Organization and Function of Law and Justice PDF

ORGANIZATION AND FUNCTION OF LAW AND JUSTICE Legislative branch: Where the law is made Judicial branch: Where the law is disputed & interpreted Executive branch: - The law to make the law: Article 1, Section 1, of the U.S. Constitution, provides that “All legislative...

ORGANIZATION AND FUNCTION OF LAW AND JUSTICE Legislative branch: Where the law is made Judicial branch: Where the law is disputed & interpreted Executive branch: - The law to make the law: Article 1, Section 1, of the U.S. Constitution, provides that “All legislative Powers herein granted shall be vested in a Congress of the U.S., which shall consist of a Senate and House of Representatives - Forms of congressional action: - Bills: A proposed legislation under consideration by either of the two chambers of Congress - Joint Resolutions: A legislative measure that requires passage by the Senate & House of Representatives - Concurrent Resolutions: A legislative measure adopted by both houses of a bicameral legislature - Simple Resolutions: A legislative measure passed by either the Senate or the House of Representatives - How are laws made? - Legislation is introduced by a member of Congress and in some cases goes through legislative committees - The chair and members of the committee from both parties & both chambers of Congress set priorities - The committees hold hearings on legislation & hearings from witnesses who support or oppose the legislation - Then, bills are sent to the House & Senate and they become law if approved by both - The development of the Judicial system - In 1787, the Constitutional Convention called for the creation of a national judiciary - But there was a debate between the Federalists & Anti-federalists - Federalists supported a central & strong judicial system - Anti-federalists opposed the idea because it would limit state & individual rights - The Federalist V. Anti-Federalist Justiciability and judicial gatekeeping - Moot: Courts will not hear a case where the plaintiff will not be affected by the outcome - Standing: Courts will not hear a case unless individuals demonstrate sufficient connection to and harm from the law or action - Ripeness: Courts will not issue advisory opinions and they limit their jurisdiction to “cases and controversies” - Exhaustion: An individual bringing a case is required to have exhausted all administrative remedies - Political questions/secrets: Courts will not decide issues that are under the authority of other branches or issues that endanger national security Jurisdiction between federal and state systems - Federal & state courts both have jurisdiction over a dispute or what is called concurrent jurisdiction - Appeals may be taken from state courts to federal courts if the issue is federal or related to the constitution - The 5th Amendment’s double jeopardy clause prevents a defendant from being tried twice for the same offense - However, the “dual sovereignty doctrine” allows the federal & state courts to prosecute individuals for the same offenses Federal: - Cases involving a law passed by the Congress - Cases concerning constitutional issues - Cases requiring the interpretation of international treaties - Diversity cases [damages of at least $75,000] State: - General cases except those prohibited by state law - Cases or controversy arising out of the state constitution or violating state laws - Certain diversity cases The Structure of the Federal Legal System Federal District Court - First stop for almost every case that enters the federal jurisdiction over civil cases in which an individual is suing for at least $75,000 - There is at least one district court in each state, and California & Texas have four or more district courts - Trials are conducted before 1 judge Federal Court of Appeals - Appeals from district courts may be taken to federal courts of appeals, also known as circuit courts - They may affirm or reverse the lower court judgment, opening the door for a new trial - There are 13 courts of appeals, 11 of which have jurisdiction over the district courts in their circuit - Appeal court hearings are conducted before 3 judges The U.S. Supreme Court - The U.S. Supreme Court (SCOTUS) is the highest court in the federal judiciary of the United States  - It exercises discretionary jurisdiction over appeals from the federal courts of appeals & state supreme courts - Has original jurisdiction over disputes between states, disputes between the U.S. government and a state, and disputes between a state & foreign citizen - Has jurisdiction over constitutional issues and cases involving the interpretation of an international treaty The Structure of the State Legal System State Courts of Limited Jurisdiction - Minor criminal offenses & civil cases - 66% of all state cases are tried before these courts - They are called county courts, magistrate’s courts, and municipal courts State Courts of General Jurisdiction - Major criminal & civil cases or appeals from limited courts - Cases that involve a felony charge or a state constitutional issue - Commonly called circuit courts, district courts, superior courts State Appellate Courts - They fall below state supreme courts - Receives appeals from courts of general jurisdiction - Commonly called appellate courts, appellate divisions, and appeals courts State Supreme Courts - Highest court in state judicial system - Receives & reviews appeals from lower courts - Individuals may appeal cases of this court to a federal district court INSIDE ACTORS IN THE LEGAL SYSTEM - Judge: A person who presides over court proceedings, either alone or as a part of a panel of judges - Court Clerk: An officer of the court who records the proceedings & administers oaths to witnesses - Court interpreter: A person who translates the processing & questions to those who speak another language - Court reporter/stenographer: A person who captures the live proceedings using a stenographic machine or other machines. Judges How Judges Decide Disputes - Judges typically explain that their decisions are based on the law & established precedents - According to the “robes on” theory, once judges slip into their black judicial robes, they disregard all considerations - This perception ensures predictability, stability, and trust in the judicial system - However, judges rely on different approaches when deciding on a case  Originalism [Lawrence V. Texas] - Asks what the creators of the law/framers of the Constitution intended at the time of drafting the law - Judges interpret the constitutional text rather than impose their point of view - They may examine the records of the Constitutional Convention & the ratification debates in the states - Also examine the statements of the drafters of the Constitution & American legal history Textualism [Texas V. Johnson] - Examines & applies the texts of a statute or constitutional provision without interpretation - Judges consider the constitution & statutes as “living documents” - They don’t consider “legislative history” or attempt to analyze the intent of the drafters - Best indication of what the drafters of a measure intend is the words in the text Attitudinal Approach [Trump V. United States] - Assumes that judges' decisions are explained by their conscious & unconscious preferences & prejudices - Argues that the lifetime tenure of judges liberates them to vote in accordance with their personal & political views - Acknowledges the influence of ideology, race, gender, and politics on judges’ decisions - Associates decisions with social identity & psychological characteristics Strategic Approach [Loving V. Virginia] - Views judges as motivated by certain goals that advance certain policies - Judges rely on persuasion, bargaining, social interaction - Tend to divide along ideological lines & public expectations - Aware that respect & compliance with their decisions depend on popular & political support Historical-Institutional Approach [the case of Obama Care] - Assumes that judges' decisions are shaped by their awareness of their affiliation with important institutions - Judges take seriously their role as responsible members of the judicial branch - Prioritize maintaining respect for laws & judiciary system - Tend to make decisions that align with expectations of decisions by higher courts, a phenomenon known as “reversal aversion” Lawyers The Development of the Lawyer Profession - At first, there was an expectation that individuals could defend themselves in court  - Lawyers were excluded from trials & cast as elites who took advantage of farmers & workers - The complexity of society & disputes made lawyers necessary to guide individuals through trials - Law became a profession & an academic field along with the establishment of law schools The American Bar Association - Established in 1870 to make it harder to become a lawyer & limit competition - At first, excluded immigrants and religious & racial minorities - The association was later democratized & established based on competence - Today it’s concerned with improving the practice of law Characteristics of the Legal Profession Specialized education: Legal education affiliated with universities that only is available to qualified applicants Restricted Access: Bar examination, further legal education, limitations on practicing law across state boundaries Monopoly over expertise & skills: Restriction on practicing law without a license; difficulty of non-lawyer representing himself or herself in court Self-regulation: Self-enforcement of code of ethics drafted by bar associations Professional ideology: Protection of the client & respect for the law Solo Practitioners and Small Firm Lawyers - Lawyers operate independently & tend to be at the bottom of the hierarchy - Tend to be less integrated into the larger body of the legal profession - Not affiliated with large firms = limited resources & skills - More likely than corporate lawyers to disregard ethical codes of professional conduct Government Lawyers - Employed by federal, state, county, municipal governments - Mostly lawyers start their career here or are people who prefer government work & public service - Have more access to resources than solo practitioners - Represent government agencies & institutions, ranging from White House to small government offices Lawyers of Large Corporate Law Firms - They occupy the top of the hierarchy working & representing powerful corporate clients - Have access to quality education & resources to represent their client - Tend to have access to support from staff & other attorneys - Tend to be engaged in the most prestigious & intellectually challenging areas of the law Special Counsel/Prosecutor [Nixon V. United States]  - Lawyer appointed by the president/attorney general - Tasked to investigate charges of criminal misconduct by members of the administration - The appointment of a special counsel ensures accountability & transparency - Once appointed, the special counsel enjoys a measure of independence from supervision OUTSIDE ACTORS IN THE LEGAL SYSTEM - Jury: Sworn body of people (jurors) convened to hear evidence, make findings of fact, and render a verdict - Witness: Individual who, either voluntarily or under compulsion, provides testimonial evidence of what they know or claim to know - Plaintiff: Individual or party that files a lawsuit in a court - Defendant: Individuals or a party that is being accused & sued in a court The Jury in Criminal Cases (trial of Quakers William Penn & Mead in 1670) - The jury dates back to 1215 when the church band trial by ordeal - 12 individuals were ordered to appear & attest to the defendant’s guilt or innocence - In the 14th & 15th centuries, the determination of a defendant’s guilt or innocence began to be based on the testimony of witnesses - The jury was created to evaluate the evidence & they were no longer expected to have knowledge of the incident The Development of the American Jury (John Peter Zenger trial in 1735) - The idea of a jury was coined by England & brought to American colonies - At first, the jury operated as the “judges of the law,” deciding if a law should be disregarded - Jury also emerged as a symbol of exposing & arbitrary power & checking overzealous prosecutors - Later developments made the jury assume a passive role where they follow the law as instructed by the judge Jury and the Federalist VS. Anti-Federalist Debate - Federalists argued that a jury should be impartial & composed of individuals distant from the site of the crime - Anti-Federalists responded that a local jury is an important avenue for democratic participation - Two sides reached a compromise where the jury is formed from the state & district of the crime - The compromise was in favor of the Federalists as juries were no longer required to be from the locale of the crime Jury Jury Composition - The jury ended up being 12 individuals who are supposed to represent the community  - In 1970, the U.S. Supreme Court held that the 12-person jury is not constitutionally required - Normally, jurors can range from 6-12 depending on case & state laws - Approximately 30 states employ juries of less than 12 for some criminal offenses Jury Decision-making - Jurors begin with selecting the foreperson (leader) of the group, usually someone with past experience - Then they debate the procedure to be followed in determining the defendant’s guilt or innocence - Jury’s deliberations follow a verdict-driven deliberation where they focus on the verdict - Another type of jury is an evidence-driven deliberation where they discuss the evidence before voting - After deliberations, the jury returns a verdict to the judge Unanimity in Jury’s Decision - When juries are authorized to return non-unanimous verdicts, they tend to stop deliberations when a majority reaches a decision - The Supreme Court has required unanimous verdicts in federal criminal trials since late 1800s - In 2020, the Supreme Court ruled that the requirement for unanimous verdicts applies to state & federal criminal trials - Oregon was the only state that continued to authorize non-unanimous verdicts while some states permitted defendants to waive unanimous verdicts Jury Nullification [Emmett Till Murder Trial] - Conscious and deliberate decision of a jury to acquit a defendant despite facts & the law - Argument for nullification hinges on situational considerations as well as checking overzealous prosecutors - The Supreme Court ruled that juries don’t have the right to ignore the law, but nullification can happen - Judges are required to discourage the jury’s use of nullification & may remove jurors who refuse to follow the law Jury Composition and Selection [Batson v. Kentucky] - At first, the jury selection process was marked by excluding women & racial minorities - In 1975, the Supreme Court ruled that a defendant has the right to have a diverse jury without exclusion - Individuals can be excluded from a jury if they are deemed to be biased or have a personal relationship with the defendant  - Individuals can also be excluded through peremptory challenges where attorneys ask for removal without justification Emotions and Jury Decision-making Anger: Makes jurors certain & increases the chances of reaching harsh verdicts Disgust: Increases the chances that jurors render a punitive verdict Fear: Makes jurors uncertain & complicates the process of reaching a verdict Sadness: Makes jurors uncertain and may not increase the chances of punitive verdicts SOCIAL ALTERNATIVES TO LEGAL PROCESSES Disputing (Naming, blaming, claiming) - Elements of disputes - A disagreement between two or more individuals or groups - Disputes entail identifying & naming the issues/actions that may have affected them - They entail blaming & associating such issues/actions with specific individuals or groups - They also entail confronting the blamed individuals/groups with a claim - Lumping: People decide not to pursue a dispute & maintain the relationship - Types of disputes - Three Stages of Disputing - Grievance/pre-conflict stage: An individual expresses their beliefs that he or she has been “wronged or injured” - Conflict stage: An individual who feels wronged confronts the offending party & communicates feelings of injustice - Dispute stage: The conflict is made public & a 3rd outside party becomes involved in the dispute Methods of Dispute Resolution - Negotiation: Discussion between the parties in dispute, initiated by one or both of the parties, both parties agree to have dialogue and reach a compromise (win-win) - Mediation: Using a 3rd party to reach a settlement, solicited by the parties/imposed on them, both parties agree to receive assistance & reach a compromise (win-win) - Arbitration: Using a 3rd party to resolve a dispute, solicited by the parties, both parties accept the decision as binding, one of the parties likely will win (win-lose) - Adjudication: Using an impartial party that an authority decides, solicited by one of the parties, one of the parties likely will win (win-lose) Ex: Lincoln-Shields Duel (violent), Inuit Song Duels (unconventional) Social Influences on Disputing - Culture - Nonconfrontational cultures tend to encourage modes of resolving disagreements (win-win)  - Nonconfrontational cultures place a high value on compromise, harmony, and mutual understanding - Adversarial cultures encourage formal adjudication & legal resolutions (win-lose) - Adversarial cultures prioritize individual rights & enforcing the letter of the law - Costs (avoidance & lumping in japan, they had faith the factories would come through with compensation w/o suing them) - Generally, individuals tend to avoid disputes when the costs of pursuing them are high - Individuals also consider non-monetary costs such as breaking family relations & losing friends - Business executives prefer to bargain informally with one another rather than bring legal action - Aside from monetary & time-related costs, businesses avoid legal disputes to protect their reputation - Power - In small societies, the relatively equal distribution of wealth & power factors into conflict avoidance - Individuals with a similar amount of power tend to resort to mediation & negotiation - In large & complex societies, unequal distribution of wealth & power motivated the powerful to use legal means - In these societies, powerful individuals use the power disparity to force others to concede & compromise - Identity (ex: suing the insiders) - Individuals who also work in a minority profession tend to avoid conflict & claim personal responsibility - Insiders & traditional residents also avoid conflict with the close-knit nature of the community - Outsiders & new residents tend to resort to legal means given their lack of connection to the community & concerns over discrimination - However; their concern over retribution or retaliation tends to incentivize them to settle - Relations - In small societies (complex), individuals tend to avoid conflicts as they depend on each other - They also avoid conflicts given that they are connected through a complex web of intermarriages and friendships - Individuals in large societies tend to pursue disputes as they are more independent - They also tend not to prioritize maintaining friendships over their right to dispute The appeal and challenges to mediation [the Case of divorce] Appeals: - People who prefer peaceful resolutions or hold negative views about formal procedures - Appears more flexible, and less costly than formal legal trials - Offers opportunity to create personalized settlements that reflect the interests of each party - Allows parties to participate in and control the process of decision-making Challenges: - Can be contentious, involve emotional manipulation & passive-aggressive behavior - Can lead to one party being easily influenced or coerced into agreements that are not in their best interest - Offers one or both parties an opportunity to withhold info leading to an unfair settlement Mutliplex v. Simplex Relationships Simplex: Large societies, don’t depend on each other, less likely to see each other Multiplex: Small societies, close-knit relationships, more likely to see each other