SECTION III: SPECIALIZATION IN SPECIFIC LEGAL ASPECTS

TOPIC 1: The U.S. Supreme Court and its landmark cases

1. INTRODUCTION
The law tradition is not about code, crime, contract, parties, courts or fines, but about “set of
deeply rooted historically conditioned attitudes” about:
● the nature of law,
● the role of law and the polity,
● the proper organization and operation of a legal system,
● and about the way law is or should be, made, applied and taught.
→ Merrymad and Pérez- Perdomo, The Civil Law Tradition

2 basic legal traditions:

Civil Law Tradition Common Law Tradition

Older: goes back to roman times (BC)
More distributed throughout the world:
- Europe
- Latin America
- Some places in Asia
- Louisiana, Quebec, Puerto Rico
Younger: norman conquest of ENgland (1066)
Well distributed throughout the world:
GB, Ireland, USA, Canada, Australia,
New Zealand, India, Pakistan, Ghana,
Kenya, Uganda and Tanzania.

Common law tradition: stare decisis and precedent from the historical perspective.
- Stare decisis means that a judge is bound to follow the decision of an earlier judge, that
is, to adopt the earlier judge’s interpretation of the law and to apply the same
principes, but that is so if and only if : the two cases had similar facts to one another.
- Stare decisis binds the judges, because they have to regard each other’s decisions as
binding precedent and it was in this way the new system came to be common
throughout the whole country.
- The Common law system developed thus principally on a case-by-case basis but also -
through the years - on parliamentary legislation.

In Modern Common Law, the rule of stare decisis - which is based on the principle that it is
unfair to treat similar facts differently on different occasions - has become more flexible over
time: i.e courts decisions are binding only in a particular jurisdiction, and even then, some
courts have more powers than others: supreme courts are more important than lower courts.
Differences between common and civil law:

1. WRITTEN/UNWRITTEN CONSTITUTIONS:
a. Written constitutions in civil law countries, that explain how State, Government
and citizens interact (more flexible)
b. Written constitution in common law countries, that outline core principles. More
rigid
c. Unwritten constitutions in UK, New Zealand and Israel
2. JUDICIAL SYSTEM:
a. Common law judges make law, whereas civil law judges explain the law
b. Civil law countries teach the law with the help of codes and writings about hem
(their analysis, interpretation…), whereas in common law the law is taught with
the help of the most significant cases, their relevance and possible alternative
outcomes.
c. Judges in civil law are career judges (civil servants), whereas judges in common
law are selected after they prove their competence and their career depends on
their demeanor.

3. REMEDY:
a. In civil law countries it is very rare that the court would come up with a remedy
not foreseen in the code, whereas it might happen more often in the common
law systems.
b. Deductive reasoning for civil law courts (from general observation to specific
fact), whereas inductive reasoning for the common law courts (from specific
facts to general observation)
i. Deductive reasoning: if all men are mortal, Socrates is a man and
therefore he is a mortal
ii. Inductive reasoning: if Socrates is a man and he is dead, and Plato also
seems to die soon, and so many people continuously die, does it mean
that all men are mortal?

4. COURT INTERVENTION:
a. Civil law courts: inquisitorial, that is the judge is an active part of proceedings,
can ask questions, clarify, examine witnesses, and in other way “looks for the
truth”.
b. Common law courts: adversarial, that is the judge is a referee between the
lawyers of the parties, and leaves the best to win.

5. EVIDENCE IN THE COURTROOM:

a. The civil law prefers written documents based on underlying belief or prejudice
that people may not tell the truth when standing before the court as opposed to,
b. The common law that prefers oral testimony based on underlying belief or
prejudice that documents are easy to forget and therefore live face-to-face
confrontations is always better.
 2. SUPREME COURT OF THE USA (SCOUTS): Landmark cases

Article 3 of the US Constitution:

- 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 behaviour, and shall, at stated times, receive for their services, a
compensation, which shall not be diminished during their Continuance in Office.
- Section 2. (...) In all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall be a 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. (...)

What article 3 does not say… “such inferior Courts as the Congress may from time to time
ordain and establish”: not clear
● How many judges are on the Supreme Court? Not clear
● Chief Justice? Not clear, yet
● Chief Justice is mentioned in the article 1 of the US Constitution → The Senate shall have
the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on
Oath or Affirmation. When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted without the Concurrence of two thirds of
the Members present.

What article 3 does say is that the Supreme Court has 2 jurisdictions:
1. Original jurisdiction over cases involving foreign diplomats and the states
2. Appellate jurisdiction over all other cases coming from lower federal courts
a. 13 Circuit Courts of Appeal: 3 judges, no jury
i. Decide whether the law was applied correctly in the district court, and
ii. Can be appeal to decisions of federal administrative agencies
b. 94 District Courts or trial courts: a judge and a jury
3. State supreme courts: when it relates to federal question.
4. There are also other courts: Court of International Trade, Court of Federal Claims, etc.
 Keypoint: The Supreme Court (SCOTUS) has a lot of freedom in deciding whether to accept
the case or not. That means that the US Supreme Court...
● Receives something less than 10 000 petitions a year. For instance, during the term
2018-2019: 6442 cases, accepted around 60.
● It means that the Supreme Court accepts around 1% of all the cases it receives.
● Term starts the first Monday in October and finishes the Sunday before the first
Monday in October of the next year. But the judges stop by late June/early July.
● Justices meet before, on the last Monday of September, to review cert petitions that
were submitted during the summer months of recess. → As a result, it is said that the
last resolutions made by the Justices of the US Supreme Court are less elaborated and
shorter than the resolutions of the beginning of the term.

The case that is admitted is usually the case where the plaintiff manages to show that:
1. The plaintiff has suffered an actual or imminent personal injury (not necessary
physical injury). Notice that:
a. Not hypothetical
b. Not as a part of a wider community (not by virtue of belonging to a particular
social group - racial community for instance). It has to be personal!
2. Plaintiff - shows that the defendant caused Injury by unlawful action or failure to act
(causal link between injury and action/failure to act from the defendant):
a. But for Action/failure to act, the injury would not have taken place.
3. The injury has to possible to grant relief for (redressness): i.e. poor people, who were
denied hospital services, and therefore challenged the state tax policy that grants more
financial resources to private hospitals, do not have an injury that could be granted
relief for, because even if the Court makes this taxation scheme illegal, it does not
necessarily mean that the poor people will get the denied hospital services.

There is no typical Supreme Court case, and yet there could be 2 categories:

CONSTITUTIONAL CASES STATUTORY CASES

(Constitutional interpretation) (Federal statute interpretation)

Federal or State statute violation of the U.S.
Constitution. Example: Trump vs. Hawaii (2018).
- Referred to individual rights: freedom of
speech, freedom from unreasonable search
and seizure, etc.
- Challenge: balancing between different
interests and rights: every judge sees this
balance differently.
- Weight of precedent: many cases have
precedents to support any opinion, dig and
get the one you like more!
Does certain Federal Statute apply and is interpreted
correctly?
- The Americans with Disabilities Act: no
discrimination of people with disability. What
is disability? Wide range of interpretation.
- Differently from constitutional cases:
whatever the Supreme Court decides could be
overruled if Congress issues a new legislation
that modifies the particular statute (that is the
object of the Supreme Court case).
● Example of Constitutional case: Trump v. Hawaii (2018)
● Question: Has the US President unilateral authority to restrict entry into the country by
residents from predominantly Muslim nations?
● The Supreme Court: YES. 5 to 4 (approved by majority).
○ The President has the power to impose the ban! According to laws, the president
has wide powers to suspend non citizens entry into the country, when he considers
(up to the President only) that their entry would be detrimental to the interests of
the US.

● Example of Statutory case: The Americans with Disabilities Act & Sutton v U.Airlines (1999):
● Woman with poor eyesight wanted to work as a pilot for UA
● She was turned down: you cannot be a pilot without good eyesight!
● Plaintiff: if I cannot be a pilot because I have a poor eyesight, then I am disabled and was
discriminated against on the basis of my eyesight.
● The Supreme Court: you are not disabled, your eyesight can be mitigated with corrective
measures, and disability is when certain features or characteristics cannot be mitigated
with the help of such measures.

● Unique case: no precedents: District of Columbia v. Heller

● 2nd amendment to the US Constitution: A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.
● The question of the District of Columbia v. Heller: Could the State prohibit people—who
do not belong to state-regulated law enforcement (militia)—to keep firearms for
private use at home?
○ Unique case because the 2nd amendment has so far escaped the Supreme Court
attention and there is no precedent to keep in line with.
● The Supreme Court’s decision:
○ The 2nd Amendment permits people, even if not connected to the militia, to bear
arms for lawful purposes (self-defense). → Therefore, the States cannot prohibit
people from having arms at home where the self-defense and defence of one’s
family and property is most evidence.
● Analysis of the 2nd amendment
○ A well regulated Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed. A well regulated Militia,
being necessary to the security of a free State: prefatory clause:
■ Explains the purpose but does not limit operative clauses. The right of the
people to keep and bear Arms, shall not be infringed: operative clause
which means that people have a right to bear arms.

2 approaches to the Constitution:

1. textual or original interpretation, otherwise it will lose the meaning (Justice Scalia): it
should be interpreted in the way it is written.
2. it has to work today, because many things could have not been foreseen when the
Constitution was drafted (Justice Breyer). The interpretation of the Constitution has to
adapt to the current social arrangements.
 3. U.S. Supreme Court: Petitions for writ of certiorari

Petitions for writ of certiorari

Cases that are submitted to the Supreme Court are called petitions for writ of certiorari or cert
petitions. → Certiorari means to be informed of within the 90 days from the day when the
appealed judgement has been issued.
● Word limit 9000 words (more or less 40 pages of current Word document), note
counting annexes with lower court decisions.
● Rule 10 of the Supreme Court:
○ “Review on a writ of certiorari is not a matter of right, but of judicial discretion.
A petition for a writ of certiorari will be granted only for compelling reasons”.
○ These petitions have to include (Rule 14): example just the letter a) [there are
up to letter i]
○ The questions presented for review, expressed concisely in relation to the
circumstances of the case, without unnecessary detail.
● The questions should be short and should not be argumentative or repetitive.
● If the petitioner or respondent is under a death sentence [...], the notation “capital
case” shall precede the questions presented.
● The questions shall be set out on the first page following the cover, and no other
information may appear on that page.
● The statement of any question presented is deemed to comprise every subsidiary
question fairly included therein.

Example of a writ of certiorari: Edwards v. Arizona

When the cert petition convinces the Supreme Court:

The Supreme Court—if it decides to accept the case—issues writ of certiorari or “grants cert”.
● Rule of four: four justices is enough to accept the case (not majority of 5, but only 4).
As there are too many cases coming in -too many cert petitions to be processed by
justices themselves,...
 ● Solution to the income of cert petitions →creation of the Cert Pool:
○ Each justice puts his or her law clerks in the group with other justice’s clerks.
○ Cert petition is assigned randomly to one clerk and that clerk prepares the
memo: the summary of the case and recommendation on how the justices
should vote (in favor or contrary “to grant cert”).

Critical aspects for the cert pool:

Codification of cert pool memos:

1. Grant the petition
2. Imply grant: memo explains why the cert should be granted but does not make a clear
recommendation
3. Deny the petition
4. Imply the denial, memo explains why the cert should be denied but does not make a
clear recommendation
5. No recommendation: when it is very complicated
6. Take some other action: justices can withhold the decision until they get additional
information:
a. Call for Response (CFR) which calls for the opponent of the case to file a brief
against certiorari, or
b. Call for the views of Solicitor General (CVSG), which invites Solicitor General to
file an amicus brief, usually in cases that affect the federal government.

Once the case leaves the cert pool…

● Justices meet once a week—usually on Fridays—to agree on the cases to accept
○ Chief Justice is in charge of the discuss list of cases
○ Voting whether to accept the case or not: rule of 4
● When the case is not accepted by the Supreme Court (cert petition is denied), the
justices who think differently may include their dissenting opinions to the denial of
cert.
Example of the dissent to the denial of cert petition: Justice Sotomayor and Warren K.
Henness v. Mike DeWine et al. (2020)
The facts of the case: Ohio plans to execute petitioner using midazolam. The petitioner
challenges it as unconstitutional, because it induces these sensations of suffocation and
drowning, terror and panic. Just like waterboarding.

How did the courts answered the petitioner’s challenge to the unconstitutionality of
midazolam?

District Court Circuit Court

“Yes, there are more and more evidence
against midazolam, however, the petitioner
does not identify any feasible and readily
implemented alternative method of execution
and therefore his petition is rejected
(requirement from the precedent)”
Agrees with District Court and in addition
establishes that even if the petitioner is made to
feel as if he is drowning as he dies, midazolam
would not cause petitioner unconstitutionally
severe pain.

Justice Sotomayor does not agree with the following: “Pain is constitutionally tolerable so
long as it is no worse than the suffering caused by a botched hanging.”

● Circuit court says that as long as death from midazolam looks like botched hanging, it is
constitutional
● Botched hanging is hanging that goes wrong and that cause unnecessary agony:
○ Prisoner dies slowly of suffocation over the course of several minutes instead
of dying instantly as a result of the sudden drop that breaks prisoner’s neck.