Introduction to the American Legal System Prof. John T. Nockleby

Introduction to the American Legal System Prof. John T. Nockleby Director, Journalist Law School Professor John Nockleby Director, Journalist Law School

Today: Three Goals • Overview of legal system—the Third Branch of Government • Overview of torts, with special attention to who should pay for losses • Perspectives on civil litigation from Pl & Defense lawyers • Friday: Overview of procedural aspects of civil suits • Breakout: Over view of Class Actions

Co-Equal Branches Federal • Legislative • Executive • Judicial State • Legislative • Executive • Judicial

Power Relationship of Legal System to Political System • Judges elected (most states) for term, or appointed (federal & some states) • Judicial Independence • the idea that neither political system norpowerful entities should control 3d branch • Political pressures over 3d branch exercised in limited & controlled fashion Note: these comments address both Federal and state systems

Political Pressures on 3d Branch Appropriate: • Public Criticism • Legislature change underlying law (except Constitutional law) • Impeachment of judicial officers • Recall or don’t re-elect judges • Legislature change law Not Appropriate: • Ethical constraints: e.g., private conferences; judge friends • Coercion through salary adjustments • Judges told to do mayor’s, corps’ bidding • Respond to direct political pressure • Taking into account status of parties • Bribes

Political Pressures on 3d Branch The credibility of the legal system hinges on judicial independence Questionable ? • Contribute large sums to elect judges favorable to one’s legal position? • CEO of Massey Coal Co contributed $3 million to campaign of W.Va. Supreme Court challenger Brent Benjamin, who won. • Justice Benjamin refused to recuse himself in $50 million lawsuit against Massey ; W.VaSCt ruled 3-2 for Massey Coal • Caperton v. A. T. Massey Coal Co

Political Pressures on 3d Branch The credibility of the legal system hinges on judicial independence • Caperton v. A. T. Massey Coal Co • Appeal to US SCt based on due process grounds followed: • USSCt: 5-4: • held that due process required Benjamin to recuse himself

Political Pressures on 3d Branch The credibility of the legal system hinges on judicial independence • North Carolina SCt election Questionable ? • “Independent” expenditures by Chamber of Commerce attacking a state supreme court justice they don’t like https://www.youtube.com/watch?v=HgO_Bn8pVfg&feature=youtu.be Outside Spending Enters Arena of Judicial Races By ERIK ECKHOLM MAY 5, 2014

Political Pressures on 3d Branch The credibility of the legal system hinges on judicial independence • To what extent can judges be subjected to political pressures & still remain independent? • Terri Schiavo case • Institutional Budget coercion Questionable {State & Federal courts} :

Relationship of legal system to political system CONVENIENT MYTHOLOGY: Political bodies make the law; judicial branch MERELY interprets

The Political Game SLOGANS: • “Legislating from the Bench” • “Strict Constructionist” • “A Living Constitution” • “Judges are like umpires; umpires don’t make the rules, they apply them.” Supreme Court nominees are asked about these at confirma-tion hearings

REAL ISSUES: • Which theories of judicial lawmaking make the most sense? • Which theories of interpretation do we want our judges to employ? • What background and political orientation do we want our judges to have?

Journalists often wonder …. • What is “the law” concerning a given subject? • How will a certain case come out? Often difficult to answer because judges make law in the process of adjudication

Judges make law in THREE Important ways: • Judges decide what the general phrases in the Constitution mean (“due process;” “equal protection”) • Judges decide what statutes mean, and fill gaps, decipher ambiguities • Judges make common law

1. Interpreting the Constitution • In U.S., judges have the final word on what the constitution means • Judicial Review of legislation—Marbury v Madison • Judges decide what general phrases mean: • “due process” • “equal protection” • “abridging the freedom of speech” • “Habeas Corpus”

2. Judges Interpret Statutes, Fill Gaps, Adjudicate Ambiguities • Many statutes incorporate vague language • Entire statutory body of antitrust contained in few vague phrases (“restraint of trade”; “monopolization”) • Civil Rights statutes— use broad phrases like “discrimination” or “unequal” • Political bodies punt difficult issues to judicial system Legislating from the bench?

3. Common Law • Examples of common law adjudication: • Contract disputes [what is a contract? Is that “agreement” enforceable?] • Arbitration “agreements” in standardized contracts • “Privacy policies” –websites • Disputes over property (water rights; land use; nuisance; conflicting uses of land)

In General, Common Law is… • Judge-made law • A body of rules and precedents • built up over time—by accretion --i.e., case-by-case; • limited rulemaking for a typically narrow set of circumstances • Judges make law in the very case that first raises the issue • This judge-made body of law changes—Over time, judges create new rights and destroy others

Common Law--background • Antedates U.S. Constitution • Each state has its own common law—but judges are influenced by developments in other states • At one time, MOST law in the U.S. was common law; but now: • Criminal law is entirely legislative • Many statutes, both Fed & State, intersect/overlap with common law

Common Law • Examples where judges make the law: • Tort & accident law • Determine what’s a compensable “harm” • When did someone act “negligently” • What standard should be used to determine whether products or drugs are defective? • Remedies – damages, injunctions

Common Law • Largely employed by state courts (or Fed courts interpreting state law) • Important because nearly 97% of cases are handled by STATE courts • A Legislature can change that state’s common law

More power dynamics: Legislature >Judicial branch • Complex conversations between Legislative branch & judicial branch over: • Interpreting statutes • Common law • Very difficult for the branches to “converse” over Constitutional matters • Constitutional amendment • Appointment of high level judges

“Legal Reasoning” • A judge will focus on facts of a particular dispute • She looks to previously-established common law rules • Adherence to precedent, unless precedent is no longer desirable • Look for analogiesin other areas of law, or to other legal systems • Look to broader policy goals: what effect will this rule have on society, future disputes? Legislating?

Civil Litigation: Federal Law vs. State Law CAUTION: Federal courts can hear state law claims; state courts must abide by federal law

U.S. Judicial Structure OPEN TO PUBLIC OPEN TO PUBLIC Closed to public

Introduction to the American Legal System Prof. John T. Nockleby