exam 2

kozinski writes that judges exercise of power is limited to what constraints?

1. their own self respect to carry out their duty to carry out the correct decisions

2. other judges act as checks and balances on each other

3. political system rarely acts on specific cases

what does kozinski believe are the principles that dictate legal reasoning?

1. language has meaning and it can be narrow or broad

2. judges must deal squarely with precedent

3. follow you instincts but question them when you get too comfortable

what is the importance of stare decisis in legal reasoning and judicial policy making?

1. promotes stability, continuity, and certainty

2. gives the public confidence in judicial decisions

3. prevents arbitrary rule

how workable is the principle of stare decisis in judicial policy making?

very rarely is stare decisis applicable exactly as it is in every case. often precent is limited, ignored, overruled, distinguished, or extended

why is compliance not always necessarily simple and absolute?

new judicial federalism and the justices can to some extent do whatever they want

what are the major differences between grand and trial juries?

grand juries determine if there is enough evidence to go forward with a trial while trial juries determine matters of fact, guilt or innocence

what are the major differences between the use of juries at the federal and state levels?

the state level needs unanimous votes amongst their jurors while the federal juries only need a majority

what are the characteristics of juries in England?

• must be 18→70 years old

• must be registered as parliamentary or legislative elector

• the defendant can request a jury for serious crimes and a few cases of substantial civil issues

what are the characteristics of juries in france?

• must be 30+

• must be a citizen

• only allows juries at the discretion of the original court for serious crimes

what are the arguments FOR the retention of trial juries in the US?

prevents distrust of the sitting judge since they are not deciding innocence or guilt, improves the verdict since it is based off of various view points

what are the arguments AGAINST the retention of trial juries in the US?

those making the decisions are often undereducated on the law and uninterested

what are the various stages of case at civil law?

1. injury/dispute/grievance/claim filed

   1. >95% of cases end here with a settlement or are dismissed

2. commencement/pleadings

3. discovery

4. pretrial conference

5. trial

6. judgment

7. post trial

in what important respects do civil trials differ from criminal trials?

civil trials seek legal redress or personal interest and has no burden of proof while criminal trials determine questions of fact and guilt/innocence with a burden of proof and require a unanimous opinion

what are the arguments FOR alternate dispute resolution/ADR?

give disputants more control over their own personal matters, protects individuals privacy with confidential hearings, can reduce time $$$ and delay

what are the arguments AGAINST alternative dispute resolution/ADR?

can be cumbersome and slow, is not proven to reduce $$ and time, and more prone to selecting 3rd party neutrals that are biased

explain the process of deciding who writes the opinions on the SC?

if the chief justice is in the majority, they will often keep the opinion to write themselves or if they do not want it they will delegate it to someone else

if chief justice is dissenting to the majority, the next in line by seniority on the affirming side will assign the opinion

what must be taken into account when assigning the opinion to a justice?

public relations: some decisions may go over easier depending on who writes the opinion (Thurgood Marshall wrote the opinion rejecting affirmative action)

broad or narrow: if the majority is split between a broad and narrow opinion, the writer of the opinion must be careful to appease everyone, so no one switches side and they lose the majority

sometimes picking the justice in the majority who is closest to the dissenting opinion will help bring people to the majority

what type of reasoning is applied in law?

inductive reasoning

deductive reasoning

the truth of the premise guarantees the truth of the conclusion, not debatable

ex. Premise 1 all humans are mortal, Premise 2 Socrates is a human, Conclusion Socrates is mortal

inductive reasoning

the truth of the premise does NOT guarantee a conclusion, points to a probable conclusion based on past experiences

ex. Premise 1 the sun has risen in the east every day so far, Premise 2 the sun will rise tomorrow, Conclusion MIGHT BE that the sun will rise in the east tomorrow

what does the fifth amendment say about juries?

no one can be held without the approval of a grand jury

what happens at grand jury trials at the federal level?

the solicitor general puts all the govts evidence out

• no judge present

• defendant can be present but may not participate

venere

full roster of potential jurors summoned

voir dire

to speak the truth

what are peremptory challenges?

vetos that the defense/prosecution can use on members of the venere, cannot be based on race, sex, or religion; can be used for any reason so long as it is not a characteristic under the EPA

jury box

people from the venere enter one at a time to be questioned and accepted/denied

struck jury

entire venere is in the room to be questioned at once

jury

a group of ordinary people of predetermined # whom a duly constituted public official has called together for the purpose of answering a question

bench trial

judge decides guilt/innocence AND the sentencing

what are the three important differences from criminal trials?

1. state civil juries do not need to be unanimous and they vary in size

2. the only remedy is monetary

3. preponderance of the evidence (more likely than not) instead of beyond a reasonable doubt

what are the primary ways that interest groups seek to influence the judiciary?

through sponsoring groups in litigation

does the caseload crisis really pose a workload crises for the court?

no, every case is still reviewed

why is the solicitor general often referred to as the “tenth justice”?

they argue all the govt cases before the SC

what role does and should the solicitor general play in setting the SC’s agenda and determining the direction of its policy making?

they screen all prospective federal appeals and petitions and get to decide which should be taken to the SC

how do the justices participate in oral argument?

each side gets 30 minutes and they question counsel

how do most cases reach the SC?

writ of certiorari

who is the respondent and the petitioner?

winner and loser at the lower court, respectively

what is the process of filing a writ of cert?

1. petitioner writes a brief of no more than 9k words with an all white cover page

2. respondent writes a brief in response no more than 9k words with an orange cover page

3. petitioner writes a brief in response no more than 3k words with a pink ? cover page

4. law clerks read and summarize all the briefs and give them to the justices to review

5. justices discuss

6. 4/9 justices grant a writ

what is the cert pool?

7/9 justices pool their law clerks to read all the cert requests to then summarize and relay to the justices

under what circumstances is a case more likley to get granted cert?

1. 2+ circuit courts split

2. 2+ state court of last resort split

3. circuit and state court of last resort split

4. there is an important question of federal law that the SC has not ruled on yet

5. lower state court files a contradictory ruling to a past SC decision

how are interest groups involved in SC cases?

1. they sponsor cases (NAACP sponsored brown in brown v board of education)

2. they file amicus curiae “friend of the court” where they file briefs of support of one side

what is the process to oral argument after the writ of cert is granted?

1. petitioner submits a brief of merits in their favor no more than 15k words, light blue

2. respondent writes a brief in response no more than 15k words, red

3. petitioned replies no more than 6k words, yellow

4. everything is submitted and a then a date will be set for oral argument

which SC justice has sat in every single seat in the court?

harland fisk