WWS 500 Introduction to American Political Institutions

1. WWS 500Introduction to American Political Institutions Session 5 American Courts and Legal System

2. Outline • What do courts do? • Two ways to organize a legal system • Sources of American law • Judicial Federalism: Federal vs state courts • The Organization of the Federal Courts • The Politics of Administrative Law • The Supreme Court and Social Change

3. What Do Courts Do? And, what are they good for?

4. The Job(s) of a Court • A court is ALWAYS a dispute resolution device • A conflict arises between 2 or more parties • The court definitively resolves their dispute (one side wins, the other side loses) using a rule (law) • One party may be the government • Courts are an alternative to violence or anarchy • In common law systems like the US, high appellate courts are also policy makers

5. What are courts good for? Courts provide the scaffolding for markets and impersonal exchange in complex interdependent societies • Think: Contracts, torts, real property, intellectual property, commercial law, family law, criminal law, securities, bankruptcy • “Private law” • This is what courts are about, mostly

6. Imagine … We tend to take the “scaffolding” for granted but its actually amazing • Think about all that’s involved whenever you use a credit card • The backstopping from courts makes it possible

7. Joined at the Hip … • Because the Administrative State affects markets and exchange so profoundly, courts are necessarily involved in overseeing agencies • The government as “insurance company” interjects itself into markets throughout the economy • The government then becomes a party in disputes • If the government is to be one of laws, rather than men, Administrative Law necessarily follows

8. Courts and social change As policy makers, common law courts sometimes act as agents of social change But this isn’t their real job & its hard and rare for them to do this successfully

9. Two Ways to Organize Judicial Systems Civil law systems vs. common law systems

10. Civil Law System: Introduction • Also called Roman Law, Code-based law • Prevails in Western Europe, Latin America, parts of Africa, & in Japan • Differs from “common law” system in content, terminology, official sources of law, institutional framework, and structure of legal profession • Almost everything! • Also, its easier to understand

11. Civil Law Systems: Basic Features • Source of law is the legislature, esp. via a comprehensive written legal code • Judges are bureaucrats who (supposedly) apply the law, not create it • Their decisions have no official precedential value • Code contains general principles, for gap filling • Much larger role for scholarly commentary (“legal scientists”) • But, emphasis on a static code • Not on techniques of legal reasoning

12. Civil Law Systems: Organization • Two sets of courts, not one unified set • Ordinary Courts • Trial courts • High court (Court of Cassation) • Decides matters of law, not cases • Administrative law courts • Strict SOP • French Revolution • Limited judicial review/constitutional court • Constitutional law is a kind of aberration in a legal system with legislative supremacy

13. Civil Law Systems: Professions • In the US, a lawyer is a lawyer • In Civil Law systems, distinct career paths • Judge (civil servant) • Prosecutor (civil servant) • Similar to a local District Attorney or federal US Attorney (prosecutor), in criminal matters • But also involved in civil ones, to represent impartial “public interest” • Advocate (similar to attorney-at-law) • Notary (much more important than in US)

14. Common Law: Introduction • System based on case law, or judge-made law • “common” law – same everywhere, not based on local area • Prevails in Britain, countries of the British Commonwealth, and the US (sort of) • US as usual is complicated but has big common law attributes

15. Common Law: History • Originated in decisions of English judges during early Middle Ages • PRECEDES law from Parliament • English Royal courts systematized in early 12th century • Precedes modern legislatures • Early emphasis on property law • Development of case reports, concept of precedent or “stare decisis” • Current court is obliged to follow the rules of previous courts

16. Common Law: Basic Features • Key is incremental creation of rules via dispute resolution • Thus, emphasis on methods of “legal reasoning”: the rules for making rules • Judgment, holding, dictum, ratio decidendi • Importance of revered “great judges,” cult of the robe • Holmes, Brandeis, Cardozo, Hand; Coke, Mansfield

17. Common Law: Professions • Early apprentice system (“reading” law) • Professionalization of law schools in late 19th century • British system of barristers and soliciters, vs US system • IMPORTANT: US Judges are quasi-political appointees • In some states, they are elected (!)

18. Sources of American Law Five Sources

19. Five Sources of American Law • Constitution – made by the Constitutional Convention (if written). • Statutes – made by Congress and state legislatures • Regulations – made by bureaucrats and have the power of law (the biggest source of law today) • Decree – made by President or state governors • Case Law – made by judges themselves, as they hear cases

20. Constitutional Law • Often terse, ambiguous or silent • Judges may “interpret” the Constitution • Sometimes in rather amazing or fanciful ways

21. Statutes • Statutes may be encompassing (codes) but more frequently are sketchy, ambiguous, confused, poorly written, inconsistent or flat-out contradictory • Judges “interpret” (declare) the meaning of statutes • Judges may review the legality of the legislature’s laws, striking down laws or parts of laws as unconstitutional • Not explicit in the Constitution but has become well-established over time (a complicated and interesting story)

22. Regulation & Agency Actions • Judges may review the legality of a regulation • Procedurally: Under the Administrative Procedures Act (more later!) • Substantively: Under the statute giving the agency authority to issue the regulation • Judges may interpret the meaning of regulation • Judges may also review whether the agency otherwise acted legally

23. Executive Decree • Ditto • Does the President have the authority to do this? • What does the executive order actually mean?

24. Case Law • Judge-made law • Judges can apply or change

25. Judicial Federalism

26. Judicial Federalism • Federalism: system of jointly sovereign national and state governments • Result: 51 different judicial systems in the US (!) • Relationship between them very complicated, hinges on “jurisdiction”

27. Jurisdiction • Jurisdiction = Court has authority to hear a case and decide it • State courts – courts of general jurisdiction • Jurisdiction presumed until demonstrated otherwise • Federal courts – courts of limited jurisdiction • Jurisdiction must be affirmatively proven

28. 1. Initial Balance of Power • Four periods • Period 1: 1789-1864. Dual federalism: Federal courts essentially residual courts • Possibility of no lower federal courts, states do everything with appeals to SC of the 9 original jurisdiction matters • [1801-02 interlude] • Rooted in slavery

29. 2. Post-Civil War Period • 1865-1932: Modified Dual Federalism • Passage of 13th, 14th, & 15th Amendments • Potential expansion of federal role • Retreat by Supreme Court • Slaughterhouse cases • Invalidation of Civil Rights Act of 1875 • Limited defn of national citizenship

30. 3. Rise of the Administrative State • 1932-present: the Roosevelt Revolution and its wake • Congress creates a vast administrative state (without constitutional amendment) • End of dual federalism: states become quasi- administrative units of the federal govt • Supreme Court validates via rulings • Concurrent expansion of federal judicial power, via administrative law

31. 4. Rights Consciousness • 1940s, 1950s, 1960s: Re-definition of rights and liberties • Led by courts, esp US Supreme Court • Key role of interest groups • “Incorporation” of Bill of Rights • Application on Bill of Rights to state & local govt • Discovery of new rights (e.g., privacy, gay marriage)

32. Judicial Federalism Today • State and local courts still primary • They deal with contracts, torts, property, family law, etc etc • But, huge expansion of federal jurisdiction, hand in hand with rise of administrative state and rights revolution

33. Organization of the Federal Judiciary

34. Organization of Federal Courts • “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.” Art III Sec 1 • Note extreme importance of judiciary acts! • Congress created the federal courts, Congress can change them • Judges have strong protections, the judiciary itself very little

35. Organization • Three tier hierarchy • Did not take current form until late 19th century • Geographic organization • Tier 1: District Courts • The trial courts, witnesses and testimony etc • Tier 2: Courts of Appeal (Circuit Courts) • Must hear all appeals: arguments by lawyers but no witnesses etc • Tier 3: the Supreme Court • “Discretionary docket” – it chooses its own cases

36. A Medium-Sized Bureaucracy • 632 District court judges sitting in 94 district courts • 168 judges setting in 13 courts of appeal • The top: 9 justices of the Supreme Court

37. Basic Procedures • Trial court: one judge, sometimes a jury (jury is fact oriented) • Courts of Appeals: Each Court has many judges (say, 10+); each case heard by a “panel” of three; cases assigned randomly • Rare “en banc” review of own panel decision • Supreme Court: Each case heard by all 9 justices, each may write an opinion, but the opinion or part of opinions receiving majority support is “the” opinion

38. The Pyramid of Review

39. Who Appeals? • Critically: The Losing Litigant • An appeal from the district court to a court of appeal is “of right”: the appeals court must hear the case • But, appeals to the Supreme Court are not: the Supreme Court chooses which cases to hear (with a few exceptions) • “discretionary docket” – allows focus on law creation

40. What Do Lower Federal Courts Do? • Criminal cases:15%-20% (War on Drugs) • U.S. Civil: <20% • Private Civil: 60% • Civil rights • Prisoner rights (esp in states) • Administrative: 8% (DC Circuit)

41. What About the Supreme Court? • About 100 cases • 75 from federal courts • 25 from state courts • Of federal – 10 criminal, 65 civil. From the latter, about half involve the federal government • Perhaps 6 administrative law, 10 directly about civil rights

42. Why a Hierarchy? • Two tasks: • Rule application – in all systems • Law Creation – in common law systems • Claim: hierarchy is a way to do those tasks better, than without hierarchy • Team/legal approach: better law, less adjudicatory errors • P/A approach: more conformity to principal’s wishes

43. The Politics of Administrative Law

44. The Reality of the Administrative State • Enormous growth of government • The biggest source of law in the modern age is administrative agencies, not legislatures • Administrative rules have the force of law • E.g., the EPA, IRS, OHSA etc can do bad things to you

45. Administrative Law: A Missing Part of the Constitution • Where bureaucracy in the Constitution? • So, how to bring bureaucracy within the ambit of the rule of law? • Severe problem for democratic theory … and the lives of citizens • Modern states use one of two methods to handle it

46. English Tradition • Albert Venn Dicey, Law of the Constitution • Government no different than any other litigant • And, subject to the jurisdiction of general courts • Thus, citizens can sue agencies in general courts, in order to protect their rights

47. French Tradition • Government special • Raison d’etat • Special courts with favorable treatment for the government • Government above the law

48. New Deal Improvisations • Move toward the English model in late 19th century, early 20th century • But, New Dealers more inclined to French model • Result: series of improvisations, often forced on FDR by the Supreme Court • Example: “Sick Chicken” Case leads to Federal Register

49. Administrative Procedures Act • Key moment: APA 1946 • Moves to fill the gap in the US Constitution • But peculiar & partial • Distinction between substance & procedures • Essentially silent about substance • Very very prescriptive about procedures (which look rather judicial) • Public notice of intent to issue a regulation • Published draft reg with opportunity for anyone to comment • Agency forced to respond to comments • Then, the agency can be sued in court for failures

50. Results … • Structurally, federal courts have the opportunity to actively intervene in the substance of agency decisions if they wish • They may need to claim they do so on procedural groups • But, they will be constrained by Congressional commitment to agency purposes • That is: if a federal court strikes down a rule as incompatible with the statute, Congress may override the court (Congress is the 800 lb gorilla!) • But, in an age of gridlock, Congress often can’t act – giving courts enormous power if they want