The Judicial Process: Law, Courts, and Judicial Politics, Second Edition PDF
Preview The Judicial Process: Law, Courts, and Judicial Politics, Second Edition
THE JUDICIAL PROCESS L , C , J P AW OURTS AND UDICIAL OLITICS Second Edition CHRISTOPHER P. BANKS KENT STATE UNIVERSITY DAVID M. O’BRIEN THE LATE LEONE REAVES AND GEORGE W. SPICER PROFESSOR UNIVERSITY OF VIRGINIA The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. © 2021 LEG, Inc. d/b/a West Academic 444 Cedar Street, Suite 700 St. Paul, MN 55101 1-877-888-1330 West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license. Printed in the United States of America ISBN: 978-1-64242-255-9 From Christopher P. Banks: To the memory of my parents, Richard and Frances Banks, and my mentor, co-author and friend, David M. O’Brien. From the family of David M. O’Brien: To the memory of our beloved dad and husband, David M. O’Brien. Tables and Figures Tables 1.1 Inquisitorial and Adversarial Systems 8 1.2 Types of Law 24 3.1 Types of Cases Adjudicated in Federal and State Courts 106 3.2 State Trial Court Docket 112 3.3 U.S. District Court Caseload and Docket Composition, 1970– 2018 118 4.1 Judicial Selection Methods in the States 155 4.2 Diversity of Federal District Court Judges 198 4.3 Diversity of Federal Court of Appeals’ Judges 198 4.4 Judicial Salaries of State and Federal Judges 200 5.1 Law School Rankings, 2021 238 5.2 Standard First Year Courses in Law School 241 5.3 Legal Profession Occupations by Gender and Position 246 5.4 Mega-Firms in the United States & Abroad 256 5.5 Salient Differences in Legal Representation in Indigent Criminal Cases 265 7.1 Trial Court Differences in Adversarial and Inquisitorial Legal Systems 329 7.2 Constitutional Protections in Criminal Cases 332 7.3 Criminal Convictions Resulting from Trials and Pleas in State Felony Cases 341 7.4 Sentencing Typologies and Practices 357 8.1 Civil Justice and Procedure: Goals, Tensions, and Challenges 380 8.2 Examples of Mass Tort Litigation and Settlement Funds 389 8.3 Tort, Contract, and Real Property Trials and Median Final Awards to Plaintiffs 407 8.4 State Tort Reform Laws 411 8.5 Alternative Dispute Resolution and Settlement Practices 417 9.1 Appeals Terminated After Oral Hearing in U.S. Courts of Appeals 446 9.2 Types of Judicial Opinions 452 9.3 Legal or Political Variables Used to Explain or Predict Judicial Decisions 457 9.4 Factors the U.S. Supreme Court Considers in Deciding to Overturn Precedent 477 9.5 Interpretative Theories and Tools of Statutory Construction 481 10.1 Federal and State Court Policymaking 505 10.2 The Dimensions of Judicial Activism 509 10.3 Abortion Restrictions in the States 533 10.4 Amendments Overturning Unpopular U.S. Supreme Court Decisions 552 Figures 3.1 Dual System of Courts 105 3.2 Illinois Single-Tier Trial Court System 109 3.3 Ohio’s Two-Tier Trial Court System 110 3.4 Geographical Boundaries of the U.S. Courts of Appeals 116 3.5 U.S. Supreme Court Membership and Docket Composition 126 4.1 The Nomination and Confirmation Process for Federal Judges 170 4.2 Senate Obstruction and Delay of Lower Federal Court Nominations 193 5.1 Law School Enrollment & Bar Admissions, 1965–2019 231 5.2 Law School Graduate Employment 249 7.1 The Stages of Trial and the Presentation of Evidence 326 7.2 The Criminal Trial and Appeal Process 334 7.3 Minnesota’s Presumptive Sentencing Grid 361 8.1 Average Lawyer Time Spent in Ordinary Civil Lawsuits 382 8.2 Types of Civil Cases in State Courts 385 8.3 Types of Civil Cases in Federal Courts 386 8.4 The Civil Trial and Appeal Process 397 9.1 The Appellate Court Decision-Making Process 440 9.2 Research Methodologies for Studying Judicial Politics 459 10.1 Judicial Compliance and Impact 543 Preface The Judicial Process: Law, Courts, and Judicial Politics introduces students to the nature and significance of the judicial process in the United States and across the globe. It is written from a unique interdisciplinary perspective that combines political science research with scholarship that is centered in traditional legal studies. At its core, the textbook is an introduction to civil and criminal law, jurisprudence, judicial organization and judicial selection, the legal profession, the criminal and civil judicial process, and the scope and limitations of judicial policymaking. It is designed for a wide range of courses in the legal academy, political science and sociology. All instructors teaching law or law-related courses will find it attractive because it contains an in-depth analysis of legal theory and political jurisprudence, topics that are frequently absent from other textbooks. Moreover, unlike most textbooks, it focuses not only on U.S. courts, but also to comparative courts and judicial politics. In addition, this book highlights contemporary controversies and debates over the role of courts in American society and elsewhere. Overall, these features will engage and challenge students to learn about the law and the politics underlying the judicial process. Key Features The Judicial Process: Law, Courts, and Judicial Politics’ unique legal and social science perspective is complemented by several useful pedagogical tools that facilitate student learning. The book’s “Contemporary Controversies over Courts” boxes offer unique insight into cutting-edge and highly relevant issues of law, courts, and judicial politics, such as problem-solving courts, the “hardball politics” of judicial selection, “pay as you go” justice, animal rights, plea bargaining trends, the law of precedent, judicial decisions limiting the availability of class actions, and the role of courts in making social policy, among others. The “In Comparative Perspective” boxes acquaint students with a range of topics, including the significance of major global legal systems, comparative perspectives on law and morality, constitutional courts in Europe and the European Court of Justice, as well as the roles lawyers, juries, and alternative dispute-resolution techniques play in the United States and throughout the world. In addition to containing numerous visual and descriptive aids for students, including easy to comprehend charts and figures on all aspects of the judicial process, each chapter has a chapter summary, key questions for review and critical analysis, web links, and selected readings. These features highlight poignant issues relating to the study of the judicial process, law, courts, and judicial politics. The Glossary is a key resource for understanding the complexities of legal terminology. In addition, Appendix A gives students the “nuts and bolts” of how to conduct legal research and writing. Finally, Appendix B is a useful resource listing the historical and contemporary membership of the Supreme Court of the United States, the most important judicial forum in the United States. Instructor Resources For this textbook, instructor resources are available at West Academic’s web page at westacademic.com. These include: A test bank that provides a diverse range of pre-written questions as well as the opportunity to edit any question and/or insert personalized questions to effectively assess students’ progress and understanding. Editable, chapter-specific PowerPoint slides that offer complete flexibility for creating a multimedia presentation for the course. Moot court hypotheticals that give instructors the flexibility to edit for application to contemporary, cutting-edge issues in constitutional law and politics. Edited U.S. Supreme Court and other key federal or state judicial opinions that are referred to in the textbook or of current interest to academics and court watchers. Overview Part I focuses on the nature of law and its relationship to judicial politics in society. Chapter One analyzes legal systems, the sources of public and private law, and the role courts play in resolving legal disputes and defending personal freedoms. Chapter Two addresses classical and contemporary legal theories, or political jurisprudence ranging from natural law to critical legal studies, and how those theories affect law and policy. Part II considers judicial organization and administration. Chapter Three describes the origin and structure of state and federal courts, as well as the politics of judicial reform. Chapter Four builds on that discussion by explaining how judges become political actors as they are socialized in the various ways they are recruited, retained, and removed from office. Part III turns to access to courts and how formal and informal barriers affect judicial decision-making and access to justice. Adversarial civil and criminal judicial processes are analyzed. In Chapter Five, the role legal culture and lawyers play in delivering legal services and providing access to justice is discussed. Access to courts in terms of formal and informal barriers of justiciability (legal standing, mootness, and similar doctrines of judicial restraint or abstention) is the subject of Chapter Six, along with the different strategies interest groups employ to effectuate policy change during litigation. Chapters Seven and Eight analyze the adversarial system and the differences between criminal procedure and civil litigation at the trial level. In Chapter Seven, the key role prosecutors play in charging defendants and negotiating plea bargains, as well as the significance of juries and the politics underlying sentencing practices, is detailed. In contrast, Chapter Eight considers civil litigation, liability trends, and the process of seeking monetary compensation for personal injuries, along with tort reform and alternative dispute-resolution methods. Part IV explores judicial policymaking and the scope and limits of judicial power in appellate courts. Chapter Nine details the appellate judicial process, including how scholars generally study judicial behavior, and how courts establish law and public policy in setting their agendas and writing judicial opinions. Chapter Ten, then, concludes with a consideration of controversies over the role and impact of appellate courts, with particular attention to the legal and political debate over public school financing, abortion, capital punishment, school desegregation, and LGBT rights and same-sex marriage cases in state and federal courts. The different types of internal and external constraints on judicial power, along with the policymaking impact of courts, are thoroughly considered in the context of those areas of law, along with the important issue of race, equality, and school desegregation. This second edition updates the chapter introductions, the content, and the contemporary controversies and comparative perspective boxes. It adds new perspectives that incorporate the unique impact that the Trump administration has on law and courts, and the judicial process, including his appointments to the lower federal courts as well as to the Supreme Court by way of the confirmations of Justices Neil Gorsuch and Brett Kavanaugh. It blends recent Supreme Court cases, and the impact of the Covid 19 pandemic, and the civil unrest generated by George Floyd’s killing by a white police officer and ongoing racial tensions, into its analyses of the judicial process. It has several new boxes that address cutting edge issues, such as the politicization of the Foreign Intelligence Surveillance Court, the impact of veterans’ problem-solving courts, Title IX sexual assaults on campus, European Constitutional Courts, the role of the Federalist Society in judicial selection, legal education and lawyers in Western democracies, the right to counsel and “pay as you go” criminal justice, justiciability in animal rights’ cases, global legal trends in plea bargaining, the global impact of jury systems and alternative dispute resolution methods, the dispute pyramid, class actions, constitutional interpretation, the significance of the doctrine of stare decisis and the law of precedent, the European Court of Justice, and the judicial role in creating major social change. Also new to this edition are the pedagogical tools of moot court hypotheticals, which will aid instructors in teaching students about critical legal reasoning and advocacy skills with respect of U.S. Supreme Court jurisprudence, and edited U.S. Supreme Court and other key federal or state judicial opinions that are referred to in the textbook or of current interest to academics and court watchers. Some of the features of the new edition include: Analyses of the political and jurisprudential implications of the impeachment hearings initiated against President Donald Trump. Detailed overviews of the President Trump’s and Senate Republicans to transform the ideological direction of the Supreme Court and lower federal courts through a hardline court packing strategy that departs from longstanding Senate procedures and norms and emphasizes the role that the Federalist Society plays in judicial selection. Discussions of recent Supreme Court decisions affecting or restricting immigration, abortion rights, defendant freedoms relative to capital punishment, same-sex and transgender liberties, partisan gerrymandering, and unanimous jury verdicts in state felony trials. Comprehensive narratives surveying the growing impact that special interest group advocacy and unregulated political money has on judicial campaigns in state supreme court elections. New coverage of the lack of diversity and representation on federal and states courts, leading to the institutionalization of a professional, “career” judiciary. Expanded discussion of the critical role lawyers, and BigLaw, play in the judicial process and highly specialized and stratified legal profession that creates multiple challenges in fully providing for access to justice to politically marginalized litigants. Fresh analyzes of justiciability and procedural doctrines and their application to key areas of the law, such as animal rights and Second Amendment gun rights. Focused treatment of the strengths and weaknesses of the criminal and civil adversarial process and the implications of new legislative initiatives, such as the First Step Act, and the politics of tort reform. New coverage on understanding judicial behavior theories and the role of appellate courts in altering precedent to achieve political preferences and forging social policy change in controversial areas of the law, including capital punishment, abortion, school educational financing, racial discrimination, and LGBT/same-sex marriage cases. Acknowledgments The undergraduate and graduate students taught at the University of Virginia, the University of Akron, and Kent State University remain an inspiration. Numerous faculty colleagues and graduate students have contributed to the research and writing process, but Lisa Hager and Kevin White, among others, were especially helpful in creating and refining the chapters and the data contained in the tables, graphs, and figures. A particular dose of gratitude is extended to the library staff (and colleagues) at Kent State University, who went beyond the call of duty in allowing access to books and articles during the Covid 19 pandemic and University shutdown in March 2020: namely, Kara Robinson, Thomas Warren and Cynthia Kristof, among others. The textbook could not have been written without the extraordinary efforts and confidence shown in the project from the editors from West Academic Press: Elizabeth Eisenhart and Ryan Pfeiffer. We are also grateful to Monica Eckman, Sam Rosenberg, Sarah Cabali and Natalie Kopinski, and the rest of the staff at Sage/CQ Press, for their efforts in helping us publish the first edition. During the production process at West Academic, the expertise and assistance from Laura Holle, Whitney Esson, Greg Olson and several others were essential to getting the textbook published. We would also like to thank the following reviewers for their valuable insight and suggestions: J. Michael Bitzer, Catawba College Paul Chen, Western Washington University Michelle D. Deardorff, University of Tennessee at Chattanooga John Gruhl, University of Nebraska-Lincoln Kim Seckler, New Mexico State University Steven Tauber, University of South Florida Laurie A. Walsh, Daemen College Yvonne Wollenberg, Rutgers University
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