INTRODUCTION TO COURTS & LEGAL ANALYSIS

1. INTRODUCTION TO COURTS & LEGAL ANALYSIS POL 327, Con Law: Equality & Free Expression Slides for Class Use

2. Nature of Constitutional Law Review of four basic types of law: • Constitutional law • Statutory law • Administrative law • Common law

3. Background Information on Courts • DEFINITION: A COURTis a unit of the judicial branch of government that has authority to decide various types of legal disputes. • Difference between • Federal courts and state courts • Trial and appellate courts

4. Jurisdiction of Courts • Jurisdiction refers to the legal authority of a specific court to hear a particular type of case. • The jurisdiction of a specific court is determined by the constitution and statutes governing the operation of the court in question. • Jurisdiction is defined in terms of the nature of the parties involved, the subject matter, or the location of the incident being litigated.

5. Federal v. State Courts • Federal courts are part of the federal government and have JURISDICTION over cases involving: • the application or interpretation of federal law • Cases affecting diplomats • Cases of admiralty and maritime • Controversies to which US government is a party • Controversies between two or more states • Controversies between citizens of different states or foreign countries. • State courts are part of the state governments and have JURISDICTION over matters of state law.

6. Trial v. Appellate Courts Trial courts • Handle legal matters from the time they are first filed through the verdict and penalty stage. • Decide questions of fact and law Appellate courts • Reviewing the decisions of trial courts • Limited to deciding questions of law

7. Nature of Constitutional Law Review of four basic types of law: • Constitutional law • Statutory law • Administrative law • Common law

8. COMMON APPEAL ROUTES

9. JUDICIAL REVIEW • It is the power of the judges to be the final arbitrator of the meaning of both statutes and the constitution. • The landmark case dealing with a conflict between a statute and the constitution was Marbury v. Madison. In Marbury v. Madison, • Chief Justice John Marshall relies on deductive logic based on assumption about the “inherent role of the courts” and the checks and balances philosophy of the founding fathers.

10. Marshall’s Arguments for Judicial Review • Constitution established system of limited powers. • Congress can’t change the constitution by ordinary legislative act. • Acts that are repugnant to the constitution are void and do not bind the courts. • It is the inherent role of the courts to determine if legislative acts violate the constitution.

11. Arguments Against Judicial Review Although there were no dissenting opinions, many scholars and politicians have raised arguments against judicial review. • Judicial review is neither expressly authorized nor implicit in the structure of the Constitution. • It is anti-democratic in that it gives judges who are appointed for life, the power to frustrate the will of the majority as it is expressed through their elected representatives.

12. Limitations on Judicial Review • Judicial self-restraint • Cases and controversies rules • Requirements of ripeness and standing • Principles of stare decisis. • Constitution can be amended to overturn court decisions • Over time, judges can be replaced with others who will interpret the law differently

13. U.S. Supreme Court Decision Making Process • Review of petitions for writs of certiorari and writs of appeal. • Filing of written briefs • Oral arguments • Decision conferences • Assignment of opinions • Development of concurring and dissenting oopinions • Announcement of decision and publication of opinions

14. Publication of Court Decisions • Case reporters such as: • United States Reports • Supreme Court Reporter • Loose leaf services • United States Law Week • Commercial electronic data bases • LEXIS • WESTLAW • Internet Websites • Supreme Court [http://www.supremecourtus.gov] • Findlaw [http://www.findlaw.com]

15. Content of Written Opinions:Preliminary Material • name of the parties • name of the court that rendered the decision • the dates the case was argued and decided • headnotes • syllabus. • a listing of the judges who decided the case • listing of attorneys involved in the case.

16. Content of Written Opinions:Facts of the Case SUBSTANTIVE FACTS: Information on what happened to the parties before the litigation began, i.e., why one party is suing the other or the nature of the crime that was allegedly committed. PROCEDURAL FACTS: Information on what happened in the lower courts or administrative agencies before the case was decided by the court issuing the opinion. a.k.a. JUDICIAL HISTORY

17. Content of Written Opinions:Types of Issues PROCEDURAL Relate to manner in which the trial was conducted. • Was evidence improperly admitted or excluded? • Did attorney mention something jury wasn’t suppose to know about? SUBSTANTIVE Relate to the way the law was interpreted and applied • Was the constitution, statute, administrative regulation, or common law interpreted correctly? • Was the statute or administrative regulation constitutional?

18. Content of Written Opinions:Decisions Reached • The disposition of the case is a determination of what the next step in the legal process will be. This step usually consists of affirming (approving) or reversing (disapproving) the judgment of the lower court. • A holding is the court's answer to an issue that was raised in the case. It is formulated as a statement that the law is to be interpreted in a certain way when a given set of facts exists. It is the rule that future courts will look to for assistance in deciding similar cases.

19. Briefing Court Cases Follow format specified by instructor or “lead attorney.” Read the entire case before beginning to write your brief. Use word processor so it is easy to revise Paraphrase rather than quote.

20. Briefing Court Cases (Cont.) • Use a legal dictionary if you don’t understand the meaning of a term. • Note whether the case centers around interpreting the constitution, a statute, or the common law. • Summarize organization/logic of justification given for the decision. • Identify how justices used key precedent cases

21. Format for Case Briefs HEADING: BACKGROUND INFORMATION • Facts: • Judicial History: • Disposition: LEGAL SIGNIFICANCE • Issues Raised (including answers): • Holding/Precedent (including answers): REASONING • Opinion of the Court: • Concurring Opinions: • Dissenting Opinions:

22. Analysis of Court’s Reasoning There are three main approaches to constitutional interpretation: • Textualism • Literalism • Contextualism • Original Intent of Drafters Scalila’s Originalism • Application of underlying value to unanticipated/changing circumstances. Living/evolving constitution approach

23. Stare Decisis • “let the decision stand” • a legal doctrine that courts should decide cases in ways that are consistent with the decisions reached in precedent cases.

24. Use of Precedent Cases • Identify appropriate precedent case • Identify the legal principle/holding of the case • Apply the principle to the facts of the case at hand.

25. Difficulties of determining what the precedent actually was. • Distinction between: • ratio decidendia decision on the legal issues raised in that specific case • obiter dictum comments the judge makes that are not necessary to the resolution of the issues of the case and are in effect a discussion of a hypothetical situation. • Determining how “broad” the ruling should be. • In Miranda v. Arizona, S.Ct. ruled that police had to warn Miranda of his rights, but should it apply to all forms of questioning or just “custodial” questioning? Should it apply to school teachers or be limited to sworn police officers?

26. Labeling Judges with respect to:Regulation of Business • CONSERVATIVE JUDGES • Favor management over labor • Frequently reject government regulations of business activities • LIBERAL JUDGES • Generally support government regulations of business activities • Favor labor over management

27. Labeling Judges with respect to:Criminal Law and Procedure • CONSERVATIVE JUDGES • Support death penalty and mandated sentences • Support giving more discretionary powers to police in search and seizure, interrogations, etc........ • More willing to sacrifice individual rights for public safety and security • LIBERAL JUDGES • Opposed the death penalty and mandated sentences • Require close review of police discretion in search and seizure, interrogations, etc........ • Less willing to sacrifice individual rights for public safety and security

28. Labeling Judges with respect to:Equal Protection and Discrimination • CONSERVATIVE JUDGES • Favor white males over women and minorities • Limit the power of courts to require remedial action. • LIBERAL JUDGES • Favor women and minorities over white males • Support giving courts broad remedial powers.

29. Labeling Judges with respect to:First Amendment Issues • CONSERVATIVE JUDGES • Support standards that make it easier for government to limit free speech that is critical of Gov.. policies, or uses offensive words or symbols. • Support various forms of government assistance for religion. • LIBERAL JUDGES • Support standards that make it more difficult for government to limit free speech that is critical of Gov.. policies, or uses offensive words or symbols. • Seek to enforce strong separation between church and state.

30. Labeling Judges with respect to:Personal Privacy Issues • CONSERVATIVE JUDGES • Reject a existence of a constitutional right for a woman to have an abortion and support government limitations on abortion. • Support government regulations on sexual activities between consenting adults. • Reject the existence of a constitutional “right to die” and support government prohibitions against all forms of euthanasia. • LIBERAL JUDGES • Recognize a constitutional right for a woman to have an abortion and oppose government limitations on abortion. • Oppose government regulations on sexual activities between consenting adults. • Recognize a constitutional right to die and oppose government prohibitions against voluntary euthanasia.

31. Labeling Judges with respect to:Judicial Roles JUDICIAL SELF-RESTRAINT Courts should defer to majoritarian political branches on questions of interpretation. JUDICIAL ACTIVISM Courts should protect minorities from the tyranny of the majority, and provide check and balance to political branches.

32. Presidential Appointments to S. Ct.

33. Presidential Appointments to S. Ct.

34. IDEOLOGICAL DISTRIBUTION OF SUPREME COURT Strong Liberal Moderate Liberal Moderate Conservative Strong Conservative Breyer (C) Ginzburg (C) Souter (B-1) Stevens (F) Rehnquist (N/R) Scalia (R) Thomas (B-1) Roberts (B-2) Alito (B-2) O’Connor (R)Kennedy (R) None B=Bush Appointee, C=Clinton Appointee, F=Ford Appointee, N=Nixon Appointee, R=Reagan Appointee. Carter had no appointees to S.Ct. during his four year term

35. AGE DISTRIBUTION OF SUPREME COURT(As of 1/18/07) Strong Liberal Moderate Liberal Moderate Conservative Strong Conservative Stevens (86+) Ginzburg (73+) Breyer (68) Souter (68) Kennedy (70) Scalia (70+) Thomas (58) Alito (56+) Roberts (51+) None + indicates they will have a birthday before the end of the current term.

36. Religious Affiliation of Supreme Ct. Justices Before Bush II Apt.

37. Religious Affiliation of Current Supreme Ct. Justices