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by state supreme court, state legislature or both and vary nationally ‐ pro hac vice – When a court admits a lawyer to appear in a particular case in another state if there is a special need ‐ ABA’s Model Rule 5.5 – model rule for multijurisdictional practice in specified situations o State variations in MJP regulation have created some confusion and conficts o GATS – General Agreement on Trade in Services the US and nearly 150 other countries entered into. Under GATS, member countries must publish rules regulating practice within their borders by foreign lawyers ‐ Lawyers can only be disciplined or disbarred by their state bar or their highest state court Chapter 3: Intro to the US Legal Profession Federalism refers to the dynamic relationship b/t the federal and state governments which share governmental function in the US. According to Justice Black (76), this entails: ‐ (a) proper respect for state functions ‐ (b) a recognition that the country is made up of a union of separate state governments ‐ (c) continuation of the belief that the National government will fare best if the states are left free to perform their separate functions in their separate ways. ‐ Principal source of this division of power is the US Constitution o Constitution limits the enumeration of specified federal powers, leaving those powers not granted to the federal government to the states ‐ Yet Supremacy Clause also provides that the Constitution and federal laws are the supreme law of the land, so when state and federal laws conflict, federal law prevails. ‐ State courts referred to as courts of “general jurisdiction” in contrast to federal courts, which require a showing they possess judicial power to hear a particular matter b/c it comes within their limited subject matter jurisdiction. ‐ Abstention doctrines – Out of respect for the state court, the federal court will try to believe that the state court is as competent and zealous in protecting constitutional rights as the federal court would be. State courts will be given first opportunity.
Hamilton believes N&P=convenient and useful. fed bank. for which it doesn’t specify a particular structure ‐ Fed judges appointed by President. which can be challenged by a petition for certiorari. . ‐ Two enumerate powers dominate legislative agenda o Power to regulate interstate commerce Power to reach all commercial transactions across US Congress’s Commerce Clause limits states’ ability to regulate commerce within their own borders o Power to tax and fund government programs. Jefferson thinks N&P= required and essential.g. and larger states have more districts One district court in each district Each district has at least two judges. and more populous districts have more District court may have more than one courthouse at different locations District court judges don’t specialize and handle range of cases Judges determine the rules of law to apply (e. any fed courts but the Supreme Court. confirmed by Senate. John Marshall accepts Hamilton’s interpretation. Maryland – Whether N&P included power to est.‐ The Federal Government: The Legislative Branch ‐ Necessary and Proper ‐ McCulloch v. jury instructions and sometimes both questions of law and questions of fact) 2 types of judges serve in dcs: dc judges (DJ) and magistrate judges (MJ) But federal courts can interfere when the state court allows an unconstitutional conviction. including those of other branches Power of the purse over every federal $ spent The FG: The Executive Branch ‐ Has expanded with the addition of executive departments like the cabinet and administrative agencies like the FDA and EPA The FG: The Judicial Branch ‐ Constitution doesn’t est. and remain in office for life unless impeached Structure US Supreme Court Power to review all lower fed ct decisions ∆ 16 Courts of Appeal Power to review trial court decisions within jurisdiction ∆ 100+ Trial Courts Where most civil & criminal cases are initiated and resolved Primary trial courts called district courts (dc) US has 94 geographic areas called districts.
Court of Int’l Trade. Court of Federal Claims.District judges nominated by President and confirmed by Senate Magistrate judges have more limited authority which is delegated by dc judges MJ typically hold hearings on pretrial motions & recommend dispositions to the DJ MJ also authorize to conduct trials in civil and criminal misdemeanor cases MJ appointed by DJ for 8 years w/ possibility of reappointment Congress created several other trial‐level courts to hear special kinds of cases (Tax Court. Foreign Intelligence Wiretap Court) Very few cases go to trial Active case management ensures resolution without undue delay and expense Fed judges (FJ) actively try to resolve cases short of trial through affirmative case management Many courts have also est Alternative Dispute Resolution procedures (ADR) United States Court of Appeals (CC) circuit courts created by Congress provides intermediate appellate review of district courts reviews cases based on subject matter reviews decisions of the dcs within each of 11 circuit’s territory 11 of the circuits cover designated geographic area. including several states 2 circuits in D. bankruptcy courts. the court may decide to rehear case en banc Congress authorizes limited en banc review allowing a circuit with more than 15 judges to sit en banc with fewer than all its members ‐ Two‐track system is a procedural shortcut resulting from increased caseload o Courts increasingly rely on staff attorneys to sort cases o Less important cases receive less attention .C. which handle more specialized docket (challenges to fed legislation & regulatory provisions in addition to reviewing routine appeals from dcs) 3 separate Appellate Courts to hear special kinds of cases: Court of Military Appeals Reviews court‐martial convictions of members of armed forces Court of Veterans Appeals Reviews decisions of Veterans Adm denying benefits to claimants Temporary Emergency Court of Appeals Hears appeals from dcs involving certain provisions of fed energy regulations Appellate Courts ‐ all appellate judges nominated by President and confirmed by Senate ‐ limited in scope to correcting errors of law o erroneous legal instructions can be grounds for appellate reversal o trivial errors ignored under doctrine “harmless error” o doesn’t accept new evidence & will not review questions of fact ‐ CC sit in panels of 3 judges when reviewing lower court decisions o When decisions of these panels conflict in important matters.
000 o diversity jurisdiction designed to prevent local prejudice o transfer from state to federal court is called removal o federal courts are frequently called upon to apply state law o exceptions are issues of family law (divorce & child custody) and estates (adm of property of a deceased person) . Roberts.Supreme Court (SC) ‐ 9 Justices including one Chief Justice o John G. federal civil statues and criminal prosecution under fed criminal laws ‐ also have jurisdiction to hear diversity cases involving citizens of different states or countries where the issue exceeds $75. and some st court decisions…in this sense is top of the pyramid o Power to review highest state court decisions when questions of fed law are involved Questions may be based on either the Constitution or a federal statute o SC has no authority to review questions of purely state law ‐ Review of a case is almost entirely discretionary ‐ Party seeking SC review files petition. fed appellate courts. they grant a writ of certiorari o If fewer than 4/9. SC considers 3 main factors: o Whether a CC has reached a decision that conflicts with decisions of other fed CC or st courts of last resort on an important issue o Whether a st court of last resort has decided an important fed question in a way that conflicts w a CC or other st court of last resort o Whether a lower ct has decided an important question of fed law that has not been but should be settled by the SC Federal Jurisdiction ‐ limited to disputes involving fed questions or interstate or international controversies o fed question cases are those arising under the Constitution. Kennedy o Clarence Thomas o Ruth Bader Ginsburg o Stephen G. Breyer o Samuel Anthony Alito o Sonia Sotomayor o Elena Kagan ‐ All Justices participate in every case ‐ Has power to review all fed court.. Chief Justice of the United States o Antonin Scalia o Anthony M. decision of lower court becomes final ‐ Court tries to focus on important questions affecting significant numbers of people ‐ In determining which cases to review. Jr. if 4/9 assent. an act of Congress. a national treaty.
or specialized divisions . have the power to rule on and declare acts of Congress and the President to be unconstitutional Marbury vs. where cases initially filed ‐ divided into two levels o lowest level typically a court of limited jurisdiction hearing cases involving small claims and petty offenses informal proceedings dissatisfied party can usually seek new trial in the next level trial court o next level has general jurisdiction and hears a wide range of civil and criminal cases may be organized into depts.Judicial Review ‐ 2 meanings: 1) appellate court review of lower court decisions o criminal defendant entitled to at least one appellate review of conviction – part of due process under 5th & 14th Amendments o no fed constitutional requirement for a civil case litigant. policy‐oriented review sometimes called “institutional review” to rationalize and develop the law ‐ 2 meanings: 2) Federal Courts. but all states and the fed court have provided for some right of appeal o fed system and most state systems also provide second level of (usually ) discretionary review in their highest court. not merely a hypothetical or philosophical one State Governments State Court Structure Supreme Courts ∆ Intermediate Appellate Courts ∆ Trial Courts Trial Courts ‐ entry point. diffuse its powers. usually a broader. Madison Separation of Powers ‐ intended to divide government. esp SC. and provide checks on each branch ‐ recurring theme for courts and fundamental to the doctrine of judicial review of legislative and executive conduct ‐ both constitutional provisions and statues limiting fed judicial power have been interpreted narrowly and cautiously to limit interference with both the legislative and executive branches of the fed gov’t as well as state interests ‐ fed courts insist on injury sufficient to give parties “standing” – a party must demonstrate a concrete stake in the outcome.
limited to reviewing errors of law and not factual disputes ‐ Also like fed CC. business courts.g.‐ ‐ o in addition. mental health courts MI created nation’s first cyber court for business and commercial lawsuits where amount exceeds $25. do not receive live testimony or new evidence ‐ ‘’ sit in 3‐judge panels Supreme Courts ‐ attention and resources reserved for most important legal disputes ‐ also called Court of Appeals in NY and courts of last resort in TX & OK ‐ review is largely discretionary ‐ sometimes required to review certain types of cases. such as attorney disbarments and death penalty cases ‐ in some states t ‐ the intermediate appellate courts have authority to certify cases for review directly under the SC – this process is “by‐pass” jurisdiction ‐ also in some cases the SC has authority to transfer cases to itself ‐ “reach‐ down” jurisdiction Parallels and Contrasts to the Fed System ‐ written constitution ‐ 3 branches restricted by separation of powers ‐ judicial review ‐ almost all divided into trial courts.000 Proponents believe specialty courts will attract business to the community and relieve court’s docket Critics warn that judicial resources may shift at expense of rest of court’s docket Intermediate Appellate Courts ‐ Dissatisfied litigant entitled to initial appeal here but will only receive hearing in state SC with discretion ‐ Review record of the proceedings in the lower courts ‐ Structure varies from state to state – some organized geographically and others by subject matter ‐ Like fed CC.g. traffic courts) reformers want to consolidate tiers to achieve greater efficiency conversely. other states establishing specialized courts to handle commercial cases o general feature: one judge assigned for life of a case so litigants not required to educate different judges on complexities of case o e. courts of limited jurisdiction hear only certain cases (e. st courts include courts of general jurisdiction . health courts. intermediate appellate courts and supreme courts ‐ fed courts have limited jurisdiction v.
it has been experience” (108) Two Key Characteristics of US Judicial Process stare decisis ‐ reflects the need for stability. and vast majority of cases filed in state courts federal judges have lifetime tenure v.g.‐ ‐ Major areas of state law ‐ Criminal prosecutions ‐ Family law – many states have specialized courts to deal with this ‐ Contract disputes – business litigation and consumer actions are governed by contact law. courts generally constrained to stand by precedents (prior judicial decision within the same jurisdiction resolving a legal dispute involving the same material facts state law still governs most of our daily activities. trusts. politicization is increasing . state courts also resolve disputes involving federal law. wills. Civil law Most western countries have legal systems which may be classified as either common law or civil law system ‐ heart of federal law is constitutional and (federal) statutory ‐ in contrast to fed system. predictability and principle of fairness that requires similar cases to be treated similarly. statutory and non statutory. curbs arbitrary exercise of judicial authority ‐ under this doctrine. inheritance. state law includes constitutional. which is generally based on state law unless superseded by federal legislation ‐ Real property transactions and disputes ‐ Probate law – (e.) many states have specialized courts to deal with this ‐ Tort law – (the body of law governing the rights of one who has been injured by another to recover for that injury) same conduct may be grounds for both a tort action and a criminal prosecution. which they are bound to follow under the Supremacy Clause Common law vs. periodic election for most state judges o elections are usually retention. judge‐made common law. state law strongly influenced by common law heritage ‐ guided by “precedents” or decisions in prior cases ‐ Just as common law must evolve to meet changing technology. etc. and state law would govern both actions ‐ In addition. political and social realities ‐ Upkeep of common law is a struggle between maintaining the law’s continuity and stability while adapting to historical and societal change ‐ “The life of the [common] law has not been logic. but sometimes contested. it must also evolve to accommodate changing moral.
the federal court is often called upon to resolve matters of state law. ‐ . and this is described as “persuasive authority” ‐ sd not absolute o highest court in a jurisdiction has right to disturb settled points o even lower courts will sometimes refuse to adhere to a very old and pernicious precedent o federal CC publish fewer opinions to cope with workload. but merge not complete ‐ Key distinctions between law and equity remain important today o Jury trial generally available in law while judge is exclusive decision‐ maker in equity o Remedy available in law generally limited to $ damages while courts in equity have discretion to provide additional relief ‐ Parties today can seek both legal and equitable remedies in same courtroom. and unpublished opinions are not precedent Merger of Law and Equity ‐ Courts must also determine the procedure to apply and the remedy to provide ‐ Medieval England had 2 court systems: courts of law and courts of equity ‐ Burdensome dual system developed into merger we use today. but procedures differ ‐ Equitable remedies include o Prohibitory injunctions Court order for defendant to quite doing something harmful o Mandatory injunctions Court order for defendant to take affirmative steps to correct behavior or prevent further harm o Specific performance Court order for defendant to perform a contract o Constructive trusts Court order that requires someone with legal title to money/property to convey it to the person with an equitable right to it In diversity actions where the parties are from different states.nevertheless. fairness may also require different cases to be resolved differently ‐ operation of precedents has both territorial and factual limitations ‐ determining how to handle distinguishing facts is one of the distinctive hallmarks of legal analysis in our common law system (what facts are the material facts which should influence the legal analysis) ‐ stare decisis only binding where the ct which issued the prior decision has authority over the court resolving later dispute ‐ but a court may elect to follow non‐binding decisions.
we look not only to the particular statutory language. and when standing alone it is fairly susceptible of but one construction. when a contrary legislative intent is clearly expressed and a literal interpretation is rejected if it would lead to an absurd result o the social purpose approach a court will not apply a statute literally if it would produce a result “at variance with the policy of the legislation as a whole” “In determining the meaning of a statute. in the first instance. Ejusdem Generis (“Of the Same Kind”) ‐ applies where a string of specific descriptions is followed by a general description – the canon provides that the catch‐all description is limited to the class of things which are specifically described. but to the design of the statute as a whole and to its object and policy. that construction must be given to it. is to be considered in light of the context – canon often paired with ejusdem generis Expressio Unius (“The Mention of One Thing Excludes Other Things”) ‐ expressio unius est exclusior alterius means the expression of the one is exclusion of the other: when specific things are expressly included in the statute’s coverage. other things are impliedly excluded Narrow Construction of Penal Statutes ‐ This canon is grounded in the basic rule of fairness that a person should only be punished for a crime when the statute provides notice that the conduct is illegal – related to guarantees of due process ‐ Inhibits the police from engaging in arbitrary and discriminatory conduct . Plain Meaning ‐ Where the act is clear upon its face.Intro to Statutes and Statutory Interpretation ‐ Does the literal text of the statute or the underlying legislative intent determine its proper interpretation? ‐ 3 basic approaches used by courts: o the literal rule where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion o the golden rule the meaning of a statute must.” (126 Justice Stevens) Canons of Construction The courts have developed a general set of conventions to help consider statutory language and its interpretation. and consequently the intention of the legislature. be sought in the language in which the act is framed – rebutted only in rare circumstances. Noscitur a Sociis (“It is known by its Companions”) ‐ holds that the meaning of a word.
” (139. a canon provides that the more specific statute shall be applied Dueling Canons ‐ “There are two opposing canons on almost every point. committee and subcommittee reports. Llewellyn) – this convinced two generations of scholars that canons could not be taken seriously ‐ but canons enjoying a revival and many think that adherence to established rules “might make the process of statutory interpretation more predictable. conference committee reports.g. If they are not identical. The Age Discrimination in Employment Act – ADEA is remedial and humanitarian legislation should be liberally interpreted to effectuate the congressional purposed of ending age discrimination in employment Specific Statutes Take Precedence Over General Statutes ‐ when two or more statues could be read to govern the same issue. effective…” Legislative Intent ‐ Courts will explore the legislative history of a statute in an attempt to reconstruct the legislative intent behind its enactment – looking at the courts’ use of legislative history to determine legislative intent o Legislative history is the record of the progress of a piece of legislation as it makes its way through the legislature o courts often turn to the paper trail following a bill from its introduction by the legislature to its signing by the President in order to determine intention evidence may include sponsors’ statements. the process continues in Congress (141) . debates. presidential signing statements. and post‐enactment statements by legislators and administrative agencies responsible for implementing the legislation How a Bill Becomes a Law Legislation presented to the President ^ House/Senate passes measure ^ House/Senate debates and can amend measure ^ Leadership schedules measure for floor consideration ^ Measure referred to committee(s) which holds hearings and reports measure to the House/Senate ^ Measure introduced in the House/Senate (All measures must pass both the House and Senate in identical form before being presented to the President.Broad Construction of Remedial Statutes ‐ remedial legislation should be construed broadly to effectuate its purposes ‐ e.
the measure becomes law after 10 days. it fails to become law (pocket veto). The President can veto a measure and Congress can override that veto by a 2/3 vote of each house. even when the statutes were adopted after judgment in the lower court – if the law changes while an action is on appeal. The Retroactivity Problem ‐ American legal tradition condemns the retrospective application of the law and legislation is generally enacted for prospective application only ‐ Ex post facto clause of the Constitution forbids retroactivity in criminal law ‐ In the civil context. courts must decide cases according to the statutes in existence at the time of the decision. If Congress is not in session and the President does not sign the measure.If the President doesn’t sign the measure while Congress is in session. the appellate court must apply the new law o Now: SC recognized that “in mere private cases between individuals” retrospective application was to be avoided if it would affect the rights of the parties – also reaffirmed the view that in matters of public concern statutes should generally be applied retroactively o . constitutional constraints on retroactivity are relaxed since the ex post facto clause doesn’t apply o Two centuries ago: in matters of national concern.
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