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'''I. Introduction'''

'''I. Introduction'''

Alexander Hamilton called the federal judiciary the “least dangerous branch” in Federalist Paper No. 78:

[[Alexander Hamilton]] called the federal judiciary the “least dangerous branch” in Federalist Paper No. 78:

:“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

:“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

What was Alexander Hamilton thinking?  The French philosopher Montesquieu, who inspired the separation of powers in our Constitution, declared that “Of the three powers [legislative, executive and judiciary], the judiciary is next to nothing.”  Spirit of Laws, Vol. I, p. 186.

What was Alexander Hamilton thinking?  The French philosopher [[Montesquieu]], who inspired the separation of powers in our Constitution, declared that “Of the three powers [legislative, executive and judiciary], the judiciary is next to nothing.”  Spirit of Laws, Vol. I, p. 186.

Were they right?  To their credit, the judiciary does lack enforcement power.  It cannot do anything by itself.  It has no army; it cannot declare war; and by itself it cannot even arrest anyone.  The judiciary cannot initiate cases on its own.  It can only decide cases brought by others before it.  It must rely entirely on the executive branch for enforcement of its decisions.

Were they right?  To their credit, the judiciary does lack enforcement power.  It cannot do anything by itself.  It has no army; it cannot declare war; and by itself it cannot even arrest anyone.  The judiciary cannot initiate cases on its own.  It can only decide cases brought by others before it.  It must rely entirely on the executive branch for enforcement of its decisions.

The judiciary has virtually no effect on foreign policy, taxes or government spending.  The judiciary does not directly affect our economy.  The federal judiciary has no role in the prosecution of most crimes, such as murder or robbery.  Those are handled in state courts.

The judiciary has virtually no effect on foreign policy, taxes or government spending.  The judiciary does not directly affect our economy.  The federal judiciary has no role in the prosecution of most crimes, such as murder or robbery.  Those are handled in state courts.

So what’s all the current fuss over the federal judiciary about?  In the past forty years, the federal courts have asserted control over many moral issues: prayer, Ten Commandments, schools, abortion, pornography, the death penalty, and so on.  Many now feel that the federal judiciary has become the most dangerous branch, and so far Congress has done nothing to check its power.

So what’s all the current fuss over the federal judiciary about?  In the past forty years, the federal courts have asserted control over many moral issues: prayer, [[Ten Commandments]], schools, abortion, pornography, the death penalty, and so on.  Many now feel that the federal judiciary has become the most dangerous branch, and so far Congress has done nothing to check its power.

'''II. The Judiciary'''

'''II. The Judiciary'''

The Judiciary Act of 1789 established a federal court system that has grown ever since.  Now it consists of 94 federal district courts, 13 federal courts of appeals, and one United States Supreme Court.

The Judiciary Act of 1789 established a federal court system that has grown ever since.  Now it consists of 94 federal district courts, 13 federal courts of appeals, and one [[United States Supreme Court]].

There are only 50 states and a few territories, so some states have more than one federal district court.  New York has four.  Illinois has three.  New Jersey has one. The Virgin Islands, a United States territory, has one federal district court.

There are only 50 states and a few territories, so some states have more than one federal district court.  New York has four.  [[Illinois]] has three.  [[New Jersey]] has one. The Virgin Islands, a United States territory, has one federal district court.

The path of a federal case is typically as follows.  A plaintiff first files a lawsuit in a federal district court.  It is assigned to a federal judge, who once was appointed by the president and confirmed by the Senate.  Federal judges do not stand for election or reelection, and serve for as long as they want.  The good news is that they are insulated from the irrational public; the bad news is that there is very little accountability.  The judges are supposed to apply the Rule of Law to the dispute before them.

The path of a federal case is typically as follows.  A plaintiff first files a lawsuit in a federal district court.  It is assigned to a federal judge, who once was appointed by the president and confirmed by the Senate.  Federal judges do not stand for election or reelection, and serve for as long as they want.  The good news is that they are insulated from the irrational public; the bad news is that there is very little accountability.  The judges are supposed to apply the Rule of Law to the dispute before them.

Not every case can be filed in federal court.  If someone is complaining about a violation of federal law, then the lawsuit may be brought in federal court.  But if the complaint is based on state law against a defendant who resides in the same state, then the federal courts lack jurisdiction.  That case must be filed in state court, where judges are typically elected.

Not every case can be filed in federal court.  If someone is complaining about a violation of federal law, then the lawsuit may be brought in federal court.  But if the complaint is based on state law against a defendant who resides in the same state, then the federal courts lack jurisdiction.  That case must be filed in state court, where judges are typically elected.

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, and trial attorneys can find friendlier state court judges).  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).

In personal injury cases, [[plaintiff]]s 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, and trial attorneys can find friendlier state court judges).  In criminal cases, [[defendant]]s typically prefer to be in state court too.  Do you know why?  (Answer: federal courts tend to favor prosecutors more than state courts do).

If the lawsuit is between citizens of different states, then the amount in dispute must be at least $75,000 to gain access to federal courts.  NOTE: THE BOOK IS WRONG BY SAYING THE MINIMUM AMOUNT IS $50,000.  But no minimum amount is required if the plaintiffs’ claim is based on federal law.

If the [[lawsuit]] is between citizens of different states, then the amount in dispute must be at least $75,000 to gain access to federal courts.  NOTE: THE BOOK IS WRONG BY SAYING THE MINIMUM AMOUNT IS $50,000.  But no minimum amount is required if the plaintiffs’ claim is based on federal law.

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.