Exam 1 Questions

what is the moral of saxes poem?

the parts make up the whole

how does saxe’s poem apply to the nature of the law?

we all have different experiences that shape how we view the law

jurisprudence

theory of law, philosophy of law

what did werner heisenberg mean when he said “What we observe is not nature in itself, but nature exposed to our method of questioning”

what we see and experience is not objectively what the “thing” is, but what the “thing” is when subjected to our own bias and viewpoints

what are the salient characteristics of common and civil law legal systems?

common law legal systems are benchmade (by justices and judges) and civil law is barmade (by legislators and legislative bodies)

operationally, how do common and civil law legal systems differ?

common law is uncodified, has totality, and the capacity to sustain change while civil law is codified, clearcut, and has applicability

what countries have civil law legal systems?

continental europe, russia, latin america some african nations; wherever the roman empire took over

what countries have common law legal systems?

UK, india, australia, canada; wherever the british empire went

what are the differences between natural law and legal positivism?

legal positivism is the thought that law only creates the obligation to obey because the law is the command of a sovereign body while natural law is the law binded onto humans even in the absence of any positive law or sovereign bodies, its the higher order so to speak

how did the legal realists challenge legal positivism?

legal realists saw lawmakers as acting on “hunches”

what is blackstones declaratory theory?

he believed in legal positivism, his theory was that judges were the depositories of the law and were oath-bound to make decisions according to the law, not their own private thoughts

who has the most accurate description of the jduges task in america today?

oliver wendell homes or bejamin cardozo

what is judicial federalism and why is ti an important but overlooked party principle of american federalism?

judicial federalism is the distribution of power between national and subordinate judiciaries which is the core of the american government, a system of checks and balances to ensure one government doesnt have too much power

according to AIII SII, what are teh two types of federal jurisdiction?

original and appellate

what is the structure of the lower federal courts in the US?

94 district courts with 13 districts → 13 courts of appeals → supreme court

what are the primary differences between trial and appellate courts?

trial courts deal with determining information while appellate courts deal with correcting legal mistakes

what is the structure of the state courts in the US?

in general:

trial courts → intermediate appellate → state supreme courts

but EACH STATE DECIDES FOR ITSELF

per justice brennan, what is the important and highly significant development for constitutional jurisprudence and for federalism that emerged in the third quarter of the twentieth century? what was brennans theory?

more and more states are creating their own constitutional counterparts of the provisions of the BoR to gurantee their citizens more freedoms and rights than are protected by the federal government

in what ways are modern federal-state court relatives changing and with what consequences for legal policy?

states are increasingly “doing their own thing” and we are seeing state court rulings that go against the supreme court’s rulings on similar/same issues

historically, what are the two main methods sued for selecting state judges?

elections and appointments

what are the advantages and disadvatnages of elections for selecting judges?

Advant

• more democratic

• more people get a say

Disadvant.

• those voting could be misinformed and disinterested

• judge would need $$ to run a campaign, making them beholden to those rich people

• open to corruption

what are the advantages and disadvantages of appointing judges?

advant.

• specific person to blame when the judge sucks

• more palatable to the electorate since in theory judge is chosen by someone who is knowledgeable

disadvant.

• judge might be beholden to governor/whoever appointed them

• open to corruption

what is the significance of the supreme court decision in Republican Party of Minnesota vs White (2002)?

decided that the announce clause violated the first amendment

what was the announce clause?

announce clause prohibited any candidates for judicial office from announcing their views on disputed legal or political issues

what are the constitutional and standard qualifications for a federal judgeship?

there are no constitutional qualifications for a judgeship, standard requires LL.B or J.D

what is the process by which federal judges are selected?

president nominates someone to the senate and then the nominee is accepted with a simple majoirty

who are the chief players in the process of selecting federal judges?

president (typically advised by attorney general, deputy AG, DoJ, white house counsel), senate judiciary committee, home state senator, aba committee on federal judiciary

how does senatorial courtesy and the ABA influence the process of selecting a federal judge?

blue slip system- a blue slip of paper is mailed to the nominees home-state senator asking for their approval of the nominee, if they return the paper they approve if they keep it they dont. its essentially a one person veto system

ABA- 15 person committee that evaluates the qualifications of persons considered for appointment and at the end of a 6→8 week investigation return with a rating of well qualified/WQ, Q, or NQ

what are the broad considerations regarding recruitment for vacant judgeships?

1. objective merit/personal competence

2. personal friendship/party faithful

3. political + ideological companionship

4. compatibility with the senate

why are presidents effects to pack the supreme court only partially successful?

some people/justices do genuinely have the mindset that they are objectively interpreting the consitution and leave all bias out of it OR future presidential appointments will come in and cancel out whatever the other one did

how + why have presidents differed in their judicial recruitment policies?

there are three types of classic appointments: classic democratic, bipartisan approach, and republican ideological judicial selection

classic democratic model

rewarding friends and party faithful, gives little consideration to pursuing presidential party agendas

FDR, Truman, JFK, Johnson

bipartisan approach

emphasizes the nominee’s competence with some attention to rewarding party faithful and achieving symbolic representation

Obama, Eisenhower, Ford, Clinton

republican ideological judicial selection

appointments were viewed as symbols/instruments of presidential power, ideological + political goals are the top priorities, rare attention was given to representative or rewarding party faithful

Trump, Bush I, Bush II, Reagan

what determines the senates role in the appointment of federal judges?

the constitution, AIII

why might the senate reject a judicial nominee?

1. senate opposed the president

2. nominees’ involvement with a visible/well know issue of public policy/politics

3. senate wants to oppose the record of the incumbent that the nominee may have supported

4. senatorial courtesy

5. they perceive “political unreliability” in the nominee

6. lack of qualification/abilities in the nominee

7. concern about sustained opposition by groups

8. senate fears that the nominee would drastically change the courts jurisprudential line up

how do techniques of training and selecting judges differ in england and france?

• in england, judges are typically chosen from silks (elite barristers, the Kings Counsel) by the Lord Chancellor after passing the bar examinations

• in france, judges are selected from students of the law that got into postgraduate school (national school for jurists) including 11 months lecture, 17 months practical, and 2 months pre-appointment training

what two guarantees of judicial independence are granted in AII SI?

SC justices shall preside during “good behavior” and their salaries cannot be lowered

what is the process by which federal judge may be removed from office by congress?

impeachment in the house (simple majority) and convicted in the senate (2/3rd majority)

O’Brien writes of supreme court justices “removal from office has never been a serious threat.” why is that so? what are the political difficulties of doing so?

• the process of impeachment and conviction is lengthy and people move on

• the constitution is vague as to what actually qualifies as impeachable behavior

how do states deal with matters of tenure, compensation, and removal?

EACH STATE DECIDES FOR ITSELF!!!!!!!!!!!!!!!!

what can be said of Biden’s “judicial legacy”?

he was very diverse and focused on representative appointments

how does biden “judicial legacy” compare to those of previous administrations?

he and trump have the same # of appointments

he and obama were both the most diverse appointments

Pre Tobias, what do nominations of Ryan Park and Emil Bove tell us about adherence to—or alterations of—longstanding judicial selection conventions?

we are doing away with the longstanding judicial selection conventions

what implications for judicial nominations can be extracted for, the increasingly contentions and extremely partisan nomination and confirmation process?

confirmation processes become more combative and less functional

what is legal positivism?

judges cannot be influenced by their own thoughts/feelings, the interpretation of the laws falls on teh legislature

what is legal realism?

the laws are made through commons sense and practical interpretations, takes into account lived experience

what was the missouri plan?

merit based selection where the chief justice of the state supreme court, three governor appointed randos, and three bar appointed lawyers all create a short list of three nominees for the governor to pick from to appoint

what justice was appointed via objective merit?

scalia

what justice was appointed via personal friendship?

abe fortas by lbj, horace lorta by taft

what justice was appointed via representation?

relgiion (roger tarey catholic, louis brandeis jewish)

sex (sandra day o’connor)

race (thurgood marshall)

what justice was appointed via political and ideological compatibiltiy?

amy Conan barret

what are the characteristics of common law?

uncodified, capacity to sustain change, always becoming more just, judge made, based on precedent, judge is not different from lawyer, accusatorial court room, judicial review

what are the characteristics of civil law?

codified, clearcut, applicability, , judge and lawyer are two distinct professions, inquisitorial courtrooms, law is legislature made, no judicial review

in what cases is there exclusive federal jurisdiction?

1. suits between two or more states

2. violation of federal law

3. all bankruptcy proceedings

4. cases including foreign ambassadors

where is there concurrent jurisdiction between the state and federal courts?

1. matters of the constitution

2. matters of treaties

3. US is party to the suit

4. between citizens of different states

5. between citizens of the same state claiming land ownership in two or more states

6. admiralty/maritime law

what is subject matter jurisdiction for the federal courts?

matters involving the constitution, a federal law, a treaty, or admiralty/maritime law

what is party jurisdiction for the federal courts?

US is party to the suit, suits between citizens of different states, cases involving foreign ambassadors, citizens of the same state are claiming land ownership in two or more states

what part of the constitution explains the federal courts jurisdiction?

AIII SII CI

what is new judicial federalism?

state courts are not required to determine cases in lockstep with the federal courts

why would the senate not confirm a federal nominee?

1. opposition to the president

2. nominee is involved with controversial and public political issues

3. nominee supports a ruling the senate does not

4. nominee is fickle in their political affiliation

5. nominee lacks qualifications

6. nominee would significantly change the structure of the court

7. there is a sustained opposition by interest group