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

[[Alexander Hamilton]] called the [[federal]] [[judiciary]] the “least dangerous [[branch]]” in [[Federalist Papers]] 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 [[politics|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 [[France|French]] [[philosopher]] [[Montesquieu]], who inspired the [[separation of powers]] in our [[Constitution]], declared that “Of the three [[power]]s [[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 [[case]]s on its own.  It can only decide [[case]]s 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 [[crime]]s, such as [[murder]] or [[robbery]].  Those are handled in [[state]] [[court]]s.

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 [[crime]]s, such as [[murder]] or [[robbery]].  Those are handled in [[state]] [[court]]s.

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]], [[school]], [[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 [[year]]s, the [[federal courts]] have asserted control over many [[moral]] [[issue]]s: [[prayer]], [[Ten Commandments]], [[school]], [[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 [[court]]s 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]] [[court]]s of [[appeal]]s, and one [[United States Supreme Court]].

There are only 50 [[state]]s and a few territories, so some [[state]]s 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 [[state]]s and a few territories, so some [[state]]s 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 [[judge]]s 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 [[judge]]s are supposed to apply the Rule of Law to the disputes 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]] [[judge]]s do not stand for [[election]] or re[[election]], 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 [[judge]]s are supposed to apply the [[Rule of Law]] to the disputes 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 court]]s lack [[jurisdiction]].  That case must be filed in [[state court]], where [[judge]]s 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 court]]s lack [[jurisdiction]].  That [[case]] must be filed in [[state]] [[court]], where [[judge]]s are typically elected.

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 [[attorney]]s can find friendlier [[state]] [[court]] [[judges]]).  In criminal [[case]]s, [[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).

In [[human being|person]]al injury [[case]]s, [[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]] [[attorney]]s can find friendlier [[state]] [[court]] [[judge]]s).  In [[criminal]] [[case]]s, [[defendant]]s typically prefer to be in [[state]] [[court]] too.  Do you know why?  (Answer: [[federal]] [[court]]s tend to favor [[prosecutor]]s more than [[state]] [[court]]s do).

If the [[lawsuit]] is between citizens of different [[state]]s, then the amount in dispute must be at least $75,000 to gain access to [[federal court]]s.  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 [[citizen]]s of different [[state]]s, then the amount in dispute must be at least $75,000 to gain access to [[federal court]]s.  NOTE: THE BOOK IS WRONG BY SAYING THE MINIMUM AMOUNT IS $50,000.  But no minimum amount is required if the [[plaintiff]]s’ 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 [[Appeal]]s is the “Second [[Circuit Court|Circuit]]”.  In [[New Jersey]], [[appeal]]s are taken to the “Third [[Circuit Court|Circuit]],” which covers [[New Jersey]], [[Pennsylvania]], [[Delaware]] and the [[Virgin Islands]].  In [[Texas]], [[federal]] [[appeal]]s are to the “Fifth [[Circuit Court|Circuit]].”  The largest [[federal]] [[United States Court of Appeals|Court of Appeals]] is the Ninth [[Circuit Court|Circuit]], which covers [[California]], [[Oregon]], [[Washington]], [[Arizona]] and other western [[state]]s.  [[Congress]] has considered splitting it into two [[circuit]]s.

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 [[month]]s 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 [[week]]s 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 [[judge]]s will decide your [[case]].  It takes about nine [[month]]s to submit legal [[memorandum|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 [[judge]]s are inattentive at oral argument, or even [[dosing]] off to catch up on some sleep!  Also, don’t be surprised if their [[question]]s seem to favor your side, but a few weeks later issue a written [[decision]] against you.  You usually have to wait [[week]]s or a [[month]] or two for a [[decision]]. In controversial or difficult [[case]]s, 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]].   

==III. The [[United States Supreme Court]]==

==III. The [[United States Supreme Court]]==

The [[United States]] [[Supreme Court]] is the final authority on the [[law]].  It accepts fewer than 100 [[case]]s 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 [[United States]] [[Supreme Court]] is the final authority on the [[law]].  It accepts fewer than [[powers of ten|100]] [[case]]s 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 [[case]]s 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]] [[court]]s 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.  The Supreme Court overturned the [[Ninth Circuit]] decision on procedural grounds, postponing for a future case a resolution on the merits of the dispute.

The main criterion for “granting [[Certiorari|cert]].” is whether there is a disagreement between two or more [[federal]] [[court]]s of [[appeal]]s on a legal [[issue]].  For example, the Seventh [[Circuit Court|Circuit]] (in [[Chicago]]) held that the phrase “under [[God]]” in the [[Pledge of Allegiance]] does not violate the [[First Amendment]], while the Ninth [[Circuit Court|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 [[Certiorari|cert.]] in this [[case]].  The [[Supreme Court]] overturned the [[Ninth Circuit]] [[decision]] on [[procedure|procedural]] grounds, postponing for a future [[case]] a [[resolution]] on the merits of the dispute.

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.   

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.

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 [[case]]s 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 nine [[Justice]]s on the current [[Supreme Court]] were appointed as follows:

The nine [[Justice]]s on the current [[Supreme Court]] were appointed as follows:

by [[President]] [[Ford]]: Justice [[John Paul Stevens]]

by [[President]] [[Gerald Ford|Ford]]: [[Justice]] [[John Paul Stevens]]

by [[President]] Carter: no one

by [[President]] [[Jimmy Carter|Carter]]: no one

by [[President]] [[Reagan]]: Justices O’Connor, Scalia and Kennedy

by [[President]] [[Ronald Wilson Reagan|Reagan]]: [[Justice]]s [[Sandra Day O'Connor|O'Connor]], [[Antonin Scalia|Scalia]] and [[Anthony Kennedy|Kennedy]]

by the first [[President]] [[Bush]]: Justices Souter and Thomas

by the first [[President]] [[George H. W. Bush|Bush]]: [[Justice]]s [[David Souter|Souter]] and [[Clarence Thomas|Thomas]]

by [[President]] [[Clinton]]: Justices Ginsburg and Breyer

by [[President]] [[Bill Clinton|Clinton]]: [[Justice]]s [[Ruth Bader Ginsburg|Ginsburg]] and [[Stephen Breyer|Breyer]]

by President [[George W. Bush]]: Chief Justice [[John Roberts]] and Justice [[Sam Alito]]

by President [[George W. Bush]]: [[Chief Justice]] [[John Roberts]] and [[Justice]] [[Sam Alito]]

Politically, the Court has 4 conservatives (Roberts, Scalia, Thomas and Alito), 4 liberals (Stevens, Souter, Ginsburg and Breyer) and 1 “moderate” (Kennedy).

Politically, the [[Supreme Court|Court]] has 4 [[conservative]]s ([[John Roberts|Roberts]], [[Antonin Scalia|Scalia]], [[Clarence Thomas|Thomas]] and [[Sam Alito|Alito]]), 4 [[liberal]]s ([[John Paul Stevens|Stevens]], [[David Souter|Souter]], [[Ruth Bader Ginsburg|Ginsburg]] and [[Stephen Breyer|Breyer]]) and 1 “moderate” ([[Anthony Kennedy|Kennedy]]).

The [[Court]] has forged an enduring majority on issues of [[federalism ]](returning power to states), [[free speech]] (expanding free speech protections) and [[school vouchers]].  The [[Court]] has also recently reduced [[intolerance]] towards [[religion]], allowing [[prayer]] groups as after-school activities.

The [[Court]] has forged an enduring [[majority]] on [[issue]]s of [[federalism ]](returning [[power]] to [[state]]s), [[free speech]] (expanding [[freedom of speech]] protections) and [[school vouchers]].  The [[Court]] has also recently reduced [[intolerance]] towards [[religion]], allowing [[prayer]] groups as after-[[school]] activities.

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

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]]’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 [[human being|person]] to write the [[decision]] of his side.  In important [[case]]s, he picks himself to write it.  The most senior [[justice]] on the other side 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 [[vote]]d with the majority in order to be able to select the author of the opinion.  He picked [[Justice]] [[Harry Blackmun|Blackmun]], a longtime friend of his.  However, [[Justice]] [[Harry Blackmun|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 lowest level, where [[trial]]s are held.  The highest [[appellate court]] is the “[[New York]] [[United States Court of Appeals|Court of Appeals]].”

NOTE: The book misspelled current Supreme Court Justice Ruth Bader Ginsburg’s name.

NOTE: The [[book]] misspelled current [[Supreme Court]] [[Justice]] Ruth Bader Ginsburg’s name.

==IV. One’s “Day in Court”.==

==IV. One’s “Day in Court”.==

I have personally litigated numerous [[case]]s over the past ten years.  Before long, it became  painfully clear to me that both sides in litigation are typically worse off at its end of litigation than at the beginning.  In other words, litigation is usually a lose-lose proposition for both sides.  So why are so many lawsuits filed?

I have [[human being|person]]ally [[litigation|litigated]] numerous [[case]]s over the past ten [[year]]s.  Before long, it became  painfully clear to me that both sides in [[litigation]] are typically worse off at its end of [[litigation]] than at the beginning.  In other words, [[litigation]] is usually a lose-lose [[proposition]] for both sides.  So why are so many [[lawsuit]]s filed?

[[Criminal]] cases are, of course, viewed as necessary to punish wrongdoing and deter [[crime]].  This is certainly true in [[state]] [[court]], where crimes like [[murder]] are [[prosecute]]d.  In [[federal]] [[court]] it is less clear.  Since 9/11, we have been told that federal agents are looking for and catching terrorists.  Yet not a single person has been convicted of any [[crime]] in connection with [[9/11]].   

[[Criminal]] [[case]]s are, of course, viewed as necessary to punish wrongdoing and deter [[crime]].  This is certainly true in [[state]] [[court]], where crimes like [[murder]] are [[prosecute]]d.  In [[federal]] [[court]] it is less clear.  Since [[9/11]], we have been told that [[federal]] agents are looking for and catching [[terrorist]]s.  Yet not a single [[human being|person]] has been convicted of any [[crime]] in connection with [[9/11]].   

In fact, a federal judge recently ruled against the [[government]] in its prosecution of the alleged 20th terrorist, [[Zacarias Moussaoui]].  He says he is a member of al-Qaeda but knew nothing about the attacks.  He seeks to prove his innocence by having his attorney question several key al-Qaeda prisoners.  When the [[government]] refused to allow this, the [[judge]] recently decided that he cannot be prosecuted for being involved in [[9/11]].

In fact, a [[federal]] [[judge]] recently ruled against the [[government]] in its [[prosecution]] of the [[allegation|alleged]] 20th [[terrorist]], [[Zacarias Moussaoui]].  He says he is a member of [[al-Qaeda]] but knew nothing about the [[9/11|attack]]s.  He seeks to prove his innocence by having his [[attorney]] [[question]] several key [[al-Qaeda]] [[prison]]ers.  When the [[government]] refused to allow this, the [[judge]] recently decided that he cannot be [[prosecute]]d for being involved in [[9/11]].

The [[government]] is not prosecuting any other citizens for the [[9/11]] attack itself.  Instead, the vast majority of federal prosecutions concern [[immigration]] and [[drugs]].  High publicity cases include the [[prosecution]] of executives like [[Martha Stewart]].  Sometimes [[congress]]men are prosecuted, like the former Chairman of the powerful Ways and Means Committee, [[Dan Rostenkowski]].  He was convicted but [[President]] [[Clinton]] later pardoned him.

The [[government]] is not [[prosecution|prosecuting]] any other [[citizen]]s for the [[September 11, 2001 attacks|attack]] itself.  Instead, the vast [[majority]] of [[federal]] [[prosecution]]s concern [[immigration]] and [[drugs]].  High publicity [[case]]s include the [[prosecution]] of [[executive]]s like [[Martha Stewart]].  Sometimes [[congressman|congressmen]] are prosecuted, like the former [[Chairman]] of the [[power]]ful Ways and Means Committee, [[Dan Rostenkowski]].  He was convicted but [[President]] [[Bill Clinton|Clinton]] later [[pardon]]ed him.

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.  Often they require many years and much legal fees before resolution.  Rarely do the parties recover more than they spent in [[attorney]]s fees.  Why do they bother?

Most [[case]]s in [[federal]] court are “civil” disputes, whereby the [[government]] or a private party brings non-[[criminal]] charges against a [[defendant]].  [[Commerce|Commercial]] disputes and claims of [[human being|person]]al injury are the vast [[majority]] of these [[case]]s.  Often they require many [[year]]s and much legal fees before [[resolution]].  Rarely do the [[party|parties]] recover more than they spent in [[attorney]]s fees.  Why do they bother?

Americans do this because they like their “day in court.”  In the old days, someone who felt he was wronged would challenge his opponent to a duel.  Within days they would meet at dawn somewhere and try to kill each other, often leaving one dead.  That practice was stopped by prosecuting the person who survived for murder.  Now this type of dispute is resolved by one person suing the other.  Win or lose, at the end they feel received their “day in court” to vent their grievance.

[[American]]s do this because they like their “[[day]] in [[court]].”  In the old [[day]]s, someone who felt he was wronged would challenge his opponent to a [[dueling|duel]].  Within [[day]]s they would meet at dawn somewhere and try to kill each other, often leaving one [[death|dead]].  That practice was stopped by [[prosecute|prosecuting]] the [[human being|person]] who survived for [[murder]].  Now this type of dispute is resolved by one [[human being|person]] suing the other.  Win or lose, at the end they feel received their “[[day]] in [[court]]” to vent their [[grievance]].

==V. Trial [[Judge]]s==

==V. [[Trial]] [[Judge]]s==

When you receive your day in court, you appear before a “[[trial judge]].”  He is all-powerful in the [[courtroom]], operating as [[king]] and [[dictator]].  And he may remind you of that frequently.

When you receive your [[day]] in [[court]], you appear before a “[[trial]] [[judge]].”  He is [[omnipotence|all-powerful]] in the [[courtroom]], operating as [[king]] and [[dictator]].  And he may remind you of that frequently.

His job is not as easy as it looks.  Two opposing parties both insist that they are right, and he has to decide.  King [[Solomon]] became famous for his wisdom when he was confronted by two women and an infant boy, each woman claiming to be the infant’s mother.  How would you decide?  How did King [[Solomon]] decide?

His [[job]] is not as easy as it looks.  Two opposing parties both insist that they are right, and he has to decide.  [[King]] [[Solomon]] became famous for his [[wisdom]] when he was confronted by two [[women]] and an infant boy, each [[women|woman]] claiming to be the infant’s [[mother]].  How would you decide?  How did [[King]] [[Solomon]] decide?

From 1 Kings 3:23-28:

From 1 [[King]]s 3:23-28:

:... the king said, "The one says, "This is my son that is alive, and your son is dead'; while the other says, "Not so! Your son is dead, and my son is the living one.' " 24 So the king said, "Bring me a sword," and they brought a sword before the king. 25 The king said, "Divide the living boy in two; then give half to the one, and half to the other." 26 But the woman whose son was alive said to the king—because compassion for her son burned within her—"Please, my lord, give her the living boy; certainly do not kill him!" The other said, "It shall be neither mine nor yours; divide it." 27 Then the king responded: "Give the first woman the living boy; do not kill him. She is his mother." 28 All Israel heard of the judgment that the king had rendered; and they stood in awe of the king, because they perceived that the wisdom of God was in him, to execute justice.  

:... the [[king]] said, "The one says, "This is my [[son]] that is alive, and your [[son]] is [[death|dead]]'; while the other says, "Not so! Your [[son]] is [[death|dead]], and my [[son]] is the living one.' " 24 So the [[king]] said, "Bring me a sword," and they brought a sword before the [[king]]. 25 The [[king]] said, "Divide the living boy in two; then give half to the one, and half to the other." 26 But the [[women|woman]] whose [[son]] was alive said to the [[king]]—because compassion for her [[son]] burned within her—"Please, my lord, give her the living boy; certainly do not [[murder|kill]] him!" The other said, "It shall be neither mine nor yours; divide it." 27 Then the [[king]] responded: "Give the first [[women|woman]] the living boy; do not [[murder|kill]] him. She is his [[mother]]." 28 All [[Israel]] heard of the [[judgment]] that the [[king]] had rendered; and they stood in awe of the [[king]], because they perceived that the [[wisdom]] of [[God]] was in him, to [[execute]] [[justice]].  

Many judges today tend to compromise, something [[Solomon]] would not do.  Juries will often compromise also, giving each side half of what it asked for.  This does not guarantee justice, because one side may be completely wrong.  If a defendant is innocent, then he should not be convicted on half of the charges.  If one side asks for two or ten times as much as it should, then compromising does not achieve a just result.

Many [[judge]]s today tend to compromise, something [[Solomon]] would not do.  [[jury|Juries]] will often compromise also, giving each side half of what it asked for.  This does not guarantee [[justice]], because one side may be completely wrong.  If a [[defendant]] is innocent, then he should not be convicted on half of the charges.  If one side asks for two or ten times as much as it should, then compromising does not achieve a just result.

What kind of [[judge]] would you be?

What kind of [[judge]] would you be?

==VI. [[Appellate]] [[Judge]]s==

==VI. [[Appellate]] [[Judges]]==

[[Appellate]] [[judge]]s have a very different job from trial judges.  The appellate judges must establish rules that render justice in the case before them, and in all other cases having similar facts.  They need to look beyond the dispute at hand and anticipate justice in future disputes also.

[[Appellate]] [[judge]]s have a very different job from [[trial]] [[judge]]s.  The [[appellate]] [[judge]]s must establish rules that render [[justice]] in the [[case]] before them, and in all other [[case]]s having similar facts.  They need to look beyond the dispute at hand and anticipate [[justice]] in [[future]] disputes also.

A classic problem is the “[[slippery slope]].”  That is what happens when someone steps onto a very slippery incline: they slide all the way down to the undesired bottom.  An example in life is when someone takes [[illegal drugs]] for the first time.  They are stepping on a [[slippery slope]] that will ruin their lives.  [[Addiction]] results from the first use, and they soon slide to the bottom of society.

A classic [[problem]] is the “[[slippery slope]].”  That is what happens when someone steps onto a very slippery incline: they slide all the way down to the undesired [[bottom]].  An example in life is when someone takes [[illegal]] [[drugs]] for the first time.  They are stepping on a [[slippery slope]] that will ruin their lives.  [[Addiction]] results from the first use, and they soon slide to the [[bottom]] of [[society]].

In the law, the [[slippery slope]] is when a court makes an exception that invites many more exceptions like it.  Or when a court creates a new [[constitution]]al right that invites many more new [[right]]s like it.

In the [[law]], the [[slippery slope]] is when a [[court]] makes an [[exception]] that invites many more [[exception]]s like it.  Or when a [[court]] creates a new [[constitution]]al [[rights|right]] that invites many more new [[right]]s like it.

An example is when “[[free speech]]” protection was extended to obscenities.  In one case, a [[Vietnam]] protester wore a jacket in a [[courtroom]] that had an obscene word written on it, in reference to the draft.  He was convicted for disturbing the peace and he appealed his case all the way to the U.S. [[Supreme Court]].  He ultimately won on [[free speech]] grounds.  But once one protects obscenity as free speech, it became a slippery slope.  Once one obscenity is protected, then other obscenities inevitably follow?

An example is when “[[free speech]]” protection was extended to obscenities.  In one [[case]], a [[Vietnam]] protester wore a [[jacket]] in a [[courtroom]] that had an obscene word written on it, in reference to the [[draft dodging|draft]].  He was convicted for disturbing the [[peace]] and he [[appeal]]ed his [[case]] all the way to the U.S. [[Supreme Court]].  He ultimately won on [[free speech]] grounds.  But once one protects obscenity as [[free speech]], it became a [[slippery slope]].  Once one obscenity is protected, then other obscenities inevitably follow?

This can also be seen in the [[Establishment Clause]] cases, such as the [[Ten Commandments]] case.  Some feel that Judge [[Roy Moore]] should have removed the [[Ten Commandments]] from the [[Alabama]] [[Supreme Court]].  Though supportive of [[religion]], they feel that a few citizens might have been offended by the display.  But that argument becomes a slippery slope.  Where does the purging of religion from public life stop?  Its logic requires purging all religious references from public life: “[[In God We Trust]]” from our coins, and “under [[God]]” from our pledge of allegiance.  Before long, society slides down to the bottom of the hill, and hostility to [[religion]] has triumphed.

This can also be seen in the [[Establishment Clause]] [[case]]s, such as the [[Ten Commandments]] [[case]].  Some feel that [[Judge]] [[Roy Moore]] should have removed the [[Ten Commandments]] from the [[Alabama]] [[Supreme Court]].  Though supportive of [[religion]], they feel that a few [[citizen]]s might have been offended by the display.  But that argument becomes a [[slippery slope]].  Where does the purging of [[religion]] from public life stop?  Its [[logic]] requires purging all [[religious]] references from public life: “[[In God We Trust]]” from our coins, and “under [[God]]” from our [[Pledge of Allegiance|pledge of allegiance]].  Before long, [[society]] slides down to the [[bottom]] of the hill, and hostility to [[religion]] has triumphed.

It’s best to stay off the [[slippery slope]].

It’s best to stay off the [[slippery slope]].

==VII. “[[Stare decisis|Stare Decisis]]”==

==VII. “[[Stare decisis|Stare Decisis]]”==

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

In fact, the [[Supreme Court]] often changes its mind.  In 1940, it held that a [[Jehovah's Witnesses|Jehovah's Witness]] can be forced to say the [[Pledge of Allegiance]] against his religion.  Two years later, in 1943, the [[Supreme Court]] reversed itself and said no one should be forced to violate their own [[religious]] beliefs like that.  In other cases, the [[Supreme Court]] has even reversed itself within a year.

In fact, the [[Supreme Court]] often changes its mind.  In 1940, it held that a [[Jehovah's Witnesses|Jehovah's Witness]] can be forced to say the [[Pledge of Allegiance]] against his [[religion]].  Two [[year]]s later, in 1943, the [[Supreme Court]] reversed itself and said no one should be forced to violate their own [[religious]] beliefs like that.  In other [[case]]s, the [[Supreme Court]] has even [[reverse]]d itself within a [[year]].

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 [[constitution]]al [[rights|right]] to [[abortion]].  But [[Justice]] [[Anthony Kennedy|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]] [[Anthony Kennedy|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]]

==VIII. Issues==

==VIII. Issues==

1. Recently a student wore a T-shirt to public school that depicted President Bush as a terrorist.  The school authorities told him he could not wear that shirt.  He went to court asserting his free speech rights.  Who should win?

1. Recently a student wore a T-shirt to public school that depicted [[President]] [[George W. Bush|Bush]] as a [[terrorist]].  The [[school]] authorities told him he could not wear that shirt.  He went to [[court]] asserting his [[free speech]] [[rights]].  Who should win?

2. Do you think the alleged “20th hijacker,” Zacarias Moussaoui, should be able to question key al-Qaeda members to prove his innocence concerning the 9/11 attack?

2. Do you think the [[allegation|alleged]] “20th hijacker,” Zacarias Moussaoui, should be able to [[question]] key [[al-Qaeda]] members to prove his innocence concerning the [[September 11, 2001 attacks|9/11 attack]]?

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

3. Do you think “[[stare decisis]]” should prevent the [[Court]] from overturning [[Roe v. Wade]]?

4. Do you think that people should be required to obey court orders that are unconstitutional?

4. Do you think that people should be required to obey [[court]] orders that are [[unconstitutional]]?

[[category:Homeschool Curriculum]]

[[category:Homeschool Curriculum]]