Changes

In addition, a far greater number of cases are filed in state court each year.

In addition, a far greater number of cases are filed in state court each year.

In personal injury cases, plaintiffs often prefer to be in state rather than federal court.  Can you think of why?  (Answer: damage awards in state court tend to be higher).  In criminal cases, defendants typically prefer to be in state court too.  Do you know why?  (Answer: federal courts tend to favor prosecutors more than state courts do; acquittal rates are much higher in state court, and sentencing is often more reasonable).

In personal injury cases, plaintiffs often prefer to be in state rather than federal court.  Can you think of why?  (Answer: damage awards in state court tend to be higher).  In criminal cases, defendants typically prefer to be in state court too.  Do you know why?  (Answer: federal courts tend to favor prosecutors more than state courts do; acquittal rates are much higher in state court, and sentencing is often more reasonable).  But defendants usually do not have a choice: it is the plaintiff who chooses the court.

Suppose you are in federal district court, and you lose.  Do you have any further recourse?  Yes, you can appeal the decision to a federal court of appeals.  In New York, the Court of Appeals is the “Second Circuit”.  In New Jersey, appeals are taken to the “Third Circuit,” which covers New Jersey, Pennsylvania, Delaware and the Virgin Islands.  In Texas, federal appeals are to the “Fifth Circuit.”  The largest federal Court of Appeals is the Ninth Circuit, which covers California, Oregon, Washington, Arizona and other western states.  Congress has considered splitting it into two circuits.

 

Suppose you are in federal district court, and you lose.  Do you have any further recourse?  Yes, you can appeal the decision to a federal court of appeals.  In New York, the Court of Appeals is the “Second Circuit.” In New Jersey, appeals are taken to the “Third Circuit,” which covers New Jersey, Pennsylvania, Delaware and the Virgin Islands.  In Texas, federal appeals are to the “Fifth Circuit.”  The largest federal Court of Appeals is the Ninth Circuit, which covers California, Oregon, Washington, Arizona and other western states.  Congress has considered splitting it into two circuits.

On appeal, you will find yourself before a three-judge panel.  A vote of the majority of the three judges will decide your case.  It takes about nine months to submit legal memoranda on why you think the federal district court was wrong and hold “oral argument” before the three-judge panel.  Don’t be surprised if the judges are inattentive at oral argument, or even dosing off to catch up on some sleep!  Also, don’t be surprised if their questions seem to favor your side, but a few weeks later issue a written decision against you.  You usually have to wait weeks or a month or two for a decision. In controversial or difficult cases, it can be a year before you receive a decision.

On appeal, you will find yourself before a three-judge panel.  A vote of the majority of the three judges will decide your case.  It takes about nine months to submit legal memoranda on why you think the federal district court was wrong and hold “oral argument” before the three-judge panel.  Don’t be surprised if the judges are inattentive at oral argument, or even dosing off to catch up on some sleep!  Also, don’t be surprised if their questions seem to favor your side, but a few weeks later issue a written decision against you.  You usually have to wait weeks or a month or two for a decision. In controversial or difficult cases, it can be a year before you receive a decision.

If you lose before the federal court of appeals, then your last chance is to appeal it to the United States Supreme Court. 

If you lose before the federal court of appeals, then your last chance is to appeal it to the United States Supreme Court - with only about a 1% chance that it will accept your case.

 

 

 

The United States Supreme Court is the final authority on the law.  It accepts fewer than 100 cases a year out of 7500 or so.  The overall odds of having the Supreme Court hear your case are barely more than 1%.  Generally one side must petition the Supreme Court for a writ of certiorari (Latin meaning “to be informed of”).  Informally, this is simply known as seeking “cert.”  In the few cases that the Supreme Court agrees to hear, it “grants cert.” to review the case.

 

The main criterion for “granting cert.” is whether there is a disagreement between two or more federal courts of appeals on a legal issue.  For example, the Seventh Circuit (in Chicago) held that the phrase “under God” in the Pledge of Allegiance does not violate the First Amendment, while the Ninth Circuit (in San Francisco) recently held that it does.  This creates a sharp conflict between different areas of the country, which only the Supreme Court can resolve.  We filed a brief in support of cert. in this case, and expect a ruling very soon, perhaps even this week.

 

Another factor determining whether the Supreme Court will hear a case is its importance.  An example would be a case directly involving the president.  If the president is not involved, however, a case must be tremendously important to trigger review solely on this basis. 

 

When the Department of Justice requests that the Supreme Court accept a case, then that carries extra weight (too much extra weight, in the eyes of some).  The federal government has a special office assigned to argue cases before the Supreme Court, known as the Solicitor General’s office.  Ted Olson is our current Solicitor General in the Bush Administration.  Officially, he works for Attorney General John Ashcroft in the Department of Justice; unofficially, he often seems to do what he wants.

 

 

 

 

 

The Supreme Court held in favor of President George W. Bush to resolve the disputed election in 2000.  That was a narrow 5-4 margin, even though Republican-appointed justices hold a 7-2 majority.  In fact, many important decisions are decided on only a 5-4 basis.  The decision allowing school vouchers, whereby parents could receive vouchers from public schools to attend private schools, was by a 5-4 vote.  Polarization on the Court seems to favor razor-thin margins in decisions.

The Chief Justice’s vote is not worth more than any other Justice on the Court.  However, he does have the advantage of deciding who writes the opinion for his side in a case.  Whichever side he is on (majority or dissent), he picks the person to write the decision of his side.  In important cases, he picks himself to write it.  The most senior justice on the other side picks who writes the opinion for that side.

The Chief Justice of the United States is the person who leads the U.S. Supreme Court.  But his vote is not more than any of the other eight Justices on the Court.  However, he does have the advantage of deciding who writes the opinion for his side in a case.  Whichever side he is on (majority or dissent), he picks the person to write the decision of his side.  In important cases, he picks himself to write it.  The most senior justice on the other side then picks who writes the opinion for that side.

The infamous Roe v. Wade decision promoting abortion was by a 7-2 vote.  Court folklore is that Chief Justice Warren Burger was himself against abortion, but voted with the majority in order to be able to select the author of the opinion.  He picked Justice Blackmun, a longtime friend of his.  However, Justice Blackmun then wrote a dreadful opinion.

The infamous Roe v. Wade decision promoting abortion was by a 7-2 vote.  Court folklore is that Chief Justice Warren Burger was himself against abortion, but voted with the majority in order to be able to select the author of the opinion.  He picked Justice Blackmun, a longtime friend of his.  However, Justice Blackmun then wrote a dreadful opinion.

Each State also has its own Supreme Court to oversee the state court system.  However, its name is not always “Supreme Court.”  In New York, oddly enough, the “Supreme Court” is the lowest level, where trials are held.  The highest appellate court is the “New York Court of Appeals.”

Each State also has its own Supreme Court to oversee the state court system.  However, its name is not always “Supreme Court.”  In New York, oddly enough, the “Supreme Court” is the name for the trial (lowest) level.  The highest appellate court is the “New York Court of Appeals.”

 

 

 

 

Most cases in federal court are “civil” disputes, whereby the government or a private party brings non-criminal charges against a defendant.  Commercial disputes and claims of personal injury are the vast majority of these cases.  [I highly doubt this is true; I would say (although I don't have any evidence) that debt collection claims, eviction controversies, and other small claims would be far more frequent, which explains why there are special small claims courts for handling these types of cases.  In addition, I think family law, bankruptcy, and employment discrimination cases make up a substantial portion of the courts' caseload.  [[User:GregG|GregG]] 00:02, 13 October 2012 (EDT)]  Often they require many years and much legal fees before resolution.  Rarely do the parties recover more than they spent in attorneys fees.  However, although the general American rule is that parties are responsible for their own attorney's fees, certain laws (such as civil rights laws) allow for a prevailing party to recover attorneys fees from the opponent.

Most cases in federal court are “civil” disputes, whereby the government or a private party brings non-criminal charges against a defendant.  Commercial disputes and claims of personal injury are the vast majority of these cases.  [I highly doubt this is true; I would say (although I don't have any evidence) that debt collection claims, eviction controversies, and other small claims would be far more frequent, which explains why there are special small claims courts for handling these types of cases.  In addition, I think family law, bankruptcy, and employment discrimination cases make up a substantial portion of the courts' caseload.  [[User:GregG|GregG]] 00:02, 13 October 2012 (EDT)]  Often they require many years and much legal fees before resolution.  Rarely do the parties recover more than they spent in attorneys fees.  However, although the general American rule is that parties are responsible for their own attorney's fees, certain laws (such as civil rights laws) allow for a prevailing party to recover attorneys fees from the opponent.

It’s best to stay off the slippery slope.

It’s best to stay off the slippery slope.

“Stare decisis” means “to stand by that which was decided.”  For judges, it means they should decide similar cases in a similar manner.  When a precedent is established, “stare decisis” means courts should abide by it.  For the Supreme Court, “stare decisis” means it should adhere to its prior rulings.

“Stare decisis” means “to stand by that which was decided.”  For judges, it means they should decide similar cases in a similar manner.  When a precedent is established, “stare decisis” means courts should abide by it.  For the Supreme Court, “stare decisis” means it should adhere to its prior rulings.

In 1992, the Supreme Court had an opportunity to overturn its Roe v. Wade decision, which earlier declared a new constitutional right to abortion.  But Justice Kennedy cast the deciding fifth vote against overturning it, saying that stare decisis compelled him to be consistent with Roe v. Wade.  However, last June, Justice Kennedy wrote a decision in favor of gay rights that expressly overturned a decision in 1986.

In 1992, the Supreme Court had an opportunity to overturn its Roe v. Wade decision, which earlier declared a new constitutional right to abortion.  But Justice Kennedy cast the deciding fifth vote against overturning it, saying that stare decisis compelled him to be consistent with Roe v. Wade.  However, last June, Justice Kennedy wrote a decision in favor of gay rights that expressly overturned a decision in 1986.

Do you think stare decisis should prevent the Court from overturning Roe v. Wade?

Do you think stare decisis should prevent the Court from overturning ''Roe v. Wade''?

== Homework ==

== Homework ==