The Courts and Judicial Opinions (Case Law)

1. The Courts and Judicial Opinions (Case Law)

2. A Paradigm for Landscape Activity Goods Service Structures Legislation Regulation Judicial Opinions Organization of Space Organization of Behavior Landscape Law Public Policy Evaluation Government Role Indices Evaluation

3. The “Legal” (Public Policy) Process • Substantive law – the rules that govern behavior – statutes and rules • Procedural law • the process through which the statutes and rules are made • the process through which we determine whether the substantive law has been broken – administrative review, judicial review • Remedial law – the consequences of breaking either substantive or procedural

4. Deconstruct public policy into statutory, administrative, and case law Lobbying Congress Legislative Mandate Lobbying Legislation Agency Regulation Courts LAW – PUBLIC POLICY

5. The Characteristics of Law • A balance between • Constant change • Federal & State statutes [15,000/year] • Federal & State rules • Judicial opinions [55,000/year + 3 million extant] • Need for stability in defining, enforcing, & protecting the rights of individuals & organizations • A multiplicity of sources • Legislative, executive, & judicial branches of government • Federal government and 50 states • 80,000 local governments

6. Case law Congress Legislation Agency Regulation Courts LAW

7. A Decision Made by a Branch of the Federal Government • Legislation, Statute, Act • Legislative History, • Compilation and Codification • Judicial Opinion • Litigation process • Case Law - Accumulated opinions • Rule, Regulation • Rule-making process • Compilation and Codification

8. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process • Legislation (act, statute, laws), legislative process, cumulation and codification • Regulations (rules), rule-making process, cumulation and codification • Judicial Opinions, litigation process, court rules, encyclopedias, digests

9. The Problem • Understanding the process in which individuals inside and outside the federal government debate issues and the outcomes of the process • Legislation (act, statute, laws), legislative process, cumulation and codification • Regulations (rules), rule-making process, cumulation and codification • Judicial Opinions, litigation process, court rules, encyclopedias, digests • B. Understanding the databases (books) in which these outcomes, even the debates, are published • Statutes at Large (Public Law), US Code • Federal Register, Code of Federal Regulations • United States Reports, Annotated Codes, Legal Encyclopedias, Digests

10. Case Law – Judicial Opinions • “ … when you are up to your ass in alligators, it is difficult to remember that your initial objective was to drain the swamp.”

11. Patient Protection and Affordable Care Act (Wikipedia) • In March 2010, the President signed the Patient Protection and Affordable Care Act into law • Pub. L. 111-148, 124 Stat. 119, to be codified in various scattered sections of the 26 USC (Internal Revenue Code) and in 42 USC (The Public Health and Welfare) • A number of parties sued, including the attorneys general of 14 states, claiming that the sweeping reform law was unconstitutional for various reasons • the mandate requiring an individual to buy health insurance • the extent to which the statute imposes a financial burden on them • Swanson in the spotlight over health care challenge • At the Supreme Court, these separate cases were merged into a single case titled National Federation of Independent Business v. Sebelius

12. District (Trial) Court . On January 31, 2011, Judge Roger Vinson ruled • the mandatory health insurance "individual mandate” was unconstitutional • the mandate could not be severed from the rest of the Act and therefore struck down the entire act • Appeals Court. The Department of Health and Human Services appealed to the 11th Circuit Court of Appeals • affirmed the lower court’s finding that the individual mandate was unconstitutional • reversed the finding the individual mandate could not be severed, thus leaving the rest of the law intact • The Supreme Court and Health Care Reform (Oyez)

13. On November 14, 2011, the Supreme Court granted certiorari to portions of three appeals of the Eleventh Circuit's opinion: one by the states (Florida v. U.S. Dept. of Health and Human Services.), one by the federal government (U.S. Dept. of Health and Human Services. v. Florida); and one by the National Federation of Independent Business (Nat'l Fed. of Independent Business v. Sebelius) • Supreme Court National Federation of Independent Business v. Sebelius567 U.S. ___ (2012) • Filings Patient Protection and Affordable Care Act Cases

14. Class Action Suit • McCuneWright, LLP, a law firm in Southern California, filed a national class action lawsuit on behalf of all Toyota and Lexus owners that claim to have experienced this phenomenon • Representing the class will be Los Angeles County residents Seong Bae Choi (owner of a 2004 Camry) and Chris Chan Park (owner of a 2008 FJ Cruiser) • Toyota Class Action Suits Filed for Vehicle Owners and Stockholders (AboutLawsuits.com) • Toyota Recall (Parker Waichman Alonso LLP) Toyota Sudden Unintended Acceleration • Class-action lawsuits could cost Toyota $3B-plus (MPR March 9, 2010) • Toyota moves to dismiss class action suit (LA Times Feb.17, 2011)

15. Bhopal Accident • Mesothelioma • Vioxx Information Center • Tobacco Control Archives

16. Key Databases • ProQuest Congressional The United States Code Service published by Matthew Bender - unofficial • an annotated version of the U.S. Code - the compilation and codification by subject matter of the general and permanent laws of the U.S. • To access USCS you need a citation e.g. 7 USC 301 • LexisNexis Academic The United States Code Service published by Matthew Bender – unofficial • an annotated version of the U.S. Code - the compilation and codification by subject matter of the general and permanent laws of the U.S. • browse feature • <boundary waters canoe wilderness area>

17. The Nature of Judicial Opinions • The outcome of a process – litigation – in which lawyers representing the plaintiff (the party bringing the complaint – filing the suit) and the defendant • present facts in the case • present arguments that try to get the judge to see these facts through the opinions previously made by other judges in other jurisdictions – argument by analogy – the principle of precedence – “a dialogue between the past and the present.” • ask for a particular remedy

18. The Nature of Judicial Opinions • The outcome of a process – litigation – in which lawyers representing the plaintiff (the party bringing the complaint – filing the suit) and the defendant • present facts in the case • present arguments that try to get the judge to see these facts through the opinions previously made by other judges in other jurisdictions – argument by analogy – the principle of precedence – “a dialogue between the past and the present.” • ask for a particular remedy • Not about “fairness” – the opinion of the process represents “justice” – the outcome of a process – you may not agree with it

19. Not everyone has access to the courts • Financial considerations – costs money to hire an attorney • Standing • Remedy must be within the court’s power

20. The Process is Governed by Rules • Rules of the Supreme Court • Rules of the Eighth Circuit • Rules of the District Court Minnesota • Federal Rules of Bankruptcy Procedure • Federal Rules of Civil Procedure  • Federal Rules of Evidence  • Federal Bankruptcy Rules • Basic Guidelines for Briefs to the Supreme Court

21. In 1990, the Mille Lacs Band of Chippewa Indians filed suit against the state of Minnesota in federal district court • The Band asserted that an 1837 treaty with the U.S. government gave them the right to hunt, fish, and gather free of state regulation on land ceded in the treaty • Resources on Minnesota Issues: Indian Hunting and Fishing Rights

22. Trial (District) Court • On August 24, 1994, U.S. District Court Judge Diana Murphy ruled that the Mille Lacs Band continued to possess the hunting, fishing, and gathering rights they were granted in the 1837 treaty • Mille Lacs Band of Chippewa Indians et al. v. State of MN et al. 861 F. Supp. 784 (LexisNexis Academic) • On January 29, 1997 U.S. District Court Judge Michael Davis ruled, in a summary judgment,  that the band's fishing and hunting activities in the twelve-county region were to be regulated by the band's Conservation Code, rather than by the state's fish and game rules • Mille Lacs Band of Chippewa Indians et al. v. State of Minnesota et al. 952 F. Supp. 1362 (LexisNexis Academic)

23. Appellate Courts • On August 26, 1997, a three-judge panel of the 8th U.S. Circuit Court of Appeals circuit court upheld the lower court decisions • Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904 (Official) • Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904 (FindLaw) • In November 1997, the 8th U.S. Circuit Court of Appeals denied a request to reconsider the ruling of the three-judge panel • On March 24, 1999, the U.S. Supreme Court upheld the lower court's rulings. In a  5-4 vote the Court said that the Mille Lacs Band of Chippewa retained the hunting and fishing rights guaranteed to them under the 1837 treaty • Minnesota v Mille Lacs Band of Chippewa Indians 526 U. S. Reports 172 (Official) • Minnesota v Mille Lacs Band of Chippewa Indians (Legal Information Institute)

24. Minnesota et al V Mille Lacs Band of Chippewa Indians 526 U. S. 172 Legal Information Institute (Cornell University) FindLaw (FindLaw) Justia My home page in progress Onecle Where to obtain Supreme Court opinions Multiplicity of Sources

25. Some Introductory Materials • Supreme Court of the United States • US Court of Appeals for the Eighth Circuit • US District Court. District of Minnesota • Court Links • Administrative Office of the US Courts • Public Access to Court Electronic Records (PACER) • FindLaw : Cases and Codes : Introductory Materials (Thomson Reuters) • Legal Information Institute (Cornell University) • Internet Legal Research Group • HG.org • LLRX.com

26. Some Introductory Materials • United States federal courts (Wikipedia) • How the U.S. court system works (Lawyerintl.com) • How to find a court case (University of California Santa Cruz) • Legal citation (Cornell University) • Bench and Bar of Minnesota (Minnesota State Bar Association)

27. The Private Nature of Case Law Publications • Who Owns the Law? Arguments May Ensue (NY Times Sept 28, 2008) • Debate rages over who owns the law (Star Tribune March 6, 1995) • Who owns the law? (Wired Magazine)

28. Official The United States Supreme Court 8th Circuit US Court of Appeals U.S. District Court, District of Minnesota (access for fee) Unofficial FindLaw (Thomson Reuters) Supreme Court Reporter $5,174 Federal Reporter (Appeals Court) $9,990 Federal Supplement (District Courts) $22,046 Westlaw Federal Law Materials - Judicial Decisions (Cornell University) Published Federal Court Opinions

29. The Published Findings of the Federal Courts • The outcome of a structure and a process • Represents a dialogue between the past and the present • Provide answers to some of society’s most compelling questions • These answers may be long-lived or temporary

30. Project 4 • A. Describe a federal judicial decision that has interpreted either the statute or the regulation you chose • What court was involved? • What were the facts? • What were the arguments? [Remember you are not lawyers] • What was the outcome? • B. What were the consequences of the case? • C. What is the current case law on your topic? Use either an encyclopedia or the US Code Service which is an annotated Code (ProQuest Congressional)

31. The Outcome of Litigation – the Published Opinion

32. On October 14, 2003 the United States Supreme Court granted certiorari - agreed to hear - the following case • Elk Grove Unified School District and David W. Gordon  v. Michael A. Newdow, et al. • Supreme Court Collection (Cornell University) • Findlaw (Thomson Reuters) • Oyez • The case will be limited to two questions • Whether respondent (Newdow) has standing to challenge the constitutionality of a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance • 2. Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment

33. Justice Scalia took no part in the consideration or decision of these motions and this petition • The case was decided June 14, 2004  • The court reversed the Ninth Circuit Appeals Court opinion  • which had reversed the United States District Court for the eastern District of California (trial court) • which had dismissed Newdow's complaint against the School Board

34. Regulating Carbon Dioxide • Massachusetts v. EPA (Supreme Court slip opinion) • Massachusetts V EPA 549 U.S. 497 (Cornell University) • Supreme Court sends carbon regulation back to the EPA (ARS Technica) • In the majority view, the "EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both 'actual' and 'imminent.'" • The EPA's Prudent Response to Massachusetts v. EPA (Heritage Foundation) • Massachusetts v. EPA, Ignored: One Year Later, Back to Court We Go(Warming Law blog)

35. There is a practical beginning to a particular dispute that a court is asked to resolve – when a party files suit • There are practical ends, when a judge issues an opinion from which an appeal is not, or in some instances cannot, be made • We should never forget that any dispute has multiple origins and that any resolution ruling against one party, in a society which values personal freedoms and due process, invites the aggrieved party to work toward changing the outcome • The debate over terminating pregnancy, for example • 1973. Roe v Wade (Cornell University)

36. The Main Players • Department of Justice • The Federal Judicial Branch (USA.gov) • Judicial Branch Resources (Fdsys) • Administrative Office of the U.S. Courts – the central support entity for the judicial branch providing a wide range of administrative, legal, financial, management, program, and information technology services to the federal courts • Federal Judicial Center – the education and research agency for the federal courts • ProQuest Congressional • LexisNexis Academic  • FindLaw (Thompson Rueters) • Federal Law Materials - Judicial Decisions (Cornell University)

37. Court Structure • Federal Constitution 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 behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office

38. The Judicial Power shall extend • to all cases ... 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

39. Supreme Court • 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

40. United States District Courts • The trial courts in which justices have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters • Currently, there are 94 such districts, including at least one district in each state, the District of Columbia and Puerto Rico • Three territories of the United States -- the Virgin Islands, Guam, and the Northern Mariana Islands -- have federal district courts • District of Minnesota

41. Special trial courts • Having nationwide jurisdiction over certain types of cases • The Court of International Trade addresses cases involving international trade and customs issues • The United States Court of Federal Claims has jurisdiction over • most claims for money damages against the United States, • disputes over federal contracts, unlawful "takings" of private property by the federal government • a variety of other claims against the United States • B. US Bankruptcy Court in Minnesota • Bankruptcy (Cornell University)

42. United States Courts of Appeals • The federal judicial districts in each state are organized into 12 regional circuits each containing a United States court of appeals • These courts hears appeals from the district courts in its circuit and appeals from decisions of federal administrative agencies • The Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by • U.S. Court of International Trade • U. S. Court of Federal Claims • http://www.uscourts.gov/uscourts/images/CircuitMap.pdf

43. United States Supreme Court • The Supreme Court consists of the Chief Justice of the United States and eight associate justices • At its discretion, and within certain guidelines established by Congress, the Supreme Court each year hears a limited number of  the cases it is asked to decide • Those cases may begin in the federal or state courts, and they usually involve important questions about the Constitution or federal law • U.S. Supreme Court News (Oyez)

44. Rules of the Courts • Congress has authorized the federal judiciary to prescribe the rules of practice and procedures subject to Congressional oversight • The authority and procedures for promulgating rules are described in • Rules Enabling Act. 28 U.S.C. 2071-2077 • Federal Rulemaking (Administrative Offices of the US Courts)

45. The Litigation Process • One party – the plaintiff – is suing another party – the defendant – for something • The facts of the matter • The remedy proposed • Previous cases in which judges have ruled on similar facts – legal argument by analogy • Obviously, each side picks cases in which the judge issues an opinion in their favor • A case, in fact, can be used to support both sides • The outcome is that a judge chooses one interpretation of the facts and one set of cases over the other

46. The Litigation Process • Produces a variety of records - some private and some public  • personal correspondence between the attorneys and their clients  • briefs written by the attorneys • pretrial motions  • interrogatories  • documentary evidence written by expert witnesses • depositions - written or oral answers to questions posed by attorneys to expert witnesses  • proceedings of the trial  • published opinion - the factual evidence and the argument deemed persuasive by a judge  • post trial motions  • case file containing most of the above material

47. Judicial Process – Appellate Courts • At the Appellate Level • records of the case already in existence  • written briefs filed by the attorneys  • transcripts of oral arguments on legal points 

48. Finding Aids • Legal textbooks (treatises) – authors generally refer to important cases that illustrate the points of law they are discussing • Law journals - authors of articles often refer to important cases that illustrate the points of law they are discussing • LexisNexis Academic • Topical case reporters provide access to the reporters by subject and case name • Bureau of National Affairs

49. Finding Aids • Online legal databases such as Westlaw and LexisNexis Academic include the full-text of court decisions – allow searching by keyword, by subject, or party name • Legal encyclopedias – organized by topic (subject) comprise articles or paragraphs that synthesize and comment on specific points of law. Entries are accompanied by citations to cases that support the principles discussed • American Jurisprudence $11,888.00 • ProQuest Congressional access through US Code Service • LexisNexis Academic access through US Code Service

50. Finding Aids – Annotated Statutes • Annotated Code • Summaries of opinions that have construed the statute • Notes on the history of and amendments to the statute • Relevant practice sets, periodical articles, and books • Cross-references to similar and related statutes • LexisNexis Academic • <US Legal> • <Federal Statutes, Codes and Regulations> • <Annotated US Code (USCS)> • <Boundary Waters Canoe Area>