Judicial Process in America

List of Tables and Figures
Preface
Acknowledgments
Publisher’s Acknowledgments
Chapter 1 Foundations of Law in the United States
Definition of Law
Sources of Law in the United States
Constitutions
Acts of Legislative Bodies
Decisions of Quasi-Legislative and Quasi-Judicial Bodies
Orders and Rulings of Political Executives
Judicial Decisions
Types of Law
Codified (or Code) Law
Statutory Law and Common Law
Civil Law and Criminal Law
Equity
Private Law
Public Law
State Law and Federal Law
Functions of Law
Providing Order and Predictability in Society
Resolving Disputes
Protecting Individuals and Property
Providing for the General Welfare
Protecting Individual Liberties
The United States and the Rule of Law
The Revolutionary War
John Brown at Harpers Ferry
The Civil Rights Movement
Examples of Civil Disobedience in the United States
Concluding Thoughts on the United States and the Rule of Law
A Litigious Society
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 2 The Federal Judicial System
The Historical Context
The Constitutional Convention and Article III
The Judiciary Act of 1789
The U.S. Supreme Court
The Impact of Chief Justice Marshall
The Supreme Court as a Policymaker
The Supreme Court as Final Arbiter
The Supreme Court at Work
The U.S. Courts of Appeals
The Review Function of the Courts of Appeals
The Courts of Appeals as Policymakers
The Courts of Appeals at Work
U.S. District Courts
Current Organization of the District Courts
The District Courts as Trial Courts
Norm Enforcement by the District Courts
Policymaking by the District Courts
Three-Judge District Courts
Constitutional Courts, Legislative Courts, and Courts of Specialized Jurisdiction
Administrative and Staff Support in the Federal Judiciary
United States Magistrate Judges
Law Clerks
Administrative Office of the U.S. Courts
The Federal Judicial Center
Federal Court Workload
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 3 State Judicial Systems
Historical Development of State Courts
The Colonial Period
Early State Courts
Modern State Courts
State Court Organization
Trial Courts of Limited Jurisdiction
Trial Courts of General Jurisdiction
Intermediate Appellate Courts
Courts of Last Resort
Juvenile Courts
Norm Enforcement in the State Courts
The Courtroom Work Group
Administrative Hearings in the States
Policymaking in the State Courts
Innovation in State Courts
Administrative and Staff Support in the State Judiciary
Magistrates
Law Clerks
Administrative Office of the Courts
Court Clerks and Court Administrators
State Court Workload
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 4 Jurisdiction and Policymaking Boundaries
Federal Courts
U.S. District Courts
U.S. Courts of Appeals
U.S. Supreme Court
Jurisdiction of State Courts
Jurisdiction and Legislative Politics
Judicial Self-Restraint
A Definite Controversy Must Exist
A Plea Must Be Specific
Beneficiaries May Not Sue
Appellate Courts Rule on Legal—Not Factual—Questions
The Supreme Court Is Not Bound (Technically) by Precedents
Other Remedies Must Be Exhausted
Courts Do Not Decide “Political Questions”
The Burden of Proof Is on the Petitioner
Laws Are Overturned on the Narrowest Grounds Only
No Rulings Are Made on the “Wisdom” of Legislation
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 5 State Judges
The Selection Process for State Judges
Partisan and Nonpartisan Election of Judges
Merit Selection
Gubernatorial Appointment and Legislative Appointment
Selection of the Chief Justice: The Cautionary Tale of the Wisconsin Supreme Court
The Retirement and Removal of State Judges
Judicial Independence and State Courts
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 6 Federal Judges
Background Characteristics of Federal Judges
District Court Judges
Court of Appeals Judges
Supreme Court Justices
An Appraisal of the Statistics
Formal and Informal Qualifications of Federal Judges
Formal Qualifications
Informal Requirements
The Federal Selection Process and Its Participants
The President
The Department of Justice
State and Local Party Leaders
Interest Groups
The American Bar Association
The Federalist Society
The Senate Judiciary Committee
The Senate
The Judicial Socialization Process
The Retirement and Removal of Judges
Disciplinary Action Against Federal Judges
Disability of Federal Judges
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 7 Policy Links Among the Citizenry, the President, and the Federal Judiciary
The President and the Composition of the Judiciary
Presidential Support for Ideologically Based Appointments
The Number of Vacancies to Be Filled
The President’s Political Clout
The Judicial Climate the New Judges Enter
Presidents’ Values and Their Appointees’ Decisions
President Barack Obama and the Federal Judiciary
President Donald Trump and the Federal Judiciary
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 8 Lawyers, Litigants, and Interest Groups in the Judicial Process
Lawyers and the Legal Profession
Development of the Legal Profession
Law School Growth and the “Great Recession”
Stratification in the Legal Profession
Government Attorneys in the Judicial Process
Private Lawyers in the Judicial Process
Legal Services for the Poor
Litigants
Interest Groups in the Judicial Process
Test Cases
Amicus Curiae Briefs
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 9 Crime and Procedures Prior to a Criminal Trial
The Nature and Substance of Crime
Categories of Crime
Conventional Crimes
Economic Crimes
Syndicated, or Organized, Crimes
Political Crimes
Consensual Crimes
Elements of a Crime
A Law Defining the Crime and the Punishment
The Actus Reus
The Mens Rea
An Injury or Result
A Causal Relationship Between the Action and the Resultant Injury
Procedures Prior to a Criminal Trial
The Arrest
Appearance Before a Magistrate
The Grand Jury Process or the Preliminary Hearing
The Arraignment
The Possibility of a Plea Bargain
The Adversarial Process as Contrasted With the Inquisitorial Method
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 10 The Criminal Trial and Its Aftermath
Procedures During a Criminal Trial
Basic Rights Guaranteed During the Trial Process
Selection of Jurors
Opening Statements
The Prosecution’s Case
The Case for the Defense
Role of the Judge During the Trial
Role of the Jury During the Trial
Instructions to the Jury
The Jury’s Decisions
Conviction Rates and the Likelihood of Being Sent to Prison
Procedures After a Criminal Trial
Sentencing
An Appeal
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 11 The Civil Court Process
The Nature and Substance of Civil Law
The Main Categories of Civil Law
Contract Law
Tort Law
Property Law
The Law of Succession
Family Law
The Courts and Other Institutions Concerned With Civil Law
Deciding Whether to Go to Court
Alternative Dispute Resolution
Specialized Courts
Administrative Bodies
The Civil Trial Process
Filing a Civil Suit
Pretrial Activities
The Civil Trial
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 12 Decision Making by Trial Court Judges
The Legal Subculture
The Nature of Legal Reasoning
Adherence to Precedent
Constraints on Trial Judge Decision Making
The Impact of the Legal Subculture: An Example
Wellsprings of the Legal Subculture
The Limits of the Legal Subculture
The Democratic Subculture
The Influence of Political Party Affiliation
The Impact of Localism
The Impact of Public Opinion
The Influence of the Legislative and Executive Branches
The Subcultures as Predictors
When the Legal Evidence Is Contradictory
When a Case Concerns New Areas of the Law
The Judge’s Role Conception
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 13 Decision Making in Collegial Courts
Cue Theory
Small-Group Analysis
Persuasion on the Merits
Bargaining
Threat of Sanctions
The Special Role of the U.S. Chief Justice, the U.S. Chief Judges, and State Supreme Court Chief Justices
Evidence of Small-Group Interaction
Attitude Theory
Rational Choice Theory
Practical Applications of These Four Approaches
Cue Theory
Small-Group Analysis
Attitudinal Model
Rational Choice
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 14 Implementation and Impact of Judicial Policies
The Impact of Higher Court Decisions on Lower Courts
Lower Court Discretion
Interpretation by Lower Courts
Strategies Used by Lower Courts
Influences on Lower Court Judges
Congressional Influences on the Implementation Process
Executive Branch Influences on the Implementation Process
Other Implementers
The Impact of Judicial Policies
Racial Equality
Criminal Due Process
Concluding Comments on the Impact of Judicial Policies
Summary
Further Thought and Discussion Questions
Suggested Resources
Chapter 15 Policymaking by American Judges: A Synthesis
The Nature of the Case or Issue
Jurisdiction
Judicial Self-Restraint
Norm Enforcement Versus Policymaking
Concluding Remarks About the Nature of the Case or Issue
The Values and Orientations of the Judges
Judges as a Socioeconomic Elite
Judges as Representatives of Their Political Parties
Judges as Manifestations of Localism
Judges’ Conceptions of Their Role
Concluding Remarks on the Values and Orientations of the Judges
The Nature of the Judicial Decision-Making Process
The Impact of Extraneous Influences
Appendix: Annotated Constitution
Glossary
Case Index
Subject Index
About the Authors