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Basic Concepts of American Jurisprudence Ch1 Fine
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AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE TONI M. FINE NEW YORK UNIVERSITY SCHOOL OF LAW ANDERSON PUBLISHING Co. CINCINNATICHAPTER I BASIC CONCEPTS OF AMERICAN JURISPRUDENCE A. Summary of Basic American Legal Principles What follows are some of the fundamental principles that comprise the American legal system. Each of these is discussed in greater detail in this and other chapters of this book. They are summarized below in order to give the reader an overview of some of the basics of American common law. 1. Impact of Precedent—The Principle of Stare Decisis The defining principle of common law’ is the requirement that courts follow decisions of higher level courts within the same jurisdiction. It is from this legacy of stare decisis that a somewhat predictable, consistent body of law has emerged. See Chapters LF. and II.G. 2. Court Hierarchy Court level or hierarchy defines to a great degree the extent to which a decision by ond court will have a binding effect on another court. The federal court system, for instance, is based on a three-tiered structure, in which the United States District Courts are the trial-level courts; the United States Court of Appeals is the first level court of appeal; and the United States Supreme Court is the final arbiter of the law. See Chapters LF, LG., LH., IL.G.1. 3. Jurisdiction The term “jurisdiction” has two important meanings in American law. One meaning of “jurisdiction” refers to the formal power of a court to exercise judicial authority over a particular matter. Although the term most often is used in connection with the jurisdiction of a court over par- ticular matters, one may also speak of matters being within or beyond the jurisdiction of any other governmental entity. See Chapters LC.2., LF, and LH.1., 2., and 3. ' See Chapter I.B. for a discussion of the term “common law.”2. AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE Second, the federal court system is based on a system of “jurisdic- tions,” the geographic distribution of courts of particular levels. For instance, while there is only one Supreme Court, the court of appeals is divided into 13 circuits, and there are 94 district courts. See Chapter LH.3. In addition, each state court system comprises its own “jurisdiction.” As indicated above, the jurisdiction in which a case arose will determine which courts’ decisions will be binding precedents. See Chapter LF. 4, Mandatory/Binding versus Persuasive Authority Some of the various sources of law that will be examined are consid- ered to be “mandatory” or “binding,” while other sources are considered to be merely “persuasive.” See Chapter I.G. Indeed, a court may completely disregard precedent that is not binding (i.e., not even consider it to be per- suasive). The issue of whether authority is mandatory or persuasive relates directly to the application of stare decisis principles. See Chapter LF.3. 5. Primary versus Secondary Authority The various sources of law may also be broken down into primary and secondary sources of law. Primary sources of law may be mandatory on a particular court, or they may be merely persuasive. Whether they are binding or persuasive will depend on various factors. Secondary authority is not itself law, and is never mandatory authority. Acourt may, however, look towards secondary sources of law for guidance as to how to resolve a particular issue. See Chapters I.G., II.B. Secondary authority is also useful as a case finding tool and for general information about a particular issue. See Chapters LE., 1b. and 2. 6. Dual Court Systems The American legal system is based on a system of federalism, or decentralization. While the national or “federal” government itself pos- sesses significant powers, the individual states retain powers not specifi- cally enumerated as exclusively federal. Most states have court systems which mirror that of the federal court system. See Chapter I.H. 7. Interrelationship Among Various Sources of Law One of the more complex notions of American jurisprudence is the extent to which the various sources of law, from both the state and federal systems, interrelate with one another. There is a complex set of rules that defines the relative priority among various sources of law and between the State and federal systems. See Chapters IH. and I.CHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 3 B. What Is Common Law? The term “common law” evokes confusion and uncertainty—which is no surprise given its duality of meaning. The term “common law” may refer to any of the following: 1, Common Law as Differentiated from Civil Law The American system is a “common law” system, which relies heav- ily on court precedent in formal adjudications. In our common law system, even when a statute is at issue, judicial determinations in earlier court cases are extremely critical to the court’s resolution of the matter before it. See Chapter 1.3. Civil law systems? rely less on court precedent and more on codes, which explicitly provide rules of decision for many specific disputes. When a judge needs to go beyond the letter of a code in disposing of a dis- pute, the judge’s resolution will not become binding or perhaps even rel- evant in subsequent determinations involving other parties. 2. Case Law Common law may refer to “judge-made” law, otherwise known as case law. Cases are legal determinations based on a set of particular facts involving parties with a genuine interest in the controversy. a, Case Law May Be of Several General Types: (1) Pure decisional case law—Court called upon to decide cases on the basis of prior court decisions (precedent) and/or policy and a sense of inherent fairness. In cases of pure decisional law, there is no applicable statute or constitutional provision that applies. This type of decisional law is what is referred to as “judicially- created doctrine.” Historically, the term “case law” referred to cer- tain areas of law (e.g., torts, property) that began as judge-made, or pure decisional law. (2) Case law based on constitutional provisions—Court called upon to consider whether a particular statute or governmental action is consistent with the United States Constitution or a particular state constitution. Court interpretation may rely upon prior deci- sional law interpreting same or some other constitutional provision. 2 Civil law systems are found in many European, Eastern, and Latin American countries, as well as in Louisiana,4 AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE (3) Case law based on statutory provisions—Court called upon to interpret a statute. Court interpretation may rely upon prior deci- sional law interpreting the same or similar statute. b. Subsequent Case History (see Chapter II.B.5): (1) Subsequent Case History defined—What a higher level court has done with respect to a lower-level court decision on appeal. (2) Importance of Subsequent Case History—If a higher level court has taken action on a lower level case, it is the opinion and hold- ing of the higher \evel court that will constitute the precedent in the case. A higher level court opinion will in effect abrogate the lower level court opinion in the same case. c. Subsequent Case Treatment (see Chapter II.B.5): (1) Subsequent Case Treatment defined—What other cases have said about the initial case. Has it been followed? Reversed? Distin- guished? Applied in a specific way? : (2) Importance of Subsequent Case Treatment—Will indicate how the same and other courts interpret the initial case. C. The American Judicial System: A System Based on Advocacy and the Presence of Actual Controversy The American legal system is adversarial and is based on the premise that a real, live dispute involving parties with a genuine interest in its out- come will allow for the most vigorous legal debate of the issues, and that courts should not have the power to issue decisions unless they are in response to a genuine controversy. Hence, federal courts are prohibited from issuing “advisory” opinions, or opinions that do not involve a live case or controversy.) 1. Threshold Issues Designed to Preclude Advisory Opinions Given the prohibition against advisory opinions by the federal courts, there are certain threshold prerequisites which must be satisfied before a federal court will hear a case. Issues surrounding the applicability of these 3. These principles are based on Article III of the U.S. Constitution, which limits federal court jurisdiction to “cases and controversies.” Unlike the federal courts, some state do allow for the presentation of cases that are not based on live controversies, and hence do not share the federal court bias against advisory opinions.CHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 5 Prerequisites may also arise in state courts and on petitions for review of agency orders. See Chapter VI.C.1. The principal prerequisites to court review are the following: Standing—The parties must have an actual, cognizable, usually pecu- niary or proprietary, interest in the litigation. Finality—In the case of appeals or agency review, the action by the trial court or administrative body must be final and have a real impact on the parties. Exhaustion—The parties must have exhausted any possible avenues for relief available in the trial court or administrative body. Ripeness—The dispute must present a current controversy which has immediate rather than anticipated or hypothetical effects on the parties. Mootness—The dispute must not have been resolved. Nor must the circumstances have changed in any way that renders the dispute no longer subject to controversy. No Political Questions—Courts will not involve themselves in non- justiciable disputes that are between the other two branches of the federal government and are of a political nature. While these prerequisites are well-established, the courts tend to apply them in a pragmatic way and allow exceptions to these requirements when warranted by the facts. 2. Courts Generally Confine Themselves to the Dispute Presented for Resolution As a jurisdictional matter, courts are supposed to restrict their hold- ings to the narrowest terms possible in resolving a dispute. This limitation relates to the principle of dictum, under which por- tions of the opinion not required for the resolution of the precise issues before the court on the facts presented by the parties are of diminished precedential value. See Chapter II.C. 3. Tendency to Avoid Constitutional Issues When Possible Federal courts also tend to avoid deciding constitutional issues when they are able to decide a case on a procedural, statutory, or some other ground.6 AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE, D. Institutional Roles in the American Legal System 1. Attorney Depending upon the circumstances and the needs of the client, the Jawyer may be a counselor, a negotiator, and/or a litigator. In each of these roles, the lawyer will need to engage in factual investigation. With respect to each of these roles, the lawyer will do the following: Counselor: Attorney will help advise the client how to order the client’s affairs, how or whether to proceed with a proposed course of action, or how to proceed with respect to pending or potential litiga- tion or settlement. Often, this is when the lawyer will prepare (or ask that someone prepare) an interoffice memorandum of law (see Chap- ter X.), which will examine the client’s legal position and help the lawyer counsel the client. Negotiator: Lawyer will work with opposing counsel to try to get a favorable resolution for the client with respect to a pending dispute. The parties may already be in litigation when they negotiate, or the parties, through their attorneys, may be negotiating a resolution to a dispute not yet in court. The art of negotiation involves many tech- niques individual to particular attorneys and the circumstances. The client always retains the right to accept or reject a settlement negoti- ated or offered by the opposing party. Litigator: In litigating, the attorney will help pick a jury and partic- ipate in pre-trial motions. At trial, the attorney will present evidence through testimony of witnesses, documents and perhaps demonstra- tive evidence (e.g., charts, diagrams). The lawyer will also present an opening statement and closing argument, and will make and respond to evidentiary objections lodged by the opposing party. The lawyer may also make motions, sometimes supported by a memorandum in support thereof (see Chapter XI) before the court, and propose to the court a set of jury instructions. See Chapter V.B. Fact Investigator: All of the lawyer’s roles require the investigation of relevant facts, including locating and interviewing witnesses. A lawyer is to be a zealous advocate of his/her client. In this respect, the lawyer must advocate on the client’s behalf and avoid conflicts of interest. The lawyer is also an officer of the court and is required to dealCHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE = 7 fairly and honestly with the court and with its other officers, including the lawyer’s opponents. There are specific ethical rules applicable to these issues, but in most circumstances, when the client’s interests and those of the lawyer as offi- cer of the court conflict or otherwise interfere with each other, the lawyer is generally expected to favor his or her role as advocate of the client.* 2. Judge ‘The judge is the final arbiter of the law. The judge is charged with the duty to state, as a positive matter, what the law is. At trial, the judge takes a passive, “umpire” role in connection with the presentation of evidence by counsel. The judge must also make evi- dentiary rulings, and charge the jury as to the law to be applied. In addi- tion, the judge is to maintain order in the courtroom. Occasionally, when the parties agree, the judge may also act as trier of fact. This is known as a “bench trial.” See Chapter V.B. Judges in federal courts are appointed by the President with the “advice and consent” of the Senate. Many state court judges are elected by popular vote. 3. Jury The jury, a group of local citizens, is the fact-finder in most trials. The jury will receive instructions from the judge as to the law, and its members will assess the facts’as they perceive them in light of the law as instructed, to return a verdict. See Chapter V.B. E. Sources of Law 1. Overview of Primary and Secondary Authority There are many sources which comprise “the law” in the United States. At least two major divisions between sources of law may be iden- tified. First, there are primary and secondary sources of law, which are iden- tified and discussed immediately below and in Chapter E.2., respectively. Second, there are both federal and state sources of law. State sources of primary authority are addressed together with the primary sources of + Most states have adopted some variant of either the American Bar Association (ABA) Mode! Rules of Professional Conduct or the ABA Model Code of Professional Responsibility. The federal bar as well as many professional bar associations have also adopted standards based on these rules. There is also a special code of conduct applicable to government attorneys. In addition, Rule 11 of the Federal Rules of Civil Procedure requires that a lawyer have a reasonable basis for believing the allegations set forth in all writings submitted to the court. See Chapter V.B.8 AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE federal law, below. Some secondary authorities are state-specific, or have sets that relate specifically to state law. See Chapter I.E.2. a. Primary Sources of Law Primary authority as a body consti- tutes “the law,” the set of enforceable legal rules and principles. The fol- lowing are the most significant sources of primary authority:> (1) Constitutions Constitutions are government charters. They provide the funda- mental rights and obligations of citizens within the charter, and establish and ordain government systems. U.S. Constitution: The document that establishes the federal gov- ernment of the United States. No state or federal law can contra- vene any provision of the U.S. Constitution. The U.S. Constitution establishes three branches of federal gov- ernment: (a) Legislative—2 houses (Congress = Senate + House of Representatives) with power to make laws. (b) Executive—President and others to carry out laws. (c) Judiciary—Supreme Court; Congress given authority to establish other federal courts. State constitutions: Each state also has its own constitution. While a state constitution may confer rights greater than those conferred by the U.S. Constitution, it may not purport to limit or take away rights conferred by the U.S. Constitution or by federal statutes. (2) Statutes Federal: Laws passed by a majority vote of each house of Con- gress and then signed by the President. A presidential veto may be overriden, and in limited other situations, a bill can become law without presidential approval. See Chapters III.C. and D. State: Each state may pass legislation according to rules applic- able in that state. No state law may contravene any provision of federal statutory or constitutional law. State action may be preempted in certain areas when federal law So requires. (3) Rules, Regulations, and Orders 5 Treaties—international agreements—are also a form of primary authority. In some cases, treaties are self-executing. In other cases, they must be given effect by implementing legislation.CHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 9 Federal: Federal agencies issue rules and regulations, and adju- dicate, pursuant to statutory authority. See Chapters IV.A. and B. States: States also have administrative agencies, which act pur- suant to state legislative authority. No action by any state agency may contravene any federal law nor may it deal with any matter preempted by federal law. (4) Executive Orders and Proclamations USS. Presidential issuances. See Chapter IV.E. Presidential orders cannot legislate or reverse an act of Congress. State governors may also issue orders and proclamations. (5) Case Law/Common Law Judge-made law/legal doctrine. Case law is issued by federal and state courts. b. Secondary Sources of Law Secondary sources of law are not themselves law, but comment upon, analyze, discuss, interpret, and/or crit- icize primary authority. See Chapter I.E.2. Examples of secondary authority are the following: Treatises Restatements Law Reviews American Law Reports (ALR) Hornbooks Legal Encyclopedias State law may be discussed in any of the foregoing secondary author- ities. Some states have their own legal encyclopedias. c. Nature of Primary Versus Secondary Authority As Precedent Primary authority may be mandatory or persuasive. Secondary authority may be persuasive, but is never mandatory, See Chapters I.A., E. and F. 2. Secondary Sources of Law Secondary sources are not law, but they comment upon, summarize, restate, criticize, or advocate changes to the law.* * Some secondary sources, such as case digests (see Chapter II.B.1), Shepard’s Citators (see Chapter II.B.2.) and annotated versions of the United States Code (see Chapter III.B.) are case finding tools and do not share the functions of the secondary sources described herein. Unlike the secondary authorities discussed here, case finding tools may not be cited or quoted.10 | AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE Among the purposes they serve are as case-finding tools (they cite to cases®), and as background information on an area of law. Because secondary authorities are not themselves law, they are never bind- ing authority. Depending upon the authority, they may be more or less persuasive, as indicated below. Common sources of secondary authority are treatises, hornbooks, restate- ments, legal encyclopedias, law reviews, American Law Reports, Uniform and Model Acts, commercial looseleaf services, and litigation manuals. a. Treatises General Description/Overview | Specific treatment of multitude of issues in a particular area of law. Special Features Multi-volume; detailed; updated frequently. Usefulness Provides detailed information about a particular area of law. Credibility As Authority Certain writers considered to be most well- known authorities in a particular area. Some carry significant prestige with courts. b. Hornbooks General Description/Overview | Very general, background information. Special Features Not comprehensive; very concise and clear. Usefulness Useful if you have no familiarity at all with a topic. Credibility As Authority Generally do not carry much weight. c. Legal Encyclopedias General Description/Overview | Am. Jur. (American Jurisprudence) and C.J.S. (Corpus Jurus Secundum). Organized topically by legal issue, subject. Gives overview and guides user to primary authority and other resources. Special Features Am. Jur. has some state versions in addition to the national version. © The citations provided in secondary authorities are often not consistent with the Bluebook. See Chapter IX.CHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 11 Usefulness Case-finding tool—Leads to cases in many jurisdictions. Background; good place to begin when you know little or nothing about the subject. Credibility As Authority Very little authoritative value—do not cite except for most basic, well-accepted proposi- tions (even then, only if necessary). d. Restatements General Description/Overview State and analyze common law on national basis; show trends, make recommendations. Special Features Joint effort by scholars, judges, practitioners; panels of noted specialists in area. State general principles and give comments thereto. Usefulness Deal with various substantive topics, focusing ‘on overview of state approaches. Appendix volumes contain case digests and citations. Credibility As Authority © Excellent analyses, given considerable respect by courts, often adopted as law of state. Respectable to cite as secondary authority. e. Law Reviews General Description/Overview Scholarly writings on discrete, fairly specific areas of law. Special Features Journals are usually student edited and operated. Journals are general or specific (by theme/area of law). Usefulness General scholarly interest. Credibility as Authority Not usually used or cited by practitioners. Nor will a court often consider a law review article to have persuasive value.12 AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE f. American Law Reports (A.L.R) General Description! Overview ‘Two components: * Cases—Limited number of cases “reported” [Note: never use the ALR “citation”]; * Annotations—Discussion of reported case and related cases; detailed discussions along lines of narrow topic. Special Features Sets: A.L.R. FED; A.L.R. Ist; A.L.R. 2nd; etc. Federal cases are reprinted and annotated in A.L.R. Ist and A.L.R. 2nd through1969. Since 1969, (select) fed- eral cases are reprinted and annotated in A.L.R. FED. Usefulness Topics in A.L.R. are discrete—many important topics are not addressed at all. Credibility Very little authoritative value—do not quote from or cite. g. Additional Secondary Authorities: Looseleaf Services, Practice Guides, and Form Books Commercial Looseleaf Services Specialized and administrative fields. Organized by area of law—often by agency or other responsible government entity. Common commercial publishers are CCH and BNA. Often publish daily issuances of federal administrative agencies, Practice Guides ‘Most common for litigation practice and procedure. Useful practice guides include those that detail various federal rules and portions of Title 28 (see Chapter 1.H.3.a. note 12). Form Books Organized by area of law and jurisdiction. Judicious use of form books can save time/money; should be accompanied by practitioner evaluation for each potential use and modification as may be necessary.CHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 13 F._ The Use of Precedent—The Principle of Stare Decisis The use of court precedent—earlier court decisions in factually anal- ogous cases—is one of the defining elements of the common law system. In short, the use of court precedent, known as the principle of stare deci- sis, requires that a court follow the rules of law established by the same or higher level courts in the same jurisdiction (see Chapter II.G.). Indeed, given the laudatory purposes served by the principle of stare decisis and its fundamental significance to our system of common law, many courts who are not required to follow precedent established in an earlier case will nevertheless apply the principle of stare decisis. 1. Stare Decisis Means “Let It [The Prior Decision] Stand” Principle by which courts follow precedent (prior decisions in factu- ally similar/analogous situations). 2. Rationale a. Judicial economy b. Fairness to parties c. Predictability d. Check on arbitrary behavior 3. Applies Only if Precedent is “Binding” or “Mandatory” The principle of stare decisis does not apply to authority that is merely “persuasive.” 4, Application of Stare Decisis Depends upon Two Main Factors The determination whether the principle of stare decisis applies is based mainly on two factors: Jurisdiction and court level (hierarchy): a, Jurisdiction—The geographic region from which the case in question arose: (1) State court? If so, which state? (2) Federal court? If so, which district or circuit?” b. Court Hierarchy—The level of court from which the case arose: (1) Trial level, appellate level, or court of last resort? 7 If the precedent was issued by the United States Supreme Court, that precedent will be treated as binding upon all courts, with one possible exception: If the Supreme Court precedent involved a matter of state law, it will not be binding upon the highest court of the relevant State. See Chapter I1.G.14. AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE Jurisdiction and court level are critical to the application of stare decisis because the doctrine applies only with respect to cases decided within the same jurisdiction by a higher level court. In addition, courts from the same jurisdiction are to consider and generally will follow precedent established at the same court level.* Courts need not but may consider precedent established by courts in other jurisdictions. 5. Additional Factors to be Considered in Applying Stare Decisis Similarity of legal issue(s) Similarity of facts More recent precedent has greater persuasive value Whether precedent emerged from a court that the court at hand tends to follow or that is recognized as a leader in that subject area e. Whether precedent was well-reasoned foo & 6. Importance to the Principle of Stare Decisis of Analogizing and Distinguishing Precedent The application of stare decisis thus requires—in addition to a consideration of the jurisdiction and level of court of precedent—a consideration of the simi- larity between the issues of law and facts presented in the earlier case and those in the instant case. See Chapter II.D. a. Analogizing: If the court finds that the issues of law and fact are sim- ilar as a legal matter, then the court will likely analogize to the ear- lier case and apply the precedent to the later case. b. Distinguishing: If the court finds that the issues of law and/or fact are dissimilar from a legal perspective, then the court will probably not apply the precedent. 7. Deviations from the Principle of Stare Decisis is, courts will at times deviate (or appear Despite the principle of stare deci to deviate) from earlier precedent. The following points bear mentioning: a. Courts rarely explicitly overrule earlier applicable authority. Rather, they are more likely to distinguish facts or otherwise find that the ear- lier precedent does not apply on the merits. b. When courts recognize that earlier precedent in that jurisdiction should be overruled, they will rely on considerations such as the trend of other jurisdictions, newly developing policies, and the arcane nature of the earlier precedent. * In the case of federal circuit courts, a panel is required to follow decisions rendered by another panel within the same circuit, See Chapter II.G.3.b.CHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 15 c. Acourt can (but rarely does) overrule its own precedent, but a court may not overrule precedent established by a higher level court in that jurisdiction. Lower courts may indicate in their opinions their preference to rule in a manner contrary to precedent established by a higher level court, but only that higher level court is empowered to overrule earlier precedent. G. Binding/Mandatory versus Persuasive Authority Of the many sources of American law, some are considered to be “mandatory” or “binding,” and others “persuasive.” While some sources of law are mandatory in some contexts, they may be merely persuasive in other contexts. For instance, a case that is bind- ing on one court may not be binding on a court in another jurisdiction. In addition, if authority is considered to be “persuasive,” it does not mean that a subsequent court will consider it to be persuasive—only that the court may consider it in evaluating a case before it. Mandatory/Binding Authority Defined Authority a court must/is bound to follow. Examples of Mandatory/Binding Authority : Applicable constitutions and statutes. Cases: General Rule— Holding (i.e., not dictum); From a higher level court; In the same jurisdiction; Ina factually similar case; Applying the same law (federal; particular state). See Chapter LF. Persuasive Authority Defined Authority a court may, but is not required to, follow. Examples of Persuasive Authority Cases that are not binding (see above). Secondary sources. See Chapter LE.2.16 AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE Factors Court May Use in Jurisdiction Determining Whether to Consider Court hierarchy and Apply Persuasive Authority Factual similarities Policy Intervening authority Attractiveness of reasoning Date of prior authority Split among courts Importance of Question Whether Relates to application of stare decisis. Authority is Mandatory or Persuasive | See Chapter LF. H. Federal and State Systems 1. Dual Federal and State Systems The American legal system is based around a system of federalism, which basically refers to shared powers among the state and federal gov- ernments. The federal government is a government of limited powers, which are prescribed in the U.S. Constitution. The states retain all powers not expressly left exclusively to the federal government. The federal government and most state governments have court sys- tems based on three tiers. Cases proceed from the lowest level court to two separate levels of appeal. A few states have only a trial level court and one level of appeal. (a) U.S. Government System Based on a System of Federalism 1. Shared powers between federal and state governments 2. Federal Constitution delegates to federal government spe- cific powers; remaining powers are reserved for the states (b) Federalism Results in Dual Court Systems 1. Federal court system 2. State court systems (c) Consistent With Limited Power of Federal Government, Federal Courts Have Jurisdiction to Hear Cases Involving: 1, Federal constitutional issues 2. Federal statutory issuesCHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 17 3. wp Diversity cases—disputes between citizens of different states or of a citizen of a state against a citizen of a foreign country, if they meet a certain “jurisdictional amount” (currently $50,000, exclusive of costs) Cases in which U.S. is a party Other cases as specified by law—e.g., admiralty, antitrust, maritime Removal jurisdiction—if plaintiff could have brought case in federal court but brought case in state court, defendant can “remove” case to federal court, unless case is in defendant’s home state (d) State Courts May Review the Following Types of Cases 1. 2 Any case, including those over which federal courts have jurisdiction Exceptions to state court jurisdiction: State court jurisdiction may be precluded by federal statute either expressly (e.g., admiralty, patent, copyright) or implicitly (e.g., antitrust dam- ages and injunctions) (e) Typical Federal and State Court Structure 1. 2. Three-tier structure is most typical Three-tiér structure: (a) Lower court—fact-finding (b) Intermediate court—appeals from lower court (c) High court—appeals from intermediate court (f) Federal Court Structure 1. District Courts—Trial-Level Courts (a) Factual finding and development (b) Each state has one or more “districts” depending upon the size of the state (c) Several “districts” are combined to form one “circuit” (d) 94 districts form 12 circuits . Court Of Appeals—Intermediate Level Court (a) Appeals from trial-level (district) courts (b) Original jurisdiction over orders of many federal agencies (c) 13 circuit courts—one for each number 1-11; D.C. Circuit; Federal Circuit for certain specialized matters (d) Except for Federal Circuit, circuits are geographically- based18 AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE 3. U.S. Supreme Court (a) Supreme court of the land (b) Original jurisdiction in very rare cases, e.g., when there is a controversy between two states (c) Generally hears appeals from U.S. Court of Appeals (d) Hears some appeals from highest state courts See Chapter LH.3. (g) State Court Structure 1. Most state court systems mirror that of the federal court sys- tem, i.e., they generally are three-tiered, with two levels of appeal 2. Some states have only two-tiered court systems, with only one level of appeal See Chapter I.H.4. 2. Illustration of the Dual American Court System FEDERAL COURTS STATE COURTS Court Levels U.S. Supreme Court Court of last resort U.S. Court of Appeals Intermediate courts [circuit courts] U.S. District Courts Trial courts Court Jurisdiction Federal Question [Statute/ Anything not Constitution] expressly or implicitly reserved exclusively for federal courts Diversity U.S. a party Others as specified by law Parallel Systems Acase will normally go through one system or another; there is some overlap in unusual cases.CHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 19 3. The Federal Courts: An Overview The federal court system is a three-tiered system with one court of last resort (the U.S. Supreme Court, see chart immediately below), one inter- mediate court of appeals (the U.S. Court of Appeals, divided into 13 cir- cuits, see Chapter I.H.3.b.), and a level of trial courts (the U.S. District Courts, of which there are 94, see Chapter I.H.3.c.). Several district courts are combined to form one circuit court. a. United States Supreme Court Formal Court Name United States Supreme Court. Type Of Court Court of last resort. Original jurisdiction in limited cases (e.g., conflicts between states). Basic Court Structure ‘One Supreme Court. Nine Justices. All justices hear and decide each case (unless recused/disqualified).° Reporters United States Reports—U.S. [official]. Supreme Court Reporter—S. Ct. [West]. Lawyers’ Edition—L. Ed. [Lawyers’ Cooperative]. United States Law Week/Supreme Court Bulletin—newest Court decisions. Digests” United States Supreme Court Digest [West]. Federal Practice Digest [currently in 4th series] [West]. Modern Federal Practice Digest [older cases] [West]. Federal Digest [older cases] [West]. 8 Also referred to as the “Supreme Court” or the “Court” if is clear from the context that the reference is to the United States Supreme Court. 9 Federal judges at all levels may be recused or disqualified for conflicts of interest (real or perceived) and other reasons, Grounds for disqualification are found at 28 U.S.C. § 455. 10 Reporters publish cases, while digests are a case finding tool. See Chapter II.A. and B.1.20 AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE Applicable Statutes Rules of the United States Supreme Court." And Rules Title 28 of the United States Code." ‘Access To Court Right of appeal: Limited classes of cases, generally involving state court declaration of unconstitutionality of federal law, federal court declaration of unconstitutionality of state laws, high state court upholding state law against claim of unconstitutionality. Original Jurisdiction: Involving ambassadors, controversies between states, etc. Petition for a writ of certiorari: Review com- pletely discretionary with Supreme Court. Certification: Request by Court of Appeals that Supreme Court give instructions on a question of law. The Supreme Court may give binding instructions, or may hear the entire matter in controversy. Writ of Habeas Corpus: Limited right of redress for prisoners." b. United States Court of Appeals Formal Court Name | United States Court of Appeals; United States Court of Appeals for the __ Circuit." Type Of Court Intermediate court of appeals. Initial court review for some cases, especially appeals from agency action. 1 All federal courts have their own rules of practice and procedure which should be con- sulted by the practitioner. 12 Title 28 of the United States Code provides important information to the practitioner regarding many issues of federal court law, including issues of jurisdiction, venue, and other areas of federal court review. Title 28 should be consulted whenever an action is taken or planned to be taken in any federal court. 13. A petition for a writ of habeas corpus should normally be filed in the first instance in a United States District Court. The Supreme Court will entertain an original request for the writ only under exceptional circumstances, including a showing that adequate relief can not be had in any other way. 14 Also referred to as the “Court of Appeals for the __ Circuit,” the “__ Circuit,” the “court of appeals,” or the “circuit court,” if the reference is clear from the context. The term “circuit” comes from the old practice of circuit court judges to travel around the circuit to hear cases. Now, most appellate judges are assigned to a court in a single geographic location.CHAPTERI: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 21 Basic Court Structure Court of Appeals divided into 13 circuits: 1-11 (geographic), District of Columbia Circuit, Federal Circuit.!5 Each circuit (except Federal Circuit) comprised of one or more districts. Each circuit has varying number of judges, from six to twenty-eight, depending upon the size of the circuit and the volume of cases. Most cases heard and decided by 3-judge panel, selected at random.'® Entire court may hear case “en banc.” See Chapter V.B. Reporter Federal Reporter —F./F.2d./F.3d [West] Digests Federal Practice Digest [currently in 4th series) [West]. Modern Federal Practice Digest [older cases] [West]. Federal Digest [older cases] [West]. Applicable Statutes Federal Rules of Appellate Procedure—applicable and Rules to all circuits. Local court rules adopted by and applicable with- in each circuit. See Fed. R. App. Proc. 47.” Local operating rules adopted by and applicable within each circuit, Title 28 of the United States Code. Access to Court Direct appeal from determinations of district courts. Review of final action of some federal agencies. 15 Unlike the other circuit courts in which venue is based on geographic considerations, the Federal Circuit has jurisdiction over specialized matters, including intellectual property, interna- tional trade, government contracts, and other miscellaneous matters. The location and composition of each of the twelve geographic circuits may be found in a diagram in the front of each volume of the Federal Reporter and the Federal Supplement. See also 28 U.S.C. § 41. 16 On occasion, a panel may not be selected at random if there is a particular reason to call a panel comprised of specific members. For instance, if a panel has already heard the same case and ordered a remand, the same panel may be assigned to hear that case on a renewed appeal or petition for review. 17 See 28 U.S.C. § 2071,22. AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE. c. United States District Courts Formal Court Name United States District Court [for the District of __].!8 Type of Court Trial court—deals with issues of fact, including motions relating to evidentiary and other matters. Basic Court Structure 94 District Courts—one to four districts for each state.” Each District has a varying number of judges, from 1-28. Cases heard by a single judge.” Cases may be, but are rarely, heard en banc. Reporters Federal Supplement—F. Supp. [West]. Federal Rules Decisions (selected district court cases on procedural issues)—FRD [West]. Digests Federal Practice Digest [currently in 4th series] [West]. Modern Federal Practice Digest [older cases} [West]. Federal Digest folder cases] [West]. Applicable Statutes and Rules Federal Rules of Civil Procedure. Federal Rules of Evidence. Local court rules adopted by and applicable with- in each district. See Fed. R. Civ. Proc. 83.2! Title 28 of the United States Code. Access to Court Initial level of court review. Other “Courts” at Level Similar to District Courts U.S. Tax Court. U.S. Bankruptcy Court. Judicial Panel on Multidistrict Litigation. 18 If the district is the only one in a particular state, the name of the district will be the abbreviation of that state’s name [D. Ariz.]. Ifa state has more than one district, the district wil have a geographical designation accompanying the abbreviation of the name of the state (S.D. N.Y.]. Also referred to as “district court” if the reference is clear from the context. 19 See 28 U.S.C. §§ 81-131 for the location of and distribution of districts among the states. 20 Even though cases are heard by a single judge, reference to “the court” is preferred to ref- erence to “the judge.” 21 See also 28 U.S.C. § 2071CHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 23 4. The State Courts: An Overview a. State Court Structure For the most part, state court systems are analogous to the federal court system in that they have three-tiered structures: a trial court, an intermediate court of appeal, and a court of last resort (a supreme court). A few states have only one appellate-level court. At the trial court level, there may be divisions or departments for spe- cialized matters such as family issues, probate, and juvenile matters. Many states also have inferior courts, which are not courts of record but are very informal and handle lesser forms of recovery, such as small claims court. States are often separated into districts or other geographic divisions for purposes of court allocation. These districts operate much like—but are completely distinct from—federal districts. b. State Reporter Systems Each state has either and/or an official or a West case reporter which report intermediate appellate and high court cases.* Most states’ appellate and high court opinions are also published in West regional reporters, which combine the published cases of several States into West “regions.” (Note: the combination of states together in a West regional digest has no bearing on the relative precedential value of the cases from the states that happen to be combined by a commercial entity (West) into a‘single regional reporter. These regions and the states that form them have nothing to do with jurisdiction or anything else other than the convenience of the publisher.] The most efficient way to learn which reporters contain the opinions of a particular state court is to consult Table T.1 of the Bluebook. See Chapter IX. c. State Court Digests Each state has its own digest. Some state digests are published by West; other states have digests that are published by another private company or by the state itself. Some states have a West digest and a digest published by some other entity. Many published state cases are also digested in one of the West regional digests. * Most trial court decisions are not published because such decisions often take the form of jury verdicts which, have no precedential value in subsequent litigation.24 AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE d, State Court Rules of Practice and Procedure Each state also has its own rules of practice and procedure applicable to each court. Most states will have annotated versions of their rules of practice and procedure, or practice guides describing the application of such rules. I. Interrelationship Among Sources of Law 1. Interrelationship Among Federal Government Institutions a. Three Branches of Government The American federal gov- ernment is comprised of three branches of government—the legislative branch, the executive branch, and the judicial branch. Each arm of the fed- eral government has unique functions and responsibilities. b. Federal System of Checks and Balances The federal govern- ment was designed with a system of “checks and balances,” in which each branch in some way acts as a restraint on the other branches. For the prac- titioner’s purposes, the judicial oversight function, over the legislative branch is most significant.” c. Authority of Federal Courts Federal courts have the author- ity to review acts of Congress for their constitutionality. When an act of Congress establishes and/or authorizes an agency to take action, court review may include the question of whether that delegation of authority is constitutional. Federal courts also have the authority to review actions of adminis- trative agencies. Inquiries a court may make of agency action include whether the agency has acted in a manner consistent with the authority granted by Congress to the agency; whether the agency’s actions are con- sistent with other statues;” and whether the agency’s actions are consis- tent with prior court and agency decisions. 22 Other examples of checks and balances built into the federal system include congres- sional oversight of the executive and executive oversight over Congress. For instance, the Senate has the authority to impeach (bring up on charges) the President and other executives, and to approve certain presidential nominations. The President, for his part, has the authority to veto leg- islation passed by Congress. See Chapter ILD. 23 Under the U.S. Constitution, Congress is charged with law-making authority. To the extent Congress is seen to have delegated excessive law-making authority to an agency (or, for that ‘matter, any other entity), a court will invalidate such delegation. Invalidation of an act of Congress on this ground is rare, but remains a potential source of judicial inquiry of which to be aware. 24 While agencies are not bound by strict principles of stare decisis, they are generally required to explain departures from earlier decisions. As for rulemaking, agencies are required to explain the need for changes to existing rules.CHAPTER I: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE 25 d. Congressional Authority To “Overrule” Court Precedent Prospectively While the Supreme Court is largely considered to have the “last word” on the legality of acts of Congress and actions of federal agencies, Congress has authority to “overrule” or modify prospectively through legislation even Supreme Court precedent. But Congress cannot “overrule” a constitutional decision. For instance, if a court has held that an agency acted beyond its statutory authority, Congress can amend the relevant legislation to more explicitly authorize the agency to take the action in question. However, if the Supreme Court holds that legislation to be unconstitutional, only a con- stitutional amendment can override that decision.” 2. The Judicial Review Function: The Interrelationship Between Congress and the Federal Courts ACTS OF U.S. CONGRESS FEDERAL COURT REVIEW FUNCTION Passes laws =» Ts law constitutional? Creates and authorizes agencies > Is delegation to agency to act constitutional? ADMINISTRATIVE AGENCIES, Issue rules and regulations > Is action consistent with 7 Constitution? Resolve disputes via adjudications > Is action consistent with congressional delegation and other laws? ie Is action consistent with case law? CONGRESS [Prospective Only]”” Codify case law Modify/amend case law Reject/“overrule” case law (unless based on constitutional infirmity) 25 Agency authority is generally derived from specific statutory authority to that agency. Agency actions are also governed by the Administrative Procedure Act, a more generic statutory scheme applicable to federal agencies generally. 26 A constitutional amendment requires a proposal by two-thirds of both houses of Congress, or two-thirds of the state legislatures, and ratification by three-quarters of the state legislatures. 27 These actions of Congress, in turn, would likewise be subject to judicial review.26 AMERICAN LEGAL SYSTEMS: A RESOURCE AND REFERENCE GUIDE 3. Relative Priority of Sources of Law: Hierarchy of Authority In any given legal situation, many sources of law may be applicable. For instance, a case may present a federal constitutional issue, but may also implicate issues of statutory law (state or federal). There is a complex reaction to the issue of which law has “supremacy” over others. First, there is the issue of federal supremacy over state law. A com- plex area of jurisprudence, this principle basically stands for the proposi- tion that when there is conflict between a federal law and a state law, federal law supersedes the state law. In addition, there are certain fields over which federal law preempts the possibility of any state law. In addition, even within the federal system or a state system, there are rules of supremacy governing the relative priority of sources of law applicable within that jurisdiction. As indicated below, the U.S. Consti- tution takes priority over federal statutes and regulations, which in turn take priority over federal case law. The U.S. Constitution, of course, also takes priority over state statutes, regulations, and case law. It is critical that case law be examined whenever interpreting a statu- tory or constitutional provision. As an example, consider the sources of federal law: Although the U.S. Constitution and then federal statutes take priority (under the principles of constitutional supremacy and legislative supremacy, respectively) in interpreting the Constitution or a statute, case law will be critical; under the principle of stare decisis, the way in which the same or similar constitutional and statutory provisions have been interpreted in the past will have an enormous impact on the way in which a constitutional or statutory provision will be interpreted. a. Federal Law (1) U.S. Constitution (2) Federal Statutes (3) Federal Rules and Regulations (4) Federal Cases—Cases must be consulted in interpreting Constitution, statutes, and agency issuances b. State Law There are several principles of law that must be considered when dealing with an issue of state law. Although a comprehensive examination of these rather complex rules is beyond the scope of this work, they are as follows:CHAPTERI: BASIC CONCEPTS OF AMERICAN JURISPRUDENCE = 27 (1) Federal Supremacy: Federal law prevails over conflicting state law. State law may not be inconsistent with federal law. Nor may there be state laws covering areas that have been preempted, or fully cov- ered, by a federal statutory scheme. (2) Erie* Rule: Federal courts will apply state “substantive” law (e.g., torts, contracts) and federal “procedural” law when state law creates the cause of action. (3) Choice of Law Issues: A federal court deciding which state’s law to apply to a state claim will use the choice of law rules of the state in which the federal court sits. Apart from these issues, the following hierarchy of authority would apply to state sources of law: (1) State Constitution (2) State Statutes (3) State Rules and Regulations (4) State Cases—Must be consulted in interpreting state Consti- tution, statutes, and agency issuances A Note On Citations To Authority: When citing to federal or state law, citations should include all relevant sources, in the order of their respec- tive hierarchy. See Chapter IX.C. * Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
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