terms of interest	Common law	solicitor general
plaintiff	Civil law/civil court	amicus curiae brief
defendant	Criminal law/criminal court	supremacy clause
original jurisdiction	Judicial review	Supreme Court Opinion/Dessenting Opinion
trial court	Judicial self-restraint	Universal Commerce Code
Court of Appeals	Judicial activism	due process of law
Supreme Court	Chief Justice	Miranda rule
plea bargin	writ of habeas corpus	writ of certiorari

The Federal Courts. "...and justice for all…"?

Key concepts from the Text:
- Millions of cases come to trial in the United States every year. - State Courts handle the vast majority of court cases in American (about 98%). - The key to the power of the courst is judical review. - Only a tiny percentage of cases get to the Supreme Court, which tightly controls the flow of the cases it hears. - Court decisions are shaped by the justices' activism and ideology.

 

English Law only exists in those parts of the world the English dominated. Like the us.  

Most of the rest of the world doesn't have the same legal system that we have. Most of the rest of the world practices " Roman Law ," or sometimes called " French Law " or " Codified Law ."  It's law written down and enforced by judges.  

We, and the rest of the world colonized by England, practice " common law " or "judge made law."  It's based on what previous judges have done in similar cases.  

Guilt (or non-guilt) is determined by the jury, not the judge. 

But the judge controls what the jury sees. It's a purposefully artificial reality inside the courtroom. Reality doesn't matter. What matters is legal reality .  Reality which can be proved to a jury " beyond a reasonable doubt ."    

TV and Movies ain't real.  

TV and films have distorted most people's view of courts and court procedures. Reality is far less dramatic than TV or films. Judges don't allow yelling, pointing or crying. Most of the drama is internal.
 

Spirit of the Law v. the Letter of the Law

Law Scholars talk about “ the Spirit of the Law v. the Letter of the Law. ” Or, “Law as a search for justice…”

But in this reality, on this planet, with my species – we can't achieve justice. We can't even agree on what justice really means.

Justice? System.

We can't really get justice from our Justice System , not justice of outcome, nor justice in fact.

Justice in fact is impossible for humans to agree upon , let alone to have on our planet. 

What really is justice if it's your child killed who is victimized, or your spouse attacked, your parent?, or you ? 

Justice in fact is impossible, so justice of procedure is all we can hope to get.

That's not justice!  

Of course all justice systems at all levels of government fail at least some times. They are all run by humans, with human problems and prejudices.  

Is the justice system any more racist than the rest of society? In LA county , 100% of the people arrested, convicted and doing time for a certain crime are of one ethnic group and gender. Is that proof of racism? The crime is child pornography and the group is white males. (LA TIMES)  

Remember the levels of courts.

The first court to hear a case has original jurisdiction . That means this court hears and decides the case. It's decision on guilt, liability or whatever is the only time the facts of the case get heard and the only time a decision on those facts is made.

The appellate court does not re-try the case. The only issues the court of appeals looks at are issues of whether the original court followed all the procedures we have come to call “due process.”

“due process”

Essentially, the appellate court looks at are whether the process was fair not weather the outcome was just.

And the Supreme Court (of the U.S. or the states – they all have their own) is the final arbiter of the procedural justice questions about the case. But the Supreme court does not re-try the case, nor does it listen to anybody accept the lawyers from both sides. Usually they get an hour (or less) each to make the merits of their position. 

But many interest groups (and even the state or federal government) can file a “ Friend of the Court ” brief and "weigh in" on whatever central issue the court is reviewing.

Briefs

Most of the Supreme Court's work is done reading and writing briefs. The minority decisions are often important in future cases – even though being on “the minority” means that side has lost the vote on the case.  

Of course, the Supreme Court is a political body . All Supreme Court justices in our history have worked for politicians on campaigns or in their administrations, (except one justice, who was dean of a law school).

Judicial Restraint v Activism

The right wing of our political spectrum likes to say that activist judges want to legislate from the bench. These same folks argue that judges should show restraint in interpreting the constitution. In many ways this is a bogus debate . The question is NOT really between activist judges (who what to change things) and “ original intent judges” (who see no need for change). The point of contention is the RATE of change, not the fact of change.

Birth control is a wonderful example. Before Griswold v Conn. (a landmark Supreme Court case) many states simply outlawed birth control. The court held that although the word privacy is not in the constitution, there was obviously a concern to limit the government's ability to invade our privacy (no troops in homes, freedom of speech, etc). This concern covers a woman and her re-productive rights (i.e. – the right to control whether she re-produces).

Later, Roe v Wade did not really expand rights as much as it recognized change. What is the federal government's position on abortion? They really don't have one. The President and the Congress can never seen to agree, so the Supreme Court has ruled only that STATES cannot outlaw abortion. The question is left open as to whether the federal government could. The Supreme Court doesn't deal in hypotheticals.

Right to Privacy?

Speaking of hypothetical – Do you have a right to privacy?  

Really?  

Where?

On the Job?  

On the phone?

In your car?

In the Mall?

Maybe the only place where you have a reasonable expectation of privacy is in your home, with the curtains drawn and no illegal activity occurring.   The only exceptions are your doctor, your lawyer and your priest .

some things to think about Remember any of these may be on the final exam!

1. As digital technology evolves, the US federal courts find themselves bombarded by questions of intellectual property rights and copyright law, like peer-to-peer (P2P) file sharing, and the musicians' right to compensation. Should the courts be more accomodating of innovative technologies? Or should they do more to protect artists and "traditional" businesses? 2. The Supreme Court seems more willing to declare acts of Congress unconstitutional than it is willing to confront the president on the constitutionality of his actions. Why might this be the case? When has the Supreme Court checked presidental power? 3. In what ways are courts, judges and justices shielded from politics and political pressure? In what ways are they vulnerable to political power? What does this say about our justice system? 4. Suppose the federal courts did not have the power of judicial review. Instead all acts of Congress and the president would be considered constitutional. How would this change our system? Would you favor such a change? Be creative but not silly.