prima-
may not be so clear to them. Either rily defense lawyers or corporate
reason contributes to the discretion lawyers. In short, their backgrounds
exercised by lower-court judges placed may influence their own particular
in the position of having to imple- policy preferences. Thus the lower-
ment judicial policies. court judges may read their own ideas
into a higher-court policy. The result
Interpretation by Lower Courts is that a policy may be enthusiastically
One study noted that “important embraced by some judges yet totally
policy announcements almost always rejected by others.
require interpretation by someone
other than the policy maker.” This Strategies Employed by Lower
is certainly true in the case of judicial Courts
policies established by appellate Judges who favor and accept a higher
courts. The first exercise of a lower- court’s policy will naturally try to en-
force it and perhaps even expand Another strategy used by judges

upon it. Some judges even have risked who are in basic disagreement with
social ostracism and various kinds of a judicial policy is to apply it as
harassment in order to implement narrowly as possible. One method
policies they believed in but that were is for the lower-court judge to rule
not popular in their communities. that a precedent is not controlling
Judges who do not like a higher because factual differences exist be-
court’s policy decision may imple- tween the higher-court case and the
ment it sparingly or only under case before the lower courts. That is,
duress. A judge who basically dis- because the two cases may be distin-
agrees with a policy established by a guished, the precedent does not have
higher court can employ a number of to be followed.
strategies. One rarely used strategy is
defiance, whereby a judge simply does Influences on Lower-Court Judges
not apply the higher court’s policy in a At times the lower courts must decide
case before a lower court. cases for which no precise standards
Such outright defiance is highly have been provided by the higher
unusual. Other strategies are not so courts. Whenever this occurs, lower-
extreme. One is simply to avoid hav- court judges must turn elsewhere
ing to apply the policy. A case may be for guidance in deciding a case before
disposed of on technical or procedur- them. One study notes that lower-
al grounds so that the judge does not court judges in such a position
have to rule on the actual merits of the “may take their cues on how to decide
case. It may be determined, for exam- a particular case from a wide variety
ple, that the plaintiff does not have of factors including their party
standing to sue or that the case has affiliation, their ideology, or their
become moot because the issue was regional norms.”
resolved before the trial commenced.
Lower-court judges sometimes avoid CONGRESSIONAL
accepting a policy by declaring a INFLUENCES ON THE
portion of the higher-court decision IMPLEMENTATION PROCESS
to be “dicta” (Latin, meaning an nce a federal judicial decision
authoritative declaration). Dicta refers
to the part of the opinion that does
not contribute to the central logic
O is made, Congress can offer a
variety of responses: It may
aid or hinder the implementation of a
of the decision. It may be useful as decision. In addition, it can alter a
guidance but is not seen as binding. court’s interpretation of the law. Fi-
What constitutes dicta is open to nally, Congress can mount an attack
varying interpretations. on an individual judge.
In the course of deciding cases, the Besides ruling on statutes, the fed-
courts are often called upon to inter- eral courts interpret the Constitution.
pret federal statutes. On occasion the Congress has two methods to reverse
judicial interpretation may differ from or alter the effects of a constitutional
what a majority in Congress intended. interpretation it does not like. First,
When that situation occurs, Congress Congress can respond with another
can change the statute in new legisla- statute designed to avoid the constitu-
tion that in effect overrules the court’s tional problems. Second, a constitu-
initial interpretation. However, the tional decision can be overturned
vast majority of the federal judiciary’s directly by an amendment to the
statutory decisions are not changed U.S. Constitution. Although many
by Congress. such amendments have been intro-
President Lyndon B. Johnson, after signing into law the Civil Rights Act of 1964, reaches to
shake hands with Dr. Martin Luther King, Jr. This law was an example of Congress’ key role in
implementing a decision by the Supreme Court, in this instance, school desegregation policy.
duced over the years, it is not easy support for a policy of desegregated
to obtain the necessary two-thirds public schools by passing the Elemen-
vote in each house of Congress to tary and Secondary Education Act.
propose the amendment and then This act gave the federal government a
achieve ratification by three-fourths much larger role in financing public
of the states. Only four Supreme education and thus made the threat to
Court decisions in the history of cut off federal funds a serious problem
the Court have been overturned by for many segregated school districts.
constitutional amendments. Such support from Congress was sig-
Congressional attacks on the fed- nificant because the likelihood of
eral courts in general and on certain compliance with a policy is increased
judges in particular are another when there is unity between branches
method of responding to judicial deci- of government.
sions. These attacks may take the form
of verbal denouncements by a mem- EXECUTIVE BRANCH
ber of Congress, threats of impeach- INFLUENCES ON THE
ment of sitting judges, or more IMPLEMENTATION PROCESS
thorough investigations of the judicial t times the president may be
philosophies of potential nominees to
the federal bench.
Congress and the federal courts are
A called upon directly to imple-
ment a judicial decision. An
example is United States v. Nixon
not natural adversaries, however. Re- (1974). A Senate committee investiga-
taliations against the federal judiciary tion into the cover-up of a break-in at
are fairly rare, and often the two the Democratic Party headquarters in
branches work in harmony toward the Watergate Hotel in Washington,
similar policy goals. For example, D.C., led directly to high government
Congress played a key role in imple- officials working close to the presi-
menting the Supreme Court’s school dent. It was also revealed during the
desegregation policy by enacting the investigation that President Richard
Civil Rights Act of 1964, which em- Nixon had installed an automatic
powered the Justice Department to taping system in the Oval Office. Leon
initiate suits against school districts Jaworski, who had been appointed
that failed to comply with the Brown v. special prosecutor to investigate the
Board of Education decision. Title VI Watergate affair, subpoenaed certain
of the Act also provided a potent tapes that he felt might provide
weapon in the desegregation struggle evidence needed in his prosecution of
by threatening the denial of federal high-ranking officials. Nixon refused
funds to schools guilty of segregation. to turn over the tapes on grounds of
In 1965 Congress further solidified its executive privilege and the need for
confidentiality in discussions leading size specific issues according to the

to presidential decisions. The Supreme overall policy goals of the president.
Court’s decision instructed the presi- The other side of the coin, however, is
dent to surrender the subpoenaed that the Justice Department may, at its
tapes to Judge John J. Sirica, who discretion, de-emphasize specific poli-
was handling the trials of the govern- cies by not pursuing them vigorously
ment officials. Nixon did comply with in the courts.
the High Court’s directive and thus Another official who is in a
a decision was implemented that position to influence judicial policy
quickly led to his downfall. Within two making is the solicitor general. Histor-
weeks he resigned from the presiden- ically, this official has been seen as
cy, in August 1974. having dual responsibility to both the
Even when not directly involved in judicial and executive branches. Be-
the enforcement of a judicial policy, cause of the solicitor general’s close re-
the president may be able to influence lationship with the Supreme Court,
its impact. Because of the status and this official is sometimes referred to as
visibility of the position, a president, the “tenth justice.” The solicitor gener-
simply by words and actions, may en- al is often seen as a counselor who ad-
courage support for, or resistance to, a vises the Court about the meaning of
new judicial policy. federal statutes and the Constitution.
A president can propose legislation The solicitor general also determines
that directly affects the courts. Presi- which of the cases involving the feder-
dent Franklin D. Roosevelt, for inal government as a party will be
stance, unsuccessfully urged Congress appealed to the Supreme Court. Fur-
to increase the size of the Supreme thermore, he or she may file an amicus
Court so he could “pack” it with jus- curiae brief urging the Court to grant
tices who supported his administra- or deny another litigant’s certiorari
tion’s legislative agenda. petition or supporting or opposing a
The appointment power also gives particular policy being urged upon the
the president an opportunity to influ- High Court.
ence federal judicial policies, as the Many judicial decisions are actually
president appoints all federal judges, implemented by the various depart-
with the advice and consent of ments, agencies, bureaus, and com-
the Senate. missions of the executive branch. For
A president can influence judicial example, the Supreme Court decision
policy making through the activities of in Frontiero v. Richardson (1973)
the Justice Department, a part of the called upon the U.S. Air Force to play
executive branch. The attorney gener- the major implementation role. The
al and staff subordinates can empha- Frontiero case questioned congres-
sional statutes that provided benefits committed may choose from a variety
for married male members of the Air of options to remedy the wrong.
Force but did not provide similar ben- Among the more common options
efits for married female members. are process remedies, performance
Lieutenant Sharron Frontiero chal- standards, and specified remedial
lenged the policy on the ground that it actions. Process remedies provide for
constituted sexual discrimination. A such things as advisory committees,
federal district court in Alabama citizen participation, educational pro-
issued a decision upholding the Air grams, evaluation committees, dispute
Force policy. Lieutenant Frontiero ap- resolution procedures, and special
pealed to the Supreme Court, which masters to address a problem and
overturned the lower court decision come up with a solution. The remedies
and required the Air Force to imple- do not specify a particular form of
ment a new policy. action. Performance standards call for
specific remedies — for example, a
OTHER IMPLEMENTERS certain number of housing units or
he implementation of judicial schools or a certain level of staffing
T policies is often performed by

state as well as federal officials.
Many of the Supreme Court’s criminal
in a prison or mental health facility.
The specific means of attaining these
goals are left to the discretion of the
due process decisions, such as Gideon officials named in the suit. Examples
v. Wainwright and Miranda v. Arizona of specified remedial actions are
(1966), have been enforced by state school busing, altered school atten-
court judges and other state officials. dance zones, and changes in the size
State and local police officers, for and condition of prison cells or hospi-
instance, have played a major role in tal rooms. This type of remedy pro-
implementing the Miranda require- vides the defendant with no flexibility
ment that criminal suspects must be concerning the specific remedy or the
advised of their rights. The Gideon means of attaining it.
ruling that an attorney must be pro- Implementation of these remedial
vided at state expense for indigent decrees often devolves, at least partial-
defendants in felony trials has been ly, to the state legislatures. An order
implemented by public defenders, calling for a certain number of prison
local bar associations, and individual cells or a certain number of guards in
court-appointed lawyers. the prison system might require new
State legislators and executives state expenditures, which the legisla-
are also frequently drawn into the ture would have to fund. Similarly, an
implementation process. A judge who order to construct more modern men-
determines that a wrong has been tal health facilities or provide more
modern equipment would mean an boards and school superintendents,

increase in state expenditures. Gover- along with federal district judges, bore
nors would also be involved in carry- the brunt of implementing that deci-
ing out these types of remedial decrees sion. Their role in this process has
because they typically are heavily in- affected the lives of millions of school-
volved in state budgeting procedures. children, parents, and taxpayers all
Also, they may sign or veto laws. over America.
Sometimes judges appoint certain The second area that has involved
individuals to assist in carrying out the school boards is the Supreme Court’s
remedial decree. Special masters are policies on religion in the public
usually given some decision-making schools. In Engel v. Vitale (1962), the
authority. Court-appointed monitors Court held unconstitutional a New
are also used in some situations, but York requirement that a state-written
they do not relieve the judge of deci- prayer be recited daily in the public
sion-making responsibilities. Instead, schools. Some school districts re-
the monitor is an information gather- sponded to the decision by requiring
er who reports on the defendant’s instead the recitation of a Bible verse
progress in complying with the reme- or the Lord’s Prayer. Their reasoning
dial decree. When orders are not was that since the state did not write
implemented or when barriers of the Lord’s Prayer or the Bible, they
one kind or another block progress were not violating the Court’s policy.
in providing a remedy, a judge may A year later, the Supreme Court struck
name someone as a receiver and down these new practices, pointing
empower him or her to disregard nor- out that the constitutional violation
mal organizational barriers to get the lay in endorsing the religious activity
job done. and its determination did not depend
One group of individuals has been on whether the state had written
deeply involved in implementing judi- the prayer.
cial policies: the thousands of men
and women who constitute school THE IMPACT OF JUDICIAL
boards throughout the country. Two POLICIES
major policy areas stand out as having he ultimate importance of
embroiled school board members in
considerable controversy as they faced
the task of trying to carry out Supreme
T the Supreme Court’s decisions
depends primarily on their
impact on American society as a
Court policy. whole. A few policies that have had
First, when the High Court ruled significant effects are in the areas of
in 1954 that segregation has no racial equality, criminal due process,
place in the public schools, school and abortion.
Racial Equality the national political agenda. Their

Many point to the Supreme Court’s persistence paid off with passage of
decision in Brown v. Board of Educa- the 1964 Civil Rights Act, 10 years
tion as the impetus for the drive for after the Brown decision. That act,
racial equality in the United States. which had the strong support of
However, Congress and the executive Presidents John F. Kennedy (1961-63)
branch were also involved in the and Lyndon B. Johnson (1963-69),
process of ensuring implementation squarely placed Congress and the
of the decision’s desegregation policy. president on record as being support-
Still, the courts initiated the pursuit ive of racial equality in America.
for a national policy of racial equality One other aspect of the federal ju-
with the Brown ruling. diciary’s importance in the policy-
In the beginning, the court deci- making process is illustrated by the
sions were often vague, leading to eva- Brown decision and the cases that fol-
sion of the new policy. The Supreme lowed it. Although the courts stood
Court justices and many lower federal virtually alone in the quest for racial
judges were persistent, however, and equality for several years, their deci-
kept the policy of racial equality on sions did not go unnoticed. Charles A.
Virginia Military Institute cadets say grace before their evening meal of April 2, 2001, shortly
after the American Civil Liberties Union filed suit to force the school to drop the prayers.
The role of religion in public schools has been one of the most disputed issues before the U.S.
court system in the past 40 years.
Johnson and Bradley C. Canon argue Criminal Due Process

in Judicial Policies: Implementation Judicial policy making in the area of
and Impact that the Brown decision criminal due process is most closely
“was a highly visible Court decision, a associated with Earl Warren’s tenure
judicial attempt to generate one of the as U.S. chief justice (1953-69). Speak-
greatest social reforms in American ing of this era, Archibald Cox, a for-
history. And certainly in the years that mer solicitor general, said, “Never has
followed, African Americans and their there been such a thorough-going re-
allies brought considerable pressures form of criminal procedure within so
on other governmental bodies to de- short a time.” The Warren Court deci-
segregate the schools. Indeed, the sions were aimed primarily at chang-
pressures soon went far beyond ing the procedures followed by the
schools to demand integration of all states in dealing with criminal defen-
aspects of American life.” dants. By the time Warren left the
Supreme Court, new policies had
been established to deal with a wide
range of activities; among the more
far-reaching were Mapp v. Ohio
(1961), Gideon v. Wainwright, and Mi-
randa v. Arizona.
The Mapp decision extended the
exclusionary rule, which had applied
to the national government for a
number of years, to the states. This
rule required state courts to exclude
from trial evidence that had been
illegally seized by the police. Although
some police departments, especially
in major urban areas, have tried
to establish specific guidelines for
their officers to follow in obtaining
evidence, such efforts have not been
universal. Because of variations in
police practices and differing lower-
After Clarence Earl Gideon petitioned the
Supreme Court that he had not had legal court interpretations of what con-
representation before a Florida court, the stitutes a valid search and seizure,
Justices ruled in 1963 that indigent implementation of Mapp has not
defendants must be provided attorneys
when they go to trial in felony cases.
been consistent throughout the
United States.
U.S. Chief Justice Earl Warren, seen here in a 1961 photo. During his tenure, 1953-69, the
Supreme Court sparked major reforms in criminal procedure through landmark decisions,
including Gideon v. Wainwright and Miranda v. Arizona.
Perhaps even more important in ary rule. Furthermore, subsequent

reducing the expected impact of Mapp Supreme Court decisions have broad-
was the lack of solid support for the ened the scope of legal searches, thus
exclusionary rule among the Supreme limiting the applicability of the rule.
Court justices. The decision was not a The Gideon v. Wainwright decision
unanimous one to begin with, and held that indigent defendants must be
over the years some justices have provided attorneys when they go to
been openly critical of the exclusion- trial in a felony case in the state courts.
Many states routinely provided attor- have an attorney present during ques-
neys in such trials even before the tioning. Suspects must also be advised
Court’s decision. The other states that they have a right to remain silent
began to comply in a variety of ways. and that any statement they make may
Public defender programs were estab- be used in court; that if they cannot
lished in many regions. In other areas, afford an attorney, one will be provid-
local bar associations cooperated with ed at state expense; and that they have
judges to implement some method the right to stop answering questions
of complying with the Supreme at any time. These requirements are so
Court’s new policy. clearly stated that police departments
The impact of the Gideon decision have actually copied them down on
is clearer and more consistent than cards for officers to carry in their shirt
that of Mapp. One reason, no doubt, is pockets. Then, when suspects are
the fact that many states had already taken into custody, the police officers
implemented the policy called for by simply remove the card and read the
Gideon. It was simply more widely ac- suspects their rights.
cepted than the policy established by In terms of whether police
Mapp. The policy announced in officers read the Miranda rights to
Gideon was also more sharply defined persons they arrest, there has been a
than the one in Mapp. Although the high level of compliance with the
Court did not specify whether a public Supreme Court policy. Some re-
defender or a court-appointed lawyer searchers, however, have questioned
must be provided, it is still clear that the impact of Miranda because of the
the indigent defendant must have the method by which suspects may be ad-
help of an attorney. Also, the Supreme vised of their rights. It is one thing to
Court under the next chief justice, read to a person from a card; it is an-
Warren Burger (1969-86), did not re- other to explain what is meant by the
treat from the Warren Court’s policy High Court’s requirements and then
of providing an attorney for indigent try to make the suspect understand
defendants as it did in the search and them. Looked at in this manner, the
seizure area addressed by Mapp. All impact of the policy announced in
these factors add up to a more recog- Miranda is not quite as clear.
nizable impact for the policy an- The Burger Court did not show an
nounced in Gideon. inclination to lend its solid support to
In Miranda v. Arizona the Supreme the Warren Court’s Miranda policy.
Court went a step further and ruled Although Miranda has not been over-
that police officers must advise sus- ruled, its impact has been limited
pects taken into custody of their con- somewhat. In Harris v. New York
stitutional rights, one of which is to (1971), for example, the Burger Court
ruled that statements made by an indi- In sum, the impact of the Supreme
vidual who had not been given the Mi- Court’s criminal justice policies has
randa warning could be used to chal- been mixed, for several reasons. In
lenge the credibility of his testimony at some instances ambiguity is a prob-
trial. Then, the Court, under the lead- lem. In other cases, less than solid sup-
ership of Chief Justice William Rehn- port for the policy may be evident
quist (1986- ), ruled in Davis v. United among justices or support erodes
States (1994) that police are not re- when one Court replaces another. All
quired to stop questioning a suspect these variables translate into greater
who makes an ambiguous request to discretion for the implementers.
have an attorney present.
Congress reacted to Miranda, two Abortion
years after the decision, by enacting In Roe v. Wade (1973) the Supreme
a statute that in essence made the Court ruled that a woman has an
admissibility of a suspect’s statements absolute right to an abortion during
turn solely on whether they were made the first trimester of pregnancy; that
voluntarily. The statute received little a state may regulate the abortion
attention until 1999 when the Fourth procedure during the second trimester
Circuit Court of Appeals, in a case in order to protect the mother’s
involving an alleged bank robber who health; and that, during the third
moved to suppress a statement he trimester, the state may regulate or
made to the FBI on grounds that he even prohibit abortions, except where
had not received “Miranda warnings” the life or health of the mother
before being interrogated, held that is endangered.
the statute was satisfied because his The reaction to this decision was
statement was voluntary. The court immediate, and primarily negative. It
of appeals decision raised the came in the form of letters to individ-
question whether the congressional ual justices, public speeches, the intro-
statute or the High Court’s Miranda duction of resolutions in Congress,
decision should be followed. On and the advocacy of “right to life”
June 26, 2000, the U.S. Supreme amendments in Congress. Given the
Court held that Miranda, being a controversial nature of the Court’s de-
constitutional decision of the Court, cision, hospitals did not wholeheart-
could not in effect be overruled by edly offer to support the decision by
an act of Congress. In other words, changing their abortion policies.
the Miranda decision still governs the Reaction to the Court’s abortion
admissibility of statements made policy has not only continued but also
during custodial interrogation in state has moved into new areas. Recent
and federal courts. presidential elections have seen the
two major party platforms and can- amendments to appropriations bills

didates take opposing stands on the preventing the expenditure of federal
abortion issue. Democratic platforms funds for elective abortions. In 1980
and nominees have generally ex- the Supreme Court, in a five-to-four
pressed support for Roe v. Wade, vote, upheld the constitutionality of
whereas the Republican platforms such a prohibition.
and contenders have noted opposition Most of the legislation in the after-
to the Supreme Court’s decision. math of the Roe decision has been at
Congress has also been a hotbed of the state level. One study reports that
activity in response to the Supreme within two years of the decision 32
Court’s abortion decision. Unable to states had passed 62 laws relating to
secure passage of a constitutional abortion, most aimed at limiting ac-
amendment to overturn Roe v. Wade, cess to abortions, regulating abortion
antiabortion — also known as pro- procedures, or prohibiting abortions
life — forces successfully lobbied for under certain conditions.
Since the Supreme Court’s Roe v. Wade abortion ruling, the battles between supporters
and opponents of abortion are being fought in Congress, at all levels of the judiciary, and in
the political arena.
Interest group activity increased limitations and placed in a political

dramatically after the Roe decision. system of divided powers. To ask them
Groups opposing the decision often to produce significant social reforms
organized public demonstrations is to forget their history and ignore
against the decision and later began to their constraints.”
picket clinics. Interest groups that sup- Within this complex framework of
port the Roe v. Wade decision have competing political and social de-
been more likely to focus their efforts mands and expectations is a policy-
on the courts. making role for the courts. Because
While battles over the abortion the other two branches of government
issue were being fought in the courts, are sometimes not receptive to the
political campaigns, and legislative demands of certain segments of socie-
arenas, others preferred a more direct ty, the only alternative for those indi-
approach, demonstrating at and viduals or groups is to turn to the
blockading abortion centers. The courts. Civil rights organizations, for
Supreme Court has ruled, however, example, made no real headway until
that reasonable time, place, and man- they found the Supreme Court to be
ner restrictions may be placed on such a supportive forum for their school
demonstrations. That position was desegregation efforts.
reaffirmed on June 28, 2000, when the As civil rights groups attained
Court upheld a Colorado statute some success in the federal courts,
making it unlawful for a person to others were encouraged to employ lit-
knowingly approach another person igation as a strategy. For example,
without that person’s consent to hand women’s rights supporters followed a
out a leaflet, display a sign, or orally pattern established by minority
protest within 100 feet of a health groups when they began taking their
care facility. grievances to the courts. What began
as a more narrow pursuit for racial
Conclusions equality was thus broadened to a quest
Some judicial policies have a greater for equality for other disadvantaged
impact on society than others. The groups in society.
judiciary plays a greater role in de- Clearly, then, the courts can an-
veloping the nation’s policies than nounce policy decisions that attract
the constitutional framers envisioned. national attention and perhaps stress
However, “American courts are not the fact that other policy makers have
all-powerful institutions,” writes failed to act. In this way the judiciary
Gerald N. Rosenberg in Hollow Hope: may invite the other branches to
Can Courts Bring About Social Change? exercise their policy-making powers.
“They were designed with severe Follow-up decisions indicate the
judiciary’s determination to pursue a outcries of protest. Furthermore, it

particular policy and help keep alive was a policy that primarily required
the invitation for other policy makers the support of judges and lawyers; ac-
to join in the endeavor. tion by Congress and the president
All things considered, the courts was not really necessary. A policy of
seem best equipped to develop and equality for all segments of society,
implement narrow policies that are on the other hand, is so broad and
less controversial in nature. The policy controversy-laden that it must move
established in the Gideon case pro- beyond the judiciary. As it does so,
vides a good example. The decision the courts become simply one part, al-
that indigent defendants in state crim- beit an important part, of the policy-
inal trials must be provided with an making process.
attorney did not meet any strong
177
THE CONSTITUTION OF
THE UNITED STATES
The following text of the United States Constitution reflects the original
spelling and usage. Brackets [ ] indicate parts that have been changed or set
aside by amendments.
PREAMBLE:
We the People of the United States, in Order to form a more perfect

Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America.
ARTICLE. I.
Section. 1.
All legislative Powers herein granted shall be vested in a Congress of the

United States, which shall consist of a Senate and House of Representatives.
Section. 2.
The House of Representatives shall be composed of Members chosen every

second Year by the People of the several States, and the Electors in each State
shall have the Qualifications requisite for Electors of the most numerous
Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of
twenty five Years, and been seven Years a Citizen of the United States, and
who shall not, when elected, be an Inhabitant of that State in which he shall
be chosen.
Representatives and direct Taxes shall be apportioned among the several

States [which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole
Number of free Persons, including those bound to Service for a Term of
Years, and excluding Indians not taxed, three fifths of all other Persons.] The
actual Enumeration shall be made within three Years after the first Meeting of
the Congress of the United States, and within every subsequent Term of ten
Years, in such Manner as they shall by Law direct. The number of
Representatives shall not exceed one for every thirty Thousand, but each State
shall have at Least one Representative; and until such enumeration shall be
made, the State of New Hampshire shall be entitled to chuse three,
Massachusetts eight, Rhode-Island and Providence Plantations one,
Connecticut five, New-York six, New Jersey four, Pennsylvania eight,
Delaware one, Maryland six, Virginia ten, North Carolina five, South
Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Executive
Authority thereof shall issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers;
and shall have the sole Power of Impeachment.
Section. 3.
The Senate of the United States shall be composed of two Senators from each
State, [chosen by the Legislature thereof,] for six Years; and each Senator shall
have one Vote.
Immediately after they shall be assembled in Consequence of the first

Election, they shall be divided as equally as may be into three Classes. The
Seats of the Senators of the first Class shall be vacated at the Expiration of the
second Year, of the second Class at the Expiration of the fourth Year, and of
the third Class at the Expiration of the sixth Year; so that one third may be
chosen every second Year; [and if Vacancies happen by Resignation, or
otherwise, during the Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the next Meeting of the
Legislature, which shall then fill such Vacancies.]
No Person shall be a Senator who shall not have attained to the Age of thirty
Years, and been nine Years a Citizen of the United States, and who shall not,
when elected, be an Inhabitant of that State for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but
shall have no Vote, unless they be equally divided.
THE CONSTITUTION OF THE UNITED STATES 179
The Senate shall chuse their other Officers, and also a President pro tempore,
in the Absence of the Vice President, or when he shall exercise the Office of
President of the United States.
The Senate shall have the sole Power to try all Impeachments. When sitting
for that Purpose, they shall be on Oath or Affirmation. When the President of
the United States is tried, the Chief Justice shall preside: And no Person shall
be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal

from Office, and disqualification to hold and enjoy any Office of honor, Trust
or Profit under the United States: but the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and Punishment,
according to Law.
Section. 4.
The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof;
but the Congress may at any time by Law make or alter such Regulations,
[except as to the Places of chusing Senators.]
The Congress shall assemble at least once in every Year, [and such
Meeting shall be on the first Monday in December,] unless they shall by Law
appoint a different Day.
Section. 5.
Each House shall be the Judge of the Elections, Returns and Qualifications of
its own Members, and a Majority of each shall constitute a Quorum to do
Business; but a smaller Number may adjourn from day to day, and may be
authorized to compel the Attendance of absent Members, in such Manner,
and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members
for disorderly Behaviour; and, with the Concurrence of two thirds, expel a
Member.
Each House shall keep a Journal of its Proceedings, and from time to time
publish the same, excepting such Parts as may in their Judgment require
Secrecy; and the Yeas and Nays of the Members of either House on any
question shall, at the Desire of one fifth of those Present, be entered on
the Journal.
Neither House, during the Session of Congress, shall, without the Consent of
the other, adjourn for more than three days, nor to any other Place than that
in which the two Houses shall be sitting.
Section. 6.
The Senators and Representatives shall receive a Compensation for their

Services, to be ascertained by Law, and paid out of the Treasury of the United
States. They shall in all Cases, except Treason, Felony and Breach of the
Peace, be privileged from Arrest during their Attendance at the Session of
their respective Houses, and in going to and returning from the same; and for
any Speech or Debate in either House, they shall not be questioned in any
other Place.
No Senator or Representative shall, during the Time for which he was elected,
be appointed to any civil Office under the Authority of the United States,
which shall have been created, or the Emoluments whereof shall have been
encreased during such time; and no Person holding any Office under the
United States, shall be a Member of either House during his Continuance in
Office.
Section. 7.
All Bills for raising Revenue shall originate in the House of Representatives;
but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the
Senate, shall, before it become a Law, be presented to the President of the
United States; If he approve he shall sign it, but if not he shall return it, with
his Objections to that House in which it shall have originated, who shall enter
the Objections at large on their Journal, and proceed to reconsider it. If after
such Reconsideration two thirds of that House shall agree to pass the Bill, it
shall be sent, together with the Objections, to the other House, by which it
shall likewise be reconsidered, and if approved by two thirds of that House, it

shall become a Law. But in all such Cases the Votes of both Houses shall be
determined by yeas and Nays, and the Names of the Persons voting for and
against the Bill shall be entered on the Journal of each House respectively. If
any Bill shall not be returned by the President within ten Days (Sundays
excepted) after it shall have been presented to him, the Same shall be a Law, in
like Manner as if he had signed it, unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and
House of Representatives may be necessary (except on a question of
Adjournment) shall be presented to the President of the United States; and
before the Same shall take Effect, shall be approved by him, or being
disapproved by him, shall be repassed by two thirds of the Senate and House
of Representatives, according to the Rules and Limitations prescribed in the
Case of a Bill.
Section. 8.
The Congress shall have Power

To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United States;
but all Duties, Imposts and Excises shall be uniform throughout the United
States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the

subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the
Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current

Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use

shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval
Forces;
To provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the Officers,
and the Authority of training the Militia according to the discipline
prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District

(not exceeding ten Miles square) as may, by Cession of particular States, and
the Acceptance of Congress, become the Seat of the Government of the
United States, and to exercise like Authority over all Places purchased by the
Consent of the Legislature of the State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings;—And
To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department
or Officer thereof.
Section. 9.
The Migration or Importation of such Persons as any of the States now

existing shall think proper to admit, shall not be prohibited by the Congress
prior to the Year one thousand eight hundred and eight, but a Tax or duty
may be imposed on such Importation, not exceeding ten dollars for each
Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, [or other direct,] Tax shall be laid, unless in Proportion to the
Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to

the Ports of one State over those of another: nor shall Vessels bound to, or
from, one State, be obliged to enter, clear, or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from time
to time.
No Title of Nobility shall be granted by the United States: And no Person

holding any Office of Profit or Trust under them, shall, without the Consent
of the Congress, accept of any present, Emolument, Office, or Title, of any
kind whatever, from any King, Prince, or foreign State.
Section. 10.
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters
of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing
but gold and silver Coin a Tender in Payment of Debts; pass any Bill of
Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or
grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or
Duties on Imports or Exports, except what may be absolutely necessary for
executing it’s inspection Laws: and the net Produce of all Duties and Imposts,
laid by any State on Imports or Exports, shall be for the Use of the Treasury of
the United States; and all such Laws shall be subject to the Revision and
Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage,
keep Troops, or Ships of War in time of Peace, enter into any Agreement or
Compact with another State, or with a foreign Power, or engage in War,
unless actually invaded, or in such imminent Danger as will not admit of
delay.
ARTICLE. II.
Section. 1.
The executive Power shall be vested in a President of the United States of

America. He shall hold his Office during the Term of four Years, and, together
with the Vice President, chosen for the same Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress: but no
Senator or Representative, or Person holding an Office of Trust or Profit
under the United States, shall be appointed an Elector.
[The Electors shall meet in their respective States, and vote by Ballot for two
Persons, of whom one at least shall not be an Inhabitant of the same State
with themselves. And they shall make a List of all the Persons voted for, and of
the Number of Votes for each; which List they shall sign and certify, and
transmit sealed to the Seat of the Government of the United States, directed
to the President of the Senate. The President of the Senate shall, in the
Presence of the Senate and House of Representatives, open all the Certificates,
and the Votes shall then be counted. The Person having the greatest Number
of Votes shall be the President, if such Number be a Majority of the whole
Number of Electors appointed; and if there be more than one who have such
Majority, and have an equal Number of Votes, then the House of
Representatives shall immediately chuse by Ballot one of them for President;
and if no Person have a Majority, then from the five highest on the List the
said House shall in like Manner chuse the President. But in chusing the
President, the Votes shall be taken by States, the Representation from each
State having one Vote; A quorum for this Purpose shall consist of a Member
or Members from two thirds of the States, and a Majority of all the States
shall be necessary to a Choice. In every Case, after the Choice of the
President, the Person having the greatest Number of Votes of the Electors
shall be the Vice President. But if there should remain two or more who have
equal Votes, the Senate shall chuse from them by Ballot the Vice President.]
The Congress may determine the Time of chusing the Electors, and the Day
on which they shall give their Votes; which Day shall be the same throughout
the United States.
No Person except a natural born Citizen, or a Citizen of the United States, at

the time of the Adoption of this Constitution, shall be eligible to the Office of
President; neither shall any person be eligible to that Office who shall not
have attained to the Age of thirty five Years, and been fourteen Years a
Resident within the United States.
In Case of the Removal of the President from Office, or of his Death,

Resignation, or Inability to discharge the Powers and Duties of the said
Office, the Same shall devolve on the Vice President, and the Congress may by
Law provide for the Case of Removal, Death, Resignation or Inability, both of
the President and Vice President, declaring what Officer shall then act as
President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation,
which shall neither be increased nor diminished during the Period for which
he shall have been elected, and he shall not receive within that Period any
other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following
Oath or Affirmation: — “I do solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States, and will to the best of my
Ability, preserve, protect and defend the Constitution of the United States.”
Section. 2.
The President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called into the
actual Service of the United States; he may require the Opinion, in writing, of
the principal Officer in each of the executive Departments, upon any Subject
relating to the Duties of their respective Offices, and he shall have Power to
grant Reprieves and Pardons for Offences against the United States, except in
Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to
make Treaties, provided two thirds of the Senators present concur; and he
shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which shall expire
at the End of their next Session.
Section. 3.
He shall from time to time give to the Congress Information of the State of
the Union, and recommend to their Consideration such Measures as he shall
judge necessary and expedient; he may, on extraordinary Occasions, convene
both Houses, or either of them, and in Case of Disagreement between them,
with Respect to the Time of Adjournment, he may adjourn them to such
Time as he shall think proper; he shall receive Ambassadors and other public
Ministers; he shall take Care that the Laws be faithfully executed, and shall
Commission all the Officers of the United States.
Section. 4.
The President, Vice President and all civil Officers of the United States, shall
be removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.
ARTICLE. III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain
and establish. The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behaviour; and shall, at stated Times, receive for
their Services, a Compensation, which shall not be diminished during their
Continuance in Office.
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority;— to all Cases affecting Ambassadors,
other public Ministers and Consuls;— to all Cases of admiralty and maritime
Jurisdiction;— to Controversies to which the United States shall be a Party;—
to Controversies between two or more States;— [between a State and Citizens
of another State;]— between Citizens of different States,— between Citizens
of the same State claiming Lands under Grants of different States, and between
a State, or the Citizens thereof, and foreign States, [Citizens or Subjects.]
In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and
such Trial shall be held in the State where the said Crimes shall have been
committed; but when not committed within any State, the Trial shall be at
such Place or Places as the Congress may by Law have directed.
Section. 3.
Treason against the United States, shall consist only in levying War against
them, or in adhering to their Enemies, giving them Aid and Comfort. No
Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.
ARTICLE. IV.
Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records,
and judicial Proceedings of every other State. And the Congress may by
general Laws prescribe the Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect thereof.
Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall
flee from Justice, and be found in another State, shall on Demand of the
executive Authority of the State from which he fled, be delivered up, to be
removed to the State having Jurisdiction of the Crime.
[No Person held to Service or Labour in one State, under the Laws thereof,
escaping into another, shall, in Consequence of any Law or Regulation
therein, be discharged from such Service or Labour, but shall be delivered up
on Claim of the Party to whom such Service or Labour may be due.]
Section. 3.
New States may be admitted by the Congress into this Union; but no new
State shall be formed or erected within the Jurisdiction of any other State; nor
any State be formed by the Junction of two or more States, or Parts of States,
without the Consent of the Legislatures of the States concerned as well as of
the Congress.
The Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the
United States; and nothing in this Constitution shall be so construed as to
Prejudice any Claims of the United States, or of any particular State.
Section. 4.
The United States shall guarantee to every State in this Union a Republican
Form of Government, and shall protect each of them against Invasion; and
on Application of the Legislature, or of the Executive (when the Legislature
cannot be convened) against domestic Violence.
ARTICLE. V.
The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents
and Purposes, as Part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in three fourths thereof,
as the one or the other Mode of Ratification may be proposed by the Congress;
Provided [that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first and
fourth Clauses in the Ninth Section of the first Article; and] that no State,
without its Consent, shall be deprived of its equal Suffrage in the Senate.
ARTICLE. VI.
All Debts contracted and Engagements entered into, before the Adoption of
this Constitution, shall be as valid against the United States under this
Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be 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.
The Senators and Representatives before mentioned, and the Members of

the several State Legislatures, and all executive and judicial Officers, both of
the United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution; but no religious Test shall ever be
required as a Qualification to any Office or public Trust under the
United States.
ARTICLE. VII.
The Ratification of the Conventions of nine States, shall be sufficient for

the Establishment of this Constitution between the States so ratifying
the Same.
(The following statement reflects copyist’s corrections to the original document.)
The Word, “the,” being interlined between the seventh and eighth Lines of the
first Page, The Word “Thirty” being partly written on an Erazure in the
fifteenth Line of the first Page, The Words “is tried” being interlined between
the thirty second and thirty third Lines of the first Page and the Word “the”
being interlined between the forty third and forty fourth Lines of the
second Page.
Attest William Jackson Secretary
done in Convention by the Unanimous Consent of the States present the

Seventeenth Day of September in the Year of our Lord one thousand seven
hundred and Eighty seven and of the Independence of the United States of
America the Twelfth
In witness whereof We have hereunto subscribed our Names,
Go. WASHINGTON — Presid.t

and deputy from Virginia
Delaware New Hampshire

Geo: Read John Langdon
Gunning Bedford jun Nicholas Gilman
John Dickinson
Richard Bassett Massachusetts
Jaco: Broom Nathaniel Gorham
Rufus King
Maryland
James McHenry Connecticut
Dan of St Thos. Jenifer Wm. Saml. Johnson
Danl Carroll Roger Sherman
Virginia New York

John Blair— Alexander Hamilton
James Madison Jr.
New Jersey
North Carolina Wil: Livingston
Wm. Blount David Brearley.
Richd. Dobbs Spaight Wm. Paterson.
Hu Williamson Jona: Dayton
South Carolina Pennsylvania

J. Rutledge B Franklin
Charles Cotesworth Pinckney Thomas Mifflin
Charles Pinckney Robt Morris
Pierce Butler Geo. Clymer
Thos. FitzSimons
Georgia Jared Ingersoll
William Few James Wilson
Abr Baldwin Gouv Morris
AMENDMENTS TO THE CONSTITUTION

OF THE UNITED STATES
(The first ten amendments, known as the Bill of Rights, were ratified in
1791.)
The Preamble to The Bill of Rights
Congress of the United States

begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their

adopting the Constitution, expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further declaratory and restrictive
clauses should be added: And as extending the ground of public confidence in
the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States

of America, in Congress assembled, two thirds of both Houses concurring,
that the following Articles be proposed to the Legislatures of the several
States, as amendments to the Constitution of the United States, all, or any of
which Articles, when ratified by three fourths of the said Legislatures, to be
valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United

States of America, proposed by Congress, and ratified by the Legislatures of
the several States, pursuant to the fifth Article of the original Constitution.
AMENDMENT I
Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES 193
AMENDMENT II
A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.
AMENDMENT III
No Soldier shall, in time of peace be quartered in any house, without the

consent of the Owner; nor in time of war, but in a manner to be prescribed
by law.
AMENDMENT IV
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
AMENDMENT V
No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private property be taken
for public use without just compensation.
AMENDMENT VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
AMENDMENT VII
In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,
shall be otherwise re-examined in any Court of the United States, than
according to the rules of the common law.
AMENDMENT VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed

to deny or disparage others retained by the people.
AMENDMENT X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people.
AMENDMENT XI (1795)
The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.
AMENDMENT XII (1804)
The Electors shall meet in their respective states, and vote by ballot for
President and Vice-President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their ballots
the person voted for as President, and in distinct ballots the person voted for
as Vice-President, and they shall make distinct lists of all persons voted for as
President, and of all persons voted for as Vice-President, and of the number
of votes for each, which lists they shall sign and certify, and transmit sealed to
the seat of the government of the United States, directed to the President of
the Senate;—The President of the Senate shall, in the presence of the Senate
and House of Representatives, open all the certificates and the votes shall then
be counted;—The person having the greatest number of votes for President,
shall be the President, if such number be a majority of the whole number of
Electors appointed; and if no person have such majority, then from the
persons having the highest numbers not exceeding three on the list of those
voted for as President, the House of Representatives shall choose
immediately, by ballot, the President. But in choosing the President, the votes
shall be taken by states, the representation from each state having one vote; a
quorum for this purpose shall consist of a member or members from two-
thirds of the states, and a majority of all the states shall be necessary to a
choice. {And if the House of Representatives shall not choose a President
whenever the right of choice shall devolve upon them, before the fourth day
of March next following, then the Vice-President shall act as President, as in
the case of the death or other constitutional disability of the President}* —
The person having the greatest number of votes as Vice-President, shall be the
Vice-President, if such number be a majority of the whole number of Electors
appointed, and if no person have a majority, then from the two highest
numbers on the list, the Senate shall choose the Vice-President; a quorum for
the purpose shall consist of two-thirds of the whole number of Senators, and
a majority of the whole number shall be necessary to a choice. But no person
constitutionally ineligible to the office of President shall be eligible to that of
Vice-President of the United States.
*Superseded by Section 3 of the Twentieth Amendment.
AMENDMENT XIII (1865)
Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction.
Section 2.
Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XIV (1868)
Section 1.
All persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
Section 2.
Representatives shall be apportioned among the several States according to

their respective numbers, counting the whole number of persons in each
State, [excluding Indians not taxed.] But when the right to vote at any
election for the choice of electors for President and Vice President of the
United States, Representatives in Congress, the Executive and Judicial officers
of a State, or the members of the Legislature thereof, is denied to any of the
male inhabitants of such State, being twenty-one years of age,* and citizens of
the United States, or in any way abridged, except for participation in
rebellion, or other crime, the basis of representation therein shall be reduced
in the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.
*Changed by Section 1 of the Twenty-sixth Amendment.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of

President and Vice President, or hold any office, civil or military, under the
United States, or under any State, who, having previously taken an oath, as a
member of Congress, or as an officer of the United States, or as a member of
any State legislature, or as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to the
enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be questioned. But neither
the United States nor any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any
claim for the loss or emancipation of any slave; but all such debts, obligations
and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the

provisions of this article.
AMENDMENT XV (1870)
Section 1.
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.
Section 2.
The Congress shall have power to enforce this article by appropriate

legislation.
AMENDMENT XVI (1913)
The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States,
and without regard to any census or enumeration.
AMENDMENT XVII (1913)
The Senate of the United States shall be composed of two Senators from each
State, elected by the people thereof, for six years; and each Senator shall have
one vote. The electors in each State shall have the qualifications requisite for
electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the
executive authority of such State shall issue writs of election to fill such
vacancies: Provided, That the legislature of any State may empower the
executive thereof to make temporary appointments until the people fill the
vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of

any Senator chosen before it becomes valid as part of the Constitution.
AMENDMENT XVIII (1919, repealed by Amendment XXI)
Section 1.
After one year from the ratification of this article the manufacture, sale, or
transportation of intoxicating liquors within, the importation thereof into, or
the exportation thereof from the United States and all territory subject to the
jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2.
The Congress and the several States shall have concurrent power to enforce
this article by appropriate legislation.
Section 3.
This article shall be inoperative unless it shall have been ratified as an

amendment to the Constitution by the legislatures of the several States, as
provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
AMENDMENT XIX (1920)
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XX (1933)
Section 1.
The terms of the President and Vice President shall end at noon on the
20th day of January, and the terms of Senators and Representatives at noon
on the 3d day of January, of the years in which such terms would have ended
if this article had not been ratified; and the terms of their successors shall
then begin.
Section 2.
The Congress shall assemble at least once in every year, and such meeting
shall begin at noon on the 3d day of January, unless they shall by law appoint
a different day.
Section 3.
If, at the time fixed for the beginning of the term of the President, the
President elect shall have died, the Vice President elect shall become
President. If a President shall not have been chosen before the time fixed for
the beginning of his term, or if the President elect shall have failed to qualify,
then the Vice President elect shall act as President until a President shall have
qualified; and the Congress may by law provide for the case wherein neither a
President elect nor a Vice President elect shall have qualified, declaring who
shall then act as President, or the manner in which one who is to act shall be
selected, and such person shall act accordingly until a President or Vice
President shall have qualified.
Section 4.
The Congress may by law provide for the case of the death of any of the
persons from whom the House of Representatives may choose a President
whenever the right of choice shall have devolved upon them, and for the case
of the death of any of the persons from whom the Senate may choose a Vice
President whenever the right of choice shall have devolved upon them.
Section 5.
Sections 1 and 2 shall take effect on the 15th day of October following the
ratification of this article.
Section 6.

amendment to the Constitution by the legislatures of three-fourths of the
several States within seven years from the date of its submission.
AMENDMENT XXI (1933)
Section 1.
The eighteenth article of amendment to the Constitution of the United States

is hereby repealed.
Section 2.
The transportation or importation into any State, Territory, or possession of
the United States for delivery or use therein of intoxicating liquors, in
violation of the laws thereof, is hereby prohibited.
Section 3.

amendment to the Constitution by conventions in the several States, as
provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
AMENDMENT XXII (1951)
Section 1.
No person shall be elected to the office of the President more than twice, and
no person who has held the office of President, or acted as President, for
more than two years of a term to which some other person was elected
President shall be elected to the office of the President more than once. But
this article shall not apply to any person holding the office of President when
this article was proposed by the Congress, and shall not prevent any person
who may be holding the office of President, or acting as President, during the
term within which this article becomes operative from holding the office of
President or acting as President during the remainder of such term.
Section 2.

amendment to the Constitution by the legislatures of three-fourths of the
several states within seven years from the date of its submission to the states
by the Congress.
AMENDMENT XXIII (1961)
Section 1.
The District constituting the seat of government of the United States shall
appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole

number of Senators and Representatives in Congress to which the District
would be entitled if it were a state, but in no event more than the least
populous state; they shall be in addition to those appointed by the states, but
they shall be considered, for the purposes of the election of President and
Vice President, to be electors appointed by a state; and they shall meet in the
District and perform such duties as provided by the twelfth article of
amendment.
Section 2.

legislation.
AMENDMENT XXIV (1964)
Section 1.
The right of citizens of the United States to vote in any primary or other
election for President or Vice President, for electors for President or Vice
President, or for Senator or Representative in Congress, shall not be denied or

abridged by the United States or any state by reason of failure to pay any poll
tax or other tax.
Section 2.

legislation.
AMENDMENT XXV (1967)
Section 1.
In case of the removal of the President from office or of his death or

resignation, the Vice President shall become President.
Section 2.
Whenever there is a vacancy in the office of the Vice President, the President
shall nominate a Vice President who shall take office upon confirmation by a
majority vote of both Houses of Congress.
Section 3.
Whenever the President transmits to the President pro tempore of the Senate
and the Speaker of the House of Representatives his written declaration that
he is unable to discharge the powers and duties of his office, and until he
transmits to them a written declaration to the contrary, such powers and
duties shall be discharged by the Vice President as Acting President.
Section 4.
Whenever the Vice President and a majority of either the principal officers of
the executive departments or of such other body as Congress may by law
provide, transmit to the President pro tempore of the Senate and the Speaker
of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Vice President
shall immediately assume the powers and duties of the office as Acting
President.
Thereafter, when the President transmits to the President pro tempore of the
Senate and the Speaker of the House of Representatives his written
declaration that no inability exists, he shall resume the powers and duties of
his office unless the Vice President and a majority of either the principal
officers of the executive department or of such other body as Congress may
by law provide, transmit within four days to the President pro tempore of the
Senate and the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of
his office. Thereupon Congress shall decide the issue, assembling within
forty-eight hours for that purpose if not in session. If the Congress, within
twenty-one days after receipt of the latter written declaration, or, if Congress
is not in session, within twenty-one days after Congress is required to
assemble, determines by two-thirds vote of both Houses that the President is
unable to discharge the powers and duties of his office, the Vice President
shall continue to discharge the same as Acting President; otherwise, the
President shall resume the powers and duties of his office.
AMENDMENT XXVI (1971)
Section 1.
The right of citizens of the United States, who are 18 years of age or older, to
vote, shall not be denied or abridged by the United States or any State on
account of age.
Section 2.
The Congress shall have the power to enforce this article by appropriate
legislation.
AMENDMENT XXVII (1992)
No law, varying the compensation for the services of the Senators and
Representatives, shall take effect, until an election of Representatives shall
have intervened.
GLOSSARY
Activism (judicial). The willingness Amicus curiae. (“Friend of the

of a judge to inject into a case his or court.”) A person (or group), not a
her own personal values about what is party to a case, who submits views
good and bad public policy. See also (usually in the form of written briefs)
self-restraint (judicial). about how the case should be decided.
Actus reus. The material element of Answer. The formal written

the crime, which may be the statement by a defendant responding
commission of a forbidden action (for to a civil complaint and setting forth
example, robbery) or the failure to the grounds for his or her defense.
perform a required action (for
example, to stop and render aid to a Appellate jurisdiction. The
motor vehicle accident victim). authority of a higher court to review
the decision of a lower court.
Adversarial process. The process
used in American courtrooms where Arraignment. The process in which
the trial is seen as a battle between two the defendant is brought before the
opposing sides, and the role of the judge in the court where he or she is to
judge is to act as a sort of passive be tried to respond to the grand jury
referee. See also inquisitorial method. indictment or the prosecutor’s bill of
information.
Advisory opinions. Rendering a
decision on an abstract or Bail. A sum of money put up with
hypothetical question (something the court by the defendant to ensure
that American courts are not that he or she will appear at the time
supposed to do). of trial.
Alternative dispute resolution Bench trial. Trial without a jury in

(ADR). Methods of resolving disputes which the judge decides which party
(often with the help of neutral third prevails.
parties) without a trial. Mediation
and arbitration are two well-known
ADR techniques.
GLOSSARY 205
Bill of attainder. A law, forbidden by Collegial courts. Courts having

the U.S. Constitution, that makes more than one judge, which are almost
conduct illegal for one person (or class always appellate courts.
of persons) but not for the population
in general. Common law. A system of law
inherited from England based on legal
Bill of information. A statement of precedents or tradition instead of
the charges against the accused statutory law or systematic legal codes.
prepared by the prosecutor, which, if
approved by a judge, will require the Complaint. A written statement filed
accused to stand trial for the alleged by the plaintiff that initiates a civil
crimes. This is used in states that do case. It states the wrongs allegedly
not employ a grand jury. committed by the defendant and
requests relief from the court.
Certification. The procedure by
which one of the U.S. appeals courts Concurrent jurisdiction. A situation
asks the U.S. Supreme Court for in which two courts have a legal right
instructions or clarification about a to hear the same case. For example,
particular legal matter. Either the both the U.S. Supreme Court and U.S.
justices may choose to honor this trial courts have concurrent
request or not, or they may request jurisdiction in certain cases brought by
that the entire record of the case be or against ambassadors or counsels.
sent to the Supreme Court for review
and final judgment. Concurring opinion. An opinion by
a member of a court that agrees with
Civil law. The law that pertains to the the result reached in a case but offers
relationship between one private its own rationale for the decision.
citizen and another, between a private
citizen and a corporation, or between Corpus juris. The entire body of law
one corporation and another. for a particular legal entity.
Class action. A suit brought by Courtroom workgroup. The regular

persons having similar grievances participants in the day-to-day
against a common entity; for example, activities of a particular courtroom.
a group of smokers with lung cancer The most visible members of this
suing a tobacco company. group are judges, prosecutors, and
defense attorneys.
Court of appeals. A court that is Deposition. An oral statement made

higher than an ordinary trial court and before an officer authorized by law to
has the function of reviewing or administer oaths. Such statements are
correcting the decisions of trial judges. often taken to examine potential
witnesses in the discovery process.
Crime. An offense against the state
punishable by fine, imprisonment, or Discovery. The process by which
death. lawyers learn about their opponent’s
case in preparation for trial. Typical
Criminal law. The law that pertains tools of discovery include depositions,
to offenses against the state itself, interrogatories, and requests for
actions that may be directed against a documents.
person but that are deemed to be
offensive to society as a whole — for Dissenting opinion. An opinion by a
example, armed robbery or rape. member of a court that disagrees with
the result reached in the case by the
Cross-examination. During a trial, court.
the questions posed to a witness who
has been called to the stand by the Diversity of citizenship suit. A civil
opposing attorney. legal proceeding brought by a citizen
of one state against a citizen of another
Damages. Money paid by defendants state.
to successful plaintiffs in civil cases to
compensate the plaintiffs for their En banc. (“In the bench” or “as a full
injuries. Compensatory damages are bench.”) Court sessions with the entire
designed to cover the plaintiff ’s actual membership of a court participating,
loss; punitive damages are designed to not just a smaller panel of judges.
punish the defendant.
Equity. That realm of the law in
Declaratory judgment. When a which the judge is able to issue a
court outlines the rights of the parties remedy that will either prevent or cure
under a statute, a will, or a contract. the wrong that is about to happen; for
example, an injunction against an
Defendant. In a civil case, the person illegal strike by a union.
or organization against whom the
plaintiff brings suit; in a criminal case, Ex post facto law. Forbidden by the
the person accused of the crime. U.S. Constitution, this law declares
conduct to be illegal after the conduct
takes place.
GLOSSARY 207
Federal question. If a court case Inquisitorial method. The

centers around the interpretation of a procedure used in most European and
federal law, the U.S. Constitution, or a Latin American courtrooms in which
treaty, then it contains a federal the judge and jury take an active role
question and the case may be heard by in the trial and the attorneys act only
a U.S. court. to aid and supplement the judicial
inquiry. See also adversarial process.
Felony. Any offense for which the
penalty may be death or Interrogatories. Written questions
imprisonment in a penitentiary. sent by one party in a lawsuit to an
opposing party as part of pretrial
Grand jury. A body of 16 to 23 discovery in civil cases. The party
citizens who listen to evidence of receiving the interrogatories is
criminal allegations, which is required to answer them in writing
presented by the prosecutors, and under oath.
determine whether probable cause
exists to believe an individual Judgment. The official decision of a
committed an offense. See also court finally resolving the dispute
indictment. between the parties to the lawsuit.
Habeas corpus. A writ (court order) Judicial review. The power of the
that is usually used to bring a prisoner judicial branch to declare acts of the
before the court to determine the executive and legislative branches
legality of his or her imprisonment. unconstitutional.
Impeachment. The only way in Jurisdiction. The authority of a court

which a federal judge may be removed to hear and decide legal disputes and
from office. The House of to enforce its rulings.
Representatives brings the charge(s),
and the Senate, following trial, Justiciability. Whether a judge ought
convicts by a two-thirds vote of the to hear or refrain from hearing certain
membership. types of cases. It differs from
jurisdiction, which pertains to the
Indictment. The decision of a grand technical right of a judge to hear a
jury to order a defendant to stand trial case. For example, lawsuits dealing
because the jury believes that probable with political questions are considered
cause exists to warrant a trial. nonjusticiable.
Law. A social norm that is sanctioned run in a retention election. Voters thus
in threat or in fact by the application determine whether the judge should
of physical force. The party that be retained for a full term.
exercises such physical force is
recognized by society as legitimately Misdemeanor. A petty crime.
having this kind of authority, such as a Punishment usually is confinement in
police officer. a city or county jail for less than a year.
Magistrate. A lower level judicial Moot. Describes a case when the

official to whom the accused is basic facts or the status of the parties
brought after the arrest. A magistrate have significantly changed in the
has the obligation of informing the interim when the suit was filed and
accused of the charges against him or when it comes before the judge.
her and of his or her legal rights.
Nolo contendere. (“No contest.”) A
Mandatory sentencing laws. plea by a criminal defendant in which
Statutes that require automatic jail he or she does not deny the facts of the
time for a convicted criminal, usually case but claims that he or she has not
for a minimum period of time. These committed any crime, or it may mean
laws are often for violent crimes in that the defendant does not
which a gun was used and for habitual understand the charges.
offenders.
Opinion of the court. A judge’s
Mens rea. The mental element of the written explanation of the court’s
crime — that is, what was intended by decision. Because the case may be
the perpetrator of the crime. Usually heard by a panel of judges in an
the more intentional and willful the appellate court, the opinion can take
mental state, the more serious the two forms. If all the judges completely
crime. agree with the result, one judge will
write the opinion for all. If all the
Merit selection. A method of judges do not agree, the formal
selecting state judges that requires the decision will be based on the view of
governor to make the appointment the majority, and one member of the
from a short list of names submitted majority will write the decision.
by a special commission established
for that purpose. After serving for a
short period of time, the judge must
GLOSSARY 209
Oral argument. An opportunity for Petit jury (or trial jury). A group of
lawyers to summarize their position citizens who hear the evidence
before the court and to answer the presented by both sides at trial and
judges’ questions. determine the facts in dispute.
Ordinance-making power. The Plaintiff. The person who files the

power of state governors to fill in the complaint in a civil lawsuit.
details of legislation passed by state
legislatures. Plea bargain. A bargain or deal that
has been struck between the
Original jurisdiction. The court that prosecutor and the defendant’s
by law must be the first to hear a attorney whereby some form of
particular type of case. For example, leniency is promised in exchange for a
in suits with at least $75,000 at stake guilty plea.
between citizens from different states,
the federal district courts are the Political question. When the courts
courts of original jurisdiction. refuse to rule because they believe that
under the U.S. Constitution the
Overcharging. The process whereby founders meant that the matter at
a prosecutor charges a criminal hand should be dealt with by Congress
defendant with crimes more serious or the president.
than the facts warrant to obtain a
more favorable plea bargain from the Private law. This deals with the
defendant’s attorney. rights and obligations that private
individuals and institutions have when
Per curiam. (“By the court.”) An they relate to one another.
unsigned opinion of the court, often
brief. Probation. Punishment for a crime
that allows the offender to remain in
Peremptory challenge. An the community and out of jail so long
objection that an attorney might have as he or she follows court-ordered
to a prospective juror. The juror may guidelines about his or her behavior.
be eliminated from the array without
the attorney having to give a public Pro bono publico. (“For the public
reason for the objection. The number good.”) Usually refers to legal
of such challenges is limited by law. representation undertaken without fee
for some charitable or public purpose.
Public law. The relationships that Senatorial courtesy. Under this

individuals have with the state as a practice, senators of the president’s
sovereign entity — for example, the political party who object to a
tax code, criminal laws, and Social candidate that the president wishes to
Security legislation. appoint to a district judgeship in their
home state have a virtual veto over the
Recess appointment. An nomination.
appointment made by the president
when Congress is in recess. Persons Sequestration (of jury). In very
appointed in this manner may hold important or notorious cases the jury
office only until Congress reconvenes. may be kept away from the public eye
by the judge, and this usually means
Reversible error. An error that the jury is housed and fed as a
committed at the trial court level that group at taxpayers’ expense.
is so serious that it requires the
appellate court to reverse the decision Socialization (judicial). The process
of the trial judge. by which a new judge is formally and
informally trained to perform the
Rule of four. On the Supreme Court specific tasks of the judgeship.
at least four justices must agree to take
a case before the Court as a whole will Standing. The status of someone
consider it. who wishes to bring a lawsuit. To have
standing, the person must have
Rule of 80. When the sum of a suffered (or be immediately about to
federal judge’s age and number of suffer) a direct and significant injury.
years on the bench is 80, Congress
permits the individual to retire with Stare decisis, the doctrine of.
full pay and benefits. (“Stand by what has been decided.”) In
effect, the tradition of honoring and
Self-restraint (judicial). The following previous decisions of the
reluctance of a judge to inject into a courts and established points of law.
case his or her own personal ideas of
what is good or bad public policy. See Statutory law. The type of law
also activism (judicial). enacted by a legislative body, such as
Congress, a state legislature, or a city
council.
GLOSSARY 211
Three-judge panels (of appellate Voir dire. The procedure by which

courts). Most decisions of the U.S. opposing attorneys question potential
courts of appeals are not made by the jurors to determine whether the jurors
entire court sitting together but by might be prejudicial to their individual
three judges, often selected at random, cases.
to hear any given case.
Warrant. Issued after a complaint,
Three-judge district courts. With filed by one person against another,
some types of important cases has been presented and reviewed by a
Congress has mandated that the case magistrate who has found probable
cannot be heard by a U.S. trial judge cause for the arrest.
acting alone but has to be decided by a
panel of three judges, one of whom Writ of certiorari. An order issued
must be an appeals court judge. by the U.S. Supreme Court directing
the lower court to transfer records for
Tort. A civil wrong or breach of duty a case that it will hear on appeal.
to another person.
Writ of mandamus. A court order
Trial de novo. A new trial in which compelling a public official to perform
the entire case is retried as if no prior his or her duty.
trial had occurred.
Venue. The geographical location in

which a case is tried.
BIBLIO GRAPHY
BOOKS Mullenix, Linda S., Martin Redish, and

Georgene Vairo. Understanding
Federal Courts and Jurisdiction. New
Administrative Office of the United
York, NY: Matthew Bender, 1998.
States Courts. United States Courts:
Their Jurisdiction and Work.
Posner, Richard A. The Federal Courts:
Washington, DC: 1989.
Challenge and Reform. Cambridge,
MA: Harvard University Press, 1996.
Fallon, Richard H., Hart, Henry
Melvin, and Wechsler, Herbert. Hart
Stumpf, Harry P. American Judicial
and Wechsler’s the Federal Courts and
Politics, 2nd ed. Upper Saddle River,
the Federal System, 5th ed. New York,
NJ: Prentice Hall, 1998.
NY: Foundation Press, 2003.
Baum, Lawrence. American Courts:

Process and Policy. 5th ed. Boston, MA: WEB SITES
Houghton Mifflin, 2001.
Facts About the American Judicial
Chemerinsky, Erwin. Federal System
Jurisdiction, 4th ed. New York, NY: http://www.abanet.org/media/
Aspen Publishers, 2003. factbooks/judifact.pdf
Feinman, Jay M. Law 101: Everything Federal Courts and What They Do
You Need to Know About the American http://www.fjc.gov/public/pdf.nsf/
Legal System. New York, NY: Oxford lookup/FCtsWhat.pdf/$file/
University Press, Inc., 2000. FCtsWhat.pdf
Franklin, Carl J. Constitutional Law The Federal Court System in the

for the Criminal Justice Professional. United States: An Introduction for
Boca Raton, FL: CRC Press, 1999. Judges and Judicial Administrators in
Other Countries
Friedman, Lawrence Meir. Law in http://www.uscourts.gov/library/
America: A Short History. New York, internationalbook-fedcts2.pdf
NY: Modern Library, 2002.
BIBLIOGRAPHY 213
InfoUSA — Judicial Branch National Center for State Courts —

http://usinfo.state.gov/usa/infousa/ Court Information Database
politics/judbranc.htm http://www.ncsconline.org/WCDS/
index.htm
Introduction to the Legal System
http://www.cec.org/pubs_info_ Prosecutors in State Courts, 2001
resources/law_treat_agree/summary_ http://www.ojp.usdoj.gov/bjs/pub/
enviro_law/publication/ pdf/psc01.pdf
usdoc.cfm?varlan=english&topic=1
State Court Organization, 1998
JURIST: The Legal Education http://www.ojp.usdoj.gov/bjs/pub/
Network pdf/sco98.pdf
http://www.jurist.law.pitt.edu/
The Supreme Court of the United
Law Library Resource Exchange States
http://www.llrx.com/ http://www.supremecourtus.gov
Legal Encyclopedia Understanding the Federal Courts

http://www.nolo.com/lawcenter/ency/ http://www.uscourts.gov/
index.cfm understand02/
Library of Congress: Guide to Law

Online
http://www.loc.gov/law/guide/us.html
INDEX
A B
Abortion, 173–175 Bail, 98, 99
Actus reus, 95 Baker v. Carr, 69
Administrative law, 7, 12, 60 Bankruptcy, 122
quasi-judicial bodies, 130, 131 Bench trial, 106
Administrative Procedure Act, 12 Bill
Administrative law courts, 39 ... see Laws
Advisory opinions, 24, 63, 64, 81 Bill of information, 100
Advocates Bill of Rights
... see Lawyers bail, 98, 99
Affirmative action, 35, 36 bills of attainder, 95
Alternative dispute resolution, 127–131 counsel, assistance of, 79, 81–83, 106,
arbitration, 128, 129 160, 171–173
mediation, 128 double jeopardy, 58, 101, 106, 114,
mini-trial, 129 117
neutral fact-finding, 129 Eighth Amendment, 161
private judging, 130 ex post facto laws, 95
summary jury trial, 129, 130 Fifth Amendment, 13, 58, 99, 106
American Bar Association, 145, 147–149 First Amendment, 88, 161
Amicus curiae, 86–89 Fourth Amendment, 106
Anticipatory socialization, 150, 151 Miranda rights, 98, 99, 167, 170, 172,
Appeals, 116, 117, 139 173
Appellate courts public trial, 38, 105
... see Jurisdiction; U. S. Courts of self-incrimination, 106
Appeal; U. S. Supreme Court Seventh Amendment, 38, 131, 135
Arbitration, 128, 129 Sixth Amendment, 38, 105
Arraignment, 100, 101 speedy trial, 98, 99, 105
Arrest, 97 Tenth Amendment, 16
Article I, 9, 10, 39 text of, 192–194
Article II, 144, 149 witnesses, confronting, 98, 100, 106,
Article III, 20, 152, 153 108, 109
jurisdiction, 9, 24, 25, 63 Bills of attainder, 95
courts, creation of, 39, 144 Briefs, 86–89
Article IV, 69 Brown v. Board of Education, 16, 27, 86,
Article VI, 7, 8, 16 160, 165, 169
Articles of Confederation, 7 Burden of proof, 69, 70, 106
Assistance of counsel in criminal trial, 112
... see Counsel, assistance of Burger, Warren, 146, 172
Attorneys
... see Lawyers
INDEX 215
C venue, 132, 133

Capital punishment, 114, 115, 161 voir dire, 135
Case citation format, 13, 131 Civil Rights Act of 1964, 165, 169
Certified question, 61 Civil Rights Act of 1968, 62
Certiorari, writ of, 28, 61 Clerk of the court, 54, 55
Challenge for cause, 107 Closing argument, 109, 137
Checks and balances, 7 Colonial era
Child custody, 126, 127 courts in, 46, 47
Church and state, separation of, 168, 169 legal profession in, 74
Circuit riding, 32 Commerce clause, 9, 10
Circuit Court Act of 1802, 32 Commercial law, 121
City courts, 49 Common law, 7, 12, 13
Civil law Compensatory damages, 122
adversarial process in, 131 Compensatory litigation, 83, 84
alternative dispute resolution, Concurring opinions, 31
127–131 Consensual crime, 94
categories of, 121–127 Constitution
constitutional rights, 81, 82 ... see U. S. Constitution
criminal law, comparison to, 15 Constitutional Convention, 20
damages, 122, 123 Constitutional courts, 39
definition of, 120 Contract law, 121, 122
federal, 59 Conventional crime
remedies, 14 ... see Crimes of violence; Property
standard of proof, 14, 131, 138 crime
trials, costs of, 127 Counsel, assistance of, 76, 131
Civil procedure right to, 81-83, 106, 160, 171-172
answer, 134 Counterclaims, 134
appeals, 139 County courts, 49
counter claims, 134 Court unification movement, 48
default judgment, 133 Courtroom workgroup, 81, 82
discovery, 134 Courts
filing, 131, 132 civil, 130
judgment and execution, 138 conflicts with legislatures, 9, 10, 47
jurisdiction, 132 domestic relations, 130
jury selection, 135, 136 jurisdiction, requirements for, 63–71
motions, 133 probate, 130
peremptory challenges, 135, 136 and public policy, 26, 61–71,
pleadings, 133 160–163, 168–176
post-trial motions, 138 small claims, 130
pretrial conference, 134 ... see also Federal courts; State courts
service of process, 133 Courts of Appeal
standing, 131 ... see under State Courts,
summons, 133 intermediate appellate courts
trial, 136–138 Courts of equity, 15
Creditors’ rights, 122 bail, 98, 99

Crime bill of information, 100
actus reus, 95 burden of proof, 106
consensual, 94 constitutional rights, 105, 106
definition of, 92, 93 cross examination, 108, 109
degrees of, 49 double jeopardy, 114
felony, 92, 93 due process, 170–173
infractions, 93 exclusionary rule, 106, 170–172
misdemeanors, 93 grand jury, 99, 100
domestic violence, 98 indictment, 100
economic, 93, 94 innocence, presumption of, 106
elements of, 94–96 magistrate, appearance before, 98
homicide, 95, 96 mistrial, 108, 114
injury, nature of, 96 plea bargaining, 79, 82, 101–104
mens rea, 95 pleas, 100, 101
of violence, 93 preliminary hearing, 99, 100
organized, 94 voir dire, 107
political, 94 warrant, 97
property, 93, 97 ... see also Defendant’s rights
punishment, 92, 93, 102, 114, 115, Criminal trial
161 ... see under Trial
Crimes against the person, 93 Cross-examination, 108, 109, 136
Crimes of violence, 93
Criminal due process, 170–173 D
Criminal law, 120 Damages, 122, 123, 138, 139
burden of proof, 69, 70, 106, 112 Davis v. U. S., 173
capital punishment, 114, 115, 161 Death penalty
categories of, 92, 93 ... see Capital punishment
civil law, comparison to, 15 Declaration of Independence, 6
constitutional rights, 81, 82 Declaratory judgments, 64
federal, 58 Default judgment, 133
plea bargaining, 79, 82, 101–104 Defendant’s rights
police discretion, 97, 98 assistance of counsel, 79, 81–83, 106,
sentencing, 114–116, 161 160, 171–173
standard of proof, 14, 112 bail, 98, 99
trials, roles of judges and lawyers, 81, bills of attainder, 95
82 Davis v. U. S., 173
... see also Crime; Defendant’s rights; double jeopardy, 58, 101, 106, 114,
Trial 117
Criminal procedure ex post facto laws, 9, 95
arraignment, 100, 101 Gideon v. Wainwright, 160, 167,
arrest, 97 170–172, 176
assistance of counsel, 106, 160, Harris v. New York, 172, 173
171–173 jury, 38, 105
INDEX 217
Mapp v. Ohio, 170–172 Executive privilege, 165, 166

Miranda rights, 98, 99, 167, 170, 172, Exemplary damages, 122
173 Exhaustion of remedies, 68
public trial, 38, 105 Expert witnesses, 136
self incrimination, 106
speedy trial, 98, 99, 105 F
trials, 105, 106 Family law, 125–128
witnesses, confronting, 98, 100, 106, Federal Bureau of Investigation, 10, 145,
108, 109 147
Defendants Federal courts
indigent, 76, 79, 81–83 administration of, 40–43
... see also Counsel, assistance of advisory opinions, 63, 64
Delegation of powers, 8, 9, 12 chart of, 22
Depositions, 134 creation of, 20–22
Desegregation jurisdiction of
... see Racial equality diversity, 59
Dicta, 163 original, 28, 59–61
Discovery, 134 mootness, 63, 64
Dissenting opinions, 31 standing, 63
District Attorney structure of, 20–22
... see Prosecutors workload of, 43
Diversity jurisdiction, 9, 10, 59 ... see also U. S. Courts of Appeal;
Divorce, 126, 127 U. S. District Courts; U. S. Supreme
Domestic relations courts, 49, 130 Court
Domestic violence, 98 Federal criminal law, 58
Double jeopardy, 58, 101, 106, 114, 117 Federal Declaratory Judgment Act of
1934, 64
E Federal executive branch
Economic crime, 93, 94 development of, 10, 12
Eighth Amendment, 161 interaction with judiciary, 10
Elementary and Secondary Education Federal judges
Act, 165 ... see under Judges
En banc proceedings, 36 Federal Judgeship Act of 1990, 38
Engel v. Vitale, 168 Federal law
Equal protection clause, 16, 27, 35, 36 civil law, 59
Equitable remedies, 14, 15 components of, 6, 7
Establishment of religion, 64–67 judicial interpretation of, 164
Evarts Act, 32, 33 relationship to state law, 6, 7, 17
Evidence, 106, 108, 109, 137 sources of, 7–13
Ex post facto laws, 9, 95 Felonies, 49, 92, 93
Exclusionary rule, 106, 170–172 Fifth Amendment, 13, 58, 99, 106
Executive branch, 10, 12 First Amendment, 88, 161
influence on judicial decisions, Former jeopardy
165–167 ... see Double jeopardy
Fourteenth Amendment, 16, 26, 105 Judges

equal protection, 27, 35, 36, 69, 107 criminal trial, role in, 81, 82, 104, 105,
Fourth Amendment, 106 109, 111, 112
Freedom of religion, 86–88 decisions
Freedom of speech, 161 access to, 161, 162
Freedom of the press, 47 Congressional influence on,
Friend of the court brief 163–165, 173
... see Amicus curiae dicta, 163
Frontiero v. Richardson, 166, 167 executive branch influence on,
Furman v. Georgia, 161 165–167
implementation of, 166–168
G precedential value of, 160–163
Gibbons v. Ogden, 26 discretion of, 160, 161
Gideon v. Wainwright, 160, 167, 170–172, en banc panels, 36
176 federal
Ginsburg, Ruth, 143 American Bar Association, 147,
Grand jury, 38, 99, 100 149
Guilty plea, 101 anticipatory socialization, 150,
151
H appointment of, 144–150
Habeas corpus, 59 disability of, 153
Habitual criminal, 102 disciplinary action against, 152
Harmless error, 116 diversity, 142, 143
Harris v. New York, 172, 173 educational background, 142
Holmes, Oliver Wendell, 40, 41 impeachment, 152, 153
Homicide, 95, 96 and political views, 150, 153
Hopwood v. Texas, 35, 36 prebench experience, 142, 143
Hung jury, 114 qualifications of, 144, 145
removal of, 152, 153
I Senate Judiciary Committee, 145,
Impeachment, 152, 153, 157 149
Indictment, 58, 100 senatorial courtesy, 146, 149
Indigent defendants, 76, 79, 81–83 senior status, 153
Infractions, 49, 93 tenure, 151–153, 160
Innocence, presumption of, 106 training, 150, 151
Insurance law, 122, 128 panels of, 36
Interest groups, 84–89 private judging, 130
Interrogatories, 134 state
Intestate succession, 125 appointment of, 155–157
diversity, 154
J election of, 155, 156
Jay, John, 24 Missouri Plan, 156
Judgment n.o.v., 138 and political views, 157
Judgments, 138 removal of, 157
INDEX 219
tenure, 157 peremptory challenges, 135, 136

tenure, 39, 40, 151–153, 157, 160 role in, 136, 138
terms of, 39, 40 selection of jurors, 135
training of, 42, 43, 49, 51 voir dire, 135
Judgments constitutional issues, 105, 106
default, 133 criminal trial
enforcement and implementation of, deliberations, 112 –114
138, 139, 163–168 number of jurors, 107, 108
impact of, 168–175 role in, 111–114
precedential value of, 13, 68, 160–163 selection of jurors, 106, 107, 108
Judicial Councils Reform and Judicial voir dire, 107
Conduct and Disability Act, 152 deadlock, 112–114
Judicial panels, 36 hung, 114
Judicial policy, 61–71, 160–163, 168–176 impartial, 105
Judicial precedent, 13, 68, 160–163 instructions, 112, 137, 138
Judicial review, 25, 26 number of, 38, 107, 108, 135
Judicial self-restraint, 63–71 polling, 114, 138
Judiciary Act of 1789, 20–22, 25, 32, 37, right to, 38
39 sequestration of, 112
Jurisdiction Seventh Amendment, 38
actual controversy, 63 Sixth Amendment, 38
appellate, 28 summary jury trial, 129, 130
beneficiaries of law, 67 verdict, 114
burden of proof, 69, 70 voir dire, 107, 135
concurrent, 61 … see also Grand jury
determined by legislature, 62, 63 Justice of the peace courts, 49
diversity, 9, 10, 59 Justiciability, as prerequisite to
exhaustion of remedies, 68 jurisdiction, 63–71
federal, 9-12 Juvenile courts, 52-53
judicial self restraint, 63 age of offenders, 53
legal versus factual questions, 67, 68 jurisdiction of, 53
mootness, 63
original, 28, 59–61 L
personal, 132 Land use law, 123–125
prerequisites to, 63–71 Law clerks, 40–42, 53
separation of powers, 68, 69 Law firms, 76, 77
specificity of plea, 65, 67 Law schools, 74, 75
standing, 63 Laws
state courts, 12, 13 adoption of, 8, 9
subject matter, 132 creation of, 7–9
Jury education in, 74, 75
challenges, 107, 135, 136 relation of state and federal law, 17
civil trial sources of, 9–13
number of jurors, 135 U.S. Code, 8, 9
… see also Civil law; Criminal law Miranda rights

Lawyers ... see under Defendant’s rights
criminal trials, role in, 81, 82 Miranda v. Arizona, 98, 99, 167, 170, 172,
development of the legal profession, 173
74, 75 Misdemeanors, 49, 93
education of, 74, 75 Missouri Plan, 156
government, 78–81 Mistrial, 108, 114, 138
number of, 76 Mootness, 63
pro bono services, 77 Motions
professional opportunities for, 75–81 civil, 133, 137, 138
professional stratification of, 76–78 post-trial, 115, 138
role of, 81 Municipal courts, 49
… see also Prosecutors; Public Murder, 95, 96
defenders
Legal aid N
... see Counsel, assistance of Negligence, 122
Legal Aid societies, 82 New Jersey Plan, 20
Legal profession, 74–78 No-fault divorce, 126
... see also Lawyers Nolo contendere, 101
Legal remedies, 14, 15 Norm enforcement, 38, 39
Legislative courts, 39
Legislatures, conflicts with courts, 9, 10, O
47 O’Connor, Sandra Day, 143
Liens, 139 Obscenity, 161
Litigants, 83, 84 Opening statements, 108, 136
Lucas v. South Carolina Coastal Council, Opinions, by courts, 30, 31
84 Oral argument, 29, 30, 36
Organized crime, 94
M Original jurisdiction, 28, 59–61
Magistrate courts, 49
Magistrates, 53 P
appearance before, 98-99 Paralegals, 77
Mandamus, 25 Pardons, 116
Mandatory sentence, 102, 116 Penalties
Mapp v. Ohio, 170–173 … see Remedies; Sentencing
Marbury v. Madison, 9, 25, 26 Peremptory challenge, 107
Marriage, law of, 125, 126 Personal injury law, 122
Marshall, John, 24, 26 Personal jurisdiction, 132
Marshall, Thurgood, 86, 143 Personal property, 123
McCulloch v. Maryland, 26 Petit jury, 38
Mediation, 128 …see also Jury
Medical malpractice, 123 Physical evidence, 108
Mens rea, 95 Plea bargaining, 79, 82
Metropolitan courts, 49 restrictions on, 102, 103
INDEX 221
sentencing, 102 Rodriguez, 62

types of, 101, 102 separate but equal, 27
value of, 103, 104 U. S. Supreme Court decisions,
Pleadings, 133, 134 168–170
Pleas, 100, 101 Real property, 123, 124
Plessy v. Ferguson, 27 Reapportionment, 69
Police, discretion of, 97, 98 Reasonable doubt, 112
Political crime, 94 Rebuttal evidence, 109, 137
Political interest groups, 147 Recognizance, 99
Post trial motions, 115 Rehnquist, William, 173
Powell, Lewis F., 42 Remedies, 14, 15, 167
Precedent Repeat offender, 102
…see Judicial precedent Roe v. Wade, 173–175
Preliminary hearing, 99, 100 Rules of Criminal Procedure, 103
Preponderance of the evidence, 14, 131,
138 S
Private law, 83, 84 San Antonio Ind. School Dist. v.
Pro bono services, 77 Rodriguez, 62
Probable cause, 97 Search and seizure, 106
Probate courts, 130 Segregation
Probation, 115 ... see Racial equality
Product liability law, 122 Self incrimination, 106
Property crime, 93, 97 Senate Judiciary Committee, 145, 149
Property law, 123–125 Senatorial courtesy, 146, 149
Prosecutors Senior status, 153
federal, 78 Sentencing
state, 78, 79 capital punishment, 114, 115, 161
Public defenders, 76, 79, 81–83 concurrent sentence, 102
Public interest law firm, 86 guidelines, 115, 116
Public law, 83, 84 mandatory, 102, 116
Public policy and courts, 26, 61–71, pardons, 116
160–163, 168–176 probation, 115
Public trial, 105 Separation of powers, 7–11, 21, 68, 69
Punitive damages, 122 executive branch, 10, 11
judicial branch, 9, 10, 12
R legislative branch, 8, 9
Racial equality, 26, 27, 165, 175, 176 Service of process, 133
Brown v. Board of Education, 27, 86, Seventh Amendment, 38, 131, 135
87 Sixth Amendment, 38, 105
Civil Rights Act of 1968, 62 Small claims courts, 130
equal protection, 62 Special scrutiny, 69
Hopwood v. Texas, 35, 36 Specialized courts, 130
Plessy v. Ferguson, 27 Speedy trial, 105
San Antonio Ind. School Dist. v. Speedy Trial Act of 1974, 105
Standard of proof, 14 last resort

in civil courts, 131, 138 Syndicated crime
in criminal courts, 112 ... see Organized crime
Standing, 63
Stare decisis, 13 T
State Attorneys General, 80, 81 Taft, William Howard, 41
State constitutions, 17, 61, 62 Taney, Roger, 26
jury trials, 135 Tenth Amendment, 16
State courts Tenure
administration of, 53–55 ... see under Judges
caseloads of, 55, 62 Testaments, 125
clerk of the court, 54, 55 Thomas, Clarence, 143
courts of last resort (Supreme Tort law, 122, 123
Courts), 49, 51, 52 Trial
development of, 46–48 adversarial process, 104, 105
family courts, 53 bench trial, 106
intermediate appellate courts (courts civil
of appeal), 49, 51 adversarial process in, 131
jurisdiction of, 61, 62 appeal, 139
juvenile courts, 52, 53 closing arguments, 137
law clerks in, 53 cross-examination, 136
magistrates, 53 discovery, 134
organization of, 46, 48–53 judgments, 138, 139
specialized courts, 48 jury, 135–138
trial courts of general jurisdiction, 49, motions, 133, 137
51 opening statements, 136
trial courts of limited jurisdiction, 48, plaintiff ’s case, 136
49 post-trial motions, 138
State law, relation to federal law, 17 pretrial conference, 134-135
States, powers of under the U. S. rebuttal evidence, 137
Constitution, 16 standard of proof, 14, 131, 138
Statutes suit, filing of, 131, 132
... see Laws testimony, 136, 137
Stipulations, 134 verdict, 138
Stone, Harlan Fiske, 41, 146 witnesses, 136, 137
Strict liability, 122 criminal
Subject matter jurisdiction, 132 appeal, 116, 117
Succession, law of, 125 burden of proof, 69, 70, 106
Summons, 133 closing arguments, 109
Supremacy clause, 7, 8 cross-examination, 108, 109
Supreme Court defendant’s case, 109
... see U. S. Supreme Court errors in, 116
Supreme Courts evidence in, 108, 109
... see under State Courts, courts of hung jury, 114
INDEX 223
judge, role of, 104, 105, 109–112 170–172

jury polling, 114 bail, 98, 99
jury selection, 106, 108 bills of attainder, 95
jury, role of, 111, 112 burden of proof, 106
opening statement, 108 commerce clause, 9, 10
post trial motions, 115 Congress, powers of, 8, 9
prosecution case, 108-109 delegation of powers, 8, 9, 12
rebuttal evidence, 109 double jeopardy, 101, 106, 114, 117
sentencing, 114–116, 161 due process rights, 131
standard of proof, 14, 112 Eighth Amendment, 161
verdict, 114 equal protection clause, 16, 62
witnesses, confronting, 98, 106 establishment of religion, 64–67
evidence, 108 ex post facto law, 95
participants in exclusionary rule, 106, 170–172
lawyers, 81, 82 executive branch, 10, 12
litigants, 83, 84 federal judiciary, 9, 10
summary jury trial, 129, 130 Fifth Amendment, 13, 58, 99, 106
voir dire, 107 First Amendment, 88, 161
Trial courts Fourteenth Amendment, 16, 26, 27,
… see U. S. District Courts 35, 36, 69, 105, 107
Trial de novo, 49, 50 Fourth Amendment, 106
freedom of religion, 86-88
U freedom of speech, 161
U. S. Attorney General, 78, 146, 147 freedom of the press, 47
U. S. Circuit Courts, 32, 33 interpretation of, 164
U. S. Code, 8, 9 jury, 38, 105
U. S. Congress Miranda rights, 98, 99, 167, 170, 172,
advice and consent, 144 173
influence on judicial decisions, obscenity, 161
163–165, 173 probable cause, 97
powers of, 12, 22 public trial, 105
to create courts, 39 real property, 125
under the U. S. Constitution, 8, 9, rights under, 81, 82, 131
144 search and seizure, 106
Senate, 144–147, 149, 150 self incrimination, 106
U. S. Constitution separation of church and state, 168,
amendment of, 164, 165 169
Article I, 9, 10, 39 Seventh Amendment, 38, 131, 135
Article II, 10, 12, 144, 149 Sixth Amendment, 38, 105
Article III, 9, 20, 24, 25, 39, 63, 144, speedy trial, 98, 99, 105
152, 153 states, 16
Article IV, 69 Tenth Amendment, 16
Article VI, 7, 8, 16 text of, 177–203
assistance of counsel, 106, 131, trials, 105, 106
witnesses, confronting, 98, 100, 106, relationship between branches, 7–13

108, 109 U. S. Magistrate judges, 40
zoning, 125 U. S. Penal Code, 58
… see also Bill of Rights; Defendant’s U. S. Solicitor General, 78, 80, 89, 166
rights; Separation of powers U. S. Supreme Court
U. S. Court of Military Appeals, 39 caseload of, 43, 61
U. S. Court of Veterans Appeals, 39 cases
U. S. Court system Baker v. Carr, 69
creation and structure of, 20–22 Brown v. Board of Education, 27,
... see also Federal courts; State courts 86, 87, 160, 165, 169
U. S. Courts of Appeal, 31–37 Davis v. U. S., 173
appeals Engel v. Vitale, 168
from administrative law tribunals, Frontiero v. Richardson, 166, 167
60 Furman v. Georgia, 161
from U. S. District Courts, 60 Gibbons v. Ogden, 26
caseload of, 43 Gideon v. Wainwright, 160, 167,
development of, 32, 33 170–172, 176
en banc proceedings, 36 Harris v. New York, 172, 173
equal protection, 35, 36 Lucas v. South Carolina Coastal
geographical boundaries of, 23 Council, 84
hearings before, 36 Mapp v. Ohio, 170–173
Hopwood v. Texas, 35, 36 Marbury v. Madison, 25, 26
jurisdiction of, 34, 59, 60 McCulloch v. Maryland, 26
law clerks in, 41 Miranda v. Arizona, 167, 170, 172,
opinions in, 36, 37 173
oral argument in, 36 Plessy v. Ferguson, 27
role of, 34, 35 Roe v. Wade, 173–175
three judge panels, 36 San Antonio Ind. School Dist. v.
U. S. Department of Justice, 10, 80, 146, Rodriguez, 62
147, 166 U. S. v. Nixon, 165, 166
U. S. District Courts Wisconsin v. Yoder, 86–89
appeals from, 58 certified question, 61
caseload of, 43 certiorari, 28
civil cases in, 58, 59 conferences in, 30, 31
creation of, 37 courtpacking, 166
criminal cases in, 58 criminal due process, 170–173
geographical boundaries of, 23 decisions of
jurisdiction of, 38, 58, 61 impact, 168–175
law clerks in, 41 implementation, 160, 163–168
organization of, 37, 39 overturning, 164, 165, 173
role of, 38, 39 development of, 22–26
U. S. Attorneys, 78 first justices of, 22, 24
U. S. Government first sitting of, 24
federal form of, 22 freedom of religion, 86–88
INDEX 225
hearings before, 29, 30 Virginia Plan, 20

issues before, 26, 27, 169-174 Voir dire, 107, 135
Judiciary Act of 1789, 20–22, 25
jurisdiction of, 13, 22, 24–26 W
appellate, 27, 61 Warrant, arrest, 97
concurrent, 61 Warren, Earl, 170
original, 27, 60, 61 Watergate affair, 165, 166
justices Wills and estates, 125
appointment of, 143–150, 166 Wisconsin v. Yoder, 86–89
Burger, Warren, 146, 172 Witnesses
Ginsburg, Ruth, 143 confronting, 98, 106
Jay, John, 24 cross-examination, 108, 109, 136, 137
Marshall, John, 24, 26 Workload of courts, 43, 55, 61, 62
Marshall, Thurgood, 86, 143 Writs
O’Connor, Sandra Day, 143 certiorari, 28, 61
Powell, Lewis F., 41 habeas corpus, 59
Rehnquist, William, 173 mandamus, 25
Stone, Harlan Fiske, 41, 146
Taft, William Howard, 41 Z
Taney, Roger, 26 Zoning, 123–125
Thomas, Clarence, 143
training of, 150, 151
Warren, Earl, 170
law clerks in, 40–42
opinions
concurring, 31
dissenting, 31
precedential value of, 13, 68, 160-
163
writing of, 24, 25
oral argument before, 29, 30
racial equality, decisions concerning,
27, 62, 86, 87, 160, 165, 168–170
right to counsel, 170–172
role of, 27, 28
scrutiny, standards of, 69
sessions of, 28, 29
… see also Defendant’s rights
U. S. Tax Court, 39
U. S. v. Nixon, 165, 166
V
Venue, 132, 133
Verdict, 114, 138
ACKNOWLEDGMENT
Outline of the American Legal System is a publication of

the United States Department of State. Chapters 1 through 8 are
adapted with permission from the book Judicial Process in America,
5th edition, by Robert A. Carp and Ronald Stidham,
published by Congressional Quarterly, Inc.
Copyright © 2001 Congressional Quarterly Inc. All rights reserved.

Picture Credits
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Works. 9: © David M. Jennings/The Image
Works. 11: bottom left; © Kent Meireis/
The Image Works, bottom right; © Bob
Daemmrich/The Image Works. 29: inset; ©
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U.S. Supreme Court. 44-5: Courtesy Florida
Supreme Court Historical Society, Tallahassee.
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Syracuse Newspapers/Carl J. Single/The Image
Works. 76: © Bob Daemmrich/The Image
Works. 79: © Syracuse Newspapers/John
Berry/The Image Works. 85: bottom; ©
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The Constitution of the United States . . . . . . . . . . . . . . . . . . . . . . . . . 177

Amendments to the Constitution of the United States . . . . . . . . . . . 192

In this scene from an 1856

Every business day, courts throughout the predictability and enforceable

hotly contested shift of power and SOURCES OF FEDERAL LAW

federal Constitution speaks, no state branches. As James Madison explained

stitution, or because Article I did not executive branch consisted of the

grew, the relationship of the three rules, to adjudicate those violations,

seen ﬁt to pass statutes covering every Higher-level courts try to resolve

DIFFERENT LAWS; the government can charge someone

THE ROLE OF STATE LAW IN Tenth Amendment to the Constitu-

T forbade the states from adopt-

Chief Justice John Marshall,

One of the most important, most in- The Constitutional Convention

P stitution, the United States was

SUPREME COURT Federal Questions

United States United States

many of the same participants and in state courts. Attempts to resolve

Montana North Dakota

Oregon New Hampshire

justices ordinarily wrote separate president ordered his secretary of

The Supreme Court as a Policy Separation of the races in public

if there is no litigation. The president determine whether the request should

The U.S. Supreme Court Building, with the

announced with a brief order or per The First District Judges

T the basic point of input for the

whereas appellate courts are seen as legislative guidelines; and as a conse-

A visible actors in the judicial

T heavy for all three levels of

Although the organization of state

N when it comes to the organi-

The colonial period helped establish

Modern State Courts known as the court unification move-

courts of general jurisdiction, inter- of their decisions usually go to a trial

of courts specifically to handle mat- armed robbery, robbery with a

Administrative Office of the Court Clerks and Court

T judicial business exists at the

Beginning with the Supreme Court’s

In setting the jurisdictions of courts, havior, including interstate theft of an

T ed into three separate levels: the

nonprosecutorial capacity, and a pri- citizenship disputes. These are dis-

The jurisdictions of state courts, nical legal standards to institute a suit.

T bidden to engage in, or at least

Circuit courts have appellate

assessments than would an appellate other remedies, legal and administra-

For example, when the state of the Founders wanted legislatures to

Supreme Court has ruled in a variety No Rulings Are Made on the

New lawyers take their oaths in

T practice of law have evolved

stituted stiffer entrance requirements; people wanting to study law increased

estimated at more than 950,000. America’s lawyers apply their pro-

Other Government Lawyers. At cases to the courts of appeals, and aid

this official is elected on a partisan nor the defendant is constitutionally

those accused of criminal offenses without any reasonable guarantee of a

ecutive branch officials. Large mem- Test Cases

Linda Brown, left,

A jury forewoman reads the

A crime because it is hurtful or

F prise the primary criminal of-

• Con games are white-collar criminal Consensual Crimes