Midterm Review Legal Environment
Terms in this set (76)
Orderly Dispute Resolution
In any society disputes inevitably arise.
The central function of the government is to prove mechanisms for orderly dispute resolution.
Judges wear robes like clergy
courtrooms are solemn places; the judge sits behind a magnificent bench.
U.S. v. Nixon (1974)
-Nixon wanted to win re-election so badly that his campaign launch spy operations against the Democratic candidate.
-5 men were caught wiretapping their office.
-Nixon denied knowing anything about it.
-A secretly recorded conversation proved that Nixon lied and proved he was involved. The 5 men were charged with a crime, but Nixon wasn't.
-A court ordered the White House to hand over the tape, but Nixon refused, arguing that "A PRESIDENT'S COMMUNICATIONS WITH HIS ADVISORS MUST BE KEPT PRIVATE IN ORDER TO DO THEIR JOBS, AND THAT THE EXECUTIVE BRANCH OF GOVERNMENT IS INDEPENDENT FROM THE JUDICIAL BRANCH, THEREFORE THE COURT COULD NOT DEMAND HIS RECORDINGS."
-They disagreed with the lower court. His recorded conversation must be kept private because some communications may include sensitive information and military secrets, and we can not put the nations safety at risk by making these recording public. (Nixon did not claim that his recording contained any sensitive information).
filing a lawsuit
post judgement enforcement of orders
The limits on court's ability to implement decision
limits on the court that stem from:
the ways in which courts are internally organized and the ways in which the courts interact externally with other political actors (president, congress, etc.)
Dynamic Court View
less difficult. the barriers are less difficult to get passed (low/weak)
Separation of Powers
The division of power among co-equal branches of government in hopes to prevent one branch from gaining to much power and responsibility. The legislative branch enacting laws and the executive branch enforcing these laws is an example of separation of powers∙
Everybody pays, defined group benefits (Diffuse costs and concentrated benefits) Example: Farm Subsidies
Bush v. Gore
On the night of the Bush and Gore presidential election the state of Florida would be the last state to determine who would win. The closeness in votes resulted in a recount which caused the number of votes for Bush compared to Gore to be in the hundreds. The closeness of this election in Florida caused many people to notice the amount of uncounted votes in traditionally Democratic counties. Gore's campaign and supporters demanded a recount based on the large amount of machine malfunctions and user error. Florida's secretary of state was the one incharge of ordering a recount which she did not approve but the Florida Supreme court decided that the recount should proceed. Bush's lawyers appealed this ruling to the Supreme Court which set aside the Florida Supreme Court's decision and asked for an explanation for their decision. This case established that the equal protection clause protects each person's vote and ballot, and the recount although fair was not a fair practice. Court also stated that the Florida Supreme Court made a new election law with its decision and new laws could only be created by the Florida Legislature.
Litigants who have only occasional resource to the courts
Constitutive View of politics
State is only a state upon the political act of recognition by other states.
· No need for the law to reflect facts, and any other conclusion results in the alignment of recognition to the purely political process rather than a justiciable rights-based process.
-Rules that govern relationships and disputes involving the state
-Includes - constitutional law, administrative law, revenue law, and criminal law
set up to push settlement before going to trial. Many people settle because the case can remain confidential. Also bc the person/city/business being sued may not have any money so they settle for a smaller amount then would have come out of trial.
Courts of appeal that review decisions of lower courts and determine if they have made errors of law. Do not hear testimony and rely on written record, attorney briefs and attorney arguments to determine if the trial court made an error regarding the law (legal error; not factual issues).
Unitary system- a system of government with a single central government which distributes small amounts of power to administrative bodies and legislates over a whole nation.
Federal System - A system of government containing a central, overarching government and smaller, regional governments
A soviet-styled legal system that the outcome is predetermined. It has a hierarchical structure found in places like Russia. Very informal process
Related to Kagan's typology of Legal System and is helpful to use kagan's typology when looking to understand our own legal system.
A system ruled by one or few where everyone's status is clearly defined. Can be used to describe gov systems opposite of participator system where people are involved.
Can see hierarchical system in Russia, Europe, Japan ect.
Legal system where outcomes are not predetermined and everyone is participatory. Fair trial and speedy trial, lawyer to represent you.
recompense for all injuries and losses that are not the victim's faultIdea comes from Lawrence Friedman (1987)
o "Claims consciousness," or "law explosion"
o Many of life's hazards should be controlled by the state
o Cause #1: Technological and social changes that have given us greater control over our environment and our lives (vaccines, insurance, etc.)
o Cause #2: Social-structural change from primary to secondary ties (we are further removed from people who would be likely to sue (thus, we have less incentive to work things out without using law, and more incentive to use the law to feel compensated
The number of prisoners confined in a prison or a jail under state or federal jurisdiction. Incarceration rates in the U.S. are significantly higher than in other countries. There was a seven-fold increase from 1970 to 2000 in the number of prisoners in U.S. state and federal prisons.Reasons: Post "Due Process Revolution," "law and order" politics, and the "war on drugs." Result: We have a more active criminal justice system than in other countries and a more active system than before.
-a jury in each county or federal court district which serves for a term of a year. Usually selected from a list of nominees offered by the judges in the county or district. They examine accusations against persons charged with crime and if the evidence warrants make formal charges on which the accused persons are later tried
Grand jury size: As small as six (Indiana) to twenty-three (federal); goal: determining whether evidence is sufficient (not innocence or guilt)
Mapp v. Ohio
Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. SCOTUS declared that all evidence obtained by searches and seizures in violation of the Fourth Amendment is inadmissible in a state court. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule (a law that prohibits the use of illegally obtained evidence in a criminal trial).
a judicial examination of issues of fact or law disputed by parties for the purpose of determining the rights of the parties
Logic of the Triad
-Relationship between the court, litigant 1 and litigant 2. It is unstable; when self-help does not work and the parties involved cannot come to a resolution, the court steps in as the third party
-Can be unfair because once the court makes a decision the triad becomes two against one
Set of rules backed by the states
Rule of Law
General sense that disputes will be handled in a legal and fair way. If a country does not have a strong rule of law there is more chaos.
Legislative/executive branches unable or unwilling to act so it falls to the courts. Brown v. Board is an example of the courts correcting a political failure. In this case congress was controlled by Southern democrats pro-segregation that would kill the desegregation bills. Once a case was presented to the courts the Supreme Court was within its jurisdiction to act. Once this case was decided on Judicial Coercion came into play but they had trouble implementing the policy.
collecting information from various sources through various means. In the literal sense
Brown v. Board of Education
A textbook example of the courts stepping in to correct policy failure. When congress was unwilling to act, the supreme court was able to. For congress to have acted, the cost would have been too great, as only 13% of population was black. They could have lost their seats. So...
Plaintiffs turned to the court. Why?
Justices appointed for life
"Good" facts under "Separate but equal"
Sympathetic national elites- USSR was using our apartheid ways against us to convince other countries that capitalism was bad
Key Concept: Did Brown v Board unilaterally transform education policies? NO! Desegregation efforts only take off after congress and the executive branch add their resources to the fight. SCOTUS has not the sword nor the purse! Good example of cost benefits (who pays, who benefits)
Rosenburg "Are the courts a hollow hope?"
Constraints on Judicial power to act at all due to formal limits written law (constitution)
This is a "CAN'T" as in Courts cannot hear a case against Army Corps of Engineers, so Hurricane Katrina victims could not seek relief from the courts, even though they may have wanted to help.
There are levels of Doctrinal constraints: Minimal/very vague (necessary and proper clause)
Mid-Level/more specific (4th amendment, unreasonable searches and seizures)
Significant/absolute (7th amendment, Right to jury trial in controversies exceeding $20)
Constrained/Dynamic Court Debate
A way of thinking about how a court is able to act
stems from from Rosenburg's book "Power of the American Court System (1991)"
Constrained: Are the law and courts limited in what they can accomplish when it comes to policy making?
Dynamic: Are the laws and courts powerful and an effective player in the policy making game?
Mistrust of Centralized Authority
The idea that Americans believe in minimal government and bureaucratic intervention. We do not want the environmental police writing tickets every time we break a small rule, so congress passes a law, sends it to the rule makers, but little or no enforcement...that is left to lawyers and interest groups to bring complaints to the courts.
Established in Marbury v. Madison when the Supreme Court declared they had the jurisdiction outlined in Article three of the Constitution that they could review acts performed by the executive and legislative branch. Judicial review is another example of separation of powers
Defined group pays, everybody benefits (Defined group pays, everybody benefits) Example:Environmental Regulations
Katrina/Army Corps of Engineers
The Flood Control Act exempts the Army corps of Engineers from being sued by residents of New Orleans after a dam broke and flooded many lower-income areas. This situation was a double-sided sword because if residents were able to sue these engineers they would be put out of business causing more people to negatively impacted in the future. On the other hand, the residents of new Orleans affected by the dam break could not legally place blame on anyone. This situation was an example of doctrinal constraints because the courts wanted to side with the plaintiffs but could not.
A system designed to accomplish a large-scale of tasks by dividing and concurring. Weber favored this type of system over other types of governments.
Factors of a Bureaucratic system:
-Chain of Command is Clear and Hierarchical
-Rules and procedures are clear
-Level of specialization is high
Roe v. Wade
Right of privacy was extended to abortion in this case. Supreme Court ruled in a 7-2 decision that women have a right to abortion during the first two trimesters without interference from the government (women's right to decide is guaranteed under the 14th amendment).
· 1980 Supreme Court made a ruling that upheld a law that banned the use of Federal funds for abortion.
· 1989 allowed the states to prohibit abortions at state clinics.
Rules that govern relationships and disputes between individuals, groups, and corporate entities without the government or state involvement.
- The official power to make legal decisions and judgement.
-Jurisdiction is a necessary element of all lawsuits. It is the authority of a court to pass judgement over a specific type of case and each party to the suit. 1. The power of a court to decide a matter in controversy. 2. The geographic area over which a particular court has authority.
Someone from the majority writes the opinion, explaining the courts decision and how it was reached. The courts opinion, it announces the court's decision in a case and sets out the reasoning on which it was based.
Relating to type of federalism (fed is the division between national and regional government). Con Fed is federal power divided among eeg and national with regional being supreme.
Ex. Articles of Confederation Fed Gov could not levy taxes, state printed awon money, but didn't work b/c national government didn't have enough power
Relating to Kaga's typology of legal systems. Found in US in places like family court. Involves mediators there to facilitate conversation and act as a guide. Very participatory and informal.
Relating to KTLS where people are participatory in legal process.
the dominant political culture in the US that has a strong set of beliefs in:
individualism, democracy, liberty, property, and religion through equality, populism, laissez-faire.
Written by Williams Tyler Paige.
Relating to one of lipset's on American Exceptionalism
Americans associate the court to a solution of our problems. We also have an abundance of lawyers. When we are wronged we want to sue. We sue and changes are made. This is much different than other countries. Adversarial Legalism v. Bureaucratic Legalism.
the negotiation of an agreement between the prosecution and the defense whereby the defendant pleads "guilty" or "no contest" to a lesser offense or to one or some of multiple offenses usually in exchange for more lenient sentencing recommendations, a specific sentence, or dismissal of other charges.
Both sides engage in plea bargaining to enhance their discretion and so that they can seek what they perceive as substantive justice in each case.
Drawbacks of plea bargaining:
o Diminishes the role of the judge by investing prosecutors with outsized control (ADVERSARIAL LEGALISM rather than BUREAUCRATIC LEGALISM)
o Undermines the decisions on punishment established by elected officials
o Excessively lenient sentences (the motivation to procure a guilty plea outweighs punishment)
o Defense attorneys can sacrifice their clients' interests to maintain good relations with prosecutors.
Security, usually a sum of money, exchanged for the release of an arrested person as a guarantee of that person's appearance for trial
Posting bail serves as a guarantee that he or she will return for trial and other court proceedings
procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as a request for answers to interrogatories, request for production of documents, request for admissions and depositions
Pre-trial discovery and motions
o Motions to dismiss (no cause of action, no legal remedy)
o Summary judgment motions (no genuine issue of fact)
o Subpoena documents
o Take depositions (on-record interviews in front of court official)
the resolution of a lawsuit (or of a legal dispute prior to filing a complaint or petition) without going forward to a final court judgment.
This means that:
o Outcomes are divorced from the law
o The emphasis is on bargaining power rather than the law
o It can undermine common law process
-The actions of one involved in an altercation with another party; law is not involved; one party tries to solve the issue on one's own
-When it doesn't work the logic of the tria is out into play and the court steps in as the third party
-Permission for something to happen
Obergefell v. Hodges
-Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages.
-The plaintiffs in each case argued that the states' statutes violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment
one group of plaintiffs also brought claims under the Civil Rights Act.
-In all the cases, the trial court found in favor of the plaintiffs.
-The U.S. Court of Appeals for the Sixth Circuit reversed and held that the states' bans on same-sex marriage and refusal to recognize marriages performed
-In other states did not violate the couples' Fourteenth Amendment rights to equal protection and due process
the action of a country or its government preparing and organizing troops for active service.
the action of organizing and encouraging a group of people to take collective action in pursuit of a particular objective.
the action of bringing resources into use for a particular purpose.
Judicial decision-making, built on precedent
high costs of litigation and uneven distribution of legal resources can serve as a significant limit on judicial power because if certain groups are lacking access to lawyers or sufficient resources to litigation they cannot file lawsuits therefore leaving courts out of the policy-making game
institutional constraints (internal)
courts are passive and must wait for cases to be brought to them by lawyers
courts are internally fragmented
This is limits on the the court, and how the courts are organized. The higher courts have precedence over the lower courts. The courts are passive. Rules of justiciability (both doctrinal and institutional) Role of legal resources in setting judicial agenda (see Galanter reading)
Courts are internally fragmented (see Weberian bureaucracy vs. fragmented authority)
Constrained Court View
The view of courts as unable to produce significant social reform because the conditions required seldom exist because
limited nature of constitutional rights
lack of judicial independence
judiciary's inability to develop appropriate policies and lack of powers of implementation
This view appears historically grounded and empirically plausible, but it overstates the limits on the courts.
The mixture of a federal and local government into one unit, can be hierarchical or intertwined. Federalism was established by the framers in the constitution with the hopes of dividing the powers of governing between two equal systems of government. The United states is an extraordinary example of federalism and some powers that the state and federal government share include taxes, civil rights protection, environmental regulations, and business regulations.
Everybody pays, everybody's benefits(Diffuse costs and benefits) Example:Social Security
interest group politics
Defined group pays, different defined group benefits (Concentrated cost and benefits) Example: UAW wanting easier rules to organize
-Litigants who are engaged in many similar cases over time. Tend to come out ahead due to the following factors:
-Greater access to specialists
-Strategic use of conflict of interest laws
-Development of relationships with judges and decision-makers
-They play the odds and they play for the rules over time
Distributive View of Politics
Rosenberg concept: Attached to CCV, Courts are like santa with presents ex. Courts handing our desegregation. Not a positive view of the courts and courts seem unsuccessful.
Formal, both parties and judge are bound by precedent and rules that control the proceedings.
· Party-based - There is a judge, but lawyers dominate the proceedings and provide energy for the system (evidence, undiscovery, etc.); contingency-fee is very important.
· The American legal profession has played a powerful role in the political construction of adversarial legalism (support instrumental or political vision of the law). Lawyers are obligated to "do justice" in the absence of political action.
· AL is built on two axis - Hierarchical (judge) vs. party-based (lawyers), and formal (built on precedent; fair way to handle, constraint on courts) vs. informal (not built on precedent).
Prohibition of certain conduct and threat of punishment by the state (murder, battery, drug possession, etc.)
Courts in the first tier of the judicial hierarchy, cases are typically heard in these courts first. Determine the facts and apply the law to the facts, also called courts of original jurisdiction. Two functions, 1. Must determine whose version of the facts is most credible. 2. Must apply the law to those facts to reach a decision.
-The legal principle derived from a judicial decision. That part of the written opinion of a court in which the law is specifically applied to the fact of the instant controversy.
- The holding of a case answers the issue or question presented in the case. It may be a single sentence and generally includes facts important to the rule of law applied in the case.
Chief Justice of the U.S Supreme Court
Currently...John Roberts (might be a extra credit question)
Considered first among equals, in charge of task like all administration and agenda setting for when members meet.
Part of Kagan's typology of Legal Systems. Where one or few are in charge of ruling. Usually one judge that has majority of power why lawyers are really just there for show. In places like Europe and japan
Legal system where outcomes are predetermined and power driven by outside group like by traditions rituals and faiths. Another characteristic of expert political system or negotiation/mediation system
Relating to KTLS where the extent legal process is dominated by government. People get to be involved in decisions making
1: a person who institutes a prosecution (as by making an affidavit or complaint
charging the defendant)
2: a government attorney who presents the state's case against the defendant in a criminal prosecution
Prosecutor: Community's chief law enforcement official and the most powerful actor in criminal courts; often pressured to have a high conviction rate
sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime.
a statement that is made under oath by a party or witness (as an expert) in response to oral examination or written questions and that is recorded by an authorized officer (as a court reporter)
-a mini-trial, which may be for a lawsuit ready to go to trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges. The arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may be provided for under statute.
Procedures like arbitration were put in place because of the skyrocketing costs incurred by proceeding through the American legal system