The Judicial Process

2
From Christopher P. Banks:

To my parents, Richard and Frances Banks, and my family, Diane, Zachary, and Samantha.

From David M. O’Brien:

Mr. and Mrs. Ralph O’Brien; Claudine O’Brien; and Benjamin, Sara, and Talia.

3
4
The Judicial Process
Law, Courts, and Judicial Politics

Christopher P. Banks
Kent State University
David M. O’Brien
University of Virginia

5
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7
Contents
Tables and Figures
Preface
PART 1. LAW AND POLITICAL JURISPRUDENCE IN A GLOBALIZED
SOCIETY
1. The Politics of Law and Courts in Society
Legal Systems
Civil Law
In Comparative Perspective: Major Global Legal Systems
Common Law
Ideological Legal Systems
Religious Legal Systems
Customary and “Mixed” Legal Systems
Legal Systems and Globalization
The Nature and Sources of Law
Public Law
Constitutional Law
Administrative Law
Criminal Law
Private Law
Contract Law
Tort Law
The Role of Courts in Contemporary Society
Mediators of Conflict
Creators of Legal Expectations
Contemporary Controversies Over Courts: The Dispute Pyramid
Guardians of Individual and Minority Rights
Therapeutic (Problem-Solving) Agents
Policymakers
Chapter Summary
Key Questions for Review and Critical Analysis
Web Links
Selected Readings
2. The Politics of Law and Jurisprudence
Classical Theories of Jurisprudence
Natural Law
Legal Positivism
“Constitutional Morality”
In Comparative Perspective: Law, Morality, and Same-Sex
Marriages

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 Sociological Jurisprudence and Legal Realism
Contemporary Theories of Jurisprudence
Economics in Law and Pragmatism
Feminist Jurisprudence
Critical Legal Studies and Critical Race Theory
Contemporary Controversies Over Courts: Is Cannibalism Ever
Legally Justified?
Chapter Summary
Key Questions for Review and Critical Analysis
Web Links
Selected Readings
PART 2. JUDICIAL ORGANIZATION AND ADMINISTRATIVE
PROCESSES
3. Judicial Organization and Administration
The Origins of U.S. Courts
The 1789 Judiciary Act
The Evolution of the Federal Judiciary
Contemporary Judicial Federalism: State and Federal Courts
State Trial and Tribal Courts
Single-Tier vs. Two-Tier Trial Courts
Limited Jurisdiction Courts
General Jurisdiction Courts
Tribal Courts
Intermediate State Appellate Courts
State Courts of Last Resort
Federal Courts
U.S. District Courts
U.S. Magistrate Judges
U.S. Bankruptcy Courts
Other Specialized Lower Federal Courts and Tribunals
U.S. Courts of Appeals
U.S. Courts of Appeals With Limited Jurisdiction
U.S. Supreme Court
The Politics of Judicial Administration and Reform
In Comparative Perspective: Constitutional Courts in Europe
State Court Administration
Federal Court Administration
The Politics of Reforming Judicial Administration
Contemporary Controversies Over Courts: Should the Public
Finance State Judicial Elections?
Chapter Summary
Key Questions for Review and Critical Analysis

9
 Web Links
Selected Readings
4. Judicial Selection and Removal
Staffing State Courts
Merit Judicial Selection Systems
Judicial Election and Appointment Systems
The Politicization of Judicial Campaigns
Staffing Federal Courts
The Framers and Judicial Selection
Ideology or Merit?
The Nomination Process
Initial Prenomination Vetting of Nominees
The Role of the American Bar Association and Its Ratings
Senatorial Courtesy and the “Blue Slip”
The Confirmation Process
The Confirmation Politics of Evaluating the Nominee’s
Merits
Contemporary Controversies Over Courts: The Hardball Politics
of Filibusters, “Nuclear Options,” and Recess Appointments in
Federal Judicial Selection
The Politics of Organized Interests, the Media, and Public
Hearings
The Battle Over Robert Bork’s 1987 Nomination
Senate Confirmation Hearings and Reporting the Nomination
Senatorial Obstruction and Delay
Is the Confirmation Process “Broken”?
Toward a Representative Bench and a Career Judiciary?
A Representative Bench?
Leaving the Bench
In Comparative Perspective: The Career Judiciary in Japan
Chapter Summary
Key Questions for Review and Critical Analysis
Web Links
Selected Readings
PART 3. ACCESS TO COURTS AND JUDICIAL DECISION MAKING
5. The Practice of Law
The Rise of the American Legal Profession
Contemporary Legal Education and Bar Admission
U.S. Law School Education
In Comparative Perspective: Legal Education and Lawyers in
Western Democracies
Professional Ethics

10
 Bar Admissions
After Bar Passage: Trends in Diversity and Employment Inequality
The Business of Legal Practice
Lawyers as Counselors and Advocates
Legal Employment Trends and Salaries
Legal Practice Areas
Private Practice
Government Attorneys
Business and Industry Law Practice: The Role of In-House
Counsel
Public Interest Lawyers and Legal Academia
Access to Lawyers and Equal Justice
The Right to Counsel in Criminal Cases
Legal Representation in Civil Litigation
Contemporary Controversies Over Courts: The Right to Counsel
and “Pay-as-You-Go” Justice
Government-Subsidized Legal Aid
Pro Se Representation
Pro Bono Legal Services
Chapter Summary
Key Questions for Review and Critical Analysis
Web Links
Selected Readings
6. Access to Courts and Justice
Formal Barriers
The Constitution’s Article III “Cases” or “Controversies”
Requirement
The Procedural Rules of Courts
Discretionary Barriers
Contemporary Controversies Over Courts: Tactics for
Constitutional Avoidance: “Passive Virtues” or “Subtle Vices”?
The Law of Standing
Mootness and Ripeness
The Political Question Doctrine
Organized Interests and Strategic Litigation
Interest Group Politics and Litigation Strategies
In Comparative Perspective: Comparative Constitutional Law,
Interest Group Litigation, and Capital Punishment
Chapter Summary
Key Questions for Review and Critical Analysis
Web Links
Selected Readings

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7. Trial Courts: The Adversarial Process and Criminal Cases
The Adversarial Process
“Truth” or “Fight” Theory?
Adversarial or Inquisitorial Justice?
The “Crime Control” or “Due Process” Models of Criminal Justice
Criminal Law and the Justice System
The Criminal Trial and Appeal Process
Prosecutorial Discretion: From Arrest to Formal Arraignment
Initial Appearance
Preliminary Hearings and Grand Jury Indictments
Formal Arraignment
Plea Bargaining
Contemporary Controversies Over Courts: Plea Bargaining, the
Right to Counsel, and Global Trends
Trials and the Jury’s Role
The Democratic Politics of Citizen Juries
In Comparative Perspective: Jury Systems Around the World
The Types of Criminal Cases Juries Can Hear
Selecting an Impartial Jury From a Cross-Section of the
Community
Jury Size and Unanimity of Jury Verdicts
The Problem of Jury Nullification and Hung Juries
Proposals to Reform the Jury Process
The Politics of the Post-Trial Sentencing Process
The Growth of Determinate Sentencing
Post-Trial Motions and Appeals
Chapter Summary
Key Questions for Review and Critical Analysis
Web Links
Selected Readings
8. Trial Courts: Civil Cases and Litigation
Adversarial Civil Justice
A “Litigation Explosion”?
Types of Civil Cases
The Parties to Civil Actions
Class Action Lawsuits
Third-Party Litigation Funding
Burden of Proof, Legal Remedies, and Damages
Civil Lawsuits: The Trial and Appeal Process
The Decision to Litigate
Filing Civil Actions: Pleadings and Motion Practice
Notice Pleading vs. Fact-Pleading

12
 Motions of Dismissal and Summary Judgment
The Discovery Process and Pretrial Conferences
Pretrial Conferences
Trial, Judgment, and Appeal
The Politics of Tort and Civil Litigation Reform
Contemporary Controversies Over Courts: The Roberts Court and
Class Action Lawsuits
Alternative Dispute Resolution
In Comparative Perspective: The Global Expansion of ADR
Chapter Summary
Key Questions for Review and Critical Analysis
Web Links
Selected Readings
PART 4: JUDICIAL POLICYMAKING
9. Appellate Courts and Decision Making
The Appellate Court Decision-Making Process
Agenda Setting
Oral Argument
Judicial Conferences
Strategic Consensus Building and Opinion Assignment
Opinion Writing
Written and Oral Dissents
Unpublished Opinions
Studying Judicial Decision Making
The Attitudinal Model
In Comparative Perspective: Are Judges “Politicians in Robes” or
Not?
New Institutionalism
Strategic Choice Theory
Future Directions of Judicial Behavior Research
Legal Reasoning and Interpretative Approaches
The Law and Politics of Legal Precedent
Statutory Interpretation
Statutory Construction
Constitutional Interpretation
Contemporary Controversies Over Courts: How Should Judges
Interpret the U.S. Constitution?
Chapter Summary
Key Questions for Review and Critical Analysis
Web Links
Selected Readings
10. The Scope and Limits of Judicial Power

13
 Judicial Policymaking
“Judicial Activism” and “Judicial Restraint”
In Comparative Perspective: The European Court of Justice and
the Globalization of Judicial Power
State Judicial Policymaking: “Equal” and “Adequate” Public
School Funding
Federal Judicial Policymaking: Abortion and Affirmative Action
Abortion
Affirmative Action
The Impact of Judicial Decisions
Brown v. Board of Education (1954) and School Desegregation
Politics
The Politics of LGBT Rights and Same-Sex Marriages
The Limitations of Judicial Power
Internal Constraints
External Restraints
Restraints Imposed by Legislatures
Restraints Imposed by the Executive Branch
Restraints Imposed by Public Opinion
Contemporary Controversies Over Courts: Do Courts Forge
Major Social Change?
Chapter Summary
Key Questions for Review and Critical Analysis
Web Links
Selected Readings
Glossary
Appendix A: Legal Research Sources and Strategies
Appendix B: Membership of the Supreme Court of the United States
Case Index
Subject Index
About the Authors

14
Tables and Figures

Tables
1.1Inquisitorial and Adversarial Systems 6
1.2Types of Law 14
3.1Types of Cases Adjudicated in Federal and State Courts 63
3.2State Trial Court Docket 69
3.3U.S. District Court Caseload and Docket Composition, 1970–2012 73
4.1Federal Judicial Selection Methods During Modern Presidencies 109
4.2Demographic Characteristics of U.S. District Court Appointees 122
4.3Demographic Characteristics of U.S. Court of Appeals Appointees 123
4.4Judicial Salaries of State and Federal Judges 124
5.1Legal Profession Occupations by Gender and Position 152
5.2Top Mega-Firms in the United States 156
5.3Public Defender Offices 161
5.4Salient Differences in Legal Representation in Indigent Criminal Cases 162
7.1Trial Court Differences in Adversarial and Inquisitorial Legal Systems 201
7.2Constitutional Protections in Criminal Cases 203
7.3Criminal Convictions Resulting From Trials and Pleas in State Felony Cases 205
7.4Sentencing Typologies and Practices 218
8.1Civil Justice and Procedure: Goals, Tensions, and Challenges 234
8.2Examples of Mass Tort Litigation and Settlement Funds 239
8.3Tort, Contract, and Real Property Trials and Median Final Awards to Plaintiffs
245
8.4State Tort Reform Laws 248
8.5Alternative Dispute Resolution and Settlement Practices 251
9.1Appeals Terminated After Oral Hearing in U.S. Courts of Appeals 270
9.2Types of Judicial Opinions 273
9.3Legal or Political Variables Used to Explain or Predict Judicial Decisions 276
9.4Interpretative Theories and Tools of Statutory Construction 286
10.1Federal and State Court Policymaking 302
10.2The Dimensions of Judicial Activism 304
10.3Abortion Restrictions in the States 312
10.4Amendments Overturning Unpopular U.S. Supreme Court Decisions 323

15
Figures
3.1The Evolution of Federal Courts 61
3.2Dual System of Courts 62
3.3Illinois’s Single-Tier Trial Court System 65
3.4Ohio’s Two-Tier Trial Court System 66
3.5Most Widely Adopted State Two-Tier Trial Court Structure 67
3.6Types of State Courts 68
3.7Geographical Boundaries of the U.S. Courts of Appeals 72
3.8Nature of Civil Actions and Criminal Offenses in U.S. District Court, 2012 74
3.9U.S. Courts of Appeals Docket Composition and Source of Appeals, 2012 77
3.10U.S. Supreme Court Membership and Docket Composition 80
3.11Maryland’s Administrative Office of the Courts 85
3.12Federal Court Administration 86
4.1Judicial Selection and Retention in the States 102
4.2The Nomination and Confirmation Process for Federal Judges 108
4.3Senate Obstruction and Delay of Lower Federal Court Nominations 120
5.1Demand for Legal Education, 1964–2013 146
5.2Law School Graduate Employment, 2012 153
7.1The Stages of Trial and the Presentation of Evidence 198
7.2The Criminal Trial and Appeal Process 205
7.3Minnesota’s Presumptive Sentencing Grid 221
8.1Average Lawyer Time Spent in Ordinary Civil Lawsuits 235
8.2Types of Civil Cases in State Courts 236
8.3Types of Civil Cases in Federal Courts 236
8.4The Civil Trial and Appeal Process 241
9.1The Process of Appellate Court Decision Making 266
9.2Research Methodologies for Studying Judicial Politics 275
9.3Roberts Court Voting Alignments 278
10.1Judicial Compliance and Impact 318

16
Preface

THE JUDICIAL PROCESS: LAW, COURTS, AND JUDICIAL POLITICS

INTRODUCES students to the nature and significance of the judicial process in the
United States and across the globe. It is written from a unique interdisciplinary perspective
that combines political science research with scholarship that is centered in traditional legal
studies. At its core, the textbook is an introduction to civil and criminal law, jurisprudence,
judicial organization and judicial selection, the legal profession, the criminal and civil
judicial process, and the scope and limitations of judicial policymaking. While it is
designed for political science courses in the judicial process, instructors teaching law or law-
related courses in law and society will also find it attractive because it contains an in-depth
analysis of legal theory and political jurisprudence, topics that are frequently absent from
other judicial process textbooks. Moreover, most textbooks focus only on U.S. courts and
provide little or no attention to comparative courts and judicial politics. In addition, this
book highlights contemporary controversies and debates over the role of courts in American
society and elsewhere. Overall, these features will engage and challenge students to learn
about the politics underlying the judicial process.

17
Key Features
The Judicial Process: Law, Courts, and Judicial Politics’ unique legal and social science
perspective is complemented by several useful pedagogical tools that facilitate student
learning. The book’s “Contemporary Controversies Over Courts” boxes offer unique
insight into cutting-edge and highly relevant issues of law, courts, and judicial politics, such
as the “hardball politics” of judicial selection, plea bargaining trends, and judicial decisions
limiting the availability of class actions. The “In Comparative Perspective” boxes acquaint
students with the significance of constitutional courts in Europe and the European Court
of Justice, as well as the roles lawyers, juries, and alternative dispute-resolution techniques
play in the United States and throughout the world. In addition to containing numerous
visual and descriptive aids for students, including many cutting-edge photos, cartoons,
charts, and graphs on all aspects of the judicial process, each chapter has a chapter
summary, key questions for review and critical analysis, web links, and selected
readings. These features highlight poignant issues relating to the study of the judicial
process, law, courts, and judicial politics. The Glossary is a key resource for understanding
the complexities of legal terminology. In addition, Appendix A gives students the “nuts and
bolts” of how to conduct legal research and writing. Finally, Appendix B is a useful
resource listing the historical and contemporary membership of the Supreme Court of the
United States, the most important judicial forum in the United States.

18
Instructor Resources
Additional electronic resources have been developed specifically for the instructor and are
available for download after registration at: http://study.sagepub.com/banks.

A test bank that provides a diverse range of pre-written questions as well as the
opportunity to edit any question and/or insert personalized questions to effectively
assess students’ progress and understanding.
Editable, chapter-specific PowerPoint slides that offer complete flexibility for
creating a multimedia presentation for the course.

19
Overview
Part I focuses on the nature of law and its relationship to judicial politics in society.
Chapter One analyzes legal systems, the sources of public and private law, and the role
courts play in resolving legal disputes and defending personal freedoms. Chapter Two
addresses classical and contemporary legal theories, or political jurisprudence ranging from
natural law to critical legal studies, and how those theories affect law and policy.

Part II considers judicial organization and administration. Chapter Three describes the
origin and structure of state and federal courts, as well as the politics of judicial reform.
Chapter Four builds on that discussion by explaining how judges become political actors as
they are socialized in the various ways they are recruited, retained, and removed from office.

Part III turns to access to courts and how formal and informal barriers affect judicial
decision making and access to justice. Adversarial civil and criminal judicial processes are
also analyzed. In Chapter Five, the role legal culture and lawyers play in delivering legal
services is discussed. Access to courts in terms of formal and informal barriers of
justiciability (legal standing, mootness, and similar doctrines of judicial restraint or
abstention) is the subject of Chapter Six, along with the different strategies interest groups
employ to effectuate policy change during litigation. Chapters Seven and Eight analyze the
adversarial system and the differences between criminal procedure and civil litigation at the
trial level. In Chapter Seven, the key role prosecutors play in charging defendants and
negotiating plea bargains, as well as the significance of juries and the politics underlying
sentencing practices, is detailed. In contrast, Chapter Eight considers civil litigation,
liability trends, and the process of seeking monetary compensation for personal injuries,
along with tort reform and alternative dispute-resolution methods.

Part IV explores judicial policymaking and the scope and limits of judicial power in
appellate courts. Chapter Nine details the appellate judicial process, including how scholars
generally study judicial behavior, and how courts establish law and public policy in setting
their agendas and writing judicial opinions. Chapter Ten, then, concludes with a
consideration of controversies over the role and impact of appellate courts, with particular
attention to the legal and political debate over public school financing, abortion, affirmative
action, and same-sex marriage cases in state and federal courts. The different types of
internal and external constraints on judicial power, along with the policymaking impact of
courts, are thoroughly considered in the context of those areas of law, along with the
important issue of race, equality, and school desegregation.

20
Acknowledgments
The undergraduate and graduate students taught at the University of Virginia, the
University of Akron, and Kent State University remain an inspiration. Numerous faculty
colleagues and graduate students have contributed to the research and writing process, but
Lisa Hager and Kevin White, among others, were especially helpful in creating and refining
the chapters and the data contained in the tables, graphs, and figures. The textbook could
not have been written without the extraordinary efforts and confidence shown in the
project from the editors from SAGE/CQ Press: Charisse Kiino, Sarah Calabi, and Natalie
Konopinski. During the production process, the expertise and assistance from Davia Grant,
Amy Whitaker, Jennifer Jones, Andrew Lee, and several others were essential to getting the
textbook published. We would also like to thank the following reviewers for their valuable
insight and suggestions:

J. Michael Bitzer, Catawba College

Paul Chen, Western Washington University
Michelle D. Deardorff, University of Tennessee at Chattanooga
John Gruhl, University of Nebraska–Lincoln
Kim Seckler, New Mexico State University
Steven Tauber, University of South Florida
Laurie A. Walsh, Daemen College
Yvonne Wollenberg, Rutgers University

21
Part I Law And Political Jurisprudence In A
Globalized Society

22
Chapter 1 the politics of law and courts in society

IN SAUDI ARABIA, WOMEN FACE CRIMINAL PENALTIES FOR DRIVING AN

AUTOMOBILE.

Moreover, as Middle Eastern journalist Buthaina Al-Nasr explains, “It is not about the
driving, it is about control....It is to remind the women that we are controlling you.” Critics
of the law charge that ultraconservative males are preventing women from exercising their
rights, not only in stopping them from driving but also in pursuing educational and work
opportunities. In protest to the ban, Al-Nasr posted a video on CNN showing her driving a
car—a risky act of defiance that has been duplicated by scores of other Saudi Arabian
women. Such protests have become part of a growing online petition movement
(www.Oct26driving.com) t\o get the Saudi Arabian government to change the law.
Notably, the seeds for the movement were planted by the international outrage that ensued
because a Saudi woman, Shaimaa Ghassaneya, was sentenced to ten lashings for violating
the driving ban, only two days after women were granted the right to vote.1

Although Saudi Arabia’s King Abdullah bin Abdul-Aziz revoked the sentence in
Ghassaneya’s case, numerous other events across the globe illustrate the role law and
judicial systems play in maintaining social control and ensuring that cultural norms remain
intact. Several European countries, as well as parts of Canada, have enacted bans on the
wearing of Muslim headscarves and veils that cover both the face (niqabs) and the full body
(burqas), as well as bans on wearing other religious symbols, including Jewish yarmulkes,
Sikh turbans, and large crucifixes, in public spaces and workplaces. Defenders of the
prohibitions claim they promote government neutrality, ensure national security, preserve
national culture, and discourage separatist movements. Still, such restrictions increasingly
are met with judicial and public resistance. Courts are mediating disputes and trying to
strike a balance between preserving public norms and individual rights. Even in the United
States, several states have expelled foreign law from their jurisdictions on the grounds that
the American legal system would be corrupted.2

These examples illustrate how the practical application of law is greatly influenced by the
historical evolution of cultural and political norms, social behavior patterns, and legal
traditions within communities, societies, and countries. The different ways in which courts
resolve disputes and maintain social control within a polity reflects the operation of legal
systems.3

This chapter examines different kinds of legal systems around the world, and identifies the
sources of law, as well as the roles courts play in contemporary societies.

23
LEGAL SYSTEMS
Given the so-called globalization of law, the differences among legal systems in the world
should not be obscured. Every legal system is to a certain extent distinct, simply because
each society and its legal norms vary. Yet, generalizations about what constitutes a legal
system are still possible. A legal system refers to a set of institutional structures for applying
the law, legal procedures for administering the law, and substantive legal rules.4 No less
important are how various elements of the legal system (conceptions of law, the legal
profession, courts, and the citizenry) interact. Because there are numerous legal systems in
the world, and many are of “mixed” character, scholars from various academic disciplines
(comparative law, history, or legal philosophy) do not agree on how to classify legal systems
or whether it is even possible to do so.5

Regardless, a common framework typically depicts legal systems as “families of law.”6

Although legal families evolve over time and may share certain structures, procedures, or
rules, a distinguishing factor among legal systems is the law’s origin. For example, civil law
systems in the Romanic–Germanic family emphasize written civil codes constructed by
legislatures, whereas the common law family—including the American legal system—
concentrates on the administration of law by judges and lawyers. Before the fall of the
Soviet Union in 1989, in contrast to civil and common law systems, the socialist legal
family derived law from the political ideology of Marxism. Other legal families are rooted
in religious sources, as with Muslim, Hindu, or Jewish legal systems. Some legal systems are
strongly influenced by customary law (law based on social customs enforced by the
community), or, as with “mixed” systems, the elements of more than one legal system may
operate within a single jurisdiction (see “In Comparative Perspective: Major Global Legal
Systems”). The rest of this section analyzes the major legal families by surveying the
predominant legal systems and situating them in the global legal order and international
law framework.

24
Civil Law
Most European countries have civil law systems. In the sixth century (A.D.), the emperor
Justinian sought to restore the glory of Roman law by codifying portions of it into one
source, the Corpus Juris Civilis (CJC)—consisting of Institutes (an introduction to basic
principles), a Digest (a summary of past Roman scholarship), Codes (a compilation of past
Roman legislation, edits, and other laws), and Novels (a section for future legislation after
the Code and Digest were completed). After the fall of the Roman Empire, the CJC was
rediscovered by scholars at the University of Bologna, Italy, in the eleventh century. The
rediscovery coincided with the development of the canon law by the Catholic Church and
the rise of commercial law—a set of rules governing commercial relationships across the
European continent. In time, the CJC (Roman civil law), canon law, and commercial law
helped to produce a common law, the jus commune (“law of the community”), and became
part of the civil law that was later “received,” or adapted, in one form or another by
European states. This history shaped the basic codes found in civil law countries, namely,
the civil code, the commercial code, the code of civil procedure, the penal code, and the
code of criminal procedure.7

Two variations of what became the modern civil law system took hold in France and in
Germany during the nineteenth century. The French Civil Code of 1804, or Code
Napoléon, developed under the rule of the emperor Napoléon Bonaparte, eradicated all
traces of aristocratic power in French nobility, clergy, and judiciary. It was built on three
pillars—codes broadly protecting property, contract, and patriarchal family relationships—
that formerly were under the domain of the church or the aristocracy. Since the law was
based on universal ideas of natural justice (liberty and equality), it was crafted in simple
terms, and it accordingly limited the need for lawyers and courts. The code was thus
distinctly antifeudal and antijudicial because French judges were part of the aristocratic
class that had too often abused power. The bias against the judiciary is important because it
laid the foundation for a tradition that institutionally isolated courts from other branches of
government and reduced judges to civil servants.

Whereas the French Civil Code was inspired by revolution and strived to protect rights
universally, the German Civil Code of 1896 was more technical. Proponents of the
German Historical School, led by Friedrich Carl von Savigny (1779–1861), argued that
legal systems must be constructed from historically derived principles of legal science.
Accordingly, the German Civil Code of 1896 was a self-contained body of written law:
Lawyers or judges did not have to resort to extraneous social, economic, political, or moral
values to apply it. Unlike the French code, the German code made clear that the science of
law (rules, legislation, and the like) was left to the realm of the lawyer and the judge, not to
the common person. Hence, the German Civil Code was detailed, precise, and logical.
Definitions and elaborate cross-references (to other parts of the code) contained pragmatic

25
guides for applying law that was virtually inaccessible except to legal experts.

The civil law tradition remains infused in legal systems throughout continental Europe,
Asia, Latin America, South America, and parts of the Caribbean (see “In Comparative
Perspective: Major Global Legal Systems”). Until recently, civil law systems did not provide
for judicial review—the power to declare acts of the legislature or executive branch
unconstitutional. The absence of judicial review is explained by the subordinate role courts
play to legislatures. The nature of legal analysis in civil law systems also gives little
discretion to courts in interpreting codes and legislation. In other words, modern civil
codes are generally a systematic collection of general legal principles and laws enacted by
legislative bodies. As one civil lawyer put it: “The Code...is a construction of the mind,
designed to impose a rational and well-defined legal order on a particular society. It is the
materialization of a legal philosophy at one point in time, as well as the solidification of a
society’s ever changing morals into a fixed set of written rules.”8 For civil law judges, then,
the civil code is both the starting and the ending point for legal analysis.

However, since the second half of the twentieth century, the traditional civil law model has
been changing. After World War II, new constitutional courts, along with the power of
judicial review, were introduced in Europe (see the “In Comparative Perspective” box in
Chapter Three, page 90). As a result, some European constitutional courts, like U.S. courts,
are now playing a more dynamic role in interpreting law and making social policy.

Civil law systems are inquisitorial in operation and differ from adversarial systems used in
common law jurisdictions like the United States (as further discussed in the next section).
In other words, legal institutions and practices are structured to arrive at legal truths under
a written code or by following specific legal procedures. Lawyers, who are trained as
specialists in narrowly defined areas of law, earn a formal law degree at a university as
undergraduates before they become eligible to practice. Judges are prepared to be civil
servants who begin (and often end) their careers in a judicial bureaucracy. Finally,
adjudication in inquisitorial civil law systems is proactive in the sense that all who play a
role in litigation (especially judges) are active participants in, typically, a three-stage process
that usually has a preliminary hearing, an evidence-taking stage, and a decision-making
stage. Each stage is structured to engage litigants and judges in an active search for facts and
evidence.9 Except for select criminal cases, there is basically no “trial” process per se, and
the presence of a lay jury is rare, because judges play the fact-finding role and determine the
facts (evidence) before issuing a ruling. Some of the key differences between inquisitorial
and adversarial systems are detailed in Table 1.1.

26
Source: Herbert M. Kritzer, ed., Legal Systems of the World: A Political, Social and Cultural Encyclopedia, Vol. 1
(Santa Barbara, Calif.: ABC-CLIO, 2002), 6–9; Christopher E. Smith, Courts and Trials: A Reference Handbook
(Santa Barbara, Calif.: ABC-CLIO, 2003), 40–45.

27
In Comparative Perspective

28
Major Global Legal Systems
There are 246 different legal systems in the world today. The major legal systems consist of civil law and
mixed legal systems, followed by common law, customary, and religious legal systems. As a result of the
Soviet Union’s collapse in 1989 the socialist (ideological) legal family is not as pervasive, so it is excluded
from analysis. Muslim law and, to a lesser degree, Talmudic law are identified separately from other
religion-based systems because Muslim law is more permanent and widespread, whereas Talmudic law and
Israel’s mixed legal system are highly distinctive. Other initially religious legal systems are not as unique. As
a result, a number of their defining characteristics have been blended into customary or state systems.

The sources of law for each legal system vary:

Civil law systems use written codes created by legislatures.

Common law systems use judicial decisions by courts.
Customary law systems use social customs that are enforced by community sanction.
Religious legal systems are based on sacred religious texts, like the Koran.
Mixed legal systems are based on a combination of sources of law drawn off various other legal
systems.

29
Sources: Derived from the University of Ottawa, “JuriGlobe—World Legal Systems,” available at
http://www.juriglobe.ca/ (last retrieved January 20, 2014).

30
Common Law
Whereas civil law systems are based on the primacy of the legislature and a legal code,
common law systems are based on the rule of judges. The origin of common law stems
from the Norman conquest of the Anglo-Saxons in the Battle of Hastings in 1066 by King
William I. After taking control, William I distributed the land only after the fee holders
swore loyalty and promised to pay sums of money to the king. In short, William I solved
the problem of maintaining order and earning tax revenue by creating a legal system for
resolving private disputes among the landholders. Beginning in 1300, three central royal
courts of justice—the Court of Exchequer, the Court of Common Pleas, and the Court of
King’s Bench—emerged in Westminster Hall, in London, and all were staffed by judges
empowered to act in the king’s absence. As agents for the king, royal judges had strict
instructions on how to handle local legal disputes. Access was also a privilege instead of a
right: Citizens had to ask permission from a royal judge to deliver a petition in order to
have a court hearing. What developed was a highly procedural system of writs—or
petitions requesting legal relief. For example, to remove a trespasser from land, a writ of
ejectment was used. The emphasis on procedure meant that “where there is no remedy
there is no wrong,” and where there was no remedy there was no right.10

The writ system reinforced the king’s power and simultaneously consolidated the royal
judges’ power to make unwritten law as the king’s delegates. The judge was a de facto (in
fact) gatekeeper of the judicial process. Over time, the process of determining the facts in
disputes fell to juries, and the judge’s role was only to apply the law. By the fifteenth
century, common law evolved alongside the law of equity—a special set of rules permitting
relief for those who suffered injustices because of the strict operation of the writs system.
For example, if a legal remedy did not address an injury, then an equitable remedy might
be available if that injury violated some sense of the king’s fairness. There was a separate
Court of Chancery to handle such cases.

Accordingly, the judge is the central figure in a common law system. The rulings of early
common law judges were “unwritten” in the sense that written law did not exist to guide
their discretion. Still, once a ruling was made, it became binding as a precedent for future
cases. As more and more cases were decided, “a common law in the realm” emerged.
Notably, whereas judges had the obligation to “declare” the law on the basis of precedent,
they also had the power to “make” law by creating new precedent if that was necessary to
avoid an injustice for litigants. As Judge Benjamin Cardozo remarked, “The power to
declare the law carries with it the power, and within limits the duty, to make law when
none exists.”11 Striking the proper balance between declaring and making law was
conditioned by the norm that the highest court of appeal was not bound by its own
precedents and, hence, high courts could reject past decisions. In sum, precedent gives law
stability and predictability but remains open to change. As explained further in Chapter

31
Nine, the doctrine of precedent, or stare decisis (“let the decision stand”), is a key aspect of
judicial behavior in the U.S. judicial system and elsewhere.

Apart from England, contemporary common law legal systems include the United States,
Canada, Australia, and Ireland (see the “In Comparative Perspective” box on major global
legal systems). In the United States, the common law was adopted in conjunction with each
colony’s distinctive legal heritage. The reception of common law was facilitated by the
writings of Sir William Blackstone (1723–1780). Blackstone held the first professorship of
English law at Oxford University, where he delivered a series of lectures later published as
Commentaries on the Laws of England (1765–1769). The Commentaries received wide
distribution and represented “the most ambitious and most successful effort ever made to
reduce the disorderly overgrowth of English law to an intelligible and learnable system.”12
Blackstone’s Commentaries were also influential in reinforcing an integral aspect of U.S.
constitutionalism by emphasizing that judges are the “living oracle of the law,” who only
“declare” the law, not make it. Indeed, in a classic statement of judicial restraint, Alexander
Hamilton asserted in Federalist No. 78 that courts have “neither FORCE nor WILL, but
merely judgment.”13 However, Blackstone’s declaratory theory of law was ultimately
challenged in the late nineteenth century by judges and legal theorists who advanced a
jurisprudence of American legal realism (as explained in Chapter Two).

The complexity of common law produced new pressures in the early nineteenth century to
codify a U.S. version of the common law, principally in Massachusetts and then in New
York. In 1811, Jeremy Bentham, a noted English legal reformer, went so far as to offer to
write a code in a letter sent to President James Madison.14 Even though Madison declined,
the codification movement, led by the lawyer David Dudley Field, succeeded in enacting a
Code of Civil Procedure in New York in 1848. Yet Field’s efforts met harsh resistance from
the East Coast legal establishment, but Field Codes, as they were called, were adopted
toward the end of the century in the Dakotas, Idaho, Louisiana, Montana, and California.
However, the common law system ultimately survived the codification movement because
support for codification waned by the beginning of the twentieth century.

32
English jurist Sir William Blackstone (1723–1780)

By Thomas Hamilton Crawford after Joshua Reynolds, Courtesy of the Library of

Congress

33
Unlike the civil law tradition, common law systems are adversarial, and lawyers have
considerable power to shape and make the law through a competitive struggle to win a case.
Former New York judge Jerome Frank once referred to this process as the fight theory (its
application to criminal and civil cases is analyzed in Chapters Seven and Eight). In Judge
Frank’s view, “The lawyer aims at victory, at winning in the fight, not at aiding the court to
discover the facts.” In other words, the lawyer “does not want the trial court to reach a
sound educated guess, if it is likely to be contrary to his client’s interest.” As Frank
concluded, “Our present trial method is thus the equivalent of throwing pepper in the eyes
of a surgeon when he is performing an operation.”15 As a result, lawyers have more control
and influence in common law systems, and judges ostensibly let attorneys “fight it out.” In
contrast with the civil law system, the common law system lets the litigants, instead of the
government, carry the burden of developing facts and defending rights.

Historically, a common law attorney’s training is also different. Unlike the training for a
civil law practitioner, legal education in common law countries is generalist in scope and
gained through a graduate degree after earning an undergraduate degree (discussed more in
Chapter Five). Consequently, adversarial systems place great value on practical experience
(i.e., apprenticeship and gaining professional experience through the “practice” of law),
rather than undergraduate instruction followed by an examination and admission into a
career judiciary. Judges also tend to be selected for service on the basis of their professional
accomplishments instead of their formal academic achievements. Thus, all the main
protagonists in the common law drama—the lawyer, the judge, and even the jury—wield
enormous authority to discover, apply, and “make” law through adjudication. Not only
may common law attorneys manipulate precedents through their advocacy, but judges may
embrace or reject an advocate’s arguments on the basis of the specific facts in a case, and
thereby assert the power to make law. Moreover, juries are in a unique position to apply the
law to facts as they see fit. The law’s evolution in a common law system is therefore fluid,
despite the constraints imposed by the doctrine of precedent.

34
Ideological Legal Systems
Before the fall of communism in central and eastern Europe, scholars generally agreed that
socialist law ought to be considered an important third legal system. Although its origin
began with the 1917 Bolshevik revolution in Russia, its impact did not become widespread
until the end of World War II, when the Communist Party took control in Romania,
Bulgaria, Albania, Poland, Hungary, Czechoslovakia, and eastern Germany. The People’s
Republic of China was also receptive, and it became a foundation for Mao Tse-tung’s legal
regime. Although the collapse of the Soviet Union in 1989 diminished its global
significance, socialist law continues to influence the legal systems in China, Russia, North
Korea, Vietnam, Laos, and some other countries.16

Socialist legal systems borrow heavily from the civil law system and use of codes. However,
their defining characteristic is political ideology and the instrumental use of law in service
of the socialist state. In other words, socialist doctrine does not embrace a Western
conception of law. Law in the Western sense is the foundation of liberal democracy: It
limits the operation of government and is a safeguard for individual rights. Conversely,
socialist legal ideology denies that law as understood in the West exists and, instead,
contends that law is used to enslave the populace.

Socialist ideology rejects Western liberal democratic thought on the basis of Marxist
political and economic principles. With the help of Friedrich Engels (1820–1895), Karl
Marx (1818–1883) theorized that history is a series of alternating cycles of birth and
destruction, in which one economic system is created, destroyed, and replaced by another.
Feudalism, for example, was replaced by capitalism as new forms of production took hold.
At the heart of socialist ideology is the belief that elites in civil society capture the means of
economic production from the working class (the proletariat) and deprive workers from
enjoying the fruit of their labor. For socialists, Western law supports capitalist economic
arrangements and promotes individuals’ alienation by taking away personal liberty.

Marxist theory, therefore, seeks to eliminate the source of the class struggle, namely
individual ownership of private property and the accumulation of wealth. Marx
hypothesized that capitalism would be replaced after a revolution in which the proletariat
overthrew the bourgeoisie and, ultimately, restored freedom through the collective
ownership of the economic means of production. An ideal state would then emerge in
which law and government would “whither away” because there would be no need for law
to maintain social control.

Marxist theory, however, failed to be realized in socialist-influenced legal systems.

Nonetheless, Marxism found expression in a principle of socialist legality. Accordingly, the
concept of law is meaningful only if it furthers the objectives of the underlying socialist

35
ideology. In the former Soviet Union, the law’s purpose was to ensure national security and
educate the masses (by force, if necessary) to advance socialist economic development.17

36
Religious Legal Systems
Throughout history, religion has more or less influenced the development of law and legal
systems. Roman Catholic canon law in continental Europe continues to loom large in the
civil law tradition, and, likewise, Hinduism remains an important part of Indian legal
culture. The Bible influenced the development of Anglo-Saxon law. The Talmud, oral
interpretations of scriptures committed to writing in Jewish law, influenced Israel’s “mixed”
legal system of Talmudic, civil, common, and Muslim law. Muslim or Islamic law as
expressed in the Koran, Islam’s holy book, is the touchstone for “mixed” legal systems
found in Pakistan, parts of Malaysia and Indonesia, northern and eastern Africa, and much
of the Middle East.

Indeed, a large proportion of the world’s population adheres to the tenets of Islamic
religion. Although in its “pure” form it has ostensibly only been in place in Afghanistan
(before the U.S.-coalition-led occupation after September 11, 2001), the Maldives Islands,
and Saudi Arabia, many of the world’s major legal systems embody Islamic law. A personal
commitment to the Islamic faith is holistic, involving all aspects of life. “Islam,” as has been
said, “is a religion, a legal system, and a lifestyle all in one.”18 Islamic law is based on the
word of Allah, as revealed to the Prophet Muhammad ibn Abdullah (570–632 c.e.) by the
angel Gabriel. The revelations were compiled into Islam’s most important sacred text, the
Koran, which is supplemented by the Sunnah, which reports the teachings of the prophet
Muhammad. Together, the Koran and the Sunnah constitute the basis for Islamic law, the
Shariah. As divine law, the Shariah cannot be changed by man. It can be interpreted by
scholars, but, by a command from Allah, anything less than total compliance is a violation
of the whole Islamic community and subject to severe sanctions not only in this world but
also in the next.

The Shariah identifies five pillars of personal responsibility (profession of faith, daily prayer,
almsgiving, fasting, and pilgrimage to Mecca) as well as guidelines for social relations
involving family, criminal, contract, and international law. During the nineteenth and
twentieth centuries, nations subscribing to Islamic law were greatly affected by their
contacts with the West, and consequently many of them incorporated versions of Islamic
law in accordance with the civil law tradition. Indeed, the demise of the Ottoman Empire
in the early twentieth century helped spur on the emergence of secular codes and parallel
court systems that displaced Shariah law in countries undergoing Western modernization.
However, the assimilation process generated controversy, and secular Western norms
increasingly clash with those of Islamic fundamentalists who advocate returning to a
traditional form of Shariah.19

Notably, the region now known as the Kingdom of Saudi Arabia was not subjected to
pressures other Muslim countries faced in adapting to Western values and secularism. As a

37
result, Saudi Arabian courts have confronted difficulties in trying to modernize while
maintaining the theory and practice of Shariah law. As a theocracy, Saudi Arabia’s legal
structures and procedures remain based on an orthodox version of Islamic law. The Basic
Law of 1992, for example, is expected to conform to Shariah. Because there is no separation
between political and religious life, the legal process aims to reveal religious truths rather
than discover empirical facts. Shariah encourages reconciliation, and the majority of
disputes are resolved in this manner, rather than in courts. The concept of sulh,
“compromise, settlement or agreement between the parties,” is derived from the Koran.
Indeed, one study reports that 99 percent of all civil cases are resolved in this fashion.20
Lawyers and judges work to reach amicable solutions in an informal manner by
emphasizing oral testimony instead of written documents or evidence. In this fashion, kadi
justice—the law as delivered by judges construing religious doctrine—is neither adversarial
(as in common law) nor investigative (as in civil law). Instead, the process is one of religious
obligation, aimed at achieving a just result according to the word of Allah.

Notably, in 2007, Saudi Arabia enacted a series of legal reforms that underscore the
tensions between its religious basis and the growing influence of Western legal norms. By
decree, King Abdullah bin Abdul-Aziz declared a new Law of the Judiciary, which
transferred judicial powers from the Supreme Judicial Council to a newly formed Supreme
Court; reorganized the old Shariah Review Court into a new court of appeals; authorized a
new Judicial Supreme Council to set up specialized courts (previously under the Minister of
Justice in the executive branch); and allowed the new Supreme Court to administer
government decrees and state legislation. Since Shariah courts and judges have historically
valued their autonomy to apply divine law without interference from the state, these
reforms have created deep divisions over modernization.21

38
Customary and “Mixed” Legal Systems
Although few countries base their legal systems on local customs, customary law—those
rules based on social customs and enforced by community sanctions—influences a
considerable number of mixed legal systems. Historically, the strongest influences of
customary law have been found in sub-Saharan Africa (Ethiopia, Somalia, the Congo, and
Madagascar), where customs define social obligations and methods of dispute resolution.
Typically, customs are recognized by consensus of the social group, or tribe, often through
familial or kinship ties. Accordingly, it was not unusual for African customary courts to
appeal to customs in reconciling the competing interests of disputants. However, customs
often yielded to other legal traditions brought by the European colonization of Africa and,
subsequently, African independence. For example, since achieving its independence from
British rule in 1960, Nigeria’s constitutional system has been organized around a mixture
of common law, Islamic law, and customary law. As a result, Nigeria’s judicial system has
distinct courts with separate jurisdictions for handling civil disputes. The Shariah Court of
Appeal applies Muslim law, whereas the Customary Court of Appeal uses customary law.22

The legal systems in China and Israel provide further illustrations of contemporary mixed
legal systems. The legal tradition in China is rooted in Confucianism, derived from the
teachings from Master K’ong (Kung Fu-tse), or Confucius (551–479 B.C.). Confucius, a
government official and teacher who helped restore order in the Chou Dynasty in the fifth
century (B.C.), espoused the principle of social harmony, as expressed through the
relativism of li—a moral code of socially accepted behavior in order to achieve a
harmonious balance between nature and man. Li directs people to accept fault instead of
assigning blame, which reinforces social harmony. Li stands in sharp opposition to law and
formal sanctions (fa). Instead, li makes “law,” as understood in the West, superfluous, and,
hence, it is frowned upon to resort to courts and formal sanctions. When social harmony is
disrupted, order is restored through persuasion and conciliation, rather than formal edicts
that traditionally were perceived to serve the selfish aims of rulers.23

Such traditional customs inhibited the development of law and a legal profession in
premodern China, and were reinforced through political events that shaped China’s legal
system in the twentieth century. Not only did the West introduce the civil law system and
the codification of law, but also the socialist legalist principle (borrowed from the Soviet
Union) after the creation of the People’s Republic of China (in 1949) was infused into the
country’s government during the Cultural Revolution (1966–1976) under Chairman Mao
Tse-tung. Under Mao, political power was consolidated in the Chinese Communist Party,
and law became an instrument for the state. Lawyers, who were seen as bourgeois guardians
of property rights, were banned from legal practice, and the judicial system was denigrated
as well. But since 1979, the legal profession has slowly reemerged as a result of economic
modernization under Deng Xiaoping, Mao’s successor, and China’s entry into the World

39
Trade Organization in 2001.24 Still, despite increasing modernization, China’s mixed legal
system is strongly influenced by cultural norms that tend to reject Western conceptions of
law.

As a result, China’s contemporary legal system is an amalgam of civil, customary, and

socialist legal traditions. Although there has been state-led reform favoring Western-style
adversarialism, the legal process remains inquisitorial in practice, and judges preside over
trials in accordance with code law established by the National People’s Congress. Moreover,
in a nation of over 1.3 billion, there are only approximately 230,000 lawyers and 210,000
judges, and the average number of cases handled by judges on an annual basis remains low
(less than a hundred per year, in contrast to the thousands of cases U.S. judges adjudicate
annually). Although graduate training is available, legal education is primarily based on the
civil law model of university instruction, so traditionally most lawyers are trained to be
“state legal workers” (“guojia gongzuo renyuan”) or specialist bureaucrats. Yet China’s
trajectory toward market reform has grown, so Chinese lawyers have been able to diversify
their legal practice into the private sector and become more independent “professionals
serving society” (“wei shehui fuwude zhiye renyuan”).25

In late 2013, leader Xi Jinping and the Chinese Communist Party announced a series of
political, economic, and legal reforms designed to increase market prosperity and reduce
party interference with legal institutions and human rights. The legal reforms, which
included ending a state reeducation through labor program for criminal offenders and
proposals to centralize court funding and judicial appointments in order to reduce local
corruption, purport to improve judicial independence and promote the rule of law.
Whether they ultimately have that effect is uncertain because the legal profession remains
tightly regulated by the state and the political persecution of human rights’ activists has not
stopped since the reforms were proposed.26

Israel’s mixed legal system incorporates Talmudic, civil, common, and even Muslim law
elements. Prior to Israel’s independence in 1948, its territory was under Palestinian control
as part of the Ottoman Empire. Because Ottoman law contained Muslim as well as
European law components, until 1948 the territory had a combination of civil law, English
common law, and Muslim law. Since independence, Israel’s constitutional system has been
constructed by codifying its basic laws and through the development of an Israeli common
law. Moreover, the Israeli system has a separate body of religious courts that adjudicate
disputes involving marriage and divorce. In other domestic relations cases, Talmudic law
applies only if the parties consent. In recent years, Israel has witnessed the emergence of
many new nonstate Jewish religious courts offering adjudication of private and commercial
law disputes according to Jewish law (Halacha). Accordingly, in the words of Aharon
Barak, the former president of the Supreme Court of Israel, Israel stands apart from most
Western legal systems because it has a “duality of civil and religious law” along with
common law tradition.27

40
Legal Systems and Globalization
Scholars have long recognized the significance of the role that law plays in an increasingly
complex global legal order. Yet, the precise meaning of international law, generally
understood as “those rules of law applicable to relations among sovereign states,”28 is less
clear today than it was in the early twentieth century. The binding effect of rules of
international law—mostly consisting of treaties, customary international law, generalized
legal principles, and decisions of international organizations or tribunals—has become
more complicated, especially for domestic national courts trying to apply them in a
transnational legal environment.29

The trend toward globalization has brought significant evolutionary changes to the modern
international legal system, including (1) the increasing codification of international law,
thereby pushing courts to rely less on custom as a basis for their decisions; (2) the rapid
growth of new global and regional institutions; (3) the development of international human
rights and criminal law; (4) the growing acceptance of executive agreements and
instruments created apart from the formal treaty processes; and (5) the growing presence of
international administrative or regulatory bodies, such as the International Civil Aviation
Organization (a specialized agency of the United Nations that sets safety standards for
international air travel). The demands placed on the global legal order have also brought a
proliferation of multinational corporations, specialized law firms, and courts dealing with
specific areas of international law and foreign affairs, such as the European Court of
Human Rights, the Inter-American Court of Human Rights, the International Criminal
Court, and the European Court of Justice.

One consequence of these changes is the growing fragmentation or disaggregation of

sovereignty among nation states and, thus, the increasing role of nontraditional actors, such
as nongovernmental organizations (NGOs). Accordingly, global governance increasingly is
defined by the existence and influence of transnational or transgovernmental networks,
which directly interact with each other through a myriad of cross-border and supranational
alliances. These linkages affect global politics and policy by enhancing the quality of
information among international institutions, promoting the international enforcement of
policy initiatives, and facilitating international consensus and problem solving through the
use of “soft law” techniques (e.g., memoranda of understanding) that respond to challenges
without going through established hierarchical channels. Such transnational networks
promote the cross-fertilization of constitutional ideas and an evolving “community of
courts.” Not surprisingly, such networks have been reinforced by the Internet and
electronic legal databases, such as Lexis Nexis and Westlaw, which provide rich databases of
information that judges increasingly draw upon.30

41
The Nature and Sources of Law
The preceding discussion of global legal systems and their interrelationships underscores
that the nature of the law is socially constructed and registers the prevailing values of the
larger culture of communities and countries. Most Americans would consider a legal system
that punishes a woman for driving a car with a whipping to be barbaric and one that
violates basic human dignity. Yet, for many Saudi Arabians, under Shariah law, the ban is a
religious edict that commands obedience because Shariah is synonymous with preserving
law and order, respecting government legitimacy, and achieving prosperity. As a result, its
effect on the most powerless in society, such as women, is largely irrelevant in Saudi
Arabia.31

The differences in legal systems may be explained by identifying the sources and nature of
law within a country. Former dean of Harvard Law School and legal reformer Roscoe
Pound once observed that “laws are general rules recognized or enforced in the
administration of justice.”32 While there is no universally accepted definition of law, law is
a rule of conduct, or societal norm, enacted by government that details what is right or
wrong, and is enforced through the imposition of a penalty. Those subject to the law’s
command obey it because it is just to do so, and complying with the law is the basis for
political obligation. The law’s legitimacy is also intertwined with the law’s social purpose.
Hence, the law’s purpose is critical to appreciating how law regulates human activity, while
simultaneously maintaining social order and securing justice. In conventional terms,
“justice” is understood in two ways: corrective and distributive. Corrective justice corrects a
wrong that has harmed an innocent third party. If someone has stolen a car or vandalized
public property, corrective justice is delivered by punishing the offender. Distributive
justice, on the other hand, rectifies an inequality existing between parties because it is just
to do so.33

42
Lawgiver (the frieze on the East Pediment of the U.S. Supreme Court)

Steve Petteway, Collection of the Supreme Court of the United States

In the United States, law originates from the U.S. Constitution and Bill of Rights, as well
as state constitutions. In addition to federal and state constitutions, law is made by
legislatures, administrative agencies, and, on occasion, the president, as well as the courts.
These various sources of law (detailed in Table 1.2) are analyzed in terms of typologies of
law that broadly describe the U.S. legal system of public and private law.

43
Source: Derived from Lawrence M. Friedman, American Law: An Introduction, 2nd ed. (New York: Norton,
1998), 163–79; Kermit L. Hall, The Magic Mirror: Law in American History (New York: Oxford University
Press, 1989), 7–8.

44
Public Law
Law affecting the government encompasses public law—that is, the legal relationships
among governments and between governments and individuals. Statutory law, or
legislation enacted by legislatures, is the major source of public law. The Americans with
Disabilities Act (1990),34 a federal statute designed to protect disabled persons from
employment discrimination, is an example of statutory law. Federal and state constitutions
delegate authority to legislatures to enact statutes. Article I of the U.S. Constitution, for
instance, vests the U.S. Congress with broad legislative powers. Yet, because statutes are
drafted in general language, they are often ambiguous and require administrative and
judicial interpretation. The interplay between the legislative, executive, and judicial
branches in determining the meaning of statutes raises important questions of separation of
powers and, sometimes, of constitutional law.

Public law includes distinct but interrelated subcategories, such as constitutional law,
administrative law, and criminal law, among others, that merit further discussion.

Constitutional Law
In the United States, constitutional rights, duties, and obligations are given final effect by
the Supreme Court. The Court’s rulings are binding as the “supreme Law of the land”
under Article VI of the U.S. Constitution. Notably, though Article III vests judicial power
in “one Supreme Court,” the Constitution is silent on whether the Court has the authority
to determine the constitutionality of legislation or official executive action.

In addition, because of the system of judicial federalism—that is, separate federal and state
constitutions and courts (as further discussed in Chapter Three)—the highest state courts
exercise judicial review under their respective state constitutions. For instance, in 1892,
before his appointment to the U.S. Supreme Court and while serving as a state supreme
court judge, Oliver Wendell Holmes, Jr., rejected a policeman’s claim that a New Bedford,
Massachusetts, mayor improperly fired him under a state law prohibiting policemen from
soliciting money for “any political purpose whatever.” Judge Holmes ruled that the
policeman has “a constitutional right to talk politics, but he has no constitutional right to
be a policeman.”35 In one respect, Judge Holmes’s decision settled the dispute at hand—
the aggrieved policeman lost the case as well as his job because his free speech rights under
the state constitution did not trump the mayor’s power to dismiss him. But, in another
respect, the outcome reaffirmed the legislature’s power to condition the employment of
public servants because, Judge Holmes ruled, the state constitution and constitutional law
recognized the legislature’s authority to define individual rights, duties, and obligations.

The Supreme Court asserted that power in the landmark case of Marbury v. Madison

45
(1803).36 In declaring that it is the Court’s duty “to say what the law is” under the
Constitution, Chief Justice Marshall asserted the enduring principle of judicial review.
Since judicial review enables courts to check majority will and laws from the political
branches, it remains a controversial and formidable power of appellate court policymaking
(see Chapter Nine).37

Administrative Law
Although the U.S. Constitution omits any reference to a government bureaucracy, the
realities of governing made the creation of administrative agencies necessary. At the federal
and state level, the legislature makes statutory law, but administering it requires agencies for
its implementation. Executive agencies play a formidable role in Washington, D.C., as well
as in most state capitals, because they possess delegated legislative authority to make law. In
the federal government, there are numerous executive departments, such as Commerce,
Defense, Energy, Labor, Education, Justice, and Transportation. In addition, there are a
number of independent agencies and government corporations (which compete with
private enterprise), as well as a host of other boards, commissions, and advisory committees
that perform specialized bureaucratic tasks and a range of services. The Environmental
Protection Agency, the Federal Communications Commission, the Nuclear Regulatory
Commission, the Securities and Exchange Commission, and the U.S. Postal Service are
familiar examples of independent agencies and government corporations that have been
delegated specific powers to regulate environmental protection, public broadcasting,
nuclear energy and safety, financial securities in the marketplace, and the nation’s postal
service.

Under the federal Administrative Procedure Act,38 and similar state laws, administrative
agencies are key sources of law because they are empowered to make administrative
regulations. Federal regulations, which are published in theFederal Register and are
accessible in the Code of Federal Regulations, are based on broad legislative mandates
expressed in legislation and statutory law. Because Congress lacks the institutional
capability to review the application of its statutes, it falls to administrative agencies to
interpret and implement them. As a result, agencies also have quasi-judicial functions in
resolving disputes with other agencies, interest groups, and the public, typically after agency
hearings before promulgating regulations.

A recurring constitutional issue affecting agency regulations in the modern post–New Deal
era since 1937 is the amount of judicial deference courts owe to agencies. The growth of
the institutional presidency and the expanding role of the federal government since World
War II have placed increasing pressure on courts to act as guardians or overseers of the
administrative state. The battleground for testing the constitutional limits of agency power
generally revolves around statutory interpretation (a topic that is explained further in
Chapter Nine). Agencies must construe and apply legislation, and in doing so, they issue

46
rules and regulations that may be challenged in federal courts. When reviewing agency
interpretations and regulations, courts are generally deferential. In Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc. (1984),39 the Supreme Court established guidelines
that frame judicial review of agency statutory interpretation. If Congress’s legislative intent
is clear, then the courts should defer to an agency’s construction of the statute; but if the
statute is ambiguous, then courts should only overturn an agency’s action if its
interpretation of the statute is unreasonable. Even though the Supreme Court continues to
interpret the precise scope and application of the Chevron rule in subsequent cases, the
judiciary still retains significant control over agency regulations and lawmaking.40

Criminal Law
Criminal law deals with the use of governmental power to enforce violations of federal and
state penal codes. The legal guilt for committing a crime is defined under statutory law that
covers different kinds of illegal behavior, ranging from traffic offenses to capital murder.
Generally, crimes are categorized in accordance with the harm they cause. Felonies, such as
arson, rape, aggravated assault, and grand larceny, are serious offenses, punishable by
lengthy prison sentences. Misdemeanors involve less property or bodily harm and include
minor offenses, such as disorderly conduct, possession of marijuana (in small amounts),
loitering, and public intoxication. Accordingly, misdemeanors carry less severe
punishments, typically with shorter incarceration (less than one year) or the payment of
restitution.

“[If] the Government becomes a lawbreaker,” Justice Louis Brandeis once said, “it breeds
contempt for the law.”41 Perhaps more than any other aspect of American jurisprudence,
courts must ensure that those accused of a crime are treated fairly and swiftly. As Justice
Brandeis recognized, courts are obliged to strike a balance between individual freedom and
public safety in criminal law. From the time of arrest until sentencing or acquittal, courts
exercise their discretion in affording criminal defendants substantive and procedural rights.

For example, in Gideon v. Wainwright (1963),42 a landmark case guaranteeing the right to
counsel for indigent defendants, the Court protected Clarence Gideon’s right under the
Sixth Amendment to have an attorney appointed for him at trial. The rulings in Mapp v.
Ohio (1961),43 which upheld the exclusionary rule (requiring the exclusion at trial of
evidence obtained from an unreasonable search or seizure under the Fourth Amendment),
and Miranda v. Arizona (1966),44 which requires police to read defendants their “Miranda
warnings” in order to prevent violations of the Fifth Amendment’s privilege against self-
incrimination, are other often-cited examples of cases expanding defendants’ rights. Because
the accused is presumed innocent and the government has the burden of proving guilt
beyond a reasonable doubt, courts pay careful attention to whether rules of legal procedure
and evidence are fairly applied in accord with constitutional requirements. Under the Sixth
Amendment, for instance, defendants are entitled to “a speedy and public trial, by an

47
impartial jury.” In enforcing the right to a “speedy” and “public” trial with an “impartial
jury,” courts create legal standards in order to guarantee that the government respects those
rights. Batson v. Kentucky (1986),45 for example, held that the prosecution cannot use
peremptory challenges—procedural requests to exclude persons from jury service—to
remove African Americans from juries because racial considerations violate the defendant’s
right to an impartial jury. The Court’s rulings pertaining to the process of arraignment,
bail, and the introduction of evidence at trials are further examples of legal procedures that
have significant consequences in criminal law (criminal procedure is further considered in
Chapter Seven).

48
Private Law
Private law regulates the affairs of citizens in a variety of legal areas. It is the primary
mechanism by which individuals resolve personal disputes. It defines personal obligations
to other citizens, groups, or business entities. At the same time, it also gives citizens vested
interests in remaining safe from physical or material harm. The law regulating corporate
behavior is private law, as is the law establishing the rules governing civil marriage, divorce,
and child custody. The assets and liabilities of a person’s estate are distributed in accordance
with the law of probate, another subunit of private law. These typologies and others (listed
in Table 1.2) are also considered civil law.

Notably, civil law, as used here, has a different connotation from that of the (code-based)
European civil law tradition, and it is most easily understood in contrast to criminal law. In
criminal law, the government has an interest in the prosecution of offenders who commit
crimes. Conversely, in civil law, the government’s interest usually only extends to providing
citizens with the means of resolving a private dispute. To illustrate, a person failing to fulfill
a contract or causing personal injuries by acting negligently (a tort action) is a civil action in
private law (civil litigation is further discussed in Chapter Eight).

Contract Law
The modern law of contracts grew out of the common law tradition. In the United States,
contract law underwent a major transformation in the late eighteenth century. Under prior
doctrine, contracting parties could avoid performing their agreements if it could be shown
that the terms were clearly unfair. The emerging doctrine, often referred to as the will
theory of contracts, instead recognized that the law should honor agreements based on the
intent of the parties. In other words, the inherent fairness of the exchange became less
important than the fact that the contracting parties made an agreement. Accordingly, the
“convergence of wills”46 became a basis for modern contract law. Because the intent to
make a contract determines its enforceability, agreements reached in principle but not yet
performed—so-called executory contracts—became enforceable as well. In short, in making
contracts, parties may now be certain that their agreements would be legally binding
documents.

Will theory had enormous consequences. One effect was to transform the judicial function:
Courts began to share the responsibility with legislatures in determining statutory law.
Hence, “antebellum judges dethroned the English common law by Americanizing it,”47 a
process hastened by the judiciary’s rising stature as agents of economic lawmaking in all
aspects of capitalism, including contract, antitrust, labor, bankruptcy, and commercial law.
By the outbreak of the Civil War, contract law had become the predominant area and
source of private law. A corresponding legal change occurred in the law of torts as well,

49
particularly in the states.

Between the mid-nineteenth and early twentieth centuries, state courts were at the forefront
of preserving the sanctity of private agreements. Federal courts also helped lay the basis for
the expansion of capitalism and the sustained protection of private property by affirming
Congress’s power to enforce public contracts and, later, by preventing states from passing
laws that would deny individuals the “liberty of contract” in the beginning of the twentieth
century. Two decisions, Fletcher v. Peck (1810) and Trustees of Dartmouth College v.
Woodward (1819),48 interpreted Article I, Section 10, of the U.S. Constitution, which bars
states from impairing the obligations of contracts, to hold that states could not deny the
validity of public as well as private contracts—specifically, the land grant given to investors
by the Georgia legislature in Fletcher and the English royal charter that devolved into an
agreement with the state of New Hampshire to set up a college in Dartmouth College.
Moreover, in Allgeyer v. Louisiana (1897),49 the Fourteenth Amendment’s due process
clause was broadly construed to create a “liberty of contract” that protected “all contracts
which may be proper, necessary, and essential” to a citizen’s right to “be free in the
enjoyment of all his faculties.” The principle was, then, used to nullify a New York labor
law regulating the number of hours bakery workers could work in Lochner v. New York
(1905).50 These early decisions underscored the vital role that federal and state courts
played in developing the law of contracts as well as the general economic liberty principles
of constitutional law.

Tort Law
Tort law affords remedies for private civil injuries, and can be traced back to 1850 when it
was recognized as a separate category of law. Before then, most legal claims seeking relief for
harm caused by acts that did not arise from contract law—such as injury to a person’s
reputation (slander or libel), a threat to do bodily harm (assault), or harmful physical
contact (battery)—were typically adjudicated under the common law system of writs, such
as “trespass” (directly violating a person’s property interest) or “trespass on the case”
(indirectly violating a person’s property interest). Advances in technology and
industrialization after the Civil War exposed the difficulties of litigating newly discovered
tort claims—often caused by steamboats, railroads, and industrial accidents—with the
arcane rules of common law pleading. The law of torts thus emerged and eventually
expanded to include fault-based conceptions of legal liability, like negligence, and related
issues of the foreseeability of harm, such as “proximate cause.”51

Under common law, tort claims did not have to prove fault or intent because rules of strict
liability applied. That is, all an injured plaintiff had to show was that the defendant
committed the act in question, without regard to fault. In Brown v. Kendall (1850),52
however, the Supreme Court of Massachusetts helped revolutionize the law of torts by
holding, in the words of Chief Justice Lemuel Shaw, “the plaintiff must come prepared

50
with evidence to show either that the [defendant’s] intention was unlawful or that the
defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant
was free from blame, he will not be liable.” The controlling standard of legal liability for the
tort of negligence, he wrote, was that the parties exercise “ordinary care,” or “that kind and
degree of care, which prudent and cautious men would use, such as is required by the
exigency of the case, and such as is necessary to guard against probable danger.” In other
words, a plaintiff could only win if there was proof that the defendant did not use ordinary
care. Moreover, Chief Justice Shaw added there would be no liability if the plaintiff helped
cause the accident—that is, if there was no “contributory negligence.”

The new standards for tort liability, however, generally permitted corporate and business
defendants to escape liability, while promoting the development of capitalism in the mid
nineteenth and the early twentieth centuries. By fashioning rules based on fault liability and
intentional conduct, courts rewrote tort law by creating precedents that transferred the cost
of having accidents from employers to insurance companies and, sometimes, to injured
plaintiffs. Such early common law decisions laid the basis for distinguishing three general
types of torts that structure today’s modern tort law: Intentional torts are those causing
harm by intentional conduct. Familiar examples include assault and battery, trespassing,
and false imprisonment. Negligent torts involve the imposition of liability without regard to
legal intent. Strict liability torts are similar to the common law torts of trespass in the sense
that liability is imposed without regard to legal intent or fault. Simply engaging in the
activity is enough, typically because it is abnormally dangerous or hazardous. To illustrate,
product liability cases—those lawsuits that hold manufacturers strictly liable for the injuries
they cause by making defective products—arise, for example, when harm is caused by a
car’s defective braking system or through an explosion resulting from a faulty fuel tank on a
jet.

Incurring tort liability remains a contentious public policy issue that often pits trial lawyers
against the insurance industry and business interests. In establishing the rules of tort
liability, judges and legislators alike determine the legal standards by which individuals and
corporations are held financially liable. Over the past generation, extensive efforts have been
made to reform tort law (as further considered within the context of the civil litigation
process in Chapter Eight).

51
The Role of Courts in Contemporary Society
The different typologies and sources of law, just discussed, are the touchstone for the way
courts function in the United States and elsewhere. Moreover, all courts function and
discharge their duties in accordance with established judicial roles, or a “set of expectations,
values, and attitudes about the way judges behave and should behave.”53 Courts perform
several functions and roles, the most important of which are as mediators of conflict,
creators of legal expectations, guardians of individual and minority rights, therapeutic
(problem-solving) agents, and policymakers.

52
Mediators of Conflict
Traditionally, courts are forums for reconciling conflict. As arbiters of private and public
disputes, they not only provide security by preventing vigilantism but also help set priorities
in public policy and distribute societal resources among competing interests. In the U.S.
and the common law tradition, the courts perform this function through an adversary
process that allows judges to render impartial decisions after gathering the facts and
applying the law in cases. Not everyone who believes he or she may have suffered some
harm through the misfeasance of others actually seeks the help of attorneys and courts,
however (see “Contemporary Controversies Over Courts: The Dispute Pyramid”). For
those who do seek legal relief, the main participants in adversarial litigation (parties,
lawyers, and judges) engage in criminal and civil cases—lawsuits in those types of cases
differ because in criminal cases the law is enforced to maintain the public peace, whereas in
civil cases a private claim is asserted seeking monetary damages for a legal injury. In both
types of cases, parties reach settlements either informally (before a trial) or formally (after a
trial). Some disputes having significant legal ramifications, such as contract enforcement in
construction projects, or property division in divorce cases, are resolved without invoking
the full expense of the formal trial process through alternative dispute resolution (ADR)
mechanisms, sometimes connected to court forums, but many times not (in private
settings). The similarities and differences between adversarial litigation in criminal and civil
cases, and the ADR alternatives, are analyzed further in Chapters Seven and Eight.

53
Creators of Legal Expectations
Courts create and order legal and social expectations. Citizens know that legislatures make
law and are aware that courts apply the law and establish rights. In defining the scope of
legal duties and rights, courts thereby create and reinforce public expectations about the
law. In this regard, the published opinions of courts are valuable in not only justifying their
decisions but also orienting social behavior and enabling citizens to know the probable
consequences of their actions.

The Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey

(1992)54 is illustrative. There, in an unusual plurality-joint opinion by Justices Sandra Day
O’Connor, Anthony Kennedy, and David Souter, the Court employed the doctrine of stare
decisis to uphold Roe v. Wade, the 1973 ruling recognizing a woman’s right to choose an
abortion. The decision to affirmRoe’s “central holding” exhibited the Court’s reluctance to
upset legal and social expectations. In the words of the plurality opinion in Casey:

For two decades of economic and social developments, people have organized intimate
relationships and made choices that define their views of themselves and their places in
society, in reliance on the availability of abortion in the event that contraception
should fail. The ability of women to participate equally in the economic and social life
of the Nation has been facilitated by their ability to control their reproductive
lives....The Constitution serves human values, and while the effect of reliance on Roe
cannot be exactly measured, neither can the certain cost of overruling Roe for people
who have ordered their thinking and living around that case be dismissed.

In addition to concluding that the social cost of overruling Roe was too great, the Court
pragmatically recognized that reversing Roe would significantly damage the public’s
confidence in the Court as an institution. Although the dissenting justices thought
otherwise, the plurality asserted that the Court’s institutional legitimacy depends on
fulfilling the expectations that courts create by demonstrating a commitment to existing
precedent.

54
Contemporary Controversies Over Courts
The Dispute Pyramid

Scholars have long recognized that citizens who decide to litigate undergo an incremental decision-making
process of “naming, blaming, and claiming” before they file a lawsuit. “Naming” is recognizing an injury;
“blaming” is identifying who is responsible for the injury; and “claiming” is the pursuit of a claim against an
allegedly responsible party. Identifying injuries and making claims against culpable parties is a complex
sociopsychological, cultural, economic, and institutional process because litigants must make several choices
among a range of options before deciding to sue, including whether to incur the time and expense of
enlisting the help of lawyers or courts. As a result, going through the decision-making process to litigate
often has the effect of discouraging citizens from pursuing their claims through formal legal action.

Individuals with grievances, or beliefs of perceived injuries or entitlements, assign blame and may elect to
assert a legal claim against those who are thought to be responsible. The injury or entitlement may be real or
not; and whether it is acted upon further depends upon the individual’s perception or beliefs. Some claims
may be brought to the offending party for relief while others are dropped for a variety of reasons
(indifference, lack of knowledge about what to do next, or the reluctance to spend time or money in
pursuing grievances further). If additional action is taken, a legal dispute emerges once the legal claim for
relief is rejected by the offending party. Thereafter, the legal dispute may be handled in different ways, again
depending upon another set of contingencies or circumstances: A person may opt to do nothing further, or
to consult with a lawyer, or to file a formal legal action (with or without a lawyer’s help). For those filing a
lawsuit, a settlement or trial may occur, and, thereafter, an appeal may be filed if the losing party deems it is
worth it to do so after weighing several alternatives.

The dispute pyramid (see below) registers the significance of acting upon grievances, claims, and disputes in
the judicial process in varying social and legal surroundings. Within the context of tort litigation (civil
actions claiming monetary damages for wrongful acts), researchers have used the dispute pyramid to rebut
the criticism that the civil justice system is being abused by lawyers and litigants who file groundless lawsuits
in order to get a financial windfall from deep-pocket corporations or insurance companies. Such criticisms
are highly relevant and generate contentious political and public policy arguments that weigh the merits of
tort reform, including capping jury awards of punitive damages in medical malpractice lawsuits, or limiting
the number of class action lawsuits that are filed for product liability claims (civil litigation and litigating
tort cases are discussed in Chapter Eight).

A review of the dispute pyramid shows how difficult it is to transform tort-based grievances into actionable
legal claims and disputes that are handled by attorneys and courts. At the bottom of the pyramid rests a
large number of grievances, which result from allegedly wrongful acts or events, such as the manufacture
and use of a defective product that causes a real or perceived injury. While some grievances may be pursued
further, many others are dropped for a variety of reasons. If more action is taken, those with grievances
name their injury and assign blame by notifying the offending party of a legal claim. Those claims reside in
the next layer above grievances in the dispute pyramid. Notably, claims may be satisfied in whole or in part,
typically by fixing the problem or paying compensation without having to consult a lawyer or file a lawsuit.
As a result, only a narrow set of claims are transformed into legal disputes once claims for relief are rejected
(at the top of the pyramid). Yet many disputes may be abandoned, and only a few may be formally
adjudicated by lawyers who file lawsuits and engage in the settlement, trial, or appeal process.

Accordingly, the dispute pyramid indicates that as cases move up the pyramid there is an increasing attrition
of civil cases. Only a small proportion of grievances and claims become legal disputes requiring the formal
action of lawyers or courts for resolution. Therefore, the pyramid suggests that the legal system may promise
more than it can deliver in formally resolving disputes; and it provides evidence that critics are mistaken in
arguing that the United States is an overly litigious society in the tort reform debate.

55
Apart from tort reform, the dispute pyramid explains the litigation patterns of incarcerated prisoners
asserting inmate administrative appeals and constitutional claims in federal courts. One study shows that
despite many barriers California prisoners are more likely to file multiple grievances about inhumane prison
conditions, but with little impact. Under federal law, prisoners must complete an internal three-stage
administrative grievance process before filing a lawsuit raising constitutional issues, such as arguing that
prison overcrowding or inadequate medical care violates the Eighth Amendment’s cruel and unusual
punishment ban. Other disincentives inhibit the filing of grievances in prisons: Prisoners may fear
retaliation by prison officials, manifest self-blame in causing incarceration, or wish to avoid being
stigmatized as a troublemaker.

Still, the study found that the prison environment mobilizes prisoners to name injuries, assign blame, and
file claims in tens of thousands of cases because it is uniquely law-centric and tightly regulated (armed
guards, strict control over movement, and disciplinary rules); but often prisoners do not get legal relief
because a majority of complaints are resolved administratively and rarely reach the courts. Thus, as the
dispute pyramid would predict, the mere presence of a large amount of grievable problems does not mean
they will become actionable legal disputes in courts because of administrative obstacles and the problems of
prisoner vulnerability, self-blame, and stigma. Nonetheless, it is worth noting that the dispute pyramid
cannot accurately predict all litigation outcomes. For example, in Brown v. Plata (2011), the U.S. Supreme
Court ordered the release of thousands of California prisoners because allowing inhumane prison conditions
was a violation of the Eighth Amendment’s ban on unusual and cruel punishments.

Sources: The two studies examined above are from Kitty Calavita and Valerie Jenness, “Inside the Pyramid
of Disputes: Naming Problems and Filing Grievances in California Prisons” Social Problems 60 (2013): 50–
80; and Marc Galanter, “Real World Torts: An Antidote to Anecdote,” Maryland Law Review 55 (1996):
1094–160. For further reading, see Richard E. Miller and Austin Sarat, “Grievances, Claims, and Disputes:
Assessing the Adversary Culture,” Law and Society Review 15 (1980–1981): 525–66; William L. F.
Felstiner, Richard L. Abel, and Austin Sarat, “The Emergence and Transformation of Disputes: Naming,
Blaming, and Claiming...,” Law and Society Review 15 (1980–1981): 631–54; Marc Galanter, “Access to
Justice in a World of Expanding Social Capability,” Fordham Law Review 38 (2010): 115–28; and Brown v.
Plata,131 S. Ct. 1910 (2011).

56
Guardians of Individual and Minority Rights
Constitutional framer Alexander Hamilton thought that the responsibility of courts was to
act as “faithful guardians of the Constitution.” In defending the judiciary’s power to
exercise judicial review, he observed that the courts safeguard the values underlying the
Constitution by exercising the authority to overrule laws originating from “occasional ill
humors in the society.” Since the Constitution provided for judicial independence from the
other branches of government, Hamilton believed the judiciary was a bulwark against
legislation threatening to compromise constitutional rights and the rule of law. In
defending the role of courts in Federalist No. 78, he observed that “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 the capacity to annoy or injure them.” In
democracy with separation of powers, the courts are limited in what they can do. As
Hamilton further explained:

The judiciary... has no influence over either the sword or the purse; no direction either
of the strength or of the wealth of the society; and can take no active resolution
whatever. It may truly be said to have neither FORCE nor WILL, but merely
judgment; and must ultimately depend upon the aid of the executive arm even for the
efficacy of its judgments.55

Although Hamilton favored what is called judicial self-restraint (that courts should defer
to the legislature), judicial review enabled courts to assume in constitutional democracies
the important role of safeguarding individual and minority rights against dominant
political majorities in the legislative process. In United States v. Carolene Products Co.
(1938) and its famous “Footnote Four” (of that decision), the U.S. Supreme Court signaled
that the Court has a special obligation to safeguard the rights of “discrete and insular
minorities” when they are diminished by legislative action in the political system—
otherwise known as the “preferred freedoms” doctrine. Under Footnote Four’s rationale,
the judiciary has invoked strict scrutiny (a rigorous standard of judicial review) to test the
constitutionality of laws that may infringe upon fundamental rights. Accordingly, since
World War II, the Court’s agenda has changed: Instead of mostly deciding constitutional
cases testing the limits of economic regulation, increasingly the Court has reviewed civil
rights and liberties appeals that implicate the scope of the Court’s guardian role in
affirmative action, free speech, and other cases.56

57
Therapeutic (Problem-Solving) Agents
In recent years, one of the most important trends in the U.S. courts has been the growing
acceptance of therapeutic jurisprudence, or “the role of the law as a therapeutic agent.”57
Increasingly, problem-solving courts, which let judges use the law as a form of mental
health therapy to enhance individual well-being, are becoming a significant part of the legal
landscape. Most but not all problem-solving courts are specialized courts that assist underage
offenders, defendants accused of domestic violence or drug crimes, and those with mental
health problems. Several states use such courts to address problems of homelessness,
prostitution, sexual predators, gambling, and (through so-called reentry courts) offenders
who have been released from prison but cannot assimilate into the community. Since 1993,
at least seventy nonspecialized problem-solving courts also have been created. Styled as
“community courts,” these judicial bodies tackle broad social problems relating to crime,
public safety, and quality of life at the neighborhood level.58

Equal Justice (the frieze on the West Pediment of the U.S. Supreme Court building)

Steve Petteway, Collection of the Supreme Court of the United States

While the origin of problem-solving courts runs back to the creation of juvenile courts in
1899, they have gained wider appeal since the opening of a drug court in Dade County,
Florida, in 1989. In response to the problems of recidivism and prison overcrowding, the
basic model of therapeutic courts aims to let problem-solving judges manage their dockets
and impose sentences requiring long-term monitoring instead of incarceration. That court’s
success encouraged others to adopt similar programs.

58
In general, these problem-solving courts have at least three characteristics: (1) intensive
judicial monitoring, requiring offenders to report to the court regularly on the status of
their efforts in drug treatment, securing employment, completing restitution, and the like;
(2) aggressive professional outreach, involving judicial efforts to create a symbiotic
relationship with off-site professionals, such as social workers or social scientists; and (3)
community engagement, involving judicial efforts to establish a relationship with
community leaders and laypersons and encouraging them to participate actively in the
justice system.59

Most significantly, problem-solving courts are nonadversarial and aim at solving the
underlying problems contributing to a crime, instead of focusing on assigning guilt or
innocence. They also differ from traditional adversarial processes and courts, which are
essentially backward looking in resolving legal disputes involving the claims of only a few
participants. Therapeutic or problem-solving courts are forward looking in focusing on
dispute avoidance and reaching results based on a collaborative process that serves the
interests of individuals and the larger community.60 In problem-solving courts, trial judges
function more like social workers. Instead of simply handing down sentences or verdicts,
without getting to the root of a defendant’s problems, they embrace a holistic approach in
addressing an offender’s problems by providing motivation, monitoring progress, and
connecting the offender to social services. During the process, judges also educate the
public about the best methods to prevent antisocial behavior.61

Advocates of problem-solving courts argue that they are a necessary response to the failures
of traditional courts and the adversary process, which exact great costs and emotional toll
from defendants, their families, and communities. In other words, they are a more efficient
and humane method of providing justice. Although the evidence is mixed, they also may
help to reduce crime rates, prevent prison overcrowding, and address caseload problems
typically found in adversarial courts. The promise of therapeutic courts is evident from the
over 2,800 problem-solving courts currently in operation.62

Still, therapeutic courts remain controversial. Critics assert that the advantages of such
courts are offset by judges having to assume the time-intensive role of a collaborator—a
task for which they are untrained. Some victims and victims’ rights groups also oppose
them for moving away from the traditional function of courts, namely, serving justice by
handing down penalties and other kinds of punishment. Other criticisms include that it is
improper for the government to be paternal in delivering legal services; that the problem-
solving approach wrongly diverts public funds and judicial resources away from other areas
of criminal justice; and that defendants are basically coerced into sacrificing their due
process rights by agreeing to participate in treatment programs that they may not fully
understand.63

59
Policymakers
Judicial policymaking occurs in all courts and at all levels of the state and federal judiciaries
(as further discussed in Chapters Nine and Ten). Although courts decide only particular
cases and controversies raised by the parties in a lawsuit seeking judicial relief, their
decisions and outcomes often have wider public policy implications, especially in dealing
with politically highly charged controversies, like abortion, affirmative action, and
governmental surveillance. In a study of U.S. district courts’ decisions in cases challenging
the USA PATRIOT Act (the key antiterrorism legislation enacted in the aftermath of
September 11), political scientists Christopher Banks and Steven Tauber found that district
court judges are highly deferential to law enforcement officials during times of emergency
and “war,” while nonetheless forging judicial policy in the fight against international
terrorism.64 Likewise, federal and state appeals courts, especially the U.S. Supreme Court
and state supreme courts, have assumed important roles in public policymaking (as further
analyzed in Chapters Nine and Ten). They have creatively established new legal rules in a
variety of controversial social policy areas, such as school desegregation, abortion, gun
rights, and same-sex discrimination and marriage, among other hotly contested areas of
public policy.

60
Chapter Summary
The nature and sources of law and relation to diverse legal systems are examined. The main
legal systems are based on common law, civil law, customary law, or a mixture of either or
any of those plus religious law. Two principal categories of law are public law (which
involves disputes between the government and individuals or groups) and private law
(which involves disputes between two private parties), including common law and civil law.
Within each of those categories, there are different types of law: Public law includes
constitutional law, statutory law, and criminal law, among others, while private law
includes contract law and tort law, among others. Courts employ different methods and
processes. The two most notable are the adversarial system, in which judges act as impartial
arbitrators of disputes, and which is used in the United States and other common law
countries, and the inquisitorial system, in which judges are proactive, as generally found in
civil law countries. Courts and judges may play various roles in society. Besides being
adjudicators of disputes, they may serve as mediators of private and public conflicts,
creators of legal expectations, guardians of individual and minority rights, and agents of
therapeutic justice as well as important makers of legal and public policy.

61
Key Questions for Review and Critical Analysis
1. What are some of the problems nations face in applying the law if they have a mixed
legal system?
2. Why is it important to distinguish public law from private law?
3. Why do you think the United States has an adversarial as opposed to an inquisitorial
system?
4. Relative to the roles courts play in society, do judges simply “declare” the law instead
of “making” it?
5. What are the strengths and weaknesses of having problem-solving courts in a
common law adversarial system?

62
Web Links
1. 1. Supreme Court of the United States home page (www.supremecourt.gov)
A rich source to learn about the U.S. Supreme Court, its justices, how it
performs its judicial role, and how it decides constitutional law cases. The site
contains past and present judicial opinions from the Court and has links to
other legal and judicial information.
2. World Legal Systems, by University of Ottawa Law Faculty (www.juriglobe.ca)
A comprehensive explanation and listing of all world legal systems.
3. National Center of State Courts (www.ncsc.org)
An exhaustive repository of information pertaining to the work and
policymaking of all state courts in the United States. The site is home to the
Justice System Journal, an important publication outlet for academic studies
related to key issues confronting state judiciaries.

63
Selected Readings
Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven, Conn.: Yale
University Press, 1921.

David, Rene, and John E. C. Brierley. Major Legal Systems in the World Today. 3rd ed.
London: Stevens and Sons Ltd., 1985.

Friedman, Lawrence M. American Law in the 20th Century. New Haven, Conn.: Yale
University Press, 2002.

Glenn, Patrick H. Legal Traditions of the World: Sustainable Diversity in Law. 4th ed.
New York: Oxford University Press, 2010.

Guarnieri, Carlo, and Patrizia Pederzoli. The Power of Judges: A Comparative Study of
Courts and Democracy. Translated by C. A. Thomas. London: Oxford University Press,
2002.

Hall, Kermit L. The Magic Mirror: Law in American History. New York: Oxford
University Press, 1989.

Hall, Matthew E. K. The Nature of Supreme Court Power. New York: Cambridge
University Press, 2011.

Jackson, Vicki C. Constitutional Engagement in Transnational Era. Oxford: Oxford

University Press, 2010.

Kritzer, Herbert M., ed. Legal Systems of the World: A Political, Social and Cultural
Encyclopedia. Volume 1. Santa Barbara, Calif.: ABC-CLIO, 2002.

Merryman, John Henry. The Civil Law Tradition: An Introduction to the Legal Systems of
Western Europe and Latin America. 2nd ed. Stanford, Calif.: Stanford University Press,
1985.

64
Miller, Monica K., and Brian H. Bornstein. Eds. Stress, Trauma, and Wellbeing in the
Legal System [Electronic Resource]. New York: Oxford University Press, 2013.

O’Brien, David M., and Peter H. Russell, eds. Judicial Independence in the Age of
Democracy.Charlottesville: University Press of Virginia, 2001.

Otto, Jan Michiel, ed. Sharia Incorporated: A Comparative Overview of the Legal Systems
of Twelve Muslim Countries in Past and Present. Leiden, Netherlands: Leiden
University Press, 2010.

Rakove, Jack. Original Meanings: Politics and Ideas in the Making of the Constitution.
New York: Knopf, 1996.

Zweigert, Konrad and Hein Kotz. An Introduction to Comparative Law. 3rd ed.
Translated by Tony Weir. New York: Oxford University Press, 1998.

65
End Notes
1 Hugh Tomlinson, “Two Days After Getting Vote, a Mother Is Sentenced to 10 Lashes
for Driving,” The Times (London) (September 28, 2011), 23. See also Mohammed
Jamjoon, “Women Drive for Change in Saudi Arabia,” CNN Video Report (October 25,
2013), available at http://www.cnn.com/2013/10/25/world/meast/saudi-women-drivers-
jamjoom/ (last retrieved November 4, 2013).

2 Pew Research Center’s Forum on Religion and Public Life, State Legislation Restricting
Judicial Consideration of Foreign or Religious Law, 2010–2012 (April 8, 2013), available at
www.pewforum.org (last retrieved October 17, 2013). See also Associated Press, “Veil Bans
by Country: A Look at Restrictions on Muslim Headscarves Around the World,”
Huffington Post (September 18, 2013), available at www.huffingtonpost.com (last retrieved
October 14, 2013); Associated Press, “Quebec, Once Again Going Its Own Way, Defies
Protest to Push Curbs on Showy Religious Symbols,” Washington Post (October 9, 2013),
available at www.washingtonpost.com (last retrieved October 14, 2013); Associated Press,
“Spanish Court Overturns City’s Ban on Burqas,” Fox News (February 28, 2013), available
at www.foxnews.com (last retrieved October 15, 2013); Stephan Castle, “Britain Is Pulled,
Reluctantly, Into Debate Over Wearing Full-Face Veils in Public,” New York Times
(September 16, 2013), available at www.nytimes.com (last retrieved October 15, 2013);
and Liam Stack, “Saudi Men Go to Polls; Women Wait,” New York Times (September 30,
2011), A12.

3 Lawrence M. Friedman, Rogelio Perez-Perdomo, and Manuel A. Gomez, “Introduction,”

in Law in Many Societies: A Reader, edited by Lawrence M. Friedman, Rogelio Perez-
Perdomo, and Manuel A. Gomez (Stanford, Calif.: Stanford Law Books, 2011), 2; Susan S.
Silby, “J. Locke, op. cit.: Invocations of Law on Snowy Streets,” in Using Legal Culture,
edited by David Nelken (London: Wildy, Simmonds & Hill, 2012), 120–52.

4 See Lawrence M. Friedman, The Legal System: A Social Science Perspective (New York:
Russell Sage Foundation, 1975), 11–16.

5 Esin Orucu, “General Introduction: Mixed Legal Systems at New Frontiers,” in Mixed
Legal Systems at New Frontiers, edited by Esin Orucu (London: Wildy, Simmonds & Hill,
2010), 1–18.

6 See, e.g., Konrad Zweigert, and Hein Kotz, An Introduction to Comparative Law, 3rd ed.,
translated by Tony Weir (New York: Oxford University Press, 1998); Rene David and
John E. C. Brierley, Major Legal Systems in the World Today, 3rd ed. (London: Stevens &
Sons, 1985).

7 John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of

66
Western Europe and Latin America, 2nd ed. (Stanford, Calif.: Stanford University Press,
1985), 13; Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago:
University of Chicago Press, 1981), 128–29; James T. McHugh, Comparative
Constitutional Traditions (New York: Peter Lang, 2002), 18–19.

8 Philippe Bruno, “The Common Law From a Civil Law Perspective,” in Introduction to
Foreign Legal Systems, edited by Richard A. Danner and Marie-Louise H. Bernal (New
York: Oceana Publications, 1994), 2, 8. See also Aharon Barak, “A Judge on Judging: The
Role of a Supreme Court in a Democracy,” Harvard Law Review 116 (2002), 16, 25.

9 Merryman, The Civil Law Tradition, 111–13.

10 David and Brierley, Major Legal Systems in the World Today, 316–17.

11 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, Conn.: Yale
University Press, 1921), 124.

12 Daniel J. Boorstin, The Americans: The Colonial Experience (New York: Vintage Books,
1958), 201. See also A. E. Dick Howard, The Road for Runnymede: Magna Carta and
Constitutionalism in America (Charlottesville: University Press of Virginia, 1968), 117–25,
129–32.

13 The Federalist Papers (No. 78), edited by Clinton Rossiter (New York: Mentor, 1999),
433.

14 Zweigert and Kotz, An Introduction to Comparative Law, 242.

15 Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton, N.J.:
Princeton University Press, 1973), 85.

16 David and Brierley, Major Legal Systems in the World Today, 169–80; James Feinerman,
“Introduction to Asian Legal Systems,” in Introduction to Foreign Legal Systems, edited by
Richard A. Danner and Marie-Louise H. Bernal (New York: Oceana Publications, 1994),
98.

17 David and Brierley, Major Legal Systems in the World Today, 159–88, 191–224.

18 Joshua White, “Mohammed and Madison: A Comparison of the Qur’an and the U.S.
Constitution,” Journal of Transnational Law and Policy (Spring 2002), 310. See generally
Kathleen M. Moore, “Islamic Law,” in Legal Systems of the World: A Political, Social and
Cultural Encyclopedia, Volume 1, edited by Herbert M. Kritzer (Santa Barbara, Calif.: ABC-
CLIO, 2002), 755.

19 Sam Souryal, “The Religionization of a Society: The Continuing Application of Shariah

Law in Saudi Arabia,” Journal for the Scientific Study of Religion 26 (1987), 431.

67
20 Frank E. Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (London: Brill,
2000), 154. See generally Walid Iqbal, “Courts, Lawyering and ADR: Glimpses Into the
Islamic Tradition,” Fordham Urban Law Journal 28 (2001), 1039–40.

21 Ziad A. Al-Sudaitry, “The Constitutional Appeal of Shari’a in a Modernizing Saudi

State,” Middle East Law and Governance 2 (2010), 1–16; Abdullah Fakhry Ansary, “Saudi
Judicial Reform and the Principle of Independence,” Sada (May 5, 2009), available at
http://carnegieendowment.org/2009/05/05/saudi-judicial-reform-and-principle-of-
independence/fhpy (last retrieved November 13, 2013). See also Esther van Eijk, “Sharia
and National Law in Saudi Arabia,” in Sharia Incorporated: A Comparative Overview of the
Legal Systems of Twelve Muslim Countries in Past and Present, edited by Jan Michiel Otto
(Leiden: Leiden University Press, 2010), 139–80.

22 McHugh, Comparative Constitutional Traditions, 144. See also David and Brierley,
Major Legal Systems in the World Today, 548–76; A. N. Allott, “African Law,” in An
Introduction to Legal Systems, edited by J. Duncan M. Derret (New York: Praeger, 1968),
145.

23 H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law, 4th ed.
(New York: Oxford University Press, 2010), 319–60; James T. McHugh, The Essential
Concept of Law (New York: Peter Lang, 2001), 24–27; David and Brierley, Major Legal
Systems in the World Today, 518–21.

24 Elizabeth M. Lynch, “China’s Rule of Law Mirage: The Regression of the Legal
Profession Since the Adoption of the 2007 Lawyers Law,” George Washington International
Law Review (2010), 535, 537.

25 Lynch, “China’s Rule of Law Mirage, 541–42. See also Sida Liu, “Lawyers, State
Officials and Significant Others: Symbiotic Exchange in the Chinese Legal Services
Market,” The China Quarterly (2011), 276–93; “Legal Report,” Beijing Review 56, no. 27
July 4, 2013), 5; Xin He and Kwai Hang Ng, “Inquisitorial Adjudication and Institutional
Constraints in Chinese Civil Justice,” Law and Policy 35, no. 4 (2013), 290–318; and
Wang Hong, “Building a Guiding Precedents System With Chinese Characteristics,” Dui
Hua Human Rights Journal (December 7, 2012), available at
http://duihuahrjournal.org/2012/12/can-chinas-legal-reform-survive-without.html?m=1
(last retrieved January 19, 2014).

26 Andrew Jacobs and Chris Buckley, “Chinese Activists Test New Leader and Are
Crushed,” New York Times (January 15, 2014), available at www.nytimes.com, (last
retrieved January 20, 2014); Elizabeth M. Lynch, “China’s Rule of Law Mirage: The
Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law,” George
Washington International Law Review (2010), 535–85; and Randall Peerenboom, “The
Future of Legal Reforms in China: A Critical Appraisal of the Decision on

68
Comprehensively Deepening Reform,” Social Science Research Network (January 14,
2014), available at http://ssrn.com/abstract=2379161 (last retrieved January 20, 2014). The
reform proposals are detailed in “CCP Central Committee Resolution Concerning Some
Major Questions in Comprehensively Deepening Reform” (Enacted at the Third Plenum
of the 18th Central Committee of the Chinese Communist Party on November 12, 2013),
China Copyright and Media (November 15, 2013), available at
http://chinacopyrightandmedia.wordpress.com/2013/11/15/ccp-central-committee-
resolution-concerning-some-major-issues-in-comprehensively-deepening-reform/ (last
retrieved January 20, 2014).

27 Aharon Barak, “Some Reflections on the Israeli Legal System and Its Judiciary,”
Electronic Journal of Comparative Law (April 2002). See also Adam S. Hofri-Winogradow,
“A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State,” Journal
of Law and Religion 26, no. 1 2010–2011), 57–89.

28 David Haljan, Separating Powers: International Law Before National Courts [Electronic
Resource] (The Hague: T.M.C. Asser Press, 2013), 2.

29 Dinah Shelton, “Introduction,” in International Law and Domestic Legal Systems:

Incorporation, Transformation, and Persuasion, edited by Dinah Shelton (Oxford: Oxford
University Press, 2011), 1. See also Philippa Webb, International Judicial Integration and
Fragmentation (New York: Oxford University Press, 2013), 3–9.

30 Jenia Iontcheva Turner, “Transnational Networks and International Criminal Justice,”

Michigan Law Review 105 (March 2007): 985, 992–94. See also Anne-Marie Slaughter, A
New World Order (Princeton, N.J.: Princeton University Press, 2004), 68–69, 72; Anne-
Marie Slaughter, “A Global Community of Courts,” Harvard International Law Journal 44
(Winter, 2003), 191–219; Robert O. Keohane and Joseph S. Nye, Jr., “Introduction,” in
Governance in a Globalizing World, edited by Joseph S. Nye, Jr., and John D. Donahue
(Washington, D.C.: Brookings Institution Press, 2000), 12.

31 Jill Crystal, “Saudi Arabia,” in Legal Systems of the World: A Political, Social and Cultural
Encyclopedia, Volume 1, edited by Herbert M. Kritzer (Santa Barbara, Calif.: ABC-CLIO,
2002), 1418. See also Ziad A. Al-Sudaitry, “The Constitutional Appeal of Shari’a in a
Modernizing Saudi State,”Middle East Law and Governance 2 (2010), 1–16; Abdullah
Fakhry Ansary, “Saudi Judicial Reform and the Principle of Independence,” Sada (May 5,
2009), available at http://carnegieendowment.org/2009/05/05/saudi-judicial-reform-and-
principle-of-independence/fhpy (last retrieved November 13, 2013), 6.

32 Roscoe Pound, “The Decadence of Equity,” Columbia Law Review 5 (1905), 28.

33 Richard A. Posner, The Problems of Jurisprudence (Cambridge, Mass.: Harvard

University Press, 1990), 220–21, 313–15.

69
34 42 U.S.C. § 12101 et seq. (1990).

35 McAuliffe v. Mayor and Board of Aldermen of New Bedford, 155 Mass. 216 (1892).

36 Marbury v. Madison, 5 U.S. 137 (1803).

37 See generally Paul W. Kahn, The Reign of Law: Marbury v. Madisonand the Construction
of America (New Haven, Conn.: Yale University Press, 2003).

38 5 U.S.C. Section 550, et seq. (2000).

39 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

40 Bradley George Hubbard, “Deference to Agency Statutory Interpretations First

Advanced in Litigation? The ‘Chevron’ Two-Step and the ‘Skidmore’ Shuffle,” University of
Chicago Law Review 80 (2013), 447–86; J. Lyn Entrikin Goering, “Tailoring Deference to
Variety With a Wink and a Nod to Chevron: The Roberts Court and the Amorphous
Doctrine of Judicial Review of Agency Interpretations of Law,” Journal of Legislation 36
(2010), 18–89. See also United States v. Mead Corporation, 533 U.S. 218 (2001); Skidmore
v. Swift and Company, 323 U.S. 134 (1944).

41 Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, L., dissenting).

42 Gideon v. Wainright, 372 U.S. 335 (1963).

43 Mapp v. Ohio, 367 U.S. 643 (1961).

44 Miranda v. Arizona, 384 U.S. 436 (1966).

45 Batson v. Kentucky, 476 U.S. 79 (1986).

46 Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police
Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993), 49; Morton J.
Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard
University Press, 1976), 160–61.

47 Kermit L. Hall, The Magic Mirror: Law in American History (New York: Oxford
University Press, 1989), 109.

48 Trustees of Dartmouth College v. Woodward, 127 U.S. 518 (1819); Fletcher v. Peck, 10
U.S. 87 (1810).

49 Allgeyer v. Louisiana, 165 U.S. 578 (1897).

50 Lochner v. New York, 198 U.S. 45 (1905).

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51 Kermit L. Hall, William M. Wiecek, and Paul Finkelman, American Legal History: Cases
and Materials, 2nd ed. (New York: Oxford University Press, 1996), 179.

52 Brown v. Kendall, 60 Mass. 292 (1850).

53 Carlo Guarnieri and Patrizia Pederzoli, The Power of Judges: A Comparative Study of
Courts and Democracy (Oxford: Oxford University Press, 2002), 68.

54 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), 856.

55 Alexander Hamilton, “The Federalist Papers: No. 78,” The Avalon Project: Documents in
Law, History and Diplomacy, available at http://avalon.law.yale.edu/18th_century/fed78.asp
(last retrieved November 10, 2013).

56 See, e.g., Schuette v. Coalition to Defend Affirmative Action, 134 S.Ct. 1623 (2014)
(affirmative action). See also Guarnieri and Pederzoli, The Power of Judges, 159, 161; Barry
Cushman, “Carolene Products and Constitutional Structure,” The Supreme Court Review
(2012), 321–77; Richard L. Pacelle, The Transformation of the Supreme Court’s Agenda:
From the New Deal to the Reagan Administration (Boulder, Colo.: Westview Press, 1991);
and United States v. Carolene Products Co., 304 U.S. 144 (1938).

57 Lorie L. Sicafuse and Brian H. Bornstein, “Using the Law to Enhance Wellbeing:
Applying Therapeutic Jurisprudence in the Courtroom,” in Stress, Trauma, and Wellbeing
in the Legal System [Electronic Resource], edited by Monica K. Miller and Brian H.
Bornstein (New York: Oxford University Press, 2013), 15.

58 National Center for State Courts, A Community Court Grows in Brooklyn: A

Comprehensive Evaluation of the Red Hook Community Justice Center: Final Report
(Williamsburg, Va.: National Center for State Courts, 2013), available at
http://www.ncsc.org/~/media/files/pdf/services%20and%20experts/areas%20of%20expertise/problem%20
red-hook-final-report.ashx (last retrieved November 14, 2013). See also Bruce J. Winick,
“Problem Solving Courts: Therapeutic Jurisprudence in Practice,” in Problem-Solving
Courts: Social Science and Legal Perspectives, edited by Richard L. Wiener and Eve M. Brank
[Electronic Resource] (New York: Springer, 2013); Sicafuse and Bornstein, “Using the Law
to Enhance Wellbeing,” 15.

59 David Rottman and Pamela Casey, “Therapeutic Justice and the Emergence of
Problem-Solving Courts,” National Institute of Justice Journal (July 1999), available at
https://www.ncjrs.gov/App/publications/abstract.aspx?ID=178120 (last retrieved December
10, 2003); Bruce J. Winick, “Therapeutic Justice and Problem-Solving Courts,” Fordham
Urban Law Journal 30 (2003), 1055–90; Eve M. Brank and Joshua A. Haby, “The
Intended and Unintended Consequences of Problem-Solving Courts,” in Problem-Solving
Courts: Social Science and Legal Perspectives, edited by Richard L. Wiener and Eve M. Brank
[Electronic Resource] (New York: Springer, 2013), 241.

71
60 Victor E. Flango, “Problem-Solving Courts Under a Different Lens,” in Future Trends
in State Courts 2007 (Williamsburg, Va.: National Center for State Courts, 2007), available
at http://cdm16501.contentdm.oclc.org/cdm/ref/collection/spcts/id/177 (last retrieved
November 14, 2013).

61 Bruce J. Winick, “Problem Solving Courts: Therapeutic Jurisprudence in Practice,” in

Problem-Solving Courts: Social Science and Legal Perspectives, edited by Richard L. Wiener
and Eve M. Brank [Electronic Resource] (New York: Springer, 2013), 212, 217.

62 See National Center for State Courts, “Census of Problem-Solving Courts,” available at
http://www.ncsc.org/Services-and-Experts/Areas-of-expertise/Problem-solving-courts.aspx;
Brank and Haby, “The Intended and Unintended Consequences of Problem-Solving
Courts,” 241; Sicafuse and Bornstein, “Using the Law to Enhance Wellbeing,” 23, 25–26,
34–36, 241; and Eric L. Sevigny, Harold A. Pollack, and Peter Reuter, “Can Drug Courts
Help to Reduce Prison and Jail Populations?” ANNALS: The Annals of the American
Academy 67 (2013), 190–212.

63 Brank and Haby, “The Intended and Unintended Consequences of Problem-Solving

Courts,” 240–43. See also Sicafuse and Bornstein, “Using the Law to Enhance Wellbeing,”
32–35.

64 Christopher P. Banks and Steven Tauber, “Federal District Court Decision-Making in

USA PATRIOT ACT Cases,” Justice System Journal 35, no. 2 (2014), 139–61. See also
Matthew E. K. Hall, The Nature of Supreme Court Power (New York: Cambridge
University Press, 2011); Robert J. Hume, Courthouse Democracy and Minority Rights (New
York: Oxford University Press, 2013).

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Chapter 2 The Politics of Law and Jurisprudence

THE CRITICALLY ACCLAIMED FILM TWELVE YEARS A SLAVE CHRONICLES

SOLOMON

Northup’s life as a slave before the Civil War. Although a free man in New York, he was
sold into slavery and shipped to a Louisiana plantation. While in captivity for twelve years,
he endured unspeakable cruelty. Although he tried to get legal relief in court after his
escape, Northup’s oppressors were never brought to justice.1 Other fictional accounts of
slavery, including Quentin Tarantino’s popular film Django Unchained, project a different
irony by suggesting that freed slaves only received justice by resorting to extralegal acts of
vigilantism and violence against slave owners.

These popular films and other examples highlight the deep divisions over issues of law and
morality, race, and justice that persist in the United States. In 2013, a federal judge
criticized New York City’s police department’s “stop and frisk policy” of racial profiling.
That anticrime strategy was adopted in the aftermath of the September 11, 2001, terrorist
attacks, but it was criticized for violating individuals’ constitutional rights. In Shelby County
v. Holder (2013), the Supreme Court struck down a key part of the 1965 Voting Rights
Act, which aimed to protect the voting rights of minorities in states that historically
discriminated against African Americans during elections.2 Such examples underscore the
role courts play in society and the continuing tensions between the rule by legislative
majorities and the claims of minority rights. They also illustrate the ongoing controversy
over race in constitutional law, judicial policymaking, and, broadly speaking, jurisprudence.

Jurisprudence refers to legal theory and questions about the nature of law, the social impact
of law and legal systems, and the relationship of law to justice and morality. Schuette v.
Coalition to Defend Affirmative Action (2014), another Supreme Court ruling on racial
discrimination that upheld Michigan’s ban on affirmative action, further illustrates the
importance of jurisprudence in linking legal theory to legal practice. Before Schuette was
decided, several legal and political science scholars invoked references to critical race theory
(discussed later in this chapter) in their amicus curiae (“friend of the court”) briefs in an
effort to persuade the Court to strike down the ban.3 Although a majority of the Court did
not agree in Schuette, courts and judges routinely consider arguments drawn from legal
theory and political jurisprudence. In other words, abstract questions of law frame the
creation of legal principles that inform substantive court rulings and the operation of legal
systems. As a result, understanding law’s relationship to jurisprudence is important for
several reasons. Judges may use legal theory to ground their decisions, and lawyers may give
advice to clients about what courts are likely to do in light of legal theories. Furthermore,
citizens become informed about the broader implications of laws that, in turn, may also

73
inspire a change in their legal behavior or the enactment of reforms.4

In sum, as law evolves over time, classical and contemporary theories of jurisprudence
address fundamental questions about the meaning of law and how it regulates public and
private relationships. Although not an exhaustive list, these questions include (1) What is
the origin of law? (2) What is and what should be law’s substantive meaning? (3) What is
the relationship of morality to law? (4) In what ways is law “just,” and how does it (or does
it not) promote social justice? And, finally, (5) how does law change or evolve while
preserving the stability of a political and legal system? At bottom, these are questions of
legal philosophy. They elucidate the ideas and reasoning behind law’s purpose, application,
and normative content. Jurisprudence also addresses the legitimate exercise of judicial
power and principles of democratic accountability, legitimacy, equality, and justice.

Classical schools of jurisprudence are considered next because they are the touchstone for
analyzing law in relation to individuals’ rights and liberties, social justice, and the role of
courts in society. They also provide a basis for later examining contemporary
jurisprudential theories.

74
Classical Theories of Jurisprudence

75
Natural Law
Natural law is thought of in divine terms as God’s law. The earliest statement of natural
law theory can be traced to Greek philosophy. A Greek orator, Demosthenes, described it
as follows: “Every law is a discovery, a gift of God, a precept of wise men.”5 Both Plato
(428–348 B.C.) and Aristotle (384–322 B.C.) spoke of universal truths that could be
discovered, either as abstractions (Plato) or as empirical observations (Aristotle).
Subsequently, Grotius (1583–1645 B.C.), a Roman statesman and philosopher, built on
the Greek idea of rationality by describing law as “right reason in agreement with nature”
that was universally applied beyond the borders of Rome.

In the Middle Ages, Christian theology adopted principles of natural law as well. Saint
Thomas Aquinas (1224–1274 A.D.) was an important legal theorist because he made a
distinction between divine law (God’s universal law) and natural law (laws of nature
capable of human discovery by reason). Put differently, faith in God alone was not enough
to understand the nature of the world. Instead, reason could lead to the discovery of the
laws of nature and, hence, the role of government in creating law. As a result, Aquinas’s
work legitimized the idea that it was possible for humans to create laws that reflected those
revealed by God in Holy Scripture, and law could order human behavior in accordance
with fixed principles consistent with God’s will.6

More recently, natural law theory has been extended by Oxford’s law and philosophy
professor John Finnis in Natural Law and Natural Rights (1980). Unlike classical natural
law theory, however, Finnis argues that universal and immutable principles of natural law
are expressed through several “basic requirements of practical reasonableness” that, in turn,
can be realized by institutions and instruments of human law that enhance human
flourishing.7 In his words, “law is a rational standard for conduct,” and it is “of the nature
of law to provide a set of standards that rational agents should take as a guide to their
conduct.”8

Still, at the time of the American founding, the classical view of natural law was
predominant but increasingly under sharp attack from skeptics who questioned its validity.
In his Commentaries on the Laws of England, William Blackstone (1723–1780), an
influential English theorist, suggested that there was no legal authority to obey any law that
was contrary to an immutable natural law. Accordingly, for Blackstone, the law of nature
was

co-equal with mankind and dictated by God himself, [and] is of course superior in
obligation to any other. It is binding over all the globe, in all countries, and at all
times: no human laws are of any validity, if contrary to this; and such of them as are

76
 valid derive all their force, and all their authority, mediately or immediately, from this
original.9

Blackstone’s theory was influential in America, and colonists would derive from natural law
theory important natural rights arguments. But the concept of natural rights focuses on the
relationship between individuals and the government, instead of explaining law’s origin and
whether there is a duty to respect law.

Besides Blackstone, two other influential English legal and political philosophers, Thomas
Hobbes (1588–1679) and John Locke (1632–1704), had a profound and enduring
effect.In Leviathan (1651), Hobbes argued that men in a prepolitical state of existence (“a
state of nature”) seek security and freedom by forming a social contract establishing an
absolute monarchy, and give up most of their rights in exchange for security and legal
stability. John Locke made a somewhat similar argument in his Second Treatise of
Government (1690). Locke theorized that men agree to enter into a social contract
establishing government, but their consent is predicated upon the condition that the
sovereign serves the public good and protects individuals’ fundamental natural rights, such
as the right to property. The social contract thus became a model for limited government
under majority rule, and the sovereignty of the divine rule by the Crown was replaced by
the idea of popular sovereignty. Moreover, in Locke’s theory, government plays a key role
in acting as an “umpire” in resolving individual disputes arising from the distribution of
property in society and balancing liberty against security.

In articulating a theory of limited government based on consent and individual natural

rights, Locke greatly influenced the thinking of the Founders, particularly Thomas
Jefferson (1743–1826), the principal draftsman of the Declaration of Independence in
1776. Relying on Locke’s theory, Jefferson based the Declaration of Independence on
principles of popular sovereignty, consent, and natural rights: that governments “derive
their just powers from the consent of the governed”; that “all men are created equal [and]
that they are endowed by their Creator with certain unalienable Rights [such as] Life,
Liberty and the pursuit of Happiness”; and that “whenever any Form of Government
becomes destructive of these ends, it is the Right of the People to alter or to abolish it.” A
decade later, the U.S. Constitution also registered these principles. Indeed, the
Constitution not only represents the idea of limited government but also embraces natural
rights theory by virtue of the addition in 1791 of a written Bill of Rights, or declaration of
rights such as freedom of expression (in the First Amendment) and the freedom from
“unreasonable searches and seizures” (in the Fourth Amendment).

Notably, the Supreme Court has also looked to natural law as a basis for some of its early
rulings. In Calder v. Bull (1798),10 the ex post facto clause of Article I, Section 10,
forbidding the passage of laws that penalize acts after the fact, was held not to nullify a state
law permitting a civil appeal in a contest over a will, because that clause applies only to

77
criminal laws and cases. In the case, Justices Samuel Chase and James Iredell debated the
Court’s power of judicial review (discussed in Chapter One) and whether it could be used
to overturn state laws. Whereas Justice Chase argued that the Court possessed such
authority, Justice Iredell countered that the Court did not have the power to strike the law
down even if it violated principles of natural law. In other cases, the Court appealed to
natural law principles in asserting that blacks were not citizens entitled to constitutional
rights in Dred Scott v. Sandford (1857).11 In Bradwell v. Illinois (1873),12 the Court ruled
that women could not practice law because it was “in the nature of things” for them to
remain relegated to the “domestic sphere as that which properly belongs to the domain and
functions of womanhood.” More recently, Justice Clarence Thomas cited natural law and
the Declaration of Independence in criticizing the rationale in Brown v. Board of Education
(1954),13 the landmark case ending racial discrimination in public schools. Yet, Justice
Thomas’s reliance upon natural law is an exception to the contemporary Court’s general
approach to deciding cases.

The application of natural law to cases remains controversial, and the debate over the
meaning of law is not settled. A natural law theorist and law school professor, Lon Fuller,
argues that all law contains an inner morality that judges must apply if they wish to remain
faithful to the purposes of law. Fuller’s position is illustrated by a West German
prosecution of a Nazi officer’s wife for alerting Nazi officials that her husband broke the
law by making critical remarks about the Third Reich during World War II. Her husband
was convicted and sentenced to death. After the war, she was put on trial and argued that
Nazi law made her actions legal. Using natural law principles, Fuller rejected the wife’s
defense, arguing that the Nazi law was unjust and therefore not valid law. In contrast, H. L.
A. Hart, an English philosopher associated with a legal theory of positivism, countered that
the Nazi law was a valid enactment of positive law and must be respected, regardless of its
moral purpose or application.14 In short, Hart maintained a sharp division between
morality and law. His position, and the scope and application of classical legal positivism, is
considered next.

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Legal Positivism
H. L. A. Hart’s legal positivism—the separation of law and morality—built on the work of
two earlier English legal philosophers, Jeremy Bentham (1748–1832) and John Austin
(1790–1859). Their respective writings comprise the core of classical legal positivism: law is
best conceived of in scientific and objective terms—that is, law is empirically discovered by
reason and free from moral judgments about what the law should be.

Both Bentham and Locke disagreed with Blackstone’s position that judges simply discover
the law and recognize rights based on the morality of natural law. Their legal positivism
and utilitarianism—that, simply put, the greatest good is for the greatest number—
maintained that morality and law are distinct and that law only creates an obligation to
obey, and rights emerge, only when there is a breach of a recognized legal duty. Bentham’s
theory of law, thus, reduced law to a principle of utility. For Bentham, law is not simply a
command or an order from a divine ruler, but rather aims at achieving the greatest
happiness for the greatest number of people, and thereby benefits the community. As a
result, people obey or disobey the law because they seek pleasure or fear pain and not
because of moral principles. Exercising the choice to follow the law brings pleasure because
the law against murder benefits the majority, whereas the decision to flout the law, in
committing the act of murder, results in severe punishment for the few who violate the
criminal prohibition. A legal command preventing murder, therefore, reaps the greatest
happiness for the greatest number of people who are obliged to follow the rule.15

Bentham’s theory suggested that multiple sovereigns (as created by constitutions,

legislatures, and courts) could command obedience because law is an imperative—
something that has to be obeyed—as well as an empirical fact affecting behavior. Because
the failure to perform a legal obligation risks punishment, compliance with law rests on a
utilitarian calculation of experiencing pleasure or pain, and that determines the law’s
validity. People adhere to law as a command, regardless of whether it comes from one
source. In this regard, both Bentham and Austin envisioned a strict separation between law
and morality because law (as an “is”) cannot be law at all if the decision to obey it rests on
some moral principle or guide (i.e., one “ought”to obey only it if it is a “good” law).
Accordingly, Bentham sharply criticized natural law and its corollary doctrine of natural
rights, which he referred to as “nonsense upon stilts.”16 Indeed, he disagreed, for example,
that the Declaration of Independence recognized or afforded citizens natural rights. In this
sense, Bentham and Austin were in agreement; however, Austin contended that law is
simply the command of a single sovereign (a person or institution with supreme lawmaking
power) backed by sanctions, regardless of the morality of the law.

Although natural law theorists continue to struggle with the positivist criticism that
morality is separate from law, positivists in turn confront the objection that people will not

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(and should not) obey a law if it is immoral. H. L. A. Hart, one of the most influential legal
positivists in the twentieth century, addressed that controversy in The Concept of Law
(1961). Hart did not believe that the law is simply a series of commands or habitual
responses to coercive orders. Instead, law is a set of rules established by social convention:
the union of what Hart called primary and secondary rules. Primary rules create legal duties
that lay down legal guidelines for social conduct. They oblige citizens to conform to legal
standards pertaining, for example, to making a valid contract or complying with criminal
law. Secondary rules are procedural rules that confer power. In particular, they control how
primary rules are identified (the rule of recognition), altered (the rule of change), and
ultimately enforced (the rule of adjudication). Secondary rules, such as a law that vests an
official with the power to perform a civil marriage, enable the law to be understood and
carried out, both by citizens and by officials. Of the secondary rules, the most critical is
what Hart termed the rule of recognition, which validates the criteria and social practices of
what people understand to be law and ensures that officials who are in charge of applying
the law are doing so under a set of legal standards commonly shared in society. In Hart’s
ideal paradigm, therefore, a legal system does not exist simply because there is a pressure to
conform to a set of external commands from a sovereign. Rather, legal systems operate
under an “internal aspect”—that is, a shared assumption that the law imposes certain duties
and obligations that are accepted by society. The internal view facilitates compliance with
the law because, in complex legal systems, those who apply the law and those who are
subject to it share a common perspective about controlling legal standards.17

Although Hart’s theory may provide a better explanation for why people obey a law than
Austin’s or Bentham’s, it did not completely overcome the natural law criticism that
positive law must have moral content. On that point, Hart acknowledged that a legal
system of social rules was not a “suicide club.” Morality is expressed in social norms that
reflect a “minimum content of natural law”—the basic ideas shared by all about the
minimal legal protections for human survival, such as rules against murder and stealing
property. In other words, there is an inherent overlap between moral and legal behavior.
Whereas Hart insisted that law is not derived from morality, and although he tried to
maintain a separation between the two concepts, he ultimately conceded that morality plays
a minimal role in constructing society’s legal rules.18

“Constitutional Morality”
Positivists’ separation between law and morality remains a significant issue in legal theory as
well as in the politics of constitutional jurisprudence. Judge Robert Bork, a former appellate
judge in the District of Columbia circuit and President Ronald Reagan’s unsuccessful
appointee to the U.S. Supreme Court in 1987, championed a positivist view. He sharply
criticized, for example, the Supreme Court’s recognition of an unenumerated (that which is
not listed in writing) constitutional “right of privacy” and defenses of controversial rulings
based on morality and theories of justice as fairness. In his view, judges only have discretion

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to consider a law’s morality from the standpoint of a properly enacted law. In other words,
the morality of the community is expressed in the positive law (i.e., statutes and rules).
Hence, for Bork and others, judges act illegitimately when they impose their own views of
morality because “in a constitutional democracy, the moral content of law must be given by
the morality of the framer or the legislator, never by the morality of the judge.”19

By contrast, Ronald Dworkin, a leading late-twentieth-century liberal legal philosopher,

criticized legal positivism by attacking the presumption that judges ignore law’s moral
foundations. In books such as Taking Rights Seriously (1977), Law’s Empire (1986),
Freedom’s Law (1996), and Justice for Hedgehogs (2011),20 Dworkin embraces the
importance of political morality in the application of legal principles. In Dworkin’s view, a
legal principle “is one which officials must take into account, if it is relevant, as a
consideration inclining in one direction or another” during adjudication. As such,
principles are more flexible than “all or nothing” rules, and, accordingly, moral
considerations are a necessary part of legal interpretation because value judgments have to
be made by judges in deciding how legal principles apply in concrete cases. Although judges
look to positive law, they must also weigh whether the outcome best fits the underlying
purposes of the political system and its “constitutional morality.” Accordingly, Dworkin
maintained that determining the proper “fit” between positive law and the controlling legal
principle also has the advantage of reducing the discretion exercised by judges because the
application of legal principles always leads to one “right” answer in the process of
interpretation. To illustrate, a judge should (and would properly) apply the principle that
“no man shall profit from his own wrongdoing” in denying a murderer the inheritance
from the victim even though the victim’s will was legally valid. In this fashion, contrary to
positivists like Bork, the “law is effectively integrated with morality: lawyers and judges are
working political philosophers of the democratic state.”21

Whereas Judge Bork and philosopher Hart deny a connection between law and morality,
Dworkin embraces and celebrates their intimate connection. The implications of these
contrasting views are illustrated by the Supreme Court’s rulings on the criminalization of
sexual behavior between same-sex couples. In Bowers v. Hardwick (1986),22 a bare majority
held that there was no constitutional right under the Fourteenth Amendment’s due process
clause to engage in consensual homosexual sodomy. In upholding Georgia’s antisodomy
law, Justice Byron White dismissively observed that “the law is constantly based on notions
of morality, and if all laws representing essentially moral choices are to be invalidated under
the Due Process Clause, the courts will be very busy indeed.”23 Chief Justice Warren
Burger’s concurring opinion likewise contended that Georgia’s legislation reflected a moral
choice made by the legislature, which the judiciary should not disturb, and that
homosexual sodomy is inconsistent with traditional norms of Judeo-Christian morality.24

When the Court revisited Bowers in the controversy in Lawrence v. Texas (2003), the Court
struck down Texas’s criminal prohibition of “deviate sexual intercourse with another

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individual of the same sex.” By a 6 to 3 vote, Lawrence overturned Bowers. Justice Anthony
Kennedy’s opinion for the Court reasoned that homosexuals have a substantive right of
privacy under the Fourteenth Amendment, and are entitled to the same protections
afforded heterosexuals. Whereas Bowers emphasized that “for centuries there have been
powerful voices to condemn homosexual conduct as immoral,” Justice Kennedy
highlighted the “emerging awareness” over the past fifty years that “liberty gives substantial
protection to adult persons in deciding how to conduct their private lives in matters
pertaining to sex.” In short, Texas’s morals legislation was invalidated because the
Fourteenth Amendment guarantees a right of personal autonomy that includes the personal
and moral choice of individuals to engage in private, consensual relationships—regardless
of whether they are heterosexual or homosexual.25

In Lawrence, dissenting Justice Antonin Scalia sharply countered that the Court’s ruling
“effectively decree[d] the end of all morals legislation.” For Justice Scalia and the other
dissenters, Lawrence wrongly overturned Bowers because Bowers respected the right of
democratic majorities to define the boundaries of morally acceptable behavior. Justice
Scalia complained that “countless judicial decisions and legislative enactments have relied
on the ancient proposition that a governing majority’s belief that certain sexual behavior is
‘immoral and unacceptable’ constitutes a rational basis for regulation.” In his view, the
Court overstepped its authority by replacing the moral judgment of the Texas legislature
with its own moral conception. As he explained:

One of the most revealing statements in today’s opinion is the Court’s grim warning
that the criminalization of homosexual conduct is “an invitation to subject
homosexual persons to discrimination both in the public and in the private spheres.”
It is clear from this that the Court has taken sides in the culture war, departing from
its role of assuring, as neutral observer, that the democratic rules of engagement are
observed. Many Americans do not want persons who openly engage in homosexual
conduct as partners in their business, as scoutmasters for their children, as teachers in
their children’s schools, or as boarders in their home. They view this as protecting
themselves and their families from a lifestyle that they believe to be immoral and
destructive. The Court views it as “discrimination” which it is the function of our
judgments to deter. So imbued is the Court with the law profession’s anti-anti-
homosexual culture, that it is seemingly unaware that the attitudes of that culture are
not obviously “mainstream”; that in most States what the Court calls “discrimination”
against those who engage in homosexual acts is perfectly legal.

This passage underscores that for Justice Scalia (and Judge Bork and philosopher Hart),
there is a clear separation between law and morality, and judges must respect the
boundaries set by democratically elected majorities, instead of using the power of the
judiciary to impose their own moral viewpoints of law. Not surprisingly, the legal morality

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of same-sex marriage has been debated in other countries as well (see “In Comparative
Perspective: Law, Morality, and Same-Sex Marriages”).

Demonstrators rally after the Supreme Court’s 2013 rulings on same-sex marriages.

Courtesy of The American Foundation for Equal Rights

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In Comparative Perspective

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Law, Morality, and Same-Sex Marriages
In the last several decades, a movement has grown, both abroad and at home, toward legally recognizing
same-sex marriages and the rights of LGBT (lesbian, gay, bisexual, and transgendered) individuals. Same-sex
marriages have been recognized in the Netherlands (2000); Belgium (2003); Canada and Spain (2005);
South Africa (2006); Sweden and Norway (2009); Argentina, Portugal, and Iceland (2010); Denmark
(2012); Brazil, France, New Zealand, and Uruguay (2013); and the United Kingdom (England and Wales,
2014). State jurisdictions in Mexico and the United States do so as well, and almost two dozen countries
recognize civil unions.

The movement nonetheless met with fierce opposition. In the United States, thirty-two states had banned
same-sex marriages through constitutional amendments or by statute. Russia and Uganda, among other
counties in Africa, the Middle East, and Eastern Europe, recently enacted laws criminalizing homosexual
conduct. On the U.S. Supreme Court, Justice Antonin Scalia is one of the sharpest critics. Dissenting in
Romer v. Evans, 517 U.S. 620 (1996), which struck down a Colorado state constitutional amendment
forbidding employers from discriminating against homosexuals, Justice Scalia expressed outrage over the
invalidation of the state’s legally enforced “moral disapproval of homosexual conduct, the same sort of
moral disapproval that produced centuries-old criminal laws,” like other “reprehensible [conduct]—murder,
for example, or polygamy, or cruelty to animals—[that government deems] morally wrong and socially
harmful.” When the Court subsequently overturned Texas’s law criminalizing homosexual sodomy in
Lawrence v. Texas, 539 U.S. 558 (2003), he charged that the ruling “effectively decrees the end of all morals
legislation... [including] criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and
obscenity.”

But United States v. Windsor, 133 S. Ct. 2675 (2013), invalidated a section of the Defense of Marriage Act
of 1996 that had denied federal recognition of state-approved same-sex marriages, and Justice Scalia again
warned against litigation that would lead to overturning state laws denying same-sex couples marital status
and benefits. Indeed, after the Court’s ruling in Windsor, a number of federal and state courts invalidated
state prohibitions on same-sex marriages. And, as a result, by January 2015, some thirty-five states
recognized same-sex marriages based on state legislation and judicial decisions. The state bans on same-sex
marriage, however, were upheld by a federal appellate court, and appeals would eventually require the
Supreme Court to rule on the controversy.

Although opposition to same-sex marriages has been based on numerous grounds—religious reasons, the
protection of children, and the preservation of “traditional marriages,” among other political reasons—the
controversy, as Justice Scalia’s dissents suggest, has centered on the limits of the criminal sanction and the
legal enforcement of “public morality.” That controversy remains, perhaps, exemplified in the debate over
England’s decriminalization of homosexual sodomy and prostitution, sparked by the Report of the Committee
on Homosexual Offenses and Prostitution—the so-called Wolfenden Report, named after Sir John
Wolfenden.

The Wolfenden Report recommended decriminalization based on freedom of individual choice and the
privacy of morality. As the report put it:

The function of the criminal law is to preserve public order and decency, to protect the citizen from
what is injurious, and to provide sufficient safeguards against exploitation and corruption of others,
particularly those who are specifically vulnerable....It is not...the function of the law to intervene in the
private lives of our citizens.

Opposition to the report was led by Sir (later Law Lord) Patrick Devlin, who maintained that law without
morality would destroy freedom and lead to “tyranny” by abandoning norms of public morality that keep

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social order from unraveling. In lectures, articles, and a book, The Enforcement of Morals (1959), Lord
Devlin contended that “it is not possible to set theoretical limits to the power of the State to legislate against
immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas
of morality into which the law is in no circumstances to be allowed to enter.” For Lord Devlin, public
morality was evident in asking “what is acceptable to the ordinary man, the man in the jury box, who might
also be called the reasonable man or the right minded man.”

By contrast, Oxford University philosophy professor H. L. A. Hart countered that the “populism” of
conventional morality denied individuals’ liberty upon a contemporary majority’s prejudices. He invoked
the “harm principle” of British philosopher John Stuart Mill. In his classic works, Utilitarianism and On
Liberty, Mill argued against legal paternalism and moralism, observing that

the sole end for which mankind are warranted, individually or collectively, in interfering with the
liberty of action of any of their number is self-protection. That is the only purpose for which power
can rightfully be exercised over any member of a civilized community against his will is to prevent
harm to others. His own good, whether physical or moral, is not a sufficient warrant.

Furthermore, Hart criticized Devlin for failing to show any empirical evidence that deviations from “public
morality” threaten society, or that an identifiable “public morality” is based on reason, rather than simply
moral feelings against (or animus toward) a practice deemed socially harmful. Oxford law professor and
philosopher Ronald Dworkin went further, arguing that some conduct—like adult consensual sexual
relations, abortion, and “the right to die”—involve fundamental liberties that may never be taken away or
limited by the government.

Sources: Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965); H. L. A. Hart,
Law, Liberty, and Morality (Oxford: Oxford University Press, 1963); John Stuart Mill, Utilitarianism; On
Liberty, and Considerations of Representative Government (London: Dent Publishers, 1993); Ronald
Dworkin, “Lord Devlin and the Enforcement of Morals,” The Yale Law Journal 75 (1966): 986; and
Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985).

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Sociological Jurisprudence and Legal Realism
Natural law theories largely fell out of favor due to positivism and the emergence of
sociological jurisprudence and legal realism in the late nineteenth and early twentieth
centuries. A progressive response to late-nineteenth-century laissez-faire economic theory
and legal formalism, sociological jurisprudence conceptualizes law as a social phenomenon
and a method of social control (much like the positivists previously discussed). Pivotal
sociological theorists include Émile Durkheim (1858–1917), Max Weber (1864–1920),
and Roscoe Pound (1870–1964). In The Division of Labor in Society (1964), Durkheim
postulates that law is a function of societal solidarity. Primitive societies resort to
“mechanical” applications of laws that are penal and “repressive”: punishing offenders
reaffirms the collective consciousness and reinforces societal cohesion. In contrast, organic
societies, which are more evolved and based on a division of labor and interdependence of
social groups, place a premium on restitutive law (such as contract and administrative law)
to resolve disputes, which promotes both more social integration and greater
individualism.26

Weber’s sociology of law proposes that law is infused with four elements—rationality,
irrationality, formality, and substance—that help to explain the development of legal
systems and political economies, especially capitalism. In particular, the formal rational
administration of justice is based on codified rules and procedures that are predictable,
confer legitimacy, and enable the growth of capitalism in the modern bureaucratic state.27

While Durkheim’s and Weber’s contributions to sociological jurisprudence loom large in

law and society studies, former Harvard law school dean Roscoe Pound’s scholarly impact
has also been profound.28 Through many writings that were consolidated into five volumes
on Jurisprudence (1959), Pound focused on social justice and argued that it may be
achieved through “law in action,” instead of through a formalistic adherence to “law in
books.” Since law’s evolution reflects social progress, Pound reasoned that law should be
dynamically applied, and academics and judges should become “social engineers.”
Deductive reasoning, or a “mechanical jurisprudence,” he maintained, was deficient
because it does not recognize the different legal interests of individuals who seek social
justice in the legal system. At the same time, he acknowledged that private interests,
spanning from property rights to personal autonomy, must be balanced against the public
interests of government in providing safety and security to citizens. Accordingly, the “task
of the sociological jurist,” he emphasized, was to harmonize competing interests efficiently
in order “to attain a pragmatic [and] sociological legal science.”29

Pound’s early writings captured the attention of legal realists, a diverse group of scholars
with an influential presence in leading law schools (Columbia, Yale, and Harvard) in the
1920s and 1930s. Legal realism embraced the skepticism that law is logically and

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predictably derived from formal rules and shared the sociological view that judges make law
and should consider a law’s practical consequences.30

Legal realism thus became associated with scientific inquiry in seeking to identify the
sociological and psychological factors affecting judicial decision making and, more broadly,
the impact of laws. Its philosophical preoccupation is determining what is empirically and
pragmatically “realistic” about judging. Since judges are not constrained by legal rules, they
exercise considerable discretion in deciding cases. As a result, legal realism criticized the
casebook method of legal instruction and formalistic legal reasoning that was the standard
in law schools (see Chapter Five). Realist theory exposes the political reality of judicial
lawmaking by questioning the position that law is a predictable creation of formal doctrinal
rules deduced from logical reasoning. As a “fact” and a “rule” skeptic, legal realists question
the certainty of legal doctrine and whether law could honestly be said to be “found” or
“discovered” by judges.31

Supreme Court Justice Oliver Wendell Holmes, Jr., Karl Llewellyn, and Judge Jerome
Frank were among the most visible in the early legal realist movement.32 Holmes (1841–
1935), a wounded Civil War soldier who served on the Massachusetts Supreme Court (for
twenty years) and, then, the U.S. Supreme Court (for thirty years), argued the law cannot
be explained in terms of simple logic. “The life of the law has not been logic,” he wrote in
The Common Law (1880); “it has been experience.” Holmes maintained that law is the
embodiment of human history but is also the sum of social values of the prevailing,
dominant majority. In his famous 1897 essay, “The Path of the Law,” he advanced the
perspective of a “bad man” to illustrate that law is a result of a prediction of what a court
will do in deciding a case, and not discovered or logically derived from, as he put it, “some
brooding omnipresence in the sky.” For Holmes, the bad man “cares only for the material
consequences [that enable] him to predict” what the law will do to him if he is caught
breaking it, with little concern for “axioms or deductions.” Yet the bad man wants to know
“what...[the] courts are likely to do in fact.” Hence, law is nothing more than “prophecies
of what the courts will do in fact.”33 By casting aside logic, Holmes’s “bad man” or
prediction theory laid the foundation for the realist critique that the law is much more than
logically deduced legal principles. He thus strongly implied that law is indeterminate, and
open to rival interpretations and applications.

Karl N. Llewellyn (1893–1962), an influential legal scholar, linguist, and poet, also
challenged the view that the language of statutes and judicial opinions—”paper rules”—
adequately describes judicial behavior. Instead of formal legal doctrine, judges follow “real
rules” and “working rules” when they decide cases. Llewellyn’s books, The Bramble Bush
(1930) and The Common Law Tradition (1960), advanced a functionalist approach to
understanding law: legal institutions and judges perform certain functions, or “law-jobs,” in
society. For Llewellyn, “getting ‘the’ job done” acknowledges that courts resolve “trouble-
cases,” legal grievances and disputes. In addition, he argued, legal officials simply use law to

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prevent, set, and adjust individual conduct in accordance with societal norms and
expectations. These and other “clusters” of law-jobs are central to law in society.34

Some of the implications of Holmes’s and Llewellyn’s ideas were further elaborated by
Jerome N. Frank (1889–1957), an appellate judge and scholar. His major book, Law and
the Modern Mind (1930), advocated rule skepticism—rejecting the idea that formal rules
are discovered by judges using deductive legal reasoning. Frank challenged the view that
judges reason syllogistically and that legal outcomes result from finding a legal principle
and applying it to a set of facts. Instead, as he put it, “judicial judgments, like other
judgments, doubtless, in most cases, are worked out backward from conclusions tentatively
formulated.” A backward-reasoning process thus proceeds from “a judge’s hunches” and
each particular judge’s perception of what the facts and law are in any given case. Basically,
the law is indeterminate because judicial decision making is post–ad hoc rationalization of
what a judge initially thinks the result should be. In Frank’s words, “The law may vary with
the personality of the judge who happens to pass upon any given case.”35

Judge Frank’s description of judicial decision making led to other theories that
jurisprudence would only become “realistic” if the legal community accepted psychological
and sociological explanations for law’s uncertainty. Once that first step is taken, then it
follows that lawyers and judges should use methods of social science to predict legal
behavior. Making predictions based on rigorous empirical inquiry would also improve the
law by making it more responsive to social life. Likewise, Frank continuously pressed for
legal reform and giving lawyers a clinical education in order to make them more relevant to
the social purposes of law. Reform efforts to incorporate social science into the legal
process, however, never fully came to fruition. World War II and the rise of Nazi Germany
served to undermine Frank’s and other legal realists’ view that law is nothing more than a
judge’s personal hunch, because critics claimed realism was nihilistic, antidemocratic, and
amoral.36

In sum, sociological and realist jurisprudence envisioned lawyers and judges as either
innovative “social engineers” or pragmatic “hunch” lawmakers.37 An important legacy of
these theories is that they became the touchstone for developing the policy science and legal
process schools of legal thought that emerged in the 1940s and 1950s. Policy science
emphasized the integration of interdisciplinary studies (social sciences) into law and to the
development of legal policy grounded in the political and moral values of Western liberal
democracies—freedom, toleration, and equality—and that applied universally. Process
jurisprudence assumed that the legal process was the elaboration of legal principles that
were rationally discovered from the normative and political values at the core of the
democratic process; and the legal process school also taught that the elaboration of judicial
decisions gave legitimacy to the law. Policy science and legal process scholars, though, were
perhaps too ambitious in their attempt to conceptualize law in these terms, and, hence,
both were ultimately unsuccessful.38 Nonetheless, contemporary jurisprudential theories

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developed from their and other classical legal theory foundations.

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Contemporary Theories of Jurisprudence
Classical sociological, realist, policy science, and legal process theories of jurisprudence tried
to develop a common framework for explaining judicial behavior within the context of
law’s social purpose. They in turn also invited new and divergent approaches after World
War II. Law and economics, pragmatism, feminist legal thought, and critical legal studies
collectively represent the contemporary challenge to classical theories. Advancing a rational
economic perspective on law, the “Chicago school of law and economics” focused on
maximizing individual self-interest along with law’s instrumental role in securing social
ends. Feminist jurisprudence, along with critical theories of law and race, likewise question
whether traditional legal liberalism indeed reconciles competing notions of gender and race
in an increasingly multicultural society. Ultimately, these theories maintain that law is
manipulated by and reinforces oppressive political forces that institutionalize the unequal
distribution of socioeconomic resources.

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Economics in Law and Pragmatism
The law and economics school of thought holds that economic principles best explain legal
arrangements affecting markets and noneconomic social behavior. Originating in the late
1930s, the theory presumes that individual freedom is best achieved in unregulated markets
and that the legal process should be determined by the rational behavior of individuals
seeking to maximize their material self-interests.39

Richard Posner, a leader of the law and economics school and a federal appeals court judge
on the Seventh Circuit, maintains that “the science of human choice” treats individuals as
“rational maximizer[s].” In his view, resources are allocated efficiently and wealth is
maximized only if free exchange is permitted. Because economic self-interest (not
selfishness) drives behavior, human satisfaction is maximized only when highly valued
resources are obtained through barter or exchanges. An “efficient” breach of contract, for
example, occurs when one party agrees to perform the terms of a contract but fails to do so
because a third party is willing to pay more for the same service. The breach is efficient if
the nonperforming party is willing to compensate the victim of the breach for damages
suffered by not having the contract fulfilled. In economic terms, none of the parties
suffered because of the breach, and the happiness of the original parties to the contract is
maximized by having the contract remain in force.40

In short, law is conceptualized in terms of a cost–benefit analysis and the related concepts
of utility, value, and the marketplace. The value of a resource (or legally protected interest)
is gauged by the maximum (or, conversely, the minimum) amount a consumer is willing to
pay for it. In ordinary economic terms, such legal arrangements are either Pareto optimal
(when one person’s economic position is not improved at the expense of another) or Pareto
superior (when at least one person’s economic position is better but only when no one else’s
situation is made worse). Significantly, the Pareto efficiency principles are only
meaningfully applied when it is possible to measure economic behavior objectively, and
then compare the effects of changes made on the economic status quo. As such, it remains
difficult to translate legal matters into terms of the transaction costs for either of the parties
involved directly or third parties indirectly affected. With that in mind, Posner’s innovation
was to develop an economic analysis in law that overcomes that limitation through the so-
called Kaldor-Hicks criteria, a standard that fully compensates those who lose in a situation
in which another gains. By compensating the loser for any damage that is suffered at the
expense of those who profit, Pareto principles remain intact because efficacy is promoted by
the utility of maintaining a legal arrangement between those who stand to win or lose when
the harmony of an economic relationship is threatened.41

Notably, Posner applies economic analysis to a full range of legal topics that go beyond the
regulation of markets. In Law, Pragmatism, and Democracy (2003), he argues that economic

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analysis allows judges to make decisions that promote market efficiency. In other words,
law is an instrumental tool to achieve the best outcome in a political democracy and free-
market economy. Accordingly, Posner defends the Supreme Court’s decision in the
disputed 2000 presidential election in Bush v. Gore (2000) as pragmatic.42 Based on
weighing the costs and the practical consequences of not deciding the election against those
of judicial intervention, Posner concludes that the Court needed to act in order to avert a
constitutional crisis.43

Similarly, Mathias v. Accor Economy Lodging, Inc. (2003) illustrates the connection between
economic analysis or pragmatic theory of judicial decision making. In Mathias, Motel 6, a
hotel chain, challenged an award of $186,000 in punitive damages to a family that was
bitten by bed bugs while staying in one of its motels. Attorneys for Motel 6 argued that the
award was excessive because it was 37.2 times more than the $5,000 awarded the family as
compensatory damages. In rejecting that claim, Judge Posner reasoned the amount was in
fact justified because Motel 6 had to absorb the costs of trying to illegally conceal the
infestation in an attempt to maximize its profits. As he put it, “If a tortfeasor is ‘caught’
only half the time he commits torts, then when he is caught he should be punished twice as
heavily in order to make up for the times he gets away.” As a result, Judge Posner reasoned
that, in economic terms, punitive damages were required to “offset” the risk that tortfeasors
would not be deterred from committing wrongful acts in the future, since there is always
the possibility that they might escape liability and reap the rewards of their illicit conduct.44

Still, applying cost–benefit and policy analysis in deciding cases remains controversial. To
illustrate, in a coauthored study, Posner argues that laws should permit adoption agencies
to use the fees charged to parents to subsidize the cost of having babies that pregnant
women might otherwise abort. In economic terms, this scenario gives pregnant women an
incentive not to abort the child and saves them the cost of having unwanted babies; and the
increased supply in babies will give more parents a greater range of adoption choices, thus
creating a market in babies that would benefit the parties and society. Other controversial
studies using economic analyses contend that legalized abortions (authorized by Roe v.
Wade in 1973) reduced crime rates in the 1990s, thus supporting the hypothesis that
women in the high-risk category (teenagers, unmarried mothers, and the less fortunate) had
more abortions, which in turn decreased criminality because fewer children grew up to
become criminals.45 Such studies have been criticized as morally bankrupt in focusing
solely on cost–benefit analysis and market forces, and thereby dismissing or neglecting the
importance of democratically determined moral principles as a check on free markets.46

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Feminist Jurisprudence
Feminist jurisprudence, or the study of how law perpetuates gender inequality and cultural
bias by distorting identity and sexual orientation, emerged from the struggle to achieve
equality during the 1960s and 1970s. Since its inception, feminist jurisprudence has
evolved into a number of distinct theoretical criticisms of liberal legalism.

Equality theory, growing out of the 1970s liberal feminist movement, posits that legal
institutions discriminate against women and subjugates them on the basis of gender
difference. Consequently, equality theorists, such as Justice Ruth Bader Ginsburg and
Wendy Williams, argue women must be treated in the same way as men when they are
similarly situated. Such advocates of equal treatment tend to be liberal feminists who work
within the legal system and push for legal reforms that give women equal rights and access
to public institutions and benefits, such as “equal pay for equal work.”47

Other feminists in the 1980s began to advance difference theory, which holds that women
are too biologically, psychologically, and socially different to be simply and satisfactorily
compared with males. Difference or dominance theorists argue that social norms and laws
must be changed more radically than earlier liberal feminists held, if equality between the
sexes is to be achieved. Accordingly, dominance theory hypothesizes that the differences in
power between men and women results from male domination in law, economics, and
throughout society. The power difference is illustrated by rape and pornography laws that
permit the subjugation of women through violence and exploitation of their bodies as
objects of sexual pleasure. For dominance theorists, such as law school professor Catherine
MacKinnon, radical legal reform is necessary to eliminate oppressive laws that simply
perpetuate male supremacy.48

In contrast, cultural theory feminists challenge earlier liberal feminists in celebrating

(rather than lamenting) the differences between men and women. Such feminists argue that
women are different from men in the ways they construct their social identity, solve
problems, and view the world. As a result, cultural feminists disagree with liberal feminists
who contend that law must de-emphasize stereotypical or traditional portrayals of
motherhood. Instead, they contend that maternal qualities, such as empathy, nurturing,
and caring, should find expression in laws and be taught in law school courses on feminism
and human sexuality.49

In the 1990s and 2000s, a third generation of feminism theory and criticism emerged in
response to liberal, dominance, and cultural feminist jurisprudence. Actually, three major
strands of feminist thought arose, each registering the complexity of female identities with
an underlying narrative or discourse. Intersectional feminism centers on “anti-essentialism,”
an argument denying that women can be identified as having a single voice or gender

94
experience. Instead of defining women by a generic identity or “essence,” multiple factors
such as race, class, gender, and the like combine to create gender discrimination that takes
many forms. By contrast, autonomy feminism focuses on “victimization” in arguing that
while women are victims of discrimination, they retain the ability to resist as agents of their
own destinies. Finally, postmodernism feminism is associated with the “normalization” of
gender bias—that is, discrimination that reinforces conventional norms and practices, like
heterosexuality and marriage, while marginalizing and stigmatizing lesbians, transgendered
individuals, and other gender nonconformists.50

The first four women appointed to the Supreme Court (left to right, Justices Sandra Day
O’Connor, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan)

Steve Petteway, Collection of the Supreme Court of the United States

Feminist theories raise ongoing legal questions about deeply rooted male bias, cultural
distortions of personal identity, and gender-based inequities. Whether feminist theories
have had a positive effect on reform remains an open question and controversial. Although
dominance theorist MacKinnon helped draft state legislation to protect women from erotic
exploitation and sexual violence, for example, in American Booksellers Association v. Hudnut
(1981), a federal appeals court ruled that the law violated the First Amendment guarantee
for freedom of speech by improperly regulating the content of the ideas.51 A similar setback
for women’s rights advocates resulted in United States v. Morrison (2000), a Supreme Court

95
ruling that invalidated a part of the federal Violence Against Women Act, which had given
victims of gender-motivated crimes standing to sue their attackers in federal courts.52 Still,
supporters claim that feminist theory has influenced the law and legal reforms by (1)
creating a universal acceptance of the legal doctrine of gender neutrality in same-sex and
family law cases; (2) facilitating the recognition of new claims of legal rights for victims of
sexual harassment, domestic violence, and rape; and (3) helping reform criminal and
international human rights enforcement of rape, prostitution, and sex-trafficking laws.53

Notably postmodern feminist jurisprudence has spawned other movements, among them
the LGBT (lesbian, gay, bisexual, and transgender) movement pushing for the expansion of
same-sex marriage rights, along with “queer theory” (analyses of sexuality, sexual desire, and
gender nonconformity). Whereas LGBT studies critique discriminatory practices related to
sexual orientation and gender identity, queer theorists focus on understanding the law’s
effect on how LGBT individuals express their sexuality.54

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Critical Legal Studies and Critical Race Theory
Postmodern feminism is also closely linked with critical race theory (CRT) scholarship
that emerged from the earlier critical legal studies (CLS) and civil rights movements in the
1970s and 1980s. Following the first Critical Legal Studies Conference in 1977, the leaders
of the CLS—David Trubek, Mark Tushnet, Morton Horwitz, Roberto Unger, and
Duncan Kennedy—advanced a critique of law and legal reasoning: Judges use deductive
reasoning and formal rules, but the results are based on personal preferences. In other
words, CLS theory maintains that there is no separation between law and politics. As
Horwitz puts it, “The simple message that CLS delivered was...that law in American society
was and is heavily influenced by politics.”55

CLS theorists thus agree with the legal realist claim that law is indeterminate (the idea that
not every legal case has one outcome),56 but with one key difference. Unlike legal realism,
CLS theory holds that the rule of law does not exist precisely because of law’s uncertainty
and political manipulation. As a result, resorting to legal doctrine never produces one single
answer to a legal question, and is inexorably arbitrary and incoherent. The CLS theory
derives its skepticism from history, sociology, and political science in maintaining that all
legal institutions are political and beset by contradictions that make the law inevitably
unjust.57 Legal regimes are value laden but operate under the pretense of an objective
(value-free) jurisprudence that simply empowers elites at the expense of the disadvantaged
and the larger community. From the CLS theory point of view, law is a coercive instrument
of power used to repress individuals’ and minorities’ freedoms.58

The thrust of CLS theory, therefore, has a socialist or neo-Marxist bent. In Legal Education
and the Reproduction of Hierarchy (1983), Harvard law professor Duncan Kennedy argued
that traditional legal education should be abolished and replaced by an ultra-egalitarian
system of legal instruction, including reforms, such as law school admissions by lottery with
racial or gender quotas, the termination of grading systems, and the equalization of all
salaries in law schools.59

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The attorneys for the NAACP (left to right, William T. Coleman, Jr., Thurgood Marshall,
and Wiley A. Branton) before oral argument at the Supreme Court during the Little Rock
integration case on August 28, 1958

Copyright Bettmann/Corbis /AP Images

Similarly, Mark Tushnet, a former law clerk to Justice Thurgood Marshall and Harvard law
school professor, argued that the contradictions of law prove that it is wholly political and
in need of reform. In The New Constitutional Order (2003), Tushnet provided a
“descriptive sociology” of the prevailing structure of political institutions, claiming America
had entered into a new, more conservative constitutional order—rooted in the Reagan–
Bush regime of the 1980s and early 1900s, which replaced the former political system
defined by the New Deal and Great Society social programs of the 1930s to 1960s. The
new conservative order is characterized by divided government, elevated polarization in
Congress, and a limited government policy orientation. Its constitutional structure is
basically a device for private market interests to use law to further its own objectives, and
the judiciary does little to resist the interests of the new regime. Tushnet concluded that
“democratic experimentalism” is “the most promising candidate” for creating a new
constitutional order, mainly because it is a style of governing that works from the ground
up: nonexperts at the local level experimenting with finding practical solutions to policy
problems in coordination with national officials, who merely superintend the process rather
than control it.60

Critics of CLS theory, however, charge that it is “largely defunct,” and its adherents are
“nihilistic” and locked into a “jurisprudence of despair.” Tushnet and other proponents

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counter that CLS scholarship continues to exert great influence in the legal academy and
that the critique merely reflects the growth of formalist legal philosophy and political
conservatism. Still, for many others, CLS has become less relevant because of its inability to
go beyond criticisms and develop more compelling and competing critical theories.61

Critical race theory (CRT), a movement that coalesced after its first conference at the
University of Wisconsin Institute for Legal Studies in 1989, is another example of
contemporary legal theory deeply skeptical of liberalism (and its emphasis on individual
rights). However, CRT does not share CLS theory’s premise that law does not exist.
Instead, CRT contends that law and legal institutions are deeply ingrained with racism.
Racial categories are socially constructed and manipulated by the dominant white legal,
economic, and political power structure. CRT scholars view history as demonstrating a
“differential racialization” pattern within society that stereotypes and stigmatizes minority
groups to fit dominant economic interests. Thus, through interest convergence and material
determinism, the dominant white elites and those in the working class perpetuate racism.62
CRT goes so far as to argue that the civil rights movement was in fact a failure. Former
Harvard law professor Derrick Bell, for one, asserts that the landmark desegregation ruling
of Brown v. Board of Education (1954) only advanced Southern economic interests, and
generally benefited an elite white culture more interested in preserving its image as a
liberator of the free world and an enemy of Communism. In other words, Brown reflected
an “interest convergence” at a brief moment in time, serving the mutual interests of whites
in racial tolerance and economic self-interest, on the one hand, and blacks’ interests in
equality, on the other.63

In addition, critical race feminists, such as Angela Harris and Kimberlé Crenshaw, observe
that most of the founders of the women’s movement were white, relatively affluent,
heterosexual, and college educated. As a result, they were not representative of all women
and cannot speak authoritatively about the experiences of black, Hispanic, and Latino
women. Hence, the CRT principles of intersectionality—the idea that individuals and
classes all share the same attitudes and interests—and anti-essentialism—which rejects the
claim that all persons of a particular group uniformly fit into a discrete class—are used to
show the limitations of battling racial bias by treating all members of a minority group in
the same fashion. In other words, law only counters discrimination by first acknowledging
that racism oppresses in different ways, depending upon a group’s race or ethnicity.
Accordingly, structural determinism—discriminatory biases built into the structure and
vocabulary of society—must be overcome by legal reforms premised on a complete
understanding of the unique history and perspectives of different groups suffering
discrimination in a complex multicultural and racially diverse society.64

A distinguishing characteristic of CRT jurisprudence is also the use of narratives and

discourse to unmask racial discrimination. Richard Delgado, a Latino law professor and a
CRT leader, uses “legal storytelling” and “counter-storytelling” to highlight the

99
discriminatory impact of racial bias. The dominant group, argues Delgado, uses its own
narratives as “the prevailing mindset [to] justify the world as it is, that is, with whites on
top and browns and blacks at the bottom.” Oppressed minorities therefore must employ
their own “[s]tories, parables, chronicles, and narratives,” because they are “powerful means
for destroying [the dominant group’s] mindset—the bundle of presuppositions, received
wisdoms, and shared understandings against a background of which legal and political
discourse takes place.” Engaging in narrative is but one method of CRT to break down the
dominant hierarchies of wealth and power. In books such as The Rodrigo Chronicles (1995),
Justice at War (2003), and The Law Unbound! (2007), Delgado lets his alter ego, “Rodrigo
Crenshaw,” tell stories about the difficult experiences minorities confront within the
contexts of law school hiring practices, the regulation of hate speech and affirmative action,
and the Bush administration’s war against terrorism, among others.65

Like feminist jurisprudence, CRT has influenced the development of Asian American,
Latino-critical (LatCrit), and gay (QueerCrit) scholarship that studies immigration,
language rights, and national-origin racial discrimination.66 CRT supporters also observe
that racial perspectives have directly affected judicial outcomes in areas such as
environmental justice, racial profiling, hate speech, and English-only language
discrimination cases. Federal Judge Shira Scheindlin’s decision, which was overturned on
appeal, to halt the New York police department’s stop-and-frisk policy because it violated
minority rights through racial profiling, may be further evidence of the impact of CLS
theory and CRT.67

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Contemporary Controversies Over Courts

101
Is Cannibalism Ever Legally Justified?
The legal theories outlined in this chapter are “about” jurisprudence. The following hypothetical involves
“doing” jurisprudence, as opposed to simply theorizing about important legal questions. Use the
hypothetical situation and the questions posed afterward to answer the jurisprudential question of whether
cannibalism is ever legally justified.

Imagine five cave explorers from the Speluncean Society in the year 4300 who are trapped in an
underground cave after a landslide blocks the entrance. Considerable time and expense are put into a rescue
effort, which spans more than two weeks and results in the deaths of ten rescuers. After twenty days in the
cave and with diminishing supplies, the group members decide they must kill one of their own in order to
survive. Roger Whetmore, one of the group, proposes that they cast dice to determine who should be killed
and eaten. After much deliberation and hesitation, the group agrees. But shortly thereafter, Whetmore gets
scared and withdraws from the agreement he had proposed. Nonetheless, the group goes ahead with the
plan. Then Whetmore refuses to participate, so the dice is thrown for him, and the throw goes against him.
Whetmore is then killed and eaten on the twenty-third day. The remaining survivors are rescued on the
thirty-second day. Afterward, they are put on trial for murder. The statute under which they are tried states:
“Whoever shall willfully take the life of another shall be punished by death.”

Suppose the jury finds all of the survivors guilty and the trial judge promptly sentences the defendants to
death by hanging. After the jury is released from duty, however, its members petition the Supreme Court to
reconsider the verdict and commute the sentence to six months’ imprisonment, although they are uncertain
whether clemency would be granted under such circumstances.

Five justices on the Supreme Court review the petition, thus appealing the murder convictions and death
sentences. The legal philosophy of each justice is well known:

Chief Justice Truepenny is a textualist but favors executive clemency.

Justice Foster is a natural law theorist.
Justice Tatting is not associated with any legal philosophy and, before the justices vote, withdraws
from the case.
Justice Keen is a legal positivist who prefers using the “plain meaning” of the statute but disfavors
executive clemency.
Justice Handy is a legal realist.

Based on these facts:

(1) Will the Supreme Court affirm the murder convictions and death sentences, or will the defendants be
acquitted?

(2) How would each justice (except for Tatting) vote based on his or her legal philosophy?

(3) The justices’ race, ethnicity, or gender is not known in the hypothetical. But assign a race, ethnicity, and
gender classification to each of the justices. Does that make a difference, and if so, how does race, ethnicity,
or gender affect each justice’s vote?

(4) What is the legislative purpose of the murder statute, and how would that affect each justice’s vote?

(5) Are there any moral exceptions to the application of the statute, like “self-defense,” “necessity,” or
“emergency”?

Source: This hypothetical was created by Lon L. Fuller in a law review article, “The Case of the Speluncean
Explorers,” in Harvard Law Review 62 (1949): 616–45. The hypothetical was inspired by actual cases,
United States v. Holmes, 26 F. Case 350 (E.D. Pa. 1842), and Regina v. Dudley and Stephens, 14 Q.B.D. 273

102
(1884). For further discussion, see William Twining, “Cannibalism and the Case of the Speluncean
Explorers,” in The Speluncean Case: Making Jurisprudence Seriously Enjoyable, edited by James Allen (Little
London: Barry Rose Publishers, 1998); and Allan C. Hutchinson, Is Eating People Wrong? Great Legal Cases
and How They Shaped the World (Cambridge, U.K.: Cambridge University Press, 2011).

103
Chapter Summary
The law’s evolution is influenced by classical and contemporary theories of jurisprudence.
Legal theories give meaning to the law and define the scope of the legal regulation of public
and private affairs. Important questions of jurisprudence address the origins of law, law’s
substantive and normative meaning, and the relationship of morality to law and justice, as
well as the role law plays in preserving and challenging the political and social order.

Classical legal theories include natural law, legal positivism, sociological jurisprudence, and
legal realism. The writings of Saint Thomas Aquinas, Thomas Hobbes and John Locke, Sir
William Blackstone, Jeremy Bentham, Lon Fuller and H. L. A. Hart, Max Weber, Roscoe
Pound, Oliver Wendell Holmes, and Jerome Frank greatly influenced classical theories of
jurisprudence. Contemporary legal theories include economics and law, feminist
jurisprudence, critical legal studies, and critical race theory. Those schools of thought have
been shaped by the contributions of philosophers Richard Posner, Catherine MacKinnon,
Duncan Kennedy, Mark Tushnet, and Richard Delgado, among others. The application of
legal theory to judicial practice and institutional reform is ongoing but often controversial
and contingent upon prevailing social, economic, and political conditions.

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Key Questions for Review and Critical Analysis
1. How would you characterize the origins of law? How do classicial and contemporary
legal theories differ?
2. Should judges decide cases only on the basis of the text of statutes and the
Constitution, as legal positivists like H. L. A. Hart claim, or must judges take into
account background principles and morality, as philospher Ronald Dworkin argues?
3. What is the significance of Justice Oliver Wendell Holmes’s observation that “the law
is nothing more than ‘prophecies of what the courts will do in fact’”? What is its
relation to legal realism?
4. How defensible is the claim made by Judge Richard Posner, and others in the law
and economics movement, that cost–benefit economic analysis results in greater
efficiency and “maximizes” the public good?
5. Which strand of feminist theory (equality, difference and domination, or postmodern
approaches) is most persuasive, and why?
6. What do you think of the critical race theorists’ claim that the landmark school
desegregation ruling in Brown v. Board of Education (1954) was a failure in law and
society?

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Web Links
1. 1. Cornell Legal Information Institute (www.law.cornell.edu/wex/jurisprudence)
Sponsored by Cornell University’s Law School, this link provides an
introdution to jurisprudence and a list of resources about specific schools of
thought and cases.
2. Law and Society Association (www.lawandsociety.org)
Website containing information and links to annual meetings, journals,
research, publications, and networks relating to the Law and Society
Association.
3. Jurist (www.jurist.org)
Sponsored by the University of Pittsburgh School of Law, a comprehensive
legal news and legal research website.
4. Justia’s BlawgSearch (http://blawgsearch.justia.com/blogs/categories/legal-theory)
A comprehensive listing of most popular legal theory blogs.
5. Social Science Research Network (www.ssrn.com/en)
A widely used source of legal scholarship, spanning topics in law, political
science, legal theory, and jurisprudence, and with links to SSRN blogs and
relevant journals.

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Selected Readings
Collins, Patricia Hill. Black Feminist Thought. New York: Routledge, 2008.

Corwin, Edward S. The “Higher Law” Background of American Constitutional Law.

Ithaca, N.Y.: Cornell University Press, 1968.

Cotterrell, Roger. The Politics of Jurisprudence: A Critical Introduction to Legal

Philosophy. 2nd ed. New York: Oxford University Press, 2003.

Crenshaw, Kimberle, Neil Gotanda, Gary Peller, and Kendall Thomas, eds. Critical Race
Theory: The Key Writings That Formed the Movement. New York: New Press, 1995.

Delgado, Richard. Critical Race Theory: An Introduction. 2nd ed. New York: New York
University Press, 2012.

Duxbury, Neil. Patterns of American Jurisprudence. Oxford: Clarendon Press, 1995.

Dworkin, Ronald. Justice for Hedgehogs. Cambridge, Mass.: Belknap, 2011.

Dworkin, Ronald. Law’s Empire. London: Fontana Press, 1986.

Dworkin, Ronald.Taking Rights Seriously. Cambridge, Mass.: Harvard University Press,

1977.

Frank, Jerome. Law and the Modern Mind. New York: Brentano’s Publishers, 1930.

Freeman, M.D.A. Lloyd’s Introduction to Jurisprudence. 9th ed. London: Wiley & Sons,
2015.

Fuller, Lon L. The Morality of Law. New Haven, Conn.: Yale University Press, 1964.

107
George, Robert P., ed. Natural Law, Liberalism, and Morality: Contemporary Essays.
Oxford: Oxford University Press, 2001.

Hart, H. L. A. The Concept of Law. New York: Oxford University Press, 1961.

Leiter, Brian. Naturalizing Jurisprudence: Essays on American Legal Realism and

Naturalism in Legal Philosophy. New York: Oxford University Press, 2007.

MacKinnon, Catherine A. Feminism Unmodified: Discourses on Life and Law.

Cambridge, Mass.: Harvard University Press, 1987.

Posner, Richard A. Law, Pragmatism, and Democracy. Cambridge, Mass.: Harvard

University Press, 2003.

Rumble, Wilfrid E., Jr. American Legal Realism. Ithaca, N.Y.: Cornell University Press,
1968.

Stefancie, Jean, and Richard Delgado. Critical Race Theory: The Cutting Edge. 3rd ed.
Philadelphia: Temple University Press, 2013.

Twining, William. Globalisation and Legal Theory. Evanston, Ill.: Northwestern

University Press, 2001.

Twining, William. Karl Llewellyn and the Realist Movement. 2nd ed. Cambridge, U. K.:
Cambridge University Press, 2012.

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endnotes
1. Sue Lyles Eakin, “Introduction,” in Twelve Years a Slave, edited by David Wilson
(Woodlands, Tex.: Eakin Films & Publishing, 2013).

2. Shelby County vs. Holder, 133 S. Ct. 2612 (2013). See also Joseph Goldstein, “Court
Blocks Stop-and-Frisk Changes for New York Police,” New York Times (October 31,
2013), available at www.nytimes.com/2013/11/01/nyregion/court-blocks-stop-and-frisk-
changes-for-new-york-police.html?_r=0 (last retrieved November 22, 2013).

3. See, e.g., “Brief, Amicus Curiae of Anti-Defamation League in Support of Respondents,”

available from www.supremecourtpreview.org (American Bar Association) (last retrieved
November 22, 2013), 20; “Brief, Amicus Curiae of Political Scientists Gary Segura, Shaun
Bowler, Todd Donovan, Zoltan Hajnal, Rodney Hero, Stephen Nicholson, and Caroline
Tolbert in Support of Respondents,” available from www.supremecourtpreview.org (last
retrieved November 22, 2013), 12–14; and, “Brief, Amicus Curiae of the Society of
American Law Teachers in Support of Respondents,” available from
www.supremecourtpreview.org (last retrieved November 22, 2013), 24, 26, 29.

4. Ruggero J. Aldisert, A Judge’s Advice: 50 Years on the Bench (Durham, N.C.: Carolina
Academic Press, 2011), 172.

5. As quoted in Edward S. Corwin, The “Higher Law” Background of American

Constitutional Law (Ithaca, N.Y.: Cornell University Press, 1988), 5.

6. Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, rev. ed.
(Cambridge, Mass.: Harvard University Press, 1974), 3–30; David Van Drunen, Law and
Custom: The Thought of Thomas Aquinas and the Future of the Common Law (New York:
Peter Lang, 2003), 30–37.

7. Such human flourishing is described by Finnis as “basic forms of good,” including the
drive for self-preservation (life), the acquisition of information (knowledge), engaging in
enjoyment (play), having an appreciation of beauty, art, or nature (aesthetic experience),
experiencing friendship (sociability), intelligently solving problems (practical
reasonableness), and having faith (religion). The basic requirements of practical
reasonableness are those (nine) principles that structure one’s life, including remaining
open-minded, detached, committed, impartial, and efficient in the pursuit of living a life
that is respectful toward others and in pursuit of communal goals. Raymond Wacks,
Understanding Jurisprudence: An Introduction to Legal Theory, 3rd ed. (Oxford: Oxford
University Press, 2012), 24. Some label Finnis’s work as representing the “new natural
law.” Steven D. Smith, “Which Come First: The Person or the Goods?” Legal Theory 13
(2007), 285–313, 286; and it is hailed as “groundbreaking in its application of the

109
methodology of analytical jurisprudence to a body of doctrine [classical natural law] usually
considered to be its polar opposite.” Wacks, Understanding Jurisprudence, 23. See also N. E.
Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights, 4th ed. (London: Sweet
& Maxwell, 2013), 142. Finnis’s original book, published in 1980, has been revised slightly
in John Finnis, Natural Law and Natural Rights (New York: Oxford University Press,
2011).

8. Mark C. Murphy, “Natural Law Jurisprudence,” Legal Theory 9 (2003), 241–67, 244.

9. Blackstone’s Commentaries on the Laws of England in Four Volumes, edited by Wayne

Morrison (London: Cavendish, 2001), 41.

10. Calder v. Bull, 3 U.S. 386 (1798).

11. Dred Scott v. Sandford, 60 U.S. 393 (1857).

12. Bradwell v. Illinois, 83 U.S. 130 (1873).

13. Brown v. Board of Education, 347 U.S. 483 (1954). See Clarence Thomas, “Toward a
‘Plain Reading’ of the Constitution: The Declaration of Independence in Constitutional
Interpretation,” Howard Law Journal 30 (1987), 983, 991–997.

14. Lon L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard
Law Review 71 (1958), 630–72. See also Wacks, Understanding Jurisprudence, 33.

15. See generally M. D. A. Freeman, Lloyd’s Introduction to Jurisprudence, 9th ed. (London:
Sweet & Maxwell, 2015); H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence and
Political Theory (Oxford: Clarendon Press, 1982).

16. George P. Fletcher, Basic Concepts of Legal Thought (New York: Oxford University
Press, 1996), 146. See generally Freeman, Lloyd’s Introduction to Jurisprudence, 199–221;
Hart, Essays on Bentham.

17. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).

18. Ibid.

19. Robert H. Bork, “Tradition and Morality in Constitutional Law,” in Judges on Judging:
Views from the Bench, edited by David M. O’Brien, 4th ed. (Washington, D.C.: CQ Press,
2012), 222.

20. Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press,
1977); Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution
(Cambridge, Mass.: Harvard University Press, 1996); Ronald Dworkin, Law’s Empire
(London: Fontana Press, 1986); Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass.:

110
Belknap Press, 2011).

21. Dworkin, Justice for Hedgehogs, 414. The murder/inheritance illustration is from Riggs
v. Palmer, a case Dworkin uses in his analysis of principles. Simmonds, Central Issues in
Jurisprudence, 200. See also Dworkin, Taking Rights Seriously, 22, 26; Dworkin, Freedom’s
Law, 1–38; Dworkin, Law’s Empire, 176–224.

22. Bowers v. Hardwick, 478 U.S. 186 (1986).

23. Ibid., 196.

24. Ibid. (CJ. Burger, concurring opinion).

25. Lawrence v. Texas, 539 U.S. 558 (2003), 536, 562, 571–72, 576.

26. Kenneth Veitch, “Social Solidarity and the Power of Contract,” Journal of Law and
Society 38 (2011), 189–214.

27. Sally Ewing, “Formal Justice and the Spirit of Capitalism: Max Weber’s Sociology of
Law,” Law and Society Review 21 (1987), 487–512; Anthony T. Kronman, Max Weber
(Stanford, Calif.: Stanford University Press, 1983).

28. See Alan Hunt, The Sociological Movement in Law (Philadelphia: Temple University
Press, 1978), 118–46.

29. Roscoe Pound, “The Need of a Sociological Jurisprudence,” Green Bag 19 (“law in
books” 1908), 611–12. See also Roscoe Pound, “Law in Books and Law in Action,”
American Law Review 44 (1910), 12–21; Roscoe Pound, “The Causes of Popular
Dissatisfaction With the Administration of Justice,” The American Lawyer 14 (1906), 445–
52. See also Hunt, The Sociological Movement in Law, 22–29.

30. These scholars included John Chipman Gray (1839–1915), Herman Oliphant (1884–
1939), William Underhill Moore (1879–1949), Walter Wheeler Cook (1873–1943),
Arthur Linton Corbin (1874–1966), and Wesley Newcomb Hohfeld (1879–1918), all of
which helped found American legal realism. American realism has a pragmatist orientation
and differs from the skepticism of Scandinavian legal realism, which is described as “a
philosophical assault on the metaphysical foundations of law” and directed at criticizing
conventional understandings of the legal system instead of courts and judging. Wacks,
Understanding Jurisprudence, 145. Scandinavian realism is best represented by the writings
of Axel Hagerstrom (1868–1939), Alf Ross (1899–1979), Karl Olivecrona (1897–1980),
and A. V. Lundstedt (1882–1955). Wacks, Understanding Jurisprudence, 145–47, 154.

31. Neil Duxbury, Patterns of American Jurisprudence (New York: Oxford University Press,
1995), 84–85, 122–25, 140–49.

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32. Ibid.

33. Oliver Wendell Holmes, Jr., “The Path of the Law,” Harvard Law Review 10 (1896),
42–43.

34. Karl N. Llewellyn, “The Normative, the Legal, and the Law-Jobs: The Problem of
Juristic Method,” Yale Law Journal 49 (1940), 1355–400. See also Wacks, Understanding
Jurisprudence, 149–51; Hunt, The Sociological Movement in Law, 48–55.

35. Jerome Frank, Law and the Modern Mind (New York: Brentano’s Publishers, 1930),
101–11.

36. Duxbury, Patterns of American Jurisprudence, 135–62. See also Wacks, Understanding
Jurisprudence, 147.

37. See Duxbury, Patterns of American Jurisprudence, 123.

38. Duxbury, Patterns of American Jurisprudence, 161–299. See, e.g., Harold D. Laswell
and Myres S. McDougal, “Legal Education and Public Policy: Professional Training in the
Public Interest,” Yale Law Journal 52 (1943), 203–95.

39. Duxbury, Patterns of American Jurisprudence, 316–64.

40. Richard A. Posner, The Economics of Justice (Cambridge, Mass.: Harvard University
Press, 1981), 65–66, 75, 88–99.

41. Ibid.

42. Bush v. Gore, 531 U.S. 98 (2000).

43. Richard A. Posner, Law, Pragmatism, and Democracy (Cambridge, Mass.: Harvard
University Press, 2003), 78–80, 188–203, 296–99, 322–56. See generally Bush v. Gore:
The Question of Legitimacy, edited by Bruce Ackerman (New Haven, Conn.: Yale
University Press, 2002).

44. A. Mitchell Polinsky and Steven Shavell, “Punitive Damages: An Economic Analysis,”
Harvard Law Review 111 (1998), 869–962; Robert J. Rhee, “A Financial Economic
Theory of Punitive Damages,” Michigan Law Review 111 (2012), 33–87. See also Matheis
v. Accor Economy Lodging, Inc., 347 F.3d 672, 677 (7th Cir. 2003) (J. Posner).

45. John J. Donohue III and Steven D. Levitt, “The Impact of Legalized Abortion on
Crime,” Quarterly Journal of Economics 116 (2001), 379–420; and Elizabeth M. Landes
and Richard A. Posner, “The Economies of the Baby Shortage,” Journal of Legal Studies 7
(1978), 323–48. Other studies report that the Ku Klux Klan’s illegal activities in the 1920s
demonstrate the Klan was merely a successful marketing enterprise selling hate and profits

112
instead of being a terrorist organization. Roland G. Fryer, Jr., and Steven D. Levitt,
“Hatred and Profits: Under the Hood of the Ku Klux Klan,” Quarterly Journal of Economics
127 (2012), 1883–925. See also Duxbury, Patterns of American Jurisprudence, 414–15.

46. See Eyal Zamir and Barak Medina, Law, Economics, and Morality (New York: Oxford
University Press, 2010).

47. Martha Chamallas, Introduction to Feminist Legal Theory (New York: Wolters Kluwer
Law and Business, 2013), 19–20; Wacks, Understanding Jurisprudence, 302.

48. Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge,
Mass.: Harvard University Press, 1987); Catherine MacKinnon, Feminist Theory of the State
(Cambridge, Mass.: Harvard University Press, 1989); Carol Gilligan, In a Different Voice:
Psychological Theory and Women’s Development (Cambridge, Mass.: Harvard University
Press, 1982).

49. Chamallas, Introduction to Feminist Legal Theory, 20–23; Wacks, Understanding

Jurisprudence, 303–304.

50. Chamallas, ibid. Wacks, Understanding Jurisprudence, 305–308.

51. American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir., 1981). Because the
law defined pornography as the “graphic sexually explicit subordination of women”
through media (pictures or words) that “dehumanizes” them as “sexual objects,” the court
struck it down. Hudnut, however, remains controversial because it, arguably, reaffirms the
radical feminist’s claim that law is an extension of male domination or confirms the values
underlying individual freedom. Katharine T. Bartlett, “Feminist Legal Methods,” Harvard
Law Review 103 (1990), 829; Denise Schaeffer, “Feminism and Liberalism Reconsidered:
The Case of Catharine MacKinnon,” American Political Science Review 95 (2001), 699–
708; Cass R. Sunstein, “Pornography and the First Amendment,” Duke Law Journal 1986
(1986), 589.

52. U.S. v. Morrison, 529 U.S. 598 (2000). See also Catherine A. MacKinnon, “Disputing
Male Sovereignty: On United States v. Morrison,” Harvard Law Review 114 (2000), 135–
77.

53. Chamallas, Introduction to Feminist Legal Theory, 405–8. Chamallas cites the
entrenchment of gender neutrality legal doctrine (ibid., 406); the increased availability of
sexual harassment lawsuits and routine use of protection orders (ibid., 406); the rapid
growth and success of “family responsibility discriminatory” or caregiver lawsuits (ibid.,
260); Pennsylvania’s legislative reform of criminal penalties for nonconsensual sex in rape
cases in response to Commonwealth v. Berkowitz, 641 A.2d 1160 (Pa. 1994) (ibid., 291);
influencing federal court and international court decisions in mass rape cases as violations
of federal law and human rights violations (ibid., 294–95); strengthening federal law and

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United Nations protocols that protect women’s rights in prostitution cases and sex
trafficking cases through lobbying efforts (ibid., 354–56).

54. Chamallas, Introduction to Feminist Legal Theory, 202, 216. See, e.g., Ernesto Javier
Martinez, Queer Race Narratives of Intelligibility (Stanford, Calif.: Stanford University
Press, 2013); Michael Sadowski, In a Queer Voice: Journeys of Resilience From Adolescence to
Adulthood (Philadelphia: Temple University Press, 2013).

55. Morton Horowitz, “Legal History,” in Legal Intellectuals in Conversation, edited by

James R. Hackney, Jr. (New York: New York University Press, 2012), 80.

56. Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction (New York:
New York University Press, 2012), 5.

57. CLS thus rejects law’s neutrality under a principle of antiformalism, and its coherency
under principles of indeterminacy and contradiction. Wacks, Understanding Jurisprudence,
284.

58. See, e.g., Duncan Kennedy, “Form and Substance in Private Law Adjudication,”
Harvard Law Review 89 (1976), 1689–778; Roberto Mangabeira Unger, “The Critical
Legal Studies Movement,” Harvard Law Review 96 (1983), 560–675; Mark V. Tushnet,
“Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,”
Harvard Law Review 96 (1983), 781–827.

59. Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against
the System (Cambridge, U. K.: Afar, 1983). See also Michigan Law Review Association,
“Legal Education and the Reproduction of Hierarchy: A Polemic Against the System”
[Book Review], Michigan Law Review 82 (1984), 961–65; Pauline T. Kim, “The
Colorblind Lottery,” Fordham Law Review 72 (2003), 20 n. 62.

60. Mark Tushnet, The New Constitutional Order (Princeton, N.J.: Princeton University
Press, 2003), ix–x, 1–7, 111–12, 167–72. Tushnet reiterates these themes in Mark
Tushnet, Why the Constitution Matters (New Haven, Conn.: Yale University Press, 2010).

61. Mark Tushnet, “Critical Legal Theory (Without Modifiers) in the United States,”
Journal of Political Philosophy 13 (2005), 99–112. But see Duxbury, Patterns of American
Jurisprudence, 509; David Jabbari, “From Criticism to Construction in Modern Critical
Legal Theory,” Oxford Journal of Legal Studies 12 (1992), 507–42. See also Richard A.
Epstein, “Tushnet’s Lawless World,” The University of Chicago Law Review Dialogue 80
(2013), 1–23. Epstein attacks Mark Tushnet by describing him as “a grizzled hanger-on” of
the defunct CLS movement that has an “unwholesome negativism.” Ibid., 1, 22.

62. Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction, 2nd ed.
(New York: New York University Press, 2012), 20–30.

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63. Derrick A. Bell, Jr., “Brown v. Board of Education and the Interest-Convergence
Dilemma,” Harvard Law Review 93 (1980), 518. See generally Kimberle Crenshaw, Neil
Gotanda, Gary Peller, and Kendall Thomas, eds., Critical Race Theory: The Key Writings
That Formed the Movement (New York: New Press, 1995).

64. Delgado and Stefancic, Critical Race Theory: An Introduction, 2nd ed. (New York: New
York University Press, 2012), 30–34. See also Kathryn Abrams, “The Constitution of
Women,” Alabama Law Review 48 (1997), 867–74; Patricia A. Cain, “Feminism and the
Limits of Equality,” Georgia Law Review 24 (1990), 804–5, 829–40.

65. Richard Delgado, “Storytelling for Oppositionists and Others: A Plea for Narrative,”
Michigan Law Review 87(1989), 2411, and Critical Race Theory: The Cutting Edge
(Philadelphia: Temple University Press, 2013). See also Richard Delgado, The Rodrigo
Chronicles: Conversations About America and Race (New York: New York University Press,
1995); Richard Delgado, Justice at War: Civil Liberties and Civil Rights During Time of War
(New York: New York University Press, 2003); and Richard Delgado, The Law Unbound!
A Richard Delgado Reader, edited by Richard Delgado and Jean Stefancic (Boulder, Colo.:
Paradigm, 2007).

66. Delgado and Jean Stefancic, Critical Race Theory, 3.

67. Delgado and Jean Stefancic, Critical Race Theory, 143–51. See ibid., 122–23—citing
Jersey Heights Neighborhood Association v. Glendening, 174 F.3d 180 (4th Cir., 1999)
(environmental justice); 129–30—citing United States v. Leviner, 31 F. Supp.2d 23 (D.
Mass., 1998) (mandatory sentencing); 133—citing Taylor v. Metzger, 706 A.2d 685, 691
(N.J., 1998) (hate speech); 134—citing Ruiz v. Hull, 957 P.2d 984 (Ariz., 1998) (English-
only language law). See also Goldstein, “Court Blocks Stop-and-Frisk Changes for New
York Police.”

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Part II Judicial Organization And Administrative
Processes

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Chapter 3 Judicial Organization and Administration

SOME COURT WATCHERS CLAIM THAT “STATE COURTS HAVE BECOME A

NEW

battleground” for politicians and special interest groups who disagree with their rulings—
ranging from abortion to capital punishment, to public school financing, to same-sex
marriage. Justices and judges increasingly face threats of impeachment, for example, and
millions of special interest dollars are spent on attack ads aimed at unseating them in
retention elections. Other tactics include introducing legislation that would sharply cut
court funding, reduce judicial salaries, or impose term limits and retirement age
requirements.1

A widely used tactic is judicial reform that alters court organization and judicial
administration in retaliation for politically controversial rulings. Such was the aim in 2011
of Florida Republican legislators who were angry over rulings on death penalty appeals and
that prevented anti–federal health care constitutional amendments from being put to the
voters. They proposed to split the state supreme court into civil and criminal divisions. Had
they been successful, most senior judges appointed by a former Democratic governor would
have gone to a criminal law division, while the Republican governor would have had the
opportunity to select new judges to the civil division. As one state senator explained, the
reform was necessary to “take back control of our courts.”2

Critics of these trends, including retired Supreme Court Justice Sandra Day O’Connor,
argue that there is a growing “national war on state courts” that is detrimental to judicial
independence and public confidence in the courts.3 Yet, partisan efforts to reconstitute the
courts are not confined to the states or defined by a particular political ideology or a
political era. Historically, federal courts also have often been easy targets. Liberals and
conservatives alike have tried to curb the courts by reshuffling them and changing how they
administer justice.4 The political struggles to limit judicial authority by enacting reform to
change the judiciary’s structure illustrate the ongoing conflicts over judicial architecture.

Judicial architecture refers to the organization and administration of court operations,

including judicial administration, budgeting, rulemaking, staffing, education, and
discipline.5 Partisan debates over architectural issues influence a judiciary’s institutional
identity and internal operations, such as whether there is sufficient funding and resources to
efficiently manage caseloads. In addition, they may impact the quality and substance of
judicial decision making. As a result, as Justice O’Connor suggests, the underlying politics
of judicial architecture greatly affect whether the judiciary can retain independence from
the political branches, an essential principle of the separation of powers and the rule of

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law.

This chapter focuses on the basic issues of the politics of judicial architecture: the structure,
organization, and administration of courts. First, a brief history of the origin of U.S. courts
is discussed to situate the growth of state and federal courts in a constitutional framework.
Next, the basic organization, and respective dockets, of state and federal courts is analyzed
and illustrates the principles and politics of judicial federalism (the independence and
interrelationship of state and federal courts). The chapter concludes by addressing the
politics of judicial administration, or how courts internally operate and respond to external
forces as bureaucracies within the political system.

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The Origins of U.S. Courts
The history of U.S. courts begins with the struggle for independence. Before the
Constitutional Convention in Philadelphia in 1787, the states were in the forefront of
experiments to limit governmental power by separating institutions and imposing checks
and balances. Consequently, there emerged a diverse network of independent state courts
that resemble, but are distinct from, the federal judiciary. The federal judiciary was created
only after the ratification of the Constitution. Yet, the structure and organization of state
and federal judiciaries remain largely the same as that which took shape during the
founding period.

Before the American Revolution, town, county, and representative assemblies were sources
of colonial law. Colonial governments typically consisted of a governor (appointed by the
Crown), an appointed council, and an elected assembly. Of the three institutions, the
assembly had most of the people’s allegiance because the governor and courts were viewed
as symbols of the Crown. The divisions of authority, however, were blurred because the
governor shared legislative powers and the councils often served as high courts.
Accordingly, colonial legal institutions consisted of a confusing and sometimes overlapping
layer of courts that included superior courts and county or local courts, each with varying
jurisdiction over specific criminal and civil matters.6

Colonists grew increasingly hostile over England’s attempt to assert more formal control
through magisterial rule. The lack of separated governmental institutions was perceived as a
source of political corruption and destructive of personal freedoms. In 1775, the colonies
responded by calling special conventions for the purpose of drafting constitutions, based on
the principle of consent and separate legislative and judicial branches. Several 1776
constitutions added bills of rights, established rotating terms of office, and required annual
elections. Some made explicit reference to the principle of separation of powers, and most
removed the power to appoint judges from governors and placed it with the legislature.
Following the lead of Virginia, six states identified the judiciary as a distinct branch of
government. Most states as well granted judges tenure on the basis of “good behavior.”
Although the extent of the judiciaries’ power remained largely untested in practice, the
highest courts in some states (Virginia, Pennsylvania, and Massachusetts) asserted the
power of judicial review—the power to declare legislation and other official acts
unconstitutional.7

The Articles of Confederation, drafted in 1777 and approved by the Continental Congress
in 1781, however, did not establish a separate national judiciary. Congress was the “last
resort of appeal,” but, with few exceptions, congressional power was only effective if nine of
the thirteen states approved of legislative action.8 Because each state had sovereign rights in
a loose confederation of voluntary cooperation, state legislatures were dominant in a system

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of weak central government. There was no power to coerce the states into cooperating on
issues affecting the national interest. With a unicameral assembly and a diluted executive
and nonexistent judiciary, the Articles made difficult or prevented united action as a nation
to repel domestic or foreign threats.9

The lack of a federal coercive sanction against state laws was a structural defect that James
Madison thought was “mortal to the ancient Confederacies, and [a] disease of the
modern.”10 Madison’s experience in the Continental Congress and the Virginia General
Assembly in the 1780s convinced him of the need for centralization and a national veto
over state laws because dominant majorities often put their interests above those of
minorities and the nation. Although Madison’s proposal for a “council of revision,” with
the power to strike down state laws, was ultimately rejected at the Constitutional
Convention, he realized the political system required a strong central government in order
to curb factionalism, conduct foreign relations, regulate commerce, and protect natural
rights. State legislatures also acted unpredictably, passing laws favoring debtor relief at the
expense of the creditors in an uncertain economy struggling with the problem of paying
Revolutionary War debts. State courts, on the other hand, tended to protect creditors and
the mercantile class, forcing many farmers and debt-ridden citizens into foreclosures.11

Under the Articles of Confederation, the nation was thus fatally beset by problems. Those
favoring an invigorated centralized government, including Madison, Alexander Hamilton,
and John Dickinson, met in Annapolis, Maryland, at a convention in September 1786.
Although only five states and twelve delegates attended, the occasion was used to call for a
second convention to convene in Philadelphia in May 1787 for the purpose of considering
remedies to meet the “exigencies of the Union.”12

Most of the fifty-five delegates to the Constitutional Convention were lawyers,

Revolutionary War heroes, and political statesmen. James Madison, a nationalist from
Virginia, advanced the “Virginia Plan” to set the Convention’s agenda and to replace the
Articles. In addition to establishing a legislature and giving it the power to veto state laws,
the Virginia Plan proposed creating an executive, a national judiciary, and a council of
revision that could veto laws passed by Congress and the states. By contrast, William
Paterson’s “New Jersey Plan” countered that all states must be represented equally and the
Articles should just be revised, not replaced. By June, the differences over the key issue of
representation forced the Convention into deadlock. The stalemate was then effectively
broken by Delaware’s John Dickinson, who proposed a compromise. That compromise
divided Congress into a bicameral institution elected by the states and the people. The
states were represented in the Senate by allowing state legislatures to select its senators,
whereas the House of Representatives’ membership was determined through popular
elections held in each of the states. The federal judiciary consisted of a Supreme Court
staffed by justices appointed by the president after Senate confirmation.13 Notably, the
establishment and organization of the lower federal courts was left to the First Congress to

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determine.

Likewise, the nature and scope of the Court’s jurisdiction and power was also debated. The
Convention rejected Madison’s proposal for a veto over state laws, but the ensuing
deliberation produced Article VI—the Supremacy Clause, requiring both federal and state
courts to adhere to the Constitution. Accordingly, the Framers appeared to anticipate that
federal courts would exercise judicial review over acts of the federal and state governments,
although it was less clear whether state courts had the same power to nullify national law.14

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The 1789 Judiciary Act
Following the Constitution’s ratification, the First Congress swiftly enacted the Judiciary
Act of 1789, which laid the foundation for the federal judiciary—its organizational
structure and jurisdiction. State judiciaries were left untouched and retained jurisdiction
over cases not otherwise raising issues under federal law. Just as significantly, with the
exception of diversity cases (in which citizens of one state sue another for monetary
damages exceeding a certain amount), the act ensured that state courts would have
concurrent jurisdiction with federal courts over many federal questions—questions
involving the interpretation of the Constitution and federal law. That decision reflected a
political and economic compromise. Anti-Federalists (those opposing the ratification of the
U.S. Constitution), who were mostly rural landowners, feared the creation of a federal
judiciary and favored state courts that they thought would protect local economic interests.
In addition, the act generally limited federal courts’ jurisdiction to admiralty, forfeitures,
penalties, federal criminal law, and cases in which the national government is a plaintiff.
The restrictions on federal judicial power meant that the state courts, which were more
numerous, would play a central role as the principal trial courts.15

Congress’s decision to create lower federal courts in the first place was nonetheless a key
political victory for Federalists (those who were proponents of commercial nationalism and
supported the ratification of the Constitution). Federalists worried that all trials would
occur in state courts and mercantile interests might be threatened as the nation grew. As a
result, Congress created thirteen district (trial) courts, one in each state, along with three
appellate or circuit courts in three geographical regions (eastern, southern, and middle).
District courts heard mostly admiralty cases and were presided over by a single judge in
quarterly sessions during the year. Circuit courts were specially convened to hear cases twice
a year in each circuit’s district. Their main function was to adjudicate diversity and criminal
cases, but also appeals in certain cases from district courts. Notably, Congress did not
authorize any judgeships for the circuit courts. Instead, they were staffed by two Supreme
Court justices who traveled to the location where the circuit court was held with a district
judge, and sat as a three-judge court. The practice became known as “riding circuit.”
Although it was physically demanding and unpleasant for most justices, the measure was
practical because justices had very few cases in the first decades of the new republic.It also
contributed to the process of nation building at a time when many citizens were unfamiliar
with, or even deeply distrustful of, the national government. Still, the justices resented the
practice because they thought of themselves as “traveling postboys,” who were placed in the
uncomfortable position of having to hear the appeals of cases they originally heard while
serving on circuit courts.16

The Judiciary Act of 1789 established the Supreme Court’s membership at six (one chief
justice and five associate justices). In addition to authorizing federal courts to make

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procedural rules and appoint clerks, the act established the Court’s appellate jurisdiction—
jurisdiction over appeals from the lower federal courts. However, Article III of the
Constitution established the Court’s original jurisdiction—specifically what kinds of cases
the Court would basically hear as a trial court or court of first instance. Subsequently,
Section 13 of the Judiciary Act of 1789 appeared to expand the Court’s original jurisdiction
beyond “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party” by giving it the power to issue writs of mandamus—writs
ordering government officials to perform or stop some action. That provision proved
contentious, and Chief Justice John Marshall (a Federalist), in the landmark ruling in
Marbury v. Madison (1803),17 declared Section 13 unconstitutional because it was deemed
to expand the Court’s original jurisdiction, as established in Article III, by mere legislation
and thus violate the Supremacy Clause of Article VI of the Constitution. In addition,
Section 25 of the Judiciary Act empowered the Court to hear appeals from the highest state
court rulings that either invalidated federal law or upheld state law in opposition to federal
law. By bringing state court judgments under federal appellate review, Section 25 was
essentially an important restatement of the principle found in the Supremacy Clause.18

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The Evolution of the Federal Judiciary
After the American Revolution, more new states and territories emerged as the country
rapidly expanded westward. The growth increased the federal courts’ responsibilities and
caseloads. Accordingly, Congress periodically enacted legislation that added more circuits
and judges in response to rising litigation.19 The difficulties were compounded by the
acquisition of the Louisiana Purchase and the emergence of the modern business
corporation, which both produced more commercial and maritime activity that expanded
the role of federal courts. As a result, by 1863 the size of the federal judiciary had grown to
ten circuits, and the total number of justices on the Supreme Court rose to ten, its highest
level.20

President Abraham Lincoln in 1861 warned in his first inaugural address that “the country
has outgrown our present judicial system.” Of particular concern were the limitations of
circuit courts and a backlog of Supreme Court cases. At least eight newly admitted states
could not convene circuit courts with Supreme Court justices in attendance. Between 1860
and 1880, the Court’s docket rose from 310 to 1,212 cases, and the Court had to decide all
appeals. Moreover, lower federal courts faced similar caseload pressures. From 1873 to
1890, the caseloads of lower federal courts increased from 29,013 to 54,194 cases. As
Justice Felix Frankfurter observed, the prevalence of federal litigation indicated that the
“fear of rivalry with state courts and respect for state sentiment were swept aside by the
great impulse of national feeling born of the Civil War.”21

In short, the Framers’ understanding that federal courts would be largely “subsidiary
courts” was gradually replaced by an acceptance of the need for a federal judiciary with
“national administration.”22 Relief finally came with the Circuit Court of Appeals Act of
1891, or the so-called Evarts Act, named after Senator William M. Evarts (R-N.Y.). Besides
eliminating the justices’ circuit riding, the Evarts Act restructured the federal courts. It
retained the circuit courts but abolished their appellate jurisdiction and created a new set of
intermediate courts, the circuit courts of appeals. Organized in nine geographical circuits,
each new circuit court of appeals was originally staffed with a circuit court judge, a district
court judge, or a Supreme Court justice assigned to the circuit. These courts convened,
though, with a quorum of two judges. In practice, the Evarts Act allowed the circuit courts
of appeals to absorb the Court’s caseload. In certain cases, the circuit courts of appeals
could certify appeals to the Court for review, or, conversely, the Court had the option to
grant review by writ of certiorari—an order transferring the appellate record from the
lower court, which the Court could simply deny and thus give it discretionary jurisdiction.
With subsequent legislation, the Judicial Code of 1911, Congress provided for appointing
circuit judges to each new circuit court of appeals.

Although the reconfiguration of circuit courts helped ease the Supreme Court’s workload,

124
its caseload continued to rise in the early twentieth century. That increase led President
William H. Taft to assert, in his second annual address in 1910, that “no man ought to
have, as a matter of right, a review of his case by the Supreme Court.” Rather, “he ought to
be satisfied by one hearing before a court of first instance and one review by a court of
appeals.”23 As president and later chief justice, Taft maintained that the state courts of last
resort and the federal circuit courts both played a vital role in deflecting the bulk of federal
appellate litigation away from the nation’s highest court. In his view, the Supreme Court
was overburdened by frivolous appeals and should decide only those cases with national
social and legal significance.

Accordingly, Chief Justice Taft lobbied Congress to pass the Judiciary Act of 1925, which
expanded the Court’s discretionary jurisdiction. That act, known as the “Judges’ Bill,” was
drafted by a committee of justices before it was sent to Capitol Hill. A milestone in judicial
administration, it replaced many mandatory appeals (which the Court had to decide) with
petitions for certiorari (which could simply be denied review)—hence the Court’s greater
power to manage its docket and to set its substantive agenda. By letting the Court “decide
what to decide,” Congress shifted a substantial portion of the Court’s docket to the circuit
courts of appeals, because the Court’s expanded discretionary jurisdiction gave it the
power to deny appeals of lower court decisions. The Judges’ Bill, though, did not
completely eliminate mandatory jurisdiction in certain instances. But it became the model
for subsequent legislation that incrementally expanded the Court’s discretionary
jurisdiction. The Judicial Improvements and Access to Justice Act of 1988 finally
eliminated virtually all remaining nondiscretionary jurisdiction.

Congress also added lower court judges and administrative apparatuses in response to
expanding caseloads. Federal caseloads in the district and circuit courts of appeals
experienced especially sharp increases after 1960.24 As a result, Congress established federal
magistrates at the district court level in order to reduce caseloads and created two new
appellate courts (the Eleventh Circuit and the U.S. Court of Appeals for the Federal
Circuit, in 1980 and in 1982, respectively). In addition, Congress took a number of steps
to improve judicial administration—most notably with the creation of the Administrative
Office of the U.S. Courts (1939) and the Federal Judicial Center (1969). These agencies,
discussed in this chapter’s last section, are the basis for the contemporary federal judiciary’s
administrative support.

The historical evolution and key legislation responsible for the growth of the federal courts
is summarized in Figure 3.1. The manner in which federal courts interact with state courts
in reviewing cases and administering justice is analyzed in the next section.

Figure 3.1 The Evolution of Federal Courts

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Source: Federal Judicial Center, “Landmark Judicial Legislation,” available at
www.fjc.gov/history/home.nsf/page/landmark_22.html (last retrieved October 24,
2014).

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Contemporary Judicial Federalism:State and Federal Courts
The United States has two judicial systems, a dual system of state and federal courts. This
system of judicial federalism stands in contrast with unitary systems elsewhere around the
world. U.S. courts are geographically based and predominantly hierarchical in structure
(trial courts are first level, and appellate courts sit above them in successive or ascending
tiers). In general, both state and federal courts organizationally have three levels, or tiers,
and each court system has general and specialized courts.

With the exception of the Supreme Court and other specialized courts, federal appellate
courts generally consist of large circuits covering several states within a region, and within
each state are one or more district courts (depending on population and litigation). In
contrast, state judiciaries have different types of trial, appellate, and special courts in each
state. The federal system is also smaller in size and handles fewer cases than state judiciaries.
As a result, state courts handle the bulk of the nation’s judicial business because they are
larger and more diverse, compared to the federal judiciary (see Figure 3.2). Although each
state court system hears similar types of cases, there are notable differences. For example,
while federal and state courts each interpret constitutions, only federal courts handle
bankruptcy cases, and state courts exclusively review a majority of criminal and civil law
matters, along with probate, family law, and traffic cases (see Figure 3.2 and Table 3.1).

There are other key differences in how state and federal courts relate to each other.
Although judicial power is divided between the two systems of courts, Article III and the
Supremacy Clause in Article VI of the Constitution give the Supreme Court appellate
jurisdiction over appeals of state supreme court rulings that conflict with federal law. Yet, in
many areas, state and federal courts share concurrent jurisdiction (both have power to
decide the same type of case); however, jurisdiction not expressly given to federal courts
remains the province of the state courts. In addition, in those areas of constitutional law in
which the Court declines review or in which a state court has based its decision solely on its
own state constitution, the Court will not review or overturn a state court decision, even if
it is inconsistent with prevailing federal law. Since the Court’s ruling in Michigan v. Long
(1983),25 state court decisions must expressly make a “plain statement” that their decisions
have “adequate and independent state grounds” for resting their decisions on their state
constitution, not the Supreme Court’s rulings or the Constitution. Otherwise, the Supreme
Court presumes that state courts are interpreting federal law and therefore reverse state
court decisions with which it disagrees.

Figure 3.2 Dual System of Courts

127
Source: Derived from Administrative Office of the U.S. Courts, “Federal Judgeships,”
available from www.uscourts.gov/JudgesAndJudgeships/FederalJudgeships.aspx (last
retrieved January 26, 2014); Administrative Office of the U.S. Courts, Federal Judicial
Caseload Statistics (Tables B, B-8, C, D, and F), available from www.uscourts.gov
(last retrieved January 26, 2014); Robert C. LaFountain, Richard Y. Schauffler,
Shauna M. Strickland, and Kathryn A. Holt, Examining the Work of State Courts:
An Analysis of 2010 State Court Caseloads (Williamsburg, Va.: National Center for
State Courts, 2012).

Note: Data excludes bankruptcy and U.S. Supreme Court petitions.

128
 Source: Derived from Administrative Office of the U.S. Courts, “Jurisdiction of the
Federal Courts,” available at
www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jurisdiction.aspx
(last retrieved February 25, 2014); Susan Laniewski, Marlene Martineau, Nicole Sims,
and Joe Wheeler, “Integrated Justice Information Systems, Courts Advisory
Committee,” Courts 101: An Understanding of the Court System (October 2, 2012),
available at www.ncsc.org (last retrieved February 25, 2014), 2.

Moreover, state courts play a vital role in the administration of justice in construing their
own state constitutional provisions and bills of rights. Although some state supreme courts
review issues of state constitutional law in “lockstep” with the Supreme Court’s rulings,
studies show that state supreme courts are active in expanding individual rights beyond the
scope, or in areas not, recognized by the Supreme Court. State supreme courts have
extended broader protection to the free exercise of religion, searches and seizures, capital
punishment, the right to privacy, and equal protection, as well as in areas the Court has not
addressed or refused to address, such as same-sex marriage. These examples of state judicial
policymaking generate support and political opposition: In some states, ballot initiatives
and constitutional amendments have been used to reverse them. In other words, a “new
judicial federalism” has emerged since the late 1970s, during which time the Supreme
Court became more conservative, while state supreme courts became more liberal in certain
areas of civil rights and liberties.26

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State Trial and Tribal Courts
The evolution of state judiciaries is closely tied to the diverse legal cultures and traditions of
each state. Early state court organization drew from the multitier English and colonial
judicial systems. Multiple trial and appellate courts existed in villages, towns, and cities: all
had jurisdiction over specific areas of law, and trial and appellate judges interchanged their
responsibilities frequently. As the nation grew, the demands on courts increased and
became less efficient and lacked administrative cohesion. Especially at the trial court level,
state judges generally lacked professionalism and were susceptible to the influences of local
politics and bar associations.

Between the Civil War and the early twentieth century, reformers strove to make courts
more autonomous and to simplify their operations. At the turn of the twentieth century,
Harvard dean Roscoe Pound raised these concerns by arguing that the nation’s courts were
“archaic,” too numerous, and inefficient.27 A reform movement, led by the American
Judicature Society and the American Bar Association (ABA), aimed to improve judicial
selection and retention methods (discussed in Chapter Four) and promote professional
judicial administration through “unification.” The early goals of unification focused on
enhancing court performance through consolidation (structurally reorganizing courts),
centralization (giving state chief justices or supreme courts authority over administrative
processes and personnel), and empowerment (granting to state supreme courts or judicial
councils, made up of state judges throughout the state, rulemaking authority). Many of
these reforms became institutionalized in the late 1930s with the Standards of Judicial
Administration, created by ABA president Arthur Vanderbilt and Judge John Parker.28

In the second half of the twentieth century, state courts continued to advance case
management by increasing their staff and research support, adopting new technologies, and
centralizing administrative control over their dockets. In light of that progress, the
unification movement began to encompass budgeting goals that gave courts greater control
over their financial operations.

In sum, since the 1950s, the court unification movement has fostered five interrelated
trends in state judicial administration: (1) trial court consolidation, (2) centralized
management, (3) centralized rulemaking, (4) centralized budgeting, and (5) state, rather
than local, financing. Together, these reforms have enabled courts to reduce the impact of
local politics on their operation and brought them under the administrative control of a
statewide court of last resort or chief justice.29 Organizations such as the Conference of
State Court Administrators, the National Association for Court Management, and the
National Center for State Courts also emerged. They assist state judiciaries in adopting
bureaucratic practices and improving state court administration.

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Still, the precise meaning of court unification and whether it has in fact resulted in better
court performance remains subject to debate. Although twenty-six states claim they have
unified court systems, not all state judiciaries have uniformly worked toward or achieved
the same reform objectives. Consequently, state courts continue to be highly diverse in
terms of their organizational structures and administrative operations, and each state court
system remains to some extent subject to legislative or executive control.30

Single-Tier vs. Two-Tier Trial Courts

Today, the complexity of state courts is reflected in the variability of their organizational
structure, function, and funding. Six jurisdictions—California, the District of Columbia,
Illinois, Iowa, Minnesota, and Puerto Rico—have single-tier trial courts, for example, that
operate with general jurisdiction over a wide array of civil and criminal cases.31 However,
neither the single-tier trial court structure nor the source of funding is uniform. In Puerto
Rico, the trial Court of First Instance is completely state funded and broken into two
separate subdivisions; however, in the remaining five jurisdictions, funding is highly
differentiated (either state funded or a mix of state and local funding), and the courts are
not likewise subdivided. Furthermore, while each system has appellate courts to review the
propriety of trial court decisions, all but one (the District of Columbia) has an intermediate
appellate court that sits between the trial court and the appellate court of last resort. An
illustration of a single-tier court structure that has a three-level hierarchy of trial and
appellate courts is found in Illinois (seeFigure 3.3).

All other jurisdictions retain two-tiered trial courts that are split into one or more sets of
courts of general and limited jurisdiction (discussed more in the next section). Depending
on the state, these trial courts have different funding sources and handle a wide range of
legal disputes, including general criminal and civil matters, as well as more specialized cases
such as probate, juvenile, family, small claims, and traffic violation. Similar to single-tier
systems, two-tier trial court system caseloads are determined by a variety of factors,
including case complexity, case type, the case’s monetary value, and geographical region.32
As with single-tier trial court forums, there is little organizational or administrative
consistency across two-tiered court systems. All other thirty-six two-tiered trial court
systems, including Ohio (see Figure 3.4), have a hierarchical mixture of trial and
intermediate appellate courts, along with courts of last resort (see Figure 3.5).33

Figure 3.3 Illinois’s Single-Tier Trial Court System

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 Source: Dervied from Nineteenth Judicial Circuit Court of Lake County, “Structure
of the Illinois Court System,” available at www.19thcircuitcourt.state.il.us (last
retrieved April 30, 2014).

Limited Jurisdiction Courts

Most people only encounter the judicial process in a court of limited jurisdiction— that is,
trial courts that deal with a narrow set of legal issues, such as traffic, minor civil, and less
serious (nonfelony) criminal cases. Often litigants choose to represent themselves (pro se) in
these courts. Most are simply called municipal or district courts; at one time, they were
typically known as police courts, or justice of the peace courts, usually staffed by nonlawyers
and handling disputes between landlords and tenants, for instance, or domestic violence
cases.34

There are approximately sixteen thousand limited jurisdiction courts in forty-six states.
Only four states (California, Illinois, Iowa, and Minnesota), plus the District of Columbia,
do not have them. In 2010, 66 percent of the 103.5 million filings in state courts were
processed in these courts, and of those, 54 percent were traffic cases. Many states also use
limited jurisdiction courts to adjudicate other civil matters, including probate (Alabama,
Michigan, Rhode Island), family (Delaware, New York, South Carolina), and juvenile
(Georgia, Nebraska, Tennessee) cases. In a few states, they deal with other kinds of

132
disputes, such as workers’ compensation (Nebraska), tax (New Jersey), environmental
(Vermont), land or mortgage foreclosures (Massachusetts), and claims made against state
government (New York and Ohio). Two states (Louisiana and Ohio) still retain mayor’s
courts that adjudicate traffic, drunken driving, and other misdemeanor cases. With high
caseloads and because they have frequent contact with the public, limited jurisdiction
courts are vitally important in generating revenue for localities and funding court
operations.35

Figure 3.4 Ohio’s Two-Tier Trial Court System

Source: Derived from Supreme Court of Ohio, “Judicial System Chart,” available
from www.sconet.state.oh.us (retrieved November 1, 2013).

Figure 3.5 Most Widely Adopted State Two-Tier Trial Court Structure

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General Jurisdiction Courts
Other trial courts have general jurisdiction. Although they are most commonly referred to
as superior, district, or circuit courts, states use a wide variety of other classifications (see
Figure 3.6). There are approximately 3,197 general jurisdiction state courts. Their dockets
primarily consist of serious criminal and civil cases. In 2010, 34 percent of all case filings
were processed in these courts. The right to a jury trial may be offered, but it generally
depends on the kind of dispute and whether it involves a serious civil or criminal action.
These courts share some similarities with limited jurisdiction courts. For example, some
states give them authority over specific areas, such as probate (Indiana and Tennessee),
family disputes (Vermont and Kentucky), workers’ compensation (Montana), tax (Arizona
and Oregon), and even water (Colorado and Montana) claims.36 Still, there are important
differences as well. In general jurisdiction courts, litigants are afforded more procedural
rights because the risk of liberty and out-of-pocket loss is greater. Furthermore, litigants
generally may appeal, which is often not possible in courts of limited jurisdiction.

Figure 3.6 Types of State Courts

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The subject matter on state trial courts’ dockets is shown in Table 3.2. A little over a third
of all state trial court filings begin in general jurisdiction courts, whereas almost twice those
start in courts of limited jurisdiction. Fifty-four percent are traffic cases, and the rest
involve criminal (20 percent), civil (18 percent), domestic (6 percent), and juvenile (2
percent) matters.

In sum, general jurisdiction courts handle far fewer cases than courts of limited jurisdiction.
Yet, the fines and fees they collect make them key sources of revenue. Also, they are no less

135
important in adjudicating serious civil and criminal matters that may be appealed to a
higher court.

Tribal Courts
It bears noting that thirty-four states also have tribal courts. Native American and Alaska
Native tribes operate their own courts due to a unique combination of federal and state law.
Federal treaties, congressional legislation, administrative regulations, and court rulings have
determined the jurisdiction of tribal courts. In addition, some states and the 566 federally-
recognized tribes may enter into compacts and other agreements governing concurrent
areas of legal policy, such as law enforcement, health care, taxation, gaming, and
environmental conservation. Thus, while the scope of tribal sovereignty remains derivative
of federal law, state governments also regulate Indian affairs and shape the contours of
tribal justice.37

Tribal courts, nevertheless, exist independently of the state and federal judiciaries. Early
Supreme Court rulings, Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832),
established that tribes are “domestic dependent nations” and that state law does not apply
to Indian reservations. Likewise, Ex Parte Crow Dog (1883) held that federal courts do not
have jurisdiction over criminal cases involving acts committed on Indian land. In 1883,
however, the federal Bureau of Indian Affairs (BIA) created the “Court of Indian Offenses”
or “Courts of Federal Regulations” (CFR Courts) to handle minor criminal actions and to
adjudicate civil disputes between tribal members in accordance with federal law.
Subsequently, the Indian Reorganization Act of 1934 recognized Indian tribes’ authority to
adopt their own constitutions and establish their own laws and justice systems.38

136
 Source: Derived from “Total Incoming Caseloads Reported by State Courts, by Jurisdiction, 2010 (in Millions)”
table in Robert C. LaFountain, Richard Y. Schauffler, Shauna M. Strickland, and Kathryn A. Holt, Examining
the Work of State Courts: An Analysis of 2010 State Court Caseloads (Williamsburg, Va.: National Center for State
Courts, 2012), 3.
Note: N = 103.5 million cases filed in 2010. Cases from single-tier trial courts are combined with cases from
two-tiered general jurisdiction courts in general jurisdiction category. Totals may not sum due to rounding error.

While some tribes continue to use CFR Courts, most adopted tribal constitutions that
created diverse tribal justice systems—some of which incorporate the adversarial and
restorative justice models of federal and state courts. In this sense, adversarial conflicts are
resolved with cooperative solutions that help restore balance to the individuals and the
community. As a result, the boundaries of tribal court jurisdiction remain in flux and
controversial. In 1953, Congress gave to the states (and withdrew federal) authority over
criminal and civil law disputes occurring on tribal lands. Furthermore, a series of Supreme
Court rulings since the 1970s have limited tribal sovereignty and judicial powers. More
recently, at the urging of the Obama administration, Congress enacted the Tribal Law and
Order Act of 2010. That law responded to a growing problem of violent crime on Indian
lands. It has increased federal court prosecutions of serious crimes, promoted coordination
of federal criminal investigations with tribal prosecutors, and expanded tribal court powers
to impose enhanced felony sentences.39

Intermediate State Appellate Courts

Appellate courts are different than trial courts because they usually decide issues of law—
what the law is or should be—instead of adjudicating the factual circumstances underlying
a dispute. They also are distinct with respect to how they review cases. While all of the
justices of a state court of last resort typically sit as a full en banc court, usually an
intermediate appellate court decides cases by a panel of three randomly selected judges
from that court.40 In short, appellate courts are collegial, unlike trial courts that typically
have only one judge.

Like state courts of last resort, intermediate appellate courts primarily serve to correct legal
errors in lower courts, such as when a trial judge gives improper jury instructions or
wrongly excludes evidence. Moreover, 90 percent of their decisions are not appealed to the
state’s court of last resort. Therefore, they are the de facto courts of last resort for most
litigants, which give them a significant policymaking role in state judicial systems.41

Forty states and Puerto Rico have intermediate appellate courts. Ten states and the District
of Columbia do not, due to lower caseloads. In states that have intermediate appellate
courts, they function as screening tribunals that help reduce the caseloads of state courts of
last resort.42 Furthermore, the structure of these courts, and how jurisdiction is divided
among the courts, varies extensively. Although most states with a middle-tier court have a
single intermediate appellate court, there are five that retain two (Alabama, Tennessee,

137
Indiana, Pennsylvania, and New York). Of those states, Alabama and Tennessee have two
separate criminal and civil intermediate appellate courts, whereas Indiana has a court of
appeals and a separate tax court; Pennsylvania and New York have similar bifurcated
midlevel appellate courts but under different court designations.43

Nearly 273,000 appeals were filed in state courts in 2010. Of those, intermediate appellate
courts handled 91 percent, because they were appeal by right cases—mandatory appeals—
that may not be denied review. These courts cannot control their docket, like courts of last
resort, which generally have the discretion to pick which cases to hear, because most of
their cases are discretionary appeals by permission. Also, middle-tier appellate court
jurisdiction varies from state to state, though mandatory appeals primarily involve criminal,
civil, and administrative agency cases. With little or no power to shape their dockets,
intermediate appellate courts are truly the “workhorses” of state appellate courts and
confront extremely heavy caseloads.44

Despite large caseloads, appellate courts are remarkably efficient. They typically affirm
lower court rulings, and a large percentage of their rulings are a result of a combination of
preargument dismissals, summary memoranda or orders, and signed judicial opinions.
Indeed, one study found that nearly half of the twenty-two intermediate appellate courts
had a 100 percent clearance rate of mandatory appellate caseloads.45 In other words,
although they guarantee litigants the right to appeal, intermediate appellate courts have a
filtering function that enables a state’s highest court to adjudicate only cases raising the
most important questions of legal and public policy.

State Courts of Last Resort

Although there are only fifty states, there are fifty-four courts of last resort; two states
(Oklahoma and Texas) have two separate courts for civil and criminal cases. While most
states identify them as supreme courts, some, like New York, refer to them as “courts of
appeals” or other designations (see Figure 3.6). Courts of last resort provide a second level
of review and a final opportunity for appeal. Between 1995 and 2010, state supreme courts
issued an average of 112 full written opinions per year.46

State courts of last resort, like intermediate appellate courts, are collegial courts. Most sit en
banc, though some states use panels of rotating judges, as intermediate courts do in many
states.47 Yet, there are significant differences. Courts of last resort handle fewer appeals and
have greater discretion over the cases they hear. They review a large proportion of criminal
appeals and resolve conflicts arising from lower state courts, and interpret the meaning and
application of state constitutions.48 Moreover, although intermediate appellate courts and
courts of last resort both hear mandatory appeals, courts of last resort do so much more
infrequently. Furthermore, a large percentage of special appeals bypass the middle-tier
courts altogether because they are directly reviewable by the state’s highest court, such as

138
death penalty appeals. On the other hand, intermediate appeals courts and courts of last
resort handle roughly the same amount of “original proceedings” and miscellaneous
appeals, such as election disputes, specialized writs (habeas corpus, mandamus, and quo
warranto proceedings), or bar and judiciary proceedings, although some of those cases are
directly filed with the highest court in some states.49

In sum, state courts of last resort are significant policymakers. Of the approximately seven
thousand cases they annually decide, a vast majority of their rulings remain undisturbed;
only one-half of one percent of their decisions are reviewed by the Supreme Court.50

The Florida Supreme Court

Tim Ross/Wikimedia Commons

139
Federal Courts
Congress has reorganized the federal judiciary’s structure, jurisdiction, and operation
through periodic legislation. Still, the federal judiciary’s original three-tiered organization
has remained intact. At the apex is the Supreme Court of the United States, sitting above
federal courts of appeals and district (trial) courts. There are thirteen appellate circuits:
eleven numbered circuits spanning twelve geographic areas covering all fifty states, one
circuit for the District of Columbia Circuit, and one—the Court of Appeals for the Federal
Circuit in Washington, D.C.—with nationwide jurisdiction over certain specialized areas
of litigation (see Figure 3.7). The smallest is the First Circuit in the Northeast, and the
largest is the Ninth Circuit, covering multiple western states the size of Western Europe.
The typical federal appellate court has between twelve and fifteen judges.

U.S. District Courts

Federal district courts are the federal judiciary’s trial courts. There are ninety-four federal
district courts, with at least one in each state, staffed by 677 judges (along with some who
have taken senior status and continue to hear cases on a part-time basis). District court
judges are appointed by the president and confirmed by the Senate. Although they
generally decide cases alone or with a jury, in certain cases—involving voting rights and
election cases—they may sit in three-judge panels. In addition to authority over bankruptcy
cases, they have general jurisdiction over federal questions arising from the interpretation of
federal statutes and regulations, treaties, and the Constitution, as well as diversity cases
(between citizens of different states or between U.S. citizens and those of another country,
if the lawsuit claims $75,000 or more). In 2013, 52 percent of all civil cases in district
courts raised federal questions, and only 32 percent were diversity cases.51

Figure 3.7 Geographical Boundaries of the U.S. Courts of Appeals

140
 Source: http://www.uscourts.gov/uscourts/images/CircuitMap.pdf

District courts have original and general jurisdiction. District judges may sit with a jury or
alone in a bench trial. As trial courts, they adjudicate far more cases than federal appellate
courts. They annually decide about 372,563 civil and criminal cases, whereas federal
appellate courts only handle about 57,501 annually.52

Since 1960, district court dockets have steadily grown, and in turn so has the number of
authorized judgeships (see Table 3.3). Over the last two decades, roughly 80 percent of
their dockets have been civil cases. Notably, cases involving the interpretation of federal
statutes represent over 60 percent of all civil actions. A significant part of district court
judges’ time is spent hearing civil rights claims and prisoner petitions. The latter tend to
drain judicial resources because most are frivolous writs alleging constitutional deprivations;
nonetheless, some prove especially important and deserve to be heard (like habeas corpus
actions asserting illegal confinement). Almost 40 percent of the remaining civil cases
involve ordinary contract, tort, and real property claims (see Figure 3.8).

About three-fourths of district courts’ criminal law docket consists of drug, immigration,
and property offenses. Miscellaneous offenses, including general offenses like bribery,
extortion, and gambling; sex crimes; and other offenses relating to firearms, explosives, and
perjury or contempt, also consume a good deal of district judges’ time. Less frequently, they
preside over prosecutions of violent crimes, such as homicide, armed robbery, and assault
(see Figure 3.8).

141
As in state trial courts, most cases in district courts are disposed of before trial. Eighty-seven
percent of civil filings are settled at the pretrial stage. Another 12 percent end during or
shortly after pretrial proceedings, and only 1 percent terminate at trial or afterward. A
similar pattern appears with criminal cases, but with the important difference that a
defendant’s guilty plea, instead of a negotiated settlement, is the basis for ending
proceedings. Ninety-eight percent of criminal convictions result from guilty pleas. Less
than 2 percent of criminal convictions come after a trial. Thus, it is a common
misconception that citizens usually get their day in court by having a trial.53

Source: Administrative Office of the U.S. Courts, Judicial Facts and Figures (Tables 1.1, 4.1, and 5.1), available
at www.uscourts.gov (last retrieved March 1, 2014).
Note: All percentages are subject to rounding error. Data are from the year ending September 30.

Figure 3.8 Nature of Civil Actions and Criminal Offenses in U.S. District Court, 2012

142
 Source: Administrative Office of the U.S. Courts, Judicial Business of the U.S. Courts
2012 (Tables C-2A and D-2), available at www.uscourts.gov (last retrieved March 1,
2014).

In processing their caseloads, district court judges work with other judicial divisions and
personnel. These include territorial courts, U.S. magistrates, and bankruptcy courts.
Territorial courts are technically considered U.S. district courts and generally enjoy
equivalent jurisdiction and powers. But because they are located in U.S. territories, they
operate like local courts, and their judges are not Article III judges—hence they serve terms
of ten years with no guarantee of reappointment. Territorial courts sit in Guam, the
Northern Mariana Islands, Puerto Rico, and the Virgin Islands.54

U.S. Magistrate Judges

Historically, U.S. magistrates filled a need of federal courts in unique ways. In 1793,
Congress gave circuit courts the power to appoint individuals to take bail in criminal cases;
they worked only part -time and were paid from fees. Then, in 1896, Congress
institutionalized the position by giving district court judges the power to appoint “U.S.
commissioners” and established a uniform fee schedule for their services. Over the next
century, their responsibilities grew to the point that further reform was necessary. In 1968,
Congress enacted the Federal Magistrates Act, replacing the fee system with salaries and
requiring “magistrates” to have been admitted to the bar.55

Magistrate judges serve in either a full-time or a part-time capacity for an eight- or four-
year term, respectively. There are 531 authorized full-time magistrates, along with thirty-
nine part-time judges and three hybrid clerk of court/magistrate judges. They are appointed
by district judges, but their appointments are processed by a citizen’s merit nomination
screening commission. Since Congress has not limited the number of times a magistrate
judge can be reappointed, it is not unusual for them to stay on for long periods of time.56

Although they do not enjoy the prestige or reputation of Article III judges, magistrate
judges play a key role in helping district courts manage their caseloads. Collectively, they
dispose of more than a million cases, almost 190,000 more than just ten years ago. With
consent of the parties, they assign cases for trial, issue warrants, conduct pretrial hearings,
and set bail in criminal cases. They also have the power to try minor criminal offenses;
however, their decisions may be appealed to a district court judge.57

U.S. Bankruptcy Courts

Besides magistrates, bankruptcy judges also play a crucial part in handling lower court
cases. Bankruptcy courts are linked to federal district courts, and handle debtor–creditor

143
claims emerging from personal and corporate bankruptcies. Although they are considered
subunits of federal district courts, they are anomalous because bankruptcy judges do not
have Article III status. In 1978, Congress enacted a new bankruptcy code that created new
U.S. bankruptcy courts as Article I legislative courts. They were vested with broad
jurisdiction over all civil actions arising under the bankruptcy code. Yet, these judges were
not given Article III life tenure or salary protections, even though the president appoints
them and they are confirmed by the Senate for fourteen-year terms. In Northern Pipeline
Construction Company v. Marathon Pipe Line Company (1982),58 the Supreme Court held
that it was unconstitutional for bankruptcy courts to exercise jurisdiction over state law
claims because the principle of separation of powers was violated by Congress vesting
Article III jurisdiction in Article I judges who lacked the status of Article III judges.

In response to that decision, Congress enacted the Bankruptcy Amendments and Federal
Judgeship Act of 1984. It fixed the constitutional problems in two ways. First, while
ensuring that the district courts retained jurisdiction, the law let the district courts delegate
judicial power to the bankruptcy court for the purpose of handling bankruptcy litigation.
Second, the act transferred the power to appoint bankruptcy judges from the president to
federal appellate courts. The changes remain important because they eliminated the Article
III basis for exercising bankruptcy jurisdiction by Article I judges over “core” proceedings
in bankruptcy, thereby conforming to Northern Pipeline. “Non-core” bankruptcy matters
are referred to U.S. district courts. As a result, bankruptcy judges are now considered
“units” of the district courts and have the status of judicial officers instead of Article III
judges, because they have limited tenure and no salary protection.59

Bankruptcy judges play a huge role in an overloaded bankruptcy system. In 2005, Congress
enacted the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), a
major reform designed to increase debtor accountability and restrict opportunistic or
abusive filings. Credit card companies, banks, and various creditor organizations lobbied
extensively for the change. Unlike past law, the act requires debtors filing consumer
bankruptcies to repay some of their obligations if they have the financial ability to do so.
For certain bankruptcies, the law requires a financial “means test” to see if a debtor is
eligible to file. BAPCPA also increased the cost of filing bankruptcies by imposing new fees
and requiring more paperwork, as well as expanded the list of nondischargeable debts and
imposed penalties on filers providing inaccurate financial information.60 Although the
2005 act created twenty-eight new judgeships to help administer the new requirements,
some feared that the law would result in a sharp increase in bankruptcy filings. But, by
2014, BAPCPA’s objectives had substantially reduced bankruptcy filings. Still, whether
BAPCPA has done more harm than good in creating more obstacles for consumers filing
for bankruptcies remains an open question, subject to ongoing debate.61

Other Specialized Lower Federal Courts and Tribunals

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There are a number of other courts and tribunals performing federal trial functions. They
have specialized jurisdiction over cases relating to international trade disagreements, public
contracts, veteran benefits appeals, taxpayer disputes, and national security wiretaps. The
U.S. Court of International Trade, an Article III court, sits in New York and is staffed by
nine judges who review civil cases over import transactions and international trade. The
U.S. Court of Federal Claims, an Article I court, has sixteen judges who serve fifteen-year
terms and adjudicate monetary claims over government contracts, tax refunds, Fifth
Amendment “takings” cases, civilian and military pay claims, intellectual property, and
Indian tribe cases. The U.S. Tax Court, also an Article I court, has nineteen judges and
hears taxpayer disputes.

One other specialized forum, the Judicial Panel on Multidistrict Litigation, helps
“centralize” multiple civil actions that are pending in one or more federal judicial districts
by transferring them to the appropriate district court for resolution. Created by Congress
and staffed by seven judges appointed by the Supreme Court’s chief justice, the panel deals
with complex civil actions ranging from airplane crashes to patent infringements and
securities fraud.62

Finally, two other courts, the Alien Terrorist Removal Court (ATRC) and the Foreign
Intelligence Surveillance Court (FISC), were created in response to terrorism. Enacted by
Congress in 1996, a year after the Oklahoma City federal court bombing, the ATRC is a
“court of deportation” with five district court judges authorized to order the deportation of
a resident alien suspected of being a terrorist. Yet, the ATRC has never been used.63

Of more significance in the post-9/11 era is the FISC, an Article III court created by the
Foreign Intelligence Surveillance Act of 1978 (FISA). Because of Supreme Court rulings
and the disclosure of executive abuse in gathering domestic intelligence in the 1960s civil
rights era, Congress enacted the FISA in order to control the surveillance operations of
agencies charged with protecting national security. Under the act, the FISC initially had
authority to review government applications for electronic surveillance. However, over
time, its jurisdiction was expanded to include reviewing government applications for
conducting physical searches, using pen registers, and orders requiring the production of
business records deemed relevant to criminal prosecutions. Notably, legislation enacted in
2008 and several executive orders did create additional safeguards to protect U.S. citizens
and other persons living abroad who are targeted for surveillance in national security
investigations.64

The FISC performs an appellate function with eleven district court judges, who are
assigned by the chief justice of the Supreme Court and come from seven different circuits.
Ordinarily, a FISC judge acts alone in making decisions, but the court may sit as a whole as
well. The FISC is also different because it operates with little transparency: one of the FISC
judges reviews cases for a one-week period, on a rotating basis, in a secure courtroom in a

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federal courthouse in Washington, D.C. Not only are court sessions held behind closed
doors, but they are held ex parte—that is, only the government presents its case, and after
the hearing, the FISC’s written opinions are generally not available to the public. The role
and implications of the FISC in the war against terrorism assumed greater significance after
9/11 when President George W. Bush authorized, without full disclosure to Congress, the
National Security Agency (NSA) to conduct domestic wiretaps on anyone suspected of
communicating with terrorists abroad without utilizing the FISC’s approval for such
wiretaps. Subsequently, in light of disclosures—made by WikiLeaks founder Julian Assange
and former NSA whistle-blower Edward Snowden—of classified documents detailing
surveillance activities on U.S. citizens domestically and across the globe, critics (on the left
and the right) persuaded Congress to explore possible reforms that would make the FISC
more transparent and accountable.65

U.S. Courts of Appeals

The U.S. circuit courts of appeals, with 179 authorized judges, are located in eleven
regional circuit courts, plus the D.C. Circuit and the Court of Appeals for the Federal
Circuit. All have general jurisdiction spanning civil, criminal, and administrative law
appeals. But the D.C. Circuit has a high concentration of agency cases because of its
location in the nation’s capital. The Court of Appeals for the Federal Circuit, also in
Washington, D.C., reviews appeals in international trade, government contracts, and cases
involving claims against the government for monetary damages. Another special area of the
Court of Appeals for the Federal Circuit is patent and intellectual property appeals from
district courts and the U.S. Patent and Trademark Office.66

As with other federal judgeships, the president with the Senate’s confirmation appoints
circuit court judges. They ordinarily hear appeals in panels of three randomly selected
judges. Like state appellate courts, they correct the errors of federal trial courts, establish a
uniform body of national law, and function to screen out cases for the Supreme Court.
They also do not determine the facts of a case and show great deference to lower courts. As
a collegial court, circuit judges engage in a dynamic process of small-group decision
making. They function thus as “courts of last resort for the great mass of federal litigants”
because only a very few of their decisions are reviewed by the Supreme Court.67

Federal circuit courts may convene en banc (the entire court) to reconsider a three-judge
panel’s ruling. The Federal Rules of Appellate Procedure permit en banc review if a majority
of a circuit’s judges agree that it “is necessary to secure or maintain uniformity of the
court’s decisions,” or if “the proceeding involves a question of exceptional importance.”
Ordinarily, the losing party of the appeal must petition for an en banc rehearing; however,
the vast majority of such petitions are denied. Despite their infrequency, en banc judicial
opinions represent an appellate court’s collective judgment and resolve intracircuit court
conflicts among three-judge panels.68

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Judicial workload statistics accentuate the vital role federal appellate courts play in
nationalizing federal law uniformity over a wide range of matters. In 2012, circuit courts
reviewed a total of 57,501 appeals, and nearly 80 percent of their dockets consisted of civil
and criminal appeals from the district courts, with the remaining appeals coming from
federal agencies (15 percent), original proceedings (7 percent), and bankruptcy courts (1
percent), More than half of the appeals from district courts are civil actions, and the
remainder are criminal appeals. Because a substantial portion of the district courts’
caseloads involve civil prisoner petitions and criminal drug cases, about 96 percent of the
federal appeals courts’ dockets are prisoner and drug-related appeals (see Figure 3.9).

Figure 3.9 U.S. Courts of Appeals Docket Composition and Source of Appeals, 2012

Source: Administrative Office of the U.S. Courts, Judicial Facts and Figures (Table

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 2.3), available from www.uscourts.gov (last retrieved March 4, 2014).

Caseload pressures affect circuit court decisional practices and the time it takes for appeals
to reach final disposition after filing. During the last fifty years, circuit court dockets grew
by 1,436 percent—from about four thousand appeals in 1960 to the present level of close
to sixty thousand appeals per year. During that time, filings rose from 57 to 357 filings per
judgeship—almost a 600 percent increase. Burgeoning caseloads also created delay in case
processing. In 1980, the average time of case termination was between six and nine months,
but today it is closer to a year. Notably, swelling dockets have not been accompanied by an
increase in the number of authorized judgeships. Consequently, circuit courts now rely
upon a large contingent of central staff attorneys to process appeals; 75 percent of appeals
are denied oral argument, and only 15 percent of appeals result in published opinions.
Significantly, a majority of appeals are decided by central staff in unpublished rulings that
cannot be used by lawyers seeking to apply precedents in future litigation. Thus, the
practical solutions devised to meet high caseloads have arguably hurt the legal system
because only a small percentage of litigants get published decisions from full appellate
review.69

U.S. Courts of Appeals With Limited Jurisdiction

Other specialized appellate courts deal with military justice and national security. The most
notable are three Article I courts: the U.S. Court of Appeals for Veterans Claims, the Court
of Appeals for the Armed Forces, and the Foreign Intelligence Surveillance Court of Review
(FISCR). The Veterans Claims court has seven judges that are appointed by the president
for fifteen-year terms and handles veteran disability, survivor, and education benefits
appeals. Staffed by five presidential appointments for fifteen-year terms, the Armed Forces
court reviews court-martial convictions and referrals from the Judge Advocate General. The
third court, the FISCR, reviews FISC decisions but is rarely used.70

U.S. Supreme Court

At the top of the federal judiciary is the Supreme Court of the United States. It resolves
legal disputes arising from both federal and state courts. Approximately 65 percent of the
Court’s docket comes from federal courts, and about 30 percent comes from state courts.
In managing its docket, the court’s role has changed over time in response to its expanding
caseload. Before 1925, the Court’s primary function was to decide cases in order to correct
legal errors below, but Congress gave it discretionary jurisdiction and now decides what to
decide. The Court now only grants review in cases involving “substantial questions of
federal law” and intercircuit conflicts among federal appellate courts. Because it has the
discretion to set its agenda, the Supreme Court “assume[s] the role of super legislature.”71

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The Court sits with one chief justice and eight associate justices. The chief justice, presently
John Roberts, Jr., is also the titular head of the entire federal judiciary. In addition to
performing his or her regular judicial duties, each associate justice serves as circuit justice
for one or more of the regional circuits. Each justice has three to four law clerks, who screen
certiorari petitions, perform legal research, prepare “bench memos” (used in preparation for
oral argument), and draft opinions. The justices have their own conference and robing
rooms, and lawyers practicing before the Court have a separate lounge. The solicitor
general, a frequent litigator representing the federal government, has its own office. The
Court has a library, a barber shop, a museum, dining, and its own basketball court. The
Marshal’s Office is in charge of building security and public safety. Like other government
institutions, it has a website (www.supremecourt.gov), along with a public information
office for access to filings, briefs, and opinions.72

The Court has original and appellate jurisdiction. It adjudicates cases as specified in Article
III—its original jurisdiction—between certain parties (e.g., ambassadors, public ministers,
and consuls, and between two states) and cases arising from its appellate jurisdiction over
appeals from state and lower federal courts. Filings are inspected by the Clerk of the Court
for procedural correctness in accordance with the Court’s rules and placed in one of three
categories of the docket: paid cases, unpaid cases, and original proceedings. About one-
quarter of the filings are put on what is somewhat ambiguously termed the “appellate
docket” because they are paid cases (which require a $300 fee and another $100 for oral
argument if granted). Most of the remaining three-quarters go on the miscellaneous docket,
which includes unpaid cases or in forma pauperis petitions from indigents for which the
filing fee is waived. A handful of cases come on original jurisdiction and are decided after a
special master has made a recommendation on how it should be decided. In the 2012–
2013 terms, the Court’s docket consisted of 1,806 paid cases, 6,997 in forma pauperis
petitions, and 3 original cases, for a total of 8,806 filings (see Figure 3.10). Notably, only a
fraction of all petitions were given plenary consideration, and only 76 cases were decided
by written opinion.

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The Roberts Court (left to right, Clarence Thomas, Sonia Sotomayor, Antonin Scalia,
Stephen G. Breyer, John G. Roberts, Jr. [Chief Justice], Samuel Anthony Alito, Jr.,
Anthony M. Kennedy, Elena Kagan, Ruth Bader Ginsburg)

Steve Petteway, Collection of the Supreme Court of the United States

Cases come to the Court in basically three ways: as a writ for certification, as a mandatory
appeal, or as a petition for a writ of certiorari. A writ of certification is reserved for the
unusual situation where a lower federal court asks the Court to clarify a legal issue. Once
but no longer, most cases came as mandatory appeals, which the Court had to decide. But
as discussed earlier, the Court’s burgeoning caseload led Congress in a series of legislation
to replace mandatory appeals with petitions for certiorari, which the Court may simply
deny unless four of nine justices vote to grant cert.—in an informal practice known as “the
rule of four.” Congress’s expansion of the Court’s discretionary jurisdiction gave it the
power to manage its docket in deciding what to decide, in terms of both how many cases to
grant and what substantive issues are addressed.73 As an institutional norm, the Court’s
discretionary jurisdiction enables it to decide only those cases that have broad national legal
and political importance. Notably, since the 1990s, the Court has reduced the number of
cases given full consideration (with briefs and oral argument).74 About thirty years ago, the
Court routinely had about 5,000 cases on its docket and decided between 150 and 180,
about 3 percent of those filings. Today, the docket is considerably larger, but the Roberts
Court gives full consideration to only about 80 cases per year, less than 1 percent of its
docket.

Figure 3.10 U.S. Supreme Court Membership and Docket Composition

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 Source: Administrative Office of the U.S. Courts, “Statistical Tables, U.S. Supreme
Court (Table A-1),” available at www.uscourts.gov (last retrieved March 5, 2014).

The Court is a collegial institution, and much of what it does is conducted behind closed
doors. Its term begins on the first Monday of October and usually ends in late June. From
October to April, the Court hears oral arguments on the cases granted review, but in May
and June, none are scheduled. During the months oral arguments are held, the Court meets
in conferences on Wednesdays and Fridays to discuss new filings and to decide cases that
were orally argued. In May and June, conferences are held on Thursdays. Throughout the
term, on “opinion days” (which by tradition are not known in advance), the justices
assemble in the courtroom to publicly announce their decisions.75

In the summer preceding the beginning of a new term, the justices’ law clerks begin the
process of screening certiorari petitions that flood the Court throughout the year. Since
1972, a majority of the Court (except now for Justice Alito) have their clerks join in a cert.
pool that screens and recommends which cases should be granted review. Before each new
term, the justices also meet in a one- to two-day preterm conference to clear about two

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thousand cases that have come in since the last term. The preterm conference is significant
because about one-fourth of the docket is eliminated before the new term even begins and
for the most part is screened out by law clerks and never evaluated by the justices.76

Once the justices grant cases, they hear oral arguments from the litigants, who are referred
to as the petitioner (the party bringing the appeal) and the respondent (the party
defending against the appeal). Upon request, interested nonparties may present their views
in amicus curiae (“friend of the court”) briefs. In highly visible cases, such as abortion,
school prayer, or affirmative action appeals, amicus briefs are routinely used as a strategic
device to advocate a special interest group’s policy position. After cert. is granted, litigants
in some cases and even amicus parties have the opportunity to make oral arguments before
the high bench. Oral argument is the most public aspect of the Court and the only chance
—typically thirty minutes per side—for litigants to address the justices directly. As Chief
Justice William Rehnquist put it, “there is more to oral argument than meets the eye—or
ear,” and in a “significant minority of cases,” he had “left the bench feeling different about
the case than [he] did when he came on the bench.”77

After oral argument, the justices meet in conference to screen cert. petitions and to consider
the merits of the small number of cases given oral argument. Two lists are used to structure
deliberations—the Discuss List (or Special List I) and the Special List II (formerly called
the Dead List). The size of the Court’s contemporary docket has made conferences into
largely symbolic and nondeliberative meetings at which most of the time is spent on
denying petitions review and briefly voting on orally argued cases. All votes at conference
are tentative, and it is not uncommon for justices to change their minds after voting in
conference.

Traditionally, after conference, if in the majority the chief justice assigns a justice to write
the opinion for the court. If the chief justice is not in the majority, then the task falls to the
most senior associate justice. Once an assignment is made, law clerks help prepare an initial
draft that is then circulated among the justices for revision. The process of circulating
opinions is dynamic and interactive. Beginning in the last century, justices have
increasingly issued concurring opinions (agreeing with the result but not the majority’s
rationale) and dissenting opinions (disagreeing with the result and the majority’s rationale).
As a result, more individual opinions are issued than institutional opinions for the Court’s
decisions. Notably, apart from the U.S. Supreme Court, constitutional courts have emerged
in Europe (for further discussion, see “In Comparative Perspective: Constitutional Courts
in Europe”).

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The Politics of Judicial Administration and Reform
Solving legal problems is complex and bureaucratic. All of a court’s resources—its building,
courtroom, computers, library, staff offices, judges’ chambers, and security system—are a
part of what some say has become “bureaucratic justice.”78 Since the 1960s, burgeoning
caseloads have transformed the ideal model of justice—in which litigants receive their “day”
in court—into a delay-ridden process that forces courts to rely upon administrative
solutions to cope with rising dockets. Bureaucratic justice has important consequences
because the quality of the justice may be diminished as judges delegate their responsibilities
to subordinate staff attorneys, law clerks, and administrative personnel, and accordingly
spend less time on cases. After exploring the main elements of state and federal judicial
administration, the chapter concludes by considering how courts respond to the political
attacks and challenges they face in delivering justice in the twenty-first century.

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State Court Administration
Historically, court administration has evolved from a series of intermittent reforms that
sought to integrate court operations and to assert judicial independence from other political
branches. In the past, state courts were decentralized, and most judges lacked professional
training and were often beholden to the local bar associations because they were elected. As
a result, a growing backlog of cases and other problems led to judicial reforms to make
courts more democratically accountable and improve their operations and
professionalism.79 In the twentieth century, state courts worked on centralizing and
streamlining operations through court unification (discussed earlier in this chapter). In
1949, the Conference of Chief Justices was founded to develop and advance policies
directed at professionalizing court management and enhancing court funding and
resources.80

Still, court administration varies from state to state. State courts typically use clerks of
court or trial administrators to keep records, establish court calendars, schedule cases, and
manage the flow of litigation between judges, attorneys, and the public. Many states have
administrative offices of the courts (AOCs) to perform similar tasks. In states having
AOCs, a state court administrator (SCA) usually provides administrative support for the
chief justice and other personnel within the judicial branch. The SCA’s responsibilities are
diverse, significant, and wide-ranging. They include managing unified budgets, centralizing
judicial records and workload data, and supervising all organizational activities pertaining
to human resources, information technology, facilities administration, community
outreach, and external relationships with the state executive and legislative branches.81 (See
Figure 3.11.)

State courts interact with other judicial organizations on caseload management,

coordinating lobbying efforts, and providing educational training for judicial personnel and
staff. Established in 1964, the National Judicial College in Reno, Nevada, offers continuing
education for judges. In the early 1970s, the Institute for Court Management (ICM) and
the National Center for State Courts (NCSC) were created. As a result, many states now
use nonlegal administrators to manage the nonadjudicative matters, such as personnel
management, accounting, and the incorporation of new technologies. Although each state
assigns to the highest court the responsibility for rulemaking, supervising attorney
admissions, imposing discipline, and maintaining external relations with other branches
and the public, the Conference of Chief Justices assists in setting the policy agenda for all
the states.82

Figure 3.11 Maryland’s Administrative Office of the Courts

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Source: Maryland State Archives,”Administrative Office of the Courts,” Maryland
Manual On-Line (September 29, 2014), available at
http://msa.maryland.gov/msa/mdmanual/33jud/pdf/33admin.pdf (last retrieved
October 28, 2014).

155
In Comparative Perspective

156
Constitutional Courts in Europe
Historically, European nations rejected “American-style” judicial review. European judges may still not
invalidate or refuse to enforce national laws as unconstitutional. European courts remain subordinate to the
legislature. The French law of August 16, 1790, which remains in force, for instance, stipulates that “Courts
cannot interfere with the exercising of legislative powers or suspend the application of the laws.” The
recently established supreme court in the United Kingdom, which began hearing cases in 2009, may not
exercise judicial review per se but only issue rulings finding “incompatibility” between national laws and
those of the European Union (EU); the case is then sent to Parliament to reconcile national and EU law.

Separate constitutional courts are set apart from national judiciaries in most countries in Western and
Eastern Europe. They are modeled after the constitutional court of the Austrian Second Republic (1920–
1934), which was established in 1920 by Hans Kelsen, drafter of the constitution and an influential legal
philosopher. No other country established a constitutional court, though, until after World War II. Then,
constitutional courts were established as a result of the bitter experiences of fascism having taken hold in
Germany and Italy, as an institutional precaution against that happening again. Austria’s constitution of
1945 preserved its constitutional court, and others were created in Italy (1948), the Federal Republic of
Germany (1949), France (1958), Portugal (1976), Spain (1978), and Belgium (1985).

After the collapse of the former Soviet Union in 1989, constitutional courts were likewise established in the
former communist countries of central and eastern Europe, including the Czech Republic, Hungary,
Poland, Romania, Russia, Slovakia, the Baltics, and the countries of the former Yugoslavia.

A new European model of constitution judicial review thus emerged. In contrast to the U.S. Supreme Court
and federal judiciary, which have general jurisdiction over issues of constitutional and statutory law, regular
courts in Europe still have no jurisdiction over constitutional matters. Only constitutional courts may
decide constitutional issues. That was an innovation, but it is not all that separates the European model of
judicial review from the American one. European constitutional courts (1) are formally detached from the
national judiciary, (2) have exclusive jurisdiction over constitutional disputes, and (3) are authorized to
exercise review over and issue opinions on the constitutionality of legislation.

Moreover, unlike the U.S. federal judiciary’s jurisdiction over only “actual cases and controversies,”
European constitutional courts may exercise both abstract and concrete review of legislation. Some also have
jurisdiction based on individuals’ constitutional complaint procedures.

Abstract constitutional review of legislation is initiated by elected officials or national and regional
governmental bodies with respect to legislation that has been recently adopted but that either (a) has not yet
been put into force, as in France; or (b) has not yet been enforced, or has been suspended, pending review
by the constitutional court, as in Germany, Italy, and Spain. The executive and legislative branches in
Germany, France, and Spain; the federal states or regional governments in Germany, Italy, and Spain; and
an ombudsman in Spain may file suits challenging the constitutionality of legislation before constitutional
courts. In short, before controversial legislation goes into effect, the constitutional court must pass on its
constitutionality, and thereafter the legislation may be revised.

By contrast, concrete constitutional review arises from challenges to legislation in the courts when regular
judges are uncertain about the constitutionality of a national statute or ordinance, and its compatibility with
EU law. In such cases, regular judges refer the constitutional question or complaint to the constitutional
court for resolution. Once the constitutional court renders its ruling, the case is remanded back to the
referring judge, who then must decide the case in light of the constitutional court’s decision.

In addition, in Germany and Spain individuals (and in Spain the ombudsman) may file constitutional
complaints after they have exhausted all other remedies. Notably, once the process of constitutional review
has been initiated, constitutional courts must consider the matter and render a decision. Unlike the U.S.

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Supreme Court, they have no discretionary jurisdiction or power to deny cases review.

The jurisdiction and operation of the constitutional courts in France, Germany, Italy, and Spain are
summarized in the following table.

Western European constitutional courts also differ with respect to their composition, judges’ qualifications
for appointment, and term limits on judicial service. In general, constitutional judges are either appointed
by political bodies, as in France, or subject to some combination of nomination and election, as in Italy and
Spain. Moreover, unlike appointments to the U.S. Supreme Court, constitutional courts have precise quotas
for the appointment of professional/career judges, professors, and so on. In the Federal Republic of
Germany, for example, the sixteen-member constitutional court must always have at least six former federal
judges. In Italy, five of the fifteen judges on its constitutional court must be representatives of the federal
judiciary, but in Spain only two of its twelve judges must be. Some of the differences in the composition
and requirements for appointment to the constitutional courts in France, Germany, Italy, and Spain are
highlighted above.

For further discussion, see Carlo Guarnieri and Patrizia Pederzoli, The Power of Judges: A Comparative Study

158
of Courts and Democracy (London: Oxford University Press, 2002); and Allan R. Brewer-Carias,
Constitutional Courts as Positive Legislators (New York: Cambridge University Press, 2011).

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Federal Court Administration
Like state courts, federal courts struggled with establishing a professionalized bureaucracy
that met the goals of increasing judicial autonomy and achieving the fair administration of
justice. Congress originally required federal courts to adopt the same type of procedural
rules that were used in the states. That decentralization, however, thwarted the
development of consistent legal practices across the federal circuits.83 But, in the early part
of the twentieth century, Congress and the federal courts undertook steps to improve court
administration. In 1938, Congress gave the Supreme Court the power to promulgate the
Federal Rules of Civil Procedure, which now govern the basic litigation practices in the
federal judiciary. The following year, the judicial conference’s significance grew when
Congress created the Administrative Office of the U.S. Courts and transferred budgetary
control and judicial statistics preparation from the Department of Justice to it. That
legislation also instituted circuit judicial councils in order to supervise the docket
management of district courts. In 1969, Congress created the Federal Judicial Center
(FJC), an influential source of research and training for federal court judges and judicial
personnel.84

Figure 3.12 details federal court administration.

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The Politics of Reforming Judicial Administration
Judicial reform proposals are often driven by political motives and counter-responses that
may compromise judicial independence. Courts in turn respond to such political challenges
in different ways. In the 2012 presidential election, state and federal judicial decision
making amplified political controversies because the electorate was polarized over public
policy issues involving health care, gay marriage, affirmative action, and immigration.
Before that, Bush v. Gore (2000), a Supreme Court ruling that stopped the Florida vote
recount in the 2000 presidential race, registered the public debate over the role federal
courts should play in actively supervising the electoral process. But state courts have also
been at the center of heated electoral conflicts: state courts in California and elsewhere have
legalized same-sex marriage for gay couples, a trend that has met intense public and
electoral resistance across the country.85 Sometimes courts enlist the help of outside groups
interested in maintaining the integrity of the judicial process. The American Bar
Association and the American Judicature Society have been leaders in judicial reform (for
further discussion, see the “Contemporary Controversies Over Courts” box).

Figure 3.12 Federal Court Administration

The success of courts in repelling political attacks is often determined by their managing

161
external relations. Only two-tenths of 1 percent of the federal budget is allocated to federal
courts. Court appropriations thus are a constant political concern because judiciaries must
rely to some degree on the legislative and executive budgetary processes for resources. The
lobbying skills of judges and chief justices are important because legislatures are not afraid
to use their fiscal authority to influence or protest court rulings—a common problem in the
states.86 Apart from repelling direct attacks by legislators, courts and judicial organizations
also use administrative processes to respond. Long-range plans help set judicial priorities in
dealing with the political branches. Courts routinely publicize strategic long-range plans
and current assessments of judicial trends reports to alert the public about the challenges
facing courts.87

In sum, the political reality is that state and federal courts are complex bureaucracies that
require flexibility. At least in part because of caseload demands, today’s judges cannot be
simply a neutral and detached adjudicator. Rather, a judge must be an efficient manager of
court resources and, at times, an engaged mediator and problem solver. Appellate court
judges, moreover, must be prepared to adopt a leadership role that is inherently political
when lobbying for additional resources in the areas of judicial compensation, retirement
benefits, administrative personnel, or new technologies. The next chapter explores some
additional challenges confronting courts within the context of the politics of judicial
recruitment, retention, and removal.

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Political cartoon blasting the Supreme Court’s ruling striking down campaign-finance
reform laws

TOLES © 2013 The Washington Post. Reprinted with permission of Universal Uclick.

All rights reserved.

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Contemporary Controversies Over Courts

164
Should the Public Finance State Judicial Elections?
More than four out of five state judges face election or retention elections. In thirty-nine states they are
elected, and over 80 percent of all state and local judges stand for election in some manner. That is more
than all state legislators, governors, and executive offices combined.

In recent decades, state judicial elections have also become increasingly costly and hotly contested. State
supreme court elections in particular are more expensive and especially hard fought in states like Ohio,
Michigan, North Carolina, and Texas. Campaigns for state judicial elections are increasingly expensive as
well. More than $1 million was spent in each of twelve state high court races in 2011–2012, and the total
estimated spending on state judicial races was $56.4 million. Notably, judicial candidates’ fund-raising and
public funds accounted for barely 57 percent, while political parties spent 15.2 percent and special interest
groups more than 27 percent of that total.

Special interest groups and corporations are the key forces driving up the cost of judicial elections and their
increasing partisanship, even in state judicial retention elections. A record $33 million was spent in 2011–
2012 on TV ads, and two-thirds of that came from interest groups, who increasingly use attack ads accusing
judges of being soft on crime. Notably, such independent spending escalated after the Supreme Court’s
2010 ruling in Citizens United v. Federal Election Commission that invited independent campaign spending
by individuals and groups, based on the bare majority’s reasoning that money is speech and speech is
protected by the First Amendment.

Among the major recent spenders are the Republican State Leadership Committee in North Carolina, the
national conservative group Americans for Prosperity, and large corporations like Home Depot, Walmart,
and insurance company AIG, along with the U.S. Chamber of Commerce and the Business Roundtable, as
well as independent groups like the Law Enforcement Alliance of America (LEAA). Another driving force
behind the escalating costs and contentiousness of judicial elections has been the election of “business
friendly” state judges. Interest groups have also targeted state court judges in retaliation for state supreme
court rulings on abortion, raising property taxes, large jury awards, and requiring equal public financing of
schools.

In response to the escalating costs and increasingly politically contentious campaigns for state judgeships,
the American Bar Association (ABA), the American Judicature Society, and numerous other organizations
have promoted the public financing of judicial campaigns and state court elections. Chief justices of
seventeen state supreme courts have called for the public financing of judicial elections. More than 90
percent of the American public thinks that campaign money affects judicial decisions and that judges give
contributors special treatment. Although 74 percent of the public still favors electing judges, polls show that
80 percent supports the public financing of state judicial campaigns.

The ABA has endorsed the following principles supporting the public financing of state judicial elections:

1. Public financing programs must be sensitive to constitutional limitations on states’ power to

regulate judicial campaign finance.
2. Public financing programs should be designed to best suit the particular needs of a particular state
or territory.
3. Public financing programs are most suitable for primary and general election campaigns of high
court judges and, in some cases, intermediate appellate judges.
4. Public financing programs should provide judicial candidates with full public funding in amounts
sufficient to encourage participation.
5. Public financing programs should be restricted to serious candidates in contested elections who have
met specified criteria indicating a certain level of support.
6. Public financing programs should be conditioned on the candidates’ agreement to forego private
funding and to limit their use of public funds to legitimate campaign purposes.

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 7. States and territories should address the impact of independent campaign expenditures and
recognize the impact of general issue advocacy on public financing programs.
8. Public financing programs should distribute funds in the form of block grants to candidates and
should also provide voter guides to the electorate.
9. Public financing programs should be funded from a stable and sufficient revenue source.
10. Public financing programs should be administered by an independent and adequately staffed entity.

Still, less than half of the states provide some form of public financing for state and local judicial elections.
Some states, like Kentucky, have recently debated public funding for judicial elections, but failed to enact
reforms. Moreover, two states, Wisconsin and North Carolina, that had provided some public financing for
judicial elections ended the practice, and proposals for public funding of judicial elections were defeated in
New Mexico and some other states in 2013. Wisconsin had the oldest publicly financed judicial election
system: state supreme court candidates were eligible for $97,000 in state money if they agreed to a
$215,000 spending limit; but, if one candidate refused to accept public financing, then the publicly funded
candidate was released from the spending cap. However, Wisconsin’s system of financing judicial elections,
which was paid for through a $1 check-off contribution on state income tax returns, was historically
underfinanced and ultimately abandoned.

The ABA and other public interest organizations nonetheless continue to push for the adoption of public
financing programs for state judicial elections. Recently, retired Justice Sandra Day O’Connor joined in the
effort for states’ judicial campaign reform, warning that courts and the country are in trouble when “many
people in our country think of judges as just politicians in robes.” And in a dissenting opinion from the
Court’s denial of review of a death penalty case, Woodward v. Alabama, 134 S. Ct. 405(2013), Justice Sonia
Sotomayor sharply criticized state judicial elections for bias and casting “a cloud of illegitimacy over the
criminal justice system.”

Sources: Alicia Bannon et al., The New Politics of Judicial Elections 2011–2012 (New York: Brennan Center
for Justice, New York University School of Law, 2013), available from www.brennancenter.org; and
American Bar Association, Standing Committee on Judicial Independence, Public Financing of Judicial
Campaigns (Chicago: American Bar Association, 2002), available from www.americanbar.org.

166
Chapter Summary
The structure, organization, and administration of courts are examined. The U.S. judicial
system has evolved. Seminal legislation, such as the 1789 Judiciary Act, allowed for federal
courts to emerge alongside state courts in a dual system of courts that is held together under
principles of judicial federalism. Subsequently, state courts developed through
“unification,” a reform movement consolidating trial courts and centralizing court
operations and increasing judicial autonomy from the political branches. State courts
handle the bulk of the nation’s litigation. Federal courts review federal questions of law.

Courts operate as bureaucratic organizations, so how they administer justice is highly

significant. State courts’ administrative offices perform essentially the same administrative
and agenda-setting function as clerks of the federal courts. State and federal judicial
organizations play key roles as research and training centers, as well as in helping courts
manage budgets, human resources, courtroom facilities, and informational technology.
Lastly, because they are not completely autonomous from the political branches, state and
federal court administrators must engage in external lobbying, internal self-examination,
and strategic long-range planning in order to compete for scarce resources in the political
system while administering justice fairly.

167
Key Questions for Review and Critical Analysis
1. What are the key similarities and differences between state and federal courts with
respect to their structural organization, dockets, and the role they play in deciding
trial and appellate cases?
2. Why is it politically difficult for states to unify or centralize their court structures,
funding, and internal operations?
3. In practice, which level of the state or federal judiciary is the “court of last resort” for
most litigants, and why?
4. What principles of the fair administration of justice are threatened when courts are
attacked politically for making unpopular judicial decisions?
5. What are the different administrative strategies that federal and state courts use to
manage high caseloads when they have limited financial or staffing resources?

168
Web Links
1. State Justice Institute (www.sji.gov)
A nonprofit corporation’s site that provides grant information and news about
current issues facing state and federal courts.
2. Conference of Chief Justices (http://ccj.ncsc.org)
Established for chief justices of state courts of last resort that supply insight into
the issues and problems facing state courts.
3. Conference of State Court Administrators (http://cosca.ncsc.org)
A rich source for news and research about state courts. It also provides
additional information about case management strategies, relevant websites,
and the policy issues state courts face in administering justice.
4. Administrative Office of the U.S. Courts
(www.uscourts.gov/FederalCourts/UnderstandingtheFederal
Courts/AdministrativeOffice.aspx)
A comprehensive site that supplies current news, federal court workload
statistics, annual reports, and long-range planning initiatives.
5. Federal Judicial Center (www.fjc.gov)
The site provides access to publications and videos, information about
international judicial relations, and significant research about federal judicial
history, including a rich source of federal judge biographies.

169
Selected Readings
Banks, Christopher P. Judicial Politics in the D.C. Circuit Court. Baltimore: Johns
Hopkins University Press, 1999.

Banks, Christopher P., and John C. Blakeman. The U.S. Supreme Court and New
Federalism: From the Rehnquist to the Roberts Court. Lanham, Md.: Rowman &
Littlefield, 2012.

Baum, Lawrence. Specializing the Courts. Chicago: University of Chicago Press, 2011.

Cross, Frank B. Decision Making in the U.S. Courts of Appeals. Stanford, Calif.: Stanford
University Press, 2007.

Crowe, Justin. Building the Judiciary: Law, Courts and the Politics of Institutional
Development. Princeton, N.J.: Princeton University Press, 2012.

Fish, Peter Graham. The Politics of Federal Judicial Administration. Princeton, N.J.:
Princeton University Press, 1973.

Howard, J. Woodford, Jr. Courts of Appeals in the Federal Judicial System: A Study of the
Second, Fifth, and District of Columbia Circuits. Princeton, N.J.: Princeton University
Press, 1981.

O’;Brien, David M. Storm Center: The Supreme Court in American Politics, 10th ed.
New York: Norton, 2014.

Ostrom, Brian J., Charles W. Ostrom, Jr., Roger A. Hanson, and Matthew Kleiman. Trial
Courts as Organizations. Philadelphia: Temple University Press, 2007.

Richman, William M., and William L. Reynolds. Injustice on Appeal: The United States
Courts of Appeals in Crisis. New York: Oxford University Press, 2013.

170
Wheeler, Russell R., and Cynthia Harrison. Creating the Federal Judicial System, 3rd ed.
Washington, D.C.: Federal Judicial Center, 2005.

171
Notes
1. Jay L. Jackson, “The Siege on State Courts,” ABA Journal 99 (2013), 54–61.

2. The senator is not identified but quoted in Editorial (op-ed), “Courts Under Attack,”
Judicature 94 (2011), 256. Jane Musgrave, “Split the Florida Supreme Court?” The Palm
Beach Post (March 19, 2011), available at www.palmbeachpost.com (last retrieved March 1,
2014); Peter Hardin, “Resistance in Senate for FL Court Overhaul (April 29, 2011),”
GavelGrab, available at www.gavelgrab.org (last retrieved March 1, 2014). Other states
besides Florida have been targeted for court organizational reform. Before it died in
committee in 2011, New Hampshire legislators who were unhappy with opinions favoring
federally imposed health care and frivolous lawsuits that harmed business recommended a
constitutional amendment to eliminate the state’s appellate and superior courts with the
option of reconstructing them to their liking with new legislation. Bill Raferty, “Taking
Page Out of Gingrich Playbook, New Hampshire Proposal Would Eliminate State’s
Supreme and Superior Courts (December 23, 2011),” Gavel to Gavel, available at
www.gaveltogavel.us (last retrieved March 1, 2014); Maggie Clark, Pew Charitable Trusts
(State and Consumer Initiatives), “Legislators Attempt to Strip Courts of Power,” available
at www.pewstates.org (last retrieved March 1, 2014).

3. Justice O’Connor is quoted in Jackson, “The Siege on State Courts.”

4. In response to liberal activism, federal legislation in the 1970s restructured District of

Columbia courts by weakening the D.C. Circuit’s criminal law precedent and ultimately
replacing the circuit’s criminal jurisdiction with administrative law jurisdiction.
Christopher P. Banks, Judicial Politics of the D.C. Circuit Court (Baltimore: John Hopkins
University Press, 1999), 26–32. The Ninth Circuit’s liberal activism prompted legislative
proposals to reorganize the court into smaller divisions to curb its ideological decision
making. Christopher P. Banks, “The Politics of Court Reform in the U.S. Courts of
Appeals,” Judicature 84 (2000), 34–43. Special interests reportedly lobbied extensively to
reduce the size of the Michigan Supreme Court in order to oust two conservative
Republican justices. Jackson, “The Siege on State Courts,” 54–61. In his 2011 bid for the
presidency, Republican Newt Gingrich vowed to abolish activist courts and arrest judges
with U.S. Capitol Police in order to make them testify before Congress to explain their
controversial rulings. Amy Gardner and Matt Delong, “Newt Gingrich’s Assault on
‘Activist Judges’ Draws Criticism, Even From the Right,” Washington Post (December 17,
2011), available at www.washingtonpost.com (last retrieved March 1, 2014); Ariane de
Vogue, “Gingrich’s Judiciary Hunt Riles Conservatives, Reformists,” ABC News (December
20, 2011), available at www.abcnews.go.com (last retrieved March 1, 2014).

5. See generally, The Improvement of the Administration of Justice, 7th ed., edited by Gordon
M. Griller and E. Keith Stott, Jr. (Chicago: Lawyers Conference, Judicial Division,

172
American Bar Association, 2002); Robert W. Tobin, Creating the Judicial Branch: The
Unfinished Reform (Williamsburg, Va.: National Center for State Courts, 1999); Deborah
J. Barrow, Gary Zuk, and Gerard S. Gryski, The Federal Judiciary and Institutional Change
(Ann Arbor: University of Michigan Press, 1996).

6. Melvin I. Urofsky and Paul Finkelman, A March of Liberty: A Constitutional History of

the United States, Volume I: From the Founding to 1890, 2nd ed. (Oxford: Oxford
University Press, 2002), 41–58; Kermit L. Hall, The Magic Mirror: Law in American
History (Oxford: Oxford University Press, 1989), 17–22.

7. G. Alan Tarr, Understanding State Constitutions (Princeton, N.J.: Princeton University

Press, 1998), 60–93.

8. Sue Davis, American Political Thought: Four Hundred Years of Ideas and Ideologies
(Englewood Cliffs, N.J.: Prentice Hall, 1996), 91–93.

9. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution
(New York: Vintage Books, 1996), 25–26, 44; Edward A. Purcell, Jr., Originalism,
Federalism, and the American Constitutional Enterprise: A Historical Inquiry (New Haven,
Conn.: Yale University Press, 2007), 22. See also Michael Hail and Stephen Lange,
“Federalism and Representation in the Theory of the Founding Fathers: A Comparative
Study of U.S. and Canadian Constitutional Thought,” Publius: The Journal of Federalism
40, no. 3 (2010), 360, 370; Raoul Berger, Federalism: The Founder’s Design (Norman:
University of Oklahoma Press, 1987), 46.

10. Letter from James Madison to Thomas Jefferson (October 24, 1787),The Writings of
James Madison, edited by Gaillard Hunt (New York: G.P. Putnam’s Sons, 1904), 17, 23.

11. Rakove, Original Meanings, 25–26, 44. See also Alison L. LaCroix, The Ideological
Origins of American Federalism (Cambridge, Mass.: Harvard University Press, 2010), 148–
49.

12. Rakove, Original Meanings, 32.

13. Max Farrand, The Framing of the Constitution of the United States (New Haven, Conn.:
Yale University Press, 1967), 119.

14. Farrand, The Framing of the Constitution of the United States, 119–21, 156–57; Rakove,
Original Meanings, 173–77.

15. Justin Crowe, Building the Judiciary: Law, Courts, and Politics of Institutional
Development (Princeton, N.J.: Princeton University Press, 2012), 31–32. See also Maeva
Marcus and Natalie Wexler, “The Judiciary Act of 1789: Political Compromise or
Constitutional Interpretation,” in Origins of the Federal Judiciary: Essays on the Judiciary Act

173
of 1789, edited by Maeva Marcus (New York: Oxford University Press, 1992), 13–39.

16. David M. O’Brien, Storm Center: The Supreme Court in American Politics, 10th ed.
(New York: Norton, 2011), 108. See also Crowe, Building the Judiciary, 38–39.

17. Marbury v. Madison, 5 U.S. 137 (1803).

18. Akhil Reed Amar, “Marbury, Section 13, and the Original Jurisdiction of the Supreme
Court,” University of Chicago Law Review (Spring, 1989), 443–98.

19. Kathryn Turner, “Federalist Policy and the Judiciary Act of 1801,” William and Mary
Quarterly 22 (1965), 3–32.

20. Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in
the Federal Judicial System (New York: Macmillan, 1928), 56–64. See also Eleanore
Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials (Urbana:
University of Illinois Press, 1992).

21. Frankfurter and Landis, The Business of the Supreme Court, 60, 64. President Lincoln’s
quote is found in Russell R. Wheeler and Cynthia Harrison, Creating the Federal Judicial
System, 3rd ed. (Washington, D.C.: Federal Judicial Center, 2005), 12.

22. Frankfurter and Landis, The Business of the Supreme Court, 60, 64.

23. As quoted in Frankfurter and Landis, The Business of the Supreme Court, 259, n. 13.

24. Richard A. Posner, The Federal Courts: Challenge and Reform (Cambridge, Mass.:
Harvard University Press, 1996), 87–123.

25. Michigan v. Long, 463 U.S. 1032 (1983).

26. Christopher P. Banks and John C. Blakeman, The U.S. Supreme Court and New
Federalism: From the Rehnquist to the Roberts Court (Lanham, Md.: Rowman & Littlefield,
2012). See also Kenneth P. Miller, “Defining Rights in the States: Judicial Activism and
Popular Response,” Albany Law Review 76 (2012), 2061–103; William J. Brennan, Jr.,
“State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90
(1977), 489.

27. Roscoe Pound, “The Causes of Popular Dissatisfaction With the Administration of
Justice,” American Bar Association Report 29 (1906), 395–417; Robert W. Tobin, Creating
the Judicial Branch: The Unfinished Reform (Williamsburg, Va.: National Center for State
Courts, 1999), 3, 21–22.

28. William Rafferty, “Unification and ‘Urgency’: A Century of Court Organization and
Reorganization,” Judicature 96 (2013), 337–46. See also Tobin, Creating the Judicial

174
Branch: The Unfinished Reform, 119–21.

29. Tobin, Creating the Judicial Branch: The Unfinished Reform, 23. See also Larry C.
Berkson, “The Emerging Ideal of Court Unification,” Judicature 60 (1977), 372, 373.

30. Rafferty, “Unification and ‘Bragency,’” 337–46. See also Tobin, Creating the Judicial
Branch, 155–57.

31. Robert C. LaFountain, Richard Y. Schauffler, Shauna M. Strickland, and Kathryn A.

Holt, Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads
(Williamsburg, Va.: National Center for State Courts, 2012), 3.

32. LaFountain, Schauffler, Strickland, and Holt, Examining the Work of State Courts: An
Analysis of 2010 State Court Caseloads, 3.

33. Shauna M. Strickland, Robert C. LaFountain, and Kathryn A. Holt, “State Court
Organization,” National Center for State Courts (last updated on August 2, 2013), available
at www.ncsc.org/sco (last retrieved February 20, 2014).

34. James G. Cornell, “Limited-Jurisdiction Courts: Challenges, Opportunities, and

Strategies for Action,” in Future Trends in State Courts (2012): Special Focus and Courts and
Community, edited by Carol R. Flango, Amy M. McDowell, Deborah W. Saunders, Nora
E. Sydow, Charles F. Campbell, and Neal B. Kauder (Williamsburg, Va.: National Center
for State Courts, 2012), 67–70.

35. Cornell, “Limited-Jurisdiction Courts,” 67–70. See also LaFountain, Schauffler,

Strickland, and Holt, Examining the Work of State Courts: An Analysis of 2010 State Court
Caseloads, 3.

36. LaFountain, Schauffler, Strickland, and Holt, Examining the Work of State Courts: An
Analysis of 2010 State Court Caseloads, 1–30 (listing types of subject matter handled by
general jurisdiction courts). See also Strickland, LaFountain, and Holt, “State Court
Organization” (for data indicating number of general jurisdiction courts and how they are
named).

37. Susan Johnson, Jeanne Kaufman, John Dossett, and Sarah Hicks (updated by Sue
Davis), Government to Government: Models of Cooperation Between States and Tribes
(Denver, Colo.: National Conference of State Legislators, 2009); Susan Johnson, Jeanne
Kaufman, John Dossett, and Sarah Hicks, Government to Government: Understanding State
and Tribal Government (Denver, Colo.: National Conference of State Legislators, 2000);
Bureau of Indian Affairs, “Frequently Asked Questions: Tribal Government: Powers,
Rights, and Authorities,” available at www.bia.gov/FAQs/ (last retrieved February 22,
2014).

175
38. Tribal Law and Policy Institute’s Tribal Court Clearinghouse, “Tribal Courts,”
available at www.tribal-institute.org/lists/justice.htm (last retrieved December 11, 2013).
See alsoCherokee Nation v. Georgia, 30 U.S. 1 (1831), Worcester v. Georgia, 31 U.S. 515
(1832), and Ex Parte Crow Dog, 109 U.S. 556 (1883).

39. U.S. Department of Justice, “Indian Country Investigations and Prosecutions (2011–
2012),” available at www.justice.gov/tribal/tloa-report-cy-2011-2012.pdf (last retrieved
February 23, 2014). See Montana v. United States, 450 U.S. 544 (1981) (tribal court
jurisdiction restricted over nonmember activities taking place on the reservation); Nevada v.
Hicks, 533 U.S. 353 (2001)(tribal court lacks jurisdiction over civil claims against state
officials who entered tribal land to execute a search warrant against a tribe member
suspected of having violated state law outside the reservation); Plains Commerce Banks v.
Long Family Land and Cattle Co., Inc., 554 U.S. 316 (2008)(tribal court lacks jurisdiction
to adjudicate a discrimination claim concerning the non-Indian bank’s sale of land it
owned on an Indian reservation); but see United States v. Lara, 541 U.S. 193 (2004)
(federal government and tribal courts have authority to prosecute an Indian from another
nonmember tribe for offenses in separate, successive prosecutions without violating the
Double Jeopardy Clause); Philip P. Frickey, “(Native) American Exceptionalism in Federal
Public Law,” Harvard Law Review 119 (2005), 433–90. See also Tribal Law and Policy
Institute’s Tribal Court Clearinghouse, “Public Law 280,” available at www.tribal-
institute.org/lists/pl280.htm (last accessed February 23, 2014). An example of a tribal
constitution is the Choctaw Nation of Oklahoma, “Constitution of the Choctaw Nation,”
available at www.choctawnation.com/history/documents/constitution-of-the-choctaw-
nation/ (last retrieved March 24, 2014). The Oklahoma Chickasaw Nation’s justice
department has a Peacemaking Court that uses restorative justice principles. The
Chickasaw Nation, “Judicial Department,” available at https://chickasaw.net/Judicial-
Department/Courts/District-Court.aspx (last retrieved February 23, 2014).

40. Intermediate appellate courts in thirty-eight states, plus Puerto Rico, sit in panels, but
California, Connecticut, and Tennessee use permanent, or the same, panels instead of
rotating judges. Also, among the states, there is considerable variation in the number of
panels used (how many the court uses relative to a certain size, which sometimes is more
than three judges) and the frequency of their rotation (either by case, by the court’s
discretion or through the chief judge, or by certain time intervals, either by week, month,
year, and so forth). Courts of last resort sit en banc in most states, with only eleven states,
plus the District of Columbia and Guam, deciding cases through panels, mostly on a
rotating basis with three justices (only Alabama, Guam, Massachusetts, and Virginia use
permanent panels; and Alabama, Florida, Massachusetts, and Montana use panels of five
instead of three judges); but there is a wide variation in the number of panels and their
frequency of rotation. National Center for State Courts, “Structure of Appellate Court
Panels,” available at http://data.ncsc.org/QvAJAXZfc/opendoc.htm?
document=Public%20App/SCO.qvw&host=QVS@qlikviewisa&anonymous=true&bookmark=Document

176
(last retrieved October 27, 2014).

41. John P. Doerner and Christine A. Markman, The Role of State Intermediate Courts:
Principles for Adopting to Change (a white paper produced by the Council of Chief Judges of
the State Courts of Appeal [November 2012]), available at
www.ncsc.org/Topics/Appellate/Appellate-Procedure/Resource-Guide.aspx (last retrieved
February 23, 2014), 27–28. See also Victor E. Flango, “A Taxonomy of Appellate Court
Organization,” Caseload Highlights: Examining the Work of State Courts 3, no. 1 (July
1997), available at
http://ncsc.contentdm.oclc.org/cdm/singleitem/collection/appellate/id/88/rec/16 (last
retrieved October 27, 2014).

42. Harry P. Stumpf and John H. Culver, The Politics of State Courts (New York:
Longman, 1991), 149. The ten states without middle-level appellate courts are Delaware,
Maine, Montana, Nevada, New Hampshire, Rhode Island, South Dakota, Vermont, West
Virginia, and Wyoming. Of those, all rank in the bottom third of the population across all
states as of 2010. U.S. Census Bureau, U.S. Department of Commerce, “Annual Estimates
of the Resident Population: April 1, 2010 to July 1, 2013,” available at www.census.gov
(last retrieved February 25, 2014). Within that group, the Nevada Supreme Court is
overburdened with appeals coming from the trial court, so there is legislative and ballot
pressure to create an intermediate appeals court in that state. Tick Segerblom and Mark
Hutchison, “Why Nevada Needs a New Appellate Court,” Las Vegas Sun (op-ed), available
at www.lasvegassun.com (last retrieved February 25, 2014). Between 1980 and 1998,
Minnesota, Mississippi, Nebraska, North Dakota, and Virginia added intermediate
appellate courts. Ron Malega and Thomas H. Cohen, U.S. Department of Justice, Office
of Justice Programs, Bureau of Justice Statistics, “State Court Organization, 2011
(November 2013),” available at www.bjs.gov (last retrieved March 9, 2014). See also
LaFountain, Schauffler, Strickland, and Holt, “Population Size and Appellate Caseload Are
Often Related,” 40.

43. Pennsylvania retains a Commonwealth and Superior Court that generally handles
criminal, civil, and administrative agency appeals. New York has separate Appellate
Divisions or Terms of Supreme Court, each with different departments that generally
review criminal, civil, and administrative agency appeals. Strickland, LaFountain, and Holt,
“State Court Organization.”

44. Doerner and Markman, The Role of State Intermediate Courts, 1. See also LaFountain,
Schauffler, Strickland, and Holt, “Appeals by Right Continue to Dominate Intermediate
Appellate Court Caseloads,” 41; and “Civil Matters Comprise More Than Half of the
Appeal by Right Caseloads in Courts of Last Resort,” 43.

45. LaFountain, Schauffler, Strickland, and Holt, “Appeal by Right Clearance Rates
Remain High,” 44. See also Richard Y. Schauffler, Robert C. LaFountain, Neal B. Kauder,

177
and Shauna M. Strickland, Examining the Work of State Courts, 2004: A National
Perspective From the Court Statistics Project (Williamsburg, Va.: National Center for State
Courts, 2004), 68.

46. Matthew E. K. Hall and Jason Harold Windett, “New Data on State Supreme Court
Cases,” State Politics and Policy Quarterly 13 (2013), 427, 436. See also Strickland,
LaFountain, and Holt, “State Court Organization.”

47. Only eleven states, plus the District of Columbia and Guam, have courts of last resort
that decide cases in panels. Intermediate appellate courts in thirty-eight states, plus Puerto
Rico, sit in panels. National Center for State Courts, “Structure of Appellate Court Panels,”
available at http://data.ncsc.org/QvAJAXZfc/opendoc.htm?
document=Public%20App/SCO.qvw&host=QVS@qlikviewisa&anonymous=true&bookmark=Document
(last retrieved October 27, 2014). See also Hall and Windett, “New Data on State Supreme
Court Cases,” 440 (reporting that civil procedure and criminal law and procedure cases
represent nearly 63 percent of state supreme court dockets between 1995 and 2010); and
Meghan E. Leonard and Joseph V. Ross, “Consensus and Cooperation on State Supreme
Courts,” State Politics and Policy (doi:10.1177/1532440013503664), published online
(October 1, 2013), available at http://spa.sagepub.com/ (last retrieved February 28, 2014).

48. LaFountain, Schauffler, Strickland, and Holt, “Over Half of Court of Last Resort
Caseloads Are Appeals by Permission,” 45; and “Appeals From Criminal Cases Are the
Most Prominent Appeal by Permission Case Type,” 46.

49. Of all state appeals in 2010, courts of last resort heard appeal by right (9 percent), death
penalty (94 percent), and original proceedings or other appellate (49 percent) cases. In
contrast, middle-tier appellate courts reviewed 91 percent (appeal by right), 6 percent
(death penalty), and 51 percent (original proceedings or other appellate) cases. LaFountain,
Schauffler, Strickland, and Holt, “Appeal by Right Continue to Dominate Intermediate
Appellate Court Caseloads,” 41; “Civil Matters Comprise More Than Half of the Appeal
by Right Caseloads in Courts of Last Resort,” 43. See also Doerner and Markman, The Role
of State Intermediate Courts, 4.

50. Benjamin Kassow, Donald R. Songer, and Michael P. Fix, “The Influence of Precedent
on State Supreme Courts,” Political Research Quarterly 65 (2012), 372, 375.

51. Administrative Office of the U.S. Courts, Table C-2: U.S. District Courts—Civil Cases
Commenced, by Basis of Jurisdiction and Nature of Suit, During 12-Month Period Ending
June 30, 2012 and 2013, available at www.uscourts.gov (last retrieved March 2, 2014). The
number of authorized judgeships is detailed in Administrative Office of the U.S. Courts,
“Table 1.1. Total Judicial Officers—Courts of Appeals, District Courts, and Bankruptcy
Courts,” available at www.uscourts.gov (last retrieved March 2, 2014).

178
52. Judicial workload statistics for the federal courts are detailed in Administrative Office of
the U.S. Courts, “Judicial Caseload Indicators (12-Month Period Ending September
2012),” available at www.uscourts.gov (last retrieved March 1, 2014). The data for the U.S.
Supreme Court are detailed in Administrative Office of the U.S. Courts, “Table A-1.
Supreme Court of the United States—Cases on Docket, Disposed of, and Remaining on
Docket at Conclusion of October Terms, 2007 Through 2011,” available at
www.uscourts.gov (last retrieved March 1, 2014).

53. Case termination and method of disposition statistics in civil and criminal cases are
derived from 2012 filings. Administrative Office of the U.S. Courts, “Judicial Facts and
Figures 2012 (12-Month Period Ending June 30, 2012)” (Tables 4.10 and 5.5), available at
www.uscourts.gov/ (last retrieved March 2, 2014).

54. District courts in U.S. territories are Article IV courts, whereas U.S. district courts are
created under Article III of the U.S. Constitution. Except for Puerto Rico, the president
appoints judges in territorial district courts with Senate approval for fixed ten-year terms. In
Puerto Rico, the president appoints the judges, who are given life tenure. While American
Samoa is a U.S. territory, it lacks a U.S. district court but retains the High Court of
American Samoa with limited federal jurisdiction. Administrative Office of the U.S.
Courts, “Territorial Courts in the Federal Judiciary,” available at www.uscourts.gov (last
retrieved March 2, 2014).

55. Federal Judicial Center, “History of the Federal Judiciary: Landmark Judicial
Legislation,” available at www.fjc.gov/history/home.nsf (last retrieved March 2, 2014).

56. Administrative Office of the U.S. Courts, “Appointments of Magistrate Judges,” (Table
13), available at www.uscourts.gov (last retrieved March 2, 2014); Federal Magistrate
Judges Association, available at www.fedjudge.org/about-us.html (last retrieved March 2,
2014).

57. They dispose of nearly 9,000 Class A misdemeanors (e.g., traffic, theft, food/drug,
weapons, trespass, fraud, assault) and 118,000 petty offenses (e.g., DUI/DWI,
immigration, food/drug, littering, drunk/disorderly, hunting, trespassing, theft). They
participate in over 376,000 felony preliminary hearings (e.g., search and arrest warrants,
initial appearances, arraignments, bail review) and perform 58,815 miscellaneous duties
(e.g., seizure/inspection warrants, calendar calls, grand juries) in nearly 59,000 cases. They
conduct almost 439,000 pretrials in criminal and civil cases, and process over 50,000
reports pursuant to statute, with over half of those coming from prisoner petitions.
Administrative Office of the U.S. Courts, “Judicial Business of the U.S. Courts” (Tables S-
17, M-1, M-2, M-3 M-3A, M-4, M-4A, M-4B), available at www.uscourts.gov (last
retrieved March 2, 2014). See also Administrative Office of the U.S. Courts,
“Appointments of Magistrate Judges,” (Table 13), available at www.uscourts.gov (last
retrieved March 2, 2014).

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58. Northern Pipeline Construction Company v. Marathon Pipe Line Company, 458 U.S. 50
(1982).

59. David S. Kennedy and R. Spencer Clift III, “An Historical Analysis of Insolvency Laws
and Their Impact on the Role, Power, and Jurisdiction of Today’s United States
Bankruptcy Court and Its Judicial Officers,” Journal of Bankruptcy Law and Practice 9
(January/February 2000), 165–200.

60. Stephen J. Spurr and Kevin M. Ball, “The Effects of a Statute (BAPCPA) Designed to
Make It More Difficult for People to File for Bankruptcy,” American Bankruptcy Law
Journal 87 (2013), 27–47. CCH, “CCH Bankruptcy Reform Act Briefing: Bankruptcy
Abuse Prevention and Consumer Protection Act of 2005” (updated April 21, 2005),
available at www.cch.com/bankruptcy/Bankruptcy_04-21.pdf (last retrieved December 2,
2005).

61. Spurr and Ball, “The Effects of a Statute (BAPCPA) Designed to Make It More
Difficult for People to File for Bankruptcy,” 29–33; Christian E. Weller, Bernard J.
Morzuch, and Amanda Logan, “Estimating the Effect of the Bankruptcy Abuse Prevention
and Consumer Protection Act of 2005 on the Bankruptcy Rate,” American Bankruptcy Law
Journal 84 (2010), 327–60; and Christine Duga, “Reform Has Made Filing Bankruptcy
More Costly,” USA Today (December 23, 2011). See also Administrative Office of the U.S.
Courts, “New Law Creates Rush to File in Federal Court,” The Third Branch 11
(November 2005), 1.

62. Information about these courts is found in Administrative Office of the U.S. Courts,
“The Federal Courts,” available at www.uscourts.gov (last retrieved March 2, 2014).

63. John Dorsett Niles, “Assessing the Constitutionality of the Alien Terrorist Removal
Court,” Duke Law Journal (2008), 1833–64.

64. Andrew Nolan and Richard M. Thompson II, “Reform of the Foreign Intelligence
Surveillance Courts: Procedural and Operational Changes,” Congressional Research Service
(August 26, 2014), available at www.fas.org/sgp/crs/intel/R43362.pdf (last retrieved
October 27, 2014), 1–2. See also Edward C. Liu, “Reauthorization of the FISA
Amendments Act,” Congressional Research Service (April 8, 2013), available at
http://fas.org/sgp/crs/intel/R42725.pdf (last retrieved October 27, 2014), 1–2.

65. Such reforms include requiring FISC to review amicus curiae (or third-party) briefs to
make FISC judges aware of privacy and civil rights and liberties interests in government
wiretap applications; requiring FISC judges to sit en banc, or with a full court of eleven
judges in making wiretap decisions; altering FISC or its appellate body, the Foreign
Intelligence Surveillance Court of Review; raising the bar of permitting government
surveillance; and requiring a “public advocate” be present during the FISC review process.

180
Andrew Nolan and Richard M. Thompson II, “Reform of the Foreign Intelligence
Surveillance Courts: Procedural and Operational Changes,” Congressional Research Service
(January 16, 2014), available at www.fas.org/sgp/crs/intel/R43362.pdf (last retrieved
March 2, 2014). See also James Risen and Eric Lichtblau, “Bush Said to Have Secretly
Lifted Some Spying Limits After 9/11,” Chicago Tribune (December 16, 2005), C30.

66. U.S. Court of Appeals for the Federal Circuit, “Court Jurisdiction,” available at
www.cafc.uscourts.gov (last retrieved March 3, 2014). See also Judicial Conference of the
United States, Long Range Plan for the Federal Courts (December 1995), 43, n. 6; R. Polk
Wagner and Lee Petherbridge, “Is the Federal Circuit Succeeding? An Empirical
Assessment of Judicial Performance,” University of Pennsylvania Law Review 152 (2004),
1105–80.

67. J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System: A Study of the
Second, Fifth, and District of Columbia Circuits (Princeton, N.J.: Princeton University Press,
1981), 8. See generally Jonathan Matthew Cohen, Inside Appellate Courts: The Impact of
Court Organization on Judicial Decision-Making in the United States Courts of Appeals (Ann
Arbor: University of Michigan Press, 2002); David E. Klein, Making Law in the United
States Courts of Appeals (Cambridge, U.K.: Cambridge University Press, 2002); Donald R.
Songer, Reginald S. Sheehan, and Susan B. Haire, Continuity and Change on the United
States Courts of Appeals (Ann Arbor: University of Michigan Press, 2000).

68. Christopher P. Banks, “The Politics of En Banc Review in the ‘Mini-Supreme Court,’”
Journal of Law and Politics (Spring 1997), 377–414.

69. The caseload statistics cited and the argument that appellate justice is compromised are
detailed in William M. Richman and William L. Reynolds, Injustice on Appeal: The United
States Courts of Appeals in Crisis (New York: Oxford University Press, 2013), xi–9. Caseload
data for 2012 and links to past years are located in Administrative Office of the U.S Courts,
“U.S. Courts of Appeals,” available at www.uscourts.gov (last retrieved March 4, 2014).

70. Even though it is not used much, the FISCR remains significant and controversial in
the post-9/11 era. See, e.g., President Barack Obama, “Obama’s Speech on N.S.A. Phone
Surveillance (Transcript),” New York Times (January 17, 2014), available at
www.nytimes.com (last retrieved March 4, 2014); Lauren Fox, “Democrats Seek to Reform
FISA Court in Light of NSA Revelations,” USA Today (August 2, 2013); James Risen and
Eric Lichtblau, “Court Affirms Wiretapping Without Warrants,” New York Times (January
15, 2009), available at www.nytimes.com (last retrieved March 4, 2014); Nolan and
Thompson, “Reform of the Foreign Intelligence Surveillance Courts: Procedural and
Operational Changes”; In re Directives Pursuant to Section 10b of the Foreign Intelligence
Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008); and In re Sealed Case, 310 F.3d 717
(FISA Ct. Rev. 2002). See also Administrative Office of the U.S. Courts, “The Federal
Courts,” available at www.uscourts.gov (last retrieved March 2, 2014).

181
71. O’Brien, Storm Center, 218.

72. See Barbara A. Perry, The Priestly Tribe: The Supreme Court’s Image in the American
Mind (Westport, Conn.: Praeger, 1999), 25–45.

73. H. W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court
(Cambridge, Mass.: Harvard University Press, 1991).

74. David M. O’Brien, “A Diminished Plenary Docket: A Legacy of the Rehnquist Court,”
Judicature (November/December 2005), 134–37, 183.

75. William H. Rehnquist, The Supreme Court: How It Was, How It Is (New York: William
Morrow, Inc., 1987), 253.

76. O’Brien, Storm Center, 195.

77. Rehnquist, The Supreme Court, 276.

78. Owen M. Fiss, “The Bureaucratization of the Judiciary,” Yale Law Journal 92 (1983),
1442; Wade H. McCree, Jr., “Bureaucratic Justice: An Early Warning,” University of
Pennsylvania Law Review 129 (1981), 777.

79. Conference of Chief Justices and National Center for State Courts, The History of the
Conference of Chief Justices (1949–2009) (Williamsburg, Va.: National Center for State
Courts, 2009); Robert W. Tobin, Creating the Judicial Branch: The Unfinished Reform
(Williamsburg, Va.: National Center for State Courts, 1999), 51–115.

80. Larry C. Berkson, “A Brief History of Court Reform,” in Managing the State Courts:
Text and Readings, edited by Larry C. Berkson, Steven, W. Hays, and Susan J. Carbon (St.
Paul, Minn.: West, 1977), 7–8.

81. Gregory J. Linhares, “Vision, Function, and the Kitchen Sink: The Evolving Role of
the State Court Administrator,” in Future Trends in State Courts (2012), edited by Carol R.
Flango, Amy M. McDowell, Deborah W. Saunders, Nora E. Sydow, Charles F. Campbell,
and Neal B. Kauder (Williamsburg, Va.: National Center for State Courts, 2012), 20–25.
Although many states let the chief justice of the court of last resort act as chief executive
officer for the judiciary, some states use judicial councils, where other members of the
judiciary sit on committees that establish policy, practices, and rules. A common format for
governance is what Robert Tobin calls a “modified executive model,” an arrangement that
allows the chief justice to remain in charge of administration but also permits the state
court administrator to use delegated authority to run court operations and to implement, to
the extent possible, established judicial priorities. Tobin, Creating the Judicial Branch, 105–
6.

182
82. Tobin, Creating the Judicial Branch, 105–6.

83. Fish, The Politics of Federal Judicial Administration, 32–33, 61–62, 125–45, 387. See
Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in the
Federal Judicial System (New York: Macmillan, 1928).

84. Russell Wheeler, “The Administration of the Federal Courts: Understanding the
Entities and Interrelationships That Make Federal Courts Work,” in The Improvement of
the Administration of Justice, 7th ed. (Chicago: Judicial Division, American Bar Association,
2001), 54–57. See Federal Judicial Center, “Federal Judicial Center,” available at
www.fjc.gov (last retrieved March 7, 2014).

85. Pew Research Center for the People and the Press, “Partisan Polarization Surges in
Bush, Obama Years” (June 4, 2013) (Washington, D.C.: Pew Research Center for the
People and the Press, 2012), available at www.people-press.org (last retrieved March 7,
2014). See Bush v. Gore, 531 U.S. 98 (2000).

86. For example, at year’s end, state courts give speeches to political elites and publish
“state of the judiciary” reports to push for changes, and sometimes they have a decidedly
political bent. In 2014, the New York chief judge identified several progressive reforms as
top legislative priorities, including stopping wrongful convictions and creating diversion
programs for youth offenders instead of charging them as adults. Similarly, the U.S.
Supreme Court’s chief justice publishes an annual year-end report to lobby Congress and to
draw attention to certain issues, such as improving judicial salaries. More so than past chief
justices, Chief Justice John Roberts has prioritized asking for pay increases, whereas former
Chief Justices Warren Burger and William Rehnquist have favored requesting additional
judgeships. Yet Roberts has not been particularly successful in promoting or achieving his
year-end agenda requests, leading some scholars to speculate, “Roberts does not embrace
the administrative duties of the position like his predecessors.” See Vining and Wilhelm,
“The Chief Justice as Advocate-in-Chief,” 274 (see also Table 3, 273). See also Jonathan
Lippman, “The State of the Judiciary 2014: Vision and Action in Our Modern Courts,”
available at www.nycourts.gov (last retrieved March 8, 2014); Chief Justice John Roberts,
“2013 Year-End Report on the Federal Judiciary,” available at www.supremecourt.gov (last
retrieved March 9, 2014), 3.

87. See, e.g., National Center for State Courts, “Trends in State Courts: 2013,” available
from www.ncsc.org (last retrieved March 8, 2014); Judicial Conference of the United
States, “Strategic Plan for the Federal Judiciary” (September 2010), available from
www.uscourts.gov (last retrieved March 8, 2014); and Judicial Conference of the United
States, “Long Range Plan for Information Technology in the Federal Judiciary,” available
from www.uscourts.gov (last retrieved March 8, 2014).

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Chapter 4 Judicial Selection and Removal

IN THINKING ABOUT JUDICIAL SELECTION, SUPREME COURT JUSTICE

ANTONIN SCALIA once said, “Diversity is good to have, but should not come at the
expense of quality.” As he explained, “I don’t think there’s such a thing as a woman judge
or a man judge or an Italian-American judge or an Anglo judge. There are good judges, and
there are bad judges.”1 Yet in filling the vacancies created by the retirements of Justices
David Souter and John Paul Stevens, President Barack Obama selected the Court’s first
Latino justice (Sonia Sotomayor) and picked only the third (Sonia Sotomayor) and fourth
(Elena Kagan) women to sit on the Supreme Court since 1789 (the first two were Justices
Sandra Day O’Connor and Ruth Bader Ginsburg). While mindful of quality, President
Obama pushed to diversify the lower federal courts as well, filling vacancies with more
women, minorities, and openly gay nominees than any prior president.2

In addition, Justice Kagan’s appointment is politically significant because she lacked prior
judicial experience, a touchstone criterion for most recent presidents. Neither Kagan nor
Sotomayor were particularly controversial, so their political “confirmability” was reasonably
certain. As a result, and perhaps as opposed to Justice Scalia’s viewpoints, President Obama
made diverse and ideologically moderate appointments that were unlikely to generate
political conflict. In this respect, Obama’s record on judicial selection is similar to that of
Democratic Presidents Bill Clinton and Jimmy Carter.3

In comparison, his predecessor, President George W. Bush, made ideological appointments

that often caused political conflict. During his presidency, Bush packed the federal courts
with political ideologues who favored strict construction and a philosophy of judicial
restraint. In response, Democrats in the Senate retaliated by using filibusters as a means to
prevent up-or-down votes on Bush’s nominees.4

President Bush’s two Court appointments demonstrated his commitment to selecting like-
minded conservatives regardless of the political cost. Following the death of Chief Justice
William Rehnquist and the subsequent retirement of Justice Sandra Day O’Connor, Bush
picked two white men to fill the chief justiceship and associate justice vacancies: John G.
Roberts, Jr., a well-known Supreme Court litigator and D.C. Circuit judge, and Samuel
Alito, a veteran Third Circuit appellate judge, both of whom had served in the Reagan
administration’s Department of Justice. In contrast to Obama’s appointees, Bush’s
nominees were slightly more controversial, although their confirmability never seemed in
doubt.5 Still, on a variety of social issues, such as campaign financing reform, abortion,
racial equality, voting rights, and religious freedom, both have proven faithful to Bush’s
conservative agenda. Furthermore, although Bush tried to diversify the federal judiciary,
that was less significant than packing the lower federal courts with nominees who, in his

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words, “faithfully interpret the Constitution...and [do] not use the courts to invent laws or
dictate social policy.” In this respect, Bush’s ideological approach to judicial selections was
similar to the politically strategic approach taken by presidents Ronald Reagan and Richard
M. Nixon.6

The contrasting presidential styles of Obama and G. W. Bush register how the federal
judicial selection process has become highly politicized in recent years. That trend, perhaps,
is even more apparent in state judicial selection processes that have increasingly become
political battlegrounds, which in turn may diminish judicial impartiality and independence.
This chapter explores the politics of judicial selection by examining (1) the different
methods of judicial selection in the states, (2) the appointment politics of filling vacancies
on the federal bench, and (3) whether there should be reforms affecting judicial retirement,
discipline, and removal.

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Staffing State Courts
The debate over how to select judges originated during the American Revolution. In the
colonies, royalist judges were appointed by the Crown and perceived to be corrupt and
tyrannical. The Declaration of Independence thus identified royalist judges as one of several
grievances against the King of England, stating that he “made Judges dependent on his Will
alone, for the tenure of their offices, and the amount and payment of their salaries.” That
objection highlighted the need to separate the judiciary from the executive and legislative
branches. Still, judicial independence—the principle requiring the insulation of courts
from the ordinary political processes—had to be balanced with judicial accountability—
that courts and judges are democratically accountable. Historically, both directly condition
the role of courts and judges in the legal and political system.7

In historical perspective, after the Constitution’s 1789 ratification, judges were appointed
either by the legislature or by the governor in all thirteen states. Judges were given some
measure of independence through the imposition of tenure for “good behavior” and fixed
or “adequate” salary provisions. But judges were also subject to impeachment and removal
for misconduct or abuse of power.8

Some states, however, began to change their judicial selection processes during the era of
Jacksonian democracy—the populist reform movement beginning in the 1830s. Economic
crises in the states led to political reform proposals to strengthen and democratize courts
across the country in the 1840s and 1850s. Many populist reformers thought that having
judicial elections would secure judicial independence from the political branches and
empower the courts to protect the people from corrupt elected officials and state legislatures
—who were thought to be responsible for the economic crises that damaged the country.9

By the Civil War, twenty-three of the then thirty-one states elected all or some of their
judges. Most states held partisan elections. However, the problem of cronyism and the
growing impact of political parties soon overwhelmed the states’ judicial selection systems.
A major criticism of appointive and electoral systems was that they made judges too
dependent upon politicians. That dependency was made worse because the electorate
generally lacked knowledge about judicial candidates. The problems of voter ignorance,
political bias, and corruption were magnified because judges campaigned to get elected,
which created an appearance of impropriety.10

Consequently, in the early twentieth century, there was a movement to take the politics out
of judicial selection through the adoption of nonpartisan ballots—ballots omitting the
partisan affiliation of judicial candidates.11 Another reform focused on judicial candidates’
qualifications and the adoption of some form of judicial “merit” plan. These plans allowed
the governor to make an appointment from a list of nominees that was generated by a

186
nonpartisan nomination commission (a panel composed of public officials, lawyers or
judges, and citizens). After the appointment and a term of service by the judge,
subsequently voters would have the choice to let the judge continue to serve after an
uncontested retention election.12

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Merit Judicial Selection Systems
In 1913, the American Judicature Society (AJS) developed the prototype of state “merit
judicial selection” systems. It featured the appointment of lower court judges by state court
chief judges who made their selections from a preapproved list of candidates compiled by a
judicial council or commission. States then could hold periodic retention elections with
judges retaining their seats only if they received a majority vote in an unopposed,
nonpartisan election. Retention elections differ from ordinary elections because voters
ostensibly evaluate the judge’s record instead of comparing the judge to another challenger.
The AJS reform was styled as a “nonpartisan court plan” on the premise that it would
attract highly qualified lawyers to the bench while fostering public participation through
voting behavior. In 1926, political scientist Harold Laski modified the plan’s design. Under
Laski’s version, a multimember advisory board, picked by judges, prepared a slate of
candidates for selection by the governor, and appointments were made subject to Senate
confirmation.13

In 1934, California became the first state to adopt a version of the merit plan, but it
differed from the AJS version in one important respect. As originally proposed, the plan
called for the governor to pick a judge from a list of candidates proposed by a nominating
panel composed of judges and prosecutors, with a retention election held at the next
general election. Under the so-called California plan, however, the governor’s office (not a
commission) first compiled the list of candidates. Thereafter, the nominating panel,
consisting of the chief justice, the presiding judge of a district court of appeal, and the
attorney general, reviewed and approved (or rejected) the governor’s appointment. Also, at
the next general election, a noncompetitive retention election was held. With only the
judge’s name on the ballot, voters were given a “yes” or “no” option for retention. Judges
who were retained subsequently served a twelve-year term (instead of for life, as the AJS
originally proposed). By giving the governor more control over judicial selection at the
initial stages, California’s merit plan increased the governor’s powers to pick nominees
sharing his or her political ideology; still, it also limited judicial service to a fixed term.14

Shortly thereafter, the American Bar Association (ABA) endorsed the AJS type of merit
plan—one that allowed the nominating panel, and not the governor’s office, to compile the
initial list of judicial candidates for gubernatorial appointment. While several other states
considered the reform, only Missouri, in 1940, adopted the ABA-endorsed appointment-
elective plan. Under the so-called Missouri merit plan, a multimember nomination
commission (consisting of citizens and attorneys) proposes a list of three candidates whose
choice is then ratified or rejected in an unopposed, nonpartisan retention election held in
the next general election. For appellate judges, a favorable vote guarantees a twelve-year
term, whereas other judges are elected for six-year terms. If a judge is voted out of office,
the commission compiles another list from which the governor fills the vacancy. Since

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Missouri’s adoption of its merit plan, twenty-three other states have adopted some version
of merit selection for some or all of their judges. With the exception of Hawaii, every one
of those states chose to add a retention election to let voters decide if judges should remain
on the bench.15

The prospect of a depoliticized system of state judicial selection through the adoption of
merit plans has, nonetheless, diminished over time. Even the Missouri merit plan, which
for years was the “model system for merit selection in states across the country,” has been
under sharp political attack.16 While “judicial merit plan” supporters contend that they
limit gubernatorial control over appointments and ensure that the public has a role in
removing judges through retention elections,17 critics counter that merit systems are flawed
because they grant a “functional equivalent of life tenure” due to the legal profession’s
dominance on judicial commissions, and judges facing retention elections rarely face any
opposition. Accordingly, judicial merit selection systems are facing growing legislative
scrutiny and possible reform.18 Although twenty-four states still retain merit judicial
selection, only five states—Alaska, Colorado, Iowa, Nebraska, and Wyoming—continue to
use an apolitical classic merit plan format (Figure 4.1).

The remaining nineteen states have partial merit systems (quasi-federal systems that give
governors or legislatures more control over judicial selection) or hybrid merit systems
(systems that combine merit with other methods at different levels of the judiciary). Under
partial merit systems, a judge may be selected by a gubernatorial appointment and a
nomination commission (i.e., merit), but the appointment is subject to additional executive
or legislative approval. Accordingly, governors may add or remove judicial nomination
commissioners, or governors or legislatures may reappoint judges instead of letting them
face a retention election. Another common variation is to allow governors to appoint judges
with senatorial consent.19 On the other hand, hybrid merit systems combine appointment
or election methods to select or retain judges at different levels of the judiciary. Among all
types of merit systems, ten states have adopted hybrid merit, thus making it the
predominant method of merit-based judicial selection (Figure 4.1).20

Figure 4.1 Judicial Selection and Retention in the States

189
Source: Derived from American Judicature Society, “Judicial Selection in the States:
Appellate and General Jurisdiction Courts,” available from
www.judicialselection.us/uploads/documents/Selection_Retention_Term_1196092850316.pdf
(last retrieved March 23, 2014).

190
Judicial Election and Appointment Systems
Apart from merit systems, twenty-two states use partisan, nonpartisan, or mixed election
systems. In partisan elections, the judge’s political affiliation appears on the ballot. For
nonpartisan elections, it is absent. One state, Michigan, has a mixed election system:
nonpartisan elections are held to pick trial and intermediate court of appeals judges, but
partisan nomination and nonpartisan elections determine who will sit on Michigan’s court
of last resort. Of the states with judicial elections, thirteen hold nonpartisan elections for
their judges—the dominant method.21 By contrast, four states (California, New Jersey,
South Carolina, and Virginia) allow the governor or legislature to appoint judges (Figure
4.1).

In sum, all but four states use either merit or elective systems. Of the two methods, merit
plans are responsible for staffing some or all of the courts in more states, but judicial
elections are still widely used. Although merit plans remain the preferred reform method to
take the politics out of judicial selection,22 several states are actively trying to pass new laws
in order to reduce their effectiveness in depoliticizing judicial selection.23 The recent
movement toward diminishing merit selection and retention processes underscores the
difficulties of striking an appropriate balance between judicial independence and judicial
accountability. In short, politics cannot be entirely removed from the judicial selection
process; courts are always vulnerable to political attacks when they make politically
unpopular decisions.24

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The Politicization of Judicial Campaigns
Despite merit selection systems, most state judges face some type of election. Moreover,
state judicial selection and retention has become increasingly politicized. Judicial races are
getting “nastier, nosier, and costlier” since the 1980s.25 Special interest groups have become
an established part of judicial campaigns and elections, typically pitting trial lawyers and
labor unions against the insurance industry and the business community. Dysfunctional
national politics, and heightened partisanship across the states, has allowed groups to
become especially influential in what have become judicial election wars. For example,
three Iowa Supreme Court justices lost their 2010 retention elections because three national
organizations—the American Family Association, the National Organization for Marriage,
and the Campaign for Working Families—spent over $800,000 to remove them because
they voted in favor of same-sex marriage.26

In 2011–2012, the first full election cycle since the Supreme Court’s ruling in Citizens
United v. Federal Election Commission (2010)—a decision that permitted unlimited
corporate and labor union spending in federal elections but also led to removing restrictions
on campaign spending in about half the states—judicial candidates raised a total of over
$56 million in state supreme court elections. The most money was spent in battleground
states, like Alabama, Michigan, Florida, North Carolina, Ohio, and Wisconsin. In these
states and a growing number of others, contested (partisan and nonpartisan) supreme court
elections have had an influx of negative television advertisements. Unlike past election
cycles, much of the mudslinging was the result of independent spending by super PACs—
so-called 501(c)(4)s, or social welfare organizations (which do not have to disclose their
donor under the tax code) and political parties that use social media venues (e.g., Facebook,
Twitter, and YouTube) and television to get their message to voters. Of the $56 million
spent in 2011–2012, 57 percent was by candidates, but special interest groups accounted
for 27 percent, and political parties spent 15 percent on judicial races.27

The judicial media campaigns are invariably negative. In 2011–2012, for instance, a
Michigan Democratic Party ad accused a judicial candidate of having “worked to deny
benefits to a cancer patient,” while an ad from the Judicial Crisis Network (a conservative
Washington, D.C., group) claimed another candidate had “volunteered to free a terrorist”
because she sought to provide legal representation to a Guantánamo Bay detainee. In the
same campaign cycle, justices who unanimously legalized same-sex marriage in Iowa in
2009 were labeled “open enemies of God” by a conservative radio host. The Justice for All
Political Action Committee, composed of trial lawyers and labor groups, broadcast an ad
accusing a Republican judicial candidate of being too lenient on criminals because he gave
probation to kidnappers who “tortured and nearly beat a ninety-two-year-old grandmother
to death.”28

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In short, state judicial elections, which ensure judicial accountability, foster political attacks
that may mislead voters about the merits of a judge and, therefore, actually diminish
judicial independence. The problem is compounded by two other interrelated factors: low
voter information and the high retention rates of judges. One study of retention elections
in ten states between 1964 and 1994 found that most judges are retained in office, except
in the rare instance when a portion of the electorate targets a judge for defeat. Indeed, only
fifty judges, or 1.3 percent, were defeated in that period. Furthermore, the average rate of
“voter rolloff”—the portion of voters who vote for the lead partisan office on the ballot, but
omit voting for the judicial retention candidates—was 34.5 percent. In other words, a
significant portion of voters do not bother to cast a vote for judges, even though they do so
for other nonjudicial candidates. Accordingly, in the “typical retention election there is
little voter differentiation among the judges and they are all routinely returned to the bench
for another term.”29 Although it is unclear what prompts voters to target and remove a
particular judge, studies indicate that the electorate is constrained due to a lack of
information or confused about judges’ performance, or even the nature of the election
process itself.30

The politicization of judicial campaigns also presents special ethical problems for judges.
Although they are bound by ethical rules to remain impartial and independent from the
political influence, they are nonetheless forced to engage in campaigns increasingly infused
with negative advertising. Until the decision in Republican Party of Minnesota v. White
(2002),31 judges on the campaign trail could not announce their views on disputed political
or legal issues on the grounds that it would compromise their impartiality. But White held
that judicial candidates who wish to express their political viewpoints in judicial elections
deserve First Amendment protection. (See the “In Comparative Perspective” box in
Chapter Nine for further discussion.) In response, the federal and state judiciaries, along
with the American Bar Association and many state bar associations, have wrestled with
White’s implications and whether it is permissible for judges to engage in aggressive
political campaigning.

Some critics believe White “threatens to turn judges into a set of politicians in black
robes.”32 In this respect, White did promote the image of justice “for sale.” Still, at least in
theory, unethical judicial behavior is subject to constitutional limitations and state judicial
codes of conduct.In Caperton v. Massey Coal Company (2009), the Supreme Court held that
judges who receive large campaign donations and have a personal stake in the outcome
must recuse, or disqualify, themselves from the proceedings if there is a “serious risk of
actual bias.”33 Moreover, research on White’s impact has found that it has not generated
more contested elections. Also, for some scholars, judicial elections actually enhance, rather
than diminish, institutional legitimacy.34

Furthermore, White’s long-term impact remains uncertain because state legislatures, courts,
and bar associations have struggled with determining its scope and application in judicial

193
elections. A few states, including Arkansas, have actually changed their selection systems
from having partisan to nonpartisan elections.35 Other states, such as North Carolina,
amended their judicial conduct rules and made it easier for judicial candidates to engage in
overt political activity. Georgia amended its canons by eliminating its “pledge or promise”
clause. However, other states (like Missouri and Texas) have strengthened prohibitions on
judicial candidates making campaign pledges, promises, or commitments.36 In other words,
although White invalidated Minnesota’s “announce clause,” the ruling has prompted
further litigation over whether judges may directly raise money, negatively attack
opponents, “mislead” or “misrepresent” qualifications, or make “pledges or promises” or
“commitments.”37

Thus far, state and federal courts applying White have not been uniform in their responses,
but most seem inclined to allow for greater political activity so long as judicial candidates
do not make pledges, promises, or commitments to vote a particular way once on the
bench.38 Notably, some federal courts have interpreted White to permit judicial candidates
to make direct appeals to voters and actively engage in fund-raising during campaigns.39 In
addition, at least fifteen states and ten local communities have formed campaign conduct
committees to oversee judicial election practices—they operate in official or informal
capacities to provide information and advice to candidates about what constitutes ethical
campaign behavior in the judicial context.40 Also, an ABA report, Justice in Jeopardy, argues
that states should adopt merit-based appointive systems.41 The ABA also recommends
nonpartisan judicial elections and public financing of judicial campaigns or, alternatively,
campaign contribution limits, as well as the distribution of voter guides, based on judicial
performance evaluations. Over twenty states and jurisdictions have instituted an official
system of judicial performance evaluation, but the methods and procedures for doing so
vary widely.42 Yet, only a few states—New Mexico, North Carolina, West Virginia, and
Wisconsin—have tried to sustain public financing programs for some or all judicial
elections.43 Moreover, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)
cast doubt about the constitutionality of some public financing programs by nullifying
Arizona’s publicly funded matching program—designed to help underfunded candidates
compete with over-resourced competitors by giving them the same amount of public
money that a self-financed candidate can raise and spend.44

194
Staffing Federal Courts
For federal courts, the president has the power to select and the Senate the power to
confirm or reject the appointment of federal judges. The specific steps and the roles of the
main political actors in the process are considered here.

195
The Framers and Judicial Selection
Article II declares that the president has the power “by and with the Advice and Consent of
the Senate” to appoint “Judges of the supreme Court, and all other officers of the United
States.” Significantly, the president also has authority “to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions which shall expire at the
End of their Next Session.”

In The Federalist Papers, Alexander Hamilton argued that the president’s “sole duty” was to
nominate judges. The Senate, on the other hand, rendered “advice and consent” and only
“ratify or reject the choice” of the president. In Hamilton’s view, the Senate was “an
excellent check upon a spirit of favoritism in the President, and...to prevent the
appointment of unfit characters from State prejudice, from family connection, from
personal attachment, or from a view to popularity.”45 The Framers’ decision to give the
president authority to fill vacancies when the Senate is adjourned in recess—and, thus, to
make temporary judicial appointments that lapse at the end of the next congressional
session unless they receive Senate confirmation—is further evidence that judicial
appointments were envisioned to be the result of negotiated compromises. Moreover,
because Article III judges basically enjoy life tenure, presidents have increasingly turned
federal judgeships into a way to extend their political legacy beyond their time in the White
House. At the same time, the Senate also realized how valuable judgeships are as patronage
tools.

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Ideology or Merit?
Although all presidents seek qualified and meritorious judicial candidates who will
withstand Senate scrutiny, a host of interrelated political factors drive the selection and
confirmation processes. Before announcing their nominations, presidents generally base
their selection decisions on ideological considerations and political expediency. As political
scientist Henry J. Abraham emphasized, nominees should demonstrate “objective merit”: a
proven judicial temperament; professional expertise and competence; personal and
professional integrity; an able, agile, and lucid mind; appropriate professional educational
background or training; and the ability to communicate well, both orally and in writing.
But Abraham also notes that Supreme Court appointments are often affected by the
president’s personal relationship to the candidate, the nominee’s political compatibility
with the president, and whether the president believes the selection brings a geographic,
racial, gender-based, or religious balance to the Court.46 In his study of circuit court
appointments, political scientist J. Woodford Howard likewise found similar criteria.
Personal competence, extensive political participation, personal ambition, and a “pinch of
luck” all contribute to securing a federal judgeship.47

Although “objective merit” or “professional competence” is a part of a president’s criteria,

the terms are not entirely useful (and may be misleading) in describing the process of
federal judicial selection. For one thing, defining merit is notoriously difficult because “a
credible case can be made for the competence of almost any nominee.”48 Further,
emphasizing merit-based explanations obscures the reality that all appointments are
inescapably political, and presidents generally try to “pack” the courts with their preferred
nominees. Indeed, political scientists George L. Watson and John A. Stookey argue that
finding the most qualified candidate is “the motivation least likely to drive presidential
considerations” in selecting judges.49 Exceptionally qualified nominees, such as President
Ronald Reagan’s nomination of Robert Bork to the Supreme Court in 1987, are
meritorious selections, but the Senate nonetheless rejected Bork as ideologically “out of the
mainstream.”

In short, federal judge recruitment is more complex and usually based on a combination of
four broad considerations: (1) a candidate’s professional competence; (2) whether the
selection is a patronage-based reward for those loyal to the party; (3) “representative”
factors, such as religion, race, ethnicity, and gender, or in the past geographical balance on a
court; and (4) whether a nominee’s ideological orientation is likely to promote the
president’s legal policy goals over the long run. Moreover, presidents assign different
priorities to these factors in their judicial selections, depending upon the level of the court,
and the amount of political opposition they are likely to encounter in the Senate.50 As a
result, federal judicial selection is best described in terms of three general types of
presidential selection models: the classic Democratic, Bipartisan, and Republican

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ideological judicial selection models.

The classic Democratic model—embraced by Presidents Franklin D. Roosevelt, Harry

Truman, John F. Kennedy, and Lyndon B. Johnson—de-emphasizes the pursuit of specific
policy agendas and, instead, emphasizes rewarding party faithful and political patronage in
making judicial appointments. Besides, patronage and a candidate’s professional
qualifications is sometimes symbolic representation. President Johnson’s selection of the
Court’s first African American justice, Thurgood Marshall, is illustrative, as is his
appointing to the Court a close friend, Jewish justice Abe Fortas, to replace another Jewish
justice, Arthur J. Goldberg.51

The Bipartisan approach, on the other hand, puts a premium on the nominee’s professional
competence while emphasizing, to some degree, patronage or symbolic representation
characteristics like race or gender. Republican presidents Dwight D. Eisenhower and
Gerald R. Ford, along with Democratic presidents Jimmy Carter, Bill Clinton, and Barack
Obama, took this approach to judicial selection. With the exception of President Clinton,
these presidents delegated to their attorney generals the job of judicial selection based on
merit and not stringent ideological considerations. In addition, these presidents placed a
premium on confirmability in the Senate, because they either were unelected (Ford) or
faced strong opposition in the Senate to more ideological appointees.52

Finally, Republican presidents Richard M. Nixon, Ronald Reagan, George H. W. Bush,

and George W. Bush tended (more or less) to give highest priority to ideological
considerations because they viewed judgeships as symbols and instruments of presidential
power. For these presidents, their policy agenda was the touchstone for judicial selection.
As a result, rewarding party faithful and even professional qualifications was less critical.
Nixon made judgeships symbols of presidential power and vowed to appoint only judges
who would exercise “judicial restraint” (in contrast to the “judicial activism” of the Warren
Court) and advance his “law and order” policy agenda, a centerpiece of his 1968
presidential campaign. He was not entirely successful, and for that reason Reagan’s
administration adopted a more rigorous judicial selection process for the appointment of
conservative lower court judges and justices—hence the elevation of Justice Rehnquist to
the chief justiceship and the appointment of Justice Scalia.53 Likewise, President George
W. Bush gave high priority to appointing judges based on their conservative ideology, as
with the naming of Judge John G. Roberts to fill the seat of Chief Justice Rehnquist and in
appointing Judge Samuel Alito to fill Justice O’Connor’s seat, despite countervailing
pressures to appoint another woman or Hispanic.

Regardless of which approach is taken, the federal judicial selection process begins with the
president’s staff initiating a search for an acceptable nominee and conducting a preliminary
screening process. Vetting a candidate helps in ensuring that the nominee will withstand
Senate review, though it does not guarantee confirmation success. The subsequent Senate

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confirmation process is no less fluid and dynamic. Any number of political factors—
including presidential style and power; the Senate’s political composition, and especially
whether the president and the Senate majority are from opposite political parties; and
organized interest activity; as well as the media, public opinion, and the electorate’s
polarization—may trigger strong opposition and defeat confirmation. The nomination and
confirmation process is outlined in Figure 4.2, and we give a more detailed examination in
the following sections.

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The Nomination Process
Since the New Deal and FDR, the president’s closest advisors in the White House and the
Department of Justice have largely controlled the selection process. Although most
presidents have taken a keen interest in personally making Supreme Court appointments,
all routinely rely on DOJ attorneys for generating a list of names of acceptable candidates.
Much of this behind-the-scenes activity usually occurs either before or immediately after a
vacancy arises on the bench.54

Though the procedure for compiling a list of nominees varies from president to president,
all modern presidencies from Jimmy Carter to Barack Obama have delegated the initial
selection process, though with different legal policy goals in mind (see Table 4.1). Each
president, of course, sets priorities for the selection process. The Carter and Reagan
presidencies are especially significant in highlighting sharply different presidential priorities
and how those priorities changed the process.

President Carter’s chief objective was the appointment of qualified nominees who would
diversify the federal bench. After striking a deal with the powerful chair of the Senate
Judiciary Committee (SJC), James Eastland (D-MS), Carter issued an executive order
establishing that federal appellate court judgeships were to be initially recommended by
nominating or “merit” commissions, composed of a diverse mix of genders, minorities,
lawyers, and nonlawyers. Subsequently, Congress enacted the Omnibus Judgeship Act of
1978, creating 152 new judgeships. And that inspired a second executive order encouraging
senators to set up their own nominating commissions for district court vacancies. But,
because of protracted resistance by some senators to Carter’s initial circuit court plan,
Carter could only ask them to cooperate on a voluntary basis, and in the end only about
thirty senators did so.55

Figure 4.2 The Nomination and Confirmation Process for Federal Judges

200
201
202
 Legend: DOJ = Department of Justice; ABA = American Bar Association.
Source: Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni, “Obama’s First Term Judiciary: Picking Judges
in the Minefield of Obstructionism,” Judicature 97 (2013), 7–47; Sheldon Goldman, Sara Schiavoni, and Elliot
Slotnick, “W. Bush’s Judicial Legacy: Mission Accomplished,” Judicature 92 (2009), 258–88; Sheldon Goldman,
“Clinton’s Judges: Summing Up the Legacy,” Judicature 84 (March/April 2001), 228–54; Sheldon Goldman,
“Bush’s Judicial Legacy: The Final Imprint,” Judicature 76 (April/May 1993), 282–97; Sheldon Goldman,
“Reagan’s Judicial Legacy: Completing the Puzzle and Summing Up,” Judicature 72 (April/May 1989), 318–30;
Sheldon Goldman, “Carter’s Judicial Appointments: A Lasting Legacy,” Judicature 64 (March 1981), 341–55.

Carter’s initiatives achieved diversity on the bench and were historic, but had mixed
success. Although he appointed an unprecedented number of women, African Americans,
and other minorities, Carter alienated powerful senators who strongly opposed
relinquishing the traditional patronage practice of deferring to their recommendations on
the selection of lower court judgeships. Moreover, the merit commissions did little to
depoliticize the selection process. Not only did Carter personally select who sat on the
commissions, but also many of the judicial candidates were asked questions about their
views on divisive social issues, such as affirmative action, women’s rights, abortion, capital

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punishment, and desegregation.56 Those inquiries were part of an unparalleled attempt to
vet judicial candidates on the basis of how they would decide controversial cases. Ironically,
that contributed to the Reagan administration’s adoption of an even more rigorous
screening process. Even though Carter and his attorney general Griffin Bell did not make a
candidate’s ideology the primary criteria for selection, the reality was that most judgeships
went to party faithful: 94.1 percent of Carter’s district court judges and 89.3 percent of
circuit court judges were Democrats.57 Likewise, though, Republican presidents rarely cross
party lines.

Initial Prenomination Vetting of Nominees

“Most presidents name justices who, they think, will vote the way they would vote. That is
what I would do were I president.” Those words of liberal justice William O. Douglas
capture the thrust of Reagan’s approach to judicial recruitment. Like Carter, the Reagan
administration’s staffing of the federal bench broke with convention, but in a different way.
The selection process became centralized in the White House with the creation of the
Federal Judicial Selection Committee, chaired by the White House counsel and composed
of administration attorneys with oversight responsibility for personnel and legislative affairs,
as well as legal policy. The committee worked in conjunction with the DOJ’s newly created
Office of Legal Policy, which initially screened all potential nominees. Critics charged that
the Reagan administration imposed an “ideological litmus test,” requiring not just loyalty
to the Republican Party, but also a commitment to the conservative “Reagan revolution.”
To an unprecedented degree, the Reagan White House and Justice Department sifted
through the political and professional qualifications of candidates by inspecting their
written record (past judicial opinions, academic writings, and written commentary) and
conducting personal interviews to discover their ideological compatibility. In the process,
the ABA’s prenomination advisory role, which began with the Eisenhower presidency, was
greatly reduced.58

Reagan’s more rigorous and ideological judicial selection process had an enormous, long-
lasting impact. Reagan appointed 290 district and 78 circuit court judges, for a total of 368
lower federal court judges. Reagan also elevated Justice William H. Rehnquist (the Court’s
most conservative justice) to chief justice and named Justices Sandra Day O’Connor,
Antonin Scalia, and Anthony Kennedy. Not a single nominee from the Democratic Party
was put on a circuit court during his two administrations; no prior president (Republican
or Democrat) had done that since the administration of Warren G. Harding. Overall, the
voting behavior of Reagan’s judges extended a conservative revolution started by Nixon and
reinvigorated by George W. Bush’s judicial appointees.59

The changes made during the Carter and Reagan years established the basic framework and
process for subsequent administrations. Presidents George H. W. Bush, Bill Clinton, and
George W. Bush anchored their selection processes in the White House and DOJ and used

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vetting processes spearheaded by a judicial selection committee. Although George H. W.
Bush dismantled the DOJ’s Office of Legal Policy, Presidents Clinton and George W. Bush
revived its role in screening judicial nominees. All three administrations relied upon
recommendations made from a judicial selection committee. Moreover, unlike the H. W.
Bush and Clinton presidencies, George W. Bush’s administration also drew on the
conservative Federalist Society and gave it a voice in judicial selection. In contrast, the
Obama administration relied less on interest group input (other than the ABA) and avoided
using a judicial selection committee. Instead, prospective nominees were vetted in a
collaborative process involving the White House Office of General Counsel, the DOJ’s
Office of Legal Policy, and the White House Office of Legislative Affairs.60

Every president since Reagan has relied on White House and DOJ counsel to oversee the
vetting process. The vetting process includes examining a potential nominee’s professional
qualifications, financial status, physical condition, and judicial philosophy, along with past
work experience and written record (academic writings, judicial opinions, or political
commentary). That has come to requiring potential nominees to complete lengthy
questionnaires from the DOJ, the American Bar Association, the Federal Bureau of
Investigation, and the Internal Revenue Service. Supreme Court nominees are interviewed
by administration staff and taken to senators’ offices in “courtesy calls” on influential
senators; recently, lower court nominees have also been interviewed. Typically, DOJ
attorneys also seek out the views of members of Congress, state governors, and state or local
bar associations, as well as interest groups that have a keen interest in judicial selection.61

The Role of the American Bar Association and Its Ratings

With the notable exception of George W. Bush’s presidency, since 1956, all presidents have
solicited an informal evaluation of potential nominees from the American Bar Association,
which has rated every judicial candidate since the Eisenhower administration. In 2001,
Bush stopped sending nominees’ names to the ABA, arguing that the organization should
not be given a special advising role and that it was too liberal, though that policy was
reversed by Obama. In any event, the ABA remains an active player in confirmation
politics, because its evaluations are still used by Democrats on the Senate Judiciary
Committee and, for them, that is a prerequisite to beginning the confirmation process.62

The ABA’s Standing Committee on the Federal Judiciary has fifteen members appointed by
the president of the ABA for staggered three-year terms. It rates candidates as well qualified,
qualified, or not qualified, after examining their professional qualifications. In addition,
members of the committee disclose whether a rating carries a substantial majority,majority,
or minority designation.63 At a minimum, the ABA’s assessment of judicial nominees
ensures scrutiny of a candidate’s merits. To be sure, critics have sometimes charged that the
ABA’s rating is politically biased and should not be part of the judicial selection process.64

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Senatorial Courtesy and the “Blue Slip”
The Senate Judiciary Committee also screens judicial nominees. The SJC ‘s investigation of
candidates may greatly affect the fate of nominees. The views of senators from a nominee’s
home state are guaranteed by two closely guarded Senate traditions: senatorial courtesy
and the blue slip procedure.

Traditionally, senatorial courtesy necessitated that presidents consult with senators from a
nominee’s home state prior to the nomination. The practice dates back to George
Washington’s administration. Senators from a candidate’s home state and the president’s
party may effectively derail a nomination by objecting to it. An objecting senator declaring
that a nomination is “personally obnoxious” usually invokes senatorial courtesy on the
Senate floor.65 Senator Orrin Hatch (R-UT), who chaired the SJC when Clinton was in
office, has said that “there was no way to confirm those nominations without completely
ignoring the senatorial courtesy we afford to home state Senators in the nomination
process.”66

Senatorial courtesy has less force in filling circuit court vacancies because circuit courts have
jurisdiction over more than one state, unlike district courts. Recently, however, some
senators have tried to exert greater influence over the selection of circuit court judges. An
open letter from the Republican caucus put Obama on notice when he assumed office that
they would aggressively prevent confirmations if Republican home-state senators were not
consulted—a public threat registering an expectation that the blue slip custom gave the
Republican minority “de facto veto power” over the selection process.67

The blue slip custom is a manifestation of and reinforces senatorial courtesy. Since the
1940s, when the president formally sends a nomination to the Senate, the chair of the SJC
sends out a form (on blue paper) requesting the home-state senator’s opinion on whether a
nominee should be approved or opposed. The home-state Senator has two options: endorse
the nominee by returning the blue slip or block confirmation hearings by not returning it
(amounting to a “pocket veto”). As a result, the blue slip practice may be used defensively
or offensively and advance or hinder a president’s attempt to pack the courts.

Still, it matters a great deal whether the chair of the SJC honors the blue slip tradition. For
example, when Congress created a number of new judgeships during the Carter
administration, the SJC’s chair at the time, Senator Edward Kennedy, would not adhere to
the blue slip practice if used to delay or defeat a confirmation hearing. That move
eliminated any opposition to Carter’s appointments and improved the odds of a favorable
confirmation vote. But that changed when the Republicans controlled the Senate during
the Clinton administration and Senator Orrin Hatch (R-UT) chaired the SJC. Hatch
permitted home-state Republicans to use the blue slip to prevent or delay confirmation
hearings on several nominees. Notably, in anticipation that Democratic home-state senators

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would use blue slips to block President George W. Bush’s judicial nominees, Hatch
changed the blue slip practice again. Indeed, he simply ignored the tradition by holding
hearings even if Democratic home-state senators did not return blue slips. Moreover, Hatch
did not adhere to the practice with respect to court of appeals’ judgeships and only required
a single returned blue slip for letting district court nominees get hearings. Consequently,
the blue slip’s power for home-state Democrats in mixed-state delegations was undercut. In
response to criticisms of that change and following the Obama administration’s preference
for getting advance Republican clearance, Democratic chairman Patrick Leahy (R-VT)
returned to a more traditional blue slip approach: confirmation hearings were not
scheduled unless blue slips from both home-state senators were returned. Leahy defended
the tradition of honoring blue slips by saying, “As long as the blue slip process is not being
abused by home-state senators, then I will see no reason to change that tradition.” Yet, in
practice, Leahy’s blue slip procedure ironically gives two home-state Republican senators
virtually unlimited power to block Obama’s judicial appointments.68

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The Confirmation Process
After the president announces a nomination and the blue slip is not returned by a home-
state senator, the SJC holds hearings and makes a recommendation to the full Senate.
Historically, the Senate has confirmed 99 percent of all nominees, typically consisting of
tens of thousands of military and civilian appointments. That high rate of confirmations is
because the appointments are considered a presidential prerogative and most are for
nonpolicymaking positions.69 Similarly, most appointments for federal court vacancies are
routinely confirmed if a home-state senator does not object. A subcommittee of the SJC
typically spends little time on hearings—some last for five minutes or less. Barring
unexpected objections, the nomination is reported out of the committee and then moves to
the full Senate for a confirmation vote.

Still, the increasingly strident partisanship and growing dysfunctional governance in

Washington, D.C., has affected the historical norms and the prospect of “easy”
confirmations.70 The Senate’s confirmation vote has also been progressively influenced by
the media, special interest groups, and public opinion. As a result, presidential “court
packing” has become more contingent on the politics of convincing the SJC to consider
nominees without unnecessary delay or obstruction, and then reporting them to the Senate
for up-or-down votes.

The Confirmation Politics of Evaluating the Nominee’s

Merits
For the Supreme Court, and increasingly for circuit courts, the scrutiny given a nominee’s
merits during the confirmation process has become much more rigorous. Senate scrutiny
has intensified when opposition senators delay a nomination in the SJC or deny an up-or-
down vote by using filibusters—a procedure preventing legislative action by continuously
debating an issue on the Senate floor. In the aftermath of Bush v. Gore,71 Senate Democrats
filibustered ten Bush circuit court nominees, and in response, Republicans threatened to
invoke the so-called nuclear option—that is, preventing filibusters by rewriting the Senate
rules for closing the debate, and thus permitting a confirmation vote. In May 2005, the
White House and the so-called Gang of 14 senators (a bipartisan coalition) reached an
agreement on voting on nominees: a list of filibuster targets would be confirmed by a
simple majority vote in the Senate, so long as the President Bush agreed not to make any
more recess appointments.72

After Bush left office, the political calculus changed again, and the “Gang of 14 Agreement”
dissolved. When Obama entered the White House in 2008 and Democrats became the
Senate majority, the political tables turned, and Senate Republicans now in the minority

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began to filibuster disfavored Obama judicial nominees, thereby preventing up-or-down
votes. This time, however, after Republicans blocked three Obama appointments to the
powerful U.S. Court of Appeals for the District of Columbia Circuit and several
administrative appointees, Democratic Senate majority leader Harry Reid (D-NV) and
fifty-one other senators invoked the “nuclear option” of revising the Senate cloture rules to
allow a simple majority vote (instead of the sixty-vote supermajority that had been in force
for forty years) to stop a filibuster and permit a vote on nominees.73 That historic decision
to rewrite the Senate rules, though, is not likely to end the political controversy over some
judicial nominees and may still be circumvented by the use of “blue slips.” Moreover,
presidents retain the power to counter senatorial obstruction by making recess
appointments (see “Contemporary Controversies Over Courts: The Hardball Politics of
Filibusters, ‘Nuclear Options,’ and Recess Appointments in Federal Judicial Selection”).

Nominee John Roberts, Jr., testifies before the U.S. Senate Judiciary Committee during his
confirmation hearing to be Chief Justice of the U.S. Supreme Court in 2005.

U.S. Senate Historical Office

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Contemporary Controversies Over Courts

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The Hardball Politics of Filibusters, “Nuclear
Options,” and Recess Appointments in Federal Judicial
Selection
The appointment of federal judges has become increasingly hotly contested over the last forty years. The
judicial appointment process became more contentious for a number of reasons. The principal reason,
though, is divided government—when one party controls the presidency and the opposition party has a
majority, or even a hard-line minority unwilling to compromise, in the Senate. In addition, since President
Ronald Reagan’s administration in the 1980s, federal judgeships have become both symbols and
instruments of presidential power. Because judgeships are basically lifetime appointments, they offer
presidents the opportunity to appoint judges who are likely to carry on their ideological positions long after
they have left the Oval Office. As a result, the selection process became more rigorous. And, in turn, the
Senate confirmation process became more prolonged and contested, with the opposition party aiming to
thwart presidential attempts to pack the federal bench. Whether Democratic or Republican, the party in
opposition has increasingly sought to delay or deny confirmation votes. One indicator is the increasing
length of time from nomination to confirmation of district court judges: on average 60 days for Reagan’s
nominees, 135 days for Bill Clinton’s, 166 for George H. W. Bush’s, 178 for George W. Bush’s, and 223
for Barack Obama’s (in his first term and to 2014).

Other than specifying that the president shall make judicial appointments with the “advice and consent” of
the Senate, the Constitution is silent on the process of appointing judges—unlike the requirement of a two-
thirds majority vote for ratifying treaties, expelling members of either house, and approving proposed
constitutional amendments. In United States v. Ballin, 144 U.S. 1 (1892), the Supreme Court affirmed that
each house of Congress may make or change procedural rules by simple majority vote.

In 1789, the Senate permitted lengthy debate over nominees, subject to a simple majority vote to cut off
debate. But in 1837, senators in the opposition party began giving lengthy speeches in order to prevent
votes on legislation (and later also on judicial nominees). That practice became known as filibustering. The
increasing use of filibusters led to a series of changes in the Senate’s rules for voting on cloture—voting to
cut off a filibuster. In 1917, the rule for cloture votes was changed to require a supermajority of two-thirds
(67) of the entire Senate (if all 100 senators are present). Subsequently, that rule was changed in 1975 to
require a three-fifths vote (60 votes) to cut off filibusters. Still, as with other Senate rules, the rule on cloture
votes remains subject to change by a simple-majority vote.

The use of filibusters to obstruct confirming judicial nominees grew and heightened tensions between both
parties over what either deemed “extremist” or “out of the mainstream” judicial nominees. An indication of
the escalating conflict is that of the 168 cloture votes ever filed (or reconsidered) with respect to judicial and
other nominations, almost half occurred during Obama’s administration. By November 2013, Obama’s
nominees had faced 79 cloture votes, whereas during the preceding eight years George W. Bush’s nominees
confronted only 38 such votes. In addition, the attempted filibusters of nonjudicial executive appointments,
including the unprecedented one directed at preventing Chuck Hagel from entering the Pentagon as
defense secretary as well as a bevy of selections to assume leadership positions in the National Labor
Relations Board and the Consumer Financial Protection Bureau, only intensified partisan divisions and
made any hope for reaching a compromise on bipartisan grounds all but nearly impossible.

Consequently, in November 2013, Senate majority leader Harry Reid (D-NV) invoked the so-called
nuclear option—namely, changing the rule requiring a supermajority vote for cloture to requiring a simple-
majority vote for ending debate and proceeding to a vote on confirming judicial and other nominees, except
for those to the Supreme Court (or to ordinary legislation). That rule change was approved by a vote of 52
to 48, with all Republican and three Democratic senators voting in opposition.

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Republicans decried the change in the cloture rule on filibusters from requiring 60 to 50 votes. However, in
2005, Republican senators had threatened the “nuclear option” in order to have votes on George W. Bush’s
appellate court nominees who were blocked by Democrats, then in the minority. And in 2013, Republicans
warned that the rule change would come back to haunt Democrats when they lost control of the Senate. As
Senator Richard C. Shelby (R-AL) observed, “Democrats won’t be in power in perpetuity,” and the political
fallout is likely to be felt for years to come.

Even with the rule change, senators in the minority party may still give marathon speeches on the Senate
floor in opposition to judicial nominees. In addition, senators in the minority party remain able to block or
delay confirmation of judicial nominees by means of the “blue slip” practice of having home-state senators
endorse a judicial nominee before holding confirmation hearings and a Senate vote. However, like the rules
on filibusters and cloture, the blue slip practice remains subject to the political winds. In the 1980s, for
example, the committee’s chair at the time, Republican senator Orrin Hatch, ignored the blue slip tradition
in order to get around Democratic opposition to some of Reagan’s judicial nominees.

Another hardball political response to Senate obstructionism over judicial nominations is “recess
appointments” that presidents can make under Article II of the U.S. Constitution. If the Senate is not in
session, presidents have the constitutional authority to bypass senatorial approval over nominees and may
temporarily appoint judges to the bench while the Senate is in recess. In practice, recess appointments are
often made permanent when a new congressional session begins, and since the Eisenhower administration,
presidents only use them for federal lower court appointments. While President Obama has used the power
sparingly in comparison to other presidents dating back to Ronald Reagan’s presidency, it remains a
formidable weapon: a president may award a judgeship regardless of political opposition. Still, the scope of
the recess power is subject to ongoing constitutional review, as illustrated by National Labor Relations Board
v. Canning, 134 S. Ct. 2550 (2014), a case in which the Supreme Court limited the president’s authority to
make recess appointments during pro-forma sessions—the time when the Senate declares to be in session but
does not do any governmental business. Hence, the change in the rule governing cloture and filibusters, as
well as the constitutional threat by presidents to bypass the Senate through recess appointments, is likely to
only further deepen conflicts and discourage compromise over the Senate’s confirmation of judicial
nominees.

For further reading, see Paul Kane, “Reid, Democrats Trigger ‘Nuclear’ Option; Eliminate Most Filibusters
on Nominees,” The Washington Post (November 21, 2014), available at www.washingtonpost.com (last
retrieved April 26, 2014); Sheldon Goldman, Picking Federal Judges (New Haven, Conn.: Yale University
Press, 1997); Russell Wheeler, “Judicial Nominations and Confirmations: Fact and Fiction,” FIXGOV’s
Review of 2013 (Washington, D.C.: Brookings Institution, December 30, 2013); Congressional Research
Service, Report RL 32013, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917–
Present (Washington, D.C.: U.S. Government Printing Office, 2003); and Congressional Research Service,
Report RS21308, Recess Appointments: Frequently Asked Questions (June 7, 2003, 7-5700) (Washington,
D.C.: U.S. Government Printing Office, 2013).

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The Politics of Organized Interests, the Media, and Public
Hearings
Before 1925, Supreme Court nominees were relatively uninvolved in the confirmation
process and were not asked to testify before the Senate Judiciary Committee. Before then,
only one confirmation hearing, for Harlan F. Stone, in 1916, was held in open session and
not behind closed doors. After 1925 and up until the late 1930s, the Senate did not even
bother to hold confirmation hearings for three of five Supreme Court nominees. Senate
practices, however, began to change in the mid-twentieth century. After 1938, the Senate
has held hearings for all but four Supreme Court nominees. And since John M. Harlan’s
nomination in 1955, every Supreme Court nominee has testified before the SJC. Moreover,
the confirmation hearings in 1981 on Sandra Day O’Connor’s historic nomination (as the
first woman on the Supreme Court) were given “gavel-to-gavel” television coverage.74

The increased transparency of the Senate confirmation process, along with the growing
influence of interest groups, has resulted in the confirmation process becoming more
contentious and politicized. In the words of one legal reporter, “Groups want certain
policies kept in place or struck down by the courts.”75 Furthermore, as shown by Robert
Bork’s bitter confirmation battle (discussed below), the confirmation process has become
more unstable due to divided government. Consequently, presidents expect more Senate
scrutiny if their candidates are portrayed as ideologically extreme, even if they are fully
qualified to hold the judgeship.76

The Battle Over Robert Bork’s 1987 Nomination

In the summer of 1987, a few hours after President Reagan announced the nomination of
Judge Robert Bork to replace retiring Justice Lewis F. Powell, Massachusetts’s Senator
Edward Kennedy denounced the nominee in his famous “Robert Bork’s America” speech:

Robert Bork’s America is a land in which women would be forced into back-alley
abortions, blacks would sit at segregated lunch counters, rogue police could break
down citizens’ doors in midnight raids, schoolchildren could not be taught evolution,
writers and artists would be censored at the whim of the government, and the doors of
the federal courts could be shut on the fingers of millions of citizens for whom the
judiciary is often the only protector of the individual rights that are at the heart of our
democracy.77

Despite Senator Kennedy’s partisan hyperbole, Bork had strong legal credentials: He earned
a law degree at the University of Chicago Law School; he had been a Yale University law

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professor; he served as U.S. Solicitor General and as acting U.S. Attorney General during
the Nixon administration; and, for a short time, he served on the Court of Appeals for the
D.C. Circuit. Yet, he was also a well-known conservative, and liberals criticized his
advocacy of a jurisprudence of “original intent” and opposition to unenumerated
constitutional rights, like the right to privacy.

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Robert Bork makes an emphatic point during his controversial confirmation hearings to be

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a Supreme Court justice.

Copyright Bettmann/Corbis /AP Images

In contrast to most prior Supreme Court nominees, Bork’s constitutional views galvanized
interest groups and gave Democratic senators many political incentives to question him
intently about his judicial philosophy.78 As an opponent of abortion rights and an advocate
of “strict constructionism,” Bork had drawn fire from a multitude of liberal interest groups.
Liberals were especially concerned about his replacing Justice Powell, who had been a swing
vote on abortion and civil rights issues. Over 150 interest groups mobilized for battle, with
at least eighty-three liberal organizations opposed to the nomination.79 Although
historically it is not unusual for organized interests to fight or support a Supreme Court
nominee, the Bork controversy was unprecedented in the extensive media coverage and
mobilization of (liberal and conservative) interest groups.

In order to win the votes of about twenty-five undecided senators, organized interests from
both sides of the aisle mounted extensive letter-writing campaigns, and 250 op-ed articles
(expressing support or opposition) appeared in newspapers. The People for the American
Way, a liberal interest group founded by Norman Lear of television fame, launched a $2
million media campaign against Bork’s confirmation. Conservative groups, such as the
National Conservative Political Action Committee, did the same, spending over $1 million
in support. Other conservative groups chartered an airplane to fly over the Iowa state fair
with a banner castigating “Bork Bashers” and “liberal lap-dogs,” whereas the liberal
Concerned Women for America initiated a sophisticated phone bank and letter-writing
campaign in order to influence the votes of senators.80

The mobilization of organized interests resembled the kind of political activity usually
confined to general political campaigns. Interest groups used a variety of tactics, including
(1) testifying at congressional hearings; (2) direct lobbying of legislators and their staff; (3)
fund-raising or campaign contributions; (4) organizing grassroots support; (5) direct mail
or letter-writing campaigns; (6) dissemination of key information (e.g., written opinions,
law review articles, voting records) to educate the public about the nominee; (7) media
advertisements; and (8) demonstrations, marches, and protests. To be sure, the tactics
sometimes distorted Bork’s position on key issues.81

As a result, critics argue that the Bork controversy overwhelmed the Senate confirmation
process. For others, however, the emergence of interest group advocacy became a key factor
in the confirmation process with a continuing influence on the confirmation process.82 In
the last twenty-five years or so, interest groups have increasingly targeted judicial nominees
in an effort to persuade senators, who in turn encouraged the mobilization of voters at the
grassroots level. Pro-choice interest groups played a key role in Bork’s defeat by threatening
to divert money away from senators supporting Bork, and a few years later civil rights and
women’s interest groups translated their opposition to Clarence Thomas’s confirmation by

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voting to unseat senators who had publicly discredited Anita Hill’s allegations of sexual
harassment and voted to confirm Thomas.83

The politics of interest group advocacy, however, was not the only factor in Bork’s defeat.
In addition, Democrats recaptured the Senate in the 1986 elections and mounted
opposition to Bork. Even so, Bork’s judicial philosophy and brazenness in trying to explain
his views, arguably, were most decisive in the Senate’s rejection of his nomination by a
58:42 vote.84

In the aftermath of Bork’s defeat, there has been a dramatic proliferation of interest groups
(across the political spectrum) who monitor and mobilize support or oppose judicial
nominees.85 Another repercussion of the Bork battle has been the significant increase in
conservative groups’ attempts to counter the influence of liberal groups and defeat
nominees at all levels of the federal judiciary.86 Finally, confirmation of judicial nominees
has been influenced by interest groups’ increased use of the Internet and social media. By
taking positions and asking questions at confirmation hearings that are instantly
transmitted throughout the world, senators speak not only to the nominees but also to their
constituencies. One indication is that since Bork’s confirmation hearings, nominees have
faced more and harder questions. In 1962, senators asked then–Supreme Court nominee
Byron White only six questions at his confirmation hearings. By contrast, in 2005, Chief
Justice John Roberts and Justice Samuel Alito were each asked over seven hundred
questions during their confirmation hearings. Another by-product of Bork’s defeat has been
for nominees to invoke the so-called Ginsburg rule—named after Justice Ruth Bader
Ginsburg’s decision to refuse to discuss legal issues that she was likely to consider on the
bench. Accordingly, post-Bork nominees are more apt to “duck difficult questions in a way
that their predecessors did not,” a trend that Justice Elena Kagan has lamented has made
confirmation hearings less meaningful because they present “to the public a vapid and
hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and
personal anecdotes have supplanted legal analysis.”87

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Senate Confirmation Hearings and Reporting the
Nomination
The SJC’s recommendation to support or reject the appointment is based on a variety of
factors, including the written record of the nominee’s background and professional
qualifications, as compiled by the committee’s staff, the ABA, interest groups, academics,
and interested persons. At the hearing, the committee also considers the nominee’s answers
to questions about his or her views of the law. The increasing importance of the SJC’s
hearings and report on recommending confirmation or not is underscored by the amount
of time devoted to controversial nominees and the increasing length of the hearing
transcript. Between 1930 and 1949, the length of a transcript for Supreme Court justices’
hearings averaged only 42 pages. But, since 1970, the average has grown to 1,117 pages or
more. Moreover, since 1992, the SJC has held closed-door sessions with each nominee after
his or her hearing in order to let the nominee further respond to issues that arose.88 As
indicated above, confirmation proceedings have become lengthier because they are now the
principal forum for attacking the ideological views of a controversial nominee.

Senatorial Obstruction and Delay

In the past, lower court nominations were reported out of committee in short order and
delivered to the Senate floor for a vote. Delaying the vote, however, has become more the
rule than the exception largely (as noted above) due to divided government and increased
partisanship. Other factors—such as presidential election year politics, or whether the
appointment will shift the ideological balance of a court—also contribute to delaying final
Senate action.89 In addition to filibusters to delay or deny confirmations, senators may
manipulate a variety of other Senate floor rules—such as putting “holds” on nominees and
not giving unanimous consent to their being taken up on the Senate floor—which
underscores the role judges have come to play in making social policy.90

The trend toward delaying Senate action is especially apparent for court of appeals
judgeships and, in recent times, even district court nominees. On average, between 1979
and 1994, it took 71 days to confirm a judicial nominee. During the first term of Obama’s
presidency, the average length of the confirmation process was 220 days for circuit court
nominees and 190 days for district court positions. In targeting Obama’s district court
nominees, Republicans appeared committed to blocking all of his judicial appointments, in
a sharp break from the past.91 These patterns underscore the politics of “obstruction and
delay” that has become the norm (see Figure 4.3).92

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Is the Confirmation Process “Broken”?
For some court watchers, the politicization of the federal judicial appointment process
threatens the legitimacy of courts and access to justice.93 Calls for reform are nevertheless
usually political.94 The University of Virginia Miller Center of Public Affairs, however,
created a bipartisan commission that concluded that a number of steps could be taken to
shorten the time it takes to fill judicial vacancies, including (1) encouraging senators to
identify and vet candidates before a vacancy occurs or within thirty days thereafter and then
recommending at least two or more candidates no later than ninety days after a vacancy
occurs; (2) suggesting that the White House and the DOJ complete their investigations of
potential nominees within ninety days; and (3) asking the Senate to forego confirmation
hearings for noncontroversial nominees and to take action on all nominees within two
months after receiving them.95 An earlier Twentieth Century Fund Task Force on Judicial
Selection recommended using bipartisan nominating commissions to screen and
recommend candidates for lower federal court judgeships. Specifically, the task force argued
that candidates must be selected for their professional qualifications, based on their written
records. For Supreme Court nominations, the task force went further in recommending
that the SJC depoliticize confirmation hearings by abolishing the practice of having
nominees appear before the committee.96

Figure 4.3 Senate Obstruction and Delay of Lower Federal Court Nominations

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 Source: Derived from Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni, “Obam’
s First Term Judiciary,” Judicature (July/August 2013), 7-21, 25-30, 36-47 (Tables 1
and 2).

In addition to these proposals, other suggested reforms have included having the SJC hold
confirmation hearings within thirty (for district courts) or sixty (for circuit courts) days. If
the committee or full Senate does not act on the nomination in a timely fashion, then a
referral is made to a confirmation commission (staffed by the Senate majority leader and
SJC chair), which would hold its own hearing and make a recommendation to the full
Senate within two months. If the Senate fails to act on that recommendation, the Senate
will be deemed to consent to it, and a certification of confirmation will be forwarded to the
president.97 By contrast, another proposal would increase participation by the electorate in
confirming nominees through federal judicial elections (along the lines used in many
states).98

Still, the claim that the confirmation process is broken must be weighed against the fact
that by the middle of his second term (as of April 1, 2014) President Obama had put 234
federal judgeships on the bench, representing about one-third of the entire judiciary.99
Surveying federal judicial appointments over a fifty-six-year period from Roosevelt to

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Reagan, political scientist Sheldon Goldman also concluded that

despite occasional dissatisfaction with how a particular nomination is handled, or

charges that excessive partisanship or ideological litmus tests are being applied, our
current judicial selection process, with the checks and balances envisioned by the
framers (and even with some that were not, such as the role of the ABA), appears
under most circumstances (with the possible exception of presidential election years)
to be working reasonably well. There will always be tension between patronage, merit,
and ideological considerations, and how that tension is resolved will differ from
administration to administration. It will depend upon the point in political time in
which an administration is functioning. It will depend upon the personalities and the
nature of the interactions within and between the executive branch and the Senate.100

In sum, the judicial confirmation process is inherently political and will remain so, whether
reformed or not.101

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Toward a Representative Bench and a Career Judiciary?
For most citizens, the prestige of a state or federal judgeship is enviable. As federal appellate
judge James Buckley observed, “The federal judiciary is recruited from a professional elite,
it enjoys life tenure, and, at the appellate level at least, it is sheltered from the rough and
tumble of everyday life.”102 Yet, the members of state and federal courts routinely confront
political challenges that test their mettle. The balance of this chapter considers, on the one
hand, whether the American judiciary is moving toward greater diversity or a career
judiciary—a relatively homogeneous cadre of professional judges—and, on the other hand,
the disincentives for serving on the bench and why some judges opt to leave or are removed
from the bench.

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A Representative Bench?
The demographic statistics—the racial, ethnic, religious, and socioeconomic characteristics
of the state and federal judiciaries—reveal that the makeup of state and federal courts is
identical despite different selection methods. Though the composition of U.S. courts has
become more diversified over the past half-century, both state and federal courts remain
relatively homogeneous and elitist. In general, judges are white, male, and Protestant. One
study found that in 2005 African Americans represented only 8 percent of the nation’s state
supreme court justices, and only 27 percent were women. As recently as 2009, thirty-one
states failed to have an African American on their courts of last resort, nineteen states had
yet to have an African American in the entire history of their state supreme court, and two
states have never had a female justice.103

The backgrounds of appointees from the Eisenhower to the Obama administrations

underscore the lack of diversity in federal courts. Tables 4.2 and 4.3 show that since the
1950s lower federal court judges are typically fifty years old at the time of appointment and
roughly eight out of ten judges are white. People of color represent less than 26 percent (17
percent African American and 9 percent Latino), even though African Americans and
Latinos increasingly represent larger segments of the general population. Still, beginning
with the Carter administration and extending through the first Bush, Clinton, second
Bush, and Obama presidencies, appointments of women have become more numerous—
almost three of every ten judges have been women in the post-Reagan years. In contrast to
the pre-Reagan administrations, the Clinton and especially the Obama presidencies have
had more success in putting women on the federal bench.104

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Source: Sheldon Goldman, Picking Federal Judges: Lower Court Selection From Roosevelt Through Reagan (New
Haven, Conn.: Yale University Press, 1997), Table 9.2; Sheldon Goldman, “Bush’s Judicial Legacy: The Final
Imprint,” Judicature (April/May 1993), 282–97 (Table 4); Sheldon Goldman, Elliot Slotnick, and Sara
Schiavoni, “Obama’s First Term Judiciary,” Judicature (July/August 2013), 7–21, 25–30, 36–47 (Table 8), as
supplemented by Sheldon Goldman (via email at author’s request).
Note: Some percentages within a category do not equal 100 percent because of exclusions. Data only to the end
of Obama’s first term are reported. Except age, all figures are percentages.

Source: Sheldon Goldman, Picking Federal Judges: Lower Court Selection From Roosevelt Through Reagan (New
Haven, Conn.: Yale University Press, 1997), Table 9.1; Sheldon Goldman, “Bush’s Judicial Legacy: The Final
Imprint,” Judicature (April/May 1993), 282–97 (Table 2); Sheldon Goldman, Elliot Slotnick, and Sara
Schiavoni, “Obama’s First Term Judiciary,” Judicature (July/August 2013), 7–21, 25–30, 36–47 (Table 6), as

224
 supplemented by Sheldon Goldman (via email at author’s request).
Note: Some percentages within a category do not equal 100 percent because of exclusions. Data only to the end
of Obama’s first term are reported. Except age, all figures are percentages.

Like state judges, federal judges are basically recruited from three religious groups and, on
balance, represent the upper class. Sixty percent of judges are Protestants, whereas roughly
26 percent are Catholic and about 10 percent are Jewish (see Tables 4.3 and 4.4). Notably,
judicial appointments by Democratic presidents Carter, Clinton, and especially Obama
broke with the trend by making significant inroads in diversifying the federal bench.

In addition, both state and federal judges are well compensated, although they probably
would earn more money in the private sector (see Table 4.4). Moreover, federal appellate
judges do not have to draw from their salaries to contribute to retirement funds while in
active service and, upon retirement, retire with full pay under certain conditions. From the
1980s to the present, the proportion of millionaires on the federal bench has progressively
increased.105 Still, Chief Justice Roberts and other Supreme Court justices have aggressively
lobbied Congress for pay increases on the grounds that it is becoming difficult to recruit the
best from the private legal sector, and some federal judges are resigning before they are
eligible for retirement in search of better-paying employment.106

Source: National Center for State Courts, “Survey of Judicial Salaries” (Vol. 37, No. 1, as of January 1, 2012),
available from www.ncsc.org (last retrieved March 7, 2014); Administrative Office of the U.S. Courts, “Judicial
Salaries Since 1968,” available from www.uscourts.gov (last retrieved March 7, 2014). The salaries of federal
judges and administrators are current as of January 1, 2014.

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Nonetheless, the professionalization of the judiciary is apparent.107 State and federal courts
are distinct and stand in sharp contrast to the kind of professionalized judiciaries found in
Europe and elsewhere (see “In Comparative Perspective: The Career Judiciary in Japan”).
Notwithstanding the comparative differences between the U.S. courts and other career
judiciaries across the globe, the fact remains that state and federal judges are professionally
homogeneous and financially affluent.

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Leaving the Bench
“Fortunately most of the judiciary is honest,” Judge Jerome Frank once remarked, but “a
very few scamps manage to get on the bench, and the best way to avoid unfairness to the
vast majority of judges is to oust the few rascals.”108 Judges, of course, voluntarily leave the
bench because of ill health, due to advancing age and retirement, or for personal reasons.
But, as Judge Frank suggested, on occasion there is a need to force a judge off the bench
because of misconduct, incompetence, intemperance, neglect, or disability. Judges may also
be targeted for making unpopular rulings and impeached.

Forcing qualified judges to step down raises separation of powers and broader
constitutional concerns: How much power should legislatures have in policing the internal
affairs of the judiciary? Should court administrators, judges, and lawyers have the flexibility
to discipline judges without external political interference? In short, the problem of judicial
removal and discipline arises from the inherent tension between judicial independence and
accountability and has been an ongoing political struggle. The balance of this chapter
explores the methods used to persuade or force judges to leave the bench.

Historically, state constitutions or statutes have authorized the disciplining of state judges
by the legislature through a variety of means, including impeachment (removal by trial by
the upper house after the lower house votes to impeach), legislative resolution (removal by
concurrent vote of each legislative chamber), legislative address (by majority vote the
legislature directs the governor to remove a judge), and, since the first decades of the
twentieth century, legislative recall (after petition for a special election to vote on removal).

Each method, however, has proven subject to political abuse or has been rarely used.109 As
a result, beginning in the 1940s, the task of disciplining judges incrementally shifted to
state courts themselves. In 1960, California established the prototype for judicial discipline
and removal that became a model for sanctioning judges in virtually all other states.
California’s Commission on Judicial Performance, a multimember commission of judges,
lawyers, and citizens, was empowered to investigate complaints about judicial performance
and then, with or without a hearing, to make recommendations to the state’s highest court
about final disposition. Today, every state and the District of Columbia has some type of
judicial conduct organization that is charged with investigating allegations of judicial
misfeasance or disability.110

State supreme courts, the state bar, or the governor usually determine a judicial
commission’s membership, and the size and jurisdiction vary. Typically, once a written
complaint is filed, the commission first investigates the allegations—in confidence—and
then, after concluding its inquiry, resolves the case through dismissal, informal private
sanction, or formal referral to the state’s highest court after conducting a public hearing on

227
the charges. The kind of informal or formal sanction levied—including removal,
involuntary retirement, suspension without pay, the payment of a fine, public or private
censure, public or private reprimand, professional counseling and education,
admonishment, or advisory letters—typically depends on the offense and whether there is a
pattern of misconduct.111

Although the imposition of penalties is relatively infrequent, state judicial commissions

have nonetheless disciplined judges, sometimes severely. In 1980, only 22 state judges were
disciplined, but by 2012, the number had risen to 137. Still, while the frequency of
disciplining state judges has grown, the numbers likely reflect that there are also many more
judgeships because of the nation’s growth.112

Federal judges may be removed only by impeachment for criminal activities, treason, or
committing “other high Crimes and Misdemeanors.” Under Article I, Section 2, of the
Constitution, the House of Representatives passes articles of impeachment, and then the
Senate tries impeachment cases. Historically, impeaching federal judges has been
problematic for the same reasons that the procedure proved unwieldy in the states.
Impeachment may be politically abused and awkward. Moreover, not all instances of
judicial misfeasance rise to the level of impeachable offenses, and the Constitution is silent
about the removal of inept, intemperate, or disabled judges. Only fifteen federal judges
have been impeached, and of those only eight were convicted.113

Consequently, Congress and the federal courts have moved toward adopting the same type
of commission format for disciplining judges that became prevalent in the states. However,
the federal procedure is distinct because public citizens and attorneys do not play a role in
sitting on the committee that is empowered to discipline judges. Under the Administrative
Office Act of 1939, and then through the Judicial Code in 1948, circuit court councils
(staffed by appellate judges from all circuits) were given responsibility to set ethical
standards and discipline judges by certifying cases of physical or mental disability. The
constitutionality of the authority of circuit courts to sanction federal judges, however,
remained unclear. Hence, Congress enacted the Judicial Councils Reform and Judicial
Conduct and Disability Act of 1980. That legislation, as amended by the Judicial
Improvements Act of 2002, remains the principal means for disciplining federal judges,
except Supreme Court justices in nonimpeachment cases.114

Under the Judicial Conduct and Disability Act, a complaint must be filed with a federal
court of appeals asserting that a judge has become disabled or “prejudicial to the effective
and expeditious administration of the business of the courts.” After reviewing the charges,
the chief judge of the circuit may dismiss the complaint on procedural grounds or upon
finding that corrective action has already been undertaken; or, alternatively, a special
committee of district and circuit court judges may be created to investigate further and
make a written recommendation to the circuit council about what action should be taken.

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After conducting its own review, the circuit council may disregard or adopt the
recommendation and, if necessary, may levy sanctions against the judge. Penalties include
certifying that there is a disability, requesting voluntary retirement, or otherwise
reprimanding the judge, either publicly or privately. Notably, the council does not have the
power to compel removal but instead refers such cases to the House of Representatives for
impeachment proceedings.

As in the state courts, the process of disciplining federal judges has had little impact in
removing judges. Between 2011 and 2013, for example, 3,996 complaints were filed
against federal judges (on an average of 1,332 per year). Of those complaints, the majority
were filed by litigants or prison inmates who alleged an “erroneous decision” or “personal
bias against litigant or attorney.” Fifty-six percent of complaints were dismissed by the chief
judges with no further review, and the balance were rejected or withdrawn as either
frivolous, lacking sufficient evidence, or not germane. Although an infinitesimal number of
complaints led to disciplinary sanctions, only one judge was censured or reprimanded.115

In sum, federal and state court judges are likely to stay on the bench, and they are
infrequently disciplined or removed.

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In Comparative Perspective

230
The Career Judiciary in Japan
The creation of Japan’s postwar judicial system aimed to forge revolutionary change in the role of courts. Its
1947 constitution provided for U.S.-style judicial review, with courts given the power to strike down laws
that violate the constitution. The Supreme Court of Japan also acquired extensive authority over the
training, nomination, assignment, and promotion of lower court judges through its supervision of the Legal
Training and Research Institute (LTRI).

The Japanese judiciary is unitary, unlike systems of judicial federalism that have both a national judicial
system and separate state courts. There are basically three levels of courts. At the apex is the Supreme Court
of Japan, composed of fifteen justices. It generally decides cases as petty benches composed of five justices
each, though major cases are decided by the entire Court. Below the Supreme Court are eight high courts,
located in the major cities, as well as six branches in other cities. There are approximately 285 high court
judges, appointed by the prime minister and the Cabinet on the recommendation of the Supreme Court;
they are subject to periodic reassignments and mandatory retirement at age sixty-five.

Appeals to high courts come from district courts and family courts. District courts are the principal trial
courts. There are fifty of them, located in all major cities, and another 203 branches in smaller towns.
Except for minor cases, trials in district courts are presided over by three-judge panels. There are also fifty
family courts and 203 branches located alongside the district courts. They have specialized jurisdiction over
family matters and, unlike other courts, are staffed primarily by lay conciliators. Below these courts are 438
summary courts with over eight hundred judges, who have jurisdiction over minor civil and criminal cases.
These judgeships are filled by former clerks, prosecutors, and judges from within the career judiciary who
have reached retirement age (sixty-five for judges and sixty-three for prosecutors) but who may extend their
careers serving as summary court judges until age seventy.

Supreme Court of Japan

©Wikimedia Commons / CC BY-SA 3.0

The Japanese judicial system employs more than twenty-one thousand judges, clerks, secretaries, marshals,
and other personnel. Central to the operation of the judiciary is its system of recruiting, training,

231
appointing, and promoting an elite cadre of highly professional judges. With the exception of Supreme
Court justices, the lower courts are staffed by career judges who must survive a series of professional hurdles,
beginning with admission into a university. Unlike legal education in the United States, but like that in
Great Britain, Germany, and France, undergraduates earn a BA in law. After graduation, most take bar-
exam cram courses in preparation for the national law examination. That test, which may be taken
numerous times, is rigorous. Out of the more than twenty thousand students who annually take the test,
only about one thousand pass. Graduates of the leading law schools tend to be favored. However, in the last
decade, the government has approved the creation of American-style graduate-level law schools.

Only after passing a national examination, submitting a thesis, and passing a personal interview are students
admitted into the LTRI. There, they pursue a two-year course of study. It includes four four-month
internships—in an attorney’s office, a prosecutor’s office, a criminal court, and a civil court. After
graduating, they may apply to become assistant judges. Their judicial careers begin with a ten-year
appointment, though actually assistant judges function like full judges after five years. They may become
associate judges on a three-judge district court or preside over a single-judge court. After a decade, they
become full judges, subject to reappointment every ten years. During the course of their careers, they are
reassigned to several different courts, or to other positions within the judiciary. For example, a judge may
move from a district court to being an acting high court judge. After five more years, the judge may then
become a regular high court judge. Eventually, the judge may be elevated to the position of a presiding
judge on a three-judge court. A very few then become chief judges on the most prestigious high courts.
Later, from that select group whose members have reached their mid-sixties, a few are rewarded with an
appointment to the Supreme Court.

Unlike lower court judges, not all members of the Supreme Court are career judges, however. The
appointment process and tenure for justices is also somewhat different from that for lower court judges. The
drafters of the constitution and the Court Organization Law of 1947 modeled the appointment process for
justices along the lines of the so-called Missouri Plan. The Missouri Plan was first adopted by that state in
1940; subsequently, almost half of the other states enacted some version of it. The basic elements of the
plan are as follows: (1) a nonpartisan commission nominates three candidates for every vacancy; (2) from
those three, the governor appoints one; and (3) the judge must then be approved by the voters at the next
general election; if approved, the judge receives a twelve-year appointment.

Although modeled after the Missouri Plan, the constitutional and statutory provisions for the selection,
appointment, and tenure of Japanese Supreme Court justices have been circumvented. The use of a
nominating commission was short lived, for instance. In April 1947, an eleven-member Advisory
Committee for Appointing Justices was appointed, and it nominated thirty candidates for justiceships and
three for chief justice. Later that year, however, the Japan Socialist Party (JSP) won the general election. A
new fifteen-member nominating committee was created and recommended thirty candidates, from which
the Cabinet named the first fifteen justices. A year later, however, the JSP was driven from office, with the
Liberal Democratic Party (LDP) winning control of the government for most of the last sixty years. And
judicial nominating committees were never used again.

The practice of appointing justices became for Cabinet officials to consult with the chief justice and the
General Secretariat, as well as bar associations and administrative heads. As with the appointment of lower
court judges, the chief justice largely determines the appointments of members of the Supreme Court,
including his own successor. In other words, appointments are formally made by the prime minister and the
Cabinet, but only on the recommendation of the chief justice. There is no “advice and consent” process, as
with the U.S. Senate’s confirmation of nominees to federal courts.

The appointment of justices is also conditioned by the stipulation in the Court Organization Law that they
“shall be among persons of broad vision and extensive knowledge of law, who are not less than 40 years of
age.” Moreover, a convention was established, in the words of former Chief Justice Hattori, that “Supreme
Court justices are appointed in roughly equal numbers from among three broad groups: (1) inferior court
judges; (2) practicing lawyers; and (3) public prosecutors, law professors, or other persons of broad
knowledge and experience.” Subsequently, the norm became for there to be six career judges, four lawyers,
two former bureaucrats, two prosecutors, and one law professor on the Supreme Court.

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No less significantly, like the Missouri Plan, the constitution of Japan provides for a system of judicial
retention elections, or “popular review” as it is known. After their appointment, members of the Court are
placed on the ballot at the first general election of the House of Representatives. Thereafter, justices face
retention elections after each ten years of service. Under the system, voters place an X in a box next to the
name of a justice they think should be dismissed; otherwise, the ballot is counted as a vote for retention.
Yet, an end run around the system has been made by the practice of appointing older and older justices who
must retire at age seventy. In other words, most justices are simply not on the bench long enough to face
retention elections.

In sum, the appointment of judges in Japan is largely determined by the recruitment, training, and
promotion of career judges admitted into the LTRI and overseen by the chief justice. Most judges begin
their careers in their mid-twenties and serve until sixty-five, though some may extend their careers until age
seventy by serving on the Supreme Court or a summary court. Throughout their careers, they are
periodically reassigned to various courts, and their careers are overseen by senior judges and the bureaucracy
of the LTRI. These two features—spiraling career paths within a judicial hierarchy closely controlled by a
judicial bureaucracy—set the Japanese judiciary apart from not only other judicial selection systems within
Asia, but also those in Western Europe and North America. From beginning to end, judicial careers are
determined by senior judges, not political branches or agencies outside the courts. As a result, the Japanese
judiciary maintains institutional independence at the price of conformity and the sacrifice of individual
judges’ independence on the bench.

For further readings, see David M. O’Brien, To Dream of Dreams: Religious Freedom and Constitutional
Politics in Postwar Japan, chap. 3 (Honolulu: University of Hawaii Press, 1996); and J. Mark Ramseyer and
Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan (Chicago:
University of Chicago Press, 2003).

233
Chapter Summary
The politics of state and federal judicial selection, as well as whether the American judiciary
is moving toward a professionalized “career judiciary” that limits opportunities to remove
judges from public service, is analyzed.

While a handful of states use legislative and gubernatorial appointment systems, a majority
uses a combined mix of elective-appointment methods in order to keep judges accountable
to the people. Electing judges creates the risk of political corruption and inherently
diminishes judicial independence from the political branches. Thus, many states use merit
judicial selection commissions to depoliticize judicial campaigns and elections, but they
have met with little success. Moreover, Supreme Court decisions have expanded the free
speech rights of judges when campaigning for office and have put few limits on how judges
use political money in judicial elections. As a result, state judicial selection has become
highly politicized, and critics argue that state judges are merely politicians in black robes.

In contrast, federal judicial selection involves presidential nomination and Senate

confirmation through “advice and consent.” Presidents tend to take different approaches to
judicial selection. Typically, the White House General Counsel’s Office and the
Department of Justice’s Office of Legal Policy engage in a “vetting process” that screens
candidates. Other entities, such as the American Bar Association, the media, and interest
groups, also evaluate the candidate’s merits. The Senate Judiciary Committee holds public
hearings and decides whether to send the name to the full Senate for an up-or-down vote.
Federal judicial selection has become increasingly politicized. The Senate’s rejection of
Judge Bork’s nomination to the Supreme Court registers the significant role organized
interests play in defeating an otherwise meritorious nomination. In addition, senatorial
obstruction and delay of federal lower court appointments is a growing issue in periods of
sustained divided government. As a result, the Senate has changed its rules or abandoned
traditions such as the blue slip process.

Apart from judicial selection, the chapter analyzes whether the American judiciary is
moving toward a “career judiciary.” While U.S. courts have increasingly become more
diversified in recent years, the racial, ethnic, religious, and socioeconomic characteristics of
the state and federal judiciaries still remain relatively homogeneous and elitist. In general,
judges are white, male, Protestant, and affluent. Moreover, although subject to removal for
illicit conduct, in practice they are infrequently removed. As a result, most federal and state
court judges stay on the bench unless they voluntarily retire, become disabled, or die in
office.

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Key Questions for Review and Critical Analysis
1. How do state judicial selection methods strengthen or undermine the values of
judicial accountability or judicial independence from the political branches?
2. Is the criticism that state judges are “politicians in black robes” when campaigning for
office justified or accurate? Why or why not?
3. Some recent presidents, like Barack Obama and Bill Clinton, have been more
interested in diversifying the federal bench; others, like Ronald Reagan and George
W. Bush, have tried to pack the courts with judges who share the president’s political
ideology. Does that mean that Presidents Obama and Clinton are not interested in
packing the courts? Do you think presidents Reagan and Bush were not interested in
filling the bench with meritorious candidates? What role does ideology or merit play
in federal judicial selection? Should presidents try to “pack” the federal bench?
4. Do you think it is appropriate for the Senate to use obstructive and delaying tactics,
such as aggressively using the blue slip to prevent or delay votes on nominees to the
federal courts?
5. How important is it to have a diversified or “representative” bench in the state and
federal judiciaries?

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Web Links
1. The American Judicature Society’s Judicial Selection in the States
(www.judicialselection.com)
Founded in 1913 but closed in 2014 the American Judicature Society was an
independent organization focused on maintaining the integrity of the American
justice system.
2. The Department of Justice’s Office of Legal Policy
(www.justice.gov/olp/judicialnomina tions113.htm)
The Department of Justice’s Office of Legal Policy undertakes policy initiatives
and gives advice to the president, including on the selection process of federal
judges. The site provides current data on the nomination and confirmation
activity of federal judges in relation to the U.S. Congress.
3. Alliance for Justice (www.afj.org)
A national organization representing progressive political values. It monitors
federal judicial selection and provides an array of information, reports,
publications, and advocacy resources on the topic.
4. Committee for Justice (www.committeeforjustice.org/content/judges-project)
A national organization representing conservative political groups.

236
Selected Readings
Abraham, Henry J. Justices, Presidents, and Senators: A History of the U.S. Supreme
Court Appointments from Washington to Bush II. 5th ed. Lanham, Md.: Rowman &
Littlefield Publishers, 2007.

Atkinson, David. Leaving the Bench: Supreme Court Justices at the End. Lawrence:
University Press of Kansas, 1999.

Binder, Sarah A., and Forrest Maltzman. Advice and Dissent: The Struggle to Shape the
Federal Judiciary. Washington, D.C.: Brookings Institution, 2010.

Bonneau, Chris W., and Melinda Gann Hall. In Defense of Judicial Elections. New York:
Routledge, 2011.

Davis, Richard. Electing Justice: Fixing the Supreme Court Nomination Process. New
York: Oxford University Press, 2005.

Epstein, Lee, and Jeffrey Segal. Advice and Consent: The Politics of Judicial Appointments.
New York: Oxford University Press, 2005.

Gerhardt, Michael J. The Federal Appointments Process: A Constitutional and Historical

Analysis. Durham, N.C.: Duke University Press, 2003.

Gibson, James L. Electing Judges: The Surprising Effects of Campaigning on Judicial

Legitimacy. Chicago: Chicago University Press, 2012.

Goldman, Sheldon. Picking Federal Judges: Lower Court Selection From Roosevelt
Through Reagan. New Haven, Conn.: Yale University Press, 1997.

O’Brien, David M. Judicial Roulette: Report of the Twentieth-Century Fund Task Force
on Judicial Selection. New York: Priority Press, 1988.

237
Scherer, Nancy. Scoring Points: Politicians, Activists, and the Lower Federal Court
Appointment Process. Stanford, Calif.: Stanford University Press, 2005.

Shugerman, Jed Handelsman. The People’s Courts: Pursuing Independence in America.

Cambridge, Mass.: Harvard University Press, 2012.

Steigerwalt, Amy. Battle Over the Bench: Senators, Interest Groups, and Lower Court
Confirmations. Charlottesville: University of Virginia Press, 2010.

Tarr, G. Alan. Without Fear or Favor: Judicial Independence and Judicial Accountability
in the States. Stanford, Calif.: Stanford University Press, 2012.

Volcansek, Mary L. Judicial Impeachment: None Called for Justice. Urbana: University of
Illinois Press, 1992.

Yalof, David Alistair. Pursuit of Justices: Presidential Politics and the Selection of Supreme
Court Nominees. Chicago: University of Chicago Press, 1999.

238
EndNotes
1. David Lat, “Justice Scalia at the Federalist Society Fete,” Above the Law (November 20,
2010), available at www.abovethelaw.com/2010/11/justice-scalia-at-the-federalist-society-
fete/ (last retrieved March 20, 2014).

2. Lisa T. McElroy and John Cannan, “Obama’s Second Term and the Federal Courts,”
Judicature 96 (2012), 99, 107; T. J. Kimel and Kirk A. Randazzo, “Shaping the Federal
Courts: The Obama Nominees,” Social Science Quarterly 93 (2012), 1243–50.

3. McElroy and Cannan, “Obama’s Second Term and the Federal Courts”; Sheldon
Goldman, Elliot Slotnick, and Sara Schiavoni, “The Confirmation Drama Continues,”
Judicature 94 (2011), 262–301. The Senate confirmed Kagan by a 63:37 vote and
Sotomayor’s vote was 68:31. Carl Hulse, “Senate Confirms Kagan in Partisan Vote,” New
York Times (August 5, 2010); Amy Goldstein and Paul Kane, “Sotomayor Wins
Confirmation,” Washington Post (August 7, 2009).

4. Charles Gardner Geyh, “The American Judicature Society and Judicial Independence:
Reflections at the Century Mark,” Judicature 96 (2013), 257, 261. See also Charles Geyh,
“The Choreography of Courts-Congress Conflicts,” in The Politics of Judicial Independence:
Courts, Politics, and the Public, edited by Bruce Peabody (Baltimore, Md.: John Hopkins
University Press, 2010), 19–44; and Sarah Binder and Forrest Maltzman, “Advice and
Consent During the Bush Years: The Politics of Confirming Federal Judges,” Judicature 92
(2006), 320–29.

5. Chief Justice Roberts garnered a Senate vote of 78:22; after a Democratic filibuster by
Senators Edward Kennedy (D-MA) and John Kerry (D-MA) failed, the Senate confirmed
Justice Alito by a much closer vote of 58:42. Alito’s confirmation was more politically
divisive because President Bush’s initial choice to have White House Counsel Harriet Miers
fill Justice O’Connor’s seat was withdrawn due to allegations of cronyism and Republican
criticism that she was not conservative enough. David Stout, “Withdrawal Is Greeted With
a Mix of Regret and Relief,” New York Times (October 27, 2005), available at
www.nytimes.com (last retrieved October 27, 2005). See also Seth Stern and Keith Perine,
“Alito Confirmed After Filibuster Fails,” CQ Weekly (February 6, 2006), available at
library.cqpress.com/ (last retrieved March 21, 2014); and Keith Perine, “Senate Vote 245:
Confirmation of Roberts as Chief Justice,” CQ Weekly (February 6, 2006), available at
library.cqpress.com/ (last retrieved March 21, 2014).

6. The quotation is from Sheldon Goldman, Sara Schiavoni, and Elliot Slotnick, “W.
Bush’s Judicial Legacy: Mission Accomplished,” Judicature 92 (2009), 258, 260. See also
Jennifer Segal Diascro and Rorie Spill Solberg, “George W. Bush’s Legacy on the Federal
Bench: Policy in the Face of Diversity,” Judicature 92 (2009), 289–301; and Barbara A.

239
Perry, “The ‘Bush Twins’? Roberts, Alito, and the Conservative Agenda,” Judicature 92
(2009), 302–11.

7. G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in
the States (Stanford, Calif.: Stanford University Press, 2012), 8–9.

8. Geyh, “The American Judicature Society and Judicial Independence: Reflections at the
Century Mark,” 257–63; Lauren C. Bell, “Federal Judicial Selection: In History and
Scholarship,” Judicature 96 (2013), 296, 297; Charles H. Sheldon and Linda S. Maule,
Choosing Justice: The Recruitment of State and Federal Judges (Pullman: Washington State
University Press, 1997), 2–3.

9. Jed Handelsman Shugerman, The People’s Courts: Pursuing Independence in America

(Cambridge, Mass.: Harvard University Press, 2012), 84–102.

10. Shugerman, The People’s Courts, 105, 148–49. See also Geyh, “The American
Judicature Society and Judicial Independence,” 260.

11. Larry C. Berkson, “Judicial Selection in the United States: A Special Report,” in
Judicial Politics: Readings From Judicature, edited by Elliot E. Slotnick (Chicago: American
Judicature Society 1999), 45.

12. Geyh, “The American Judicature Society and Judicial Independence,” 260. For the
American Judicature Society, for “merit selection” states, retention can be accomplished
either through a retention election or by a judicial commission making a retention
evaluation. American Judicature Society, “Merit Selection: The Best Way to Choose the
Best Judges,” available at www.judicialselection.us/judicial_selection_materials/records.cfm?
categoryID=8 (last retrieved March 22, 2014). But, some states, like Delaware, undermine
the merit component by giving the executive and legislature additional discretion to
support or reject the panel’s nominee if it submits an incumbent’s application for retention
to the governor (for renomination) and the senate (for reappointment). American
Judicature Society, “Judicial Selection in the States: Appellate and General Jurisdiction
Courts (updated 2013),” available at
www.judicialselection.us/uploads/documents/Selection_Retention_Term_1196092850316.pdf
(last retrieved March 22, 2014).

13. Evan Haynes, The Selection and Tenure of Judges (Newark, N.J.: National Conference of
Judicial Councils, 1944), 235–36; Shugerman, The People’s Courts, 174. See also Geyh,
“The American Judicature Society and Judicial Independence,” 260.

14. After the twelve-year term, the judge would then serve for life. Malcolm Smith, “The
California Method of Selecting Judges,” Stanford Law Review 3 (1954), 571, 583. See also
Shugerman, The People’s Courts, 185–86; Smith, “The California Method of Selecting
Judges,” 572. Notably, California’s merit plan was contested by organized labor, which

240
supported partisan elections, but favored by lawyers and business interests that were
concerned with the close connection between judicial corruption, machine party politics,
and organized crime. It was thus part of a crime control package that was spearheaded by
Earl Warren, a state prosecutor who would later become California’s governor as well as
Chief Justice of the U.S. Supreme Court. Shugerman, The People’s Courts, 177–207; Smith,
“The California Method of Selecting Judges,” 579–80.

15. Geyh, “The American Judicature Society and Judicial Independence,” 260. See also
Shugerman, The People’s Courts, 197–203.

16. Alicia Bannon, Eric Velasco, Linda Casey, and Lianna Reagan, The New Politics of
Judicial Elections, 2011–12: How New Waves of Special Interest Spending Raised the Stakes for
Fair Courts (Report written by Justice at Stake, the Brennan Center for Justice at NYU
School of Law, and the National Institute on Money in State Politics), available at
http://newpoliticsreport.org (last retrieved April 12, 2014), 35.

17. Rachel Paine Caufield, Inside Merit Selection: A National Survey of Judicial Nominating
Commissioners (2012), available at
www.judicialselection.com/uploads/documents/JNC_Survey_ReportFINAL3_92E04A2F04E65.pdf
(last retrieved April 24, 2014).

18. G. Alan Tarr and Brian T. Fitzpatrick, “Judicial Selection Should Return to Its Roots,”
USA Today (March 29, 2013), available at www.usatoday.com (last retrieved March 21,
2014).

19. Nine states have adopted partial merit systems: Connecticut, Delaware, Hawaii, Maine,
Massachusetts, New Hampshire, Rhode Island, Utah, and Vermont. Thus, in Connecticut,
the governor appoints trial and appellate judges from a nomination commission, but the
gubernatorial choice must be ratified by the legislature. Also, incumbent Connecticut
judges are kept on only if the governor decides to renominate and the legislative opts to
reappoint. See also Bannon, Velasco, Casey, and Reagan, The New Politics of Judicial
Elections, 2011–12.

20. Ten states have hybrid merit systems: Arizona, Florida, Indiana, Kansas, Maryland,
Missouri, New York, Oklahoma, South Dakota, and Tennessee. Thus, in Arizona, trial and
appellate judges are selected by gubernatorial appointment from a nomination commission
for Arizona counties that have a population of 250,000 or more; thereafter, they may stay
in service after a retention election. But, in all other less populated counties, popular
elections are used to select and retain judges. William Raftery, “Judicial Selection in the
States,” available at www.ncsc.org (last retrieved March 21, 2014).

21. Nonpartisan election states include Arkansas, Georgia, Idaho, Kentucky, Minnesota,
Mississippi, Montana, Nevada, North Carolina, North Dakota, Oregon, Washington, and

241
Wisconsin. In contrast, Alabama, Illinois, Louisiana, Ohio, Pennsylvania, New Mexico,
Texas, and West Virginia are partisan election states. Ohio uses nonpartisan elections in
theory, but it is more like a partisan election state because judges get on the ballot through
competitive, partisan primaries.

22. Bannon, Velasco, Casey, and Reagan, The New Politics of Judicial Elections, 2011–12.
See also Joel F. Knutson, “Judicial Selection in the States: Historical Context and Ongoing
Debates,” in The Improvement of the Administration of Justice, 7th ed. (Chicago: Judicial
Division, American Bar Association, 2002), 205; G. Alan Tarr, “Selection of State
Appellate Judges: Reform Proposals, Rethinking the Selection of State Supreme Court
Justices,” Williamette Law Review (Fall, 2003), 1445–46.

23. Bannon, Velasco, Casey, and Reagan, The New Politics of Judicial Elections, 2011–12,
27–37.

24. Richard A. Watson and Rondal G. Downing, The Politics of Bench and Bar: Judicial
Selection Under the Missouri Non-Partisan Court Plan (New York: Wiley, 1969); Beth M.
Henschen, Robert Moog, and Steven Davis, “Judicial Nominating Commissioners: A
National Profile,” Judicature (April/May 1990), 328–34; Charles H. Sheldon, “The Role of
State Bar Associations in Judicial Selection,” Judicature (May/June 1994), 300–305.

25. James L. Gibson, “‘New-Style’ Judicial Campaigns and the Legitimacy of State High
Courts,” Journal of Politics 71 (2009), 1285–304; Roy Schotland, “Comment,” Law and
Contemporary Problems (Summer, 1998), 150. See also Rachel P. Caufield, “The Changing
Tone of Judicial Election Campaigns as a Result of White,” in Running for Judge: The
Rising Political, Financial, and Legal Stakes of Judicial Elections, edited by Matthew J. Streb
(New York: New York University Press, 2007), 34–58.

26. Shugerman, The People’s Courts, 4.

27. Bannon, Velasco, Casey, and Reagan, The New Politics of Judicial Elections, 2011–12, 4,
23. See also Linda Casey (for National Institute on Money in State Politics), “Courting
Donors: Money in Judicial Elections, 2011 and 2012,” available at
www.followthemoney.org/press/ReportView.phtml?r=505 (last retrieved April 25, 2014);
Politico, “2012 Swing States,” available at www.politico.com/2012-election/swing-state/
(last accessed April 14, 2014); and Citizens United v. FEC, 558 U.S. 50 (2010).

28. Bannon, Velasco, Casey, and Reagan, The New Politics of Judicial Elections, 2011–12,
22–24, 30–31; Adam Skaggs, Marla da Silva, Linda Casey, and Charles Hall, The New
Politics of Judicial Elections, 2009–10 (Report written by Justice at Stake, the Brennan
Center for Justice at NYU School of Law, and the National Institute on Money in State
Politics), available at https://www.brennancenter.org/publication/new-politics-judicial-
elections-2009-10 (last accessed April 14, 2014), 20; Deborah Goldberg, Sarah Samis,

242
Edwin Bender, and Rachel Weiss, The New Politics of Judicial Elections 2004 (New York:
Brennan Center for Justice, New York University Law School, 2005).

29. Larry Aspin, William K. Hall, Jean Bax, and Celeste Montoya, “Thirty Years of Judicial
Retention Elections: An Update,” The Social Science Journal 37 (2000), 12.

30. See, e.g., Jordan M. Singer, “The Mind of the Judicial Voter,” Michigan State Law
Review 2011 (2011), 1443–96; Lawrence Baum and Marie Hojnacki, “Choosing Judicial
Candidates: How Voters Explain Their Decisions,” Judicature (April/May 1992), 300–309.

31. Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

32. Stephen Lubet, “Black Robe Politics,” The American Lawyer (July 2003). See also
Charles Gardner Geyh, “Why Judicial Elections Stink,” Ohio State Law Journal 64 (2003),
43–79. The Supreme Court’s rulings that significantly undercut campaigning financing
regulations include McCutcheon v. FEC, 134 S.Ct. 1434 (2014); andCitizens United v.
FEC, 558 U.S. 50 (2010).

33. Still, Caperton also cautioned that not “every campaign contribution by a litigant or
attorney creates a probability of bias that requires a judge’s recusal.” Randy N. Smith, “A
Jurist and a Lawyer Consider Judicial Recusal After Caperton,” Judges’ Journal 52 (2013),
26–30. In light of Caperton, some states, such as Michigan and Wisconsin, strengthened
their recusal standards while others, such as California, Georgia, Massachusetts, Montana,
New York, and Texas, have considered recusal reform, such as allowing judicial peremptory
challenges (adopted by one-third of the states, to allow counsel to remove judges
peremptorily with disqualification “strikes”) or requiring disqualification motions to be
heard by a neutral judicial panel instead of the challenged judge. Tarr, Without Fear or
Favor, 152–54; Elizabeth K. Lamphier, “Justice Run Amok: Big Money, Partisanship, and
State Judiciaries,” Michigan State Law Review 2011 (2011), 1327, 1351–52. See also
Caperton v. Massey Coal Company, 556 U.S. 868 (2009).

34. James L. Gibson. Electing Judges: The Surprising Effects of Campaigning on Judicial
Legitimacy (Chicago: Chicago University Press, 2012); “White Noise: The Unrealized
Effects of Republican Party of Minnesota v. White on Judicial Elections,” Justice System
Journal 32 (2011), 247–68; Chris W. Bonneau and Melinda Gann Hall, In Defense of
Judicial Elections (New York: Routledge, 2011).

35. Matthew J. Streb, “Judicial Elections and Public Perception of the Courts,” in The
Politics of Judicial Independence: Courts, Politics, and the Public, edited by Bruce Peabody
(Baltimore, Md.: John Hopkins University Press, 2011), 162.

36. David K. Stott, “Zero-Sum Judicial Elections: Balancing Free Speech and Impartiality
Through Recusal Reform,” Brigham Young University Law Review 2009 (2009), 481, 497.
See also Julie Schuering Schuetz, “Judicial Campaign Speech Restrictions in Light of

243
Republican Party of Minnesota v. White,” Northern Illinois University Law Review (Spring,
2004), 340–41.

37. Federal lower courts are split on the constitutionality of candidates personally soliciting
campaign contributions, and they remain divided or are still determining the
constitutionality of “commit,” “pledge or promise,” and “misrepresent” clauses. Cynthia
Gray, “Top Judicial Ethics Stories of 2010,” Judicature 94 (2011), 94, 191; Walter M.
Weber, “Judicial Campaign Speech Restrictions: Some Litigation Nuts and Bolts,” Albany
Law Review 68 (2005), 635–50.

38. See, e.g., In re Matter Concerning a Judge (Kinsey), 842 So.2d 877 (Fla. 2003)
(disciplining judge for making improper campaign statements). Also, many jurisdictions
have consistently invalidated post-White judicial speech restrictions. Stott, “Zero-Sum
Judicial Elections,” 495–96.

39. See, e.g., Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002) (striking down Georgia
judicial canons that prohibited candidates from making misrepresentations or personally
soliciting campaign funds where Weaver, a challenger running for a seat on the Georgia
Supreme Court, distributed brochures and aired television ads portraying his opponent as
endorsing gay marriage, disagreeing with criminal laws punishing pedophiles, and opposed
to applying the death penalty); and Spargo v. N.Y. State Commission on Judicial Conduct,
244 F. Supp. 2d 72 (N.D.N.Y. 2003) (striking down New York’s ethical prohibitions
against judicial candidates engaging in political activities where Spargo, in running for a
seat on the New York Appellate Court, offered free cider, donuts, alcohol, and gasoline
while campaigning).

40. David B. Rottman, “Conduct and Its Oversight in Judicial Elections: Can Friendly
Persuasion Outperform the Power to Regulate?” Georgetown Journal of Legal Ethics 21
(2008), 1295–321; Roy A. Schotland and Barbara Reed, “Judicial Campaign Conduct
Committees,” Indiana Law Review 35 (2002), 781–805.

41. American Bar Association, Justice in Jeopardy: Report of the American Bar Association
Commission on the 21st Century (Chicago: American Bar Association, 2003), available from
www.americanbar.org/content/dam/aba/migrated/judind/jeopardy/pdf/report.authcheckdam.pdf
(last retrieved April 23, 2014).

42. Jurisdictions with evaluation programs are listed in National Center for State Courts,
“State Court Organization, Judicial Performance Evaluation (updated to early 2014, in
Table 6),” available at www.ncsc.org/sco-table6 (last retrieved April 24, 2014). On the
status of judicial performance evaluations and their effectiveness, see Jennifer K. Elek,
David B. Rottman, and Brian L. Cutler, “Judicial Performance Evaluation: Steps to
Improve Survey Process and Measurement,” Judicature 96 (2012), 66–75.

244
43. Wisconsin had a program for publicly financed Supreme Court races, but it only lasted
two years (2009–2011), although there are continuing efforts to bring it back. Bill Raferty,
“Wisconsin Democrats Try to Force Public Financing of Judicial Campaigns Out of
Committee,” available at http://gaveltogavel.us/2014/02/13/wisconsin-democrats-try-to-
force-public-financing-of-judicial-campaigns-bill-out-of-committee/ (last retrieved April
24, 2014). North Carolina repealed its public financing program for certain judicial
elections, as of 2014. North Carolina State Board of Elections, “Fact Sheet: Running for
Judicial Offices, 2014 Election,” available at
www.ncsbe.gov/ncsbe/Portals/0/FilesP/FilingFactsJudge2014.pdf (last retrieved April 24,
2014). New Mexico’s governor Susana Martinez vetoed legislation that would have
updated a voluntary system of public financing for elections of appellate court judges. Peter
Hardin, “Governor Vetoes Update to NM Public Financing Law,” Gavel Grab (April 8,
2013), available at www.gavelgrab.org/?p=55216 (last retrieved April 24, 2014). See also
Tarr, Without Fear or Favor, 155–60; Peter Hardin, “TV Ad Spending in Judicial Elections
So Far Climbs to $9.1 Million,” Gavel Grab (October 24, 2010), available at
http://gavelgrab.org/?cat=39 (last retrieved April 24, 2014); and National Conference of
State Legislatures, “Public Financing of Campaigns: An Overview (Updated January 23,
2014, Table 1),” available at www.ncsl.org/research/elections-and-campaigns/public-
financing-of-campaigns-overview.aspx (last retrieved April 24, 2014).

44. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S.Ct. 2806 (2011),
candidates in the public financing program were eligible to get additional funds if privately
financed challengers or independent organizations spent over a certain amount. See
Stephen Ansolabere, “Arizona Free Enterprise v. Bennett and the Problem of Campaign
Finance,” Supreme Court Review 2011 (2011), 39–79.

45. Alexander Hamilton, “Federalist No. 76,” inThe Federalist Papers, edited by Clinton
Rossiter (New York: Mentor, 1961), 457.

46. Henry J. Abraham. “A Bench Happily Filled: Some Historical Reflections on the
Supreme Court Selection Process,” Judicature (February 1983), 282–95.

47. J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System: A Study of the
Second, Fifth, and D.C. Circuit Courts of Appeals (Princeton, N.J.: Princeton University
Press, 1981), 90.

48. Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical
Analysis (Durham, N.C.: Duke University Press, 2003), 190.

49. George L. Watson and John A. Stookey, Shaping America: The Politics of Supreme Court
Appointments (New York: Longman, 1995), 64.

50. David M. O’Brien, “Federal Judgeships in Retrospect,” in The Reagan Presidency:

245
Pragmatic Conservatism and Its Legacies, edited by W. Elliot Brownlee and Hugh Davis
Graham (Lawrence: University Press of Kansas, 2003), 329.

51. Ibid.

52. Ibid., 329–30.

53. Ibid., 330.

54. David Alistair Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme
Court Nominees (Chicago: University of Chicago Press, 1999), 12–18.

55. David M. O’Brien, Judicial Roulette: Report of the Twentieth Century Fund Task Force on
Judicial Selection (New York: Priority Press, 1988), 58–60.

56. Ibid., 59 n. 38.

57. Sheldon Goldman, “Carter’s Judicial Appointments: A Lasting Legacy,” Judicature

(March, 1981), 344–55 (Tables 2 and 3).

58. Sheldon Goldman, “Reagan’s Judicial Legacy: Completing the Puzzle and Summing
Up,” Judicature (April/May 1989), 319–20. Justice Douglas is quoted in Graeme
Browning, “Reagan Molds the Federal Court in His Own Image,” American Bar Association
Journal (August 1985), 60.

59. Jon Gottschall, “Reagan’s Appointments to the U.S. Courts of Appeals: The
Continuation of a Judicial Revolution,” Judicature (June/July 1986), 48–54.

60. Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni, “Obama’s First Term Judiciary:
Picking Judges in the Minefield of Obstructionism,” Judicature 97 (2013), 7, 14–16;
Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni, “Obama’s Judiciary at Midterm:
The Confirmation Drama Continues,” Judicature 94 (2011), 262, 264–65, 279.

61. Sheldon Goldman, Elliot Slotnick, Gerard Gryski, Gary Zuk, and Sara Schiavoni, “W.
Bush Remaking the Judiciary: Like Father Like Son?” Judicature (May/June 2003), 285.

62. Sheldon Goldman, Elliot Slotnick, Gerard Gryski, and Sara Schiavoni, “W. Bush’s
Judiciary: The First Term Record,” Judicature (May/June 2005), 244, 254–55.

63. American Bar Association, “ABA Standing Committee on Federal Judiciary: What It Is
and How It Works,” available at
www.americanbar.org/groups/committees/federal_judiciary.html (last retrieved April 29,
2014).

64. For a sample of this criticism, see Paul D. Kamenar, “The Role of the American Bar

246
Association in the Judicial Selection Process,” in Judicial Selection: Merit, Ideology, and
Politics (Washington: D.C., National Center of the Public Interest, 1990), 93–101.

65. Mitchel A. Sollenberger, “The Blue-Slip Process in the Senate Committee on the
Judiciary: Background, Issues, and Opinions,” CRS Report for Congress, Order Code
RS21674 (November 21, 2003) (Washington, D.C.: Congressional Research Service,
2003), 2–3. The history of senatorial courtesy is discussed in Gerhardt, The Federal
Appointments Process, 143–44; see also John Anthony Maltese, The Selling of Supreme Court
Nominees (Baltimore, Md.: John Hopkins University Press, 1995), 121.

66. Senator Hatch is quoted in Betsy Palmer, “Evolution of the Senate’s Role in the
Nomination and Confirmation Process: A Brief History,” Report for Congress, Order Code
RL31948 (Updated March 29, 2005) (Washington, D.C.: Congressional Research Service,
2003), 8.

67. Sheldon Goldman, Elliot Slotnick, and Sara Schiavoni, “Obama’s Judiciary at
Midterm: The Confirmation Drama Continues,” Judicature 94 (2011), 262, 268. See also
Brannon P. Denning, “The Judicial Confirmation Process and the Blue Slip,” Judicature
(March/April 2002), 218–26.

68. Jeffrey Toobin, “Blue-Slip Battle: The Senate Obstructionists’ Secret Weapon,” The
New Yorker (November 26, 2013), available at www.newyorker.com (last retrieved May 3,
2014). See also Goldman, Slotnick, and Schiavoni, “Obama’s First Term Judiciary: Picking
Judges in the Minefield of Obstructionism,” 7, 17; McElroy and Cannan, “Obama’s
Second Term and the Federal Courts,” 100; Denning, “The Judicial Confirmation Process
and the Blue Slip,” 218, 221; Joseph A. Pike and John Anthony Maltese, The Politics of the
Presidency, 6th ed. (Washington, D.C.: CQ Press, 2004), 264–65.

69. Elizabeth Rybicki, CRS Report for Congress: Senate Consideration of Presidential
Nominations: Committee and Floor Procedure, Order Code RL 31980 (Updated November
25, 2013), 1–2.

70. See Barry J. McMillion, “U.S. Circuit and District Court Nominations During
President Obama’s First Five Years: Comparative Analysis With Recent Presidents,”
Congressional Research Service (R43369, January 24, 2014) (Washington, D.C.:
Government Printing Office, 2014).

71. 531 U.S. 98 (2000).

72. Goldman, Slotnick, Gryski, and Schiavoni, “W. Bush’s Judiciary: The First Term
Record,” 244–75.

73. William Douglas and Anita Kumar, “Democrats Strip GOP of Power to Block Many
Obama Appointees,” McClatchyDC (November 21, 2014), available at

247
www.mcclatchydc.com/2013/11/21/209345/democrats-strip-gop-of-power-to.html (last
retrieved April 26, 2014); Aaron Blake, “How Historic Is the GOP’s Filibuster of Mell
Watt?” The Washington Post (November 1, 2013), available at www.washingtonpost.com
(last retrieved April 27, 2014).

74. Denis Steven Rutkus, Congressional Research Service: Supreme Court Appointment
Process: Roles of the President, Judiciary Committee, and Senate, Order Code RL 31989
(February 19, 2010), 20–21. See also James A. Thorpe, “The Appearance of Supreme
Court Nominees Before the Senate Judiciary Committee,” Journal of Public Law 18 (1969),
371–402.

75. Jonathan Ringel (senior reporter for Legal Times), “Special Interest Groups and Judicial
Nominations” (T.V. interview for C-SPAN, September 8, 2001), available at www.c-
span.org (last retrieved April 29, 2014). See also Caldeira and Wright, “Lobbying for
Justice: Organized Interests, Supreme Court Nominations, and the United States Senate,”
American Journal of Political Science 42 (1998), 499–523; Jeffrey A. Segal, Charles M.
Cameron, and Albert D. Cover, “A Spatial Model of Roll Call Voting: Senators,
Constituents, Presidents, and Interest Groups in Supreme Court Confirmations,” American
Journal of Political Science 36 (1992), 96–121 (finding that organized interest groups
influence the confirmation process). Before Bork’s nomination, President Nixon’s 1969
nomination of Clement F. Haynsworth, Jr., and President Herbert Hoover’s 1930
nomination of John J. Parker mobilized intense interest group opposition. Peter G. Fish,
“Spite Nominations to the United States Supreme Court: Herbert C. Hoover, Owen J.
Roberts, and the Politics of Presidential Vengeance in Retrospect,” Kentucky Law Journal
77 (1989), 545–76.

76. Lee Epstein, René Lindstädt, Jeffrey A. Segal, and Chad Westerland, “The Changing
Dynamics of Senate Voting on Supreme Court Nominees,” Journal of Politics 68 (2006),
296–307. See also Robert A. Kagan, Adversarial Legalism: The American Way of Law
(Cambridge, Mass.: Harvard University Press, 2001), 50.

77. As quoted in John Massaro, Supremely Political: The Role of Ideology and Presidential
Management in Unsuccessful Supreme Court Nominations (Albany: State University of New
York Press, 1989), 165. A video clip of the speech is found at Huffington Post, “Ted
Kennedy Slams Robert Bork in 1987 Senate Speech (VIDEO),” available at
www.huffingtonpost.com/2012/12/19/ted-kennedy-robert-bork_n_2332730.html (last
retrieved April 30, 2014).

78. See Ayo Ogundele and Linda Camp Keith, “Reexamining the Impact of the Bork
Nomination to the Supreme Court,” Political Research Quarterly 52 (1999), 403, 405–6.
For a description of Bork’s judicial philosophy, see, generally, Robert H. Bork, The
Tempting of America: The Political Seduction of the Law (New York: Free Press, 1987), 143–
60.

248
79. Joyce A. Baugh, Supreme Court Justices in the Post-Bork Era: Confirmation Politics and
Judicial Performance (New York: Peter Lang, 2002), 10; O’Brien, Judicial Roulette, 100.

80. William G. Myers, III, “The Role of Special Interest Groups in the Supreme Court
Nomination of Robert Bork,” Hastings Law Quarterly 17 (1990), 411, 414; Bork, The
Tempting of America, 288.

81. Bork, The Tempting of America, 289. An analysis of interest group pressure tactics is
found in Gregory A. Calderia, Marie Hojnacki, and John R. Wright, “The Lobbying
Activities of Organized Interests in Federal Judicial Nominations,” Journal of Politics
(February 2000), 51–69. See also Moore v. City of East Cleveland, 431 U.S. 494 (1977).

82. Nancy Scherer, Scoring Points: Politicians, Activists, and the Lower Federal Court
Appointment Process (Stanford, Calif.: Stanford University Press, 2005); Nancy Scherer,
“The Judicial Confirmation Process: Mobilizing Elites, Mobilizing Masses,” Judicature
(March/April 2003), 240–50; Lauren Cohen Bell, Warring Factions: Interest Groups, Money,
and the New Politics of Senate Confirmation (Columbus: Ohio State University Press, 2002).

83. Gerhardt, The Federal Appointments Process, 222–23. For a critical view of interest
group advocacy, see Gregory A. Caldeira, “Commentary on Senate Confirmation of
Supreme Court Justices: The Roles of Organized and Unorganized Interests,” Kentucky
Law Journal 77 (1988), 531.

84. See Ayo Ogundele and Linda Camp Keith, “Reexamining the Impact of the Bork
Nomination to the Supreme Court,” Political Research Quarterly 52 (1999), 403–20; David
Danelski, “Ideology as a Ground for the Rejection of the Bork Nomination,” Northwestern
University Law Review (1990), 900–920; and George Watson and John Stookey, “The
Bork Hearings: Rocks and Roles,” Judicature 71 (1988), 194–96.

85. For Justice William Brennan’s 1957 confirmation hearing, there was no interest group
representation; but eighty-six witnesses aligned with organized interests participated in
Bork’s hearings. In the post-Bork era, ninety-six witnesses appeared in Justice Clarence
Thomas’s hearings; thirty-nine appeared in Justice David Souter’s confirmation hearings;
and twenty were a part of Justice Ruth Bader Ginsburg’s hearings. In comparison, for the
Bork hearings, 145 active groups participated, and another 81 (Thomas), 53 (Souter), 41
(Rehnquist), and 39 (Kennedy) were involved in other Supreme Court confirmation
hearings. Calderia, Hojnacki, and Wright, “The Lobbying Activities of Organized Interests
in Federal Judicial Nominations,” 58 (Table 2); see also Gerhardt, The Federal
Appointments Process, 219, 230.

86. Michael Avery, The Federalist Society: How Conservatives Took the Law Back From
Liberals (Nashville, Tenn.: Vanderbilt University Press, 2013); Ann Southworth, Lawyers of
the Right: Professionalizing the Conservative Coalition (Chicago: University of Chicago Press,

249
2008); Stephen M. Teles, The Rise of the Conservative Legal Movement: The Battle for
Control of the Law (Princeton, N.J.: Princeton University Press, 2008).

87. Elena Kagan, “Confirmation Messes, Old and New” (Book Review of Stephen L.
Carter’s The Confirmation Mess), 62, University of Chicago Law Review (1992), 919, 941.
See also Dion Farganis and Justin Wedeking, “‘No Hints, No Forecasts, No Previews’: An
Empirical Analysis of Supreme Court Nominee Candor From Harlan to Kagan,” Law and
Society Review 45 (2011), 525, 526 (but finding that invoking the Ginsburg rule is more of
a perception rather than a reality, based on empirical evidence); ibid., 528 (noting past
nominees were typically asked fewer than one hundred questions by the Senate Judiciary
Committee). But see Dan Froomkin, “Kagan Under Obligation to Open Up,” Huffington
Post (May 12, 2010), available at www.huffingtonpost.com/2010/05/12/kagan-under-
obligation-to_n_571733.html (last retrieved April 30, 2014); and Jonathan Turley, “Retire
the Ginsburg Rule,” USA Today (July 16, 2009), available at
http://usatoday30.usatoday.com/printedition/news/20090716/column16_st.art.htm (last
retrieved April 30, 2014).

88. Rutkus, Supreme Court Appointment Process, 31. See also Michael Comiskey, Seeking
Justice: The Judging of Supreme Court Nominees (Lawrence: University Press of Kansas,
2004), 12–13.

89. See, e.g., Sarah Binder and Forrest Maltzman, “New Wars of Advice and Consent,”
Judicature 97 (2013), 48–56; Charles R. Shipan and Megan L. Shannon, “Delaying
Justice(s): A Duration Analysis of Supreme Court Nominations,” American Journal of
Political Science (October 2003), 654–68; Sarah A. Binder and Forrest Maltzman,
“Senatorial Delay in Confirming Federal Judges, 1947–1998,” American Journal of Political
Science 46 (January, 2001), 190–99; Wendy L. Martinek, Mark Kemper, and Steven R.
Van Winkle, “To Advise and Consent: The Senate and Lower Federal Court Nominations,
1977–1998,” Journal of Politics (May 2002), 337–61.

90. Binder and Maltzman, “New Wars of Advice and Consent,” 48–56. See also Amy
Steigerwalt, Battle Over the Bench: Senators, Interest Groups, and Lower Court Confirmations
(Charlottesville: University of Virginia Press, 2010); Michael Teter, “Rethinking Consent:
Proposals for Reforming the Judicial Confirmation Process,” Ohio State Law Journal 73
(2014), 287–342.

91. Binder and Maltzman, “Senatorial Delay in Confirming Federal Judges, 1947–1998,”
52. See also Robert A. Carp and Kenneth A. Manning, “The Obama Judges: A Midterm
Assessment” (Unpublished Paper at the 2014 Annual Meeting for the Southwestern Social
Science Association Meeting, San Antonio, Texas, April 16–19, 2004) (on file with the
author); Shipan and Shannon, “Delaying Justice(s),” 665; and, Miller Center Commission
on the Selection of Federal Judges, Improving the Process of Appointing Federal Judges: A
Report of the Miller Center Commission on the Selection of Federal Judges (Appendix B)

250
(Charlottesville: Miller Center of Public Affairs, University of Virginia, 1996).

92. Figure 4.3 is constructed using Goldman’s “obstruction and delay” index. The index
computes the number of nominees who remain unconfirmed at the end of Congress, which
are added to the number for whom the confirmation took longer than 180 days, which is
then divided by the number of total nominees for that Congress. A calculation that is
“0.0000” indicates an absence of obstruction and delay, whereas “1.0000” shows maximum
obstruction and delay. Thus, an index calculation that moves closer to 1 indicates a greater
level of obstruction and delay. Sheldon Goldman, “Assessing the Senate Judicial
Confirmation Process: The Index of Obstruction and Delay,” Judicature 86 (2003), 251–
57.

93. Teter, “Rethinking Consent: Proposals for Reforming the Judicial Confirmation
Process,” 287, 297–99 (observing high vacancy rate in federal courts during Obama
administration negatively affects case disposition time, erodes the administration of justice,
diminishes public’s confidence in courts, and deters recruitment of qualified persons willing
to serve on the federal bench).

94. See, e.g., “5/6/03 Letter From Counsel to the President Alberto R. Gonzales to Senator
Schumer Regarding the Judicial Confirmation Process,” reprinted in Subcommittee on the
Constitution, Civil Rights, and Property Rights, “Judicial Nominations, Filibusters, and
the Constitution: When the Majority Is Denied Its Right to Consent,” S. Hrg. 108–227
(108th Congress, 1st Session, May 6, 2003) (Serial No. J-108-9); Charles E. Schumer,
“Judging by Ideology,” New York Times (June 26, 2001), A19; John Cornyn, “Our Broken
Judicial Confirmation Process and the Need for Filibuster Reform,” Harvard Journal of
Law and Public Policy 27 (2003), 182–230; White House, “Infographic: President Obama’s
Judicial Nominees (September 24, 2013),” available at www.whitehouse.gov (last retrieved
May 5, 2014).

95. Miller Center Commission on the Selection of Federal Judges, Improving the Process of
Appointing Federal Judges, 6–10.

96. O’Brien, in “Report of the Task Force,” 5, 10–11.

97. Teter, “Rethinking Consent: Proposals for Reforming the Judicial Confirmation
Process,” 287, 301–4.

98. Richard Davis, Electing Justice: Fixing the Supreme Court Nomination Process (New
York: Oxford University Press, 2005), 170–72.

99. Carp and Manning, “The Obama Judges: A Midterm Assessment,” 8. See also U.S.
Department of Justice, Office of Legal Policy, “Judicial Nominations: 113th Congress,”
available at www.justice.gov/olp/judicialnominations113.htm (last retrieved May 5, 2014);
Binder and Maltzman, “New Wars of Advice and Consent,” 50–51 (comparing

251
confirmation rates of Presidents G. W. Bush and Obama in first term).

100. Sheldon Goldman, Picking Federal Judges: Lower Court Selection From Roosevelt
Through Reagan (New Haven, Conn.: Yale University Press, 1997), 362–63; O’Brien,
“Report of the Task Force.”

101. Comiskey, Seeking Justice, 81, 134; Gerhardt, The Federal Appointments Process, 287;
O’Brien, “Report of the Task Force.”

102. As quoted in Michael J. Frank, “Judge Not, Lest Yee Be Judged Not Worthy of a Pay
Raise,” Marquette Law Review (Fall, 2003), 81.

103. Greg Goelzhauser, “Diversifying State Supreme Courts,” Law and Society Review 45
(2011), 761–81; Mark S. Hurwitz and Drew Noble Lanier, “Diversity in State and Federal
Appellate Courts: Change and Continuity Across 20 Years,” Justice System Journal 29
(2008), 47–70. See also Chris W. Bonneau, “The Composition of State Supreme Courts
2000,” Judicature (July/August 2001), 26–31 (Table 1); John B. Wefing, “State Supreme
Court Justices: Who Are They?” New England Law Review (Fall 1997), 47–100.

104. See, e.g., American Bar Association Commission on Women in the Profession,
“Current Glance of Women in the Law,” available at www.abanet.org/women/articles.html
(last retrieved September 25, 2004) (noting as of 2000 women comprise 29.7 percent of all
lawyers and, as of 2001, 48 percent of law students are women).

105. Albert Yoon, “Love’s Labor’s Lost? Judicial Tenure Among Federal Court Judges:
1945–2000,” California Law Review (2003), 1055, 1056 n. 86; see also Goldman, Slotnick,
and Schiavoni, “Obama’s First Term Judiciary: Picking Judges in the Minefield of
Obstructionism,” 39–43 (Tables 4 to 8) (reporting net worth of judges).

106. Denis Stephen Rutkus, “Judicial Salary: Current Issues and Options for Congress”
(updated September 16, 2008), CRS Report for Congress, Order Code R34281
(Washington, D.C.: Congressional Research Service, 2008) (noting that it is unclear if
lower salaries are causing early retirements); Linda Greenhouse, “Chief Justice Advocates
Higher Pay for the Judiciary,” New York Times (January 7, 2007), available at
www.nytimes.com (last retrieved May 5, 2014). See, e.g., Atkins v. United States, 556 F.2d
1028 (Ct. Cl. 1977); Williams v. United States, 48 F. Supp. 2d 53 (D.D.C. 1999), aff’d and
rev’d, 240 F.3d 1019 (D.C. Cir. 2001), petition for cert. denied, 535 U.S. 911 (2002).

107. Lee Epstein, Jack Knight, and Andrew D. Martin, “The Norm of Prior Judicial
Experience and Its Consequences for Career Diversity on the U.S. Supreme Court,”
California Law Review (July, 2003), 912; Bonneau, “The Composition of State Supreme
Courts 2000” (Table 1); Yoon, “Love’s Labor’s Lost?” 1029–60; Goldman, Slotnick, and
Schiavoni, “Obama’s First Term Judiciary: Picking Judges in the Minefield of
Obstructionism,” 41, 43 (Table 6, 8).

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108. Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton, N.J.:
Princeton University Press, 1949), 241.

109. Berkson, “Judicial Selection, Compensation, Discipline and Mandatory Retirement,”

72–73.

110. Cynthia Gray,A Study of State Judicial Discipline Sanctions (Chicago: American
Judicature Society, 2002), 3, 5. See also Cynthia Gray, “The Center for Judicial Ethics: An
Evolving Clearinghouse,” Judicature 96 (2013), 305–13.

111. Cynthia Gray, “How Judicial Conduct Commissions Work,” Justice System Journal 28
(2007), 405–18. See also Cynthia Gray, A Study of State Judicial Disciplinary Sanctions (Des
Moines, Iowa: American Judicature Society, 2002).

112. Gray, “How Judicial Conduct Commissions Work”, 405, 415–16.

113. Federal Judicial Center, “Impeachments of Federal Judges,” available at

www.fjc.gov/history/home.nsf/page/judges_impeachments.html (last retrieved May 6,
2014). See also Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal
Impeachment Trials (Urbana: University of Illinois Press, 1992); Mary L. Volcansek,
Judicial Impeachment: None Called for Justice (Urbana: University of Illinois Press, 1992).

114. 28 U.S.C. §§ 351–64, as amended by the Judicial Improvements Act of 2002, 28

U.S.C. §§ 11041, et seq. A significant challenge to circuit court council disciplinary
authority is found in Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74 (1970).

115. Administrative Office of U.S. Courts, “Report of Complaints Commenced and

Action Taken Under Authority of 28 U.S.C. 351–364” (Table S–22) (for years from 2011
to 2013), available at www.uscourts.gov (last retrieved May 5, 2014).

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Part III Access To Courts And Judicial Decision
Making

254
Chapter 5 The Practice of Law

IN THE 1830S, THE FRENCH OBSERVER ALEXIS DE TOCQUEVILLE NOTED

THAT IN THE United States lawyers possess a “specialized knowledge of the law” that
enables them to “fill most public functions” in society.1 A majority of American presidents
have come from the legal profession and, in contemporary times, almost half of the
Congress consists of lawyers. In the private sector, lawyers occupy influential positions on
corporate boards, in nonprofit organizations, and on community task forces or committees.
In short, lawyers perform a variety of critical public and private functions. Most important,
they are the “primary gatekeepers to the administration of justice” and have an
instrumental role in providing access to courts.2 In this chapter, we examine the growth
and changing nature of the legal profession, the business of legal practice, and the
opportunities and limits of the profession in providing access to justice.

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The Rise of the American Legal Profession
In historical perspective, the public image of lawyers has almost always been dim because
they are viewed as mercenaries who needlessly stir up litigation. In colonial times, a North
Carolina vigilante group, “The Regulators,” characterized lawyers as “cursed Hungry
Caterpillars [who charged] fees that eat out the very bowels of [the] Commonwealth.”3
Colonial laws tried to curb the number and influence of lawyers by limiting their ability to
make money and preventing them from assuming public leadership positions. In 1641, it
was illegal for Massachusetts lawyers to charge a fee for their services, and they were barred
from holding a seat in the legislature. Not only were such restrictions disincentives to
practice law, but they also created a prejudice against lawyers that has endured.4

At that time, law schools as we know them did not yet exist, so the primary methods of
colonial legal training were self-study or apprenticeships. Apprenticeships were supposed to
give students theoretical and practical experience by reading books in the law library,
watching other attorneys in court, and performing menial tasks, such as drawing up
contracts. Still, the value of an apprenticeship was questionable because most of the work
was drudgery and there was often little time to read law books. In this regard, colonial
lawyers “mastered the law not because of their legal apprenticeship, but in spite of it.”5

Political cartoon depicting lawyers in a negative light

WUMO © 2014 Wulffmorgenthanler. Reprinted with permission of Universal Uclick. All

rights reserved.

Despite their shortcomings, apprenticeships were an important part of early attempts to

institutionalize legal education. Another was the movement toward university instruction,
first at the College of William and Mary in 1779 and then elsewhere. The first private law
school opened under the direction of Judge Tapping Reeve in 1784 in Litchfield,

256
Connecticut. Unlike William and Mary’s approach, which taught principles of law through
a formal interdisciplinary curriculum, Litchfield’s pedagogy provided students with legal
training from the practitioners’ perspective. The issue of whether lawyers are best trained
through formal academic study or by practical experience was partially resolved with
Harvard University’s decision to open a law school in 1826. Harvard reduced the
practitioner’s perspective to virtual insignificance and began the process of transforming law
schools into the institutional basis for a legal education.6

The growth of the modern legal education, however, was slowed by Jacksonian democracy
in the 1830s, a populist social reform movement that resulted in the legal profession
becoming more accountable to the people. First, many state legislatures began to change
their methods of judicial selection by replacing the appointment of judges with popular
elections. Second, the common law was assailed by attempts to replace it with the adoption
of written codes. Third, the spirit of equality underlying the Jacksonian era mandated that
legal practice remain open to all, and bar admission standards were relaxed or abolished.7

Diversifying the practice of law also created more opportunities to enter the profession.
Anyone possessing minimum age and “good moral” requirements could be licensed. Lax
standards also encouraged students to go to law schools because several states allowed direct
bar admission (without taking an exam) upon graduation. Using the so-called diploma
privilege, about 2,400 persons entered the legal profession between 1860 and 1875 in
fifteen states. Some states even had “twenty dollar” lawyers, who simply paid that amount
to be licensed to practice law. Moreover, apprenticeships could not compete with law
schools in raising the professional standards. Although Jacksonian democracy encouraged
greater access to the legal profession, it also created a corresponding movement for
professional self-regulation by the organized bar.8

The post–Civil War and Reconstruction period expanded the scope of the national
economy and in turn sharply increased the demand for law education.9 Local bar
associations, first established in New York City, Cleveland, Chicago, St. Louis, and Boston,
worked with the American Bar Association (ABA) to restrict entry into the profession. The
bar argued that stricter standards were necessary to ensure the quality of the legal
profession. Critics, however, observed that minorities, immigrants, and women were
thereby excluded from becoming part of the legal profession. Moreover, the law school
curriculum was idiosyncratic and varied from school to school. Accordingly, bar
associations and a new private accreditation organization, the Association of American Law
Schools (AALS), founded in 1900, lobbied state legislatures to restrict law school entry and
bar admissions. Tightening standards enabled ABA-approved law schools to become the
exclusive path to the practice of law.10

The accreditation standards initiatives of the ABA, the AALS, and local bar associations
eventually created national standards for bar examinations. The push toward professional

257
self-regulation allowed new requirements to be instituted, including ending the diploma
privilege, imposing the requirement of college study as a precondition for law school
admission, requiring compulsory attendance in law schools for three years, and making
graduation a prerequisite for taking compulsory bar examinations.11

The rise of the legal profession was also greatly affected by two other closely related
developments: the institutionalization of the academic casebook method and the
establishment of the so-called Wall Street law firm. The casebook method was introduced
in 1870 by Christopher Columbus Langdell, the dean of Harvard University’s law school.
In contrast to a lecture style of instruction, students learned law by studying appellate
judicial opinions, reprinted in casebooks. For Langdell, “law, considered as a science,
consists of certain principles or doctrines, [and] a mastery of these...is what constitutes a
true lawyer...and [the]...best, if not the only way of mastering the doctrine effectually is by
studying the cases in which it is embodied.” Scientifically studying case law facilitated
logical reasoning or, in popular terms, “thinking like a lawyer.” Casebooks isolated key legal
principles, and professors asked students to determine whether judges properly adhered to
precedent (past decisions). In time, Langdell’s “case method” of teaching common law
doctrine became associated with the “Socratic method” of modern classroom instruction
that was popularized in best-selling books (Scott Turow’s One L) and movies (The Paper
Chase) that depicted Harvard Law School’s grueling first-year law school experience. As
many law students today learn, such portrayals underscore the old saw that in the first year
of law school “they scare you to death; in the second, they work you to death; in the third,
they bore you to death.”12

The casebook method became widely adopted as an effective tool to increase class size and
to keep law schools profitable with higher enrollments. Its popularity made apprenticeships
virtually irrelevant, and it facilitated the rise of the Wall Street law firm by encouraging law
firms to hire young associates directly from law school, without prior legal experience. The
Wall Street law firm emerged in the 1890s as an innovation of a Columbia Law School
graduate and New York City attorney, Paul D. Cravath (a founder of Cravath, Swaine &
Moore). Cravath structured the law office as a bureaucratically efficient and profitable
entity—sometimes called a “factory system of law”—with a filing system, typewriters,
stenographers, and typists. He also recruited new, aggressive associates who were in the top
of their class from elite law schools. As a result, the Cravath law firm produced meritorious
but “anonymous organization men, steadfastly loyal to the firm that had hired them fresh
out of law school, [and] moving only if the firm informed them it could not advance them
to partnership.” If the associate attorney made the grade by putting in long hours in a law
firm environment that resembled a “sweat shop,” a successful lawyer could expect to
become a partner within five to nine years.13

The Cravath system and its recruiting practices caught on quickly, and several large firms
appeared in major metropolitan areas—New York, Chicago, Boston, and Cleveland,

258
among others. The institutionalization of the large corporate law firm brought with it legal
specialization and commercialization, and both remain today. The advancement of office
technologies pushed legal environments toward a business model predicated on generating
a reliable source of revenue that was readily found in corporate, as opposed to sporadic,
individual client representation. Though rhetorical skill in a courtroom was valued, it was
no longer perceived to be the ticket to professional success. Instead, professional
advancement was conditioned on generating a profitable client base (a precursor to the
modern professional norm of “billable hours,” which is one of the prominent methods by
which lawyers earn fees on the basis of the time spent performing legal work). If an
associate met the firm’s expectations, promotion to partner was likely, and an attorney
could then share in the firm’s profits.14

The socialization of the contemporary lawyer remains a by-product of the historical changes
made to law schools, accreditation standards, the structure of legal education, and law firm
organization after 1870. Once admission standards were nationally applied, apprenticeship
gave way to learning the skills of a professional lawyer in a classroom with a casebook. The
academic rather than practice-based focus of legal training coincided with transforming the
law degree into a graduate education that enabled the growth of university-affiliated law
schools. And with the rise of the large law firm, the traditional conception of the generalist
lawyer gradually yielded to the reality that attorneys are specialists, cultivating the business
of legal practice for its financial rewards. Significantly, a new emphasis on corporate
practice brought with it an increasing stratification within the legal profession, separating
the elite performers from the “also-rans.”15

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Contemporary Legal Education and Bar Admission
Since the 1960s, the number of attorneys has quadrupled due to a proliferation of new law
schools and graduates between 1960 and 2000. Notably, the United States was not alone in
experiencing a dramatic increase in the number of lawyers: other common law countries
(such as England and Wales, and Canada) as well as many civil law countries (like Germany
and Italy) saw a rapid increase at roughly the same time.16

Today, there are 239 law schools in the United States: 203 with ABA accreditation and 36
nonaccredited institutions. Moreover, the growth of the Internet has spawned distance
learning and so-called MOOCs (“massive open online courses” that are free to take), which
expand the reach of legal training. Though several online law schools have emerged because
of their low cost and flexibility, none are ABA approved, which greatly restricts their utility
for passing a bar exam and practicing law. As a result, MOOCs are plagued by low
graduation rates and other problems, so their impact on legal education in the future
remains uncertain.17

Regardless, the legal profession is now a $246 billion industry, with over 169,000 legal
establishments; 163,000 law offices; and over 1.2 million lawyers, judges, and legal support
staff. Between 1947 and 2002, the ratio of population to lawyers shrunk from 790:1 to
about 283:1. In 2011, there were 392 lawyers for every hundred thousand people, which
remains the second highest ratio in the world next to Israel.18

Recently, however, legal practice in the United States has been growing at an anemic rate,
and in turn, fewer students are pursuing legal education.19 The number of students taking
the Law School Admission Test (LSAT), a key criterion of law school admission, has
sharply declined. Between 2010 and 2013, the rate of law school applications fell by 38
percent, their lowest point in the past thirty years. Total enrollments in the Juris Doctor
(JD, the three-year law degree) programs decreased from about one hundred forty-seven to
one hundred thirty-nine thousand. Since the mid 1990s, the rate of new bar admissions has
not appreciably grown, leveling off to about sixty thousand per year (see Figure 5.1). Some
observers are forecasting that law schools are facing an unprecedented economic crisis—in
part brought on by high tuition rates, rising student loan debt, and the unpredictable
success in landing employment after graduation. New Internet-based businesses, among
them LawPivot, RocketLawyer, and LegalZoom, have reduced the need for lawyers, and
law-licensed legal research is now readily available to anyone looking to cut back on high
legal costs. Consequently, some legal experts fear that the demand for lawyers will continue
to decline and a permanent restructuring of the profession will force law school closures,
massive layoffs, and fewer new attorneys.20

Figure 5.1 Demand for Legal Education, 1964–2013

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Sources: American Bar Association Section of Legal Education and Admissions to the
Bar, “Enrollment and Degrees Awarded 1963–2012,” available at
www.americanbar.org/groups/legal_education/resources/statistics.html (last retrieved
April 24, 2014); Law School Admissions Council, “LSAT’s Administered—Counts
and Percent Increases by Admin and Year,” available at
www.lsac.org/lsacresources/data/lsats-administered (last retrieved April 24, 2014);
National Conference of Bar Examiners, “Bar Examination and Admissions Statistics,”
available at www.ncbex.org/publications/statistics (last retrieved April 24, 2014).

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U.S. Law School Education
Unlike many other legal systems throughout the world, in the United States, eligibility to
practice law usually begins with admission into law school after graduating from an
undergraduate university or college. By contrast, in most civil law countries, legal training is
provided in undergraduate schools. Earning a law degree in some common law countries—
notably, the United Kingdom and Canada—also differs from that in the United States (see
“In Comparative Perspective: Legal Education and Lawyers in Western Democracies” in
this chapter and “In Comparative Perspective: The Career Judiciary in Japan” in Chapter
Four).

For U.S. students, the chances of admission into law school are strengthened if they have,
as an undergraduate, a high grade point average and a high LSAT score. While other factors
relating to a candidate’s personal qualifications remain important, another key factor is that
typically students spend several hundred, and sometimes thousands, of dollars in
application fees for applying to several schools, taking the LSAT, and having the Law
School Data Assembly Service (LSDAS) send their transcripts and letters of
recommendation to targeted schools. Given the significance of scoring well on the LSAT,
many applicants also take expensive LSAT-preparation classes (costing up to $1,500 or
more).21

Paying for law school is another disincentive, and increasingly also a burden, for those who
are admitted and graduate. During the last decade or so, the average cost of law school
tuition has jumped about 200 percent. Whereas in 1987 the average tuition for public law
schools was under $3,000, in 2009 it rose to nearly $19,000. For private law schools in
1987, tuition was about $9,000, but in 2009 it was almost $36,000. Rising tuition has
caused a corresponding increase in student loan debt. In the mid 1980s, the total amount
of loan debt for undergraduate and law school was roughly $16,000. By 2010, it was
almost $70,000 for public schools and about $107,000 for private institutions. In addition,
nearly 90 percent of law students borrow money to attend law schools, incurring an average
of $80,000 to $98,500 in student debt. Such high debt is likely to linger long after
graduation and recently led some students to question whether law school offers a good
return on investment. As law professor Mary Ann Glendon quipped, the specter of paying
off student loans means “the gilded cage has a trapdoor.”22

Once in law school, law students are trained through a combination of the Socratic
casebook method, lectures, legal clinics, moot courts, legal research, and writing exercises.
Although there are opportunities to gain practical law office or trial court experience, the
thrust of legal training remains learning legal doctrine through casebook analysis. There is
little emphasis on interdisciplinary training because it is unnecessary to pass the bar. Over
the usual three-year program, only a few practice skills are developed with moot court

262
competitions, legal clinics, mock trials, and, for those at the top of the class, student-led law
reviews and journals. The lack of practical training has led some observers to criticize that
the teaching of legal doctrine and theory is overemphasized.23 Moreover, a related concern
is that many law professors have limited credentials to teach because they only have a law
degree—only a few possess an additional master’s degree in law (Master of Laws, or LLM)
or, less often, a Doctor of the Science of Law (SJD) or a PhD in a related field. Most simply
hold a JD and have little teaching experience beyond their nonacademic professional
activities.24

The traditional preoccupation with doctrinal legal instruction underscores that it is “still
almost entirely about law and...only incidentally and superficially about lawyering.”25
Increasingly, law schools are hiring faculty who have both a JD and a PhD in a nonlaw
discipline, but little or no experience in practicing law. A study of 872 professorships
(about 15 percent of the profession) found that only about a handful of elite schools—
Harvard, Yale, Columbia, Chicago, Michigan, and New York University—are responsible
for producing almost one-third of the nation’s law professors. And 60 percent of the
professorate came from top-twenty schools. Another study shows graduates of the nation’s
top fifty law schools—especially Yale, Harvard, and Stanford—are more likely to be hired
by other top-fifty law schools, and all law schools usually select faculty from schools that are
ranked above them. More often than not, a different concern is that many law faculties are
dominated by white males, and thus merely homogeneous “gatekeepers and molders” of the
profession.26

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In Comparative Perspective

264
Legal Education and Lawyers in Western Democracies
Justice Felix Frankfurter once observed: “In the last analysis, the law is what lawyers are. And the law and
the lawyers are what law school makes them.” Whereas prospective lawyers in the United States complete a
four-year undergraduate degree before they apply to a law school, it is possible in Canada to be
professionally licensed with only two or three years of undergraduate education. That was once true in the
United States until the early part of the twentieth century, and it was not until 1957 that all justices on the
Supreme Court had formal law degrees. A few states, like Virginia, still allow people to take the bar exam
without having earned a law degree. Now, though, most U.S. students earn their undergraduate degree and
then apply to one of the nation’s 239 law schools in fifty states to earn a JD (Juris Doctor) degree. By
contrast, Canada has only 17 law schools in ten provinces and three territories. Most Canadian law schools
offer degree programs in the English or French common law. Canadian law students may earn an LLB
(Bachelor of Laws), a BCL (Bachelor of Civil Law), or a JD degree, typically in three years. As in the United
States, many Canadian law schools use the Law School Admission Test (along with grade point averages to
evaluate applicants’ merits, but some bilingual learning institutions, such as the McGill University Faculty
of Law, do not require it because the LSAT is an English-only test). Unlike the U.S. schools, Canadian law
schools also offer an alternative system of admissions that may admit “special” applicants—those lacking an
undergraduate degree; those with special needs, disabilities, or financial hardship; or those historically
disadvantaged because of race or ethnicity.

In contrast, U.K. law schools admit students into undergraduate law programs. Students may choose among
roughly one hundred universities that offer law programs, including the most prestigious—Oxford and
Cambridge. As in the United States and Canada, admission decisions are based on grades—though, high
school grades—and other meritorious factors; some law schools also require the National Admissions Test
for Law (LNAT), a standardized test analogous to the LSAT.

Moreover, unlike in the United States or in Canada, it is possible to become a U.K. lawyer without having
an undergraduate law degree, although a degree in another discipline is required. For example, students who
have an undergraduate degree in history or economics may take a one-year Postgraduate Diploma in Law
(PGDL) course that assesses proficiency in seven core subjects (criminal law, constitutional law, tort law,
contract law, land law, equity/trust law, and European Union law). Likewise, U.K. students with an
undergraduate law degree must also take a one-year vocational course—the Legal Practice Course (LPC)—if
they want to become “solicitors” in a law firm, or the Bar Vocational Course (BVC) if they want to become
“barristers” who argue cases in court. Once the appropriate vocational course and the corresponding exams
are passed, U.K. students begin an apprenticeship, or a period of practical training under the supervision of
an experienced lawyer, before becoming a lawyer. Notably, the United Kingdom and Canada, unlike the
United States, require apprenticeships as a prerequisite for law licensing (in the United Kingdom,
apprenticeships for solicitors are called “training contracts,” and barristers complete a “pupilage”; the
apprenticeship in Canada is called “articling”).

Furthermore, in Canada, law graduates must successfully pass a bar admission course in order to qualify for
bar admission. The Canadian bar admission program is regulated by rules established by the provincial or
territorial “law society” in which the bar applicant intends to practice law. These law societies are akin to
state bar associations in the United States that regulate professional licensing. In contrast, U.K. lawyers are
regulated by “law societies” (for solicitors) or the Bar Council and its independent Bar Standards Board (for
barristers). While the mandatory one-year vocational course in the United Kingdom that is taken before an
apprenticeship is arguably functionally equivalent to the Canadian compulsory bar admission course, U.S.
law schools generally do not provide similar courses; instead, U.S. bar applicants typically take expensive,
bar preparation courses after law school that help them pass state bar examinations.

Finally, U.S. and Canadian lawyers are considered “generalists,” whereas, in the United Kingdom, lawyers
are distinguished by their respective solicitor or barrister expertise. Even so, most U.S. and Canadian

265
lawyers informally develop specialties in law (criminal defense attorneys, real estate attorneys, family law
attorneys, and the like) during the course of their careers.

The table below summarizes the prelaw, law, and bar admission requirements for the United States,
Canada, and the United Kingdom.

United States, Canada, and the United Kingdom

Sources: F. C. DeCoste, On Coming to Law: An Introduction to Law in Liberal Societies, 3rd ed.
(Markham, Ontario: LexisNexis Canada, 2011) (J. Frankfurter’s quote is on p. xxiii); Nicholas J.
McBride, Letters to a Law Student: A Guide to Studying Law at University, rev. 3rd ed. (Edinburgh
Gate, U.K.: Pearson Education Limited, 2013); Comparative Law and Society, edited by David S.
Clark (Northampton, Mass.: Edward Elgar, 2012).

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Professional Ethics
An integral component of law school instruction involves teaching students the significance
of professional responsibility and legal ethics because passing the Multistate Professional
Responsibility Examination (MPRE) is a condition for bar admission (discussed in the next
section). Since the 1970s, the ethical rules promulgated by the American Bar Association
have been codified in the Model Rules of Professional Conduct (MRPC). All states have
adopted some version of the model rules.27

Under the MRPC, law students are taught that they are “officers of the court” and hold a
special place in the community in representing clients. In general, the rules mandate that
attorneys act with competence and due diligence in the cases they handle, and that they be
free from conflicts of interest that undermine the position of trust that they hold in relation
to their clients. These rules detail specific procedures for managing client monies and
preventing a comingling of business and client funds. Moreover, they proscribe standards
that govern client representation and managing or selling a law practice, including acting as
advocates for client interests, maintaining client confidentiality, knowing the rules of
advertising legal services, and other ethical issues.

Furthermore, ethical training is reinforced by the threat of professional sanction. If

attorneys transgress ethical codes, the MRPC makes them subject to penalties ranging from
reprimand and suspension to disbarment. The responsibility for evaluating alleged acts of
attorney misconduct ordinarily rests with the state’s court of last resort and the state’s
authorized bar disciplinary commissions. Still, disciplinary systems vary widely across the
states, and critics complain that they are ineffectual because they are too idiosyncratic and
fraught with bias because lawyers are mostly in charge of policing themselves.28

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Bar Admissions
Bar admissions for the practice of law are similarly restrictive and limit the number of
practicing lawyers. In order to practice before most federal courts, lawyers must generally be
a member of the bar within the jurisdiction of a federal court in which they will practice.
With the exception of a few states, such as California, Maine, New Hampshire, and
Wisconsin, that allow admission by apprenticeship or diploma privilege, state bar
applicants must pass the standardized Multistate Bar Examination (MBE), offered
semiannually by the National Conference of Bar Examiners (NCBE) (established in 1931).
The MBE consists of two hundred multiple-choice questions typically covering most first-
year law school subjects. Its purpose is to evaluate proficiency in legal reasoning and in
understanding the application of legal principles to different situations. In about thirty
states, applicants also must pass the Multistate Essay Examination (MEE), an essay portion
of the test usually covering substantive and procedural competence to practice law in a
particular state. For non-MEE jurisdictions, other states use an identical variation with
either multiple-choice or essay performance testing.29

In response to the criticism that law schools do not teach enough practical skills, all but
about ten jurisdictions condition bar admission on passing a national clinical skills test, the
Multistate Performance Test (MPT). The MPT evaluates the ability to use basic lawyering
skills in real-life situations and how law students would handle hypothetical cases. In
addition to meeting residency and character fitness requirements, all states require
applicants to pass a national ethics examination, the MPRE, a multiple-choice standardized
test that measures competence in accordance with the Canons of Professional Ethics and
the Rules of Professional Conduct, and tests an applicant’s proficiency in applying ethical
rules to all facets of legal practice, including the client-lawyer relationship, conflicts of
interest, financial management, and attorney roles or duties within the legal system.30

Despite these institutional and financial barriers, tens of thousands of lawyers are admitted
into practice each year. From the 1960s to the mid-1990s, bar admissions have steadily
risen (see Figure 5.1). In 2013, 83,986 took bar examinations, with 68 percent passing. In
addition, more women, and to a lesser degree minorities, have entered the profession.
Before 1972, women represented less than 10 percent of the profession. By 1980, the
number rose to 36 percent, and by 2011, it increased to 46 percent. Minority enrollments
have not increased as quickly; still, in 2013, minorities constituted 26 percent of total JD
law school students.31

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After Bar Passage: Trends in Diversity and Employment
Inequality
Despite the incremental gains made by women and (to a lesser degree) minorities, social
norms substantially prevent employment equality. While men and women retain an
identical percentage of judicial positions, men outpace women by a significant margin in
working as lawyers and in judicial clerkships, while the reverse is true for nonwhites and
women in subordinate paralegal or legal assistant positions (see Table 5.1). According to
2008 census data, African Americans held 7 percent of judgeships, whereas Hispanics and
Asians filled only 3 percent of the bench, but each ethnicity fared better in working as
paralegals or miscellaneous legal support workers. Furthermore, in 2011, only 15 percent of
“equity” partners in a law firm (sharing profits among other partners) were women, and 26
percent were state or federal judges. Moreover, women generally earn less than men, and
fewer succeed in getting promoted to high-status positions, such as becoming a partner in a
law firm. In law professor Deborah Rhode’s words:

Women and men of color are still overrepresented at the bottom of the academic
pecking orders and underrepresented in the upper ranks of tenured faculty and senior
administrative positions. Only twenty percent of full professors and ten percent of law
school deans are female, and only ten percent of those in either position are faculty of
color.32

A 2014 report by the ABA’s Commission on Women in the Profession underscored the
disparities: (1) women only represent 21.0 percent of Fortune 500 general counsel
positions, and of those, 81.9 percent are white, 10.5 percent are African American, 5.7
percent are Hispanic, and 1.9 percent are either Asian American or of Pacific Islander
descent; (2) only 20.6 percent of law school deans are women; (3) women occupy 24.1
percent of lower federal court judgeships, and between 25 and 31 percent of lower state
court judgeships; and (4) between 2004 and 2013, on average, women lawyers made $418
less per week than men.33

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The Business of Legal Practice
Legal practice has undergone a significant transformation since the 1960s. The traditional
career choice of a solo practitioner has yielded to the pressure of cost-effective employment
in a law firm. That has meant that attorneys, trained as “generalists,” now usually develop
specialties, often during their first job after law school. Such specialization in such discrete
areas of law after many years of practice includes corporate, labor, tax, family, real estate,
tort, and criminal law, among others. Moreover, the prestige of the law school from which
a graduate is hired usually affects a lawyer’s career path. Within private practice, graduates
from more prestigious law schools are likely to wind up in large law firms, whereas students
from less renowned schools tend to be employed in midsize to small law firms.

Once employed, lawyers often make lateral career changes, taking the skills learned in one
job to another. Government lawyers, for instance, may become criminal defense attorneys;
likewise, a law firm associate’s experience might be later channeled into corporate work or
even a judgeship. By contrast, attorneys in civil law countries do not have nearly as much
lateral mobility because their training as civil bureaucrats locks them into certain positions.
Hence, at the beginning of his or her career, a civil law attorney has to decide to go into
private practice or, alternatively, become a judge, prosecutor, or government attorney.34

Source: U.S. Census Bureau, “B24010. Sex by Occupation for the Civilian Employed Population 16 Years and
Over (2012 American Community Survey 1 Year Estimates),” available at factfinder2.census.gov/ (last retrieved
April 24, 2014).

270
Note: All percentages are subject to rounding error, so column and row totals may not
equal 100.

271
Lawyers as Counselors and Advocates
Lawyers are principally problem solvers, but they also routinely engage in negotiations,
perform research, and conduct factual investigations. As counselors, or transactional
lawyers, they meet clients in their offices and explain the strengths and weaknesses of
different legal courses of action, such as buying a house or selling a business. More often
than not, they do not spend any time in a courtroom litigating cases. In contrast, advocates
are more likely to represent clients in court as litigators or trial attorneys. In this role,
attorneys are under an ethical obligation to advocate zealously for their clients in legal cases.
Contrary to popular opinion, relatively few lawyers regularly appear in court. Depictions of
lawyers in movies such as To Kill a Mockingbird (1962) or television shows such as Law and
Order are largely myth. Most attorneys are behind-the-scenes technicians serving a range of
clientele spanning private practice, government, and corporate industry. Only a small
percentage of lawyers take public interest jobs or become judges or law teachers, and some
pursue nonlegal careers.35

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Legal Employment Trends and Salaries
The growth and diversity of the legal profession has produced some discernible
employment trends. The most important is that private legal practice remains the bedrock
of the profession. By some estimates, 75 percent of U.S. lawyers work in private practice.
Roughly about 12 percent work in firms of one hundred lawyers or more.36 The growing
competition among practitioners has caused the number of jobs in the private sector to
dissipate, forcing graduates to start legal careers either in government service or in
entrepreneurial enterprise. In the mid 1990s, for example, less than 8 percent of graduates
sought business and industry careers, but now nearly 20 percent are taking their first jobs in
business or other nonlegal careers. One study found that 24 percent of lawyers who passed
the bar in 2000 did not then practice law; instead, they worked in nonprofit and education
sectors, in the federal government, or as law professors, real estate agents, investment
bankers, and civil servants.37

The evolving legal market and the expansion of legal services globally means that law
students are progressively competing against not only their U.S. peers, but also foreign
lawyers. More specifically, the growth of transnational lawyering and the need for
technology-driven efficiency has created a market for low-cost foreign lawyers to perform
document review and legal memoranda writing, a phenomenon called “legal process
outsourcing.” The availability of large-scale document review through vendors such as
Novus Law is greatly affecting U.S. corporate practice as well. Instead of using big law firms
for complex litigation matters, in-house counsel in corporations are increasingly using low-
cost vendors to save hundreds of thousands of dollars on outside counsel fees on each
case.38 In 2013, of almost fifty thousand law graduates, nearly 40 percent found work in
private law firms, whereas roughly 17 percent were employed in government and judicial
clerkships, with another 15 percent in business or industry practice. Only 6 percent settled
for public interest law practice, and a mere 2 percent, respectively, either were engaged in
solo practice or began a legal academic career (Figure 5.2). Notably, 11 percent of all
graduates were unemployed or still looking for a job nine months after graduation—a sign
that employment after graduation is now very competitive in a tight labor market.39

Figure 5.2 Law School Graduate Employment, 2012

273
 Source: American Bar Association, Section of Legal Education and Admissions to the
Bar, “2013 Law Graduate Employment Data (9 months following graduation),”
available at www.americanbar.org (last retrieved May 13, 2013).

Note: Employment positions funded by law schools (4%), students who were
unemployed nine months after graduation (11%), and unknown employment status
(4%) are excluded.

Within these employment categories, between 1999 and 2010, the percentage of full-time
jobs in private practice decreased by 5 percent, with more women and minorities likely to
take employment in government, in public interest organizations, or as judicial clerks.
Furthermore, in 2012–2013, the median first-year salary at law firms of all sizes was
$125,000, but for large firms of seven hundred lawyers or more, it was $160,000. In
contrast, attorneys working in the public sector were paid a median starting salary of
approximately $40,000 to $50,000. Attorneys in business and industry typically have
highly variable earnings, whereas new law professors earn a median salary of about $94,000
annually.40

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Legal Practice Areas

Private Practice
Attorneys in private practice work in law firms of different sizes. Most solo practitioners
and small firms, especially in rural areas, represent individual clients, often in criminal court
or in civil cases involving domestic relations or personal injury claims, real estate
transactions, drafting wills, or setting up estate plans. In contrast, attorneys working in
larger law firms tend to serve business clientele in tax, securities, acquisitions, franchise,
antitrust, and commercial transactions. A majority of those in large law firms specialize in
such particular areas.41

Most of the legal profession is highly stratified in what some scholars call the two
“hemispheres.” On the one hand, lawyer elites produced from the best law schools practice
law for the affluent or political elites (large organizations, corporations, labor unions, and
government). On the other hand, graduates from lesser-known law schools take care of
lesser businesses’ and individuals’ interests. In 2005, a majority of top-ten law schools
placed over half of their graduates into the biggest 250 law firms, whereas law schools
ranking after the top quartile placed a mere 20 percent. Moreover, some law experts predict
that the globalization of corporate legal services will create another reallocation of legal
services and might ultimately displace the conventional place that corporate law firms
hold.42

Still, although showing signs of strain, contemporary law firm practice remains patterned
after the “Cravath bureaucratic model.” That is, law firms are structured as a partnership of
senior lawyers. Associate attorneys are salaried employees who do not take part in
ownership decisions and do not share in a firm’s profits; however, under a so-called
“lockstep” model of compensation, with good performance, associates graduating from the
same class often receive the same compensation, with annual pay raises and bonuses, based
on earned seniority. Some law firms also use the lockstep method to compensate partners,
but due to increased economic pressures, there is a growing trend to reward performance
based on “merit.”43

In the mid-twentieth century, large firms (consisting of fifty or more lawyers) and many
medium- to large-sized law firms were relatively homogeneous. Associates could expect to
become partners and equitably share in profits, and they rarely left a firm if they generated
expected revenue. Consequently, most partners and many associates stayed with the same
firm for years. As Joseph Hinsey, a former partner for twenty years at New York City’s
White & Case, remarked, “Moving from Firm A to Firm B, and taking a client group, was
basically unheard of, at least in New York.”44

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Due to increasing economic pressures, however, by the mid 2000s associate attorneys
worked longer hours and fewer became partners as the competition for legal services
increased. Also, another growing trend has been for the top law firms to discontinue the
practice of hiring the best students from the most prestigious law schools for cost reasons,
thus making it difficult to recruit or retain them—once a hallmark of the “historic ‘Cravath
model.’”45

Regardless, the introduction of the “billable hour” in the late 1950s was an early sign that
legal practice was destined to become more and more entrepreneurial. As law became more
voluminous and complex, lawyers found creative ways to market their increasingly
specialized skills, especially after the Supreme Court struck down restrictions on legal
advertising in the 1970s.46 Corporate clients also have increasingly turned to cheaper, in-
house counsel, and that has led to an aggressive, “eat what you kill” revenue-producing
system of legal practice.47 Loyalty to the firm gave way to longer partnership tracks and
more lateral moves within the profession. These trends were reinforced by the introduction
of “up-or-out” promotion policies for associates—that is, associates advance to partnerships
only if they develop a productive client base—and even partners who do not meet revenue-
producing expectations now may be “de-equitized,” creating a two-tiered senior
management.48

Unlike the lifetime security that once defined large law firm practice, a “new disloyalty” has
become a characteristic of contemporary law practice, especially in big firms. As political
scientist Herbert Kritzer observed, “corporate legal practice has become a world of change
and turmoil,” with firms regularly losing partners, dissolving, or merging.49 In 2003, only
about one-third of associates in their sixth year at a law firm worked at firms that they were
hired from after graduating from law school. Across all law firms of all sizes, associates were
expected to generate anywhere between 1,800 and 2,300 billable hours per year, and, as a
result, for many young attorneys, achieving partnership has become more of a pipe dream.
For many lawyers, billing in excess of two thousand hours per year at “treadmill” law firms
is like “drinking water from a fire hose” because sixty-five to seventy hours a week is spent
in the office.50

There have been two other interrelated developments: (1) the growing tendency of
corporate law firms to downsize their operations by laying off personnel, cutting back or
freezing salaries, and moving to “flat-fee” billing methods (instead of relying on billable
hours) or using contract lawyers or nonlawyer staff, like paralegals and interns51; and (2) an
explosion in the number of large law firms that are as complex as the corporate giants they
service. By the 1990s, there were close to 300 large firms with 50 lawyers, plus nearly 250
other firms with over 100 or more attorneys. By 2001, the average size of the American
Lawyer top hundred law firms was 621 lawyers.52 One study showed that 28 percent of
lawyers who graduated in 2000 were working in large corporate firms with 100 or more
lawyers, and 20 percent in firms with 251 or more lawyers.53 As a result, increasing

276
economic pressures and competition for the best legal talent has meant that the
demographics and organizational culture of large corporate law firms is constantly evolving.
Large, elite corporate law firms are no longer relying on hiring exclusively from top-tier
schools, and the lack of job security or chance for professional advancement has led to more
lateral movement of associates seeking better employment opportunities in light of a
shifting client base that is no longer loyal to one firm.54

Today, the legal landscape is infused with multiple one-stop, full-service global mega-firms
with at least 175 lawyers, and many with 500 lawyers or more, in numerous branch offices
domestically and abroad. In 2010, the top seventeen law firms had over $1 billion in
revenue. In many of these firms, $2 million or more was allocated as profits to equity
partners.55 Chicago’s Baker & McKenzie, for example, is one of the nation’s largest global
mega-firms. It generates over $2.4 billion in global revenues from seventy-five offices in
over forty-seven countries. The firm maintains a press office and separate marketing and
recruitment departments, as well as eighteen different legal practice areas staffed by
hundreds of attorneys.56

See Table 5.2, which shows some top mega-firms in the United States.

Government Attorneys
In contrast to private practice, government attorneys work for and represent local, state, or
federal government. Their function varies in accordance with where they are working in
legislative, executive, or judicial departments: they could be prosecutors, public defenders,
legislative staff, or agency employees. Still, at bottom, they are civil servants who, as Justice
Stephen Breyer once observed, perform public service as “citizen-statesmen.” Even so,
Justice Breyer lamented that a decreasing percentage of law graduates were interested in
public service, in part because government jobs do not pay as well as the private sector. Yet,
in his view, working as a government attorney provides valuable professional experience
that may ultimately be used to obtain higher-paying jobs in private law practice. The path
for his own success, he recounted, was first paved as a staff member of the Senate
Subcommittee on Administrative Practice and Procedure. As Justice Breyer pointed out,
many law graduates of his generation also began their career in government service. Most
significantly, he concluded, the professional satisfaction derived as a public servant may
substantially outweigh the benefits of earning higher salaries.57

277
 Source: “The NLJ 350,” The National Law Journal 35, no. 40 (June 10, 2013), S17;
National Association for Law Placement, “Associate Salaries Bobble but Remain
Essentially Flat” (September 18, 2013) available from www.nalp.org.
Note: Only top five mega-firms for 2012 listed. Associate starting salaries at $160,000 norm since 2007 for 700+
lawyer law firms in large urban areas.

Almost thirty-six thousand attorneys work in federal agencies. Roughly 27 percent are
employed in the Department of Justice; 15 percent are in Treasury, Homeland Security,
and Army; and the balance is spread across as many as fourteen other agencies.58 Regardless
of their role in the agency they work for, governmental service is usually a stepping-stone
for other legal career paths that might be more prestigious or profitable. As law professor
Thomas O. McGarity explains,

Government attorneys must live with the reality of very limited resources and

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 maximize the attendant benefits. On the one hand, the offices will not be as large, the
secretaries will not be as adept, the computers will not work as well, and the pay will
not be as high as in private law firms. On the other hand, the fact of limited resources
means that young government lawyers are given far more responsibility than their
counterparts in private law firms, and they have a correspondingly greater opportunity
to gain valuable professional experience at an early stage of their careers.59

Not surprisingly, then, one study found that between 2000 and 2007 almost 5 percent of
lawyers left the state or federal government and joined other organizations, a trend that is
becoming increasingly prevalent as attorneys decide to make lateral moves to private law
firms.60

Business and Industry Law Practice: The Role of In-House

Counsel
A significant proportion of lawyers work in corporate law. Fortune 500 corporations—
including Walmart, Exxon Mobil, Chevron, Apple, General Motors, General Electric,
AT&T, Verizon Communications, JPMorgan Chase & Company, and others—have their
own legal departments with “in-house” counsel. Corporate practice in highly diversified
corporations, however, increasingly relies upon in-house counsel to cut costs.

Smaller businesses, but even some corporations with their own legal departments, are likely
to farm out specialized matters or other cases that involve major litigation. According to
one survey, about 40 percent of a corporation’s average legal budget (of $1.2 million, in
2001) was spent on outside fees.61 The economic pressures and the uncertainty brought on
by the 2008 financial crisis, however, reinforced the use of in-house counsel in an effort to
cut legal costs. Accordingly, budgets for in-house counsel have increased by 18 percent with
corporations sharply reducing the use of outside counsel in tax, merger, and acquisitions
cases.62 Still, there are an estimated sixty-five thousand in-house counsel working in more
than twenty-one thousand for-profit and not-for-profit U.S. business organizations. Many
in-house counsel tend to be highly compensated, with 22 percent earning more than
$300,000 in salaries, bonus compensation, and other perks.63

Public Interest Lawyers and Legal Academia

A small percentage of attorneys are policy advocates for a variety of private concerns and
public-interest law firms. In general, public interest law organizations (PILOs) provide legal
services to those who cannot afford private counsel. PILO lawyers might provide legal aid
to the community, or sometimes their work is directed at producing public policy reform.
Some devote their professional lives to the pursuit of discrete social political or moral

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objectives, such as legalizing same-sex marriage, protecting consumers, or restricting
abortion rights.64

Those contemplating a career in public interest law, however, are often discouraged from
doing so because of low salaries and high student loan debt. A 2013 study commissioned by
the Illinois State Bar Association reported that annual salaries at several public interest
organizations ranged from $39,000 to $46,000 per year, causing most graduates to avoid
entering into public service or leaving it only after a few years. While the empirical research
is not conclusive, some studies find that about 65 percent of law graduates avoid public
service.65 In response, a growing number of law schools offer loan forgiveness or debt
reduction programs to entice their graduates to enter public service careers.66

Likewise, only a small percentage of law graduates become law professors. Today, there are
approximately eleven thousand law faculty in ABA-approved law schools. As legal scholar
Richard Abel points out, many law professors describe themselves as teachers instead of
scholars and devote much of their time to classroom activities instead of publishing articles
and books. Whether more time is spent in the classroom or publishing research remains
debatable, however. Still, many professors enjoy their autonomy and job security, and those
benefits tend to outweigh the prospect that practicing law in the private sector might yield
greater incomes. In other words, law professors are well compensated. A survey of 2012–
2013 salaries shows that a large proportion of faculty earn $100,000 or more per year,
excluding several thousand dollars in compensation as a summer stipend for research and
other scholarly activities.67

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Access to Lawyers and Equal Justice
“Our system of justice is adversarial,” Justice Harry Blackmun once said, “and depends for
its legitimacy on the fair and adequate representation of all parties at all levels of the judicial
process.”68 Justice Blackmun’s noble vision of equal justice, however, has never been fully
realized. Historically, common law rules allowed lawyers to represent misdemeanor
offenders, but barred them from defending clients charged with felonies. Although most
states and the federal government broke from that practice, it was also widely understood
that the right to counsel extended only to those who could afford it. Though the Supreme
Court now requires counsel for indigents in most criminal cases, some critics today still
maintain that it remains a “shameful irony that the country with the world’s most lawyers
has one of the least adequate systems for legal assistance.”69

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The Right to Counsel in Criminal Cases
The Sixth Amendment to the Constitution provides that “in all criminal prosecutions, the
accused shall...have the assistance of counsel for his defense.” It was not until 1932 that the
Supreme Court took the initial step of requiring the appointment of counsel for indigent
defendants in death penalty cases. In Powell v. Alabama (1932), an all-white jury in
Scottsboro, Alabama, convicted several young black men without the assistance of counsel
of raping a white woman, an offense carrying the death penalty. In reversing their
convictions, Justice George Sutherland held that the Fourteenth Amendment’s due process
clause required the appointment of counsel in such circumstances in order to preserve the
defendants’ right to a fair trial. Yet, the Court’s holding was narrowly tailored to the facts of
the case, as Justice Sutherland explained:

All that it is necessary now to decide, as we do decide, is that in a capital case, where
the defendant is unable to employ counsel, and is incapable adequately of making his
own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the
duty of the court, whether requested or not, to assign counsel for him as a necessary
requisite of due process of law.70

Powell, thus, did not require state courts to appoint counsel for indigent defendants in all
cases. Then, in Johnson v. Zerbst (1938), the Court extended the right to appointed counsel
for indigent defendants in federal criminal cases. However, in Betts v. Brady (1942), the
Court retreated and ruled that in state courts counsel was required in capital cases or cases
presenting “special circumstances.” Betts prompted a sharp attack from dissenting Justice
Hugo Black, who argued that depriving counsel for the poor “defeat[s] the promise of our
democratic society [of] providing equal justice under the law” and threatened “innocent
men [with] increased dangers of conviction merely because of their poverty.”71

The fuzzy line the Court drew in these cases remained until the landmark decision in
Gideon v. Wainwright (1963).72 In Gideon, the Warren Court reversed Clarence Gideon’s
state felony conviction for breaking into a pool hall because he had requested but was
denied the appointment of an attorney to represent him. Writing for a unanimous court,
Justice Black overruled Betts v. Brady and its so-called “special circumstances” rule,
observing that “any person haled into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him.” He concluded that “government
hires lawyers to prosecute, and defendants who have the money to hire lawyers to defend
are the strongest indications of the widespread belief that lawyers in criminal courts are
necessities, not luxuries.” Gideon forced the states to recognize that the Fourteenth
Amendment’s due process clause establishes a constitutional obligation to provide indigents
with appointed counsel in felony cases.

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Subsequent cases expanded Gideon’s ruling to indigent defendants’ right to appointed
counsel on their first appeal of a conviction, and to juvenile defendants in cases involving
misdemeanor and suspended sentence prosecutions carrying sentences of imprisonment.73
Although the conservative Burger and Rehnquist Courts substantially cut back on the scope
of the right to appointed counsel in a number of post-Gideon cases,74 the basic holding and
mandate for legal counsel in Gideon has not been overturned.

Clarence Gideon’s petition to the Supreme Court, which led to the Warren Court’s
landmark ruling on the right to counsel.

Courtesy of The Collection of the Supreme Court of the United States

Federal and state governments have a number of programs and funding systems to provide
indigents with legal services. Public defender programs, assigned counsel appointments, or
competitive private contracts are the most common. Public defender programs either
employ full-time, salaried government employees to deliver legal aid to criminal defendants

283
or, instead, work through public or private nonprofit organizations. In all states except
Maine, and in the District of Columbia, 957 public defender offices manage about 5.5
million cases, spending over $2.3 billion and using over fifteen thousand full-time
attorneys. States fund the delivery of public defender services by using state-based programs
or county-based offices; Maine hires private attorneys. A quarter of the cases in state-based
programs are felony noncapital cases, and a similar pattern occurs with misdemeanor cases
(see Table 5.3).

In comparison, assigned counsel systems have judges appoint members of local bar
associations on an ad hoc basis. In jurisdictions with competitive private contract systems,
individual attorneys, bar associations, law firms, and nonprofit organizations bid to provide
legal services. The need for indigent defender services is great. One study found that an
estimated 66 percent of federal felony defendants and 82 percent of felony defendants in
large state courts were represented by public defenders or assigned counsel.75

The Criminal Justice Act of 1964 controls legal services for indigents in federal courts.
Counsel are assigned from panels of attorneys chosen from a list of lawyers on an ad hoc
basis, federal defender organizations (staffed with salaried government employees and led by
a public defender selected by the court of appeals), or community defender organizations
(state-incorporated, nonprofit legal services). Public defender and assigned counsel systems
are most frequently used, but problems of adequate funding, high caseloads, and limited
judicial resources have compelled states to resort to contractual systems that are more cost-
efficient. Under contract systems, court-appointed lawyers represent indigent clients for
fixed fees, flat fees, or hourly fees with compensation caps and many times with no
prescribed case limit.76

Although federal and state governments spend an estimated $3.3 billion annually on legal
services for the poor, critics lament how justice is administered—crushing caseloads,
insufficient staffing, inadequate budgetary funding, mismanagement, and attorney
incompetence or indifference (caused by low compensation)—and argue that the criminal
justice system is broken. In response, some courts amended their procedures to improve
indigent defense. In Wilbur v. City of Mount Vernon (2013), a district court in Washington
ruled that excessive caseloads systemically deprived defendants of their constitutional rights
at critical stages of the prosecution. The judge ordered that attorneys in future cases must
certify that they are competent to handle their cases and, most importantly, limit their
annual caseload. Wilbur is also noteworthy because it led to the Department of Justice’s
launching its own reform initiative—the so-called Access to Justice program—that
encourages states to undertake similar remedial action with federal grant dollars.77

Other inequities favoring the rich and that discriminate against indigents further inhibit
access to courts. Representation of indigents is qualitatively different than for those who
can afford to hire counsel. And that results in more plea bargains, less attorney contact, and

284
more guilty pleas (see Table 5.4 and “Contemporary Controversies Over Courts: Plea
Bargaining, the Right to Counsel, and Global Trends” in Chapter Seven). The lack of
financial resources for criminal defendants is problematic as well because in increasingly
tight budgetary times states often resort to imposing a wide range of court fees, costs, and
fines against those caught up in the criminal justice system. Such cost recovery, or “pay as
you go” systems, can even require indigent defendants to pay for the cost of applying for a
public defender (See “Contemporary Controversies Over Courts: The Right to Counsel
and ‘Pay-as-You-Go’ Justice”). Moreover, as the next section discusses, the same kind of
problems also affect the delivery of legal aid to indigents in civil cases.

285
286
Source: U.S. Department of Justice: Bureau of Justice Statistics, “Survey of Inmates in State and Federal
Correctional Facilities, 2004,” ICPSR04572-v1 (Ann Arbor, MI: Inter-university Consortium for Political and
Social Research [distributor]), available at http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/4572 (last
retrieved April 29, 2014).

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Legal Representation in Civil Litigation
Roughly less than 1 percent of spending on legal services is devoted to civil legal aid.
Consequently, a majority of legal needs of civil indigents remains unmet. In a speech
delivered to the National Legal Center for the Public Interest, Justice Stephen Breyer
estimated that 80 percent of low-income clients actually receive civil legal assistance, and
that the United States government only spends about $2 per person in providing it, a figure
that is far less than in comparable Western democracies. Another study reported that
although the legal profession generates approximately $100 billion annually, less than $1
billion goes to low-income citizens. Other studies report that four of five indigents go
unrepresented in the civil justice system.78

Unlike criminal prosecutions, receiving legal aid or counsel in a civil case is not a
constitutional right. Although Boddie v. Connecticut (1971) held that welfare recipients had
a due process right to maintain divorce proceedings in state court if they could not pay the
filing fee, the ruling was limited to its facts. Thus, a broad right of access for all civil cases
was not established. Subsequent cases, such as United States v. Kras (1973), held that there
is no constitutional right to obtain a discharge of one’s debts in bankruptcy even if the
debtors could not afford to pay filing fees. In addition, an indigent parent was denied
appointed counsel in a termination of parental rights lawsuit in Lassiter v. Department of
Social Services (1981). But, in M. L. B. v. S. L. J. (1996), an indigent whose parental rights
were terminated was permitted to obtain a free transcript for the purpose of filing an
appeal. In addition, though reaffirming that there is no constitutional right to counsel in
civil cases, in Turner v. Rogers (2011) the Court ruled that an indigent father’s procedural
rights of due process were violated after he was denied appointed counsel and was
incarcerated for failing to pay thousands of dollars in past child support.79

Consequently, in most civil cases, clients must pay lawyers a fee plus expenses. In personal
injury lawsuits, however, clients may hire lawyers on the basis of a contingency fee—
agreements stipulating that legal fees are only paid as a percentage of the total amount of
monetary damages recovered. Although clients remain responsible for litigation expenses,
contingency fees facilitate access to attorneys because clients do not have to pay legal fees
unless there is a successful conclusion. Alternatively, prepaid legal services may be available
as part of an employee’s insurance benefits by paying premiums to a group insurance plan,
but such plans are not widespread, largely because of resistance from the organized bar.80

288
Contemporary Controversies over Courts

289
The Right to Counsel and “Pay-as-You-Go” Justice
In Argersinger v. Hamlin, 407 U.S. 25 (1972), in extending the right to court-appointed counsel to
misdemeanor offenses carrying a six-month sentence of imprisonment, Justice Lewis Powell warned: “No
one can foresee the consequences of such a drastic enlargement of the constitutional right to free counsel”
by expanding the right too far. As Justice Powell predicted, Court decisions applying the right to appointed
counsel to juveniles, as well as for cases involving misdemeanor offenses and suspended sentences, have
severely strained the ability of state governments to supply court-appointed counsel for criminal defendants.
The problem is aggravated by the reluctance of law schools to train students to become attorneys for
indigents, budgetary constraints, and state legislation that incarcerates convicted defendants for longer time
periods using mandatory sentencing.

All but seven states have enacted cost recovery systems that require state governments to be reimbursed for
the cost of providing legal representation in criminal cases. There are two basic cost-saving strategies,
recoupment and contribution. Each has the effect of shifting the financial burden of indigent defense to the
accused. Recoupment systems require indigents to pay the actual cost of attorney’s fees, and sometimes
other investigative and expert service expenses. Recoupment orders are issued at the end of a case and levy a
fee for representation, which requires state or county governments to collect it after legal services have been
delivered. Some jurisdictions require recoupment only from those convicted, but others require it even from
defendants who are acquitted. In contrast, contribution systems are fixed sums charged against indigents at
the time counsel is appointed, an attribute that makes them akin to a precondition to getting legal aid.
Contribution “fees” are routinely levied at the front end of a case, which usually (but not always) eliminates
the need for a judicial hearing to assess the ability to pay, or to collect it after legal services are delivered.
Approximately thirty jurisdictions use them.

Cost recovery systems have been criticized as unjust because they promote a “pay-as-you-go” criminal justice
system that turns convictions into moneymaking enterprises for courts. Their impact is wide-ranging,
especially on low-level offenders convicted of misdemeanor offenses, like most drug cases. The effect is
intensified when combined with so-called “user fees” on defendants that require prisoners to repay the costs
of incarceration. The table below illustrates Florida’s cost, fee, and surcharge structure. As a result, high
debts accrued in the criminal justice system often impede successful “reentry” into the community once
sentences are served.

Predictably, these laws have been challenged as equal protection and due process violations that discriminate
against indigents. Another set of objections claims that recoupment practices are not cost-effective—that
they remain punitive and lead to the creation of “debtor’s prisons.” Still, for the most part, the challenges
have been turned back by the Supreme Court, in cases such as Fuller v. Oregon, 417 U.S. 40, 53-54 (1974),
which held that recovering costs from indigent defendants is constitutional so long as it does not result in a
“manifest hardship.”

290
Sources: National Public Radio, “State-by-State Court Fees,” available at
www.npr.org/2014/05/19/312455680/state-by-state-court-fees (last retrieved May 22, 2014); Travis
Stearns, “Legal Financial Obligations: Fulfilling the Promise of Gideon by Reducing the Burden,”
Seattle Journal for Social Justice 11 (2013), 963–85; Leah A. Plunkett, “Captive Markets,” Hastings Law
Journal 65 (2013), 57–111; Helen A. Anderson, “Penalizing Poverty: Making Criminal Defendants
Pay for Their Court-Appointed Counsel Through Recoupment and Contribution,” University of
Michigan Journal of Law Reform 42 (2009), 323–75; National Association for Criminal Defense
Lawyers, “Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor
Courts,” (2009), available at
www.nacdl.org/public.nsf/defenseupdates/misdemeanor/$FILE/Report.pdf (last retrieved May 17,
2014); Ronald F. Wright and Wayne A. Logan, “The Political Economy of Application Fees for
Indigent Criminal Defense,” William and Mary Law Review 47 (2006), 2045–87.

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Government-Subsidized Legal Aid
Legal assistance for low-income civil litigants remains available through federal and state
government subsidies. As an outgrowth of President Lyndon B. Johnson’s Great Society
program and War on Poverty, in 1964, Congress created the federally funded Office of
Economic Opportunity Legal Services Program (LSP). Designed to fight poverty by
asserting federal control over local legal aid efforts, LSP attorneys made significant inroads
in protecting the due process rights of welfare recipients from the denial of benefits. Still,
the LSP encountered strident political opposition, especially from established business
interests, and, consequently, in 1974, the LSP was removed from the executive branch and
replaced by the Legal Services Corporation (LSC), an independent nonprofit corporation.
The LSC continued the mission of providing legal services to the poor through federally
funded grants.81

In the 1980s, the Reagan administration tried unsuccessfully to end the LSC program, but
severely cut the LSC’s funding and enacted a number of restrictions on the types of cases
handled. By 1996, LSC’s funding was cut by one-third, and LSC-funded organizations in
the states were barred from participating in school desegregation cases, labor boycotts, class
actions, and, among other controversial areas, cases involving abortion. In Legal Services
Corporation v. Velazquez (2001), however, the Court ruled that the First Amendment
prevented Congress from cutting funds to legal aid organizations representing indigent
clients challenging welfare laws because it had a chilling effect on the free speech rights of
their clients. In addition, Brown v. Legal Foundation of Washington (2002) upheld the
constitutionality of state Interest on Lawyers Trust Accounts (IOLTA), which generates
funds for legal aid based on interest accrued in lawyers’ trust accounts, thereby preserving a
significant source of public interest organization funding.82

Ironically, the conservative opposition to such liberal public interest initiatives led in the
1990s and early 2000s to litigation that expanded religious freedom and free speech rights
in public institutions, on the one hand, and on the other limited federal powers in
discrimination and affirmative action cases.83 In addition, a 2009 legal services report
found that the demand for legal aid is still great: on average, only one legal aid attorney is
available for every 6,415 low-income people. In spite of these political challenges and
growing fluctuations in the economy, government-subsidized legal aid programs continue
to supply civil legal services through local grants provided by the federal Legal Services
Corporation and IOLTA in all states plus the District of Columbia and the Virgin
Islands.84

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Pro Se Representation
An old adage is that a person who represents himself has a fool for a client. Nonetheless,
one of the most important trends in civil justice is the increasing number of citizens
representing themselves in court. Since the 1990s, all courts and bar associations have
chronicled a sharp upturn in self-representation filings. In state courts, they appear most
often in divorce and child support cases, landlord–tenant disputes, probate, foreclosures,
and small claims or other miscellaneous actions. In federal courts, statistics show that 28
percent of all district court civil cases are from pro se filers, with many involving
bankruptcies. Moreover, pro se filings are not confined to the poor because they are
distributed across a wide range of incomes and educational levels.85

A number of interrelated factors have led to more pro se litigants, including the lack of
affordable legal counsel, the increased demand for legal aid by moderate- to low-income
litigants, the lack of pro bono help from the legal profession (discussed in the next section),
and the proliferation of “do it yourself” legal aids, as facilitated by the Internet and evolving
court website technologies. Even though Faretta v. California (1972) held that the Sixth
Amendment incorporates a right of self-representation, the organized bar has traditionally
resisted assisting pro se litigants. Unlike many other nations, the legal profession outlaws
legal aid from nonlawyers. That has allowed the bar to claim it is trying to protect the
consumer from fraud and nonlicensed incompetent practitioners. But cynics counter that
the legal profession is simply trying to preserve its monopoly over the practice of law.
Courts have also been slow in upgrading facilities and training staff to assist pro se
litigants.86

Nevertheless, the American Judicature Society, the American Bar Association, the State
Justice Institute, and the National Center for State Courts have all launched extensive
public relations campaigns and websites to help pro se litigants.87 The response by the
states, though, remains uneven: whereas eleven states have comprehensive pro se programs,
nineteen others have partially integrated programs, and fourteen are still developing them.
Eight states offer little or no pro se assistance. Still, in some states, pro se litigants have been
given access to self-help centers, court-sponsored legal information assistance, Internet
technologies, workshops, mobile service centers, videoconferencing, law school clinics,
library improvements, and Web-based technologies that are increasingly “user-friendly” and
allow litigants to prepare or file legal documents, often in multiple languages. Moreover, a
minority of states have revised their rules for civil or ethical practice to permit
“unbundling”—a form of quasi-legal representation that lets lawyers contract with clients
to perform specific legal tasks for a reduced fee. Such services might include appearing in
court on a limited basis, rendering advice on the telephone or the Internet, or assisting in
document preparation.88

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Pro Bono Legal Services
An alternative type of legal representation includes the volunteer efforts of the organized
bar and individual attorneys. The need is great. In 2012, over 2.3 million people went to
New York courts without legal representation; many of them were involved in tenant
evictions, child support, and mortgage foreclosure cases.89 Whereas performing legal work
pro bono publico (“in the public good”) or delivering “low bono” (reduced fee) service has
long been considered a public responsibility of the legal profession, relying upon the
cooperation of private lawyers to give away free legal services is impractical.90 Moreover,
under most rules of professional ethics, attorneys need only set an aspirational goal of
completing fifty hours of pro bono work annually, but the states do not penalize lawyers or
law firms for not doing so. Indeed, very few states require pro bono activity at all. In 2014,
however, the New York bar started a Pro Bono Scholars Program that allows third-year law
students to sit for the bar exam early in return for providing fifty hours of pro bono
service.91 In addition, some inroads have been made in institutionalizing pro bono practice
into private practice. But such efforts remain uneven. While large firms may have the
capacity to tailor pro bono activities around the professional needs of the firm, in small firms
pro bono work is only minimal and often accidental.92 As one law professor concluded,
“The central dilemma of pro bono remains: [it is a] system that depends on private lawyers
[that] is ultimately beholden to their interests.”93

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Chapter Summary
The role lawyers play in attaining justice and providing access to courts is significant. While
lawyers have never been popular, they are generally recognized as society’s leaders. The
growth of the legal profession has been a function of the way in which lawyers are
educationally trained and socialized into legal practice. At first, historically, lawyers learned
law through apprenticeships, but modern legal education was transformed by law schools
and the casebook method of instruction, first introduced by Christopher Columbus
Langdell, dean of Harvard Law School in the 1870s. The legal profession, then, evolved
into a business, starting with large Wall Street firms that outpaced solo practitioners, and
was introduced in major urban areas by attorney Paul Cravath in the early twentieth
century.

Today, the legal profession is a multibillion-dollar industry. Admission into law school is
highly selective, and the cost of attending is prohibitive for some. Rising tuition rates,
burgeoning student loan debt, and the uncertainty of securing employment after
graduation have recently made it difficult to enter the legal profession. Law schools are now
oriented around learning legal doctrine and knowing how to “think like a lawyer.” There is
less emphasis on learning practical skills. After bar admission, law students enter into an
increasingly diverse workforce. Still, substantial differences remain in terms of gender, race,
and ethnicity, and the most prestigious, high-paying positions generally go to white males.

Once admitted into the bar, most lawyers find employment in law firms, business and
industry, government, and less frequently solo practices or academic careers. Trained as
generalists, most attorneys now develop specialties throughout their career. The law
profession remains highly stratified, split between those who represent corporate interests
and those for smaller businesses and private individuals. While the Wall Street law firm
model persists, due to competitive pressures, associates are expected to churn out a high rate
of billable hours, and lawyers may no longer expect lifetime security by gaining partnership
status. Other trends include rewarding attorney performance based on merit and the
institutionalization of the mega-firm.

The constitutional right to an attorney only applies to a narrow class of criminal defendants
and not in civil cases. Although federal and state governments spend billions of dollars on
providing legal services to the poor, high caseloads, inadequate funding, attorney
incompetence, and other factors negatively affect legal aid to indigents. While there is no
constitutional right to an attorney in civil cases, some governments and the legal profession
try to deliver legal services to needy or unrepresented clients through subsidized legal aid
programs, and with pro se and pro bono initiatives.

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Key Questions for Review and Critical Analysis
1. Do you think legal training is best accomplished by learning legal doctrine and how
to “think like a lawyer” through a Socratic, case-dialogue method of instruction, or
by an apprenticeship?
2. Given high tuition rates, increasing student loan debt, and the uncertainty of
securing stable employment after graduation, is earning a law degree a sound
“investment” in choosing a professional career?
3. For years, modern legal practice has been highly stratified in delivering legal services
to big corporate interests as opposed to representing smaller businesses and private
individuals. Is there any way for law schools or the legal profession to lessen the
impact of stratification and to close the gap between who has legal representation and
who does not?
4. How can budget-strapped state governments best fulfill the mandate of Gideon v.
Wainwright (1963) to provide appointed counsel to indigent criminal defendants?
5. Should clients in civil litigation have the constitutional right to appointed counsel if
they cannot afford to hire an attorney?

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Web Links
1. Law School Admission Council (www.lsac.org)
A comprehensive source of information on all facets of law school admission,
including LSAT registration and administration, information about law
schools, and resources for prelaw advisors.
2. American Bar Association (www.americanbar.org/aba.html)
A national organization of lawyers that provides a variety of informational
resources that address all aspects of the legal profession, including legal
education, judicial selection, and areas of legal practice.
3. Jurist (www.jurist.org)
Managed by law professor Bernard Hibbitts at the University of Pittsburgh
School of Law, the site provides legal news, legal commentary, and legal
research.
4. Above the Law (http://abovethelaw.com)
The site fashions itself as a “behind-the-scenes” look at the legal world, offering
news and perspectives about law firms, law schools, legal technology, and legal
careers.
5. Law Professor Blogs Network (www.lawprofessorblogs.com)
A national network of over forty legal blogs edited by law professors that
provides legal news, information, commentary, and legal analysis.

297
Selected Readings
Abel, Richard L. American Lawyers. New York: Oxford University Press, 1991.

Auerbach, Jerold S. Unequal Justice: Lawyers and Social Change in Modern America. New
York: Oxford University Press, 1976.

Clayton, Cornell W., ed. Government Lawyers: The Federal Legal Bureaucracy and
Presidential Politics.Lawrence: University Press of Kansas, 1995.

Epp, Charles R. The Rights Revolution: Lawyers, Activists, and Supreme Courts in
Comparative Perspective. Chicago: University of Chicago Press, 1998.

Galanter, Marc, and Thomas Palay. Tournament of Lawyers: The Transformation of the
Big Law Firm. Chicago: University of Chicago Press, 1991.

Harper, Steven J. The Lawyer Bubble: A Profession in Crisis. New York: Basic Books,
2013.

Heinz, John P., Robert L. Nelson, Rebecca L. Sandefur, and Edward O. Laumann. Urban
Lawyers: The New Social Structure of the Bar. Chicago: University of Chicago Press,
2005.

Kritzer, Herbert M., and Susan S. Silbey, eds. In Litigation: Do the Haves Still Come Out
Ahead. Stanford, Calif.: Stanford University Press, 2003.

Lawrence, Susan E. The Poor in Court: The Legal Services Program and Supreme Court
Decision Making.Princeton, N.J.: Princeton University Press, 1990.

Mather, Lynn, Craig A. McEwen, and Richard J. Maiman. Divorce Lawyers at Work:
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endnotes
1. Alexis de Tocqueville, Democracy in America, translated by George Lawrence, edited by J.
P. Mayer (New York: Harper & Row, 1988), 264, 268–69. Government lawyers, for
example, in the Department of Justice’s Office of Legal Counsel (OLC) are significant
advisors to the president on post-9/11 national security and foreign policy issues. Case
Note, “Presidential Power and the Office of Legal Counsel,” Harvard Law Review 125
(2012), 2090–113; Arthur H. Garrison, “The Opinions by the Attorney General and the
Office of Legal Counsel: How and Why They Are Significant,” Albany Law Review 76
(2012–2013), 217–47; Frank M. Wozencraft, “OLC: The Unfamiliar Acronym,” American
Bar Association Journal 57 (1971), 33–37.

2. Frances Kahn Zemans and Victor G. Rosenblum, The Making of a Public Profession
(Chicago: American Bar Foundation, 1981), 2. A description of the leadership roles lawyers
play in society is found in Deborah L. Rhode, Lawyers as Leaders (New York: Oxford
University Press, 2013), 1.

3. Lawrence M. Friedman, A History of American Law, 2nd ed. (New York: Simon &
Schuster, 1985), 96.

4. For a description of some of the colonial restrictions placed on lawyers, see Charles
Warren, A History of the American Bar (New York: Howard Fertig, 1966), 8.

5. Charles R. McKirdy, “The Lawyer as Apprentice: Legal Education in Eighteenth

Century Massachusetts,” Journal of Legal Education 28 (1976), 134–35.

6. Zemans and Rosenblum, The Making of a Public Profession, 5–6; Robert Stevens, “Two
Cheers for 1870: The American Law School,” in Law in American History, edited by
Donald Fleming and Bernard Bailyn (Boston: Little, Brown, and Company, 1971), 413–
16.

7. Kermit L. Hall, The Magic Mirror: Law in American History (New York: Oxford
University Press, 1989), 126–27; Robert Stevens, Law School: Legal Education in America
From the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983), 5–9.

8. Stevens, “Two Cheers for 1870,” 417.

9. Stevens, Law School, 22.

10. Richard L. Abel, American Lawyers (New York: Oxford University Press, 1989), 41–73.
See also Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America
(New York: Oxford University Press, 1976), 106–8 (noting that ABA elites were interested
in slowing the growth of new lawyers that were from specific types of ethnic or religious

300
minority groups).

11. Stevens, Law School, 94–95, 105 n. 23. See also Olufunmilayo B. Arewa, Andrew P.
Morriss, and William D. Henderson, “Enduring Hierarchies in American Legal
Education,” Indiana Law Journal 89 (2014), 941, 947–48.

12. Brian Z. Tamanaha, Failing Law Schools (Chicago: University of Chicago Press, 2012),
22. John Jay Osborn, Jr., wrote The Paper Chase, which was made into a 1973 movie. Law
school’s instructional method was additionally fictionalized in Reese Witherspoon’s popular
movie, Legally Blonde (MGM 2001). Joe Patrice, “The Paper Chase—The Law School
Movie Without Reese Witherspoon—Turns 40,” Above the Law (July 30, 2013), available
at http://abovethelaw.com/2013/07/the-paper-chase-the-law-school-movie-without-reese-
witherspoon-turns-40/#more-260798 (last retrieved May 11, 2014). See also Scott
Turow,One L: The Turbulent True Story of a First Year at Harvard Law School (New York:
Putnam, 1977).

13. Deborah L. Rhode, Lawyers as Leaders, 156. See also Wayne K. Hobson, “Symbol of
the New Profession: Emergence of the Large Law Firm, 1870–1915,” in The New High
Priests: Lawyers in Post-Civil War America, edited by Gerard W. Gawalt (Westport, Conn.:
Greenwood Press, 1984), 19–20; and Robert T. Swaine, The Cravath Firm and Its
Predecessors: 1819–1947 (New York: Ad Press, 1948).

14. See Marc Galanter and Thomas Palay, Tournament of Lawyers: The Transformation of
the Big Law Firm (Chicago: University of Chicago Press, 1991); David Wilkins, Ronit
Dinovitzer, and Rishi Batra, “Urban Law School Graduates in Large Law Firms,”
Southwestern University Law Review 36 (2007), 433, 439.

15. Elizabeth Chambliss, “Two Questions for Law Schools About the Future Boundaries of
the Legal Profession,” The Journal of the Legal Profession 36 (2013), 329–52. The seminal
study of the legal profession’s “two hemispheres” is John P. Heinz, Robert L. Nelson,
Rebecca L. Sandefur, and Edward O. Laumann, Urban Lawyers: The New Social Structure
of the Bar (Chicago: University of Chicago Press, 2005). The history and transformation of
legal education is detailed in Olufunmilayo B. Arewa, Andrew P. Morriss, and William D.
Henderson, “Enduring Hierarchies in American Legal Education,” Indiana Law Journal 89
(2014), 941–1068.

16. Clark, “Legal Professions and Law Firms,” 379–82. For U.S. lawyer counts and
employment trends in law firms, see American Bar Association, “Total National Lawyer
Counts: 1878–2013,” available at www.americanbar.org (last retrieved May 14, 2014);
Wilkins, Dinovitzer, and Batra, “Urban Law School Graduates in Large Law Firms,” 434.
An analysis of the corrupting and pervasive influence of the U.S. News & World Report
rankings on law schools is found in Tamanaha, Failing Law Schools, 71–103.

301
17. Philip G. Schrag, “MOOCS and Legal Education: Valuable Innovation or Looming
Disaster?” Villanova Law Review 59 (2014), 83–134. See also Mansfield J. Park, “The Best
Online Law Schools: JD and LLM Programs,” Above the Law (May 2, 2013), available at
http://abovethelaw.com/career-files/the-best-online-law-schools-jd-and-llm-programs/ (last
retrieved May 12, 2013); Brian Bursed, “Online Law Schools Have Yet to Pass the Bar,”
U.S. News & World Report (Education: Online Education, Updated June 20, 2012),
available at www.usnews.com/education/online-education/articles/2011/03/23/online-law-
schools-have-yet-to-pass-the-bar (last retrieved May 12, 2014).

18. American Bar Association, “Total National Lawyer Counts: 1878–2013,” available at
www.americanbar.org (last retrieved May 14, 2014); U.S. Census Bureau, “Number of
Firms, Number of Establishments, Employment, Annual Payroll, and Receipts by
Employment Size of the Enterprise for the United States, All Industries—2002,” available
at www.census.gov (last retrieved May 15, 2014); Clark, “Legal Professions and Law
Firms,” 380. See also American Bar Association, Section of Legal Education and
Admissions to the Bar, Legal Education and Professional Development—An Educational
Continuum. Report of the Task Force on Law Schools and the Profession: Narrowing the Gap
(Chicago: American Bar Association, July 1992), 13, 15 (The “MacCrate Report”).

19. Marketline, “Legal Services in the United States” (October 2012, Reference Code:
0072-0423), available at www.marketline.com (last retrieved May 12, 2014).

20. Ethan Bronner, “Law Schools’ Applications Fall as Costs Rise and Jobs are Cut,” New
York Times (January 30, 2013), available at www.nytimes.com (last retrieved May 12,
2014); Richard A. Epstein, “The Rule of Lawyers,” Wall Street Journal (May 5, 2013),
available at www.online.wsj.com (last retrieved May 12, 2014). See also Richard Susskind,
Tomorrow’s Lawyers: An Introduction to Your Future (Oxford, U.K.: Oxford University
Press, 2013); Steven J. Harper, The Lawyer Bubble: A Profession in Crisis (New York: Basic
Books, 2013); Chambliss, “Two Questions for Law Schools About the Future Boundaries
of the Legal Profession,” 342.

21. While it is possible to get some fees reduced or waived, the Law School Admission
Council charges fees for taking the LSAT, plus many other fees should an applicant register
late, change the test date or location, and the like; plus, most law schools require that
applicants register with the LSAC’s Credential Assembly Service, in order to disseminate
LSAT scores, transcripts, and letters of recommendation to law schools. LSAT and
Credential Assembly Service fees typically add up to over $300. In addition, there are costs
for LSAT preparation, which vary in accordance with whether applicants use a live LSAT
preparation course ($1,500 to $2,500), an online LSAT preparation course ($600 to $800),
LSAT preparation books ($100 to $500), or a combination of methods. Law School
Numbers, “LSAT Test Costs and Fees,” available at http://lawschoolnumbers.com/lsat-
prep/lsat-test-costs-and-fees (last retrieved May 12, 2014). See also Law School Admission
Council, “Applying to Law School: How Law Schools Determine Whom to Admit,”

302
available at www.lsac.org/jd/applying-to-law-school/whom-to-admit (last retrieved May 12,
2014).

22. Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession Is
Transforming American Society (Cambridge, Mass.: Harvard University Press, 1996), 90.
On the high price of law school tuition and the problem of growing law school student
debt, and whether law school is a wise investment, see Brian Z. Tamanaha, Failing Law
Schools (Chicago: University of Chicago Press, 2012), 109–10; Debra Cassens Weiss,
“Average Debt of Private Law School Grads is $125K; It’s Highest at These Five Schools,”
ABA Journal (March 28, 2012), available at www.abajournal.com (last retrieved May 12,
2014); Herwig Schlunk, “Mamas 2011: Is a Law Degree a Good Investment Today?”
Journal of the Legal Profession 36 (2011), 301–27; David Segal, “Is Law School a Losing
Game?” New York Times (January 8, 2011).

23. William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S.
Shulman, Educating Lawyers: Preparation for the Profession of Law (A Publication of the
Carnegie Foundation for the Advancement of Teaching) (San Francisco: Jossey-Bass, 2007).
See also Chambliss, “Two Questions for Law Schools About the Future Boundaries of the
Legal Profession,” 344; and Nantiya Ruan, “Student Esquire? The Practice of Law in the
Collaborative Classroom,” Clinical Law Review 20 (2014), 429–65 (detailing more clinical
“experiential” learning reforms for law school instruction).

24. Yet law schools ranked in the top ten are increasingly hiring faculty holding PhDs.
Brent E. Nelson, “Preaching What They Don’t Practice: Why Law Faculties’
Preoccupation With Impractical Scholarship and Devaluation of Practical Competencies
Obstruct Reform in the Legal Academy,” South Carolina Law Review 62 (2010), 105, 131.

25. As quoted by UCLA law professor Gerald Lopez, in Deborah L. Rhode, In the Interests
of Justice: Reforming the Legal Profession (New York: Oxford University Press, 2000), 198.

26. Tracey E. George and Albert H. Yoon, “The Labor Market for New Law Professors,”
Journal of Empirical Legal Studies 11 (2014), 1–38; Richard E. Redding, “Where Did You
Go to Law School? Gatekeeping for the Professoriate and Its Implications for Legal
Education,” Journal of Legal Education 53 (2003), 594, 595; Robert J. Borthwick and
Jordan R. Schau, “Gatekeepers of the Profession: An Empirical Analysis of the Nation’s
Law Professors,” University of Michigan Journal of Law Reform 25 (Fall, 2001), 191–92.

27. The Model Rules of Professional Responsibility are detailed in American Bar
Association, “Model Rules of Professional Conduct: Table of Contents,” available at
www.americanbar.org (last retrieved May 15, 2014). A listing of states and the date of
adoption of the model rules is found in American Bar Association, “State Adoption of the
ABA Model Rules of Professional Conduct,” available at www.americanbar.org (last
retrieved May 15, 2014). For a description of Watergate’s legacy in affecting professional

303
ethics, see Rhode, Lawyers as Leaders, 96–98.

28. A state-by-state analysis of lawyer disciplinary systems is found in Debra Moss Curtis,
“Attorney Discipline Nationwide: A Comparative Analysis of Process and Statistics,”
Journal of the Legal Profession 35 (2011), 209–337.

29. National Conference of Bar Examiners, The Bar Examiner 83 (March 2014), 1–64
(providing a summary of bar admissions and testing procedures for 2013), available at
www.ncbex.org/assets/media_files/Bar-Examiner/articles/830114abridged.pdf (last
retrieved May 13, 2014). See also National Conference of Bar Examiners and American Bar
Association Section of Legal Education and Admissions to the Bar, Comprehensive Guide to
Bar Admission Requirements: 2014, available at www.ncbex.org/assets/media_files/Comp-
Guide/CompGuide.pdf (last retrieved May 13, 2014).

30. National Conference of Bar Examiners, The Bar Examiner 83 (March 2014), 1–64.

31. American Bar Association, “First Year J.D. and Total J.D. Minority Enrollment: 1971–
2012,” available at
www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statis
(last retrieved May 13, 2014); American Bar Association, “First Year and Total J.D.
Enrollment by Gender: 1947–2011,” available at
www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statis
(last retrieved May 13, 2014); National Conference of Bar Examiners, The Bar Examiner
83 (March 2014), 8–9.

32. Deborah L. Rhode, In the Interests of Justice: Reforming the Legal Profession (New York:
Oxford University Press, 2000), 192. See also David S. Clark, “Legal Professions and Law
Firms,” in Comparative Law and Society, edited by David S. Clark (Northampton, Mass.:
Edward Elgar, 2012), 382; Helia Garrido Hull, “Diversity in the Legal Profession: Moving
From Rhetoric to Reality,” Columbia Journal of Race and Law 4 (2013), 1–23; Wynn R.
Huang, “Gender Differences in the Earnings of Lawyers,” Columbia Journal of Law and
Society Problems 30 (1997), 267.

33. American Bar Association, Commission on Women in the Profession, “A Current

Glance at Women in the Law (July 2014),” available at
www.americanbar.org/groups/women/resources/statistics.html (last retrieved May 13,
2014). 2008 Census data are found in U.S. Bureau of Labor Statistics, “Household Data
Annual Averages; Employed Persons by Detailed Occupation, Sex, Race and Hispanic or
Latino Ethnicity,” available at
www.americanbar.org/resources_for_lawyers/profession_statistics.html (last retrieved
October 31, 2014).

34. Clark, “Legal Professions and Law Firms,” 362. See also Abel, American Lawyers, 175–

304
76; MacCrate Report, 226.

35. F. C. DeCoste, On Coming to Law: An Introduction to Law in Liberal Societies, 3rd ed.
(Markham, Ontario: LexisNexis Canada, 2011), 24; National Association for Legal Career
Professionals, “Prelaw—What Do Lawyers Do?” available at
www.nalp.org/what_do_lawyers_do?s=general%20counsel (last retrieved May 14, 2014).

36. Emily A. Spieler, “The Paradox of Access to Civil Justice: The ‘Glut’ of New Lawyers
and the Persistence of Unmet Need,” University of Toledo Law Review 44 (2013), 365,
377–79 (evaluating lawyer demographic statistics from various sources, as of 2005).

37. Debra Cassens Weiss, “‘After the JD’ Study Shows Many Leave Law Practice,” ABA
Journal 100 (2014), 1; Hollee Schwartz Temple, “Law Students Prepare for Jobs Outside
Firms,” ABA Journal 99 (December 2013), 1.

38. Rachel Zahorsky and William D. Henderson, “Who’s Eating Law Firms’ Lunch?” ABA
Journal 99 (2013), 1. See also John Okray, “Legal Process Outsourcing—Coming to a
Practice Area Near You?” Federal Lawyer 60 (September 2013), 4; Clark, “Legal Professions
and Law Firms,” 365; Chambliss, “Two Questions for Law Schools About the Future
Boundaries of the Legal Profession,” 351.

39. See Bruce A. Green, “The Flood of US Lawyers: Natural Fluctuation of Professional
Climate Change,” International Journal of the Legal Profession 19 (2012), 193–207. Law
school funded positions are those created by law schools to allow graduates to be counted as
“employed” for law-ranking purposes. See Brian Z. Tamanaha, Failing Law Schools
(Chicago: University of Chicago Press, 2012), 71–72.

40. National Association for Law Placement, “Employment Patterns, 1999–2010,”

available at www.nalp.org/employmentpatterns1999-2010 (last retrieved May 13, 2014).
Lawyer salary information is found at National Association for Law Placement, “Associate
Salaries Bobble but Remain Essentially Flat” (September 18, 2013), available at
www.nalp.org/associate_salaries_sept2013 (last retrieved May 13, 2014); National
Association for Law Placement, “New Public Interest and Public Sector Salary Figures
From NALP Show Little Growth Since 2004,” available at
www.nalp.org/2012_pubint_salaries (last retrieved May 13, 2014); Salary.com, “Asst.
Professor—Law,” available at http://swz.salary.com/SalaryWizard/Asst-Professor-Law-
Salary-Details.aspx (last retrieved May 13, 2014); and Janan Hanna and Rachel M.
Zahorsky, “What America’s Lawyers Earn,” ABA Journal 97 (2011), 35–40.

41. Herbert M. Kritzer, “The Professions Are Dead, Long Live the Professions: Legal
Practice in a Postprofessional World,” Law and Society Review 33 (1998), 735. See also
National Association for Legal Career Professionals, “Prelaw—What Do Lawyers Do?”

42. Chambliss, “Two Questions for Law Schools About the Future Boundaries of the Legal

305
Profession,” 336, 339. See also John P. Heinz and Edward O. Laumann, Chicago Lawyers:
The Social Structure of the Bar, rev. ed. (Evanston, Ill.: Northwestern University Press,
1994), 127–28. The nature of solo law practice is analyzed in Carroll Seron, The Business of
Practicing Law: The Work Lives of Solo and Small-Firm Attorneys (Philadelphia: Temple
University Press, 1996).

43. Martha Neil, “Some Law Firms End Lockstep Pay for Associates, as Economy
Plummets,” ABA Journal (March 16, 2009), available at www.abajournal.com (last
retrieved May 18, 2014); National Association for Law Placement, “Industry Leaders
Discuss the Future of Lawyer Hiring, Development, and Advancement,” available at
www.nalp.org/future_pressrelease?s=lockstep (June 30, 2009) (last retrieved May 18,
2014). See also Clark, “Legal Professions and Law Firms,” 385, 387.

44. Martha Neil, “Brave, New World of Partnership,” American Bar Association Journal
(January, 2004), 56; Erwin Orson Smigel, The Wall Street Lawyer: Professional Organization
Man? (Bloomington: Indiana University Press, 1969).

45. Deborah L. Cohen, “End of the Road for the ‘Cravath Model’?” ABA Journal 94
(2008), 36–38.

46.Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (striking down legal advertising
restrictions).

47. Glendon, A Nation Under Lawyers, 24 (“eat what you kill” business orientation). See
also Goldfarb v. Virginia State Bar Association, 421 U.S. 773 (1975) (striking down
minimum fee schedules).

48. Joyce S. Sterling and Nancy Reichman, “So You Want to Be a Lawyer? The Quest for
Professional Status in a Changing Legal World,” Fordham Law Review 78 (2010), 2289,
2295–96. See also Marc Galanter and Thomas Palay, Tournament of Lawyers: The
Transformation of the Big Law Firm (Chicago: University of Chicago Press, 1991), 28 (“up-
or-out” policy); Neil, “Brave, New World of Partnership,” 30 (two-tiered partnerships).

49. Kritzer, “The Professions Are Dead, Long Live the Professions,” 731–32.

50. As quoted by a lawyer referred to in Stephen Breyer, “The Legal Profession and Public
Service” (lecture given in New York, September 12, 2000), available at
www.supremecourtus.gov/publicinfo/speeches/speeches.html (last retrieved November 12,
2004), 2. In 2010, the average billable hours across law firms of all sizes were 2,044.
Smaller law firms (50 lawyers or fewer) averaged 1,912), whereas the largest firms (over 701
lawyers) averaged 2,202. National Association for Legal Career Professionals, “Number of
Associate Hours Worked Increases at Largest Firms (February 2012),” available at
www.nalp.org/billable_hours_feb2012 (last retrieved May 14, 2014). See also Sterling and
Reichman, “So You Want to Be a Lawyer?” 2296, 2300–301; Stephanie B. Goldberg,

306
“Then and Now: 75 Years of Change,” American Bar Association Journal (January 1990),
56–61; Marie Beaudette, “Associates Leave Firms in Droves,” National Law Journal
(October 26, 2003), 8.

51. Sterling and Reichman, “So You Want to Be a Lawyer?” 2297–98, 2309-2311. There
are calls for reform due to increasing criticism of using the traditional billable hour
compensation format. See, e.g., Evan R. Chesler, “Kill the Billable Hour,” Forbes (January
12, 2009), available at www.forbes.com/forbes/2009/0112/026.html (last retrieved May
21, 2014); Jonathan D. Glater, “Billable Hours Giving Ground at Law Firms,” New York
Times (January 29, 2009), available at
www.nytimes.com/2009/01/30/business/30hours.html?pagewanted=al (last retrieved May
21, 2014); Scott Turow, “The Billable Hour Must Die,” ABA Journal (August 1, 2007),
available at www.abajournal.com/magazine/the_billable_hour_must_die (last retrieved May
21, 2014). Some lawyers argue though that billable hours will not disappear, especially in
high-stakes litigation, unless there is structural reform in law schools. Lucy Muzy,
“Maximizing the Value of Outside Counsel,” Federal Lawyer (September 2013), 56–61.

52. Scott L. Cummings, “The Politics of Pro Bono,” University of California Law Review
(October 2004), 1, 36–37 (discussing growth of large corporate law firms).

53. Wilkins, Dinovitzer, and Batra, “Urban Law School Graduates in Large Law Firms,”
445–46.

54. Bryant G. Garth and Joyce Sterling, “Exploring Inequality in the Corporate Law Firm
Apprenticeship: Doing the Time, Finding the Love,” Georgetown Journal of Legal Ethics 22
(2009), 1361–94. See also Wilkins, Dinovitzer, and Batra, “Urban Law School Graduates
in Large Law Firms,” 443–44; Association for Legal Career Professionals, “Lateral Hiring
Continues to Outpace Entry-Level Hiring,” available at
www.nalp.org/2008maylateralhiring?s=number%20law%20firms (last retrieved May 14,
2013).

55. Clark, “Legal Professions and Law Firms,” 385–86; Goldberg, “Then and Now: 75
Years of Change,” 56 (analyzing the emergence of the mega-firm). See also Wilkins,
Dinovitzer, and Batra, “Urban Law School Graduates in Large Law Firms,” 434.

56. The firm’s history, along with the firm’s “facts and figures” and different areas of legal
practice, is found on Baker & McKenzie’s website, http://www.bakermckenzie.com/ (last
retrieved November 1, 2014).

57. Breyer, “The Legal Profession and Public Service,” 9. See also Hope Viner Samborn,
“Government Agents: Some Find Perks of Public Sector Work Beat the Potential of Private
Practice,” American Bar Association Journal (December 2002), 64. See also Joe D. Whitley,
“In the Service of Justice: A U.S. Attorney Defines His Role,” ABA Journal 79 (1993), 120.

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58. U.S. Office of Personnel Management, “The Twenty Largest White-Collar
Occupations as of September 2012 and Compared to September 2011” and “Number of
General Attorneys in Cabinet Level Agencies, Non-Seasonal Full-Time Permanent, as of
February 2014” (prepared by agency’s Data Analysis Group, on file with author). For some
of the roles government attorneys play and their unique ethical responsibilities, see Neil M.
Peretz, “The Limits of Outsourcing: Ethical Responsibilities of Federal Government
Attorneys Advising Executive Branch Officials,” Connecticut Public Interest Law Journal 6
(2006), 23–63; Anonymous, “Rethinking the Professional Responsibilities of Federal
Agency Lawyers,” Harvard Law Review 115 (2002), 1170–92; John C. Yoo, “Lawyers in
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59. Thomas O. McGarity, “The Role of Government Attorneys in Regulatory Agency

Rulemaking,” Law and Contemporary Problems 61 (Winter 1988), 19, 32. Critics of legal
education assert that law school does not adequately train lawyers for government
policymaking careers in executive agencies. Peter H. Schuck, “Lawyers and Policymakers in
Government,” Law and Contemporary Problems (Winter, 1998), 7, 10.

60. William D. Henderson and Leonard Bierman, “An Empirical Analysis of Lateral
Lawyer Trends From 2000 to 2007: The Emerging Equilibrium for Corporate Law Firms,”
Georgetown Journal of Legal Ethics 22 (2009), 1395, 1400–401.

61. Susan Hackett, “Inside Out: An Examination of Demographic Trends in the In-House
Profession,” Arizona Law Review (Fall/Winter 2002), 613. See also Abel, American Lawyers,
168–72.

62. Association of Corporate Counsel, “Association of Corporate Counsel Census Reveals

Power Shift From Law Firms to Corporate Legal Departments,” available at
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14, 2014).

63. David Lat, “Who Are America’s Best-Paid General Counsel? (2012 Rankings),” Above
the Law (July 18, 2012), available at http://abovethelaw.com/2012/07/who-are-americas-
best-paid-general-counsel-2012-rankings/ (last retrieved May 14, 2014) (noting the base
pay for general counsel in one survey was over $600,000 and, if other bonuses and perks
are considered, many were making well over $1 million).

64. Cause Lawyers and Social Movements, edited by Austin Sarat and Stuart A. Scheingold
(Stanford, Calif.: Stanford Law and Politics, 2006); Stuart A. Scheingold and Austin Sarat,
Something to Believe In: Politics, Professionalism, and Cause Lawyering (Stanford, Calif.:
Stanford University Press, 2004), 3–4; and Catherine R. Albiston and Laura Beth Nielsen,
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Association for Legal Career Professionals, 2007), 19; Equal Justice Works, National
Association for Legal Career Professionals, and Partnership for Public Service, From the
Paper Chase to Money Chase: Law School Debt Diverts Road to Public Service (Washington,
D.C.: Equal Justice Works, National Association for Legal Career Professionals, and
Partnership for Public Service, 2002), 6; see also ABA Commission on Loan Repayment
and Forgiveness, Lifting the Burden: Law Student Debt as a Barrier to Public Service
(Chicago: American Bar Association, 2003), 10. Empirical research contests the finding
that debt is diverting students away from public interest work. Christa McGill,
“Educational Debt and Law Student Failure to Enter Public Service Careers: Bringing
Empirical Data to Bear,” Law and Social Inquiry 31 (2006) 677, 679. The Illinois study
and its findings on the impact of debt on public interest work is found at Illinois State Bar
Association, “Final Report, Findings, and Recommendations on the Impact of Law School
Debt on the Delivery of Legal Services” (Adopted by the Assembly of the Illinois State Bar
Association, June 22, 2013), available at
www.isba.org/sites/default/files/committees/Law%20School%20Debt%20Report%20-
%203-8-13.pdf (last retrieved May 21, 2014), 15–16.

66. A listing of the types of loan forgiveness or debt reduction programs, and the entities
that offer them, is found in Equal Justice Works, “Loan Repayment Assistance Programs,”
available at http://equaljusticeworks.org/ed-debt/students/loan-repayment-assistance-
programs (last retrieved May 21, 2014). See also Doug Rendleman and Scott Weingart,
“Collection of Student Loans,” Washington and Lee Journal of Civil Rights and Social Justice
20 (2014), 215, 231–34; Tresa Baldas, “Paying the Way: Loan Programs Booming for
Grads in Public Service Jobs,” National Law Journal (July 5, 2004), 1.

67. Society of American Law Teachers, “2012–13 SALT Salary Survey,” SALT Equalizer
2013 (May 2013), available at
www.saltlaw.org/userfiles/SALT%20salary%20survey%202013.pdf (last retrieved May 20,
2014). See also Abel, American Lawyers, 174.

68. McFarland v. Scott, 512 U.S. 1256 (1994) (Blackmun, J., dissenting).

69. Deborah L. Rhode, Access to Justice (New York: Oxford University Press, 2004), 3. See
also David Cole, No Equal Justice: Race and Class in the American Criminal Justice System
(New York: New Press, 1999), 65–66.

70. Powell v. Alabama, 287 U.S. 45, 71 (1932).

71. Betts v. Brady, 316 U.S. 455 (1942). See also Johnson v. Zerbst, 304 U.S. 458 (1938).

72. Gideon v. Wainwright, 372 U.S. 355 (1963).

73. Argersinger v. Hamlin, 407 U.S. 25 (1972) (misdemeanors); Alabama v. Shelton, 535

309
U.S. 654 (2002) (suspended sentences); In re Gault, 387 U.S. 1 (1967) (juveniles); and
Douglas v. California, 372 U.S. 353 (1963) (first, mandatory appeals).

74. See, e.g., Scott v. Illinois, 440 U.S. 367 (1979); Ross v. Moffitt, 417 U.S. 600 (1974);
Pennsylvania v. Finley, 481 U.S. 551 (1987). David M. O’Brien, Constitutional Law and
Politics: Civil Rights and Liberties, 9th ed., Vol. 2 (New York: Norton, 2014), 1116.

75. Caroline Wolf Harlow, Defense Counsel in Criminal Cases (Bureau of Justice Statistics
Special Report, November 2000, NCJ 179023), available at www.bjs.org (last retrieved
November 25, 2004).

76. The Spangenberg Group for the Bureau of Justice Assistance, Office of Justice
Programs, Contracting for Indigent Defense Services: A Special Report (April 2000, NCJ
181160), available at www.bjs.org (last retrieved November 25, 2004).

77. Department of Justice, “ATJ’s Four-Year Anniversary Major Accomplishments,”

available at www.justice.gov/atj/access-to-justice-accomplishments.html (last retrieved May
17, 2014). See also Wilbur v. City of Mount Vernon, No. C11-1100RSL, 2013 WL
6275319, at *2 (W.D. Wash. Dec. 4, 2013). See also Andrea Woods, “The Undersigned
Attorney Hereby Certifies: Ensuring Reasonable Caseloads for Washington Defenders and
Clients,” Washington Law Review 89 (2014), 217–51.

78. Deborah L. Rhode, “Access to Justice: An Agenda for Legal Education and Research,”
Journal of Legal Education 62 (2013), 531; David Luban, “Taking Out the Adversary: The
Assault on Progressive Public Interest Lawyers,” California Law Review (January 2003),
209, 211; Tom Lininger, “Deregulating Public Interest Law,” Tulane Law Review 88
(2014), 727–71. See also Stephen Breyer, “The Legal Profession and Public Service”
(Speech Sponsored by the National Legal Center for the Public Interest, The Pierre Hotel,
New York, N.Y., September 12, 2000), available at www.supremecourt.gov (last retrieved
May 22, 2014), 4.

79. Turner v. Rogers, 131 S.Ct. 2507 (2011). See also M. L. B. v. S. L. J., 519 U.S. 102
(1996); Lassiter v. Department of Social Services, 452 U.S. 18 (1981); United States v. Kras,
409 U.S. 434 (1973); and Boddie v. Connecticut, 401 U.S. 371 (1971).

80. See Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America
(New York: Oxford University Press, 1976), 285–88.

81. Albiston and Nielsen, “Funding the Cause: How Public Interest Law Organizations
Fund Their Activities and Why It Matters for Social Change,” 64–66; Susan E. Lawrence,
The Poor in Court: The Legal Services Program and Supreme Court Decision Making
(Princeton, N.J.: Princeton University Press, 1990), 25–36.

82. Albiston and Nielsen, “Funding the Cause: How Public Interest Law Organizations

310
Fund Their Activities and Why It Matters for Social Change,” 66–67. See also Brown v.
Legal Foundation of Washington, 538 U.S. 216 (2002); Legal Services Corporation v.
Velazquez, 351 U.S. 533 (2001).

83. See Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control
of the Law (Princeton, N.J.: Princeton University Press, 2008).

84. Terry Carter, “IOLTA Programs Find New Funding to Support Legal Services,” ABA
Journal 99 (2013), 61; Ed Finkel, ABA Journal 97 (2011), 24–25. The American Bar
Association’s Directory of IOLTA programs is found in American Bar Association,
“Directory of IOLTA Programs,” available at
www.americanbar.org/groups/interest_lawyers_trust_accounts/resources/directory_of_iolta_programs.html
(last retrieved May 21, 2014). Information about the Legal Services Corporation and its
2009 report is found at Legal Services Corporation, “Documenting the Justice Gap in
America: The Current Unmet Civil Legal Needs of Low-Income Americans,” available at
www.lsc.gov/media/reports (last retrieved May 22, 2014); Legal Services Corporation,
“Fact Sheet on the Legal Services Corporation,” available at www.lsc.gov/about/what-is-lsc
(last retrieved May 22, 2014).

85. National Center for State Courts, “Access to Justice: The Self-Represented Litigant
(2006, Ten Trends Impacting State Courts),” available at
http://ncsc.contentdm.oclc.org/cdm/ref/collection/accessfair/id/135 (last retrieved May 22,
2014); Rhode, Access to Justice, 82. Federal district court pro se civil filings are in
Administrative Office of the U.S. Courts, “Table C-13. Civil Pro Se and Non-Pro Se
Filings, by District, During the 12-Month Period Ending September 30, 2012,” available
at www.uscourts.gov (last retrieved May 22, 2014); and, for federal bankruptcy courts, in
Administrative Office of the U.S. Courts, “By the Numbers—Pro Se Filers in the
Bankruptcy Courts, Third Branch News, October 2011,” available at www.uscourts.gov
(last retrieved May 22, 2014) (reporting pro se bankruptcy petitions grew 187 percent from
2006 to 2011).

86. Paula L. Hannaford-Agor, “Helping the Pro Se Litigant: A Changing Landscape,” Court
Review 39 (Winter, 2003), 8–16; Rhode, Access to Justice, 82–83; Deborah L. Rhode,
“Reforming American Legal Education and Legal Practice: Rethinking Licensing Structures
and the Role of Nonlawyers in Delivering and Financing Legal Services,” Legal Ethics 16
(2013), 243, 247. See also Faretta v. California, 422 U.S. 806 (1972).

87. See, e.g., the Self-Represented Litigation Network, available at

www.selfhelpsupport.org/ (last retrieved May 22, 2014) (sponsored by the State Justice
Institute and other organizations).

88. National Center for State Courts, “Access to Justice: The Self-Represented Litigant
(2006, Ten Trends Impacting State Courts),” available at

311
http://ncsc.contentdm.oclc.org/cdm/ref/collection/accessfair/id/135 (last retrieved May 22,
2014); Richard Zorza, “Access to Justice: Economic Crisis Challenges, Impacts, and
Responses (2009, Court Innovations to Consider in a Tight Economy),” available at
http://ncsc.contentdm.oclc.org/cdm/ref/collection/accessfair/id/185 (last retrieved May 22,
2014).

89. James G. Leipold, “Being Mindful About the Connection Between Pro Bono and PD,”
NALP Bulletin (May 2013), available at
www.nalp.org/uploads/0513ConnectionBetweenProBonoandPD.pdf (last retrieved May
14, 2013).

90. See, e.g., Ruth Bader Ginsburg, “In Pursuit of the Public Good: Lawyers Who Care”
(speech delivered on April 9, 2001, University of District of Columbia), available at
www.supremecourtus.gov/publicinfo/speeches/speeches.html (last retrieved November 28,
2004); Margaret Graham Tebo, “Lag in Legal Services: Conference Speakers Make the
Case for More Pro Bono Efforts by Lawyers,” American Bar Association Journal (July 2002),
67; Rhode, Access to Justice, 145–84.

91. James C. McKinley, Jr., “New York State’s Top Judge Permits Early Bar Exam in
Exchange for Pro Bono Work,” New York Times (February 11, 2014), available at
www.nytimes.com (last retrieved May 22, 2014).

92. Scott L. Cummings, “The Pursuit of Legal Rights and Beyond,” U.C.L.A. Law Review
59 (2012), 506, 535–36. See also Scott L. Cummings and Deborah L. Rhode, “Managing
the Pro Bono: Doing Well by Doing Better,” Fordham Law Review 78 (2010), 2357,
2364–65, 2373–74; Leslie C. Levin, “Pro Bono Publico in a Parallel Universe: The
Meaning of Pro Bono in Solo and Small Law Firms,” Hofstra Law Review 37 (2009), 699,
701.

93. Cummings, “The Politics of Pro Bono,” 147. See also David J. Dreyer, “Culture,
Structure, and Pro Bono Practice,” Journal of the Legal Profession 33 (2009), 185, 198–99.

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Chapter 6 Access to Courts and Justice

SHARING A COMMON HERITAGE, CAROL BOND BECAME BEST FRIENDS

WITH Myrlinda Haynes after moving to Pennsylvania from Barbados. When Bond found
out that her close friend was pregnant, she was ecstatic—until she learned that the baby she
was carrying was fathered by Bond’s husband of fourteen years. In retaliation, Bond stole
toxic chemicals from her employer and bought others online from Amazon. She put the
poisons on Haynes’s car handles, front door, and mailbox. After suffering a burn on her
thumb, Haynes complained to the Postal Service, which put surveillance cameras around
her house. Shortly thereafter, Bond was caught placing chemicals in Haynes’s car muffler
and arrested.

Ordinarily, local authorities prosecute domestic disputes under state law. In Bond’s case,
though, the federal government charged her with violating a federal statute that
implemented the terms of an international treaty banning the use of chemical weapons.
Bond in turn claimed that they could not prosecute her under a federal law aimed at
stopping the spread and use of weapons of mass destruction, because the federal
prosecution ran afoul of “states’ rights” guaranteed by the Constitution’s Tenth
Amendment. In response, the federal government countered that Bond could not assert
that defense on behalf of the state because she was a private citizen, not a state official, and
thus lacked standing to sue—or a personal and direct stake in the case outcome—and
therefore her case was unreviewable.

In Bond v. United States (2011),1 the Supreme Court agreed that Bond could raise a Tenth
Amendment challenge to her federal prosecution. Yet, “the merits” of her claim that the
federal government could not prosecute her under federal law went unresolved, and her
case was sent back to the lower federal court for a rehearing. Thereafter, the U.S. Court of
Appeals for the Third Circuit affirmed Bond’s conviction. But, three years later in Bond v.
United States (2014),2 the Supreme Court reversed that decision in holding that the federal
government violated principles of federalism and, indeed, lacked the power to prosecute
Bond. For a unanimous Court, Chief Justice John Roberts held that the federal chemical
weapons ban had no relationship to a local crime, which amounted to “an amateur attempt
by a jilted wife to injure her husband’s lover.”

By requiring litigants, like Bond, to overcome threshold barriers, the law of standing and
other jurisdictional doctrines allow courts to avoid, delay, or reach out to resolve
contentious issues of public policy. Bond illustrates that judicial policymaking is often
formulated in the preliminary stages of lawsuits when determining whether a litigant may
bring a lawsuit in the first place. The political implications of judicial doctrines governing
justiciability (whether a court has jurisdiction to hear a case) are thus important not only
for litigants’ access to courts but also for the legal and political role of courts.

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Federal and state courts routinely use so-called threshold doctrines as a filter for reaching
the legal merits of cases and controversial disputes over, for example, same-sex marriage,
religious freedom, environmental protection, governmental surveillance, educational
financing, redistricting, and many others.3

Notably, the public policy significance of high-profile litigation routinely also draws the
attention of third-party advocacy and special interest groups who also want to be heard in
courts so as to assert their ideological agendas.4 In Bond, several conservative organizations
—among them the Cato Institute, Gun Owners of America, the Conservative Legal
Defense and Education Fund, and the Eagle Forum Education and Legal Defense Fund—
filed amicus curiae (third-party “friend of the court”) briefs in support of Bond’s Tenth
Amendment argument against federal overreaching. Moreover, six states, including
Alabama, Florida, and South Carolina, filed amicus briefs in the interest of protecting state
sovereignty. Furthermore, after the Supreme Court agreed to review the case, in a rather
unusual step due to the federal government’s admission that it had wrongly argued that
Bond had no standing, the Court appointed a former law clerk to file an amicus brief
arguing the opposite position in order to balance the differing legal positions.5

Whether litigants and outside groups gain judicial access is thus a crucial threshold question
that defines the scope and limits of a court’s power to hear a case. In general, the
Constitution and state constitutions, federal or state statutes, and rules of courts are the
principal sources establishing the jurisdiction of courts. After reviewing some of these
formal barriers to judicial access, this chapter considers the informal constraints, along with
the different methods organized interests and public advocacy groups use to win access to
the courts and influence legal policy.

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Formal Barriers
The legal doctrines that define the scope of courts’ jurisdiction originate in state or federal
law and judicial practices. While state and federal courts share similar constitutional
frameworks, there are important differences that distinguish their operation, function, and
decisional processes. Judicial selection for federal and state courts differs (as discussed in
Chapter Four), and state constitutions may be more easily amended than the federal
Constitution. As a result, state constitutional development is more closely tied to the
democratic values and preferences that orient how the courts determine jurisdiction and
exercise their judicial authority. Given these differences, some legal scholars argue that the
formal constraints that delineate judicial powers—among them separation of powers or
federalism principles—do not uniformly apply in state and federal courts.6 In other words,
the same formal barriers that determine whether a federal court has jurisdiction to
adjudicate a case may not control state court jurisdictional powers. Even so, many state
courts nonetheless tend to draw on the provisions of the Constitution when interpreting
their jurisdiction.7

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The Constitution’s Article III “Cases” or “Controversies”
Requirement
Under Article III of the Constitution, federal courts may decide select “cases or
controversies.” As explained by Chief Justice Charles Evans Hughes, jurisdiction extends to
controversies that are “definite and concrete, touching the legal relations of parties having
adverse legal interests,” and that may be resolved by courts giving “specific relief through a
decree of a conclusive character, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts.”8

Article III bars federal courts from entertaining friendly lawsuits—those that do not raise
adverse interests. Nor do courts give advisory opinions about hypothetical cases. In 1793,
for example, the Supreme Court rejected President George Washington’s request to
interpret an international law. Most state courts adhere to the tradition of not rendering
advisory opinions, though there are exceptions: at least eight state constitutions permit their
courts to advise the governor or legislature on questions of policy, and several state courts
have assumed jurisdiction over legal and political disputes that ordinarily are nonreviewable
(“nonjusticiable”) in the federal courts.9

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The Procedural Rules of Courts
Both federal and state courts use procedural rules to manage their dockets and determine
whether litigants have standing to bring legal claims. Under the 1789 Judiciary Act, federal
courts followed the rules of state judiciaries. But as the federal system grew, Congress
authorized federal courts to develop their own procedural rules. With the passage of the
Rules Enabling Act in 1934, Congress gave the Supreme Court the power to create its own
rules on the basis of recommendations made by the Judicial Conference of the United
States (the policymaking body that administers the operation of federal courts, as discussed
in Chapter Three). As a result, the Court enacted the 1938 Federal Rules of Civil
Procedure (FRCP), which now govern federal judicial procedure.10

The FRCP quickly became the model for most states as well. The model rules require
pretrial meetings between judges and lawyers, a practice that helps settle cases without
trials. In 1946, the Court created the Federal Rules of Criminal Procedure, and in the
1970s, the Federal Rules format was adopted for administrative actions as well as for
evidentiary hearings and other proceedings. Today, the Federal Rules of Appellate
Procedure, the Federal Rules of Bankruptcy Procedure, and the Federal Rules of Evidence
all govern specialized trial practices and case procedures.11

The proliferation of judicial rulemaking has been both a boon and a bane, however.
Though the goal of greater uniformity has been arguably achieved to some degree, the
simplicity of procedure is undermined when each judicial district promulgates its own set
of rules. Some studies have shown that the federal model of procedural rules has had a
diminishing impact on state courts over time, thus allowing nonfederal practices to govern
the legal processes of most of the heavily populated states.12 In the federal courts, Congress
has also complicated the development of uniform rules by amending the federal rules, often
without consulting the U.S. Judicial Conference or the Supreme Court.13

The struggles over the development of rules of judicial procedure—complicated by the

growth of Internet technologies and the movement toward digital “e-formats” that regulate
the flow of court paperwork and documents—has also had some contradictory effects.14
On the one hand, the open and deliberative process of rule creation contributed to a
rulemaking process that is accountable to the public. On the other hand, the openness
underlying the process has resulted in some state and federal courts promulgating their own
sets of procedural rules. As a result, litigants seeking access to justice often confront
parochial rules that make the judicial process complicated, costly, and time-consuming.15

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Discretionary Barriers
The case and controversy limitations on judicial power are also the basis for discretionary
doctrines that determine whether a case is justiciable—that is, reviewable. Doctrines of
justiciability allow courts to exercise restraint and deny access to cases not deemed “fit” for
resolution. Scholars and courts, however, have never reached a consensus on the wisdom of
invoking such jurisdictional doctrines in order to grant or deny litigants access to the courts
(see “Contemporary Controversies Over Courts: Tactics for Constitutional Avoidance:
‘Passive Virtues’ or ‘Subtle Vices’?”). Political scientists refer to these doctrines as “access
policy making” because, in determining whether litigants have standing to sue, courts
routinely consider whether lawsuits are moot or ripe or improperly raise a political
question.16

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The Law of Standing
Although the law of standing has been called one of “the most amorphous concepts in the
entire domain of public law,”17 it simply means that a party must have a personal stake in
the outcome of a case. In making that determination, a court decides whether the party has
suffered a “concrete and particularized” injury that is “fairly traceable” to the challenged
conduct, and is likely to be resolved (or “redressed”) by a judicial decision.18 In applying
these principles of “injury,” “causation,” and “redressability,” courts focus on the party’s
injury. For example, in California, two same-sex couples sued state officials because they
claimed that California’s Proposition 8, a ballot initiative banning same-sex marriage,
violated their due process and equality rights. Yet the state officials, who included the
governor, the attorney general, and others who were responsible for enforcing California’s
marriage laws, refused to defend Proposition 8—so the official proponents of Proposition 8
sought to intervene and defend it in court on behalf of the state. In Hollingsworth v. Perry
(2013), however, the Supreme Court denied the official proponents of the ballot measure
standing because they merely had a “generalized grievance” that did not give them a “direct
stake” in Proposition 8’s enforcement. As Chief Justice John Roberts put it, “Without a
judicially cognizable interest of their own, [the official proponents of Proposition 8]
attempt to invoke that of someone else,” namely state officials. Therefore, they did not have
a “sufficiently concrete interest” in the dispute, and did not suffer an “injury in fact.”19

It bears emphasizing that the doctrine of standing resolves only questions of a litigant’s
status and not whether the underlying claim is meritorious. However, state and federal
courts are not uniform in deciding standing issues. Taxpayer lawsuits—suits by citizens
alleging that the government unlawfully is spending taxpayer monies in support of
disfavored legislative programs—is a good example.20 Whereas Article III constrains federal
court jurisdiction in taxpayer lawsuits, it does not affect state courts. Consequently, many
state courts permit taxpayer standing, but federal courts generally prohibit it.21

Moreover, in the 1960s, the Warren Court (1953–1969) relaxed the barriers to taxpayer
standing, but subsequently the more conservative Court has again limited taxpayer
standing. In Flast v. Cohen (1968),22 the Court granted taxpayer standing to challenge the
federal government’s giving religious schools a subsidy for instructional materials and
textbooks under the Elementary and Secondary Education Act. Flast is important because it
liberalized taxpayers’ standing to challenge the constitutionality of legislation if they could
satisfy a two-prong test: first, whether there is a nexus between their status as taxpayers and
the challenged legislation; and, second, whether there is a nexus between their status and
the “precise nature of the constitutional infringement alleged.” These principles made it
easier for taxpayers in Establishment Clause cases to bring lawsuits in federal courts and
expanded the role of courts in determining public policy.

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However, more recently, as the Court became more conservative the law on taxpayer
standing has been increasingly limited. In Valley Forge Christian College v. Americans United
for Separation of Church and State, Inc. (1982), the Burger Court (1969–1986) denied
standing to a citizen challenging a land grant to a religious college, because it was a
challenge to an administrative decision—and not, as in Flast, a challenge to the
constitutionality of congressional legislation.23 Subsequently, in Hein v. Freedom From
Religion Foundation, Inc. (2007) and Arizona Christian School Tuition Organization v. Winn
(2011), the Roberts Court (2005–present) rejected taxpayer standing in cases raising other
Establishment Clause issues. In Hein, taxpayers were not permitted to challenge President
George W. Bush’s “faith-based initiatives” program because the funds used to support
religious organizations were dispersed at the discretion of the executive branch and not as
authorized by Congress. In Winn, Arizona taxpayers were denied standing to challenge a
state law permitting taxpayers to receive tax credits for making contributions to so-called
school tuition organizations, including some that were religious, because the credits were
not deemed a legislative appropriation.24 Justices Antonin Scalia and Clarence Thomas
would have gone further and entirely overturned Flast.25

In addition to taxpayer suits, the courts apply the standing doctrine to so-called citizen
suits, or the lawsuits by citizens who by statute may bring suits in order to vindicate certain
public interests against federal agencies’ regulations. Similarly, in “legislative standing”
cases, the judiciary sometimes hear (but increasingly reject) the claims of elected
representatives who challenge the constitutionality of recently enacted legislation on which
they were outvoted. Public advocacy groups, governmental entities, and other third parties
also routinely seek judicial access, and do so in not always ideologically predictable
alliances.26 For example, in Massachusetts v. Environmental Protection Agency (2007),27 a
bare majority of the Roberts Court granted Massachusetts and other environmental groups
standing to challenge the federal government’s decision not to regulate harmful greenhouse
gas emissions under the Clean Air Act. However, in Clapper v. Amnesty International USA
(2013),28 another 5:4 decision, the Court denied standing to attorneys, human rights
activists, labor organizations, and journalists that did not want their private telephone
conversations to suspected terrorists in foreign countries to be monitored under the federal
government’s wiretap surveillance program. In sum, while the law of standing continues to
evolve, critics lament the inability to draw clearly fixed lines and what appears to be ad hoc
judicial decision making—even “lawless, illogical, and dishonest” judicial behavior.29

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Contemporary Controversies Over Courts

321
Tactics for Constitutional Avoidance: “Passive Virtues”
or “Subtle Vices”?
Justice Louis Brandeis (1916–1939) famously outlined rules for avoiding deciding constitutional questions.
They remain important—though controversial and not always followed—for understanding the ways the
Court may forestall addressing constitutional questions that might bring it into conflicts with Congress or
the president. Justice Brandeis and other liberal progressives advocated “judicial self-restraint” and deference
to the political process, because in the 1930s a conservative majority on the Court was striking down early
New Deal and other progressive state legislation. In an opinion in Ashwander v. Tennessee Valley Authority
(1936), he objected to granting standing—that is, recognizing a personal injury entitling the petitioner to
bring a lawsuit challenging the constitutionality of federal legislation—and maintained that, if standing was
granted in a case, the Court should still avoid striking down legislation or a law unless it was “beyond all
reasonable doubt” that there was a constitutional violation. In setting forth seven rules for constitutional
avoidance, Justice Brandeis explained:

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules
under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for
decision. They are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary,
proceeding, declining because to decide such questions “is legitimate only in the last resort, and as a
necessity in the determination of real, earnest and vital controversy between individuals. It never
was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to
the courts an inquiry as to the constitutionality of the legislative act.”
2. The Court will not “anticipate a question of constitutional law in advance of the necessity of
deciding it....It is not the habit of the Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.”
3. The Court will not “formulate a rule of constitutional law broader than is required by the precise
facts to which it is to be applied.”
4. The Court will not pass upon a constitutional question although properly presented by the record,
if there is also present some other ground upon which the case may be disposed of. This rule has
found most varied application. Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory construction or general law,
the Court will decide only the latter....Appeals from the highest court of a state challenging its
decision of a question under the Federal Constitution are frequently dismissed because the
judgment can be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that
he is injured by its operation....Among the many applications of this rule, none is more striking
than the denial of the right of challenge to one who lacks a personal or property right. Thus, the
challenge by a public official interested only in the performance of his official duty will not be
entertained.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has
availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may be avoided.

Justice Brandeis’s disciple, former liberal Harvard Law School professor Justice Felix Frankfurter,
subsequently championed avoiding deciding many cases by invoking standing requirements—whether there
is a true adversarial dispute over a personal injury that is ripe, not moot, and does not present a “political
question.” As a result, the Court delayed deciding many cases involving claims of constitutional rights, and
Justice Frankfurter became more conservative during his time on the bench (1939–1962).

322
The rules for constitutional avoidance and threshold questions of standing to sue, thus, became and remain
controversial. One of Justice Frankfurter’s former law clerks, Yale Law School professor Alexander Bickel,
defended them as the “passive virtues” of judicial review. Since the Court is an antidemocratic,
countermajoritarian institution, he argued, it therefore should generally defer to the outcomes of the
democratic process. By contrast, another of Justice Frankfurter’s former law clerks, Stanford Law School
professor Gerald Gunther, along with other liberals, countered that such rules and standing requirements
were “subtle vices.” Important questions of constitutional rights are thereby avoided, but the Court in fact
has “a duty to decide” them, given its obligation to enforce the Constitution and the Bill of Rights.

After Justice Frankfurter retired, less attention was paid to such rules and standing requirements by the
Court—from the latter years of the tenure of Chief Justice Earl Warren (1953–1969) through the chief
justiceships of Warren E. Burger (1969–1986) and William H. Rehnquist (1986–2005). More recently,
however, a majority of the Court under Chief Justice John G. Roberts, Jr., has renewed interest in avoiding
constitutional questions and, if reaching them, deciding them on the narrowest possible grounds.

For further reading, seeAshwander v. Tennessee Valley Authority, 297 U.S. 288 (1936); Alexander Bickel, The
Least Dangerous Branch: The Supreme Court at the Bar of Politics (New York: Bobbs-Merrill, 1962); Gerald
Gunther, “The Subtle Vices of ‘Passive Virtues,’” Columbia Law Review 64, no. 1 (1964); and Lisa
Kloppenberg, Playing It Safe: How the Supreme Court Sidesteps Hard Cases and Stunts the Development of
Law (New York: New York University Press, 2001).

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Mootness and Ripeness
Mootness and ripeness are two sides of the same coin for denying standing: a case may be
dismissed as moot if the factual basis for the dispute has changed; alternatively, a case may
be denied if it is not ripe because appeals in lower courts or other agencies have not been
exhausted.

In DeFunis v. Odegaard (1974),30 for example, the Court dismissed a lawsuit challenging
the University of Washington School of Law’s affirmative action program because the
student bringing the suit had been admitted, was in his third year of law school, and would
graduate before the justices could decide the case. DeFunis illustrates that a live controversy
can lose its adverseness upon a change in facts or law after a lawsuit is filed.

In contrast to federal courts, though, state judiciaries are, arguably, more inclined to hear,
and not avoid, disputes involving important public policy questions, sometimes under the
rhetoric of advancing the “public interest.”31 But, as with federal justiciability questions,
determining the public interest is a matter of judicial discretion. To illustrate, in Illinois,
after a lower court ruled that a state law was unconstitutional because it denied a convicted
sex offender visitation rights to his children, county and state officials filed an appeal to
reverse the court’s ruling. But, while the appeal was pending, the father filed another
petition claiming that he was entitled to visit his children under the same law that was held
to be unconstitutional because he successfully completed a treatment program, a
precondition that established his legal right to visitation. In In re Marriage of Donald B. and
Roberta B. (2014),32 the Illinois Supreme Court agreed, holding that the issue of the state
law’s constitutionality no longer needed to be decided on appeal because it was moot in
light of the father’s compliance with the controlling statute.

The ripeness doctrine, as explained in Abbott Laboratories v. Gardner (1967),33 is invoked

“to prevent courts, through the avoidance of premature adjudication, from entangling
themselves in abstract disagreements” with other government institutions over legal
interpretations. Thus, for many federal courts, issues of ripeness are determined by the
“fitness of the issues” for judicial resolution and the type of “hardship” the parties will face
if the court does not review the case. The first factor ensures that the court is hearing a legal
question and the second evaluates how the litigants are affected if the court declines to
act.34 In Renne v. Geary (1991),35 on First Amendment free speech grounds, several
registered voters and political party representatives sued county election officials to stop
them from deleting political endorsements that are printed in voting pamphlets in
nonpartisan elections, in accordance with a state constitutional provision. But, absent an
allegation that county officials had actually removed the endorsements, the Supreme Court
held that the case did not present a live controversy to decide.

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Notably, the doctrines of mootness and ripeness may be manipulated, either to avoid
deciding contentious social issues of public policy or, conversely, to confront them.
Although DeFunis declined to review the merits of reverse affirmative-action claims, four
years later, in Regents of the University of California v. Bakke (1978),36 the Court did so and
upheld such programs so long as they do not impose a quota system. Likewise, in Roe v.
Wade (1973),37 the landmark abortion decision, the Court decided the case even though
Jane Roe had delivered a baby by the time the Court handed down its decision. Instead of
mooting the case, the Court held because a woman may become pregnant again and the
litigation process would have taken longer than nine months, the issues raised had to be
judicially resolved because they were “capable of repetition, yet evading review.”

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The Political Question Doctrine
The political question doctrine originates from Marbury v. Madison (1803).38 In Marbury,
Chief Justice Marshall said, “The province of the court is, solely, to decide on the rights of
individuals, not to inquire how the executive, or executive officers, perform duties in which
they have discretion. Questions in their nature political, or which are, by the constitution
and the laws, submitted to the executive, can never be made in this court.” The doctrine
limits a court’s jurisdiction by removing political disputes from judicial consideration. In
other words, it means that a court must decide whether a dispute is best decided by the
political branches because there is no clear judicial remedy.

Although state courts may decline to hear political questions, Article III requires federal
courts to apply the doctrine with more rigor.39 Yet, even the federal judiciary has assumed
jurisdiction over matters that were once thought to be best resolved by other political
branches. Before 1962, for instance, the Court generally refused to hear “political
questions” involving challenges to legislative redistricting.40 In Colegrove v. Green (1946),41
Justice Felix Frankfurter famously stated that political disputes over redistricting would
require the judiciary to do “what is beyond its competence to grant,” and therefore “courts
ought not to enter this political thicket.”

Yet in Baker v. Carr (1962)42 the Supreme Court signaled that it was ready to step into the
political thicket when ruling on another redistricting case challenging the
malapportionment of a state legislature as violation of equal voting rights. The Court
delineated six factors that were intended to guide courts in deciding if a legal issue should
be heard or avoided as a political question, and among them was whether there is a “lack of
judicially discoverable and manageable standards for resolving the issue.”43 These factors,
when applied, have given the justices more discretion to decide the types of cases that
previously were thought to be unreviewable. As a result, since Baker, the Court has
increasingly supervised the electoral process in a wide range of areas, including the
regulation of political parties, campaign finance regulation, political patronage, voting, and
redistricting.

The scope and application of the political question doctrine thus remains controversial in
the area of political elections and campaigns. In Bush v. Gore (2000), an election saga and
legal contest that Justice Ruth Bader Ginsburg later referred to as a “December storm over
the U.S. Supreme Court,”44 the Court bypassed the political question doctrine and decided
that the manual recount conducted in certain Florida voting districts violated the Equal
Protection Clause by not providing precise standards for determining a voter’s intent in
casting a ballot. Four justices—John Paul Stevens, David Souter, Ruth Bader Ginsburg,
and Stephen Breyer—disagreed. Justice Breyer made the most forceful case for
nonintervention, arguing that the Twelfth Amendment and the federal Electoral Count Act

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vested in Congress, not the Court, the power to decide the outcome of presidential
elections. For Justice Breyer, the Court should have avoided the inherently political
question and followed the advice of Justice Louis Brandeis who once said that “the most
important thing we do is not doing.”

Bush v. Gore is a dramatic illustration of the political question doctrine’s significant public
policy consequences. It is often the focal point of land-use disputes and state educational
finance suits challenging public school funding formulas devised by legislatures and
whether they meet constitutional standards,45 as well as the role unregulated political
money plays in campaigns and elections in protecting the free speech rights or ideological
interests of individuals and special interest groups.46

In sum, all of the justiciability doctrines are critical gateways for litigants to gain access to
courts and possibly change legal and social policy. In the next section, the central role
lawyers and organized interests play in strategically positioning themselves to gain access to
the courts and influence legal policy is analyzed.

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Organized Interests and Strategic Litigation
“We can now look forward to at least another term,” complained Justice Antonin Scalia,
“with carts full of mail from the public, and streets full of demonstrators, urging us—their
unelected and life-tenured judges who have been awarded those extraordinary,
undemocratic characteristics precisely in order that we might follow the law despite the
popular will—to follow the popular will.” Justice Scalia’s disappointment, expressed in a
concurring opinion in Webster v. Reproductive Health Services (1989), was over the Court’s
failure to overturn Roe v. Wade (1973), its landmark ruling on abortion. Because Webster
generated an unprecedented amount of attention from organized interests and public
advocacy groups from both sides of the political spectrum—seventy-eight amicus briefs
were filed, and over four hundred different interest groups cosponsored the litigation in the
belief that a majority of the Court might use Webster to reverse Roe. But it did not
happen.47

Demonstrators rally after the Supreme Court’s 2000 Bush v. Gore decision stopping the
Florida recount, which allowed G. W. Bush to become president.

AP Photo/Steve Helber

Justice Scalia’s comment and the wide attention given Webster illustrate the critical role
interest group litigation plays in shaping judicial policy. The organizations mobilized in
Webster correctly perceived that the recently appointed Justice Anthony Kennedy, who
replaced Justice Lewis Powell’s “swing vote,” split the Court into two equal factions on the
abortion issue and that Justice Sandra Day O’Connor would have the critical vote. In turn,
organized interests on both sides vigorously competed for Justice O’Connor’s vote by
making a variety of strategic legal arguments in their briefs concerning the scope of the

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right to privacy, medical science, states’ rights, and judicial power. Because Justice
O’Connor ultimately voted to uphold Missouri’s abortion restrictions but also support Roe
as precedent, “both [pro-choice and pro-life supporters] made inroads with the Court.”48
Not only did they shape the Court’s decision with the information they supplied, but the
interest groups also accomplished many of their policy goals.

Just as Justice Scalia predicted, the abortion controversy did not go away after Webster.
Organized interest groups continue to play a vital role in influencing court decisions in that
area as well as many others. According to one report, during the Court’s 2003 term, the
justices read a record number (107) of interest group amicus curiae briefs in the University
of Michigan affirmative action cases, Grutter v. Bollinger (2003) and Gratz v. Bollinger
(2003).49 According to another report, that record stood until it was broken by the 136
friend-of-the-court briefs that were filed by interest groups, trade associations, economists,
historians, law professors, and state and government officials in the highly controversial
“Obamacare” case in National Federation of Independent Business v. Sebelius (2012).50 That
organized groups have become a pervasive part of appellate litigation in controversial cases
is a rough measure of their significance in law and courts. Accordingly, the rest of this
chapter examines the different methods by which organized interest groups attempt to
influence judicial policymaking.

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Interest Group Politics and Litigation Strategies
The significance of interest group politics is widely acknowledged in political science, and
scholars have demonstrated that all levels of government are susceptible to group pressure.
Interest groups broadly consist of institutional or membership-based entities, such as
nonprofit corporations, private foundations, think tanks, public advocacy groups, trade
associations, or public interest law firms. One study reports there are over 1,600
organizations in Washington, D.C., that advocate public policy positions along a wide
spectrum of ideological, vocational, religious, ethnic, race, and gender-specific interests.
“Organized interests,” therefore, are groups that seek objectives through political action.51
They exert pressure by lobbying legislators with letter-writing campaigns; organizing public
demonstrations at executive agencies, courts, or assembly buildings; donating money for
political campaigns; mobilizing grassroots support; arranging public appearances; and
testifying at public hearings. The Internet has become a powerful tool for organized
interests as well.52

Interest groups may influence judicial appointments and elections, and they may organize
protests that send political messages to the judiciary.53 Interest groups seeking economic,
social, or political change adopt several litigation strategies to achieve their goals. They may
file a lawsuit and become direct parties to litigation. Alternatively, they may set up “test
cases,” either on their own initiative or after being solicited to file a lawsuit by an outside
individual or group. For example, in District of Columbia v. Heller (2008), libertarian
lawyers linked to the Institute for Justice and the Cato Institute actively sought out and
filed a lawsuit on behalf of Dick Anthony Heller, a federal security guard who was already
involved in challenging the District of Columbia’s restrictive gun laws. As a test case, Heller
was successful because the Supreme Court’s landmark ruling struck down D.C.’s restrictive
gun regulations for violating an individual’s right to self-defense in the home under the
Second Amendment. While such a test case strategy has the advantage of framing the legal
issues, ordinarily only organizations that have enough time, money, and legal resources may
pursue that course of litigation.54

A closely related interest group litigation tactic is to “sponsor” cases filed by other parties.
Sponsoring litigation is time-intensive and costly because groups supply the legal talent and
pay for litigation expenses. The classic example is Brown v. Board of Education (1954), the
landmark ruling on racial discrimination in public schools. In Brown, the National
Association for the Advancement of Colored People (NAACP) Legal Defense and
Educational Fund sponsored five cases in the South, Midwest, and District of Columbia
against segregated schools. Still, judicial support for a group’s policy goals is not
guaranteed. As Susan Lawrence’s study of the Legal Services Program’s sponsorship of
litigation demonstrated, the victories in the high court that expanded the rights of indigents
were often offset by the defeats in cases that restricted the rights of the poor for decades

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afterward.55

A third litigation strategy is to submit an amicus curiae brief. Filing amicus briefs is less
costly, but organizations cannot control the litigation or make tactical decisions. In theory,
submitting amicus briefs alerts the bench to information that is not provided by the parties.
But, in practice, organizations assert their ideological view of the law. In addition, groups
may simultaneously file them in multiple locations, giving them higher exposure and
publicity in certain instances.56

In general, federal and state court rules permit organized groups to file amicus briefs if they
have the parties’ consent or the leave of court. Some courts, such as the Ohio Supreme
Court, do not even require the court’s leave, and amici briefs can be filed without
limitation.57 The U.S. Solicitor General, or a state attorney general, may be exempted from
having to ask permission to file a brief. Though organizations may be permitted to file
briefs, they are rarely allowed to participate in oral arguments. Court procedures may
impose other requirements for amicus filers. Under the Supreme Court’s rules, for instance,
amicus briefs must disclose who provided financial support for writing the brief and
whether an attorney representing a party to the case assisted in the brief’s submission.58

In spite of the procedural hurdles amici briefs must overcome, courts have increasingly
allowed greater amici participation, and their filings in state supreme courts and in the
Supreme Court have sharply increased in the past sixty years.59 Moreover, amici filings
provide more information about legal doctrine and extralegal sources (such as social science
studies, public opinion polls, or foreign law precedent) that might otherwise be omitted.
For example, extralegal sources were an important reference point for the Court in Hall v.
Florida (2014) and its holding that Florida could not use an IQ test score of 70 or less to
determine if a convicted but intellectually disabled murderer was eligible for death penalty.
In writing the Court’s 5:4 decision, Justice Anthony Kennedy drew on the opinion of
psychologists and psychiatrists—information provided in an amicus brief filed by several
professional medical associations.60

Whether amici filings actually explain judicial behavior is, nevertheless, subject to
considerable debate. One study found that the number of amicus briefs filed by
organizations influences the ideological direction of the Court’s decision making, but only
because of the quality of the legal argument, and not the justices’ ideology. Another study
of federal appellate court behavior found that the number of amicus briefs filed supporting
the appellant (the party appealing the case) increases the chances for litigation success, but
the same was not true for briefs filed on behalf of the appellee (the party who won in the
earlier proceeding). In contrast, other research has found that the amici arguments did not
affect state supreme court decisionmaking. In short, amici filings remain important sources
of legal information, but there is no consensus on whether they actually make a difference
in determining judicial behavior.61

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What does seem clear is that certain amici participants, such as the U.S. Solicitor General,
enjoy more access and have more success because they are “repeat players.” Established in
the Department of Justice in 1870, the solicitor general (S.G.) is the sole legal representative
of the federal government in Supreme Court litigation. Consequently, the solicitor general
has many advantages over individual litigants who litigate infrequently, and often with
scant resources or expertise. It is therefore not surprising that the justices rely on the S.G.’s
office’s institutional expertise and, accordingly, are predisposed to grant certiorari in cases in
which the S.G. participates. For the same reasons, studies have shown that the S.G. is more
successful on the merits than are other organized litigants in cases argued before the Court,
especially in cases when a majority of the justices share the S.G.’s policy positions.

In sum, litigant status is a key factor in determining the Court’s agenda as well as the
outcome of its decisions.62 Yet it remains an open question whether comparable organized
litigants with equal experience and resources win as often as the S.G. does. Political
scientists Paul Brace and Melinda Hall found that state supreme courts’ agenda setting and
decision making turned on multifaceted institutional factors—including the supply of
lawyers in states, whether state judiciaries had the professional resources (financial and
administrative staff) to manage their courts, and the type of judicial selection system
process used—and significantly affected whether the “have-nots” in civil litigation involving
amicus participation had more access to courts and whether they won or not. In other
words, a variety of institutional and other factors in the legal environment better explain
who won access to courts, and whether they won or lost.63 Another study likewise reported
that the underlying institutional resources of the legal system—number of lawyers,
organized interests, money, and standing doctrines that encourage litigation—are related to
mobilizing litigants and producing legal policy change.64 And still another illustration of
the impact of amici activity is that well-established organizations like the American Civil
Liberties Union (ACLU) and other international human rights groups have greatly
influenced the development of comparative constitutional law standards with respect to
capital punishment and other legal areas (for further discussion, see “In Comparative
Perspective: Comparative Constitutional Law, Interest Group Litigation, and Capital
Punishment”).

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A huge crowd of over fifteen thousand people gathers around a scaffold to witness the
public hanging of twenty-two-year-old Rainey Bethea August 14, 1936, in Owensboro,
Kentucky. Public outrage over the manner of execution made Bethea’s death the last public
hanging in the country.

Newsmakers/Getty Images

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In Comparative Perspective

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Comparative Constitutional Law, Interest Group
Litigation, and Capital Punishment
Comparative constitutional law commands greater attention as a result of supranational courts, like the
European Court of Justice (discussed in Chapter Ten), and other transnational courts, such as the European
Court of Human Rights, as well as national high courts, citing the decisions of other courts in their rulings.
There are a number of reasons for that development. Following the collapse of the Soviet Union,
constitutional courts in Central and Eastern Europe turned to comparative constitutional law analysis when
construing their new constitutions. High courts in Canada, Germany, and Japan also have frequently
looked to the decisions of the U.S. Supreme Court when interpreting similar provisions in their post–World
War II constitutions. The South African Constitution and Bill of Rights specifically requires its judiciary to
consider foreign and international law.

Moreover, interest groups like the National Association for the Advancement of Colored People Legal
Defense and Educational Fund (LDF) and the American Civil Liberties Union (ACLU), bar associations,
and business and human rights organizations, both domestic and international, have promoted the
development of international standards, and comparative constitutional analysis became easier with Internet
access to high court decisions from around the world. An illustrative development is the reliance on
comparative constitutional law in striking down capital punishment laws. To be sure, U.S. Supreme Court
justices disagree about the use of comparative constitutional law, and some foreign jurists have been critical
of the Court for not paying more attention to comparative law, particularly with respect to human rights.
Still, increasingly, attorneys, interest groups, and organizations—like the Council of Europe—file amici
curiae (“friend of the court”) briefs and cite foreign judicial decisions in support of their arguments.

When holding that the execution of mentally retarded criminals violates the Eighth Amendment in Atkins
v. Virginia (2002), for example, Justice John Paul Stevens noted that “within the world community, the
imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly
disapproved.” Yet, that reference invited a sharp rebuke from Chief Justice William H. Rehnquist and
Justice Antonin Scalia, who maintained that “the viewpoints of other countries simply are not relevant to
interpreting constitutional standards.” Nonetheless, the Court has throughout its history taken judicial
notice or in dicta taken note of comparative legal developments.

In fact, the decades-old debate over the abolition of the death penalty in the United States was sparked by
Justice Arthur J. Goldberg’s 1963 opinion dissenting from the denial of certiorari in Rudolph v. Alabama.
There, Justice Goldberg cited international developments and documents in urging lawyers and interest
groups, like the LDF and ACLU, to challenge the constitutionality of imposing capital punishment for rape
as disproportionate and cruel and unusual punishment. As a result of challenges to capital punishment,
there was a ten-year-old moratorium on executions and a broader assault on the death penalty.

One widely cited example of comparative constitutional analysis is the South African Constitutional Court’s
ruling striking down capital punishment as a violation of “human dignity” based on its constitutional
guarantee of “the right to life.” Chief Justice Arthur Chaskalson emphasized the importance of taking into
account international and comparative legal developments—such as the efforts of interest groups in Europe
and the United States to abolish capital punishment. He then focused on Justice William J. Brennan’s
concurrence in Furman v. Georgia (1972) and dissent in Gregg v. Georgia (1976), along with rulings going
back to Trop v. Dulles (1958), recognizing the “evolving standards of decency” and “the concept of human
dignity.”

From that, Chief Justice Chaskalson buttressed his analysis that capital punishment violates human dignity
by turning to Canadian and German high court rulings on the death penalty, as well as rulings of the
European Court of Human Rights. On the basis of these sources, Chief Justice Chaskalson concluded that
the South African Constitution embraced the concept of “human dignity” and invalidated South Africa’s

335
laws for imposing capital punishment.

Subsequently, constitutional courts in Albania, Lithuania, and the Ukraine invalidated capital punishment,
as did the Hungarian Constitutional Court. They based their decisions on, among other legal
developments, a 1983 protocol abolishing capital punishment in Western European countries. The Eastern
Caribbean Court of Appeal likewise struck down mandatory death penalty laws for certain crimes in St.
Vincent and the Grenadines. And in 2002 the Organization of American States Inter-American Court of
Human Rights invalidated mandatory death sentences in Trinidad and Tobago.

For further reading, see Sujit Choudrhry, “Globalization in Search of Justification: Towards a Theory of
Comparative Constitutional Interpretation,” Indiana Law Review 74 (1999), 819; Paolo G. Carozza, “‘My
Friend Is a Stranger’: The Death Penalty and Global Ius Commune of Human Rights,” Texas Law Review
81 (2003), 1031; David Fontana, “Refined Comparativism in Constitutional Law,” UCLA Law Review 49
(2001), 539; David Fontana, “The Rise and Fall of Comparative Constitutional Law in the Postwar Era,”
Yale Journal of International Law 36, no. 1 (2011); Roger Hood, The Death Penalty: A Worldwide
Perspective, 4th ed. (New York: Oxford University Press, 2008); and Carstein Anckar, Determinants of the
Death Penalty: A Comparative Study of the World (New York: Routledge, 2013).

336
Chapter Summary
Litigant access to the courts is examined. Whether direct parties or outside groups gain
judicial access is a threshold legal question that defines the scope and limits of jurisdiction
to hear a case. U.S. and state constitutional provisions, federal or state statutes, and the
rules of courts provide the formal basis for the judiciary’s “gate-keeping” and agenda-setting
jurisdiction. Informal constraints include judge-made legal doctrines that give courts the
discretion to permit or deny litigant access to courts. Of central importance is the legal
concept of “justiciability” and the law of standing, the doctrines of mootness and ripeness,
and political questions.

In addition, organized interest groups that are not direct parties may gain access through
strategic litigation. Apart from filing lawsuits, organized interests may bring “test cases”;
sponsor litigation from other litigants that have already filed suit; and file third-party
“friend of the court,” or amicus curiae, briefs that provide additional information for courts
to consider. Organized interest groups’ decisions to litigate, and their impact, are often
dependent upon the organizations’ goals and whether they have enough resources to sustain
protracted litigation. Filing amicus curiae briefs is the most cost-efficient method, but it
remains unclear whether they influence judicial behavior. Often litigation success is
determined by a host of legal, political, and institutional factors, including whether
organizations are “repeat players” like the solicitor general.

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Key Questions for Review and Critical Analysis
1. Why do courts “decide not to decide” cases? Should all litigants have a right to have
their cases heard “on the merits”?
2. Do you agree with some scholars that the “political question doctrine” merely masks
a court’s political preferences? Conversely, what are the main reasons for relying on
the political question doctrine?
3. Why do organized interest groups engage in strategic litigation, and what strategies
may they pursue in trying to change the law and legal policy?

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Web Links
1. Death Penalty Information Center (www.deathpenaltyinfo.org)
A comprehensive website of a national nonprofit organization that advocates
the elimination of capital punishment in the United States and throughout the
world.
2. NAACP Legal Defense and Educational Fund, Inc. (www.naacpldf.org)
A source of information, analysis, and the legal activities of a national legal
organization committed to fighting for racial injustice.
3. Federalist Society for Law and Public Policy Studies (www.fed-soc.org)
The home page for conservatives and libertarians interested in providing
information and expressing advocacy about conservative principles, especially
in law schools and bearing on the federal judicial selection process.

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Selected Readings
Barkow, Rachel E. “More Supreme Than Court? The Fall of the Political Question
Doctrine and the Rise of Judicial Supremacy.” Columbia Law Review 102 (2002),
237–336.

Bickel, Alexander M. “Foreword: The Passive Virtues.” Harvard Law Review 75 (1961),
40–79.

Brown, Steven. Trumping Religion: The New Christian Right, The Free Speech Clause,
and the Courts.Tuscaloosa: University of Alabama Press, 2003.

Caldeira, Gregory A., Marie Hojnacki, and John R. Wright. “The Lobbying Activities of
Organized Interests in Federal Judicial Nominations.” Journal of Politics 62 (2000),
51–69.

Collins, Paul M., Jr. Friends of the Supreme Court: Interest Groups and Judicial Decision
Makers. New York: Oxford University Press, 2008.

Coomans, Fons, ed. Justiciability of Economic and Social Rights: Experiences From
Domestic Systems.Cambridge, U.K.: Intersentia, 2006.

Epp, Charles R. The Rights Revolution: Lawyers, Activists, and Supreme Courts in
Comparative Perspective.Chicago: University of Chicago Press, 1998.

Epstein, Lee. Conservatives in Court. Knoxville: University of Tennessee Press, 1985.

Fallon, Richard H., Jr. “Judicially Manageable Standards and Constitutional Meaning.”
Harvard Law Review 119 (2006), 1274–332.

Galanter, Marc. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal
Change.” Law and Society Review 9 (1974), 96–160.

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Gunther, Gerald. “The Subtle Vices of the ‘Passive Virtues’—A Comment on Principle and
Expediency in Judicial Review.” Columbia Law Review 64 (January 1964), 1–25.

Hershkoff, Helen. “State Courts and the ‘Passive Virtues’: Rethinking the Judicial
Function.” Harvard Law Review 114 (May 2001), 1833–1941.

Rhode, Deborah L. Access to Justice. New York: Oxford University Press, 2004.

Sossin, Lorne M. Boundaries of Judicial Review: The Law of Justiciability in Canada. 2nd
ed. Scarborough, Ontario: Carswell, 2012.

Southworth, Ann. Lawyers of the Right: Professionalizing the Conservative Coalition.

Chicago: University of Chicago Press, 2008.

Teles, Steven M. The Rise of the Conservative Legal Movement: The Battle for Control of
the Law. Princeton, N.J.: Princeton University Press, 2008.

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EndNotes
1. Bond v. United States, 131 U.S. 2355 (2011).

2. Bond v. United States, 134 S.Ct. 2077 (2014).

3. Helen Hershkoff, “State Courts and the ‘Passive Virtues’: Rethinking the Judicial
Function,” Harvard Law Review 114 (May 2001), 1833–941. See also Richard M. Re,
“Relative Standing,” Georgetown Law Journal 102 (2014), 1191–250; Jonathan H. Adler,
“Standing Still in the Roberts Court,” Case Western Reserve Law Review 59 (2009), 1061–
87.

4. Heather Elliott, “Standing Lessons: What We Can Learn When Conservative Plaintiffs
Lose Under Article III Standing Doctrine,” Indiana Law Journal (2012), 551–98.

5. Lisa McElroy, “This Week at the Court in Plain English,” available at

www.scotusblog.com (last retrieved May 24, 2014) (noting former law clerk appointed as
amicus curiae brief writer as a result of federal government’s “confession of error”). A list of
amicus briefs in the first Bond case are found in American Bar Association, “Preview of the
United States Supreme Court Cases (February Cases, 2010–2011),” available at
www.americanbar.org (last retrieved May 24, 2014). After Bond’s standing was established,
third-party advocacy interest grew considerably given the federalism and U.S. treaty
authority implications of the case. Thus, in the second Bond case, seventeen amicus briefs
were filed, with eight supporting Bond’s arguments and nine supporting the federal
government’s position. See American Bar Association, “Preview of the United States
Supreme Court Cases (Bond v. United States, Docket No. 12-158),” available at
www.americanbar.org (last retrieved May 24, 2014).

6. Hershkoff, “State Courts and the ‘Passive Virtues,’” 1838–39.

7. John C. Reitz, “Standing to Raise Constitutional Issues,” American Journal of

Comparative Law 50 (2002), 437, 439.

8. Aetna Life Insurance Company v. Haworth, 330 U.S. 227 (1937), 240–41.

9. Hershkoff, “State Courts and the ‘Passive Virtues,’” 1836 n. 17 and 1845–46.

10. Judith Resnik, Processes of the Law: Understanding Courts and Their Alternatives (New
York: Foundation Press, 2004), 131–40.

11. Saul Zipkin, “A Common Law Court in a Regulatory World,” Ohio State Law Journal
74 (2013), 285–337.

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12. Carl Tobias, “The Past and Future of the Federal Rules in State Courts,” Nevada Law
Journal 3 (2002–2003), 400, 400–401 (citing and updating John B. Oakley and Arthur F.
Coon, “The Federal Rules in State Courts: A Survey of State Court Systems of Civil
Procedure,” Washington Law Review 61 [1986], 1367–426).

13. Richard D. Freer, “The Continuing Gloom About Federal Judicial Rulemaking,”
Northwestern University Law Review 107 (2013), 447, 458–59. See also Resnick, Processes of
the Law, 132–37; Judicial Conference of the United States, Long Range Plan for the Federal
Courts (December 1995), available at
www.uscourts.gov/uscourts/FederalCourts/Publications/FederalCourtsLongRangePlan.pdf
(last retrieved May 24, 2014), 58–59.

14. Jennifer M. Smith, “Electronic Discovery and the Constitution: Inaccessible Justice,”
Journal of Legal Technology and Risk Management 6 (2012), 122–72.

15. Freer, “The Continuing Gloom About Federal Judicial Rulemaking,” 447–74. See also
Jack B. Weinstein, “Rule-making by the Courts,” in The Improvement in the Administration
of Justice, 6th ed., edited by Fannie J. Klein (Chicago: American Bar Association, 1981),
127–35.

16. Harold J. Spaeth and Stuart H. Teger, “Activism and Restraint: A Cloak for the
Justices’ Policy Preferences,” in U.S. Supreme Court Behavior Studies, edited by Harold J.
Spaeth and Saul Brenner (New York: Garland, 1990), 240. See also C. K. Rowland and
Bridget Jeffery Todd, “Where You Stand Depends on Who Sits: Platform Promises and
Judicial Gatekeeping in the Federal District Courts,” Journal of Politics 53 (1991), 175–85.
Burton Atkins and William Taggart, “Substantive Access Doctrines and Conflict
Management in the U.S. Supreme Court: Reflections on Activism and Restraint,” in
Supreme Court Activism and Restraint, edited by Stephen Halpern and Charles Lamb
(Lexington, Mass.: Lexington Books, 1982).

17. Flast v. Cohen, 392 U.S. 83 (1962), 99 (quoting Professor Paul A. Freund).

18. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

19. Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), 2663–64. See also Adam Rosenzweig,
“The Article III Fiscal Power,” Constitutional Commentary 29 (2014), 127, 141–42; Scott
L. Kafker and David A. Russcol, “Standing at a Constitutional Divide: Redefining State
and Federal Requirements for Initiatives after Hollingsworth v. Perry,” Washington and Lee
Law Review 71 (2014), 229–303.

20. Nancy C. Staudt, “Taxpayers in Court: A Systematic Study of a (Misunderstood)

Standing Doctrine,” Emory Law Journal 52 (2003), 771–847.

21. See, e.g., Frothingham v. Mellon, 262 U.S. 447 (1923) (establishing the general rule

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that taxpayers could not challenge the constitutionality of federal laws unless they suffered a
“direct injury”). See also Joshua G. Urquhart, “Disfavored Constitution, Passive Virtues?
Linking State Constitutional Fiscal Limitations and Permissive Taxpayer Standing Issues,”
Fordham Law Review 81 (2012), 1263, 1267. An early influential survey of the differences
in state and federal taxpayer standing jurisprudence is found in Comment, “Taxpayers’
Suits: A Survey and Summary,” Yale Law Journal 69 (1960), 895–924.

22. Flast v. Cohen, 392 U.S. 83 (1968).

23. Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc.,
454 U.S. 464 (1982), 485.

24. Arizona Christian School Tuition Organization v. Winn, 131 S.Ct. 1436 (2011); Hein v.
Freedom of Religious Foundation, Inc., 551 U.S. 587 (2007).

25. Arizona Christian School Tuition Organization v. Winn, 131 S.Ct. 1436, 1449–50 (J.
Scalia, with J. Thomas, concurring in the judgment); and ibid., 1450–63 (J. Kagan, with
JJ. Ginsburg, Breyer, and Sotomayor, dissenting). See also Bryan Dearinger, “The Future of
Taxpayer Standing in Establishment Clause Tax Cases,” Oregon Law Review 92 (2013),
263–335.

26. Comparisons of state and federal standing doctrine cases involving citizen’s suits, claims
of elected representatives, and other advocacy groups are found in Re, “Relative Standing,”
1191–250; Hershkoff, “State Courts and the ‘Passive Virtues,’” 1852–59; Avis K. Poai,
“Hawaii’s Justiciability Doctrine,” University of Hawaii Law Review 26 (2004), 537, 557–
64; Sylvia Ewald, “State Court Adjudication of Environmental Rights: Lessons From the
Adjudication of the Right to Education and the Right to Welfare,” Columbia Journal of
Environmental Law 36 (2011), 413–59.

27. Massachusetts v. EPA, 549 U.S. 497 (2007).

28. Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013).

29. Heather Elliott, “The Functions of Standing,” Stanford Law Review 61 (2008), 459,
501. See also Re, “Relative Standing,” 1201–4; Richard H. Fallon, Jr., “The Linkage
Between Justiciability and Remedies: And Their Connections to Substantive Rights,”
Virginia Law Journal 92 (2006), 633–705.

30. DeFunis v. Odegaard, 416 U.S. 312 (1974), quoting Aetna Life Ins. Co. v. Haworth, 300
U.S. 227, 240–41 (1937).

31. Hershkoff, “State Courts and the ‘Passive Virtues,’” 1859–60.

32. In re Marriage of Donald B. and Roberta B., 2014 Illinois 115463 (Illinois Supreme

344
Court, 2014).

33. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), 148–49.

34. William Grayson Lambert, “Toward a Better Understanding of Ripeness and Free
Speech Claims,” South Carolina Law Review 65 (2013), 411–62; Gene R. Nichol, Jr.,
“Ripeness and the Constitution,” University of Chicago Law Review 54 (1987), 153–83.

35. Renne v. Geary, 501 U.S. 312 (1991).

36. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

37. Roe v. Wade, 410 U.S. 113 (1973).

38. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 170.

39. Hershkoff, “State Courts and the ‘Passive Virtues,’” 1861–67; Poai, “Hawaii’s
Justiciability Doctrine,” 565–72.

40. The seminal case is Luther v. Borden, 48 U.S. 1 (1849) (ruling that the judiciary lacked
the power to address whether Rhode Island’s charter government or the government set up
by insurgents in the Dorr rebellion was a lawful state government).

41. Colegrove v. Green, 328 U.S. 549 (1946).

42. Baker v. Carr, 396 U.S. 186 (1962).

43. Richard H. Fallon, Jr., “Judicially Manageable Standards and Constitutional Meaning,”
Harvard Law Review 119 (2006), 1274–332.

44. Christopher P. Banks, “A December Storm over the U.S. Supreme Court,” in
Superintending Democracy: The Courts and the Political Process, edited by Christopher P.
Banks and John C. Green (Akron, Ohio: University of Akron Press, 2001), 238. See also
Bush v. Gore, 531 U.S. 98 (2000).

45. Comment, “Colorado Supreme Court Upholds State’s School Finance System as
Rationally Related to the ‘Thorough and Uniform’ Mandate of the Colorado
Constitution’s Education Clause,” Harvard Law Review 127 (2013), 803–10 (analyzing
Lobato v. State, 304 P.3d 1132 [Colorado, 2013] in light of how the political question
doctrine affected a challenge to the state’s educational financing system). See also
Hershkoff, “State Courts and the ‘Passive Virtues,’” 1861–67; and Poai, “Hawaii’s
Justiciability Doctrine,” 568–72.

46. Samuel Issacharoff and Jeremy Peterman, “Special Interests After Citizens United:
Access, Replacement, and Interest Group Response to Legal Change,” Annual Review Social

345
Science 9 (2013), 185–205; Deborah Hellman, “Defining Corruption and
Constitutionalizing Democracy,” Michigan Law Review 111 (2013), 1385, 1402. Notably,
the political question doctrine has allowed courts to assume or to avoid taking jurisdiction
to decide basic separation of powers issues that implicate the procedures used to impeach
federal judges, the enforcement of international treaties, the recovery of damages in post-
9/11 “counter-terrorism” civil lawsuits, and the scope of human rights in foreign policy
cases. See, e.g., Gwynne Skinner, “Misunderstood, Misconstrued, and Now Clearly Dead:
The ‘Political Question Doctrine’ as a Justiciability Doctrine,” Journal of Law and Politics
29 (2014), 427–80 (documenting federal courts using the political question doctrine to
deny individual rights in foreign policy cases); Stephen I. Vladeck, “The New National
Security Canon,” American University Law Review 61 (2012), 1295–329 (arguing the
political question defense has prevented civil litigants from recovering civil damages against
government officials for misconduct in fighting terrorism and protecting national security).
See also Rachel E. Barkow, “More Supreme Than Court? The Fall of the Political Question
Doctrine and the Rise of Judicial Supremacy,” Columbia Law Review 102 (2002), 237–
336.

47. Webster v. Reproductive Health Services, 492 U.S. 490 (1989). See also Roe v. Wade, 410
U.S. 113 (1973). The extensive role public interest groups played in Webster is analyzed in
Susan Behuniak-Long, “Friendly Fire: Amici Curiae and Webster v. Reproductive Health
Services,” Judicature (February/March 1991), 261–70.

48. Behuniak-Long, “Friendly Fire,” 270.

49. Tony Mauro, “Court Affirms Continued Need for Preferences,” New York Law Journal
(June 24, 2003), 1. See also Lawrence v. Texas, 539 U.S. 558 (2003). The University of
Michigan affirmative action cases are Grutter v. Bollinger, 539 U.S. 306 (2003), upholding
the law school’s program; Gratz v. Bollinger, 539 U.S. 244 (2003), striking down the
undergraduate program.

50. Greg Stohr, “Record Number of Amicus Briefs Filed in Health Care Cases,” Bloomberg
News, available at www.go.bloomberg.com (last retrieved May 27, 2014).

51. This is the working definition adopted by Paul Collins and other political scientists.
Paul M. Collins, Jr., Friends of the Supreme Court: Interest Groups and Judicial Decision
Makers (New York: Oxford University Press, 2008), 19. See also Matt Grossmann, The
Not-So-Special Interests: Interest Groups, Public Representation, and American Governance
(Stanford, Calif.: Stanford University Press, 2012), 1, 81 (listing the number of interest
groups and identifying types of advocacy interests).

52. Clyde Brown and Herbert Waltzer, “Virtual Sources: Organized Interests and
Democratization by the Web,” The Social Science Journal 41 (2004), 543–58.

346
53. See, e.g., Nancy Scherer, Scoring Points: Politicians, Activists, and the Lower Federal
Court Appointment Process (Stanford, Calif.: Stanford University Press, 2005).

54. Collins, Friends of the Supreme Court, 24–25. See also Nelson Lund, “The Second
Amendment, Heller, and Originalist Jurisprudence,” U.C.L.A. Law Review 56 (2009),
1343–76; Brian Doherty, “How the Second Amendment Was Restored: The Inside Story
of How a Gang of Libertarian Lawyers Made Constitutional History,” available at
http://reason.com/archives/2008/11/18/how-the-second-amendment-was-r (last retrieved
May 28, 2014); Stephen L. Wasby, Race Relations Litigation in an Age of Complexity
(Charlottesville: University of Virginia Press, 1995); and District of Columbia v. Heller, 554
U.S. 570 (2008). Notably, while scholars are divided on the issue of what motivates
organizations to litigate, using the courts may yield desirable organizational outcomes due
to consensus building and the accumulation of an evidentiary record, neither of which is
easily found in legislative or executive venues. See Aaron J. Ley, “The Costs and Benefits of
American Policy-Making Venues,” Law and Society Review 48 (2014), 91–125.

55. Susan E. Lawrence, The Poor in Court: The Legal Services Program and Supreme Court
Decision Making (Princeton, N.J.: Princeton University Press, 1990), 123–47.

56. Scott A. Comparato, Amici Curiae and Strategic Behavior in State Supreme Courts, 6, 44.

57. The Supreme Court of Ohio, “2013 Rules of Practice,” Rule 16.06. (“An amicus curiae
may file a brief urging affirmance or reversal, and leave to file an amicus brief is not
required.”)

58. Rule 37, Rules of the Supreme Court of the United States (Adopted April 19, 2013;
Effective July 1, 2013), available at www.supremecourtus.gov (last retrieved May 28,
2014).

59. Lee Epstein, “Exploring the Participation of Organized Interests in State Court
Litigation,” Political Research Quarterly 47 (1994), 335–52; Joseph D. Kearney and
Thomas W. Merrill, “The Influence of Amicus Curiae Briefs on the Supreme Court,”
University of Pennsylvania Law Review (January, 2000), 743–855.

60. “Brief of Amici Curiae American Psychological Association, American Psychiatric

Association, American Academy of Psychiatry and the Law, Florida Psychological
Association, National Association of Social Workers, and National Association of Social
Workers Florida Chapter in Support of Petitioner (No. 12-10882),” available at
www.american bar.org (last retrieved May 29, 2014). See also Hall v. Florida, 134 S.Ct.
1986 (2014).

61. See, e.g., Collins, Friends of the Supreme Court, 4–10; Comparato, Amici Curiae and
Strategic Behavior in State Supreme Courts, 23–43; and Paul M. Collins, Jr., and Wendy L.
Martinek, “Friends of the Circuits: Interest Group Influence on Decision Making in the

347
U.S. Courts of Appeals,” Social Science Quarterly 91 (2010), 397–414.

62. See, e.g., Ryan C. Black and Christina L. Boyd, “US Supreme Court Agenda Setting
and the Role of Litigant Status,” Journal of Law, Economics, and Organization 28 (2012),
286–312; Barbara L. Graham, “Explaining Supreme Court Policymaking in Civil Rights:
The Influence of the Solicitor General, 1953–2002,” The Policy Studies Journal 31 (2003),
253–71. The seminal study of the “haves” and “have-nots” in litigation is found in Marc
Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal
Change,” Law and Society Review 9 (1974), 96–160.

63. Paul Brace and Melinda Gann Hall, “‘Haves’ Versus ‘Have Nots’ in State Supreme
Courts: Allocating Docket Space and Wins in Power Asymmetric Cases,” Law & Society
Review 35 (2001), 393–417.

64. Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in
Comparative Perspective (Chicago: University of Chicago Press, 1998); Thomas F. Burke,
Lawyers, Lawsuits, and Legal Rights: The Battle Over Litigation in American Society
(Berkeley: University of California Press, 2002).

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Chapter 7 Trial Courts

ANTHONY RAY HINTON WAS ARRESTED IN 1985 FOR KILLING TWO

PEOPLE IN A SERIES of robberies in Birmingham, Alabama, fast-food restaurants. The
prosecutor described him as “one of the most evil people” he had ever encountered, a
“sociopathic jerk” who was “one of the coldest killers who ever walked a sidewalk in
Jefferson County.” Critical to the case was matching six bullets to a.38 caliber pistol that
belonged to Hinton’s mother and was found in her house. At trial, Hinton’s court-
appointed counsel hired an expert witness, Andrew Payne, to rebut the prosecution’s
forensic evidence. The jury was not convinced, and Hinton was convicted and sentenced to
death row, where he remained for the next twenty-five years while his appeals were
litigated.1

Hinton’s appeals were handled by the Equal Rights Initiative (ERI), a public interest
organization representing condemned prisoners. The ERI argued that counsel’s decision to
hire Payne as an expert witness violated his Sixth Amendment right to “effective” counsel
because it fell well below professional standards and prejudiced Hinton’s case. Payne was
hired because Hinton’s attorney thought he was the only one he could afford and
mistakenly believed that there was only $1,000 from a court-approved reimbursement fund
to spend on hiring an expert witness. He also did not seek additional funding even though
Alabama law permitted it. Moreover, during the trial, it was discovered that Payne had not
test-fired the Hinton firearm at a state forensic laboratory, and even had difficulty operating
a microscope because he was elderly and blind in one eye. At closing arguments, the
prosecutor further discredited Payne in front of the jurors by calling him a one-eyed
“charlatan” whose testimony was “startling and disturbing, alarming, and almost
sickening.”2

The Alabama appeals courts continuously upheld Hinton’s conviction, but almost three
decades later, in Hinton v. Alabama (2014), the Supreme Court reversed the decision. In a
per curiam (unsigned) opinion, the Court held that the Alabama courts had not correctly
applied the standards laid down in Strickland v. Washington (1984) for determining
whether a defendant’s right to effective counsel was violated, and thus prejudiced the
outcome of the trial. The Court ruled that Hinton’s trial attorney’s ignorance of the expert
reimbursement law, when combined with the failure to seek additional funding, was “a
quintessential example of unreasonable performance under Strickland.”3

The Supreme Court’s application of Strickland illustrates that decisions made by trial
counsel must force the prosecution’s case to “survive the crucible of meaningful adversarial
testing.”4 Adversarial justice assumes that the facts underlying crimes are discovered by
advocates locked in trials supervised by impartial judges. In Hinton, the Court deemed

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Hinton’s public defender’s decision to use Payne as an expert witness failed to meet the
minimum standards for legal representation. By not knowing the law and not asking for
more funding to hire more qualified forensic experts, Hinton’s counsel ran afoul of a
constitutional norm obliging counsel to act competently in order to ensure a fair trial. As
one judge once put it: while “a criminal trial is not a game in which the participants are
expected to enter the ring with a near match in skills, [it also is not] a sacrifice of unarmed
prisoners to gladiators.”5

Hinton’s counsel’s performance illustrates other problems in the criminal justice system.
Chief among the criticisms are that (1) the “adversary system is broken,” (2) “the jury
system is not working properly,” (3) “the amount of justice meted out depends on the
amount of money a person has,” (4) “there is a disparate and unequal treatment of the
races,” and (5) “lawyers are greedy and judges are insensitive.”6 These criticisms are fueled
by shrinking government budgets, exploding incarceration rates, and harsh sentencing
practices.7

In addition, media coverage and commentary on high-profile cases often tend to misinform
and only reinforce popular misconceptions about the adversary process. While classic
movies, such as Inherit the Wind (1960) and To Kill a Mockingbird (1962), as well as
television dramas like Law and Order (1990–2010), portray lawyers and the legal system in
a generally positive way, they ironically reinforce the myth that most lawsuits wind up in a
courtroom.8 In fact, the reality is that an overwhelming majority of lawsuits never go to
trial and instead are decided by plea bargains (in criminal cases) or negotiated settlements
(in civil cases).

This chapter explores the myths and realities of the adversarial trial process by, first,
outlining the purposes and characteristics of trials. It then turns to the key stages and issues
in the criminal justice system by focusing on (1) prosecutorial discretion, (2) plea
bargaining, (3) the jury’s role in criminal trials, and (4) the politics of posttrial sentencing.

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The Adversarial Process
In criminal prosecutions, offenders are sanctioned with fines, imprisonment, an array of
intermediate sanctions (home confinement, community service, intensive-supervision
probation), and, sometimes, the death penalty. In contrast, civil lawsuits are over private
behavior that causes harm and may lead to the responsible party paying for financial
damages.

Criminal and civil litigation have distinct purposes, but they are interrelated, and both are
based on the adversary process. Although criminal defendants are subject to governmental
prosecution, injured litigants may also sue for civil damages in a separate lawsuit. A drunk
driver, for example, may be criminally prosecuted but may also face civil liability if he or
she has caused serious personal injuries in an automobile accident. Yet important
differences remain between criminal and civil trial processes: (1) criminal prosecutions
involve public prosecutors and public defenders or private defense counsel, whereas in civil
suits private parties—plaintiffs and defendants—are typically the central actors; (2) while
there is a presumption of innocence in criminal trials, it is usually absent in civil actions;
and (3) the burden of proof in criminal prosecutions is to establish the defendant’s “guilt”
“beyond a reasonable doubt,” whereas in civil suits defendants are held “liable” under the
less rigorous “preponderance of the evidence” standard.

Notwithstanding these differences, criminal and civil litigation share the same adversarial
premise: the underlying facts are determined by public trials before juries (and sometimes
by judges, alone). Lawyers have substantial discretion to engage in “fact finding” before trial
and presenting the facts they discover to the jury as evidence introduced and contested
during various stages of the trial process (see Figure 7.1). The trial process may prove
unpredictable but is always contentious.9

Figure 7.1 The Stages of Trial and the Presentation of Evidence

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352
“Truth” or “Fight” Theory?
Social scientists and legal scholars have long denounced the adversarial system for
obfuscating rather than revealing “the truth.” Judge Jerome Frank famously contrasted the
“fight” versus “truth” theory of the adversary process, and it remains a seminal critique.
According to Judge Frank, adversary trials are similar to “private out-of-court brawls.”
Because “the lawyer aims at victory, at winning in the fight, not at aiding the court to
discover the facts,” the truth often remains a mystery and becomes distorted when partisan
attorneys coach witnesses or fail to disclose incriminating evidence. In the adversary system,
attorneys “fight it out” as surrogates for their clients’ interests. That, argued Frank, makes
the trial process unfair for a variety of reasons: (1) the truth is often overlooked because
judges have limited roles and are inhibited from taking proactive steps to find it, (2) crucial
evidence is lost because of the incompetence of attorneys or because clients cannot afford to
hire first-rate counsel and other investigative staff or expert witnesses, and (3) judges and
juries depend too much on prosecutors and private attorneys to uncover and present and
contest relevant evidence.10

Defenders of the adversarial system respond that the clash of opposing interests is the best
procedural method for achieving fairness and uncovering the truth, because attorneys are
duty bound to protect their clients’ interests. Without legal representation, critical facts
surrounding crimes or disputes might remain undiscovered, the government might operate
unjustly, and individuals may be wrongfully convicted or suffer financial losses. Persons
may be wrongfully convicted or suffer substantial financial losses without the aggressive
efforts of attorneys. Partisan advocacy also protects significant constitutional values, such as
the basic right to be heard in public forums and the right of criminal defendants to
confront their accusers.11

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Adversarial or Inquisitorial Justice?
The adversarial model of criminal justice in common law countries, like the United States
and the United Kingdom, pits prosecutors against public defenders or private attorneys in a
trial ending with a judge and/or jury verdict. The trial process is constrained by rules of
evidence, and judges play a passive role—merely calling “balls and strikes but not playing
the game itself.” By contrast, in civil law jurisdictions, such as those in most of Europe, the
judge operates under the inquisitorial model and is proactive, conducting extensive
nonpartisan pretrial investigations of the facts—sometimes with the help of a prosecutor.
Once the evidence is compiled, it is put into a full written record—called a “dossier”—to
which the defendant has access. At trial, typically a panel of three judges adjudicates the
case and has the responsibility for deciding all questions of fact and law; hence, there is far
less reliance on the advocacy of lawyers as in the common law adversarial system. In short,
the difference between the two systems has been put this way: “As opposed to duel-like
adversarial proceedings, adjudication in the inquisitorial tradition contemplates a definitive
judicial inquiry revealing the truth and achieving accurate verdicts.”12

Scholars debate the comparative strengths and weaknesses of adversarial and inquisitorial
systems (see Table 7.1). Political scientist Robert Kagan, for one, argues that inquisitorial
systems are reasonable alternatives to adversarial justice. In Germany, for example, criminal
trials are tightly supervised by a panel of judges who do not use complex pretrial procedures
or juries to determine a defendant’s guilt. Instead, an extensive record of pretrial evidence is
compiled by prosecutors, investigating judges, and the police, and defendants are given full
access to it before trial. Plea bargains, or agreements between prosecutors and defendants
that avoid trials, allowing the accused to plead guilty in exchange for a more lenient
sentence, are constructed under strict guidelines. Plea bargaining results in fewer trials, as in
the United States. If there is a trial, it tends to be short and closely managed by judges who
actively question witnesses and the defendant (who typically testifies first without counsel),
unlike in the United States. Moreover, because identical procedures are in place in
inquisitorial systems for civil litigation, Kagan concludes that there is more streamlined
adjudication in Germany and elsewhere in noncriminal cases.13

354
Defense lawyer Barry Roux speaks during Olympic and Paralympic track star Oscar
Pistorius’s sentencing hearing at the North Gauteng High Court in Pretoria, South Africa,
on October 15, 2014. Pistorius, whose lower legs were amputated as a baby, was convicted
of culpable homicide for the shooting of model Reeva Steenkamp on Valentine’s Day in
2013.

REUTERS/Antoine de Ras/Pool

The structure, operation, and norms of adversary justice are “deeply rooted in the American
system of government and in American political culture.”14 But that is not to say that
certain features of inquisitorial justice are completely absent in the United States. There is a
growing acceptance of “therapeutic jurisprudence” in state trial courts (as discussed in
Chapter One), along with the managerial role judges play in civil cases and increasingly
“alternative dispute resolution” procedures (discussed later in Chapter Eight). So, too, as
some scholars emphasize, “no system is entirely adversarial or inquisitorial” in practice,
which explains why some European countries have recently incorporated common law
procedures into their civil law systems.15

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The “Crime Control” and “Due Process” Models of Criminal
Justice
Within the adversarial system, criminologist Herbert L. Packer has described the tensions
between a “crime control” and a “due process” mind-set or model of criminal procedure.
The models “represent an attempt to abstract two separate value systems that compete for
priority in the operation of the criminal justice system.” On the one hand, the crime
control model—associated with the thinking of police and prosecutors—presumes guilt
and favors the swift prosecution with “assembly-line” efficiency, particularly during the
early stages of apprehension, pretrial hearings, and plea bargains instead of trials to
determine guilt. On the other hand, the due process model operates like “an obstacle
course,” slowing down the efficacy of criminal prosecutions because (unlike the “crime
control” model) it places a premium on achieving fairness through the imposition of formal
rules—such as the Miranda warnings about the right to remain silent, the exclusionary
rule, and other evidentiary rules—in order to preserve the presumption of innocence. As a
result, police investigations and criminal prosecutions are presumed to be fraught with error
and, thus, the due process model insists that the factual questions underlying guilt or
innocence must be structured by “bright line rules” that safeguard defendants’ rights.16

356
 Source: Charles H. Koch, Jr., “Globalization, Courts, and Judicial Power: The Advantages of Civil Law Judicial
Design as the Model for Emerging Legal Systems,” Indiana Journal of Global Legal Studies 11 (Winter, 2004),
139–60.

In fact, the crime control and due process models, always in tension, “co-exist in a fragile
peace” as highlighted in Missouri v. Seibert (2004).17 In Seibert, police used a “two-stage
interrogation” in order to get a murder conviction of a mother who contributed to the
death of a mentally ill teenager asleep in the family’s trailer home. The two-stage
interrogation practice is controversial because it is designed to circumvent Miranda v.
Arizona (1966)—the landmark ruling requiring police to give suspects warnings of their
constitutional rights to remain silent and to counsel during custodial interrogations. Under
a two-stage interrogation, police initially without giving the warning interrogate a suspect
and get a confession, at which point the suspect is “Mirandized” and the police recount the

357
confession and ask the suspect to sign a waiver of his Miranda rights so that the
incriminating statements may be used in court. But, in Seibert, the Court held that the
question-first interrogation violated the Fifth Amendment’s prohibition against self-
incrimination. Hence, the mother’s confession and conviction were inadmissible in court.
Writing for the Court, Justice David Souter reaffirmed the due process values of deterring
police misconduct under Miranda.18 By interposing such a procedural rule against the
admission of such confessions at trial, Justice Souter enforced the due process model’s
presumption of “the fallibility of actors and thus [the importance of] formalized procedures
and protections” that are guaranteed in the Bill of Rights.19

The Miranda and Seibert rulings are examples of the kind of due process guarantees
afforded criminal suspects. In other cases, however, the Court has ruled that the
prosecution’s evidence may be admitted because of overriding interests in preserving the
public order and repressing crime. In sum, the dynamics of the crime control and due
process models underscore the clash of opposing interests, competing views of adversarial
justice, and rival political ideologies. They are further illustrated by examining in greater
detail (in the next sections) the methods by which criminal suspects are prosecuted. Table
7.2 denotes constitutional protections in criminal cases.

A portrait of Chief Justice Earl Warren (1953–1969). Warren authored the landmark
Miranda v. Arizona ruling in 1966.

Signed C.J. Fox, probably painted by Irving Resnikoff, Collection of the Supreme Court of
the United States

358
Criminal Law and the Justice System
Criminal law defines culpability by defining the intent (mens rea, or “guilty mind”) and
conduct (actus reus, or “criminal act”) of offenders. The law’s substantive content is put
into effect by procedural rules governing the criminal justice system designed to establish
guilt or innocence, while balancing the competing interests in public safety and
safeguarding individual rights. Whether the criminal justice system delivers on that promise
remains controversial, however. As Chief Justice William H. Taft observed in 1905, a
“jurist from Mars” would not be able to find in the United States a criminal code that
successfully balances the interests if the alien came to Earth to find it. Today, critics lament
that the criminal justice system operates as a speedy plea-bargaining “machine” that is
largely hidden and removed from the public.20 The system’s strengths and weaknesses are
discussed here in the context of the trial and appeal process.

359
The Criminal Trial and Appeal Process
In criminal cases, the government must prove its accusations “beyond a reasonable doubt,”
a rigorous standard of proof. Prosecutors must prove that the accused committed a crime,
without receiving help from the defendant or the judge. As Judge Benjamin Cardozo once
famously said: “The prisoner is to go free because the constable has blundered.” In other
words, as Justice William Brennan reminded us, the reasonable doubt standard is “a prime
instrument for reducing the risk of convictions resting on factual error” because it “provides
concrete substance for the presumption of innocence.”21

Criminal trials begin after the investigation and arrest of defendants accused of
misdemeanors or felonies. Misdemeanors such as petty theft or disorderly conduct are acts
punished by minor fines, incarceration for up to one year, or both. Felonies such as
manslaughter or rape are punished by higher fines, incarceration of one year or more, or
both. Certain offenses, such as premeditated murder or the killing of a police officer during
the commission of a felony, may result in capital punishment; however, over one hundred
other countries have abolished the death penalty, as have eighteen states and the District of
Columbia.22 (See “In Comparative Perspective: Comparative – Group Litigation, and
Capital Punishment” in Chapter Six.)

Although police have responsibility for investigating and arresting criminal suspects, federal

360
U.S. Attorneys or state prosecutors must choose whether to charge suspects with a crime. If
a suspect is charged, the prosecutor determines whether a conviction is best secured by a
plea bargain or going to trial. If there is a trial, the jury (and/or a judge) decides the
defendant’s guilt or innocence. If not acquitted, defendants are sentenced in accordance
with the law, usually according to state or federal sentencing guidelines. Moreover, there
are informal norms that are a part of the courtroom workgroup—the prosecutor, defense
counsel, and judge—that explain the “political realm of the courthouse” and variations in
sentencing patterns in many criminal cases.23

The prosecutor, the jury, and the judge wield enormous influence. The different roles they
play are best explained by exploring the critical stages of the trial process, including (1) the
discretion prosecutors have in charging defendants from the time of arrest to formal
arraignment, (2) the influence prosecutors have in striking plea bargains, (3) the democratic
role citizens play as jurors in criminal trials, and (4) the underlying politics of the posttrial
sentencing process.

Figure 7.2 shows the main stages in the criminal trial and appeal process.

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Prosecutorial Discretion: From Arrest to Formal Arraignment
Over the last half-century, the U.S. political system generally has become more conservative
and led to legislation aimed at controlling crime but also sharply limiting the rights of
criminal defendants. Congress enacted legislation authorizing preventive detention
(allowing judges to deny bail to dangerous criminals), expanding the death penalty, and
imposing harsher penalties under mandatory sentencing guidelines in an effort to stop
judges from showing leniency to offenders in individualized judgments that created
sentencing disparities and racial bias. These trends have continued in the twenty-first
century. Still, due to shrinking budgets and the high cost of operating prisons, the federal
government and a growing number of states have launched “Smart on Crime” initiatives—
reforms aimed at eliminating long prison sentences for low-level and nonviolent offenders,
creating rehabilitation options and other programs that permit more individualized
treatment or make easier the transition from prison into communities.24 Nevertheless, the
criminal justice system remains fundamentally punitive. It is within this “get tough” legal
framework that prosecutors retain virtually unfettered discretion to place offenders into the
criminal justice system and thereafter manipulate their case dispositions. It is no
exaggeration to say, as Justice Robert Jackson observed, that prosecutors retain “more
control over life, liberty, and reputation than any other person in America.”25

Figure 7.2 The Criminal Trial and Appeal Process

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Whereas U.S. Attorneys are appointed by the president and confirmed by the Senate, in all
but four states (Alaska, Connecticut, District of Columbia, and New Jersey), state
prosecutors are elected.26 Although federal prosecutors occasionally litigate civil cases, the
nation’s ninety-three U.S. Attorneys primarily investigate and enforce violations of federal
criminal law. Of those prosecutions, the largest percentages involve immigration, drugs,
violent crime, and white-collar crimes. Less than 0.5 percent relate to terrorism or “national
security critical infrastructure” prosecutions. Over sixty-three thousand federal prosecutions
are brought annually in federal district courts against approximately eighty-six thousand
defendants that result in roughly eighty-one thousand convictions (a 93 percent conviction
rate). Notably, 97 percent of all those convicted plead guilty before or during trials, and 80
percent of those convicted are sent to prison.27

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Over two thousand state prosecutors’ offices handle over 1.1 million felony prosecutions.
As a result, state courts adjudicate about 94 percent of all felonies, with the largest
proportion involving drug (33 percent), property (28 percent), and violent (18 percent)
offenses. As on the federal level, few state prosecutions actually go to trial: 94 percent of
state felony convictions result from guilty pleas, with 69 percent leading to incarceration in
state prisons or local jails; of the remainder, 27 percent are placed on probation, and 4
percent receive sentences that include fines, restitution, treatment, community service, or
other sanctions (such as periodic drug testing). While the exact number is not known, some
reports estimate that state courts also adjudicate about 10.5 million misdemeanor offenses,
which constitute over 90 percent of state prosecutors’ nonfelony caseloads.28

Prosecutors are ethically bound to seek justice first and not to act solely in the interest of
securing a conviction.29 State and federal prosecutors have discretion over a wide scope of
investigative and pretrial activities, including (1) conducting criminal investigations; (2)
initiating and executing arrest or search warrants; (3) subpoenaing witnesses and
compelling testimony at preliminary proceedings and trial; (4) convening grand juries and
secure indictments in serious cases; (5) formally charging criminal defendants at
arraignment and placing them on trial; (6) negotiating and obtaining plea bargain
agreements in lieu of trial; (7) supporting or contesting postconviction sentencing
dispositions, including issuing recommendations about enhancing penalties, the length of
incarceration, whether to seek the death penalty, and (in the states) structuring the terms of
probation and the conditions for parole; and (8) making appellate litigation decisions.
Exercising these powers places prosecutors at the forefront of determining whether an
individual’s liberty is won or lost and, in some cases, whether offenders live or die.30

Prosecutorial discretion comes into play at several preliminary stages in the adversarial
process, specifically (1) the defendant’s initial appearance in court, (2) the preliminary
hearing or grand jury indictment stage, and (3) formal arraignment.

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Initial Appearance
After police investigate a crime, an arrest may be made based on probable cause (a
reasonable assessment of facts indicating illegal activity) that the accused committed a
crime. Once the prosecutor reviews the arrest and authorizes that charges be filed, a
complaint is filed in court, and thereafter the accused is brought into court to answer
charges at an initial appearance hearing. Typically, defendants briefly appear before a
magistrate or judge, ordinarily within forty-eight hours of arrest, and are informed of their
rights and the charges they face.31 Defendants accused of misdemeanor crimes often plead
guilty at this stage and are sentenced immediately. Usually in felony cases, the complaint
will be replaced by an indictment or information (formal documents listing the charges
and facts after subsequent proceedings, discussed below), and indigents are informed about
the right to court-appointed counsel. If bail for release is also set, a monetary bond of
usually 10 percent is posted in order to ensure a defendant’s presence at trial; if there is a
failure to appear at trial, the full bond amount is forfeited, and an arrest warrant is issued.

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Preliminary Hearings and Grand Jury Indictments
After the initial appearance, the prosecutor formally charges the accused with a crime,
either by “information” or by “grand jury indictment.” The flexibility of using either
procedure in the states was established in Hurtado v. California (1884).32 In jurisdictions
where preliminary hearings are used, an “information form,” stating the charges and
evidence against the defendant, is filed by the prosecutor. In other jurisdictions, a grand
jury approves the prosecutor’s initial charges with an indictment. A few jurisdictions use
both types of methods.33

A preliminary hearing is held to determine whether there is probable cause to charge the
accused and resembles a “mini-trial” in which witnesses may testify and an official
transcript is created. Ordinarily, only the prosecution presents evidence because it has the
legal burden of proving probable cause to hold—or “bind over”—the defendant for trial.
The defendant is not similarly obligated, and, hence, the preliminary hearing gives defense
counsel the advantage of hearing the prosecution’s theory of the case before going to trial.
Even so, defendants have the right to waive a preliminary hearing and often do, especially
when prosecutors offer a plea bargain.34

In some states and in federal prosecutions (as required by the Fifth Amendment), grand
juries may either approve an indictment—often called a “true bill”—or decline to do so—a
“no bill” against the accused. Most states reserve the option to use grand juries, but only a
few require it to begin felony cases. In many states, grand juries perform other special
functions, like inspecting prison or jail facilities and hearing evidence of political
corruption.35

Historically, the grand jury’s purpose was to prevent arbitrary charges. Under the
prosecutor’s direction, grand juries have the power to subpoena witnesses, provide
immunity, compel the production of evidence, and, if probable cause exists, indict the
accused. The size of grand juries varies widely in the states (ranging from five to twenty-
three), as does the number of votes needed to indict. Grand juries in federal prosecutions
range from sixteen to twenty-three, and likewise hear the prosecution’s evidence in a secret,
nonadversarial proceeding. In most jurisdictions, defendants do not have the right to be
represented by counsel, witnesses are not cross-examined, and the prosecution’s evidence
generally is not rebutted; unless called as a witness, defendants do not testify in their own
defense. Only in rare instances do judges intervene to review allegations of grand jury
misconduct.36 Consequently, an old saw is that “prosecutors can get a grand jury to indict a
ham sandwich”—a joke that speaks volumes about the prosecutor’s sway over grand
juries.37

Still, preliminary hearings and grand jury proceedings ensure that prosecutorial discretion is

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not completely unfettered. With preliminary hearings, judges initially assess the
reasonableness of believing a defendant is guilty of a crime, whereas, in grand jury
jurisdictions, citizens make a similar determination. In any event, a prosecutor’s
recommendations about how to proceed hold great weight, particularly in determining
whether to continue the prosecution, plea bargain, or dismiss a case. For this reason, legal
experts often characterize these pretrial proceedings as “prosecutorial in nature” and “an
informal, accusatory threshold to the criminal process.”38

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Formal Arraignment
After a preliminary hearing or a grand jury proceeding, defendants are formally charged and
arraigned. Arraignment signals that the prosecution intends to pursue a case to trial, and
defendants are formally charged and asked to enter a plea. If a defendant pleads guilty, it is
usually on the advice of counsel. Defendants may make three types of guilty pleas: (1) a
guilty plea; (2) a plea of nolo contendere (a “no contest” plea, admitting only that the
government probably has enough evidence to convict); or (3) if a jurisdiction permits, a so-
called Alford plea (sometimes called a “best interests” plea because it lets defendants plead
guilty while protesting their innocence, sometimes so that they may “cap” their maximum
sentence). The federal courts and over three-quarters of the states permit nolo pleas, and all
states except two allow Alford pleas.39 While all three pleas hold the defendant criminally
responsible, nolo and Alford pleas were approved in North Carolina v. Alford (1970), which
explained that “an individual accused of a crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence even if he is unwilling or
unable to admit his participation in the acts constituting the crime.” In short, an admission
of guilt is not a constitutional requirement and runs against the presumption of
innocence.40

In most states and federal prosecutions, defendants may also make an insanity plea as a
defense. Such pleas absolve mentally ill defendants of criminal responsibility and usually
result in commitments to a mental institution. Not surprisingly, high-profile insanity cases
—such as those involving James E. Holmes, who murdered a dozen people inside a sold-
out Aurora, Colorado, movie theater in 2013—have made the insanity defense
controversial and unpopular. Legislative reforms have generally made it more difficult to
use mental illness as an excuse.41 Consequently, insanity pleas are limited, and defendants
must prove their mental illness should be considered a mitigating factor during sentencing.
Clark v. Arizona (2006) gave wide latitude in determining the basis for permitting insanity
pleas. Under the so-called M’Naghten rule, in force in about seventeen states and in the
federal courts, an accused is not criminally responsible if a “defect of reason, from [a]
disease of the mind,” results in the inability to understand his or her actions because of a
lack of cognitive capacity, or the defect prevents distinguishing right from wrong. Eleven
states apply some variation of M’Naghten’s cognitive or moral incapacity standard. Another
test—the “volitional incapacity” or “irresistible-impulse test”—asks whether a mental
disease or defect has prevented the accused from controlling actions even when there is
cognizance of an act’s wrongfulness; about fourteen states use some variant of this test.
Three states combine the M’Naghten two-prong standard (cognitive and moral incapacity)
with a volitional test, and one state has a “product-of-mental-illness” test, simply inquiring
if a person’s actions were the product of a mental disease or defect. Finally, Idaho, Kansas,
Montana, and Utah have abolished the insanity defense, but generally permit some
evidence that bears on whether the defendant acted with intent to commit a crime.42

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If a defendant pleads not guilty, then a trial date is set, and counsels continue to engage in
discovery of information through an exchange of pretrial motions (written or oral
applications to a court or judge to obtain a rule or order). In the overwhelming majority of
cases, however, defendants agree to a plea bargain on the advice of counsel.

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Plea Bargaining
Although the adversarial system presumes that a defendant’s guilt or innocence emerges
after a jury trial, in reality, very few state and federal criminal cases actually go to trial. In
many cases involving murder or rape, defendants nevertheless tend to opt for a trial, since
they have little to lose in insisting on a trial. In most cases, though, a negotiated guilty plea
is the better option because it provides leniency and allows prosecutors to secure
convictions expeditiously. Although not unproblematic, because defendants waive their
constitutional rights to a trial, the “mutuality of advantage”of plea bargaining was upheld
in Brady v. United States (1972).43

In federal district courts, 97 percent of convictions result from guilty or nolo pleas.44
Similarly, as Table 7.3 shows, 94 percent of all convictions in state felony cases are due to
guilty pleas.

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 Source: Derived from Sean Rosenmerkel and Matthew Durose, Felony Sentences in State Courts, 2006—Statistical
Tables, available at www.bjs.gov/content/pub/pdf/fssc06st.pdf (last retrieved June 6, 2014).
Note: Data may not sum to total due to rounding.

Plea bargaining remains controversial because the deals struck result from a variety of
institutional, political, and legal considerations that have little to do with discovering guilt
or innocence. The respective interests of the judge, prosecution, and defense counsel, and
the need to reach speedy results due to caseload constraints and limited judicial resources,
combine to promote plea bargains, even if mistakes happen. After observing that “96
percent, the great majority of [defendants who strike a deal] are probably guilty,” a Texas
trial judge acknowledged that there is a “downside” to plea bargaining:

[There might be] mistakes... made by a prosecutor who over-evaluates his or her case, a
defense attorney who does not do their case, or a judge who is lazy and doesn’t supervise
the case. There can be mistakes made in plea bargains; mistakes are also made during jury
trials. The whole purpose of plea bargaining is for the prosecutor to assess what this case is
worth, and then offer just a little bit less than what a jury would probably come back with,
in order to move that case and dispose of the case at that time.45

As the crime control model suggests, judges’ interests in moving cases off their dockets
overrides the due process value of a jury trial and avoiding mistakes that inevitably occur.
As legal historian George Fisher put it: “In place of a noble clash for truth, plea bargaining
gives us a skulking truce. Opposing lawyers shrink from battle, and the jury’s empty box
signals the [criminal justice] system’s disappointment.”46

Such criticisms are especially relevant in considering the wide scope of discretion
prosecutors have in successfully negotiating pleas as appointed or elected officials.
Prosecutors have been accused of seeking higher conviction rates or launching high-power
investigations—such as Kenneth Starr’s independent counsel investigation of President Bill
Clinton’s involvement in an Arkansas Whitewater real estate deal, the Paula Jones sexual
harassment civil lawsuit, and the Monica Lewinsky extramarital affair—to advance their
careers.47 Such denunciations are based on the fact prosecutors have great leeway in
charging defendants with an array of crimes that allow convicted offenders to get reduced
or favorable sentences at the expense of victims’ rights. Only a few states require
prosecutors to inform or consult victims about plea bargains. The only judicial oversight
that exists is when a deal is approved by a judge, who makes inquires about whether the
defendant voluntarily pleaded guilty without prosecutorial coercion or threats.48 The issues
of judicial oversight, and whether defendants voluntarily plead guilty on the basis of advice
they receive from their attorneys, have been addressed by the Supreme Court and other
foreign jurisdictions that use plea bargaining practices (see “Contemporary Controversies
Over Courts: Plea Bargaining, the Right to Counsel, and Global Trends”).

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Contemporary Controversies Over Courts

372
Plea Bargaining, the Right to Counsel, and Global
Trends
A recurring criticism of plea bargaining is that defendants enter into agreements without being fully
informed of the terms and implications of the deals negotiated with prosecutors. Defense counsel may not
properly advise the accused on whether it is better to plead guilty or to run the risk of going to trial. In
2012, those concerns were addressed in two watershed rulings where a bare majority of the Supreme Court
held that the accused has a Sixth Amendment right to effective counsel with respect to plea bargains. In
both cases, Justice Anthony Kennedy wrote for the majority, and Chief Justice John Roberts and Justices
Antonin Scalia, Clarence Thomas, and Samuel Alito dissented.

In Missouri v. Frye, the defendant was not told by defense counsel of two plea offers by the prosecution that
would have resulted in a misdemeanor instead of a felony conviction that would have yielded significantly
less jail time if accepted. Accordingly, the Court held that “the constitutional right to counsel extends to the
negotiation and consideration of plea offers that lapse or are rejected,” though defendants must show that
prejudice resulted due to ineffective counsel, based on the “reasonable probability they would have accepted
[an] earlier plea offer had they been afforded effective counsel” and “a reasonable probability the plea would
have been entered without the prosecution canceling it or the trial court refusing to accept it.” The
companion case, Lafler v. Cooper, involved a defendant’s attorney reporting a favorable plea offer but
recommending its rejection, which resulted in a trial and a harsher sentence than would have been obtained
by the plea bargain. In such circumstances, Justice Kennedy held that “a defendant must show that but for
the ineffective advice of counsel there is a reasonable probability that the plea offer would have been
presented to the court,” that a judge would have accepted it, and that the sentence under the offer’s terms
would have been less severe than under the imposed sentence.

Although Frye’s and Lafler’s long-term effect remains uncertain, there is little doubt that each underscores
Justice Kennedy’s observation that American criminal justice “is for the most part a system of pleas, not a
system of trials.” Within that reality, though, the rulings arguably impose new and far-reaching
responsibilities on trial courts to inquire, and to ensure, that defense counsel meet their constitutional
obligation to render effective assistance when negotiating and striking plea bargain deals. Since discharging
that duty runs the risk of judicial meddling into plea bargaining practices that would otherwise be of no
concern to the courts, in both cases dissenting Justice Scalia complained that the rulings invited “a whole
new field of constitutionalized criminal procedure: plea-bargaining law.”

In recent decades, the U.S. practice has migrated and, with some differences, been adopted in some
European countries and elsewhere. Plea bargaining has been assimilated in global jurisdictions that have
long avoided or have been reluctant to use it. For example, once known as a “land without plea bargaining,”
since the 1970s, Germany has used the practice (Absprachen) in response to heavy caseloads and long trials
in criminal cases. As in the United States, bargains are negotiated before and during trials. Yet German
defendants only “confess” to crimes (rather than agreeing to “guilty pleas”) in order to have shorter trials.
Unlike in the United States, German defense counsel have access to the “written dossier” containing the full
pretrial investigation, and therefore the prosecution and defense are on more equal terms during plea
negotiations. In addition, German judges actively participate in the negotiations, whereas U.S. judges
simply approve plea bargains negotiated by prosecutors and defense attorneys.

Italy’s 1989 criminal code also adopted another version of plea bargaining (patteggiamento). Prosecutors and
defense counsel may request “sentence bargains” that reduce a sentence by up to one-third in minor cases if
the sentence would not exceed five years of imprisonment. Such agreements, however, are not strictly
considered a “guilty plea,” and Italian judges retain the power to enforce the original sentence. In addition,
if prosecutors reject a proposed agreement, at the trial’s end, the defendant’s counsel may ask the judge to
nevertheless impose a reduced sentence after examining why the prosecution refused to agree to the deal.

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In 1999, France adopted still another version of plea bargaining (composition). Prosecutors may offer to
divert cases from the standard criminal trial process in exchange for defendants’ confessing and agreeing to
certain conditions, such as paying a fine or doing community service. As in Germany, composition does not
strictly establish guilt, and moreover, if the defendant fulfills the agreed-to conditions, the case may be
completely dismissed. In short, composition does not aim at punishing offenders in the same way that guilty
pleas do in the United States.

Regardless of the country, plea bargaining remains controversial for a number of reasons. Notably, the deals
struck result from a variety of factors and interests that are unrelated to the defendants’ guilt or innocence.
Prosecutors and judges, confronting burdensome caseloads and limited resources, use plea bargains to
reduce their dockets and avoid time-consuming and costly trials. Moreover, plea bargains are often coerced
and originate in secrecy. As a result, they run the risk that innocent persons are wrongly convicted.
Furthermore, defendants must relinquish their constitutional rights against self-incrimination and to a
public jury trial, as well as to confront their accusers. In addition, the presumption of innocence is, of
course, forfeited. In sum, plea bargaining remains controversial because prosecutors are vested with virtually
unbridled discretion to obtain convictions and to determine punishments, with little judicial oversight and
at the cost of sacrificing individuals’ constitutional rights.

For further reading, see Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012);
George Fisher, Plea Bargaining’s Triumph: A History of Plea Bargaining in America (Stanford, Calif.:
Stanford University Press, 2003); Mary Vogel, Coercion to Compromise: Plea Bargaining, the Courts, and the
Making of Political Authority (New York: Oxford University Press, 2007); Stephen Thaman, World Plea
Bargaining: Consensual Procedures and the Avoidance of the Full Criminal Trial (Durham, N.C.: Carolina
Academic Press, 2010); and Stephanos Bibas, The Machinery of Criminal Justice (New York: Oxford
University Press, 2012).

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Trials and the Jury’s Role
In the event a plea cannot be negotiated before trial, the prosecution and defense must
prepare their evidence to be used at trial by filing pretrial motions, such as a motion to
dismiss or to suppress evidence. In criminal litigation, the prosecution is not under any
constitutional obligation to share all that it learns from its investigation—except if it
pertains to “exculpatory” evidence that the accused is innocent.49 Hence, the defendant’s
right to collect critical facts (such as witness statements and forensic lab results) is usually
determined by how the rules of discovery are applied, though they vary around the
country. Some prosecutors favor a policy of liberal discovery as a plea bargaining strategy,
while others do not, and what is shared may be adjudicated in pretrial motion hearings. In
any event, the limited scope of criminal discovery tends to work in favor of the prosecution
because it initially controls whether evidence is withheld or disclosed.

Once the prosecution and defense counsel complete discovery, the trial is held—which is
conducted in front of a jury, or held by a judge in a “bench trial” (if the defendant
consents). Although most cases are resolved through plea bargaining, state courts perform
nearly 149,000 jury trials annually. The rate of federal jury trials is far less, only at about
5,500 per year.50

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The Democratic Politics of Citizen Juries
Historically, a counterweight to the prosecutor is the defendant’s right to have a trial by an
impartial petit jury drawn from the place where the crime occurred. Rooted in Article III,
Section 2, the Sixth Amendment for criminal cases, and the Seventh Amendment for civil
cases (if a dispute exceeds more than $20), the right to a jury trial is both an expression of
democratic participation and a bulwark against oppressive government across the globe (see
“In Comparative Perspective: Jury Systems Around the World”). In the United States, the
jury trial was originally conceived as a right attaching only to federal criminal prosecutions,
but the right to a jury trial was extended to the states in Duncan v. Louisiana (1969).51

An American jury

AP Photo/Image Source/Darrin Klimek

The democratic role juries play is significant because they represent the community and
have the flexibility to acquit, convict, or force a mistrial. Akin to “morality plays,” trials
historically determined whether the accused should be acquitted or punished in accordance
with communal judgments on the circumstances of the crime and the defendant’s fault. As
one scholar put it, “The jury is generally a better representative of the community than a
judge and is the more appropriate source for the normative assessments that the legislature
has left to the trial decision maker.”52

Over time, the jury’s role has evolved, and how well it performs its function has been
influenced by several factors: (1) what kinds of criminal cases juries are permitted to
adjudicate, (2) whether it is possible to select a jury that fairly represents the community
and is free from bias, (3) whether twelve-person juries or smaller juries are appropriate, (4)

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whether jury verdicts must be unanimous, and (5) whether the jury has the authority to
nullify the law and acquit defendants in complex cases, which may also apply to “hung”
juries.

The Types of Criminal Cases Juries Can Hear

The Supreme Court has established that the accused may only have a jury trial in serious,
“non-petty” criminal cases—cases in which defendants face possible imprisonment of six
months or more.53 Still, in Lewis v. United States (1996),54 the Court held that a jury trial
is not required when a defendant is prosecuted in a single proceeding for multiple petty
offenses—offenses that each carry a maximum of six or fewer months—even though the
aggregate prison term exceeds six months. In federal courts, the right to a jury is not
required for contempt proceedings, habeas corpus petitions, and some civil and
administrative proceedings involving disbarment of attorneys and immigrant deportations,
as well as military court martials.55

Selecting an Impartial Jury From a Cross-Section of the

Community
In Taylor v. Louisiana (1975),56 the Supreme Court established that the Sixth Amendment
requires petit juries composed from a fair cross-section of the community in order to ensure
impartiality. The difficulties of selecting an impartial jury, though, implicate Sixth
Amendment as well as Fourteenth Amendment equal protection rights. Under these
provisions, defendants may allege that the jury selection process is fraught with unfair
racial, gender, and economic bias.57 While the federal Jury Selection and Service Act
(1968) imposed a requirement of random selection of jury venires, in most jurisdictions
members of the jury panel are drawn from voting registration lists. Voting lists, however,
are unlikely to produce a random supply of citizens because younger voters and minorities
are largely underrepresented, along with the fact that many people who are more affluent,
educated, and older tend not to register to vote. Consequently, many voting districts also
draw prospective jurors from motor vehicle registration lists. Regardless of the method
used, jury pools often remain depleted because citizens avoid jury service by claiming
occupational exemptions (e.g., clergy, doctors, and lawyers), or they simply do not respond
to appear for jury service.58

The problems of attaining a representative jury are compounded by the tactics of lawyers in
trying select the most favorable jury. Lawyers try to influence jury selection and socialize
prospective jurors through a voir dire selection process. Opposing counsel (and sometimes
the judge) question potential jurors individually or in a group (sitting in the jury box)
about whether they can fairly evaluate the evidence in spite of their personal biases. As part
of the voir dire process, jurors are questioned and may be excused from serving if the

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lawyers exercise either a challenge for cause or a peremptory challenge (limited in number,
but based on any grounds). Challenges for cause are unlimited in number and based on
responses to questions from prospective jurors that suggest they may not fairly weigh the
evidence.59

The voir dire process has been criticized because it is discriminatory. In response, the Court
has prohibited the discriminatory use of peremptory challenges if they are based on race,
gender, or ethnic origin.60 But the prosecutor’s choices are evaluated on “facially neutral”
grounds; that is, defendants must prove the prosecutor was acting with “purposeful
discrimination” in excluding certain classes of persons from the jury panel once the trial
court initially accepts the prosecutor’s race-neutral explanations. Some critics argue that the
standard ironically facilitates discrimination by encouraging courts to accept any rationale
for exclusion that the prosecutor can create on a pretext, or “after the fact,” if it appears to
be “neutral.”61 Notably, prosecutors are given the same right to challenge the defendant’s
peremptory strikes on discriminatory grounds as well. Although in some high-profile
racially charged cases, defendants may be inhibited from selecting a jury stocked with a
specific racial, gender, or ethnic bias, it is more difficult to prevent minority defendants
from getting more diverse juries.62

The difficulties of jury selection have led to a growing trend of using written “jury
questionnaires” to supply detailed information about the qualifications of jurors in advance
of oral voir dire questioning. While prospective jurors may give more complete answers, the
questionnaires have been criticized because they may be too detailed and invasive. A juror
who was chosen but later dismissed in the O.J. Simpson murder trial, for example, revealed
that the questionnaire was seventy-nine pages long and had twenty-eight parts, with 294
questions. Also, jurors were asked questions that seemed irrelevant to the case, such as “Do
you believe it is immoral or wrong to do an amniocentesis to determine whether a fetus has
a genetic defect?” or “Have you ever provided a urine sample to be analyzed for any
purpose?”63

Jury Size and Unanimity of Jury Verdicts

Traditionally, the size of the common law jury was twelve, and jury verdicts in criminal
trials were required to be unanimous. In the 1960s, however, several states and the federal
courts began to push for jury reform in an attempt to save costs. Williams v. Florida
(1970)64 held that states could use six-person juries in felony cases, reasoning that there was
little difference between twelve- and six-person jury verdicts. Subsequently, Johnson v.
Louisiana (1972) and Apodaca v. Oregon (1972)65 adopted that rationale in holding that
unanimous and nonunanimous verdicts were “functionally equivalent,” thereby approving
nonunanimous, supermajority verdicts in criminal cases. But in Ballew v. Georgia (1978)
and Burch v. Louisiana (1979),66 the Court drew the line in ruling that five-person criminal

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juries were unconstitutional (in Ballew) and that six-member jury criminal verdicts had to
be unanimous (in Burch).

Subsequent research has shown that jury size actually does have an impact on jury
decisionmaking. As opposed to six-member panels, larger juries (1) are more likely to have
minority representation, (2) can recall more evidence, (3) spend more time in deliberations,
and (4) recall more information during deliberations. In addition, as Ballew recognized, a
jury with fewer than six members “promotes inaccurate and possibly biased decision-
making,...causes untoward differences in verdicts, and...prevents juries from truly
representing their communities.”67 Perhaps for this reason the federal government still
requires twelve-person juries to deliver unanimous verdicts, whereas most states require
them only for felonies. Still, while approximately thirty states permit smaller juries for
misdemeanor prosecutions, virtually all states require unanimous verdicts regardless of their
size.68

The Problem of Jury Nullification and Hung Juries

Although the Sixth and Seventh Amendments guarantee the right to a jury in criminal and
civil actions, juries do not have a right to “nullify,” or independently disregard, the verdict.
Still, at the country’s founding, the practice was for juries to decide the law as well as the
facts. As the judges and lawyers became more professionalized, there was increasing pressure
to counter the democratic impulses of juries. As a result, in Sparf & Hansen v. United States
(1895), the Court held the jury’s proper role is to apply the law (as determined by the
judge) to the facts found after hearing the evidence at trial.69

Juries nonetheless still occasionally engage in nullification. A jury may acquit because it
perceives a law to be unjust, as in assisted-suicide prosecutions of seniors who intentionally
kill their terminally ill partner. Juries also may exonerate a defendant if the application of a
law appears unfair. In addition, juries may disregard the law if they find prosecutorial or
illegal police misconduct. In short, jury nullification “allows juries unreviewable discretion
in refusing to apply the law to a particular person.”70

Jury nullification, moreover, may occur if a single juror refuses to apply the law and causes
a “hung” or “deadlocked jury” that forces a mistrial. While the rate of jury nullification
remains unclear, a National Center for State Courts report found that 2.5 percent of federal
criminal trials result in hung juries, and in state prosecutions the average rate is 6.2 percent.
The reasons juries do not reach a verdict vary, but appear due to (1) the poor quality of the
evidence, (2) the contentiousness of deliberations, and (3) the perception of unfairness of a
law. Other studies conclude that nullification is a response to jurors’ perception of unlawful
government behavior.71

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Proposals to Reform the Jury Process
Whether juries are neutral and competent fact finders has led to calls for reform. Since
juries are only charged with finding the facts, in order to apply the law and reach a legal
verdict, they must receive “jury instructions” from the judge—complex statements of legal
principles about the elements of crimes, for example, and the availability of different legal
defenses—which many jurors find confusing. In light of these problems and others, in
2001, the National Center for State Courts launched a jury reform study, and almost forty
states have conducted similar studies. They have led to a number of innovations, including
(1) permitting jurors to take notes during trials; (2) allowing jurors to ask witnesses
questions during trial; (3) giving jurors “pre-instructions,” or giving them a brief overview
of the case before jury selection begins; (4) requiring “plain English” jury instructions; (5)
facilitating posttrial meetings between the judge, jurors, and lawyers; and (6) increasing jury
size in complex cases. Several states, including Ohio, Massachusetts, and Arizona, have
explored similar reforms, and New York enacted changes that expanded the master voting
list, increased juror pay, and published a handbook on jurors’ rights and responsibilities.
Other states have upgraded court technologies, abolished occupational and status
exemptions from jury service, and expedited qualification and summoning processes in
order to expand jury pools.72

After receiving jury instructions and listening to opposing counsels’ closing arguments, a
jury’s most important task is determining the defendant’s guilt or innocence. If there is a
reasonable doubt, the jury acquits or convicts. And the next stage is the sentencing of the
defendant.

380
In Comparative Perspective

381
Jury Systems Around the World
Jury trials around the world are rooted in the common law jury system that evolved in England over eight
hundred years ago. With the expansion of the British empire, jury trials were transported to colonies in
North America, the Caribbean, Africa, and parts of Asia. In the nineteenth century, elements of the
common law jury were also adopted in France, parts of Germany, Spain, some other European countries,
and Russia, as well as Central and South America.

The origins of the jury system in England stem from the Norman Conquest in 1066. The Normans had a
practice of putting a group of individuals under oath (and thus the term juror) to tell the truth. Initially,
contrary to the modern practice, jurors were chosen because of their knowledge of the case or the parties
involved. They were allowed to question witnesses, in contrast to the passivity of most contemporary juries,
and served as adjudicators of both civil and criminal disputes. Only later did the principle of impartiality
emerge, and by 1367, unanimous verdicts were required. Subsequently, jury trials were the only form of
trials used by English common law courts. That lasted until the mid-nineteenth century when they were
reserved for only the most serious crimes, but they continued to predominate in civil cases until the early
twentieth century.

With British colonization, the common law jury was introduced elsewhere, though often taking slightly
different forms. Nowhere did the system become as entrenched as, perhaps, in the United States. Colonial
experience with the British government and judiciary led to the enshrinement of the right to a common law
jury trial in the constitutions of the original thirteen states and the U.S. Constitution’s Bill of Rights. Juries
were deemed an important political institution and a check on governmental power. Although until the
twentieth century juries in the United States generally excluded women and racial minorities, they were far
more democratic in their representation and symbolism than those in England. Indeed, in the 1830s, Alexis
de Tocqueville emphasized that in the United States the jury is “pre-eminently a political [and democratic]
institution,” in sharp contrast to aristocratic juries in England.

In England and Wales, as in the United States, juries became more representative throughout the twentieth
century. The Juries Act of 1974 required juries to be selected randomly from all registered voters, though
exempted are members of Parliament and others. Ironically, given its origins, the English jury was also
transformed in other ways that rendered a less important institution. The Criminal Justice Act of 1967 did
away with unanimous verdicts and authorized convictions based on a majority vote of ten of the twelve
jurors, even for serious crimes. Furthermore, the incremental reclassification of crimes by Parliament during
the last century resulted in giving less than 2 percent of all criminal cases jury trials. The vast majority of
criminal cases are now tried by magistrates’ courts, composed of three lay magistrates. Because of the cost of
jury trials, judges were also given the power to refuse jury trials in civil cases, and today less than 1 percent
of all civil cases in England are tried before juries. The Supreme Court Act of 1981 preserves a qualified
right to a jury trial in only four kinds of civil cases: libel and slander, fraud, malicious prosecution, and false
imprisonment.

Whereas in England the use of juries has long been in decline, in Canada juries in serious criminal cases
remain generally used, though in a system that mixes elements of the English and U.S. jury systems. A right
to a jury trial is constitutionally guaranteed in the 1982 Charter of Rights and Freedoms. That guarantee,
though, is qualified by the Criminal Code of 1892, which basically defines criminal offenses as one of three
types: (1) indictable offenses are the most serious crimes, like murder and treason, and tried before a judge
and jury; (2) summary conviction offenses are less serious, carrying a maximum sentence of two years in jail
or a fine of less than $5,000, and tried before a judge alone; and (3) hybrid offenses may be treated as either
an indictable or a summary conviction offense, and may or may not entail a jury trial. In the latter instance,
the prosecutor decides how to charge hybrid offenses such as serious fraud, conspiracy, and drug offenses,
and therefore effectively determines whether the accused has a jury trial.

Like the traditional common law jury, Canadian juries are composed of twelve members and must render

382
unanimous verdicts; sentencing, however, remains the responsibility of judges, not the jury. Since Canada
has two official languages, English and French, the accused has the right to be tried by a judge and jury who
speak his or her language. Juries were once composed almost exclusively of white males, but are now
selected randomly from the electoral rolls in provinces and local communities. As in England, however,
juries in civil cases have virtually disappeared. They remain permitted, but not widely used, in Alberta,
British Columbia, Ontario, and Saskatchewan, while expressly prohibited in Quebec and the Federal Court
of Canada.

Juries in criminal cases took a different twist in Australia because four of its six states (New South Wales,
Queensland, Tasmania, and Victoria) originated as penal colonies. Initially, juries were composed of six
military officers and later free settlers who had migrated from Britain; convicts and former convicts were
excluded. But, because former convicts who settled in Australia eventually outnumbered the free settlers, a
major controversy arose over the rights of citizenship and who should serve on juries. By the end of the
nineteenth century, it became settled for former convicts—so-called emancipists—to serve on juries. When
the six colonies federated to become the Commonwealth of Australia in 1901, the new states retained their
powers over criminal law, including the jury trial process. Today, the overwhelming number of criminal
cases are brought under common law or state statutes. Notably, the Australian Constitution, which contains
no bill of rights, does provide (in Section 80) for a jury trial in crimes against the Commonwealth.

The introduction of juries varied considerably elsewhere, depending on the indigenous culture. In Sierra
Leone, England’s oldest African colony, juries were used in both civil and criminal cases, but were not
deemed to guarantee fair trials because jurors confronted tribal rivalries. Within a couple of generations,
juries in civil cases were abandoned, and a two-thirds majority for conviction was adopted for criminal
trials, except in capital cases, which continued to require unanimous verdicts. A modified jury trial was
implemented in Gambia in 1845, while the Gold Coast (Ghana) authorized the attorney general to order a
trial by judge with laypersons, if eligible English-speaking jurors could be found, and to permit
nonunanimous verdicts. Juries were introduced into South Africa in 1828, but their usage gradually
declined and was abolished in 1969. In other African countries—such as Kenya, Zimbabwe, and Tanzania
—jury systems were subsequently established, but then often only for white defendants and juries composed
of white male jurors.

In nineteenth-century Western Europe, the Napoleonic Criminal Code of 1808 first introduced elements of
the jury system into the French inquisitorial system. Later, Austria, parts of Germany, Belgium, Greece,
Hungary, Portugal, and Spain adopted elements of the jury system. The Portuguese jury, for instance,
consisted of six members and permitted nonunanimous verdicts. As a result of Portuguese and Spanish
colonization, the jury system was also introduced in the nineteenth century in South American countries,
including Brazil (1822), Uruguay (1830), Argentina (1853), Chile (1872), Ecuador (1890), and Venezuela
(1898).

In sum, the “traditional common law jury,” composed of twelve members who render unanimous verdicts,
was neither uniform nor standard. Juries varied and continue to vary in terms of their size, permissible
verdicts, and representation. Moreover, by the latter half of the twentieth century, the use of juries declined
or was abandoned in many parts of the world. That is because juries were increasingly criticized as too
costly, incompetent in dealing with complex litigation, and subject to bias due to preemptory challenges
and the influence of media coverage of trials. Consequently, jury trials in civil cases have largely been
discontinued, except for in Canada and the United States. Jury trials in criminal cases have also been
systematically cut back or abandoned in most other countries. Nevertheless, jury trials survive in Australia,
Canada, England and Wales, Ireland, New Zealand, the United States, and some forty-six other countries,
including parts of the Mediterranean (Gibraltar and Malta), Africa (Ghana and Malawi), Asia (Hong Kong
and Sri Lanka), the South Pacific (Tonga and the Marshall Islands), South America (Brazil and Guyana),
and the islands of the British and Irish Caribbean (Barbados, Jamaica, and Montserrat). Variations of the
jury system also remain in Austria, Belgium, Denmark, and Norway; and, notably, in the 1990s, Russia and
Spain reintroduced juries in criminal cases.

For further discussion, see Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury (Chicago:
Ivan R. Dee, 1999); Neal Vidmar, ed., World Jury Systems (New York: Oxford University Press, 2000); and

383
Richard Terrill, World Criminal Justice Systems: A Comparative Survey, 8th ed. (Cincinnati, Ohio: Anderson,
2012).

384
The Politics of the Post-trial Sentencing Process
After a defendant’s conviction, the sentencing process begins. Those convicted are
sentenced in accordance with one or more of the following purposes: retribution,
deterrence, and rehabilitation. Retribution is designed to exact revenge and to give
offenders their “just deserts.” Deterrence serves the community at large by putting
offenders in jail or prison so they may not commit other crimes. Rehabilitation aims at
treating offenders and subsequently reintroducing them into society—usually through
some type of counseling or vocational training—and does not punish all offenders who
commit the same crime equally, which critics argue diminishes its legitimacy as a penal
policy.73

Sentencing policies have evolved with the growth of the modern prison system. In the
colonial era, communities used retribution and deterrence to maintain social control.
Imprisonment was not a popular option, and fines, corporal punishments, and shaming
were the most prevalent punishments. Shaming and painful punishments often included
flogging, physical mutilation (cutting off ears or nailing), and spending time in the stocks,
along with mock executions. Branding or being dunked in water and similar punishments
were ordinarily reserved for repeat or the most dangerous offenders.74

By the nineteenth century, Enlightenment rationalism led to an emphasis on deterrence

and incapacitation, which in turn led to more professionalized police and a growing prison
system. Prison overcrowding, though, gave rise after 1870 to indeterminate sentencing—
sentences imposed by judges after considering a broad range of minimum and maximum
punishments to sanction offenders. Typically, a parole board had the power to release an
offender and also revoke the terms of parole if the conditions for release were violated.
Incarceration and the imposition of fines became predominant sanctions. Although
determinate sentencing practices grew, rehabilitation largely remained the basis for penal
policy throughout the nineteenth and much of the twentieth century.75

By the mid 1970s, however, rehabilitation gave way to determinate sentencing that
returned to a combination of retribution and deterrence policies. Mandatory minimum
sentencing, “truth in sentencing,” sentencing guidelines, and intermediate sanctions
became the norm (see Table 7.4). Determinate sentencing aims to punish offenders with
fixed sentences that reduce the discretionary power of judicial and parole officers to deviate
from a prescribed range of punishments. The shift in sentencing policy from indeterminate
to determinate practices registers the ideological struggle between the underlying
philosophies of the “crime control” and “due process” models of criminal procedure and, in
practice, shifted discretion in sentencing from judges and juries to prosecutors.

Sentencing Typologies and Practices

385
386
Source: Kevin R. Reitz, “The ‘Traditional’ Indeterminate Sentencing Model,” in The Oxford Handbook of
Sentencing and Corrections, edited by Joan Petersilia and Kevin R. Reitz (New York: Oxford University Press,
2012), 270–98; U.S. Department of Justice, Bureau of Justice Assistance, 1996 National Survey of State
Sentencing Structures (Monograph, NCJ 169270, September 1998), available at
https://www.ncjrs.gov/pdffiles/169270.pdf (last retrieved June 8, 2014).

387
The Growth of Determinate Sentencing
“Both before and since the American colonies became a nation,” Justice Hugo Black wrote
in Williams v. New York (1949), “courts in this country and in England practiced a policy
under which a sentencing judge could exercise a wide discretion in the sources and types of
evidence used to assist him in determining the kind and extent of punishment to be
imposed within limits fixed by law.” Williams held that a New York state trial judge acted
appropriately in using information from a probation department’s presentence report when
sentencing a convicted murderer to death, instead of following the jury’s recommendation
of life imprisonment. The scope of the trial court’s discretion under indeterminate
sentencing, Justice Black acknowledged, is vast, and the “practice of probation” confirmed
that “reformation and rehabilitation of offenders have become important goals of criminal
jurisprudence.” Hence, a trial court could rely upon witnesses’ statements in the
presentence report describing the defendant as a “menace to society” and having “a morbid
sexuality,” when concluding he should be executed. The defendant’s due process rights
were not violated because a judge could “consider information about the convicted person’s
past life, health, habits, conduct, and mental and moral propensities...even though [it was]
obtained outside the courtroom from persons whom a defendant has not been permitted to
confront or cross-examine.”76

Justice Black’s defense of indeterminate sentencing was subsequently attacked by the left
and right. Early reformers, such as Harvard Law School professor Alan Dershowitz, argued
for presumptive sentences—punishments that presumptively fix sentences by using ranges
that base punishment on the seriousness of the offense and an offender’s prior criminal
history. These reform ideas were applied in few states with the adoption in the late 1970s of
voluntary sentencing guidelines that typically used fixed sentences and abolished parole,
though allowed early release based on good-time credits.77

In the 1980s, growing political dissatisfaction with indeterminate sentencing produced even
more reforms. And in the next two decades, the federal government and all states
established mandatory minimum sentences and, to a lesser degree, truth-in-sentencing
laws (requiring certain offenders to serve most of their sentences), two- and three-strikes
laws (providing for minimum sentences or life imprisonment after a second or third
conviction), and life-without-possibility-of-parole laws. At the same time, some states, such as
Minnesota (1980), Pennsylvania (1982), Washington (1983), and Florida (1983), started
using presumptive sentencing guidelines (see Figure 7.3). Working from the assumption
that guidelines reduced cost and sentence disparities, sentencing guidelines were distinct
because they were created by sentencing commissions (agencies in the executive branch, as
opposed to the legislature) and relied on quantitative measurements to mete out criminal
sanctions; and, significantly, they were legally binding, and not advisory or voluntary,
which meant that judges had to apply them. The presumptive sentencing guideline format

388
was later adopted by the federal government in the Sentencing Reform Act of 1984.78

The federal Sentencing Reform Act established an independent sentencing commission—

the U.S. Sentencing Commission—which had several responsibilities: (1) to create
presumptive federal sentencing guidelines, (2) to advise Congress on sentencing policy, (3)
to generate federal sentencing statistics, and (4) to provide education, training, and research
material for judicial staff on how to implement the guidelines. The federal guidelines
construct penalty ranges in grid boxes based on the offense’s severity and the defendant’s
criminal history. Judges must almost mechanically determine whether certain sentencing
factors are present or absent in each case, and the sentence is based on mathematical
equations that add or subtract points within fixed guideline ranges. Furthermore, judges
generally must impose guideline-specified sentences unless, in atypical cases, an upward or
downward departure is warranted because of a narrowly defined set of aggravating or
mitigating circumstances. If judges depart from the guidelines, the reasons for their
decisions must be given and are subject to appellate review. Finally, parole was abolished
and the possibility of early release diminished.79

Figure 7.3 Minnesota’s Presumptive Sentencing Grid

389
 1 121=One year and one day

2 Minn. Stat. § 244.09 requires that the guidelines provide a range for sentences that
are presumptive commitment to state imprisonment of 15% lower and 20% higher
than the fixed duration displayed, provided that the minimum sentence is not less
than one year and one day and the maximum sentence is not more than the statutory
maximum. Guidelines section 2.C.1-2, “Presumptive Sentence.”

Presumptive commitment to state imprisonment. First-degree murder has a mandatory life

390
sentence and is excluded from the guidelines under Minn. Stat. § 609.185. See guidelines
section 2.E, “Mandatory Sentences,” for policies regarding those sentences controlled by
law.

Presumptive stayed sentence; at the discretion of the court, up to one year of confinement
and other non-jail sanctions can be imposed as conditions of probation. However, certain
offenses in the shaded area of the grid always carry a presumptive commitment to state
prison. Guidelines sections 2.C, “Presumptive Sentence” and 2.E, “Mandatory Sentences.”

Sentencing reform caused about a third of the states to eliminate parole release and all
others to end it for some categories of offenders. In addition to the federal government,
about seventeen states moved to sentencing guidelines, and all states adopted mandatory-
minimum laws for drug and violent crimes and for recidivist offenders, often triggering
lengthy incarceration periods. Significantly, the political popularity of using determinate
sentencing laws coincided with decreasing crime rates, but also a dramatic spike in prison
populations over the past several decades.80 By some estimates, U.S. incarcerations
constitute more than one-fifth of the world’s prison and jail populations—a rate that far
exceeds that of other Western democracies. Such “massive incarceration” trends have led to
the criticism that those sentencing policies are too punitive—and too costly, with
expenditures growing from $6 billion in 1982 to over $68 billion in 2006, an increase of
over 660 percent.81

Budget uncertainties, along with the reform of federal drug laws, has put the viability of
sentencing guidelines into question, especially in light of a series of landmark Supreme
Court “sentence-enhancement” rulings.82 Beginning with Apprendi v. New Jersey (2000),
the Court established that the aggravating circumstances of a crime, or sentencing-
enhancing “facts” that increase a defendant’s punishment, must be determined by a jury
instead of by judges in order to protect the defendant’s Sixth Amendment right to a jury
trial. The Apprendi principle was then applied in subsequent rulings. In Blakely v.
Washington (2004),83 the Court invalidated Washington’s Sentencing Reform Act because
it allowed the trial judge to increase the length of a defendant’s sentence on the basis of
facts not admitted by the defendant or determined by the jury. In writing for a bare
majority, Justice Antonin Scalia held that the right to a jury trial was violated when the trial
judge found that the defendant acted with “deliberate cruelty” (a “fact”) in kidnapping his
wife, and thereupon increased the sentence by more than three years. He concluded that
the Sixth Amendment safeguards the right of a jury to ascertain all essential facts that may
be considered when sentencing a defendant.

Shortly thereafter, United States v. Booker (2005)84 struck down part of the U.S. Sentencing
Guidelines and rendered them advisory. In this respect, the federal sentencing guidelines
were transformed into merely recommendations for district court judges in sentencing—
but, significantly, judges have the discretion to impose sentences that go beyond the

391
guidelines in certain “enhancement” cases that permit harsher punishments under certain
facts and circumstances (e.g., if the defendant has prior convictions, is a repeat offender, or
uses a weapon).85

While Booker’s impact on federal sentencing remains in flux and largely unclear,86Blakely
prompted a number of states to enact new sentencing laws and prosecutors to change their
charging and plea bargaining practices.87 Subsequent Court rulings further renewed and
expanded judicial discretion in sentencing.88Alleyne v. United States (2013),89 for example,
held that defendants have a right to have a jury decide facts that would raise a mandatory
minimum punishment. In Alleyne, the Court reasoned that there was no constitutional
difference between laws using mandatory minimums or those using maximum punishment
standards to increase the severity of the sentence. Since mandatory-minimum laws are
widely used in federal and state courts, Alleyne is likely to cause further revisions to
sentencing laws.

In sum, the politics of sentencing policy registers the ideological struggle over allowing
judges and parole boards the discretion to individualize punishments or, conversely, fixing
punishments under determinate sentencing criteria. In recent years, the Court has
expanded judicial discretion in accord with an accused’s Sixth Amendment right to a fair
jury trial. Still, reforms are likely to continue as correctional budgets shrink and the cost of
incarcerating inmates under strict determinate sentencing standards continues to increase.90

392
Post-Trial Motions and Appeals
After conviction and sentencing, the defendant may file several post-trial motions,
including “motions for a new trial” and “motions for judgment of acquittal,” which set
aside the jury’s verdict under certain circumstances, or “motions to vacate” or correct
sentences fraught with some type of procedural or clerical error. If post-trial motions are
denied, then the defendant has other procedural litigation options, such as filing appeals
that claim the trial court committed a legal error, or once incarcerated filing a habeas corpus
petition.

393
Chapter Summary
The myths and realities of the common law adversarial trial process, along with criticisms
and in comparison with inquisitorial models of justice in civil law countries, are examined.
The common law adversarial tradition has tensions between the “crime control” and “due
process” models of criminal justice. Thereafter, it discusses the criminal justice trial and
appeal process, focusing on the nature and scope of prosecutorial discretion, plea
bargaining, the jury’s role in criminal trials, and the politics of post-trial sentencing.
Prosecutors have virtually unrestrained discretion in filing charges and plea bargaining. The
plea bargaining process promotes caseload efficiency but invites criticisms that it is actually
coercive and secretive and requires defendants to forfeit their constitutional rights. If the
accused pleads not guilty and a plea bargain is not reached, then the defendant stands trial.

At trial, the government must prove guilt beyond a reasonable doubt. Juries play a
significant and democratic role within the judicial system in determining guilt or innocence
of the accused. The chapter, then, reviews the politics of sentencing policies that permit
either greater or reduced judicial discretion under indeterminate and determinate
sentencing practices—based on the punishment goals of rehabilitation, retribution, and
deterrence. Whereas indeterminate sentencing sets a minimum and maximum range of
punishments, and allows for prison release through policies of parole and probation,
determinate sentencing prescribes fixed minimum and maximum penalties. Recent
Supreme Court rulings, however, have imposed new constitutional requirements that affect
sentencing policies in the federal courts and in the states. Those rulings have coincided with
a growing movement to reduce correctional populations and expenses.

394
Key Questions for Review and Critical Analysis
1. Do you think it is realistic for elected prosecutors to make achieving “justice” a
priority over seeking a conviction when plea bargaining with criminal defendants?
2. Critics claim that the common law adversarial system “hides” the truth. Is the
criticism accurate, or is “fighting” for the truth through opposing counsel the best
way to achieve it? What role should the judge play in seeking out the truth of what
happened in a criminal prosecution?
3. Are juries incapable of understanding complex criminal prosecutions? Should they be
allowed to ask questions, take notes, or otherwise be active participants in the trial
process?
4. What are the strengths and weaknesses of indeterminate and determinate sentencing
practices? Does it matter whether prosecutors or judges and juries have greater
discretion in sentencing? In what ways would you reform the sentencing process?

395
Web Links
1. National District Attorneys Association (www.ndaa.org/index.html)
A national group offering information, training, and advocacy resources for
prosecutors relating to sentencing practices, gang cases, animal cruelty, and gun
violence.
2. National Association of Criminal Defense Lawyers (www.nacdl.org)
A national organization supporting criminal defense attorneys and providing
information on topics such as indigents’ legal defense, the death penalty,
searches and seizures, and human rights issues.
3. Center for Jury Studies (www.ncsc-jurystudies.org)
A project of the National Center for State Courts providing information and
community outreach resources for performing jury service.
4. The Sentencing Project (www.sentencingproject.org/template/index.cfm)
Comprehensive website providing information about criminal sentencing
practices and reforms.

396
Selected Readings
Bibas, Stephanos.The Machinery of Criminal Justice. New York: Oxford University Press,
2012.

Feeley, Malcolm M. The Process Is the Punishment: Handling Cases in a Lower Criminal
Court. New York: Russell Sage Foundation, 1992.

Fisher, George. Plea Bargaining’s Triumph: A History of Plea Bargaining in America.

Stanford, Calif.: Stanford University Press, 2003.

Frank, Jerome. Courts on Trial: Myth and Reality in American Justice. Princeton, N.J.:
Princeton University Press, 1949.

Frankel, Marvin E. Partisan Justice. New York: Hill and Wang, 1980.

Frase, Richard S. Just Sentencing: Principles and Procedures for a Workable System. New
York: Oxford University Press, 2013.

Jonakait, Randolph N. The American Jury System. New Haven, Conn.: Yale University
Press, 2003.

Langbein, John H. The Origins of Adversary Criminal Trial. New York: Oxford University
Press, 2003.

Luna, Erik, and Marianne L. Wade. Eds. The Prosecutor in Transnational Perspective.
New York: Oxford University Press, 2012.

Packer, Herbert L. The Limits of the Criminal Sanction. Stanford, Calif.: Stanford
University Press, 1968.

Stith, Kate, and Jose A. Cabranes. Fear of Judging: Sentencing Guidelines in the Federal
Courts. Chicago: University of Chicago Press, 1998.

397
Vogel, Mary E. Coercion to Compromise: Plea Bargaining, the Courts, and the Making of
Political Authority.New York: Oxford University Press, 2001.

Whitman, James Q. Harsh Justice: Criminal Punishment and the Widening Divide
Between America and Europe. New York: Oxford University Press, 2004.

398
EndNotes
1. Equal Rights Initiative, “A Question of Innocence,” Birmingham News (op-ed,
November 9, 2006), available at www.truthinjustice.org/ray-hinton.htm (last retrieved May
31, 2014).

2. Equal Rights Initiative, “A Question of Innocence.” See also Bryan A. Stevenson,

Charlotte R. Morrison, and Aaryn Urell (of Equal Justice Initiative, Counsel for the
Petitioner, Anthony Ray Hinton), Petition for Writ of Certiorari in the Supreme Court of the
United States (September 16, 2013), available at www.scotusblog.com (last retrieved May
31, 2014).

3. Hinton v. Alabama, 134 S.Ct. 1081 (2014). See also Strickland v. Washington, 466 U.S.
668 (1984).

4. United States v. Cronic, 466 U.S. 648, 653-657 (1984).

5. U.S. v. Twomey, 510 F.2d 634 (7th Cir. 1975): 640 (Wyzanski, J.).

6. Judge J. Thomas Greene, “Some Current Causes of Popular Dissatisfaction With the
Administration of Justice,” Federal Rules Decision 198 (November 3, 2000), 566.

7. John D. King, “Procedural Justice, Collateral Consequences, and the Adjudication of

Misdemeanors in the United States,” in The Prosecutor in Transnational Perspective, eds.
Erik Luna and Marianne L. Wade (New York: Oxford University Press, 2012), 20, 23. See
also National Association of State Budget Officers, “State Spending for Corrections: Long-
Term Trends and Recent Criminal Justice Policy Reforms (Issue Brief: September 11,
2013),” available at
www.nasbo.org/sites/default/files/State%20Spending%20for%20Corrections.pdf (last
retrieved June 1, 2014); Alison Lawrence, Trends in Sentencing and Corrections: State
Legislation (Washington, D.C.: National Conference of State Legislatures, 2013); and the
Smart on Crime Coalition, Smart on Crime: Recommendations for the Administration and
Congress (Washington, D.C.: The Constitution Project, 2011), available at
www.besmartoncrime.org/pdf/Complete.pdf (last retrieved June 1, 2014).

8. Stewart Macaulay, “Images of Law in Everyday Life: The Lessons of School,

Entertainment, and Spectator Sports,” Law and Society Review 21 (1987), 185–216; and
Carrie Menkel-Meadow, “Can They Do That? Legal Ethics in Popular Culture, of
Characters and Acts,” UCLA Law Review 48 (2001), 1305–37. See also Stephanie Francis
Ward, “The 25 Greatest Legal TV Shows,” ABA Journal (August 1, 2009), available at
www.abajournal.com/magazine/article/the_25_greatest_legal_tv_shows/ (last retrieved June
1, 2014); Richard Brust, “The 25 Greatest Legal Movies,” ABA Journal (August 1, 2008),

399
available at www.abajournal.com/magazine/article/the_25_greatest_legal_movies/ (last
retrieved June 1, 2014).

9. Robert A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge, Mass.:
Harvard University Press, 2001).

10. Judge Frank’s analysis of his “fight” theory is found in Chapter Six of Jerome Frank,
Courts on Trial: Myth and Reality in American Justice (Princeton, N.J.: Princeton University
Press, 1949), 80, 85.

11. See Gerald Walpin, “America’s Adversarial and Jury Systems: More Likely to Do
Justice,” Harvard Journal of Law and Public Policy (Winter, 2003), 175–85.

12. Erik Luna and Marianne L. Wade, “Adversarial and Inquisitorial Systems-Distinctive
Aspects and Convergent Trends,” in The Prosecutor in Transnational Perspective, eds. Erik
Luna and Marianne L. Wade (New York: Oxford University Press, 2012), 177, 180. See
also ibid., 178–79. Also, criminal inquisitorial trials begin with a statement from the
defendant, and thereafter, the presiding judge conducts questioning and calls witnesses,
while the attorneys remain mostly passive (only suggesting lines of inquiry). Jury panels
then render a verdict, and oftentimes two-thirds of the vote is needed to convict; and
generally juries are not permitted to stalemate. After the conviction, the sentence is
pronounced by an adjudicative panel of judges. Randolph N. Jonakait, The American Jury
System (New Haven, Conn.: Yale University Press, 2003), 177–78.

13. Kagan, Adversarial Legalism, 4, 86–89, 104–25.

14. Ibid., 230.

15. Luna and Wade, “Adversarial and Inquisitorial Systems-Distinctive Aspects and
Convergent Trends,” 181–82.

16. Herbert L. Packer, The Limits of the Criminal Sanction (Stanford, Calif.: Stanford
University Press, 1968), 153, 158–63.

17. Missouri v. Seibert, 542 U.S. 600 (2004). The quote is found in King, “Procedural
Justice, Collateral Consequences, and the Adjudication of Misdemeanors in the United
States,” 22.

18. Weeks v. U.S., 232 U.S. 383 (1914) (as applied to federal prosecutions); Mapp v. Ohio,
367 U.S. 643 (1961) (as applied to state prosecutions).

19. King, “Procedural Justice, Collateral Consequences, and the Adjudication of

Misdemeanors in the United States,” 22.

20. Stephanos Bibas, The Machinery of Criminal Justice (New York: Oxford University

400
Press, 2012). The Taft commencement remarks were delivered at Yale Law School and are
found in Erik Luna and Marianne L. Wade, “Preface,” in The Prosecutor in Transnational
Perspective, eds. Erik Luna and Marianne L. Wade (New York: Oxford University Press,
2012), xiii. For a similar criticism of the punitive approach that overemphasizes the
efficiency of plea bargains from a historical perspective, see William J. Stuntz, The Collapse
of the American Criminal Justice (Cambridge, Mass.: Belknap Press of Harvard University
Press, 2011).

21. In re Winship, 397 U.S. 358 (1970), 363. See also People v. Defore, 150 N.E. 585
(1926), 587. See also William Burnham, Introduction to the Law and Legal System of the
United States, 5th ed. (St. Paul, Minn.: West Publishing Group, 2011), chap. 8.

22. Death Penalty Information Center, “States With and Without the Death Penalty,”
available from www.deathpenaltyinfo.org/states-and-without-death-penalty (last retrieved
June 3, 2014); ibid., “Federal Death Penalty,” available from
www.deathpenaltyinfo.org/federal-death-penalty (last retrieved June 3, 2014); ibid.,
“International Perspectives on the Death Penalty: A Costly Isolation for the U.S.,” available
from www.deathpenaltyinfo.org/international-perspectives-death-penalty-costly-isolation-
us#worldtrend (last retrieved June 3, 2014). See, generally, James Q. Whitman, Harsh
Justice: Criminal Punishment and the Widening Divide Between America and Europe (New
York: Oxford University Press, 2004).

23. James L. Croyle, “Measuring and Explaining Disparities in Felony Sentences:

Courtroom Work Group Factors and Race, Sex, and Socioeconomic Influences on
Sentence Severity,” Political Behavior 5 (1983), 135–53; Peter F. Nardulli, James
Eisenstein, and Roy B. Flemming, The Tenor of Justice: Criminal Courts and the Guilty Plea
Process (Urbana: University of Illinois Press, 1988), 7. See also James Eisenstein and
Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Lanham, Md.:
University Press of America, 1991).

24. See, e.g., U.S. Department of Justice, Smart on Crime: Reforming the Criminal Justice
System for the 21st Century (August 2013), available at www.justice.gov/ag/smart-on-
crime.pdf (last retrieved June 3, 2014); Alison Lawrence, Trends in Sentencing and
Corrections: State Legislation (Washington, D.C.: National Conference of State Legislatures,
2013); The Smart on Crime Coalition, Smart on Crime: Recommendations for the
Administration and Congress (Washington, D.C.: The Constitution Project, 2011), available
at www.besmartoncrime.org/pdf/Complete.pdf (last retrieved June 1, 2014). On the recent
history and likely future of sentencing trends and reforms, see Michael Tonry, “Sentencing
in America, 1975–2025,” Crime and Justice 42 (2013), 141–98.

25. Quoted in Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (Baton
Rouge: Louisiana State University Press, 1969), 190. See William J. Stuntz, The Collapse of
American Criminal Justice (Cambridge, Mass.: Belknap Press, 2011), 245 (observing that

401
Americans still “live in a more punitive country... than at any time in American history” in
spite of falling crime rates and being in a safer country than before the 1970s and 1980s);
Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford
University Press, 2007), 22 (observing that the charging decision “pulls” offenders “into the
criminal justice system” and “firmly entrenches him there, and maintains control over
crucial decisions that will determine his fate”).

26. Steven W. Perry, Prosecutors in State Courts, 2007—Statistical Tables, available at

www.bjs.gov/content/pub/pdf/psc07st.pdf (last retrieved June 6, 2014). See also Michael J.
Ellis, “The Origins of the Elected Prosecutor,” Yale Law Journal 121 (2012), 1528, 1529
(observing that historically all prosecutors were appointed officials but that the states started
to elect prosecutors between 1832 and 1860).

27. U.S. Department of Justice, Executive Office for United States Attorneys, United States
Attorneys’ Annual Statistical Report, Fiscal Year 2012, available from
www.justice.gov/usao/reading_room/reports/asr2012/12statrpt.pdf (last retrieved June 3,
2014).

28. Perry, Prosecutors in State Courts, 2005, 4 (Table 5); National Association of Criminal
Defense Lawyers, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken
Misdemeanor Courts (Washington, D.C.: National Association of Criminal Defense
Lawyers, 2009). See also Sean Rosenmerkel, Matthew Durose, and Donald Farole, Jr.,
Felony Sentences in State Courts, 2006—Statistical Tables, available from
www.bjs.gov/content/pub/pdf/fssc06st.pdf (last retrieved June 3, 2014); Steven W. Perry
and Duren Banks, Prosecutors in State Courts, 2007 (December 2011, NCJ 234211),
available from www.bjs.gov/content/pub/pdf/psc07st.pdf (last retrieved June 3, 2014).

29. Sanford C. Gordon and Gregory A. Huber, “The Political Economy of Prosecution,”
Annual Review of Law and Social Science 5 (2009), 135, 140–41. See also Berger v. U.S.,
295 U.S. 78 (1935).

30. Sanford C. Gordon and Gregory A. Huber, “Citizen Oversight and the Electoral
Incentives of Criminal Prosecutors,” American Journal of Political Science (April 2002), 334.

31. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991); Gerstein v. Pugh, 420 U.S.
103 (1975).

32. Niki Kuckes, “Retelling Grand Jury History,” in Grand Jury 2.0: Modern Perspectives on
the Grand Jury, ed. Roger Anthony Fairfax, Jr. (Durham, N.C.: Carolina Academic Press,
2011), 131. See Hurtado v. California, 110 U.S. 516 (1884).

33. U.S. Department of Justice, Bureau of Justice Statistics, State Court Organization, 2004
(Table 38: Grand Juries: Composition and Functions), 213–17, available from
www.bjs.gov/content/pub/pdf/sco04.pdf (last retrieved June 5, 2014). See also U.S.

402
Department of Justice, Bureau of Justice Statistics, State Court Organization, 1998 (Table
43, “Grand Juries: Composition and Functions”), 283–85, available from
www.bjs.gov/content/pub/pdf/sco98.pdf (last retrieved June 5, 2014).

34. Kuckes, “Retelling Grand Jury History,” 148. See also Burnham, Introduction to the
Law and Legal System of the United States.

35. U.S. Department of Justice, Bureau of Justice Statistics, State Court Organization,
2004, 215–17. See also U.S. Department of Justice, Bureau of Justice Statistics, State Court
Organization, 1998, 283–85.

36. Kuckes, “Retelling Grand Jury History.” 128–29. Kuckes states that the Supreme
Court’s ruling in Costello v. United States, 350 U.S. 359 (1956), is the basis for “modern
grand jury procedure” because it held that such proceedings are not governed by
evidentiary rules or judicial oversight. Ibid., 132. For information about state and federal
grand juries, see, generally, “Federal Grand Jury,” available from
http://campus.udayton.edu/~grandjur/ (last retrieved June 6, 2014).

37. The joke is retold in court cases. See, e.g., People v. Dukes, 592 N.Y.S. 2d 220, 223
(Sup. Ct. 1992) (“In this case, the prosecutor served the grand jury the proverbial ‘ham
sandwich’ and told them, in effect, to take it or leave it.”) Whether grand juries serve a
meaningful screening function is “mixed and murky.” Andrew D. Leipold, “Prosecutorial
Charging Practices and Grand Jury Screening: Some Empirical Observations,” in Grand
Jury 2.0: Modern Perspectives on the Grand Jury, ed. Roger Anthony Fairfax, Jr. (Durham,
N.C.: Carolina Academic Press, 2011), 211. See also ibid., 215 n. 2. Some states, like New
York and Colorado, have tried to reform the grand jury process to give the defendants
additional protections. Erin L. Crites, Jon B. Gould, and Colleen E. Shepard, Evaluating
Grand Jury Reform in Two States: The Case for Reform (A Report Prepared for the National
Association of Criminal Defense Lawyers, November, 2011) (Washington, D.C.: National
Association of Criminal Defense Lawyers, 2011).

38. Kuckes, “Retelling Grand Jury History,” 125.

39. Bibas, The Machinery of Criminal Justice, 61–62. Under the Federal Rules of Criminal
Procedure, federal judges also have discretion to accept or reject Alford pleas. Jacqueline E.
Ross, “The Entrenched Position of Plea Bargaining in United States Legal Practice,” in
World Plea Bargaining: Consensual Procedures and the Avoidance of the Full Criminal Trial,
ed. Stephen C. Thaman (Durham, N.C.: Carolina Academic Press, 2010), 112.

40. Jenia I. Turner, Plea Bargaining Across Borders: Criminal Procedure (New York: Aspen
Publishers, 2009), 29. See also North Carolina v. Alford, 400 U.S. 25, 37 (1970). Under the
Federal Rules of Criminal Procedure, federal judges also have discretion to accept or reject
Alford pleas. Ross, “The Entrenched Position of Plea Bargaining in United States Legal

403
Practice,” 112.

41. Associated Press, “Legal Experts Say Insanity Plea Unpopular With Jurors,” Akron
Beacon Journal (April 11, 2005), B4. See also Jack Healy, “Suspect in Colorado Killings
Enters Insanity Plea” (June 4, 2013), available at www.nytimes.com (last retrieved June 5,
2014).

42. Clark v. Arizona, 548 U.S. 735 (2006) (J. Souter’s majority opinion). A summary of
state laws governing insanity pleas, and the different types of insanity verdicts that are used,
is found in U.S. Department of Justice, Bureau of Justice Statistics, State Court
Organization 2004 (Table 35), available at www.bjs.gov/content/pub/pdf/sco04.pdf (last
retrieved June 6, 2014).

43. Brady v. United States, 397 U.S. 742 (1972).

44. U.S. Department of Justice, Bureau of Justice Statistics, Federal Criminal Case
Processing Statistics, 2010, available at (http://bjs.ojp.usdoj.gov/fjsrc/) (last retrieved June 6,
2014) (reporting 97 percent of 89,902 federal convictions in U.S. district court in 2010
were produced by guilty [87,361] or no contest pleas [206]).

45. Public Broadcasting System, “Frontline: Interview With Judge Michael McSpadden
(December 16, 2003), available at
www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/mcspadden.html (last retrieved
June 6, 2014).

46. George Fisher, Plea Bargaining’s Triumph: A History of Plea Bargaining in America
(Stanford, Calif.: Stanford University Press, 2003), 1.

47. Ellis, “The Origins of the Elected Prosecutor,” 1528, 1532. See also Angela J. Davis,
Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford University Press,
2007); Angela J. Davis, “The American Prosecutor: Independence, Power, and the Threat
of Tyranny,” Iowa Law Review 86 (2001), 393–465.

48. Turner, Pleading Bargaining Across Borders, 1, 23–24, 38–41.

49. Brady v. Maryland, 373 U.S. 83 (1963).

50. Gregory E. Mize, Paula Hannaford-Agor, and Nicole L. Waters, The State-of-the-States
Survey of Jury Improvement Efforts: A Compendium Report (April 2007) (Williamsburg, Va.:
National Center for State Courts, 2007), 7.

51. Duncan v. Louisiana, 391 U.S. 145, 156 (1969) (White, J.).

52. Bibas, The Machinery of Criminal Justice, 5.

404
53. See Duncan v. Louisiana, 391 U.S. 376 (1968) (making the right to a jury trial in all
non-petty cases applicable to the states); and Baldwin v. New York, 399 U.S. 66 (1970)
(defining “non-petty” cases as those carrying a potential sentence of six months or more
imprisonment).

54. Lewis v. United States, 518 U.S. 322 (1995).

55. David M. O’Brien, Constitutional Law and Politics (Volume Two): Civil Rights and Civil
Liberties, 9th ed. (New York: Norton, 2014), 1193–94.

56. Taylor v. Louisiana, 419 U.S. 522 (1975).

57. See, e.g., David Cole, No Equal Justice: Race and Class in the American Criminal Justice
System (New York: New Press, 1999).

58. Shari Seidman Diamond and Andrea Ryken, “The Modern American Jury: A One
Hundred Year Journey,” Judicature 96 (2013), 315, 317–18. A summary of juror
qualifications, source lists, and exemptions relating to juror service in the states is found in
U.S. Department of Justice, Bureau of Justice Statistics, State Court Organization 2004
(Tables 39, 40), available at www.bjs.gov/content/pub/pdf/sco04.pdf (last retrieved June 7,
2014). See also Richard Seltzer, “The Vanishing Juror: Why Are There Not Enough
Available Jurors?” The Justice System Journal 20 (1999), 203–18.

59. Randolph N. Jonakait, The American Jury System (New Haven, Conn.: Yale University
Press, 2003), 130, 128–55.

60. Batson v. Kentucky, 476 U.S. 79 (1986) (race); J.E.B. v. Alabama, 511 U.S. 127 (1997)
(gender) Hernandez v. New York, 500 U.S. 352 (1999) (ethnic origin).

61. See, e.g., William E. Martin and Peter N. Thompson, “Judicial Toleration of Racial
Bias in the Minnesota Justice System,” Hamline Law Review (Winter, 2002), 235, 263–69.

62. O’Brien, Constitutional Law and Politics (Volume Two), 1193–96. See also Georgia v.
McCollum, 505 U.S. 42 (1992).

63. Jonakait, The American Jury System, 153.

64. Williams v. Florida, 399 U.S. 78, 102 (1970). Williams reversed the twelve-member
jury requirement established seventy years earlier in Thompson v. Utah, 17 U.S. 343 (1898).
Jonakait, The American Jury System, 88.

65. Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972).

66. Burch v. Louisiana, 441 U.S. 130 (1979); Ballew v. Georgia, 435 U.S. 223 (1978).

405
67. Ballew v. Georgia, 435 U.S. 223, 239 (1978). The research studying the impact of jury
size on decision making is summarized in Jonakait, The American Jury System, 90;
Diamond and Ryken, “The Modern American Jury,” 319 n. 38.

68. National Center for State Courts, “Trial Juries: Size and Verdict Rules” (from State
Court Organization as part of the Court Statistics Project, Table 51), available at
www.ncsc.org/microsites/sco/home/List-Of-Tables.aspx (last retrieved June 8, 2014); Legal
Information Institute, Federal Rules of Criminal Procedure (Rule 23. Jury or Nonjury Trial),
available at www.law.cornell.edu/rules/frcrmp/rule_23 (last retrieved June 8, 2014); ibid.,
Federal Rules of Criminal Procedure (Rule 31. Jury Verdict), available at
www.law.cornell.edu/rules/frcrmp/rule_31 (last retrieved June 8, 2014).

69. Sparf & Hansen v. United States, 156 U.S. 51 (1895). See also Jonakait, The American
Jury System, 245–47; and Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine
(Washington, D.C.: Cato Institute, 2014).

70. Jonakait, The American Jury System, 252.

71. Aaron McKnight, “Jury Nullification as a Tool to Balance the Demands of Law and
Justice,” Brigham Young University Law Review 2013 (2013), 1103–32. See also Paula L.
Hannaford-Agor and Valerie P. Hans, “Nullification at Work? A Glimpse From the
National Center for State Courts Study of Hung Juries,” Chicago-Kent Law Review 78
(2003), 1249–77. The 2002 NCSC Report is found at Paula L. Hannaford-Agor, Valerie
P. Hans, Nicole L. Mott, and G. Thomas Munsterman, “Are Hung Juries a Problem?
(September 30, 2002),” available at www.ncsc-jurystudies.org (last retrieved June 8, 2014).

72. See Mize, Paula Hannaford-Agor, and Nicole L. Waters, The State-of-the-States Survey
of Jury Improvement Efforts, 1–88; James P. Levine and Steven Zeidman, “The Miracle of
Jury Reform in New York,” Judicature (January/February 2005), 178–84; Gregory E. Mize
and Christopher J. Connelly, “Jury Trial Innovations: Charting a Rising Tide,” Court
Review (Spring, 2004), 4–10; Lynne Forster Lee and Irwin A. Horowitz, “The Effects of
Jury-Aid Innovations on Juror Performance in Complex Civil Trials,” Judicature
(January/February 2003), 184–90.

73. On the collapse of the rehabilitative ideal, see Kate Stith and Jose A. Cabranes, Fear of
Judging: Sentencing Guidelines in the Federal Courts (Chicago: University of Chicago Press,
1998), 29–37. Richard Frase adds “moral education” as another punishment goal, which
“reinforce[s] societal norms that guide and restrain behavior even when... the chances of
detection and punishment are slight—the sentence sends a message to the offender and the
public that the punished behavior was wrong, and the severity of the sentence shows how
wrong it was.” Richard S. Frase, Just Sentencing: Principles and Procedures for a Workable
System (New York: Oxford University Press, 2013), 8.

406
74. Bibas, The Machinery of Criminal Justice, 9–10; Samuel Walker, Popular Justice: A
History of American Criminal Justice, 2nd ed. (New York: Oxford University Press, 1998),
32–46. Today, shaming punishments are limited to less serious offenders, such as
shoplifting, littering, and traffic violations, and a growing trend is to apply them to drunk
driving violations, such as in Ohio. Lauren C. Porter, “Trying Something Old: The Impact
of Shame Sanctioning on Drunk Driving and Alcohol-Related Traffic Safety,” Law and
Social Inquiry 38 (2013), 863–91.

75. Walker, Popular Justice, 80–81, 100–104, 119–20. See also Bibas, The Machinery of
Criminal Justice, 13–15.

76. Williams v. New York, 337 U.S. 241, 245 (1949).

77. U.S. Department of Justice, Bureau of Justice Assistance, National Assessment of

Structured Sentencing (Monograph, 1996), available at www.ncjrs.gov/pdffiles/strsent.pdf
(last retrieved June 9, 2014), 6–17.

78. The Sentencing Reform Act of 1984, 18 U.S.C. Section 3551 et seq. See also U.S.
Department of Justice, National Assessment of Structured Sentencing, 17, 20–21 (Table 3.1,
“Sentencing Practices in the United States, as of February 1994”); U.S. Department of
Justice, Bureau of Justice Assistance, 1996 National Survey of State Sentencing Structures
(Monograph, NCJ 169270, September 1998), available at
www.ncjrs.gov/pdffiles/169270.pdf (last retrieved June 9, 2014); and Kate Stith,
“Principles, Pragmatism, and Politics: The Evolution of Washington State’s Sentencing
Guidelines,” Law and Contemporary Problems 76 (2013), 105, 106 (discussing national
sentencing reform movement goals).

79. See Stith and Cabranes, Fear of Judging, 82–85.

80. Tonry, “Sentencing in America, 1975–2025,” 143–44.

81. Todd R. Clear and Natasha A. Frost, The Punishment Imperative: The Rise and Failure
of Mass Incarceration in America (New York: New York University Press, 2014), 17–20,
73–75, 80–81. See also Bert Useem and Anne Morrison Piehl, Prison State: The Challenge
of Mass Incarceration (New York: Cambridge University Press, 2008), 40.

82. Rachel E. Barkow, “Sentencing Guidelines at the Crossroads of Politics and Expertise,”
University of Pennsylvania Law Review 160 (2012), 1599–630.

83. Blakely v. Washington, 542 U.S. 296 (2004).

84. United States v. Booker, 543 U.S. 220 (2005).

85. Stith, “Principles, Pragmatism, and Politics: The Evolution of Washington State’s

407
Sentencing Guidelines,” 121.

86. See, e.g., United States Sentencing Commission, Report on the Continuing Impact of
United States v. Booker on Federal Sentencing (Washington, D.C.: Government Printing
Office, 2012) (reporting mixed findings about influence of federal guidelines and impact
on judicial decision making across federal courts in light of Booker); Joshua B. Fischman
and Max M. Schanzenbach, “Racial Disparities Under the Federal Sentencing Guidelines:
The Role of Judicial Discretion and Mandatory Minimums,” Journal of Empirical Legal
Studies 9 (2012), 729–64 (surveying conflicting studies examining Booker’s impact on racial
disparities but finding that disparities under the guidelines are not attributable to judicial
discretion); D. Michael Fisher, “Still in Balance? Federal District Court Discretion and
Appellate Review Six Years After Booker,” Duquesne Law Review 49 (2011), 641, 642
(observing federal courts “continue to encounter some confusion and inconsistency in
sentencing”). One sentencing law expert speculated that the unpopularity of the federal
guidelines before Booker would mean that judges expand the use of their sentencing
discretion under the advisory guidelines. Richard S. Frase, “The Apprendi-Blakely Cases:
Sentencing Reform Counter-Revolution?” Criminology and Public Policy 6 (2007), 403–31.

87. Frase, “The Apprendi-Blakely Cases: Sentencing Reform Counter-Revolution?” 403,

425–28. See also Stith, “Principles, Pragmatism, and Politics: The Evolution of
Washington State’s Sentencing Guidelines,” 121–22 (reporting that Washington State
followed Kansas’s lead in “Blakely-izing” its guidelines); Frase, Just Sentencing: Principles and
Procedures for a Workable System, 6–7.

88. Fischman and Schanzenbach, “Racial Disparities Under the Federal Sentencing
Guidelines: The Role of Judicial Discretion and Mandatory Minimums,” 729, 730 (citing
Rita v. United States, 551 U.S. 338 [2007], Gall v. United States, 552 U.S. 38 [2007], and
United States v. Kimbrough, 552 U.S. 85 [2007] as cases that “encouraged departures from
the Guidelines”).

89. Alleyne v. United States, 133 S.Ct. 2151 (2013).

90. See, e.g., Nicole D. Porter, State of Sentencing 2012: Developments in Policy and Practice
(Washington, D.C.: The Sentencing Project, 2013) (detailing efforts by states to reduce
prison populations while controlling correctional costs through various legislative reform,
including relaxing mandatory minimums; abolishing the death penalty; reducing
postconviction sentences through modifications; easing penalties for low-level, nonviolent
offenders; authorizing the use of graduated sanctions; diminishing the impact of collateral
sanctions; and instituting parole and probation revocation reforms); Roger A. Fairfax, Jr.,
“The ‘Smart on Crime’ Prosecutor,” Georgetown Journal of Legal Ethics 25 (2012), 905–12
(surveying “Smart on Crime” initiatives that advocate or implement crime justice policies
that allow prosecutors to reduce recidivism, increase successful reentry into the community,
and the like); and Lawrence, Trends in Sentencing and Corrections: State Legislation

408
(analyzing the growing trend by states to engage in “justice reinvestment” processes that
determines trends driving prison populations and their underlying cost, with an eye toward
policy development arresting those trends, including expanding the use of graduated
[nonprison] sanctions, improving release and reentry programs, and modifying sentencing
laws).

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Chapter 8 Trial Courts: Civil Cases and Litigation

IN 2004, GENERAL MOTORS (GM) PUT FAULTY IGNITION SWITCHES IN

CHEVY COBALT and other cars that caused engines to go into “moving stalls” on the
highway. The loss of engine power also meant the air bags did not deploy, causing at least a
dozen deaths in over fifty collisions. Subsequent discovery revealed that GM knew about
what its engineers called “the switch from hell” for years. But GM did not issue a recall
until 2014, and then when it did act, it was incomplete and ineffective. A subsequent GM-
initiated investigation reported that GM’s failure to act responsibly could be traced to the
“GM nod”—the corporate norm of looking the other way and doing nothing after
everyone in the conference room nodded in agreement that something had to be done.1

GM’s misfeasance resulted in congressional investigations and public scorn. But it also
attracted the interest of scores of lawyers, who had won some of the nation’s largest civil
settlements in “mass tort” lawsuits involving the tobacco industry, pharmaceutical
companies, and environmental disasters (see Table 8.4 on page 271). By July 2014, a
growing number of GM ignition-switch lawsuits were being consolidated into federal
district courts, and GM offered to create a settlement fund for victims in recognition of its
prospective liability. While the most affected litigants sought damages for wrongful death,
others sought damages for fraud, repair costs, and losses due to the decline in resale value
on nearly 3 million recalled vehicles. Notably, GM’s and other corporations’ legal problems
are ingrained in the American legal landscape. In 2012, British Petroleum paid almost $8
billion to victims who were harmed by the Deepwater Horizon oil spill in the Gulf of
Mexico. Victims of Toyota Motor Corporation’s sudden-acceleration design defect reached
negotiated settlements totaling $1.1 billion. For those cases alone, lawyers collected roughly
$227 million in attorneys’ fees and costs.2

While the GM litigation and many others like it create a firestorm of criticism, they also
invite the condemnation of lawyers and the American justice system. Beneath the
indignation and political rhetoric are persistent and long-standing allegations that lawyers
routinely abuse the adversary system by manipulating legal rules to their advantage.The
perception that the legal process remains deeply flawed is not new, and is shared by many
American citizens. In research conducted by the American Bar Association, respondents
complained that lawyers are greedy and manipulative, charge too much for their services,
and do not act diligently on cases that get bogged down in court with protracted delays. A
common refrain is that lawyers are susceptible to political influences, and that their insider
knowledge of the law and government allows them to “play the system.” Another ABA
study of several major metropolitan areas likewise found evidence that public distrust of
lawyers is rooted in perceptions that the judicial process is fraught with racial bias and
ethnic discrimination.3

410
This chapter examines adversarial civil litigation at the trial stage. It then turns to the
politics of reform movements, in particular tort reform. The last section considers how civil
litigation is being supplemented or replaced by alternative methods of dispute resolution.

411
Adversarial Civil Justice
Noncriminal disputes are the focus of civil actions filed in either federal or state courts.
Civil lawsuits are directed at making injured parties “whole” with monetary awards, or by
compelling parties to take corrective nonmonetary actions.4 When civil actions are brought,
pretrial and trial procedures affect a wide range of issues, including conflicts over tort
liability, compensating injured parties as a result of defective products, or breaches of
contract. Other common civil actions relate to issues of divorce and child custody, for
example, and calculating the equitable distribution of estate property.

Civil litigation is also distinct from the criminal trial process because it is governed by civil
procedure—a complex body of formal rules by which courts conduct trials to resolve
private disputes. Historically, understanding the rules of civil procedure was complicated by
federal and state courts having different sets of rules, a consequence of our judicial
federalism. Procedural reform was at first accomplished with the Rules Enabling Act and
the 1938 Federal Rules of Civil Procedure, which not only unified federal procedural rules
but also became widely adopted by states’ courts after the mid-twentieth century. Today,
federal judicial practice is controlled by the Federal Rules of Civil Procedure, whereas most
state courts have increasingly adopted their own rules or a variation of the federal rules.5 In
theory, the rules enable access to the justice system and permit courts to resolve civil
disputes through the disclosure of relevant information by the opposing parties.6 Still,
compliance is inherently complicated and an expensive process that not only requires legal
expertise but also raises questions about whether the goals of civil justice can ever be
reasonably obtained (Table 8.1).

412
A “Litigation Explosion”?
The complexity of civil litigation is often criticized as too expensive, elitist, capricious, and
unfair. For example, years ago a widely sensationalized McDonald’s “hot coffee” case led to
editorials calling the jury’s decision to award the plaintiff nearly $3 million after spilling hot
coffee on her lap in her car an “absurd judgment [that] is a stunning illustration of what is
wrong with America’s civil justice system.”7 Rebellious teens have sued their parents or
prom dates when they are disciplined or jilted. Obese persons have sued fast-food
restaurants for serving supersized French fries.8 And recently some law school students sued
their law schools to get back their tuition costs, because the economic downturn of the late
2000s has made it harder to find employment after graduation; they argue that law schools
are engaging in false advertising. Such civil suits are frequently attacked for what many
people consider frivolous lawsuits and costly trials brought by “shyster” trial lawyers.9 A
common perception is that lawyers litigate too frequently and spend most of their time
preparing court papers, writing briefs, and prolonging trials, which needlessly drives up
costs.10

Although some of the criticisms are valid, many are not. For one thing, attorneys are
ethically obliged not to bring meritless lawsuits, and judges are empowered to discipline
them for breaching that duty.11 Also, while some high-stakes civil litigation involves great
expense and produces large monetary awards, most disputes are in fact settled without
litigation. Most “ordinary” cases are over modest stakes ($10,000 or less). Attorneys spend
only about thirty hours for each side. And more often than not, cases are resolved by
negotiated settlements instead of trials. A seminal study reported that relatively little time is
spent on legal research, procedural matters, or trials12 (see Figure 8.1). Moreover, although
it is true that civil filings have steadily increased since the 1960s, the trend has resulted
from a “liability explosion” (an expansion of legislation that provided more court access and
litigation alternatives) rather than a “litigation explosion.” Thus, the increase in filings is
not necessarily proof that there has been a “litigation explosion.” In fact, empirical studies
of the issue indicate there is little evidence to show that citizens litigate too much, or that
lawyers are abusing the legal system in resolving disputes.13

413
Source: Derived from Carrie J. Menkel-Meadow and Bryant G. Garth, “Civil Procedure and Courts,” in The
Oxford Handbook of Empirical Legal Research, eds. Peter Cane and Herbert M. Kritzer (New York: Oxford
University Press, 2010), 679, 680–81.

414
Political cartoon lampooning some of the common perceptions of what it means to be
involved in a civil lawsuit

Bizarro used with the permission of Dan Piraro, King Features and the Cartoonist Group.
All rights reserved.

The political debate over tort reform (discussed later in this chapter) is but one

415
manifestation of the confusion created by conflating litigation and liability trends. The
distinction between the two becomes clearer upon learning that there have been several
transformations in recent decades concerning the way in which civil disputes are resolved.
With few exceptions, the rate of civil trials has been in sharp decline since the 1980s,
because judges and attorneys have increasingly used pretrial hearings and procedural rules
to reach negotiated settlements. That in turn has led to a profound shift away from formal
trials and has diminished the role juries play in civil disputes.14 At the same time, the
expense and delay have caused litigants to seek alternative methods of dispute resolution. In
short, civil justice has become increasingly privatized.

Figure 8.1 Average Lawyer Time Spent in Ordinary Civil Lawsuits

Source: Percentages do not equal 100 percent due to rounding. David M. Trubeck,
Austin Sarat, William L. F. Felstiner, Herbert M. Kritzer, and Joel B. Grossman, “The
Cost of Ordinary Litigation,” UCLA Law Review 31 (1983), 72, 91 (Table 3).

416
Types of Civil Cases
Nearly 17 million civil cases are annually filed in the state courts, a figure far exceeding the
number in the federal courts. The federal judiciary has slightly less than 272,000 annual
civil filings. Together, these figures underscore that roughly 70 percent of judicial business
involves civil cases.15 State caseloads predominantly consist of personal injury, debt
collection, landlord-tenant, divorce, mortgage, tax, business regulation, and ordinary will
and trust, or probate, lawsuits. Of these cases, while contract disputes are often litigated
(Figure 8.2), it is not unusual for over half of a court’s civil docket to be consumed with
issues of family law—divorces, paternity, child custody, and visitation cases.16

While federal courts adjudicate many of the same types of cases state courts handle, a large
majority consists of “statutory actions”—lawsuits over interpreting, applying, and enforcing
federal laws.17 These include antitrust, banking, bankruptcy, civil rights, civil forfeiture,
consumer, environmental, immigration, labor, securities, and Social Security cases, among
scores of others (see Figure 8.3). Notably, over a third of statutory actions involve prisoner
petitions, which typically involve inmate rights, habeas corpus claims, or motions to vacate a
sentence on constitutional grounds. Moreover, in contrast to state lawsuits, tort cases, such
as defective products (product liability) cases, comprise a quarter of federal civil litigation.18

Figure 8.2 Types of Civil Cases in State Courts

Source: National Center for State Courts, “Contract Cases Continue to Dominate
General Jurisdiction Civil Caseloads (Incoming Civil Caseload Composition in 17
General Jurisdiction Courts, 2010),” www.courtstatistics.org/Civil/20124Civil.aspx

417
 (last retrieved June 19, 2014).

Figure 8.3 Types of Civil Cases in Federal Courts

Source: Administrative Office of the U.S. Courts, “U.S. District Courts-Civil Cases
Commenced, by Basis of Jurisdiction and Nature of Suit, During the 12-Month
Period Ending September 30, 2012 and 2013 (Table C-2),” available at
www.uscourts.gov (last retrieved June 19, 2014).

418
The Parties to Civil Actions
The litigation status of persons filing civil actions is closely related to the influence they
wield in civil lawsuits. In adversarial combat, “repeat players,” or parties with greater
resources and more extensive litigation experience, have an advantage over “one-shotters,”
or parties with fewer capabilities and limited experience in the courts.19 Insurance
companies, public prosecutors, and banking entities are typical repeat players, whereas
citizens bringing a personal injury lawsuit as a result of an automobile crash or a divorce
case are usually one-shotters.

Since they routinely litigate as a cost of doing business or as a part of government

regulation, repeat players use to their benefit their institutional memory and litigation
expertise.20 By contrast, one-shotters are usually less interested in establishing or
overturning precedents and, instead, are more concerned about winning damage awards.
On a one-time basis, for instance, a spouse may seek a divorce and an acceptable settlement
of marital property and custody or visitation of children. Research demonstrates that the
litigation “haves” usually prevail over the “have-nots” at the trial level, simply because they
enjoy strategic advantages in litigation.21 The interplay between litigant status and legal
representation reinforces the same dynamics: lawyers representing one-shotters tend to be
nonelitist in their legal training and reputation, whereas counsel for repeat players enjoy
higher professional status and specialized skills, which, of course, improves their chances of
favorable results for their clients.22

Class Action Lawsuits

Although better-resourced and more seasoned repeat players enjoy many advantages,
disadvantaged “have-nots” may improve their chances of successful litigation by using class
action lawsuits and other legal resources that are mobilized by lawyers’ rights–advocacy
organizations.23 Class action lawsuits—lawsuits that can aggregate civil claims among
different litigants in either state or federal courts—originally were designed to provide
greater court access to plaintiffs sharing similar claims who might not otherwise sue because
of the complexity of the process or the high cost of doing so. Beginning in the 1970s, class
actions increasingly were used to hold big business accountable in a variety of legal
contexts, including consumer protection, environmental, antitrust, and securities fraud
litigation. As legal scholar Robert Kagan explains, in addition to giving “entrepreneurial
American lawyers potentially large fees,” class actions are effective tools “to threaten
companies with potentially enormous money damages” that would “deter them from
engaging in fraudulent, unfair, or hazardous business practices.”24

Still, class actions are politically controversial because they have also resulted in “mass tort

419
actions” and other civil claims seeking high damage awards. When a large number of
broadly dispersed individual claims are consolidated—as with the GM litigation discussed
at the outset of the chapter, or the BP Deepwater Horizon oil spill25—the sheer size of a
class action and whether it appropriately addresses all individuals’ claims in a common
fashion present special case management problems for the judiciary. Because of that, under
the direction of the Judicial Panel on Multidistrict Litigation (JPMDL, discussed in
Chapter Three), cases pending in multiple federal district courts may be consolidated and
transferred to a single federal district court. Subsequent court rulings have entrenched
JPMDL procedures into mass tort lawsuits, thus transforming them into “quasi-class
actions,” giving district courts authority to rule on pretrial issues of class certification (the
court order certifying that the class action can proceed if certain prerequisites are met),
pretrial discovery, “global” settlements (involving thousands of plaintiffs in complex tort
cases), and attorneys’ fees.26 As a result, the nature of a class action suit and the JPMDL
process enable many mass tort lawsuits to be resolved through the use of settlement funds,
which are then distributed as compensation to individual claimants (see Table 8.2).27

Platform supply vessels battle the fire on the off-shore oil rig Deepwater Horizon, an
environmental disaster that led to a large number of “mass tort” lawsuits.

U.S. Coast Guard

Third-Party Litigation Funding

An important trend in civil litigation is the rise of third party litigation funding—the
practice of allowing an independent third party (such as an insurance or investment
company or a hedge fund) with no direct connection to the claims of a lawsuit to fund a

420
civil litigant in exchange for receiving a share of the damages ultimately awarded. This
practice is based purely on a business model: financing litigation costs is an economic
decision that seeks an appropriate return on investment in litigation.28 A typical
arrangement stipulates that the private funder pays lawyers’ fees and other costs in exchange
for receiving between 20 and 50 percent of the damages awarded if the litigation is
successful. While gaining prominence in Europe, Canada, and Australia, such third-party
litigation financing is “still in its infancy but steadily growing” in the United States, making
it “one of the most significant developments in civil litigation today [because] it represents
a potential sea change in the character and policy implications.”29

The ethical prohibitions of champerty and maintenance (disallowing agreements between

litigants and nonlitigants to split litigation proceeds) prevent attorneys from sharing fees
with nonattorneys, and are barriers to widespread adoption of third-party funding of civil
litigation. Still, champerty restrictions are unevenly enforced in the states, and may be
circumvented if private funders make a funding arrangement with the client who is suing
(instead of with an attorney).30

421
 Source: Richard A. Nagareda, Mass Torts in a World of Settlement (Chicago: University Press of Chicago, 2007);
Julie Isaacson, “Terrorism and Mass Toxic Torts: An Examination of the James Zadroga 9/11 Health and
Compensation Act,” Fordham Environmental Law Review 25 (2014), 509–51; Barry F. McNeil and Beth L.
Fancsal, “Mass Torts and Class Actions: Facing Increasing Scrutiny,” Federal Rules Decisions 167 (Updated
August 5, 1996), 483–522.

Supporters of third-party funding contend that it increases access to courts for those who
cannot afford the high cost of litigation. An infrequent one-shotter litigant or a small or
growing business, for example, may join with a well-financed private funder to equalize the
litigation playing field. Or a multinational company may use such funding as a means to
offset or shift some litigation costs. Either way, third-party funding is analogous to other
legal practices, such as contingency fees (discussed in the next section).31

For critics, however, the investment practice exponentially creates the risk of lawsuit abuse.
Allowing independent third parties, whose sole interest is maximizing profits, may also
encourage frivolous lawsuits, violates professional ethics-related conflicts of interest, and

422
permits nonlawyers to engage in the “unauthorized practice of law.”32

423
Burden of Proof, Legal Remedies, and Damages
Civil claimants must prove their cases by a preponderance of the evidence, instead of
criminal law’s higher reasonable doubt standard. Under the preponderance standard, the
judge or jury weighs the evidence in terms of whether the allegations are probably more
true than not. Sometimes this is expressed in percentage terms: there must be at least a 51
percent certainty that the defendant is liable for harmful consequences. In some cases, a
higher standard, a “clear and convincing evidence” level of proof, is used because the
consequences of imposing liability are more serious, as in cases involving the termination of
parental rights and civil commitment. Under the clear and convincing standard, the proof
must show a greater certainty (beyond mere probability) that the allegations are true.
Through the use of percentages, the clear and convincing standard might roughly require a
75 percent certainty that the facts happened as alleged.33

In practical terms, the civil lawsuit is designed to secure a court order granting a party relief
in terms of specific legal remedies. In most civil cases, courts award monetary damages. In
general, damages consist of compensatory, punitive, or nominal awards. Compensatory
damages attempt to put injured parties back into the positions they were in before the
harm. By contrast, punitive damages aim to punish defendants but also deter them from
future violations of the law. Nominal damages symbolically deliver a positive outcome in
cases involving no harm, and juries may opt to award a nominal sum in certain instances.
Beyond monetary damages, a court may issue an injunction (a decree compelling the
defendant to perform or to stop doing a specific act) or a declaratory judgment (clarifying
the rights that the law affords). In general, nonmonetary relief is granted either in the
interest of fairness and equity or on a statutory basis that clarifies the legal rights or duties
in a specific legal context.34

424
Civil Lawsuits: The Trial and Appeal Process
The civil trial process begins after an injury creates a grievance that causes the plaintiff to
assert a legal claim against the allegedly responsible party. If the defendant denies liability,
then the claim becomes a legal dispute that is brought into court for resolution (see
“Contemporary Controversies Over Courts: The Dispute Pyramid” in Chapter One).
While legal disputes may be dropped or resolved at any time after the civil action is
commenced, those that go to trial involve a process of narrowing the legal issues through
pleadings and motions—a series of rule-based, pretrial activities that allow parties to gather
relevant information for trial preparation. During the pretrial stage, pretrial conferences are
held with the parties and the judge in an ongoing effort to clarify the facts and legal issues
of the case with an eye toward reaching a negotiated settlement. If a settlement is not
reached, a trial is held, and the judge (if it is a bench trial) or the jury decides the case and
renders a final judgment that can be enforced or appealed in a subsequent proceeding. The
civil trial and appeal process is diagrammed in Figure 8.4.

425
The Decision to Litigate
The decision to litigate and hire counsel is often a function of weighing a variety of factors
that make the time, effort, and expense of a lawsuit worthwhile. Clearly, there are a number
of disincentives to suing. Many citizens share an aversion to using the courts for personal
reasons, or because they may be ignorant about the legal process since they lack a
“consciousness of the law.”35 Moreover, unlike criminal trials, persons below the poverty
line are not constitutionally entitled to legal representation. In addition, with few
exceptions, civil litigants cannot shift the costs of incurring legal fees to the opposing party,
so each side must pay its own counsel’s fees. Although courts issuing final judgments will
routinely award to the winning party “court costs,” under the so-called American rule, the
losing party does not have to pay the attorney’s fees of opposing counsel. In most other
countries, losers bear some or all of the costs of litigation, including legal fees.36

Figure 8.4 The Civil Trial and Appeal Process

426
Changes since the 1950s have transferred most litigation costs onto the client instead of the
attorney. Before World War II, professional norms encouraged lawyers to charge their
clients by either fixed fee arrangements or offering clients a contingency fee agreement—a
billing practice that ties fees to obtaining a successful outcome. Lawyers rarely kept track of
their time, and in corporate practice, regular clients were billed at year’s end on the basis of
what the lawyers thought their services were worth. In the latter half of the twentieth
century, increased competition, the proliferation of lawyers, and the rise of large law firms
resulted in attorneys turning to the “billable hour” standard (discussed in Chapter Five).
Although contingency fees are still a part of legal billing practices in certain civil cases,
hourly billing is the dominant form of compensation for most litigation.37 However, if
there is a contingency fee agreement, the economics of legal practice dictates that lawyers
become “portfolio managers,” weighing the risk of taking a case against the anticipated

427
return if liability is imposed. As political scientist Herbert Kritzer explains,

While virtually every contingency fee practitioner wants to find highly lucrative cases,
such cases are relatively rare. Many cases presented to lawyers are not winnable, or
they do not offer a prospect of even a moderately acceptable fee. The contingency fee
practitioner seeks cases that offer a high probability of providing at least an acceptable
return, hoping to find some fraction of cases that present the opportunity to generate
a significant fee.38

The “portfolio of risks” is thus driven by economic self-interest, and a substantial number
of prospective clients are turned away or referred to other lawyers. Even so, the issue
remains hotly contested because lawyers representing the “victim” in personal injury cases
insist the contingency fee provides the “key to the courthouse.” Defense lawyers aligned
with business interests and the insurance industry, however, contend it is a “key to
enormous and untold riches” for unscrupulous plaintiffs’ lawyers.39

Finally, the decision to litigate also implicates the basic question of whether legal disputes
are best resolved by means other than the adversary process. In addition to using
“alternative dispute resolution” techniques (discussed in this chapter’s last section), only the
most significant civil cases, arguably, should be litigated and subject to the full adversary
trials.40 Under this view, shrinking judicial budgets and limited resources require courts to
use a “case triage” management strategy to filter out the most serious disputes from those
that could be handled in other less costly venues, such as an administrative or a
nonadversarial problem-solving tribunal (see Chapter One).

428
Filing Civil Actions: Pleadings and Motion Practice
Adjudication of civil disputes begins with the payment of a fee and the filing of a
complaint asserting that the court has jurisdiction over the dispute. Its main purpose is to
identify the relevant parties and legal allegations underlying the conflict. A final
requirement is to state what the parties seek in terms of legal remedies, which, in most civil
cases, is monetary damages.

Once a complaint is filed, the clerk of court issues a summons commanding the defendant
to appear in court, and directs the defendant to respond, often within thirty days, to the
plaintiff’s allegations. If there is a legal basis to do so, defendants who are sued may file a
counter claim, to which the original plaintiff responds by filing a reply.

Notice Pleading vs. Fact Pleading

Civil pleadings and pretrial motion practices are premised on “notice pleading.” In theory,
it is designed to give the parties fair notice of the general facts and legal issues in dispute.41
Yet, since notice pleading does not require the complaint to specify all the facts upon which
the legal claim is based, it encourages the filing of numerous discovery motions in order to
“uncover” any relevant fact in the case until the legal issues are no longer in dispute. Not
only does this lead to frequent revisions to a complaint, but it also has the potential to turn
the discovery process into protracted proceedings that increase litigation costs and delay
trials. Consequently, critics assert that the federal courts should adopt rules that replace
notice pleading with “fact-based” pleading—a reform that would require the parties to
delineate specific facts in support of their legal claims at the earliest stages of the litigation.
The movement toward fact-based pleading reform has grown in recent decades (it has been
adopted in roughly seventeen states), and the Supreme Court has expressed a preference for
fact-based pleading over notice pleading. Such developments have increased the likelihood
that civil cases will end at the pretrial stage.42

429
Motions of Dismissal and Summary Judgment
After the complaint is filed, many jurisdictions permit either party to file a motion asking
for dismissal of the case. Defendants, for example, may file a dismissal motion, arguing that
the complaint fails “to state a claim upon which relief can be granted.”43 Alternatively,
federal and many state courts permit either party to file a motion for summary judgment—
a motion asserting that there is “no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”44 If granted, the court resolves
the legal claims without further proceedings.

In the past two decades, the Supreme Court has indicated that summary judgment motions
should be encouraged even though they displace jury trials.45 Bell Atlantic Corporation v.
Twombly (2007) and Ashcroft v. Iqbal (2009), for example, set new “heightened pleading”
requirements that make it difficult to move a case past the pretrial stage and even to begin
the process of discovery. Twombly established the rule that complaints in antitrust cases
must include enough facts to create “plausible grounds” for asserting that a legal claim is
true before going to trial. Iqbal expanded Twombly’s “plausibility” standard to all civil
cases.46 In light of these rulings, it is not surprising that caseload statistics indicate that
summary judgment dispositions have dramatically risen, while the number of jury trials has
sharply declined.47 Of the roughly two hundred thousand federal civil cases in 2013, only 1
percent went to trial. More significantly, 86 percent terminated before pretrial, whereas in
1962 only 20 percent ended before trial and by 2002 nearly 70 percent of civil cases were
disposed summarily. Accordingly, these trends suggest a “new era in which dispositions by
summary judgment are a magnitude several times greater than the number of trials.”48

430
The Discovery Process and Pretrial Conferences
The general burdens and costs of litigating civil claims are closely tied to the time and effort
it takes for lawyers to gather key facts and evidence. As in the criminal justice system,
discovery of facts is governed by procedural rules that control all aspects of pretrial activity.

There are five basic types of discovery: interrogatories, requests for production, requests for
admissions, depositions, and motions for physical or mental examinations. With the
exception of depositions and motions for production, during the discovery process, parties
may only seek the information from parties in the case. Furthermore, though most court
rules allow a broad scope of discovery, the information sought generally must be relevant to
the legal issues at hand and not “privileged”—for example, the personal notes or “work
product” of opposing counsel.

Before 1990, the federal rules permitted discovery of “any matter, not privileged, which is
relevant to the subject matter involved in the pending action.”49 The judiciary, however,
has made it clear that discovery is not unlimited. Amendments to federal discovery practice
have moved toward a system of mandatory disclosure for certain basic facts, such as
revealing the names, addresses, and phone numbers of persons having discoverable
information. Because they are mandatory, the scope of discovery has been narrowed, and
discovery requests are now restricted to disclosing only facts “relevant to the claim or
defense of any party.” Only after good cause is demonstrated may a court order discovery
for matters relevant to the subject matter of the case.50

State and federal litigants may still use generic discovery motions to uncover key facts and
evidence. Two of the most common and cost-effective motions are a motion to answer
interrogatories—a set of questions directed at the opposing party about the basic facts of the
litigation event, such as learning the name and addresses of witnesses—and an
accompanying motion for production (requiring the opposing party to produce, or give
access to, tangible evidence, such as medical records, lost income statements, or
photographs).51 Another way to establish facts or legal issues that may not actually be in
dispute is by filing a request for admission to the opposing party,52 which requires the
defendant to respond to allegations in the complaint.

Notably, in 2005, the federal rules of discovery were amended to obtain the disclosure and
production of “electronically stored information” (ESI) that is stored in virtually any type
of computing device. In Riley v. California (2014), the Supreme Court unanimously held
that police must obtain a search warrant before investigating the contents of an arrestee’s
cell phone. ESI discovery rules are likely to be revised in the future because, in complex
litigation, “e-discovery” presents many practical problems for litigants and counsel.53

431
Depositions are an expensive but very effective discovery tool that solicits the sworn
testimony of a party or a witness.54 Not only do they offer a first glimpse of how witnesses
and counsel may perform at trial, but they also preserve the statements as evidence that can
confirm what was said if a witness has died prior to or is otherwise unavailable at trial.
Motions for physical or mental examinations are also a significant discovery tool because they
directly relate to establishing the basis for determining liability or damages.55

Pretrial Conferences
The pretrial conference purpose varies with the judge’s discretion, the applicable rules of a
court, the complexity of the case, and how interested the parties are in a negotiated
settlement. For example, such conferences may (1) establish a schedule for filing motions
and setting deadlines; (2) allow for a ruling on pending motions in a coordinated and
consolidated fashion, instead of on an ad hoc basis; (3) encourage settlement after discovery
is completed; and (4) help clarify issues relating to the presentation of evidence at trial. At a
minimum, most trial courts use pretrial conferences to simplify the legal issues, identify the
witnesses and expected evidence that will be used at trial, and explore the possibility of a
negotiated settlement. As a result, the introduction of pretrial conferences has also
expanded the “managerial” role of judges in supervising discovery and related settlement
activities, as well as virtually causing jury trials to “vanish.”56

432
Trial, Judgment, and Appeal
Whereas the Sixth Amendment affords criminal defendants the right to a “speedy and
public trial” by an impartial jury, the Seventh Amendment guarantees civil litigants a jury
trial only if the amount in controversy is more than $20. This limitation, however, applies
only to federal litigation, and state courts are free to determine the amount in controversy
for having a jury trial. Civil trials are conducted in the same way as criminal trials (see
Figure 7.1, “The Stages of Trial and Presentation of Evidence,” in Chapter Seven).

The role of civil juries is distinct from that of criminal cases and is often misunderstood.57
One long-standing misperception is that civil juries are too quick to deliver “runaway
verdicts.” Critics contend that they result in (1) a high number of jury awards favoring
plaintiffs in tort cases, (2) high jury awards in malpractice and product liability cases, and
(3) disproportionate and arbitrary awards of punitive damages.58 Yet empirical studies find
that the rate of civil trials has steadily decreased over time and that juries render verdicts
and damage awards that are, for the most part, modest; however, in some categories of tort
cases, there are frequently large monetary awards.

In the Civil Justice Survey of State Courts study of seventy-five of the most populous
counties in the United States, researchers reported that the number of civil trials fell by over
50 percent from 1992 to 2005. Moreover, median damages awards from juries declined
from a high in 1992 ($72,000) to a low in 2005 ($43,000)—a 40 percent decline. These
figures underscore the trend toward the “vanishing trial.”59

Juries, nonetheless, decide about 70 percent of all general civil trials, and plaintiffs win
roughly six out of ten cases, with a median damage award of $28,000.60 Still, only 60
percent of all state civil trials involve tort claims decided by juries. The most prevalent cases
are motor vehicles (35 percent) and medical malpractice (9 percent). Across all areas of tort
liability, plaintiffs only prevailed slightly more than half the time (52 percent), and the
median award was only $24,000. In less than 1 percent of all civil trials, plaintiffs won the
most in animal attack cases, but in medical malpractice cases, plaintiffs only won about one
of every five cases, though the median recovery is $400,000 (see Table 8.3).

After the trial, the next step is the enforcement of the judgment against the liable party, if
there are no intervening posttrial motions that upset the verdict or if there is no appeal. For
many civil litigants, though, the reality and procedural complexity of securing a favorable
judgment, or in avoiding liability, is time-consuming, frustrating, and costly.

433
434
Legend: NR = Data Not Reported
Source: Lynn Langton and Thomas H. Cohen, Civil Bench and Jury Trials in State Courts, 2005 (“Civil Justice
Survey of State Courts”) (October 2008, NCJ 223851), available at www.bjs.gov (last retrieved June 26, 2014).
This study used data from 2005 and examined the nation’s seventy-five most populous counties. “NR, Not
Reported”

435
The Politics of Tort and Civil Litigation Reform
In its 2014 report on the most offensive “judicial hellholes,”61 the American Tort Reform
Association (ATRA) listed six judicial districts as critical forums for “junk lawsuits”—
lawsuits exhibiting systematic bias against small businesses. At the top of the list was
California, a state that is a “breeding ground for consumer class actions, disability-access
lawsuits and asbestos claims.” The other hellholes—Louisiana, New York City, West
Virginia, Madison and St. Clair Counties (in Illinois), and South Florida—are “magic
jurisdictions” that “personal injury lawyers are drawn to like flies” in seeking large
multimillion-dollar verdicts against “mom-and-pop” establishments.62

In recent decades, the ATRA has campaigned for reforms, such as (1) placing legislative
caps on jury awards for punitive and noneconomic damages, (2) enacting asbestos litigation
and other mass tort reform, (3) limiting the number of class action lawsuits filed in state
and federal courts, and (4) controlling attorneys’ fees and imposing procedural sanctions on
lawyers who bring frivolous lawsuits.63 Other proposals—which include restricting health
care liability; ending abusive food industry, securities, and patent litigation; and preventing
state attorneys from hiring contingency fee lawyers in suits targeting big business—have
been the persistent focus of anti-tort reform efforts since President Barack Obama’s
election.64

Predictably, the trial bar responds that “tort reform” is a misleading public relations ploy
that paints corporations in a sympathetic light, and would cut back on access to courts and
fundamental rights. The American Association for Justice (AAJ), for example, contends that
the architects of the “tort reform” disinformation campaign are only a few large
corporations, such as Merck (Vioxx), W.R. Grace (asbestos), Ford (Pinto), BP (Deepwater
Horizon), and others, that in turn rely on the public policy and legal activities of the Civil
Justice Reform Group (CJRG) and well-funded special interest groups, like the U.S.
Chamber of Commerce’s Institute for Legal Reform, the American Legislative Exchange
Council, and academic thinktanks, such as the George Mason law school’s Searle Civil
Justice Institute.65

Whether the anti-tort and civil reform movement is legitimately targeting the problems of
civil litigation cost, delay, and litigiousness remains an unresolved question and the subject
of ongoing academic debate.66 Still, empirical studies consistently show that civil trials are
declining, procedural summary dispositions increasing, and plaintiffs rewarded with
relatively modest success rates and damage awards in most areas of civil litigation.67 Some
researchers, moreover, argue that the way in which national and local news outlets
selectively report “tort tales” (misleading accounts of jury verdicts) promotes the public
perception that trial lawyers file frivolous lawsuits or that juries are out of control in
delivering large damage awards.68

436
The front cover of American Tort Reform Foundation’s report Judicial Hellholes

Courtesy of the American Tort Reform Association

In short, reforming the civil justice system is politically contentious and hard fought. Also,
reform proposals vary widely and their enactment is uneven. Table 8.4 summarizes several
tort reform objectives and the number of states in which they have been enacted. On the

437
federal level, Congress regularly holds hearings on topics involving lawsuit abuse, class
actions, and contingency fees.69 In the last couple of decades, class action filings and
certifications have been substantially restricted by the Private Securities Litigation Reform
Act of 1995 and the Class Action Fairness Act of 2005. In addition, several Supreme Court
justices have indicated strong support for these limitations and others involving class
actions. (For further discussion, see “Contemporary Controversies Over Courts: The
Roberts Court and Class Action Lawsuits”).

Source: Derived from National Conference of State Legislatures, “Medical Liability/Medical Malpractice Laws”
(updated August 15, 2011),” available at www.ncsl.org (last retrieved June 27, 2014); American Tort Reform
Association, “ATRA Tort Reform Record, (September 2013),” available at www.atra.org (last retrieved June 27,
2014).

438
Contemporary Controversies Over Courts

439
The Roberts Court and Class Action Lawsuits
The Federal Rules of Civil Procedure provide for “class action” suits—suits filed by individuals for
themselves and all others who have suffered the same injury. That enables individuals who have suffered
small monetary damages to bring lawsuits they might not otherwise have brought because of the high cost
of litigation. The FRCP also permit suits aimed at punishing businesses and corporations for defective and
injurious products or practices with large damage awards. Specifically, Rule 23 provides that

one or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the
class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the
class....In any class action maintained under [this rule], the court shall direct to the members of the class the
best notice practicable under the circumstances, including individual notice to all members who can be
identified.

The scope of this rule, though, was limited in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), which
held that when a representative of a class action suit refuses to pay the cost of giving actual notice to all
reasonably identifiable class members, federal courts are required to dismiss the suit; in Eisen, representatives
had to notify 2.25 million class members at a cost of $225,000.

Federal courts generally tend to be more favorable to defendant businesses and corporations than state
courts, which tend to be more favorable to consumers. Hence, businesses and corporations have tried to
move such cases from state courts into federal courts. Large class actions brought in federal courts frequently
are consolidated into multidistrict litigation. Due process requires those bringing a suit to send, publish, or
broadcast a notice of the suit to all potential members of a class, permitting them to opt out of the suit. If a
settlement is reached, the class must be given notice of the proposed details, and likewise notified of any
awards that result from a judgment.

Class action lawsuits are used because of increased efficiency and lower costs of litigating other similar cases.
They also avoid conflicting rulings on the same dispute from courts in different jurisdictions. In addition,
they may force changes in the behavior of defendants by requiring them to pay large damage awards or to
refund the cost of and replace defective and injurious products. As a result, automobile, drug, and tobacco
companies, among others, have increasingly confronted expensive and lengthy class action litigation.

Not surprisingly, class actions have long been criticized by businesses and corporations, the U.S. Chamber
of Commerce, and the Republican Party. One criticism is that they encourage frivolous and abusive suits,
usually entail costly and protracted litigation and large attorneys’ fees, and unfairly punish businesses, while
class members often ultimately receive little or no benefits from the suits. Business groups have long lobbied
for legislation making it easier to move class action suits from state to federal courts, making it harder to
certify member classes, and limiting punitive damage awards. They also contend that trial lawyers file these
suits in states and counties known to favor consumers.

By contrast, consumer advocates, trial lawyers, and the U.S. Judicial Conference have opposed such
changes. They counter that the federal courts are already overworked and ill equipped to deal with such
suits, as well as that consumers would be discouraged from bringing such suits.

The lobbying by business interests, nonetheless, paid off in 2005, when Congress passed and Republican
president George W. Bush signed into law the Class Action Fairness Act (CAFA). That law moved from
state to federal courts large, interstate class action lawsuits brought by consumers against businesses for fraud
and faulty products. Under the CAFA, class action suits seeking $5 million or more remain in state courts
only if the primary defendant and more than one-third of the plaintiffs are from the same state. Otherwise,
if less than one-third of the plaintiffs are from the same state as the defendant and more than $5 million is

440
sought, the case may be filed in a federal district court. The CAFA also limits attorneys’ fees when plaintiffs
only receive discount coupons on products instead of financial settlements and by linking the fees to the
coupon’s redemption rate or the actual hours spent working on the case.

In addition, President Bush appointed two members of the Supreme Court—Chief Justice John G.
Roberts, Jr., and Justice Samuel Alito—who had records of opposing class action suits. And, in turn, a bare
majority of the Roberts Court has moved to limit such lawsuits in several rulings. In AT&T Mobility v.
Concepcion, 131 S. Ct. 2541 (2011), for example, consumers disputed the validity of a cell phone contract
after they were charged $30 in sales tax after buying cellular phone service that they thought would be cost-
free. As with many commercial transactions, the contract had a boilerplate mandatory binding arbitration
clause, plus another that waived their right to sue in a class action. Still, a bare majority of the Supreme
Court ruled that a state law that nullified the waiver in the event of unconscionable (i.e., unenforceable)
contract was preempted by the Federal Arbitration Act (FAA), which meant that the consumers had to
arbitrate and could not challenge the contract’s enforceability in a federal class action.

Moreover, in a widely watched case involving the largest “class action” suit ever, Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541 (2011), a bare majority of the Roberts Court overturned the certification of a
nationwide class of some 1.5 million female employees of Walmart, who claimed that the company
systematically discriminated against them in violation of the Civil Rights Act of 1964. Writing for the
Court, Justice Antonin Scalia held that such a class was too large and inconsistent with the federal rules of
civil procedure—specifically, Rule 23(a). Walmart has some 3,400 stores across the country (each with its
own managers) and therefore was entitled to individual determinations of discrimination and employees’
eligibility for back pay. In other words, Rule 23(a) requires showing a commonality that is shared by each
member of the class and a single indivisible remedy that provides the same relief to each class member. The
Roberts Court’s four most liberal members—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia
Sotomayor, and Elena Kagan—agreed that Rule 23 permits class action suits seeking injunctions or
declaratory judgments and does not generally allow claims solely for monetary payments, but otherwise
dissented. In their view, the women’s lawyers had presented enough evidence “that gender bias suffused
Wal-Mart’s company culture.”

A majority of the Roberts Court in a few cases has, nonetheless, upheld some class actions. In Shady Grove
Orthopedic Associates, P.A. v. Allstate Insurance Co., 130 S.Ct. 1431 (2010), a badly divided Court held that
Rule 23 preempted a New York law prohibiting class actions, thus permitting a defendant insurance
company to be sued for not paying statutory interest penalties on overdue payments of insurance benefits
owed under no-fault automobile insurance policies. Similarly, in Smith v. Bayer Corporation, 131 S. Ct.
2368 (2011), a unanimous Court ruled that a lower federal court, after denying class certification, lacked
the power to stop a state court from certifying a similar class against the same defendant in a subsequent
proceeding. Also, in Brown v. Plata, 131 S.Ct. 1910 (2011), Justice Kennedy joined with the four most
liberal justices in upholding a class action suit against California prison officials for violating the Eighth
Amendment because of prison overcrowding and the conditions of inmates, which required the state to
release thousands of inmates and to improve the living conditions of California prisoners.

For further reading, see Robert H. Klonoff, “The Decline of Class Actions,” Washington University Law
Review 90 (2013), 72–830; Christopher P. Banks and John C. Blakeman, The U.S. Supreme Court and New
Federalism: From the Rehnquist to the Roberts Court (Lanham, Md.: Rowman & Littlefield, 2012); Judith
Resnick, “Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v.
Rogers,” Harvard Law Review 125 (2011), 78–170.

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Alternative Dispute Resolution
“We must move away from total reliance on the adversary contest for dispute resolution,”
declared Chief Justice Warren Burger in his 1984 annual state of the judiciary address. “For
some disputes,” he observed, “trials will be the only means, but for many claims, trials by
the adversarial contest must in time go the way of the ancient trial by battle and blood. Our
[adversarial] system,” he concluded, “is too costly, too painful, too destructive, too
inefficient, for a truly civilized people.” Notably, the chief justice thought that judicial
initiatives to change the federal rules of discovery were a step in the right direction. For
Chief Justice Burger, they would help counter the perception that lawyers were “hired
guns” instead of “healers,” an image created by the high cost of litigation, burgeoning
caseloads, and the eagerness of attorneys to advertise their services as if they were selling
“mustard, cosmetics, laxatives, or used cars.”70

Chief Justice Burger, however, failed to stress that the alternative dispute resolution (ADR)
movement had gained considerable traction in the 1980s. Prompted by his call to study the
use of less costly and more efficient methods to resolve disputes at the Pound Conference
on the Causes of Popular Dissatisfaction With the Administration of Justice in 1976, the
academic and legal communities began to adopt a variety of nonadversarial alternatives to
achieve civil justice. Chief Justice Burger’s support for ADR was the backdrop for law
professor Frank Sander’s seminal lecture, delivered at the Pound Conference, suggesting
that a “multi-door” courthouse be created, a reform that would allow clients to pick among
a range of ADR options, including arbitration, mediation, and neutral third-party fact-
finding, to resolve conflicts. The heightened academic interest in ADR pushed the ABA
and the nation’s law schools to incorporate ADR into their agendas and graduate school
curricula.71 Table 8.5 illustrates alternative dispute resolution and settlement practices.

442
443
 Sources: Elizabeth Plapinger and Donna Stienstra, ADR and Settlement in the Federal District Courts: A
Sourcebook for Judges & Lawyers (Washington, D.C.: Federal Judicial Center, 1996), 60–69; Henry H. Perritt,
Jr., “Dispute Resolution in Cyberspace: Demand for New Forms of ADR,” Ohio State Journal on Dispute
Resolution 15 (2000), 675–703.

ADR has become an institutionalized element in the United States and in other legal
systems throughout the world (see “In Comparative Perspective: The Global Expansion of
ADR”). In the public sector, over 1,200 ADR programs have been established by or in
conjunction with state courts as “court-connected” or closely related community initiatives
that work with public officials. In Florida, over sixteen thousand individuals have been
trained as state mediators to assist in administering at least one hundred different mediation
programs.72 In other states, ADR is seen as an attractive fiscal solution to cut costs and
increase state revenues. In North Dakota, agricultural mediation services were expanded in
order to help oil businesses resolve mineral rights disputes more efficiently, thus
encouraging economic development; but, in Connecticut, a large spike in mortgage defaults
prompted the state to provide homeowner mediation services with banks; and, in New
Jersey, caps were placed on arbitration awards given to public safety workers as a means to
save money.73 Finally, many state courts have experimented with or adopted a wide variety
of ADR tools, including mediation, early neutral evaluation, arbitration, settlement

444
conferences, and summary jury trials, as part of their adjudication processes or by issuing
ADR referrals to private entities.74

On the national level, Congress has supported the use of ADR in the federal courts by
enacting the Civil Justice Reform Act of 1990 (CJRA) and the Alternative Dispute
Resolution Act of 1998 (ADRA). Whereas the CJRA simply encouraged the use of ADR
methods with the help of funding incentives, the CJRA mandated that trial courts provide
ADR services to civil litigants. Thirty-four districts authorize the use of at least two ADR
methods. Typically, these districts allow mediation and early neutral evaluation, or
arbitration and mediation, or sometimes all three methods. Whereas twenty-seven districts
allow mediation only, another twenty-five districts vest power in the courts to use
mediation, arbitration, early neutral evaluation, or settlement conferences. The remaining
districts authorize other ADR methods, including summary jury trials and case evaluations
(a quasi-arbitration method that is used in cases arising under state law, and using state
tribunals). The latest innovation is establishing mediation programs for pro se litigants. In a
majority of districts, the judge has the discretion to make an ADR referral, and most
districts put the onus of paying for the fees of the third-party mediator on the parties.75

As in the state courts, ADR’s impact is considerable: in 2011, one study reported that data
compiled from forty-nine federal district courts showed that roughly twenty-eight thousand
were processed by using ADR programs, with mediation remaining the most popular
choice. Similarly, ADR has gained a significant foothold in the federal executive branch, as
Justice Department lawyers have turned to it in many cases. Also, it is widely adopted in
the private sector because there are a plethora of fee-based companies offering ADR
services, and a growing number of corporations have institutionalized arbitration,
mediation, and other in-house grievance procedures as preferred methods to deal with
workplace conflict. Standardized provisions for binding arbitration (in lieu of pursuing
court lawsuits) are now widely used in consumer goods, securities brokerage, construction,
and employment contracts as well.76

Proponents of ADR observe that the methods are advantageous because (1) they give
disputants more control over managing their personal conflict, (2) they protect individual
privacy by using confidential sessions, and (3) they reduce the time, cost, and delay
associated with dispute adjudication.

On the other hand, opponents counter that (1) they are too cumbersome and slow, (2) they
are prone to selecting third-party neutrals that are biased, and (3) they remain unproven
methods that do not considerably save time or cost in processing disputes. In criticizing
summary trials, Judge Richard Posner adds another general objection. The benefits of
privacy and confidentiality are outweighed by the cost of having the credibility of witnesses
evaluated by the judge or jury in public proceedings that determine the facts underlying
disputes.77

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In all likelihood, the debate over ADR will not lessen anytime soon. The evidence is
generally inconclusive—although some ADR experts have concluded that the wide
popularity of using business arbitration processes, which is pejoratively labeled “the new
litigation,” is being undermined by the weight of growing criticisms and strains for a
number of reasons.78 What is clear, however, is that ADR has found acceptance in the legal
culture and remains a viable choice for litigants. Although published reports and research
often divide on the question of whether ADR is actually less costly and time-intensive than
adversary trials, it appears that disputants often receive significant personal satisfaction from
ADR procedures. However, the greatest danger to ADR may be not that it works, but
rather that such methods become more like the traditional adversary method they are
replacing. As one court watcher put it: “As lawyers have colonized the ADR field, they have
made its processes more comfortable for them [and arbitrations] look more and more like
trials,” replete with formal rules, extensive discovery, and a variety of scheduling and case
backlog problems.79 If that trend continues, the promise of ADR will eventually evaporate.

446
In Comparative Perspective

447
The Global Expansion of ADR
Although most legal systems rely upon courts to resolve legal conflicts, a growing worldwide trend has been
toward the adoption of “alternative dispute resolution” (ADR) methods. The movement to ADR is
prompted by many of the same concerns that plague the administration of justice in the United States—
high litigation costs and extensive delay, along with a general frustration that invoking the legal system will
not yield tangible or fair results. Either in conjunction with or apart from the courts, ADR offers would-be
litigants the flexible choice of using mediation, conciliation, arbitration, or other tools of conflict resolution
to settle public or private disputes that threaten to disrupt the social peace. Its distinctly Anglo-Saxon origin
has allowed ADR to become more readily infused into common law jurisdictions such as the United
Kingdom, Canada, and Australia. Even so, other regions that are influenced by civil law or have hybrid legal
systems, such as Indonesia, India, and Japan, have begun to incorporate ADR into their legal cultures to
varying degrees.

In the United States, ADR was originally conceived as embracing a “multi-door” approach that let courts
assist disputants’ access to compulsory or nonmandatory ADR options. Once a lawsuit was filed, the
judiciary referred parties to multiple ADR “doors” or pathways to resolve differences. Over time, the United
States and other common law systems have increasingly adopted a “multi-option” response, which situates
ADR services within or outside the formal court system, either before or after litigation has commenced. A
hallmark of the multi-option approach is to encourage or require the parties to use ADR as a first option
before going to court. In the United Kingdom, either on its own accord or if a party requests it, courts can
leverage parties into using mediation by (1) issuing a “stay” upon the proceedings, which suspends court
action until mediation is tried, or (2) issuing a cost-sanction order that makes litigants assume the costs of
litigation if they unreasonably refuse to mediate. Similarly, in many Australian courts, disputants must file a
“genuine steps” statement outlining the efforts they have taken to resolve conflicts before filing a suit. Such
pre-action initiatives typically involve taking advantage of ADR services that are available outside of the
legal system, another characteristic of the multi-door design. Moreover, as in the United Kingdom, the
failure to comply will not nullify the action, but it will be taken into account when deciding who should
bear litigation costs.

Formal and informal ADR methods are also being used as a flexible and multifaceted conflict resolution
tool across a variety of civil law jurisdictions and mixed legal systems. In India and Indonesia, traditional
forms of community mediation are still practiced, but increasingly they are supplemented or blended into
other ADR mechanisms that are statutorily defined and available for use either in or out of court. Under the
Legal Services Authorities Act of 1987, Indian disputants may reach judicial settlements under Lok Adalat
(People’s Court) procedures, a type of adjudication that was widely used in ancient India. Lok Adalats are
different than regular Indian courts because their judges, acting as conciliators and without the constraint of
formal procedural rules, can directly interact with the parties in an effort to persuade them to settle, using
principles of fair play and simple justice. While Indian law also recognizes the binding effect of arbitration
agreements and the use of conciliation or mediation in specialized areas of commercial trade or domestic
affairs, Lok Adalats are responsible for resolving millions of minor civil and criminal cases. Likewise, while
the Indonesian legal system embraces arbitration and other ADR methods, such as negotiation, conciliation,
and receiving “expert judgment” (or a legal opinion by an arbitral body), it also has a steep tradition in
settling private disputes and minor criminal cases through Adat law (customary law) mediation techniques.
Used in rural and indigenous societies, Adat functionaries cajole parties to enter into “consent agreements,”
or “musyawarah-mufakat,” that restore social peace and spiritual balance through receipt of statements of
regret, acts of community service, or the payment of fines and compensation to victims.

A final characteristic of the growing global ADR movement is the proliferation of sophisticated
administrative regulations and specialized “centres” that typically, but not exclusively, address arbitration
cases. The United Nations Commission on International Trade Law (UNCITRAL) Model Law of 1985
and its 2006 amendments have become a major influence in regularizing domestic and international

448
commercial arbitration standards across the globe, especially in civil law countries seeking to modernize
their legal systems. The emergence of centers has had the same effect.

For further reading, see Global Perspectives on ADR, edited by Carlos Esplugues and Silvia Barona
(Cambridge, U.K.: Intersentia, 2014); Bernadine Van Gramberg, Managing Workplace Conflicts: Alternative
Dispute Resolution in Australia (Sydney, New South Wales, Australia: Federation Press, 2006); United
Nations Commission on International Trade, “UNCITRAL Model Law on International Commercial
Arbitration (1985), with amendments as adopted in 2006,” available at
www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html (last retrieved June
29, 2014); Japan Commercial Arbitration Association, “The Nuclear Damage Claim Dispute Resolution
Center,” JCAA Newsletter 28 (September 2012), available at
www.jcaa.or.jp/e/arbitration/docs/newsletter28.pdf (last retrieved June 29, 2014); and U.S. Department of
Justice, “September 11th Victim Compensation Fund,” available at
www.justice.gov/civil/common/vcf.html (last retrieved June 29, 2014).

449
Chapter Summary
The nature of the civil justice system is largely defined by rules of civil procedure. Civil
litigation is complicated and arcane and has been criticized for fostering litigiousness,
excessive cost, and delay. But there is little empirical evidence to support that view. Nearly
70 percent of trial cases involve civil litigation, typically resolving tort, contract, and real
estate disputes. The status of civil litigants, whether they are “repeat players” with extensive
resources and litigation experience or “one-shotters” who have less means and exposure to
court processes, often helps repeat players to prevail in trial courts. In all civil actions, the
parties in the litigation ask for legal remedies that usually involve monetary damages.

Once a civil lawsuit is filed, the trial and appeal process begins with the filing of the
complaint and the receipt of an answer to the allegations and any relevant counterclaims.
Cases move to the trial stage with the exchange of pleadings through pretrial motion
practice that is premised on a theory of “notice pleading,” or simply giving the opposing
party just enough information to mount a legal defense. Still, a growing trend is the
adoption of heightened, or more particularized, “fact-based” pleading. The movement
toward fact-based pleading is significant because it increases the likelihood that the case will
end through summary dispositions that have the effect of replacing jury trials. Key pretrial
activities consist of filing discovery motions, such as interrogatories, requests for
production, and requests to take depositions. In conjunction with the discovery process,
pretrial conferences are used to clarify issues, set deadlines, and explore negotiated
settlements. Cases that are not settled move to trial, final judgment, and appeal.

Whether the civil litigation system is broken or unfair has generated calls for tort and
related civil justice reform, including the use of “alternative dispute resolution” (ADR)
methods. The debate over reform is highly contentious and politicized. Conservative
groups favor imposing caps on jury awards, limiting damage awards, and restricting class
actions in order to protect business interests. By contrast, liberals and trial lawyers generally
oppose those reforms because they would not keep large corporations accountable for their
misfeasance and would deny victims access to courts. The politics surrounding civil
litigation reforms has resulted in the enactment of state and federal reform legislation and
Supreme Court decisions that restrict damages, attorneys’ fees, and class actions. Moreover,
ADR services, which include arbitration, mediation, early neutral evaluation, summary jury
trials, and other mechanisms that are used in or out of court, are widely available in the
states and the federal government. There is a growing trend to adopt ADR around the
world. But an unresolved question is whether ADR is sustainable in light of the criticism
that it is not that much better than the much-maligned civil justice system it is designed to
replace.

450
Key Questions for Review and Critical Analysis
1. A long-standing criticism of the civil justice system is that it is too costly, delay
ridden, unfair, and inhibits access to the courts. The use of contingency fees has been
widely accepted, though heavily criticized, as a means to facilitate court access. The
rise of third-party litigation funding is not widely accepted and has been subject to
criticisms. Should third-party funding of lawsuits be just as accepted as the
contingency fee? Why or why not?
2. What are the strengths and weaknesses of class action lawsuits? Should they be
further restricted and, if so, in what ways and why?
3. Is it a fair criticism to assert that the civil justice system must be reformed because
“litigation costs too much,” or that “justice delayed is justice denied”?
4. Do “alternative dispute resolution” (ADR) methods appear reasonable, and if so,
why?

451
Web Links
1. Federal Rules of Practice and Procedure
(www.uscourts.gov/RulesAndPolicies/rules.aspx)
The Administrative Office of the U.S. Courts provides information about the
federal rulemaking process and access to the current rules of federal practice
and procedure, pending and proposed amendments.
2. American Tort Reform Association (www.atra.org/about/mission)
A national organization devoted to enacting tort and civil justice reform. It
provides information about current tort reform issues, plus legislative proposals
and related research.
3. American Association for Justice (www.justice.org)
An association of trial lawyers that provides general news, resources, and
research.
4. American Arbitration Association (www.adr.org) and the International Centre for
Dispute Resolution (www.icdr.org)
The American Arbitration Association and its global counterpart provide
information about rules and procedures, annual reports, forms, and educational
research links.

452
Selected Readings
Bornstein, Brian H., Richard L. Wiener, Robert F. Schopp, and Steven L. Willborn,
eds.Civil Juries and Civil Justice: Psychological and Legal Perspectives. New York:
Springer, 2008.

Doherty, Joseph, Robert T. Reville, and Laura Zakaras, eds. Confidentially, Transparency,
and the U.S. Civil Justice System. New York: Oxford University Press, 2012.

Esplugues, Carlos, and Silvia Barona, eds. Global Perspectives on ADR. Cambridge, U.K.:
Intersentia, 2014.

Haltom, William, and Michael McCann. Distorting the Law: Politics, Media, and the
Litigation Crisis. Chicago: University of Chicago Press, 2004.

Hans, Valerie P. Business on Trial: The Civil Jury and Corporate Responsibility. New
Haven, Conn.: Yale University Press, 2000.

Kagan, Robert A. Adversarial Legalism: The American Way of Law. Cambridge, Mass.:
Harvard University Press, 2001.

Kritzer, Herbert M. Let’s Make a Deal: Understanding the Negotiation Process in

Ordinary Litigation. Madison: University of Wisconsin Press, 1991.

Kritzer, Herbert M.. Risks, Reputations, and Rewards. Stanford, Calif.: Stanford University
Press, 2004.

Kritzer, Herbert M., and Susan S. Silbey, eds. In Litigation: Do the “Haves” Still Come
Out Ahead? Stanford, Calif.: Stanford Law and Politics, 2003.

McGarity, Thomas O. The Preemption War: When Federal Bureaucracies Trump Local
Juries. New Haven, Conn.: Yale University Press, 2008.

453
Nagareda, Richard A. Mass Torts in a World of Settlement. Chicago: University Press of
Chicago, 2007.

Redish, Martin H. Wholesale Justice: Constitutional Democracy and the Problem of the
Class Action Lawsuit.Stanford, Calif.: Stanford Law Books, 2009.

Shapo, Marshall S. An Injury Law Constitution. New York: Oxford University Press, 2012.

454
EndNotes
1. Anton R. Valukas (of Jenner & Block), “Report to Board of Directors of General Motors
Company Regarding Ignition Switch Recalls (May 29, 2014),” available at
www.washingtonpost.com (last retrieved June 13, 2014), 2, 5.

2. See Michael A. Fletcher and Rebecca Robbins, “GM Offers Millions to Compensate
Some Ignition Switch Victims, Families,” Washington Post (June 30, 2014), available at
www.washingtonpost.com (last retrieved June 30, 2014); Ashby Jones, “Plaintiffs’ Lawyers
Take Aim at GM for Recall,” Wall Street Journal (June 8, 2014), available at
http://online.wsj.com (last retrieved June 13, 2014). See also Matthew L. Wald and Bill
Vlasic, “‘Upset’ G.M. Engineer Spoke in House Inquiry,” N.Y. Times (May 28, 2014),
available at www.nytimes.com (last retrieved June 13, 2014); Hilary Stout and Bill Vlasic,
“G.M. Suits Will Proceed as One Case in New York,” New York Times (June 9, 2014),
available at www.nytimes.com (last retrieved June 21, 2014).

3. American Bar Association, Judicial Division Lawyers Conference, “Perceptions of

Justice: A Dialogue on Race, Ethnicity, and the Courts (2006–2011): Summary Report,”
available at www.americanbar.org (last retrieved June 13, 2014); American Bar Association
Section of Litigation, “Public Perceptions of Lawyers: Consumer Research Findings (April
2002),” available at www.cliffordlaw.com/abaillinoisstatedelegate/publicperceptions1.pdf
(last retrieved June 13, 2004), 4. See also American Bar Association, “Perceptions of the
U.S. Legal System,” available at www.abanet.org/media/perception/perceptions.pdf (last
retrieved November 18, 2004) (Table 4), 115 (reporting that 74 percent of those surveyed
thought lawyers were more committed to winning their cases than guaranteeing that justice
was served; 73 percent believed lawyers spent too much time trying to get criminal
defendants released on legal technicalities; and 69 percent asserted lawyers were more
interested in making money than in representing clients).

4. Put differently, civil litigation can be thought of as “the investment of scarce resources to
achieve a future result...[that] include[s] recovering money (plaintiffs) or avoiding paying
money (defendants), stopping something from happening or causing some act to be carried
out.” David M. Trubeck, Austin Sarat, William L. F. Felstiner, Herbert M. Kritzer, and
Joel B. Grossman, “The Cost of Ordinary Litigation,” UCLA Law Review 31 (1983), 72,
76.

5. John B. Oakley, “A Fresh Look at the Federal Rules in State Court,”Nevada Law Journal
3 (2003), 354, 355 (finding that “not only has the trend toward state conformity to the
federal rules stopped accelerating—it has substantially reversed itself”).

6. Arthur R. Miller, “Pleading and Pretrial Motions: What Would Judge Clark Do?”
(Prepared for the 2010 Litigation Review Conference, May 10–11, 2010, Duke Law

455
School, Revised April 12, 2010), available at www.uscourts.gov (last retrieved June 18,
2014), 1.

7. In reality, in Liebeck v. McDonald’s Restaurants, P.T.S., Inc., No. D-202 CV-93-02419,

1995 WL 360309 (Bernalillo County, N.M. Dist. Ct. August 18, 1994), the injured
seventy-nine-year-old widowed grandmother, who was in the passenger seat and initially
went into shock after the spill, received third-degree burns on her thighs, buttocks, and
groin-area genitals (over 16 percent of her body, with 6 percent third degree) in a products
liability suit because the coffee was served at a temperature of 180 to 190 degrees (home
coffee machines brew at 158 to 168 degrees), causing permanent scarring and necessitating
skin grafts that left her partially disabled for up to two years. She sued only after
McDonald’s refused to compensate her for far less than what she ultimately received from
the jury ($160,000 compensatory and $2.7 million punitive damages), which took into
account her personal responsibility and was later reduced to about $500,000. Haltom
William and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis
(Chicago: University of Chicago Press, 2004), 186, 193, 208; Bonnie Bertram, “Storm Still
Brews Over Scalding Coffee,” New York Times (October 25, 2013), available at
www.nytimes.com (last retrieved June 20, 2014) (reporting damages reduction and that a
documentary about the case shown in 2013 still generated commentary that reiterated
“their erroneous understanding of the case, [with] some [commentators] castigating Ms.
Liebeck as foolish for driving with liquid she must have known would be hot”).

8. Richard Brisbin and John Kilwein, Real Law Stories: Inside the Judicial Process (New
York: Oxford University Press, 2010), 1; Laura Ly, “Student’s Lawsuit Against Parents for
Support Loses First Round in Court,” CNN Justice (March 5, 2014), available at
www.cnn.com (last retrieved June 20, 2014).

9. See, e.g., Walter K. Olson, The Litigation Explosion: What Happened When America
Unleashed the Lawsuit (New York: Thomas Talley Books-Dutton, 1991); Walter K. Olson,
The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law (New
York: St. Martin’s Press, 2003).

10. Trubeck, Sarat, Felstiner, Kritzer, and Grossman, “The Cost of Ordinary Litigation,”
83–84.

11. Brisbin and Kilwein, Real Law Stories: Inside the Judicial Process, 15.

12. Trubeck, Sarat, Felstiner, Kritzer, and Grossman, “The Cost of Ordinary Litigation,”
81–84 (examining 1,649 civil lawsuits and interviewing 1,812 lawyers who brought them).
Other studies that involve far less respondent lawyers (n = 202) that handled automobile,
premises liability, real estate, contract, employment, and malpractice cases find that the
most time is spent on trials (if the case proceeds that far) and in engaging in discovery.
Paula Hannaford-Agor and Nicole L. Waters, “Estimating the Cost of Civil Litigation,”

456
Court Statistics Project (National Center for State Courts) 20 (January 1, 2013), 1–7,
available at
http://www.courtstatistics.org/~/media/Microsites/Files/CSP/DATA%20PDF/CSPH_online2.ashx
(last retrieved November 4, 2014).

13. See, e.g., Mark Galanter, “Reading the Landscape of Disputes: What We Know and
Don’t Know (and Think We Know) About Our Allegedly Contentious and Litigious
Society,” University of California Los Angeles Law Review 31 (1983), 4–71. For the reasons
underlying the expansion of liability, see Haltom and McCann, Distorting the Law: Politics,
Media, and the Litigation Crisis, 36–38.

14. Marc Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in
Federal and State Courts,” Journal of Empirical Legal Studies 1 (2004), 459–570.

15. Brisbin and Kilwein, Real Law Stories: Inside the Judicial Process, 2. The composition of
civil caseloads and a comparison of state and federal civil caseloads is found in National
Center for State Courts, State Court Caseload Statistics, State Court Caseload Tables, 2010
(Civil and Criminal-National Caseloads), available at www.courtstatistics.org/Other-
Pages/StateCourtCaseloadStatistics.aspx (last retrieved June 18, 2014); Administrative
Office of the U.S. Courts, “Table C-1, U.S. District Courts—Civil Cases Commenced,
Terminated, and Pending During the 12-Month Period Ending March 31, 2013,”
available at www.uscourts.gov/ (last retrieved June 19, 2014).

16. Brisbin and Kilwein, Real Law Stories: Inside the Judicial Process, 245 (reporting findings
from an interview with a Michigan state trial judge).

17. With fee-shifting and the award of damage-enhancement provisions that provide
incentives to litigate, private litigants and counsel, acting through congressional laws vesting
them with powers to act as “private attorneys general,” represent a large proportion of
private civil actions enforcing federal laws. See Sean Farhang, Litigation State: Public
Regulation and Private Lawsuits in the U.S. (Princeton, N.J.: Princeton University Press,
2010).

18. John Scalia, “Prisoner Petitions Filed in U.S. District Court, 2000, With Trends 1980–
2000 (January 2002, NCJ 189430),” available at www.bjs.gov (last retrieved June 20,
2014).

19. Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of
Legal Change,” Law and Society Review 9 (1974), 95, 114–19.

20. Ibid., 97–104.

21. See, e.g., Paul Brace and Melinda Gann Hall, “‘Haves’ Versus ‘Have Nots’ in State
Supreme Courts: Allocating Docket Space and Wins in Power Asymmetric Cases,” Law

457
and Society Review 35 (2001), 393–417; Terence Dunworth and Joel Rogers,
“Corporations in Court: Big Business Litigation in U.S. Federal Courts, 1971–1991,” Law
and Social Inquiry 21(1996), 497–592; C. K. Rowland and Bridget Jeffery Todd, “Where
You Stand Depends on Who Sits: Platform Promises and Judicial Gatekeeping in the
Federal District Courts,” Journal of Politics 53 (1991), 175–85. See also Ryan C. Black and
Christina L. Boyd, “US Supreme Court Agenda Setting and the Role of Litigant Status,”
Journal of Law, Economics and Organization 28 (2010), 286, 287 (concluding that most
“merit stage” litigant status studies have “found that parties with greater levels of status are
more likely to have judicial success”).

22. Galanter, “Why the ‘Haves’ Come Out Ahead,” 114–19.

23. Carrie J. Menkel-Meadow and Bryant G. Garth, “Civil Procedure and Courts,” in The
Oxford Handbook of Empirical Legal Research, edited by Peter Cane and Herbert M. Kritzer
(New York: Oxford University Press, 2010), 679, 687; Brace and Hall, “‘Haves’ Versus
‘Have Nots’ in State Supreme Courts: Allocating Docket Space and Wins in Power
Asymmetric Cases,” 393, 409; Charles R. Epp, The Rights Revolution: Lawyers, Activists, and
Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998).

24. Robert A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge, Mass.:
Harvard University Press, 2001), 120–21.

25. Richard A. Nagareda, Mass Torts in a World of Settlement (Chicago: University Press of
Chicago, 2007), viii.

26. See Tammy B. Webb and Ina D. Chang, “Drawing the Line Between Class Action and
Quasi-Class Action” (ABA Section of Litigation, Mass Torts, November 13, 2012), available
at http://apps.americanbar.org/litigation/committees/masstorts/articles/fall2012-1112-
drawing-the-line-class-action-quasi-class-action.html (last retrieved June 23, 2014). See also
Tracey E. George and Margaret S. Williams, “Venue Shopping: The Judges of the U.S.
Panel on Multidistrict Litigation,” Judicature 97 (2014), 196–205.

27. The 9/11 settlement fund was relatively unique because it was a political response
enacted only eleven days after the terrorist attacks, before any tort lawsuits were filed. Also,
designed as a “preemptive” measure, roughly 97 percent of survivors of those killed chose
the administrative settlement (coming out of public instead of private funds) over filing a
tort lawsuit. Nagareda, Mass Torts in a World of Settlement, 102–6. Although unique,
analogous settlement funds (though paid with private monies) have appeared in other
disaster compensation cases (Boston Marathon bombing, Sandy Hook elementary school,
Aurora, Colorado, and Virginia Tech mass shootings, and 1995 Oklahoma federal building
bombing), that directly or indirectly implicate, but raise many unresolved questions about,
the prospective or actual mass filings of tort lawsuits and their compensatory implications.
See Ben Berkowitz, “Uncertainty Surrounds Compensation for Boston Bomb Victims,”

458
Reuters (April 17, 2013), available at www.reuters.com (last retrieved June 30, 2014).

28. Christopher Hodges, John Peysner, and Angus Nurse, “Litigation Funding: Status and
Issues (Research Report, January 2012),” available at
www.csls.ox.ac.uk/documents/ReportonLitigationFunding.pdf (last retrieved June 23,
2014).

29. Maya Steinitz, “Whose Claim Is This Anyway? Third-Party Litigation Funding,”
Minnesota Law Review 95 (2011), 1268, 1270–71. See also Burford Capital, LLC,
“Litigation Finance: An Introduction,” available at www.burfordcapital.com/who-we-are/
(last retrieved June 23, 2014).

30. Samuel Issacharoff, “Litigation Funding and the Problem of Agency Cost in
Representative Actions,” DePaul Law Review 63 (2014), 561, 562–65. See also U.S.
Chamber Institute for Legal Reform, Selling Lawsuits, Buying Trouble: Third-Party
Litigation Funding in the United States (Washington, D.C.: U.S. Chamber Institute for
Legal Reform, 2009), 1–2.

31. Steinitz, “Whose Claim Is This Anyway? Third-Party Litigation Funding,” 1338
(suggesting that “litigation finance is an industry whose time has come”). See also
Issacharoff, “Litigation Funding and the Problem of Agency Cost in Representative
Actions.”

32. U.S. Chamber Institute for Legal Reform, Selling Lawsuits, Buying Trouble, 1–12.

33. Geoffrey C. Hazard, Jr., John Leubsdorf, and Debra Lyn Bassett, Civil Procedure, 6th
ed. (New York: Foundation Press, 2011), 442.

34. Kenneth S. Abraham, The Forms and Functions of Tort Law, 4th ed. (New York:
Foundation, 2012), 241–59. See also William M. Tabb and Rachel M. Janutis, Remedies in
a Nutshell, 2nd ed. (St. Paul, Minn.: West, 2013).

35. Among other factors, deciding to sue is affected by a “complicated mix of community
associations, social status, rights consciousness, knowledge of legal procedures, access to
lawyers, procedural rules of court, and severity of physical and economic injury.” Brisbin
and Kilwein, Real Law Stories: Inside the Judicial Process, 10, 15.

36. Herbert M. Kritzer, Risks, Reputations, and Rewards (Stanford, Calif.: Stanford
University Press, 2004), 257.

37. See Robert E. Litan and Steven C. Salop, “Reforming the Lawyer-Client Relationship
Through Alternative Billing Methods,” Judicature (January/February 1994), 191–97.

38. Herbert M. Kritzer, “Contingency Fee Lawyers as Gatekeepers in the Civil Justice

459
System,” Judicature (July/August 1997), 22. This argument is expanded in Kritzer, Risks,
Reputations, and Rewards.

39. U.S. Senate, Committee on the Judiciary, “Contingency Fee Abuses,” 104th Cong., 1st
sess., 1995. S. Hrg. 104–828 (November 7, 1995) (Washington, D.C.: U.S. Government
Printing Office), 3, 37. For a conservative critique of contingency fees and their effect on
the American legal system, see Lester Brickman, Lawyer Barons: What Their Contingency
Fees Really Cost America (New York: Cambridge University Press, 2011).

40. Thomas M. Clarke and Victor E. Flango, “Case Triage for the 21st Century,” in Future
Trends in State Courts 2011: A Special Focus on Access to Justice (Williamsburg, Va.:
National Center for State Courts, 2011), 146–50. See also Victor E. Flango, “Which
Disputes Belong in Court?” in Future Trends in State Courts 2010 (Williamsburg, Va.:
National Center for State Courts, 2011), 11–17.

41. The Supreme Court’s ruling in Conely v. Gibson, 355 U.S. 41, 45–46 (1957), endorsed
notice pleading by stating that “a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” See also Georgene M. Vairo, “Wal-Mart
Stores, Inc., v. Dukes: The End of Class Actions?” in Class Action Litigation 2012 (New
York: Practising Law Institute, 2012), 39, 48.

42. Alexander A. Reinert, “Screening Out Innovation: The Merits of Meritless Litigation,”
Indiana Law Journal 89 (2014), 1191, 1205–12. See also Rebecca Love Kourlis, Jordan M.
Singer, and Natalie Knowlton, “Reinvigorating Pleadings,” Denver University Law Review
87 (2010), 245, 265 n. 128; John B. Oakley and Arthur F. Coon, “The Federal Rules in
State Courts: A Survey of State Court Systems of Civil Procedure,” Washington Law Review
61 (1986), 1367–427.

43. Cornell University Law School, Legal Information Institute, Rule 12(b)(6), Federal
Rules of Civil Procedure, available at www.law.cornell.edu/rules/frcp/rule_12 (last retrieved
June 19, 2014).

44. Cornell University Law School, Legal Information Institute, Rule 56, Federal Rules of
Civil Procedure, available at www.law.cornell.edu/rules/frcp/rule_56 (last retrieved June 19,
2014).

45. Vairo, “Wal-Mart Stores, Inc., v. Dukes: The End of Class Actions?” 47, citing Celotex
Corporation v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986), Matsushita Electric Industrial Company v. Zenith Radio Corporation, 475 U.S. 574
(1986). Notably, the “longstanding view” before these cases were decided indicated that the
Rules of Civil Procedure were designed to eliminate “fact-pleading” (e.g., claim-specific
pleading) and replace it with an increasing reliance on using the discovery process, and jury

460
trials, to ascertain a civil case’s “merit.” Reinert, “Screening Out Innovation: The Merits of
Meritless Litigation,” 1206.

46. Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009); Bell Atlantic Corporation v. Twombly, 550
U.S. 544, 555 (2007). See also Joanna C. Schwartz, “Gateways and Pathways in Civil
Procedure,” UCLA Law Review 60 (2013), 1652–708.

47. In 1962, for example, 5.5 percent of all federal cases were decided by jury trial. But in
2002, that percentage had dropped to only 1.2 percent. At the same time, between 1975
and 2000, summary judgment adjudications rose from 3.7 percent to 7.7 percent,
respectively. Galanter, “The Vanishing Trial,” 462–63 (Table 1), 483–84.

48. Galanter, “The Vanishing Trial,” 484. See also ibid., 482 (reporting percentages of
pretrial dispositions in 1962 and 2002). The percentages of jury trials and pretrial
dispositions are derived from Administrative Office of the U.S. Courts, “Table C-4, U.S.
District Courts-Civil Cases Terminated, by Nature of Suit and Action Taken, During the
12-Month Period Ending March 31, 2013,” available at www.uscourts.gov (last retrieved
June 19, 2014).

49. Christopher Frost, “The Sound and the Fury, or the Sound of Silence: Evaluating the
Pre-Amendment Predications and Post-Amendment Effects of the Discovery Scope-
Narrowing Language in the 2000 Amendments to the Federal Rules of Civil Procedure,”
Georgia Law Review 37 (2003), 1039, 1040.

50. Cornell University Law School, Legal Information Institute, Rule 26(b) (1), Federal
Rules of Civil Procedure, available at www.law.cornell.edu/rules/frcp/rule_26 (last retrieved
June 25, 2014).

51. See, e.g., Cornell University Law School, Legal Information Institute, Rule 33, Federal
Rules of Civil Procedure, available at www.law.cornell.edu/rules/frcp/rule_33 (last retrieved
June 25, 2014); and ibid., Rule 34, available at www.law.cornell.edu/rules/frcp/rule_34
(last retrieved June 25, 2014).

52. See, e.g., Cornell University Law School, Legal Information Institute, Rule 36, Federal
Rules of Civil Procedure, available at www.law.cornell.edu/rules/frcp/rule_36 (last retrieved
June 19, 2014).

53. Jennifer M. Smith, “Electronic Discovery and the Constitution: Inaccessible Justice,”
Legal Technology and Risk Management 6 (2010), 122–72. See also Riley v. California, 134
S.Ct. 2473 (2014).

54. See, e.g., Cornell University Law School, Legal Information Institute, Rules 27–32,
Federal Rules of Civil Procedure, available at www.law.cornell.edu/rules/frcp (last retrieved
June 19, 2014).

461
55. See, e.g., Cornell University Law School, Legal Information Institute, Rule 35, Federal
Rules of Civil Procedure, available at www.law.cornell.edu/rules/frcp/rule_35 (last retrieved
June 19, 2014).

56. See Nagareda, Mass Torts in a World of Settlement, 7; Judith Resnik, “Managerial
Judges,” Harvard Law Review 96 (1982), 374–448. See also Hazard and Bassett, Civil
Procedure, 391–94; Maurice Rosenberg, The Pretrial Conference and Effective Justice: A
Controlled Test in Personal Injury Litigation (New York: Columbia University Press, 1964),
5–11.

57. See Paul D. Carrington, “The Seventh Amendment: Some Bicentennial Reflections,”
University of Chicago Legal Forum 1990 (1990), 33, 42–43.

58. See, e.g., Brian H. Bornstein and Timothy R. Robicheaux, “Crisis, What Crisis?
Perception and Reality in Civil Justice,” in Civil Juries and Civil Justice: Psychological and
Legal Perspectives, edited by Brian H. Bornstein, Richard L. Wiener, Robert F. Schopp, and
Steven L. Willborn (New York: Springer, 2008), 1–22.

59. John H. Langbein, “The Disappearance of Civil Trial in the United States,” Yale Law
Journal 122 (2012), 522, 524 (reporting that, in 1940, federal civil trial rates were at 15.2
percent but, by 2002, the rate was 1.8 percent; and, in state courts, jury trials were less than
1 percent of all civil dispositions). See also Lynn Langton and Thomas H. Cohen, Civil
Bench and Jury Trials in State Courts, 2005 (“Civil Justice Survey of State Courts”)
(October 2008, NCJ 223851), available at www.bjs.gov (last retrieved June 26, 2014), 10.

60. Langton and Cohen, Civil Bench and Jury Trials in State Courts, 2005, 1.

61. American Tort Reform Foundation, Judicial Hellholes 2013/2014 (Washington, D.C.:
American Tort Reform Foundation 2013/2014), available at www.judicialhellholes.org
(last retrieved June 28, 2014).

62. American Tort Reform Foundation, Judicial Hellholes 2013/2014, 7–9, 59.

63. Peter Baker, “Bush Campaigns to Curb Lawsuits: President Says ‘Junk’ Litigation Is
Driving Small-Town Doctors Out of Business,” Washington Post (January 6, 2005), A06
(reporting G. W. Bush’s remarks after his reelection asserting that the judicial system and
the trial bar were responsible for increasing insurance costs and forcing small-town doctors
to leave their practices).

64. Mary H. Graffam, “The Web of Tort Reform,” Trial 48 (December 2012), 16–17;
Ashley L. Taylor, Jr., “Walking a Tightrope: AG Enforcement Authority and Private
Counsel Contingency Fee Arrangements,” State and Local Law News (American Bar
Association’s Section of State and Local Government Law) 36 (Spring, 2013), available at
www.americanbar.org (last retrieved July 1, 2014). See generally American Tort Reform

462
Foundation, Judicial Hellholes 2013/2014, 1–60; and U.S. Chamber of Commerce Institute
for Legal Reform, The New Lawsuit Ecosystem: Trends, Targets, and Players (October 2013)
(Washington, D.C.: U.S. Chamber of Commerce Institute for Legal Reform, 2013).

65. Graffam, “The Web of Tort Reform,” 15–19. See also American Association for
Justice, ALEC: Ghostwriting the Law for Corporate America (Washington, D.C.: American
Association for Justice, May 2010); American Association for Justice, The Chamber
Litigation Machine (Washington, D.C.: American Association for Justice, October 2010).

66. A survey of the empirical literature is found in Menkel-Meadow and Garth, “Civil
Procedure and Courts,” in The Oxford Handbook of Empirical Legal Research, 679–704.
Notably, the debate is also infused with politics. As Menkel-Meadow and Garth conclude,
“In the field of civil procedure, where there is a continuing demand for some procedural
rule reform, empirical studies of how rules actually operate have, for the most part, been
used in partisan ways to advocate for particular reforms in the interests of one or another
legal or client constituency.” Ibid., 680.

67. See, e.g., Langton and Cohen, Civil Bench and Jury Trials in State Courts, 2005; and
Galanter, “The Vanishing Trial,” 459–570.

68. Herbert M. Kritzer and Robert E. Drechsel, “Local News of Civil Litigation: All the
Litigation News That’s Fit to Print or Broadcast,” Judicature 96 (2012), 16–22; William
Haltom and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis
(Chicago: University of Chicago Press, 2004).

69. See, e.g., U.S. House of Representatives, Subcommittee on the Constitution and Civil
Justice of the Committee on the Judiciary, “Examination of Litigation Abuses,” 113th
Cong., 1st sess., 2013. Serial No. 113-8 (March 13, 2013) (Washington, D.C.: U.S.
Government Printing Office, 2013); U.S. House of Representatives, Subcommittee on
Intellectual Property, Competition, and the Internet of the Committee on the Judiciary,
“Litigation as a Predatory Practice,” 112th Cong., 2nd sess., 2012. Serial No. 112-79
(February 17, 2012) (Washington, D.C.: U.S. Government Printing Office, 2012); U.S.
House of Representatives, Subcommittee on the Constitution of the Committee on the
Judiciary, “Contingent Fees and Conflicts of Interest in State AG Enforcement of Federal
Law,” 112th Cong., 2nd sess., 2012. Serial No. 112-82 (February 2, 2012) (Washington,
D.C.: U.S. Government Printing Office, 2012).

70. Chief Justice Burger’s remarks are reported in “Mid-Year Meeting of the American Bar
Association,” United States Law Week 52 (February 28, 1984), 2471.

71. Jerome T. Barrett and Joseph P. Barrett, A History of Alternative Dispute Resolution: The
Story of a Political, Cultural, and Social Movement (San Francisco: Jossey-Bass, 2004), 149–
52, 182–83, 214.

463
72. Thomas J. Stipanowich, “ADR and the ‘Vanishing Trial’: The Growth and Impact of
‘Alternative Dispute Resolution,’” Journal of Empirical Legal Studies (November 2004),
843, 849–50.

73. Benjamin Angulo, Daniel J. Romine, and Matthew Schacht, “Alternative Dispute
Resolution Trending as Budget-Balancing Becomes Priority for States,” Journal of Dispute
Resolution (2011), 401–8.

74. See Howard W. Cummins, “Let Us Reason Together: The Role of Process in Effective
Mediation,” Journal of the National Association of Administrative Law Judiciary 33 (2013),
1–34; Paula Hannaford-Agor and Nicole Waters, “The Evolution of the Summary Jury
Trial: A Flexible Tool to Meet a Variety of Needs,” in Future Trends in State Courts 2012
(Williamsburg, Va.: National Center for State Courts, 2012), 107–12.

75. Donna Stienstra, “ADR in the Federal District Courts: An Initial Report (Prepared for
the Federal Judicial Center, November 16, 2011),” available at
www.fjc.gov/public/pdf.nsf/lookup/adr2011.pdf/$file/adr2011.pdf (last retrieved June 30,
2014).

76. Stipanowich, “ADR and the ‘Vanishing Trial,’” 849–50, 866–67, 898–900; and
Stienstra, “ADR in the Federal District Courts: An Initial Report,” 15 (Table 7).

77. Richard Posner, “The Summary Jury Trial and Other Methods of Alternative Dispute
Resolution: Some Cautionary Observations,” University of Chicago Law Review (1986),
356, 372–75; but see Thomas D. Lambros, “The Summary Jury Trial: An Effective Aid to
Settlement,” Judicature (July/August 1993), 6–8. The strengths and weaknesses of ADR are
summarized from a practitioner’s perspective in Edward J. Costello, Jr., “Whether and
When to Use Alternative Dispute Resolution,” in Alternative Dispute Resolution: The
Litigator’s Handbook, edited by Nancy F. Atlas, Stephen K. Huber, and E. Wendy Trachte-
Huber (Chicago: American Bar Association, 2000), 35–58.

78. These reasons include (1) arbitration is used to resolve every type of civil dispute in a
way that is just as procedurally complex as a court trial; (2) the growing popularity of
mediation and other nonbinding conflict resolution methods threatens to displace
arbitration; and (3) the negative response to the broad enforcement of binding arbitration
provisions in standardized adhesion contracts that pertain to employment relationships and
consumer transactions. Thomas J. Stipanowich, “Arbitration: The ‘New Litigation,’”
University of Illinois Law Review (2010), 1, 6–8.

79. William C. Smith, “Much to Do About ADR,” American Bar Association Journal (June
2000), 62–68.

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Part IV JUDICIAL POLICYMAKING

465
CHAPTER 9 Appellate Courts and Decision
Making

After the landmark gun-rights ruling in District of Columbia v. Heller (2008), President
Barack Obama stated he “always believed that the Second Amendment protects the right of
individuals to bear arms.” Yet he also sympathized with gun-control advocates, stating that
he could “identify with the need for crime-ravaged communities to save their children from
the violence that plagues our streets through common-sense, effective safety measures.” And
he claimed that “the Supreme Court has now endorsed that view.”1

Still, before Heller, the Supreme Court interpreted the Second Amendment differently
because it only allowed state militias to bear arms and did not guarantee personal gun
rights. That led over several decades to a variety of conservative interest groups and public
interest law firms—among them the National Association for Gun Rights and the Institute
for Justice, as well as a number of libertarian activists—to challenge restrictive gun
regulations in courts. Dick Anthony Heller, a private security guard at a federal building in
the District of Columbia, thus, became the face of gun-rights organizations’ challenge to
D.C.’s law restricting the possession of guns that ultimately was reviewed by the Supreme
Court in Heller.2

In a bare majority decision, the Court struck down D.C.’s gun-control ordinance and held
that the Second Amendment guarantees a “pre-existing” right to self-defense in the home.
Based on his judicial philosophy of “originalism,” Justice Antonin Scalia reasoned that “the
right of the people to keep and bear Arms shall not be infringed,” meaning that gun rights
do not only vest in a “well-regulated Militia.” Instead, the Second Amendment recognized
individuals’ right to keep and bear arms—a historic decision that departed from prior
decisions and altered the scope of gun-control laws across the nation.3

For the four dissenting justices, Justice John Paul Stevens countered that the amendment’s
plain language authorized the states, through their militias, to arm themselves and to guard
against the threat of a permanent national standing army. In a separate dissent, Justice
Stephen Breyer contended that the Second Amendment safeguarded militia-related (but
not personal self-defense) interests and that governments traditionally enjoyed the power to
regulate gun rights in order to preserve public safety.4

Shortly after Heller, in McDonald v. Chicago (2010), a majority of the Roberts Court held
that the Second Amendment applied to all the states.5 In setting parameters for national
gun policy, Heller and McDonald illustrate that appellate courts differ from trial courts,
whose rulings generally only impact the parties in a lawsuit, because appellate courts focus
not on the facts in dispute but rather on the interpretation and application of legal

466
principles that may have broad (even national) consequences.

Pro-gun rights supporters after the Supreme Court ruled there is a Second Amendment
right to keep guns in the home for self-defense in District of Columbia v. Heller (2008)

AP Photo/Jose Luis Magana

Accordingly, this chapter examines appellate courts’ decision making and influence on legal
policy change. First, it outlines the appellate decision-making process and contrasts that
with trial courts (see Figure 9.1). Four stages of the appeals process are highlighted: (1)
agenda setting, (2) oral argument, (3) the judicial conference, and (4) opinion writing. The
chapter, then, discusses how political scientists and legal scholars employ different research
methods to explain the decision making of appellate court judges. The fact that appellate
courts make, and do not simply declare, what the law is remains controversial, however.
The concluding section, then, examines the principal rival interpretative methods used by
appellate judges in statutory and constitutional cases in relation to the different ways
appellate courts may forge legal and social policy changes.

467
The Appellate Court Decision-Making Process
State and federal appellate courts play a limited role in reviewing trial court decisions
because the Constitution only guarantees “a fair trial, not a perfect one.”6 Studies confirm
that only about 15 to 20 percent of trial court rulings are appealed annually and that most
appeals are unsuccessful.7 In addition, trial and appellate court behavior is largely
indistinguishable from partisan affiliation, although there is evidence that Republican
appointees tend to favor “upper-dogs,” whereas Democratic appointees tend to support
“lower-dogs.”8 Still, there are basic differences in the functions of trial and appellate courts,
and their impact on law and society.

Trial court judges and juries primarily evaluate conflicting evidence and factual claims.
Appellate judges ordinarily defer to lower courts’ findings of fact and reverse trial court
decisions only if “clearly erroneous.” Appellate courts focus on questions of law and the
interpretation of laws, as well as have (arguably) less discretion than trial courts, which have
virtually unbounded discretion in applying laws (subject, of course, to appeals) and are
generally the courts of first and last resort.9

468
Figure 9.1 The Process of Appellate Court Decision Making

Circuit Judge Richard A. Posner, therefore, argues that trial court opinions are less
important sources of law than those of appellate courts.10 Unlike trial courts, appellate
courts render decisions that set precedents within a particular state or federal region.11
Moreover, they decide cases in randomly assigned panels of three judges or en banc (when
all judges in a circuit decide a case). Appeals courts are collegial (unlike trial courts) and
work in small groups that often not only review the decision below but also may broadly
affect social policy. Furthermore, research demonstrates that the ideological composition of
federal circuit court panels produces distinctly liberal or conservative policy outcomes.12

In light of rising caseloads, appellate judges spend less time hearing oral arguments, and

469
more time managing their staffs and writing opinions. The legal staff per judge in state
appellate courts usually consists of two or three law clerks and staff attorneys, plus
secretaries. In contrast to lower court judges, appellate judges must rely on their law clerks
to do the research and help write opinions.13

The significance of the appellate courts is underscored by examining the critical stages of
their decision-making process, including (1) how they set their agenda, (2) the influence of
oral argument, (3) the role judicial conferences play, and (4) the saliency and utility of
writing opinions.

470
Agenda Setting
In all appeals courts, the clerk of the court begins the process once the losing party pays a
fee and files notice of an appeal. Once an appeal is filed, the clerk assigns a docket number
and puts the case on the court calendar. Typically, in federal appellate courts, the
assignment of cases is done by the random selection of three-judge panels. Random
selection prevents judges from picking the appeals they individually favor. Apart from panel
assignment rules, the flow of appeals is controlled by the clerk of court, who serves as a
kind of administrative “traffic cop” in communicating with counsel.14

After the preliminary case processing, staff attorneys and law clerks work on their assigned
cases, along with continuing to screen appeals and determine whether they should receive
plenary (full) consideration or summary disposition. Central staff attorneys, who are
permanent staff, typically work for a court instead of specific judges, unlike law clerks.
They also have diversified duties, including screening cases for jurisdictional defects, setting
cases for oral argument or summary disposition (without oral argument), researching
substantive motions, and writing memoranda on whether to grant or deny relief in
discretionary cases.15

Studies of federal and state appeals courts show that the central staff significantly influences
a court’s agenda. In an analysis of three federal appeals courts, legal scholar Jonathan
Matthew Cohen found that central staff was the touchstone for deciding which appeals
received “full-dressed” treatment and whether cases were granted oral arguments or given
summary disposition. Likewise, in a study of 151 state appellate courts, political scientists
Roger Hanson, Carol Flango, and Randall Hansen found that central staff spent a
significant portion of their time preparing legal memoranda for judges, and advising judges
whether an appeal should stay on the docket for further consideration. They also assist
judges by providing legal analyses of cases granted full review. Both studies are consistent
with other findings that concluded central staffs play an important role not only in
dismissing cases, but also in reaching decisions on the merits.16

To a lesser degree, law clerks assigned to individual judges contribute to molding a court’s
agenda. Usually, less than 3 percent of law clerks’ time is spent handling procedural
motions. Unless a court has discretionary authority, the rules governing the assignment of
cases to panels, along with judicial norms controlling the screening process, substantially
dictate the workload and the types of cases appellate courts decide.17

Procedural rules and norms govern case selection in federal and state courts of last resort.
For example, Rule 10, which guides the acceptance of certiorari petitions in the Supreme
Court, states that the justices primarily grant appeals if there are conflicting appellate court
interpretations of important questions of federal law. The justices refer to these cases as

471
involving so-called “deep splits”—questions on which several lower courts have disagreed
and are unlikely to resolve without the Supreme Court’s intervention.18 Social scientists
have established that a combination of political and legal factors affect appellate courts’ case
selection. Seminal research by political scientist S. Sidney Ulmer concluded that Supreme
Court justices’ votes in deciding the merits of cases were strongly correlated with their
initial votes to grant review. His key finding that justices vote to grant cases in accordance
with their policy preferences is consistent with subsequent studies finding that judges act
strategically in constructing their dockets. In other words, judges generally write their
policy preferences into law when deciding what to decide, while also taking into account
the preferences of other judges and the institutional context within which they operate.19

Strategic calculations in granting appeals also appear closely linked to a court’s institutional
and environmental situation. For example, political scientists Paul Brace and Melinda
Gann Hall have shown that the availability of lawyers and the adequacy of resources (e.g.,
the number of clerks, central staff, and judges; salaries; docket size) significantly affect state
supreme court agenda setting. In their words: “When lawyers are relatively plentiful and
comparatively less costly, more have-nots [those with less money and legal resources to file
lawsuits] reach state supreme courts, and they are more likely to win.”20 Likewise, other
studies of the Supreme Court’s agenda setting found a high correlation with the policy
positions of the president, Congress, and public opinion.21

The agenda-setting stage is only the beginning of the appeals process, however. Once
appeals are docketed and preliminarily screened, appellate courts may (though rarely) grant
the litigants oral argument.

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Oral Argument
In the early republic, attorneys in the United States built their reputations on persuasive
oral arguments. Some orations, especially those of famous advocates like Daniel Webster
and Luther Martin, spanned several days. The practice of oral advocacy derived from the
English common law tradition of barristers presenting their cases in open court, a custom
that still may result in lengthy oral arguments (typically spanning two days).22 In U.S.
appellate courts, however, the practice evolved differently and departed from that tradition.
Indeed, rather than lengthy oral arguments, appellate lawyers now generally advance their
arguments only in written briefs. Still, as Justice Robert Jackson (who was famous for his
oral advocacy) observed: “Over the years, the time allotted for [oral] hearing has been
shortened, but its importance has not diminished.... The significance of the trend is that
the shorter the time, the more precious is each minute.”23

All appellate briefs identify the legal bases for the court accepting jurisdiction and to
consider the merits of a case. Typically, they consist of a table of contents, a statement of
the issues, and a summary of the argument. As Circuit Judge Frank Coffin once
emphasized, the reputation of the attorney filing the brief and the identity of the lower
court judge whose decision is appealed has a strong influence on whether staff counsel or
law clerks recommend to grant or dismiss an appeal and whether appellate judges will take
the time to read the brief thoroughly. In this regard, appellate briefs are directed to three
audiences: the central staff attorneys, the panel of judges reviewing the case and their law
clerks, and the judge who writes the court’s opinion and his or her law clerks.24

If an appeal is granted oral argument, law clerks are usually assigned to write various
memos explaining the case and its merits. Most judges require clerks to write a bench
memorandum—a detailed memo that may be shared with other chambers and outlines the
appeal’s facts, legal issues, and legal authorities. Some judges describe bench memos as
“road maps” to case specifics.25

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The courtroom of the U.S. Supreme Court, where the justices hear oral arguments

Steve Petteway, Collection of the Supreme Court of the United States

Although a few state courts of last resort have entirely eliminated oral arguments, all
appellate courts have incrementally limited the amount of time given. In the Supreme
Court, litigants now generally have only thirty minutes per side to argue their cases; by
contrast, in the nineteenth century attorneys had unlimited time, and in the twentieth
century the time was gradually cut back to two hours and then to one hour, and finally to
only a half-hour per side. There has also been a trend toward giving plenary consideration
to only those cases that present novel legal issues or on which several courts have rendered
conflicting rulings. The shift away from oral arguments is most conspicuous in the federal
circuit courts. There, the percentage of appeals decided without oral argument has been
significantly reduced since the mid-1980s, from 56 percent (1985) to 18 percent (2013)
(see Table 9.1).

Although some judges—such as Justice Oliver Wendell Holmes, who used to take catnaps
or write letters while on the bench, and Justice Clarence Thomas, who rarely asks questions
during oral arguments—do not get much out of oral arguments, others are different. Justice
Ruth Bader Ginsburg, for one, considers arguments not “an occasion...for grand
speechmaking, but for an exchange of ideas about the case, a dialogue or discussion
between knowledgeable counsel and judges who have done their homework, a ‘hot bench,’
as appellate advocates say.” In contrast, oral arguments in appellate courts in civil law
countries are different because the chief justice of a panel of judges assumes a primary role

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in deciding who among the brethren may speak or ask questions and, thus, controls the
dialogue with counsel (whereas, in the United States, Supreme Court justices may interrupt
counsel and even each other). In addition, Justice Ginsburg characterizes oral arguments as
the “last clear chance to convince the justices concerning points on which the decision may
turn.” Nor is she alone in that assessment. For Justice John M. Harlan II, oral argument
was invaluable “in getting at the real heart of an issue and in finding out where the truth
lies.” In this respect, not only do oral arguments provide a forum for exchange and
persuasion, but they also personalize the case and give judges information that they might
otherwise overlook or was not presented in the briefs. Moreover, oral arguments are an
opportunity for the justices to explore the logical extension of counsel’s arguments by
presenting hypotheticals. For all of these reasons, argument sessions remain significant and
take place shortly before voting on the merits of cases in judicial conferences, the next stage
of the appellate process.26

Source: Administrative Office of the U.S. Courts, Judicial Facts and Figures: Multi-Year Statistical Compilations of
Federal Court Caseload through Fiscal Year 2004 (Compiled March 2005), available at
www.uscourts.gov/judicialfactsfigures/contents.html (last retrieved April 21, 2006), Table 1.8, (all years except
1985 and 2005). Data for 1985 are from Jonathan Matthew Cohen, Inside Appellate Courts: The Impact of Court
Organization on Judicial Decision Making in the United States Courts of Appeals (Ann Arbor: University of
Michigan Press, 2002), 62, Table 3; 2005–2013 data are at Table B-1, in Administrative Office of the U.S.
Courts, “Federal Judicial Caseload Statistics,” available at
www.uscourts.gov/Statistics/FederalJudiciaCaseloadStatistics(last retrieved May 6, 2014).
Note: Data for the U.S. Court of Appeals for the Federal Circuit are unreported. Percentages are rounded off to

475
the nearest whole number.

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Judicial Conferences
All appellate courts have conferences that assist in the process of case disposition. But, if
another type of preconference or postconference opinion assignment practice is not used,
sometimes they determine who will write the controlling opinion (see Figure 9.1). They
also help with case management. The Supreme Court, for instance, has an opening
conference in the week before the beginning of each term in October in order to dispose of
petitions for review that were filed during the summer recess. At conferences, justices and
judges discuss appeals and cast preliminary votes on the merits of appeals. The votes,
though, are tentative because appellate judges may change their minds at any time prior to
announcing the final judgment. Although rising caseloads now prevent conferences from
being (as they once were) an occasion for unrestricted debates about cases, they nonetheless
present an opportunity for strategically forming voting coalitions and determining final
decisions. Although appellate judges routinely negotiate with each other before and after
conferences, judicial conferences remain the principal opportunity for collectively debating
competing legal claims.27

Strategic Consensus Building and Opinion Assignment

Judges may adopt different tactics during conferences to build or strengthen voting
coalitions. The strategies vary with the court and its members. But, significantly, the ability
to persuade a colleague is also dictated by institutional procedures and norms. Many
appeals courts stick to the tradition of discussing and voting on cases based on seniority—a
practice based on the chief judge and then the most senior judge (followed by others based
on their seniority) speaking and casting their votes. Still, though judges speaking last may
be at a strategic disadvantage, it is offset in multimember courts, such as in the Supreme
Court, because speaking and voting last has the advantage that it may determine the
outcome in tied cases.28

After the initial votes are cast at conference, opinion assignment—or who writes the
controlling opinion for the court—becomes a key part of judicial strategy and the
bargaining and coalition-building process that ultimately yields a final opinion.29 In
practice, the chief justice or judge has the authority to assign majority opinions if he or she
is in the majority. As such, it is a strategic opportunity to shape the opinion’s rationale and
scope because the chief justice may assign the opinion writing to himself or another justice
who shares his ideological views or policy goals. If the chief is not in the majority, the most
senior justice in the majority has the opinion assignment power.30

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President-elect Barack Obama and Vice President-elect Joe Biden meet with justices during
a visit to the U.S. Supreme Court on January 14, 2009 (from left to right, Obama, Chief
Justice John Roberts, Jr., with Justices John Paul Stevens, Ruth Bader Ginsburg, Clarence
Thomas, David Souter, and Biden).

Pete Souza/Obama Transition Team/CC BY 2.0

Although in the Supreme Court the practice of opinion assignment has historically varied
with the chief justice’s style of leadership, such a general rule operates with another norm of
justices at conference voting to “pass”—that is, not voting to affirm or reverse the lower
court. One study found that passing was a strategy used by Chief Justice Warren Burger,
and later by Chief Justice William Rehnquist, ostensibly to control opinion assignment in
cases in which they did not know how a majority of the Court might vote. Both chief
justices Burger and Rehnquist passed, in other words, when they were in doubt about
whether they would be in the majority coalition. And both abstained from passing when
they were sure that they would win or lose in cases decided on the merits. Such strategic
behavior increased their capacity to set the Court’s agenda and influence final outcomes.31

The dynamics of coalition building are not confined to the behavior of the chief justice,
however. Although associate judges on the Supreme Court and other appeals courts may
not hold opinion assignment power, they may still try to achieve their preferences by
concurring (joining only the result, but not the rationale of the majority’s opinion) or
dissenting opinions. Such opinions exert pressure on judges in the majority because they

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undermine the legal weight attached to the majority’s view and also expose a court’s
disagreements by “go[ing] public.”32 Still, because most cases are “easy” and result in
unanimous or summary dispositions, individual threats to undercut the majority’s opinion
are only effective in cases that are the most significant or difficult to resolve. Regardless, the
bargaining process remains fluid as drafts of opinions are freely circulated among the judges
and their law clerks in chambers, thus making the opinion-writing stage very important to
the appellate decision-making process.

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Opinion Writing
“It will come out in the writing,” observed Justice Ginsburg, about the dynamics of the
Supreme Court’s decision making.33 And that underscores, as Justice Lewis Powell and
others have observed, that appellate courts are like “small, independent law firms,”34 in
which opinions are drafted by judges and their law clerks.

The role of law clerks in the opinion-writing process has grown enormously in the last half-
century; indeed, some former clerks claim that the Supreme Court has become “clerk
driven.” For that reason, it is not surprising that Justice Clarence Thomas characterized the
ordeal of hiring law clerks as “selecting mates in a foxhole.”35 Law clerks not only typically
write the first drafts of opinions but also take on other social tasks for their justices.36 “The
tasks of the clerks,” as John P. Frank, who clerked for Justice Hugo Black, once put it, are
“very much the product of the whims of their Justices.” As he explained:

In general, it is the job of the clerk to be the eyes and legs for his judge, finding and
bringing in useful materials. This can involve an immense amount of work, depending
upon how curious the Justice is. It is legend that Justice Brandeis once asked a clerk to
look at every page of every volume in the United States Reports looking for a
particular point. The clerks may also have semi-social duties, like those who visited
with Holmes or took walks with [Justice] Stone or played tennis with [Justice] Black,
or superintended the circulation of the guests at the [Justice] Brandeis Sunday teas. All
of this is in the spirit of an amiable relationship between a wise, elderly man and a
young cub at the bar.37

A law clerk for Justice Powell echoed these sentiments, observing that the “ideal law clerk is
both loyalist and critic—faithful to the judges’ instructions, yet alert to any deficiencies of
thought or expression.”38

Law clerks earn the trust of their mentors by screening cases for review, conducting legal
research, and writing draft opinions for in-chambers review. Of these duties, assisting in
writing judicial opinions is the primary function. In state appellate courts, career law clerks
spend roughly 65 percent of their time preparing opinions, and the same behavior appears
in federal courts.39 The give-and-take normally associated with drafting opinions occurs
not only between law clerks and their justice or judge but also between judges in different
chambers and their clerks. The “ambassadorial role” that clerks play in an informal “clerk
network” consists of information gathering, lobbying, and even negotiating with other
chambers.40

Appellate courts more often than not hand down unanimous opinions. Unanimity is

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generated because most cases are relatively easy to decide; that is, they involve appeals that
do not present substantial legal conflict oramicus participation.41 In “hard cases,” though, it
is not unusual for judges to issue individual concurring or dissenting opinions (see Table
9.2). The mere threat to issue a concurrence or a dissent may influence coalition building
and the drafting of majority opinions by forcing justices or judges in different chambers to
rethink their positions, and even respond to points made by a concurring or dissenting
opinion.42

Written and Oral Dissents

In contrast to a majority opinion, a concurring or dissenting opinion registers institutional
disobedience.43 Under Chief Justice John Marshall’s strong leadership in the formative
years of the Supreme Court, unanimous opinions were deemed important to establishing
the legitimacy of the federal judiciary, and therefore separate opinions were discouraged.
But that tradition gradually broke down, and the decline of a “norm of consensus” has
become a defining aspect of judicial behavior since the New Deal in the 1930s.44

With the rise of individual opinions, judges have recognized that expressing an opposing
viewpoint has great utility. Internally, they force the majority to rethink or revise its
position, and thereby may improve the Court’s final opinion. Certain dissents, also, may
enhance the Court’s prestige if the dissent subsequently commands a majority and becomes
the law in a later case. As Chief Justice Charles Evans Hughes once said, a dissent in an
appellate court is “an appeal...to the intelligence of a future day, when a later decision may
possibly correct the error into which the dissenting judge believes the court to have been
betrayed.”45

At times, a justice may read portions or summarize the main points of a dissent from the
bench after the opinion of the Court has been handed down. Such public statements are
unusual, however. When the Supreme Court announces a decision, ordinarily the majority
author gives a short summary from the bench, and the justices in the minority remain
silent. In this respect, the appellate norm is similar to European civil law practice in some
countries in which dissenting opinions are rare or even barred. Still, when disagreement is
particularly sharp in the Supreme Court, a justice may orally dissent from the bench in
order to underscore “that the Court’s opinion is not just wrong, but importantly and
grievously misguided.”46 Such oral dissents, nonetheless, remain infrequent. Between 1969
and 2008, 119 oral dissents were registered, which, on average, represent about three per
term. Moreover, oral dissents are not confined to any particular type of case, though most
often occur in only highly ideologically divisive rulings on controversies over abortion,
school desegregation, flag burning, or death penalty.47 Sometimes, a justice may read an
angry concurrence (which actually dissents from parts of the opinion for the Court) from
the bench—which Justice Scalia did in National Labor Relations Board v. Canning (2014), a

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unanimous ruling that restricted the president’s power to make recess appointments. More
typically, as dissenting Justice Ginsburg demonstrated with Burwell v. Hobby Lobby Stores,
Inc. (2014), a decision extending religious freedom rights to corporations, reading a dissent
is tantamount to “an act of theater” that does nothing more than provocatively alert to
those who are listening a majority ruling’s perceived shortcomings.48

Unpublished Opinions
The growing practice of concurring and dissenting opinions has been accompanied by the
controversial emergence in federal appellate courts of “unpublished opinions” (which
nonetheless remain available on some electronic databases, such as LexisNexis). In the
federal appellate courts in 2013, 88 percent of appeals were terminated without published
opinions.49 Because of rising caseloads, some courts now publish only those opinions that
significantly contribute to development of the law. They may decide a published opinion is
not justified because (1) the appeal fails to raise an original or new legal question, (2) a
published opinion explanation will not have an important impact on public policy, or (3)
the lower court’s opinion can stand on its own. Arguably, the shift is justified on the
grounds that it avoids cluttering the law with inconsistent and contradictory precedents
that are, on balance, relatively inconsequential to the public. But critics (including some
judges) counter that the practice erodes judicial accountability.50

Once an appeal is decided, the parties are informed by an order affirming or reversing the
lower court. Though the language of the order varies, courts may affirm, vacate, or reverse
the lower court’s ruling in its entirety, or affirm and overturn different portions of the
lower court’s ruling. Moreover, it is not unusual for courts to issue detailed instructions
directing the lower court to correct the error it committed and for remedial action.

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Studying Judicial Decision Making
In his famous 1897 essay, “The Path of the Law,” Oliver Wendell Holmes, Jr., declared
that law is nothing more than “prophecies of what the courts will do in fact.”51 Holmes’s
“bad man” or prediction theory presumed that the discovery of facts is the key to judicial
behavior. As such, it was a forerunner to contemporary efforts to explain judicial outcomes.
Today, scholars routinely ask whether legal or political variables determine judicial decision
making. More specifically, (1) do judges decide cases solely on the basis of law or on their
ideological predispositions, (2) do institutional structures and norms play a significant role
in explaining judicial decisions, and, (3) are judges strategic actors in making decisions that
take into account legal or institutional constraints in reaching their policy goals? These
questions and others form the basis for other theories of judicial behavior that are grounded
in other disciplines, such as sociology, psychology, and economics.

The aim of these studies is identifying the underlying causes of judicial policymaking.
Although the approaches vary, public law scholars exploring normative theory use historical
analyses, the process of legal reasoning, and rival conceptions of judicial interpretation to
study judicial politics. By contrast, researchers investigating empirical, behavioral theories
use quantitative or qualitative methods to generate data, test hypotheses, and discover
relationships between variables.52

Some of the principal rival theories of judicial politics are outlined below. More specifically,
three predominant models of judicial behavior are (1) the attitudinal model, (2) new
institutionalism, and (3) strategic choice theory. Thereafter, a normative theory of legal
reasoning is analyzed. See Figure 9.2 for an overview of three methodologies used by
political scientists to study judicial behavior, and see Table 9.3 for select categories of legal
or political variables used to explain or predict judicial decisions.

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The Attitudinal Model
C. Herman Pritchett’s The Roosevelt Court: A Study in Judicial Politics and Values, 1937–
1947 (1948)53 inspired scholars to seek “behavioral” explanations for judicial decisions.
The so-called “behavioral revolution” of the 1940s and 1950s, led by Pritchett, Glendon
Schubert, and S. Sidney Ulmer, stressed the “science” of politics and relied upon
quantitative methods to explain judicial votes. Subsequent judicial behavioralists have de-
emphasized the historical and institutional characteristics of courts and hypothesized that
judicial votes are quantifiable expressions of individual policy preferences. Moreover, for
behavioralists, the normative study of legal doctrine became less important than identifying
how personal attitudes influence judicial decision making.54 In short, Pritchett “blazed a
trail” for subsequent generations of judicial behavioralists, such as Glendon Schubert and
Harold Spaeth.55

Figure 9.2 Research Methodologies for Studying Judicial Politics

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 Source: Paul Brace and Melinda Gann Hall, “Integrated Models of Judicial Dissent,” Journal of Politics
(November 1993), 914–35; David M. O’Brien, “Institutional Norms and Supreme Court Opinions: On
Reconsidering the Rise of Individual Opinions,” in Supreme Court Decision Making: New Institutionalist
Approaches, eds. Cornell W. Clayton and Howard Gillman (Chicago: University of Chicago Press, 1999), 91–
113; Harold J. Spaeth and Jeffrey A. Segal, Majority Rule or Minority Will: Adherence to Precedent on the U.S.
Supreme Court (Cambridge, U.K.: Cambridge University Press, 1999).

Schubert’s scholarship, along with Spaeth and Jeffrey Segal’s updating of the attitudinal
model in The Supreme Court and the Attitudinal Model (1993) and The Supreme Court and

485
the Attitudinal Model Revisited (2002), represents the most rigorous (but controversial)
attitudinal explanation for Supreme Court policymaking. In Quantitative Analysis of
Judicial Behavior (1959), Schubert used scalogram analysis—a statistical method borrowed
from psychological studies and also known as “Guttman scaling”—to test the theory that
attitudes drive judicial behavior. Although the use of scales, which infer attitudes by
counting votes and arranging them on ideological scales representing liberal and
conservative values, was innovative, its shortcomings led Schubert to test the attitudinal
model in a different way by using a factor analysis of the justices’ votes in another book,
The Judicial Mind (1965), in terms of two ideological dimensions (scales), “political
liberalism” and “economic liberalism,” in order to explain the justices’ votes.56 In The
Judicial Mind Revisited (1974), Schubert applied these techniques and others not only to
confirm his earlier findings but also to introduce game theory—a theory positing that
Supreme Court justices make strategic choices to grant certiorari and set the Court’s
agenda.

Although Schubert’s work generated much debate, it nonetheless established the basis for
the attitudinal and strategic models that were later popularized.57 The most complete
analysis was done by political scientists Harold Spaeth and Jeffrey Segal in The Supreme
Court and the Attitudinal Model.58 They used the statistical method of logistical regression
to argue that the attitudinal model—namely, that decisions of the Court are based on the
ideological attitudes and policy preferences of the justices (and not their rival legal
philosophies)—is the only empirically verifiable explanation for judicial policymaking. In
other words, they maintain that Supreme Court decisions cannot be explained by the so-
called legal model, which assumes that legal factors—such as precedent and the justices’
legal philosophies—are the basis for judicial decisions.

According to Spaeth and Segal, the view that law determines judicial decision making is
mistaken because interpreting precedent and constitutional or statutory text is inherently
subjective, and may not be used as an independent variable—thus defeating attempts to test
empirically the effects of a legal model. Hence, they contend that legal considerations have
little impact on judicial decisions and that law is always “made” by judges, not
“discovered.” Their view is strengthened because the attitudinal model is capable of
rigorous testing. Using observable data, such as justices’ past votes, case facts, and the
justices’ ideologies (as constructed through newspaper editorials), they conclude that the
justices’ attitudes are the best predictors of case outcomes. In their words, former Chief
Justice “Rehnquist votes the way he does because he is extremely conservative; [former
Associate Justice Thurgood] Marshall voted the way he did because he is extremely
liberal.”59 The same logic is applied to all political explanations of judicial outcomes in the
Supreme Court, along with appellate decision making in other countries, such as Canada.60

Figure 9.3 is a summary of Roberts Court voting blocs that illustrate conservative and
liberal ideological voting alignments.

486
The attitudinal model’s success in explaining Supreme Court decisions is only matched by
critical responses. Critics have pointed out a number of inconsistencies in the model, and
Spaeth and Segal responded in a revised edition, The Supreme Court and the Attitudinal
Model Revisited.61 The debate over the attitudinal model remains significant and illustrates
the strengths and weaknesses of alternative approaches to explaining judicial decision
making. Three basic criticisms are (1) the attitudinal model does not adequately account
for the role law plays in explaining judicial decision making, (2) the political and legal
factors affecting judicial decision making cannot always be quantitatively reduced, and (3)
the attitudinal model unduly minimizes the significant role institutions and judicial
strategies play in influencing judicial policymaking.

Figure 9.3 Roberts Court Voting Alignments

In addition, Spaeth and Segal have been criticized for their coding of cases.62Bush v. Gore,
for instance, was coded as a “conservative” decision, even though a majority of justices
ruled that there was a violation of voting rights on the basis of a “liberal” interpretation of
the Fourteenth Amendment Equal Protection Clause. Thus, as one critic pointed out,
although the case was widely understood by scholars to have a “liberal” meaning, the
adopted coding decision conveniently allowed for predictions of the attitudinal model to be
validated since the outcome was “conservative” in respect to effectively handing the 2000
presidential election to George W. Bush.63

In other words, justices’ votes are at times hard to code, and making certain coding
decisions has the potential to manipulate or at least distort the statistical results. For
example, in two other widely watched cases, the Court revisited the controversy over the
public display of the Ten Commandments and other religious symbols. In Van Orden v.

487
Perry (2005),64 writing for a plurality Chief Justice Rehnquist held that in a public park
the erection of a six-foot granite monument on which the Ten Commandments were
chiseled did not violate the First Amendment (dis)establishment clause. Liberal Justices
Stevens, O’Connor, Souter, and Ginsburg dissented. However, in McCreary v. American
Civil Liberties Union of Kentucky (2005),65 Justice Souter ruled that two Kentucky counties
violated the First Amendment by displaying the Ten Commandments in their courthouses.
Conservative Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas dissented.
In both cases, Justice Breyer cast the pivotal vote and formed bare majorities. He did so on
pragmatic grounds, reasoning that the Texas monument had stood unchallenged for over
forty years, whereas the Kentucky displays immediately sparked controversy and appeared
to clearly aim at endorsing religion.

Such criticisms reinforce controversies about whether judges in western democracies are
simply political actors (as the attitudinal model predicts) (see “In Comparative Perspective:
Are Judges ‘Politicians in Robes’ or Not?”), and also prompted political scientists to
develop alternative methodologies for explaining judicial behavior, as discussed next (see
Figure 9.2).

488
In Comparative Perspective

489
Are Judges “Politicians in Robes” or Not?
In recent decades, justices, judges, and court watchers have debated “the globalization of judicial power”
and the role of courts in democracies. That trend has been described as “the judicialization of politics” not
only in European democracies but also elsewhere around the world. In the 1990s, for example, the growth
of judicial power in Italy was illustrated by the “clean hands” investigations by prosecutors and judges,
which resulted in displacing a political class that had governed the country for over fifty years. The German
Constitutional Court imposed restrictions on abortion and banned religious symbols in public school
classrooms, which ignited fierce political controversies. And Egyptian courts were at the center of
democratic protests that ousted President Hosni Mubarak, and they remain pivotal actors in the ongoing
struggle to democratize the political process.

The expansion of judicial power, domestically and internationally, has been both praised and condemned.
Some argue that courts reinforce the basic principles of constitutional democracy. Others contend that
judges are usurping the democratic process. Ultimately, though, both sides disagree about the role of courts
and whether judges are political actors.

The question of whether judges are political actors was put into bold relief in the United States in an
exchange between the majority and dissenting opinions in Republican Party of Minnesota v. White (2002).
At issue was the constitutionality of prohibiting state judicial candidates, during their election campaigns,
from announcing their positions on legal and political controversies. Writing for the majority, Justice
Antonin Scalia—joined by Chief Justice William H. Rehnquist and Justices Anthony Kennedy, Sandra Day
O’Connor, and Clarence Thomas—maintained that such a restriction (the “announce” clause) violates the
First Amendment because “it prohibits speech on the basis of its content and burdens a category of speech
that is at the core of First Amendment freedoms—speech about candidates for public office.” By contrast,
Justice Ruth Bader Ginsburg—joined in her dissent by Justices John Paul Stevens, David Souter, and
Stephen Breyer—defended the power of states to regulate judicial campaigns and elections. Notably, as the
excerpts below indicate, the majority and the dissenters advance competing conceptions of whether judges
are political actors.

Judges Are Political Actors—Justice Scalia’s View:

We think it plain that the announce clause is not narrowly tailored to serve impartiality (or the appearance
of impartiality)....Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not
restrict speech for or against particular parties, but rather speech for or against particular issues. To be sure,
when a case arises that turns on a legal issue on which the judge (as a candidate) had taken a particular
stand, the party taking the opposite stand is likely to lose. But not because of any bias against that party, or
favoritism toward the other party. Any party taking that position is just as likely to lose. The judge is
applying the law (as he sees it) evenhandedly.

It is perhaps possible to use the term “impartiality” in the judicial context (though this is certainly not a
common usage) to mean lack of preconception in favor of or against a particular legal view. This sort of
impartiality would be concerned, not with guaranteeing litigants equal application of the law, but rather
with guaranteeing them an equal chance to persuade the court on the legal points in their case. Impartiality
in this sense may well be an interest served by the announce clause, but it is not a compelling (state)
interest, as strict scrutiny requires. A judge’s lack of predisposition regarding the relevant legal issues in a
case has never been thought a necessary component of equal justice, and with good reason. For one thing, it
is virtually impossible to find a judge who does not have preconceptions about the law....

A third possible meaning of “impartiality” (again not a common one) might be described as open-
mindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that
he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the
issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance

490
to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in
this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since
we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose.

The short of the matter is...a candidate for judicial office may not say “I think it is constitutional for the
legislature to prohibit same-sex marriages.” He may say the very same thing, however, up until the very day
before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is
elected. As a means of pursuing the objective of open-mindedness that respondents now articulate, the
announce clause is so woefully under-inclusive as to render belief in that purpose a challenge to the
credulous....

There is an obvious tension between the article of Minnesota’s popularly approved Constitution which
provides that judges shall be elected, and the Minnesota Supreme Court’s announce clause which places
most subjects of interest to the voters off limits. The disparity is perhaps unsurprising, since the ABA, which
originated the announce clause, has long been an opponent of judicial elections. That opposition may be
well taken (it certainly had the support of the Founders of the Federal Government), but the First
Amendment does not permit it to achieve its goal by leaving the principle of elections in place while
preventing candidates from discussing what the elections are about.

Judges Are Not Political Actors—Justice Ginsburg’s View:

Unlike their counterparts in the political branches, judges are expected to refrain from catering to particular
constituencies or committing themselves on controversial issues in advance of adversarial presentation.
Their mission is deciding “individual cases and controversies” on individual records, neutrally applying legal
principles, and, when necessary, “stand[ing] up to what is generally supreme in a democracy: the popular
will.”...

The speech restriction must fail, in the Court’s view, because an electoral process is at stake; if Minnesota
opts to elect its judges, the Court asserts, the State may not rein in what candidates may say....I do not agree
with this unilocular, “an election is an election,” approach. Instead, I would differentiate elections for
political offices, in which the First Amendment holds full sway, from elections designed to select those
whose office it is to administer justice without respect to persons....

Legislative and executive officials serve in representative capacities....Judges, however, are not political
actors. They do not sit as representatives of particular persons, communities, or parties; they serve no faction
or constituency. They must strive to do what is legally right, all the more so when the result is not the one
“the home crowd” wants. Even when they develop common law or give concrete meaning to constitutional
text, judges act only in the context of individual cases, the outcome of which cannot depend on the will of
the public....

Thus, the rationale underlying unconstrained speech in elections for political office—that representative
government depends on the public’s ability to choose agents who will act at its behest—does not carry over
to campaigns for the bench....In view of the magisterial role judges must fill in a system of justice, a role that
removes them from the partisan fray, States may limit judicial campaign speech by measures impermissible
in elections for political office....

For further reading, see Ursula Lindsey, “Egypt’s Judges Strike Back,” The New Yorker (March 26, 2014),
available at www.newyorker.com (last retrieved July 4, 2014); Donald W. Jackson, Michael C. Tolley, and
Mary L. Volcansek, eds., Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-Border
Migration of Legal Norms (Albany: State University of New York Press, 2010); Aharon Barak, The Judge in a
Democracy (Princeton, N.J.: Princeton University Press, 2006); Carlo Guarnieri and Patrizia Pederzoli, The
Power of Judges: A Comparative Study of Courts and Democracy (New York: Oxford University Press, 2002);
C. Neal Tate and Torbjorn Vallinder, eds., The Global Expansion of Judicial Power (New York: New York
University Press, 1995); Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (Washington, D.C.:
American Enterprise Institute, 2003); and Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

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New Institutionalism
New institutionalism studies of courts are interdisciplinary, drawing on history, sociology,
or political science. Inspired by the work of Martin Shapiro on the significance of “political
jurisprudence” and that of Rogers Smith,66 public law scholarship generally reflects two
dominant strands: rational choice (“strategic”) institutionalism and historical
institutionalism. Rational choice research focuses on the extent to which judges are strategic
actors who try to achieve their policy goals by making choices that are constrained by other
judges and participants in the judicial process. By contrast, historical institutionalism
focuses on judicial institutions as structured by their historical and political contexts, which
in turn explains the unique legal and political positions of courts and judges.

New institutionalism stands in sharp contrast to the attitudinal model. But its basic premise
—namely, that legal considerations affect judicial decisions—is not “new” and stems from
traditional constitutional law analysis and, perhaps to a lesser degree, jurisprudence (see
Chapter Two).67 A principal objective of historical institutionalism is thus to connect, from
an interpretative and historical perspective, normative conceptions of law and courts with
the contemporary legal institutions and their political roles.68 That is to say, judicial
decision making is contextualized within the framework of institutional arrangements and
practices, such as the structure of courts, judicial norms, the makeup of law schools or bar
associations, and the predominant legal culture. In addition, its proponents maintain that
the discovery of the institutional characteristics of judicial behavior offers a more nuanced
and balanced view of the patterns of “purpose and meaning” that underlie American
political development.69

Two books, Supreme Court Decision-Making: New Institutionalist Approaches (1999) and
The Supreme Court in American Politics: New Institutionalist Interpretations (1999),70 are
illustrative. They analyze how courts are institutionally affected by the power of judicial
review and other legal principles, judicial leadership styles, opinion assignment practices,
judicial selection methods, the relationships courts have to bar associations, and the
political dynamics courts share with other institutions, such as the presidency, Congress, or
political parties.

Critics of new institutionalism, however, argue that its substantive claims and
methodological approach are flawed because historical and interpretative findings are not
subjected to rigorous empirical analysis and overestimate the role law plays as a constraint
on the behavior of judges.71

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Strategic Choice Theory
Based on justices’ private papers and court memos, political scientist Walter Murphy, in his
classic The Elements of Judicial Strategy (1964), maintained that policy-minded Supreme
Court justices construct a “grand strategy and particular strategies” to achieve their goals in
dealing with colleagues and other nonjudicial political actors.72 Subsequent research
analyzed the role strategic considerations play in producing judicial outcomes, ostensibly
reconciling the attitudinal and institutionalist assumptions that personal attitudes and legal
considerations affect judicial decision making. In addition, strategic or rational choice
scholars tend to favor empirical methods. Thus, strategic choice theorists share the
institutionalist belief that law matters, but in their use of quantitative methods, they share
common ground with those who champion the attitudinal model.

Strategic choice theory maintains that judges base their decisions on strategic calculations
that are tempered by legal factors and institutional constraints. As two leading scholars put
it, “Justices may be primarily seekers of legal policy, but they are not unsophisticated actors
who make decisions based merely on their ideological attitudes. Instead,” they explain,
“justices are strategic actors who realize that their ability to achieve their goals depends on a
consideration of the preferences of other actors, of the choices they expect others to make,
and of the institutional context in which they act.”73

As strategic actors, judges seek to achieve their policy goals, but they only do so after
weighing the risks and benefits of their actions. Judicial decision making is thus
interdependent because, in order to maximize their own policy preferences, judges choose
courses of action that take into account the preferences of others in a given institutional
context. Judges are also portrayed as “sophisticated” decision makers: They may not be able
to vote for their true or “sincere” preferences because such choices may not be the best ones
to make under the circumstances. In other words, judges vote in accordance with policy
positions that best approximate their sincere choices because to do otherwise might
compromise their chance to achieve their most preferred goals.74

Although some scholars have extended strategic choice theory to the study of judicial
recruitment and the institutional relationship between courts and other political
branches,75 it remains centered on the dynamics of coalition building and opinion writing.
Two books, The Choices Justices Make and Crafting Law on the Supreme Court: The Collegial
Game,76 are illustrative. In The Choices Judges Make, Lee Epstein and Jack Knight used the
private papers of justices and case analysis to highlight how decisions during the Burger
Court (1969–1986) were achieved through an extensive process of strategic negotiations,
bargaining, and compromise. Likewise, political scientists Forrest Maltzman, James Spriggs
II, and Paul Wahlbeck in Crafting Law on the Supreme Court show that justices engage in a
“collegial game” of strategic coalition building in opinion assignment and drafting opinions

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in order to maximize their policy preferences. Although critics may not agree with whether
the authors were successful, both books try to reconcile central themes found in the
attitudinal and new institutionalist perspectives. In other words, they try to overcome the
attitudinal model’s insistence that judicial decisions are solely driven by political
preferences, without regard to legal considerations, as other new institutionalists claim.

Future Directions of Judicial Behavior Research

Strategic choice theorists assume that judges are principally rational actors who seek to
implement their policy goals through their decision making. However, some scholars
remain skeptical about whether judges’ policy goals are the only factor driving judicial
behavior. Consequently, they promote empirical legal studies77 and apply economic
analysis to explain the rational choices of judges. Apart from strategic or economic theories,
a few scholars posit other explanations based on the psychological and personal motivations
behind judging.

In sum, empirical legal studies claim to overcome the weaknesses of traditional legalism
(discussed in the next section) and to the attitudinal model. Likewise, some other
interdisciplinary scholars argue for a “labor-market theory” of judicial behavior. That is,
judges decide cases as participants in the labor market, weighing the costs and benefits of
different outcomes based on a “judicial utility function,” an economic term. On this
theory, judges take into account legal factors along with those of self-interest, including
choices to avoid work, maximize leisure, earn promotion, avoid peer criticism, and build
collegial relationships. Other considerations are time constraints, personal and work-related
satisfaction (i.e., enjoying work while gaining reputation, power, and influence), and
monetary benefits. Applying such categories across all levels of the federal judiciary, some
scholars contend that to varying degrees ideological preferences and choices about avoiding
work and gaining leisure time better explain judicial behavior.78

In a similar vein, political scientist Lawrence Baum has proposed an “audience-based”

theory based on social psychology to explain judicial decision making. Baum argues that
judges are highly cognizant of “self-presentation,” or how they are perceived by the internal
and external audiences that matter to judges. These include judicial colleagues, the public,
the media, politicians, other lawyers and bar associations, and the social groups or elites.
Like Baum, still other scholars have explored the psychological motivations or incentives
underlying judging.79

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Legal Reasoning and Interpretative Approaches
More traditionally, some social scientists and legal scholars argue that “the law,” and how
legal principles are derived through legal reasoning and different interpretative methods,
explains more about judicial behavior and avoids the reductionism of empirical studies.80
In other words, the discovery and application of legal principles and their application to
cases remain at the heart of the judicial function. Not surprisingly, judges are most
comfortable deciding cases when the legal rule is clear and the facts are similar to those in
past decisions. At least in those situations, it is not very difficult for judges to distill a
common legal principle from past cases and then apply it. But, when the facts are dissimilar
or judges confront “hard cases,” scholarly attempts to explain what the judge is doing are
more difficult.

Traditional legal studies emphasize the creative elements and interpretative choices in legal
reasoning to explain judicial decisions. As Circuit Judge Harry Edwards once observed, “It
is the law—and not the personal politics of individual judges—that controls decision
making in most cases resolved by the courts of appeals.” Later retreating somewhat from
that view,81 Edwards conceded his socialization and training in law school reinforced his
conviction that the judicial decision-making process is nothing more than “thinking like a
lawyer”—in other words, the law is “found” in a rather mechanical fashion by analyzing
past judicial opinions and applying general legal rules and principles in deciding particular
cases.

Blackstone’s declaratory theory of law (discussed in Chapter One) exemplifies this view in
characterizing judicial interpretation as essentially value free and nondiscretionary. But that
theory has been largely debunked. Judicial decision making and legal reasoning are rarely so
simple.

Still, some judges and scholars, like former Chicago Law School dean Edward H. Levi,
maintain that legal reasoning involves reasoning by example or analogy, or “reasoning
from case to case.”82 Unlike the Blackstonian declaratory theory, reasoning by analogy
ostensibly involves culling legal principles from past cases that are factually similar and
applying them to new circumstances. Reasoning by example or analogy, Levi argued, occurs
in three stages. First, judges recognize the similarity between a past case and the case under
review. Next, the judge discovers a rule of law from the prior case. And, finally, judges
apply the rule to the case at hand. Because the “rules arise out of a process which, while
comparing fact situations, creates the rules and then applies them,” for Levi the most
crucial task of the judge is to determine the similarity or difference in facts between cases.83

Yet, as Justice Benjamin Cardozo observed in his classic The Nature of the Judicial Process,
judges often confront ambiguous cases and facts that encourage the creative exercise of

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discretion. “The rules and principles of case law,” he explained, “have never been treated as
final truths, but as working hypotheses, continually retested in those great laboratories of
the law, the courts of justice.” Cardozo understood that legal reasoning is a dynamic
enterprise that sometimes inevitably entails subjective interpretation. As Cardozo put it,
legal reasoning involves a “method of free decision” in which the “directive force of a
principle” is fashioned by the judge through the combined use of community traditions
and methods of philosophy, history, and sociology.84

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The Law and Politics of Legal Precedent
When a bare majority of the Court in Webster v. Reproductive Health Services (1989) upheld
several abortion restrictions but did not overturn Roe v. Wade (1973), Justice Scalia
lamented85:

We can now look forward to at least another Term with carts full of mail from the
public, and streets full of demonstrators, urging us—their unelected and life-tenured
judges who have been awarded those extraordinary, undemocratic characteristics
precisely in order that we might follow the law despite the popular will—to follow the
popular will. Indeed, I expect we can look forward to even more of that than before,
given our indecisive decision today.

Within a few years, though, the two leading liberals—Justices William J. Brennan and
Thurgood Marshall—had been replaced by Justices David Souter and Clarence Thomas.
And once again the Court appeared poised to overrule Roe in Planned Parenthood of
Southeastern Pennsylvania v. Casey (1992).86 But, in another five-to-four decision and an
unusual joint opinion for the Court by Justices O’Connor, Souter, and Kennedy (which
Justices Stevens and Blackmun joined only in part), the Court reaffirmed “the essence of
Roe.” “Liberty finds no refuge in a jurisprudence of doubt,” they observed, and the doctrine
of stare decisis commended respect for Roe. Stare decisis, in their words, required the Court
to

take care to speak and act in ways that allow people to accept its decisions on the
terms the Court claims for them, as grounded truly in principle, [and] not as
compromises with social and political pressures having, as such, no bearing on the
principled choices that the Court is obliged to make.

To do anything less, the plurality continued, would damage the rule of law as well as the
Court’s legitimacy because citizens relied upon Roe and its underlying principle that women
have the right to choose an abortion, at least within the first three months of their
pregnancy.87

Casey reminds us that even in “hard cases” the judiciary is generally inclined to adhere to
precedent for several reasons. First, legal precedent promotes stability, certainty, and
uniformity in the law. Second, adherence to precedent is a safeguard against arbitrary
rulings and facilitates the development of the rule of law. Third, it reinforces the public
perception that judicial decisions should be based on established legal principles. For these

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reasons, some scholars contend that landmark rulings entrench “judicial regimes,” or
constitutional baselines that order public expectations and establish the boundaries for the
exercise of governmental power.88

Casey and Webster also underscore Justice William O. Douglas’s observation that stare
decisis is not “so fragile a thing as to bow before every wind,” as well as that of Justice Louis
Brandeis, who said that following precedent is “usually the wise policy, because in most
matters it is more important that the applicable rule of law be settled than it be settled
right.”89 Hence, the reversal of precedent is exceedingly rare in light of the total workload
of policymaking appellate courts. According to estimates, the Supreme Court has
overturned only 235 precedents in its entire history, which roughly amounts to about fewer
than three cases per term.90

Yet adhering to precedent is by no means automatic. In the words of Chief Justice

Rehnquist, “Stare decisis is not an inexorable command; rather, it is a principle of policy
and not a mechanical formula of adherence to the latest decision.”91 A mix of legal and
political factors permit appellate judges to make new policy by minimizing the force of
precedent or, less often, entirely disregarding it. Judges may diminish the weight of
precedents by “distinguishing,” “questioning,” or “limiting” them. Distinguishing cases
avoids applying a precedent on the basis that the facts are different from those in the case
under review. As Casey suggests, questioning a precedent permits courts to change the law
without actually overturning a prior ruling. Roe is still on the books, but it does not carry
the same weight as it once did because the Court threw out the so-called trimester approach
to balancing the interests of women, the unborn, and governmental regulations. Moreover,
the Court upheld restrictions on abortion that had been previously invalidated in earlier
cases under Roe. In still other cases, appellate courts may choose to “limit” a precedent by
confining its application in new cases to a very narrow set of circumstances, which, in turn,
restricts it as a controlling legal principle.

Although such decisions permit judges to adjust the scope and application of a precedent in
light of different facts, they shed little light on the specific legal criteria or political factors
that lead to the reversal of precedents. Traditionally, stare decisis usually dictates that courts
should not overturn past decisions unless there is a “special reason” to do so. Such reasons
include a later court’s conclusion that a precedent was wrongly decided in the first place,
that a precedent’s application has become unworkable in practice, or simply that changing
law, facts, or circumstances have rendered a precedent obsolete or susceptible to
misapplication.92

In addition, overturning a precedent significantly depends on whether it is a constitutional

or statutory ruling. Supreme courts generally show more respect to precedents involving
statutory interpretation because legislatures may override them by enacting new legislation,
whereas the process of passing constitutional amendments to overturn a ruling is usually

498
extremely difficult. Courts also are generally reluctant to reverse precedents involving
economic interests because such interests are vested and may become more valuable over
time. Moreover, if a precedent was handed down by a unanimous court, it is usually given
greater respect than one established by a bare majority; indeed, the latter invites
reconsideration because it was established by a single vote. Finally, courts are more likely to
respect older precedents so as not to disturb the stability of the law and social
expectations.93

Of course, reversals of precedents often result from changes in the composition of the
bench. Particularly, when a court’s membership rapidly changes and new majorities
coalesce in a short period of time, “constitutional law will be in flux,” at least “until the new
judges have taken their positions on constitutional doctrine.” Conversely, in periods of
stable membership, known as natural courts, there are usually fewer reversals. To be sure,
in periods of constitutional flux, it is not unusual for judges to chastise publicly their new
brethren for upsetting precedents in high-profile cases. In his last dissent, Justice Marshall,
for example, accused the Court’s majority of subverting stare decisis in overturning two
recently decided cases that barred “victim impact statements” in sentencing hearings in
death penalty cases. “Power, and not reason,” he charged, is the “new currency of [the]
Court’s decision-making,” and emphasized that “neither the law nor the facts supporting
[the overturned precedents] underwent any change in the last four years. Only the
personnel of [the] Court did.”94

Some scholars go so far as to deny that stare decisis constrains courts from overturning past
decisions. In one study, political scientists Thomas Hansford and James Spriggs concluded
that the judiciary’s respect for precedent depends on whether judges have ideological
disagreements with the legal principles established in earlier cases. In their analysis of
Supreme Court cases, they found that reversals of liberal precedents were more likely if the
Court’s composition changed and became more conservative, and conversely reversals of
conservative precedents were more likely to be overturned when the composition of the
bench became more liberal. They also found that legal norms and institutional constraints
were key overruling factors as well. And in a subsequent analysis, they found that justices
tend to interpret precedents in order to establish new legal policies that are aligned with
their policy preferences.95

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Statutory Interpretation
This section considers the importance of appellate court policymaking in terms of the
different ways courts interpret statutes. The growing importance of statutory construction
is evaluated and in the following section contrasted with various methods of constitutional
interpretation and rival judicial philosophies.

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Statutory Construction
“In my view today’s opinion,” dissenting Justice Scalia observed in PGA Tour, Inc. v.
Martin (2001), “exercises a benevolent compassion that the law does not place it within our
power to impose.”96 The main issue concerned whether the Americans with Disabilities Act
(ADA) of 1990 should be interpreted to permit a disabled professional golfer, Casey
Martin, to use a golf cart in a PGA competition. Writing for seven justices, Justice Stevens
reasoned that the ADA’s language and underlying legislative history supported the
conclusion that Martin, who suffered from a circulatory blood disease, was entitled to
reasonable accommodations in order for him to have an equal chance to compete. Justice
Scalia, joined by Justice Thomas, thought otherwise, claiming that the majority’s
interpretation of the statute “distorts the text of Title III, the structure of the ADA, and
common sense.”97

The issue before the Court, Justice Scalia maintained, was not whether Martin should have
a disability accommodation, but rather whether Congress required the PGA to give him
one on the basis of a commonsense reading of the statute. Although they disagreed on the
outcome, both justices construed the ADA according to “the plain meaning” of the statute.
What divided them was what to do afterward. For Justice Scalia, who embraces a textualist
approach to statutory construction (see Table 9.4), the ADA plainly did not impose any
legal obligation on the PGA to accommodate Martin’s disability.

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 Source: Elizabeth Garrett, “Legislation and Statutory Interpretation,” in The Oxford Handbook of Law and
Politics (New York: Oxford University Press, 2010), 360–65; Robert A. Katzmann, Courts and Congress
(Washington, D.C.: Brookings Institution Press, 1997); William N. Eskridge, Jr., Dynamic Statutory
Interpretation (Cambridge, Mass.: Harvard University Press, 1994); and Robert A. Katzmann, Judging Statutes
(New York: Oxford University Press, 2014).

By contrast, for Justice Stevens, the text of the ADA was only the beginning and not the
end of the analysis: the statute’s total structure had to be considered, as well as its overall

502
purpose and supporting legislative history. Though the interpretative approach Justice
Stevens took might appear more compassionate (in the words of Justice Scalia, epitomizing
a “decent, tolerant, and progressive judgment”), it was actually more of an attempt to bring
some objectivity to an otherwise vexing process of figuring out how to apply a statute in an
entirely new context.98

In short, some legal scholars have concluded that the difficulty of interpreting ambiguous
statutory language means that “the hard truth of the matter is that American courts have no
intelligible, generally accepted, and consistently applied theory of statutory
interpretation.”99 The sticking point in the PGA Tour case, as Justice Felix Frankfurter
once observed about reading statutes, was “the determination of the extent to which
extraneous documentation and external circumstances may be allowed to infiltrate the text
on the theory that they were a part of it, written in ink discernible to the judicial eye.”100
All judges begin the process of statutory interpretation by reading the text. But what “the
plain meaning” of words might be may only be clear to some but not to others, especially if
the law’s context and purpose are not taken into account. Justice Breyer illustrated the
point by using the example of the sign that says, “No animals in the park.” An “animal,” he
noted, could be interpreted to be a squirrel, a dog, or even an insect. In New York, for
example, a resident who sees the sign outside of New York City’s Central Park would
probably think that the sign refers to “dogs”; but, if the sign is outside a parking lot in a
city where many residents ride donkeys or elephants, the meaning might be different. Or, if
the sign is in an English laboratory in a place where microbiologists put their test tubes,
Londoners might think something else because in England people call insects “animals.”101

Consequently, ambiguous statutory language often compels judges to look to extraneous

sources and to the overall context of a statute in order to ascertain the legislature’s “intent.”
Hence, judges and lawyers often use extralegal sources as “tools” to determine the meaning
of a statute—these include consulting “legislative history,” as well as statutory “canons,” or
judge-made rules that aid in interpreting statutes (see Table 9.4).

None of the theories or methods of construction are free from criticism, however. The
search for legislative intent might have the advantage of being contextual, but in the end,
judges make choices about what sources to consult and whose intent controls (a problem
exacerbated by the self-interest of legislators and the fact that popular assemblies are an
aggregation of many legislators and multiple conflicting intents). In referring to the futility
of interpretative “canons,” former federal appeals court judge Abner Mikva once observed:
“When I was in Congress, the only ‘canons’ we talked about were the ones the Pentagon
bought that could not shoot straight.”102 A colleague on the D.C. Circuit, Judge Harold
Leventhal, likewise once quipped that using legislative history was like “looking over a
crowd and picking out your friends.”103 This is especially the case when federal agencies try
to carry out a legislative purpose but are given overly broad statutory mandates to
implement legislation. The Federal Trade Commission, for instance, has the power to

503
eliminate “unfair methods of competition,” and the Securities and Exchange Commission
has authority to establish a “fair and orderly market.”104 Hence, when federal regulations
are created by agencies to carry out the legislative mandate but are challenged in court,
judges may simply defer to an agency’s interpretation of a contested statute because it is
difficult for the court to know the statute’s actual meaning. In sum, every method of
statutory construction is value laden and remains a function of judicial discretion.

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Constitutional Interpretation
Generally speaking, judges tend to use one of two broad methods of constitutional
interpretation: interpretivism and noninterpretivism. Interpretivism emphasizes giving a
strict construction to “the plain meaning” of textual language, while also considering its
historical context and “the original understanding” of the application of constitutional
provisions. Noninterpretivism also respects the text and historical context, but as well
embraces contemporary interpretations and applications of what the words mean today.
The use of one or the other does not automatically create an outcome that is associated
with either a conservative or a liberal philosophy. Still, identifying the general methods
judges use provides insight to their judicial philosophy and the general guidelines or
principles on which they decide cases.

Interpretivism holds that judges should construe constitutions by analyzing the text in light
of historical context. One variant is “strict constructionism,” which dictates that judges
should examine the plain meaning of the words as they literally appear within the four
corners of a document. Limiting interpretation to the text, arguably, best preserves and
remains faithful to the original intent of the Framers. According to Edwin Meese III,
President Ronald Reagan’s attorney general, respecting the Framers’ intent is the “proper
role of the Supreme Court in our constitutional system.” In his words:

The intended role of the judiciary generally and the Supreme Court in particular was
to serve as the “bulwarks of a limited constitution.”... As the “faithful guardians of the
Constitution,” the judges were expected to resist any political effort to depart from the
literal provisions of the Constitution. The text of the document and the original
intention of those who framed it would be the judicial standard in giving effect to the
Constitution.105

In theory, judges who rely on original intent tend to favor judicial restraint in the sense that
they claim not to apply constitutional provisions beyond what the Framers might have
intended; thus they do not “legislate from the bench” by interjecting their own values.106

Judges endorsing “originalism”—or the “original meaning” or “original understanding” of

constitutional provisions—such as Justice Scalia, Judge Robert Bork, and Chief Justice
Rehnquist, take a slightly different view. In order to meet the objection that it is impossible
to know what the Framers intended, they conclude it is better to derive a general
understanding of what the Framers meant, as informed by historical context. “What I look
for in the Constitution,” in the words of Justice Scalia, “is precisely what I look for in a
statute: the original meaning of the text, not what the original draftsmen intended.”107
Though imperfect, originalists defend the method as a better alternative to

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noninterpretivism.108

Supreme Court Justices Antonin Scalia, right, and Stephen Breyer, left, laugh with host Jan
Crawford Greenburg, center, during an event before the Federalist Society and the
American Constitution Society to explain how they each interpret the Constitution on
December 5, 2006, in Washington, D.C.

AP Photo/Nick Wass

Noninterpretivists celebrate what originalist judges scorn: a “living constitution” that

adjusts to changing circumstances. Justice Brennan, along with Justice Marshall, for
example, voted against the death penalty not only because it was a “cruel and unusual”
punishment under the Eighth Amendment, but also because it violated basic principles of
human dignity that are an essential part of an evolving civilization. Likewise, Justice
Anthony Kennedy’s opinion in Roper v. Simmons (2005)109 relied upon the “evolving
standards of decency” to forbid the execution of juveniles convicted of murder. In other
words, constitutional provisions must be interpreted in accord with contemporary
principles, social science, pragmatism, moral philosophy, and basic human values. Although
text and history begin the analysis, they are incomplete guides. Justice Brennan explained:

We current justices read the Constitution in the only way that we can: as [twenty-
first-]century Americans. We look to the history of the time of framing and to the
intervening history of interpretation. But the ultimate question must be, [w]hat do the
words of the text mean in our time? For the genius of the Constitution rests not in
any static meaning it might have had in a world that is dead and gone, but in the
adaptability of its great principles to cope with current problems and current needs.110

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The debate over constitutional interpretation is ongoing. Scholars as well as judges have not
reached any consensus about the best philosophy, sources, and methods of constitutional
interpretation.111 For further discussion, see “Contemporary Controversies Over Courts:
How Should Judges Interpret the U.S. Constitution?”

507
Contemporary Controversies Over Courts

508
How Should Judges Interpret the U.S. Constitution?
Disagreement, on and off the bench, remains over how the Constitution should be interpreted. But that
should not be surprising, for the Constitution is a legal and political document that does not say how it
should be interpreted. Its “majestic generalities,” as Justice Benjamin Cardozo put it, like the guarantees for
“free speech,” “due process,” and “the equal protection of the law,” invite rival interpretations and
competing conceptions. They also must be applied in new, unforeseen ways in light of changing social,
economic, and technological changes.

In response, some scholars and judges—notably, Judge Robert H. Bork and Justices Antonin Scalia and
Clarence Thomas—have championed the position that constitutional interpretation should be confined to
the text and “original intent” of the Framers or the “original public understanding” of constitutional
provisions in order to limit judicial discretion and to reconcile judicial review with democratic governance.
As the excerpts below indicate, they maintain that staying faithful to the plain intent of the words restrains
judges from abusing their discretion in a democracy and respects the people’s will as expressed in legislation.

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Originalism: The Lesser Evil—Justice Antonin Scalia
The principal theoretical defect of non-originalism, in my view, is its incompatibility with the very principle
that legitimizes judicial review of constitutionality. Nothing in the text of the Constitution confers upon the
courts the power to inquire into, rather than passively assume, the constitutionality of federal statutes....
[Instead], originalism seems to me more compatible with the nature and purpose of a Constitution in a
democratic system. A democratic society does not, by and large, need constitutional guarantees to insure
that its laws will reflect “current values.” Elections take care of that quite well. The purpose of constitutional
guarantee...is precisely to prevent the law from reflecting certain changes in original values that the society
adopting the Constitution thinks fundamentally undesirable. Or, more precisely, to require the society to
devote to the subject the long and hard consideration required for a constitutional amendment before those
particular values can be cast aside.

By contrast, Justices Thurgood Marshall and William J. Brennan, Jr., among others, have countered that
the Constitution is a “living document” that embodies substantive values or a “constitutional morality” that
guarantees protection for “human dignity” from the majoritarian forces of democracy. Still others, such as
Justice Stephen Breyer, argue that judges have an obligation to decide cases in light of history, text,
precedent, tradition, and, above all, the pragmatic consequences of what the effect of the ruling will be in
advancing underlying democratic values.

510
The Constitution: A Living Document—Justice
Thurgood Marshall
[The] meaning of the Constitution was [not] forever “fixed” at the Philadelphia Convention. Nor [is the]
wisdom, foresight, and sense of justice exhibited by the framers particularly profound. [T]he government
they devised was defective from the start, requiring several amendments, a civil war, and momentous social
transformation to attain the system of constitutional government, and its respect for the individual freedoms
and human rights, that we hold as fundamental today.

The men who gathered in Philadelphia in 1787 could not have...imagined...that the document they were
drafting would one day be construed by a Supreme Court to which had been appointed a woman and the
descendent of an African slave. “We the People” no longer enslave, but the credit does not belong to the
framers. It belongs to those who refused to acquiesce [to] outdated notions of “liberty,” “justice,” and
“equality” and [those] who strived to better [those ideas].

511
Constitutional Aspirations and Contemporary
Ratification—Justice William J. Brennan, Jr.
The Constitution embodies the aspirations to social justice, brotherhood, and human dignity that brought
this nation into being....Its majestic generalities and ennobling pronouncements are both luminous and
obscure....

There are those who find legitimacy in fidelity to what they call “the intentions of the framers.”...But in
truth, it is little more than arrogance cloaked as humility. It is arrogant to pretend...we can gauge accurately
the intent of the framers on [the] application of principle[s] to specific, contemporary questions...

It is the very purpose of a Constitution—and particularly of the Bill of Rights—to declare certain values
transcendent, beyond the reach of temporary political majorities....Faith in democracy is one thing, blind
faith is quite another. Those who drafted our Constitution understood the difference. One cannot read the
text without admitting that it embodies substantive value choices; it places certain values beyond the power
of any legislature.

512
Constitutional Pragmatism—Justice Stephen Breyer
The original Constitution’s primary objective...[was] furthering active liberty, as creating a form of
government in which all citizens share the government’s authority, participating in the creation of public
policy. It understands the Constitution’s structural complexity as responding to practical needs, for
delegation, for nondestructive...public policies, and for protection of basic individual freedoms....And it
views the Constitution’s democratic imperative as accommodating, even insisting upon, these practical
needs.

For further reading, see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton,
N.J.: Princeton University Press, 1997); Thurgood Marshall, “The Constitution: A Living Document,” in
Judges on Judging: Views From the Bench, 4th ed., ed. David M. O’Brien (Washington, D.C.: CQ Press,
2013), 244–48; William J. Brennan, Jr., “The Constitution of the United States: Contemporary
Ratification,” delivered at the Text and Teaching Symposium, Georgetown University, October 12, 1985;
and Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Knopf, 2005).

513
Chapter Summary
Appellate courts, unlike trial courts, have the capacity to make legal and public policy,
whereas lower courts generally impact only the parties involved in a lawsuit. A relatively
small percentage of trial court decisions are appealed, and the overwhelming majority of
appeals are unsuccessful.

In general, the appeals decision making process consists of agenda setting, oral arguments,
judicial conferences, and issuing a judicial opinion. Case selection is governed by statutes,
procedural rules, judicial norms, and a variety of legal and political factors. Oral advocacy
has become less prevalent in deciding appeals. Instead, written legal briefs and internal
research memoranda supplied by law clerks and central staff attorneys are the basis of most
rulings. Still, oral arguments remain important because they allow for an exchange of
critical information not in the briefs. Judicial conferences are significant forums for case
management and coalition building among judges. An appellate court’s final judgment is
delivered in a written opinion. The collaborative and dynamic process of writing judicial
opinions includes the key role law clerks now play in researching and drafting opinions for
judges.

Political scientists and legal scholars study judicial policymaking with different research
methodologies. Whereas attitudinal theory posits that judicial decisions are solely a
function of judicial preferences, rational choice theory hypothesizes that judicial behavior is
driven by strategic calculations of judges that take into account what other judges will do in
deciding cases. New institutionalism studies use a variety of interdisciplinary approaches. In
contrast, traditional legal studies focus on the deductive process of legal reasoning and use
of applicable legal principles or precedents.

Appellate courts establish the law and make policy in statutory and constitutional cases.
Judges use various theories, among them intentionalism, textualism, and legislative history,
to construe ambiguous statutory language. Constitutional interpretation does so as well but
also may draw on more extralegal sources, like tradition, social science, and history. Both
approaches involve reconciling the tension between preserving democratic values of
majority rule and respect for individual and minority rights.

514
Key Questions for Review and Critical Analysis
1. If you were an attorney making an oral argument, how would you approach
preparing for it? Would your preparation be different if you were arguing in a trial
court? Do you think oral arguments in appellate courts significantly influence appeals
courts’ decisions? Why or why not?
2. Do law clerks have too much influence on appellate courts?
3. Among the various ways in which political scientists and legal scholars study appellate
judicial behavior, which methodology do you think best captures the dynamics of the
decision-making process? Do you think “the law” or a judge’s personal attitudes and
preferences are more important in judicial decision making?
4. What are the main differences between statutory and constitutional interpretation?
What approaches to constitutional interpretation do you find the most appealing,
and why?
5. How important is it for a judge to consult sources such as “legislative history” in
interpreting an ambiguous statute, or should they defer to the executive branch’s
interpretation, and why?

515
Web Links
1. National Conference of Appellate Court Clerks
(www.appellatecourtclerks.org/links.html)
It contains a list of links to all U.S. state and federal appellate court websites.
Appellate court websites have information relating to justices and appellate
judges, opinions, argument schedules, order lists, and procedure.
2. SCOTUSblog (www.scotusblog.com)
The leading website covering the U.S. Supreme Court’s procedures, decisions,
and opinions. It contains legal news and commentary, court statistics, videos,
legal analyses, and links to current and past term judicial opinions.
3. Empirical Legal Studies Blog (www.scotusblog.com)
The blog’s purpose is to advance interdisciplinary empirical legal research. The
blog has legal news; commentary; links to government, academic, and bar
association home pages; plus links to political science and law journals and
widely used data sets (e.g., the Spaeth SCOTUS Database, the Interuniversity
Consortium for Political and Social Research, the Lower Federal Court
Confirmation Database, and the State Supreme Court Data Project).
4. National Center for State Courts Social Media and the Courts Network
(www.ncsc.org/Topics/Media/Social-Media-and-the-Courts/Social-
Media/Home.aspx)
It provides information about which state appellate and trial courts are using
social media, along with educational resources about its use and impact on the
judicial process.

516
Selected Readings
Balkin, Jack. Living Originalism. Cambridge, Mass.: Belkap/Harvard University Press,
2011.

Barber, Sotirios, and James Flemming. Constitutional Interpretation: The Basic Questions.
New York: Oxford University Press, 2007.

Baum, Lawrence. Judges and Their Audiences: A Perspective on Judicial Behavior.

Princeton, N.J.: Princeton University Press, 2006.

Bloom, Lackland. Methods of Interpretation: How the Supreme Court Reads the
Constitution. New York: Oxford University Press, 2009.

Bork, Robert. Tempting America: The Political Seduction of the Law. New York: Free
Press, 1990.

Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. New York:
Knopf, 2005.

Calabresi, Steven, ed. Originalism: A Quarter-Century of Debate. Washington, D.C.:

Regnery, 2007.

Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven, Conn.: Yale
University Press, 1921.

Clayton, Cornell W., and Howard Gillman, eds. Supreme Court Decision-Making: New
Institutionalist Approaches. Chicago: University of Chicago Press, 1999.

Coffin, Frank M. On Appeal: Courts, Lawyering, and Judging. New York: Norton, 1994.

Cohen, Jonathan Matthew. Inside Appellate Courts: The Impact of Court Organization on
Judicial Decision Making in the United States Courts of Appeals. Ann Arbor: University

517
 of Michigan Press, 2002.

Corley, Pamela C., Amy Steigerwalt, and Artemus Ward. The Puzzle of Unanimity:
Consensus on the United States Supreme Court. Paol Alto, Calif.: Stanford University
Press, 2013.

Cross, Frank B. Decision-Making in the U.S. Court of Appeals. Stanford, Calif.: Stanford
University Press, 2007.

Epstein, Lee, and Jack Knight. The Choices Justices Make. Washington, D.C.: CQ Press,
1998.

Farber, Daniel, and Suzanna Sherry. Desperately Seeking Certainty: The Misguided Quest
for Constitutional Foundations. Chicago: University of Chicago Press, 2002.

Geyh, Charles Gardner, ed. What’s Law Got to Do With It? What Judges Do, Why They
Do It, and What’s at Stake. Stanford, Calif.: Stanford University Press, 2011.

Gillman, Howard, and Cornell Clayton, eds. The Supreme Court in American Politics:
New Institutionalist Interpretations. Lawrence: University of Kansas Press, 1999.

Hansford, Thomas G., and James F. Spriggs II. The Politics of Precedent on the U.S.
Supreme Court. Princeton, N.J.: Princeton University Press, 2006.

Hettinger, Virginia A., Stephanie A. Lindquist, and Wendy L. Martinek. Judging on a

Collegial Court: Influences on Federal Appellate Decision-Making. Charlottesville:
University of Virginia Press, 2006.

Katzmann, Robert. Judging Statutes. New York: Oxford University Press, 2014.

Macfarlane, Emmett. Governing From the Bench: The Supreme Court of Canada and the
Judicial Role. Vancouver: University of British Columbia Press, 2013.

518
Maltzman, Forrest, James F. Spriggs II, and Paul J. Wahlbeck. Crafting Law on the
Supreme Court: The Collegial Game. Cambridge, Mass.: Cambridge University Press,
2000.

Murphy, Walter. Elements of Judicial Strategy. Chicago: University of Chicago Press,

1964.

O’Brien, David M. Constitutional Law and Politics. 2 vols. 9th ed. New York: Norton,
2014.

O’Brien, David M.., ed. Judges on Judging: Views From the Bench. 4th ed. Washington,
D.C.: CQ Press, 2013.

O’Brien, David M.. Storm Center: The Supreme Court in American Politics. 10th ed.
New York: Norton, 2014.

Paterson, Alan. Final Judgment: The Last Law Lords and the Supreme Court. Oxford,
U.K.: Hart, 2013.

Peppers, Todd C., and Artemus Ward, eds. In Chambers: Stories of Supreme Court Law
Clerks and Their Justices. Charlottesville: University of Virginia Press, 2012.

Pritchett, C. Herman The Roosevelt Court: A Study in Judicial Politics and Values, 1937–
1947. New York: MacMillan, 1948.

Rakove, Jack. Original Meanings: Politics and Ideas in the Making of the Constitution.
New York: Knopf, 1997.

Scalia, Antonin, and Bryan A. Garner. Reading Law: The Interpretation of Legal Texts. St.
Paul, Minn.: Thomson/West, 2012.

Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model
Revisited. Cambridge, U.K.: Cambridge University Press, 2002.

519
Spaeth, Harold J., and Jeffrey A. Segal. Majority Rule or Minority Will: Adherence to
Precedent on the U.S. Supreme Court. Cambridge, U.K.: Cambridge University Press,
1999.

Strauss, David. The Living Constitution. New York: Oxford University Press, 2010.

Tribe, Laurence. The Invisible Constitution. New York: Oxford University Press, 2008.

Wilkinson, J. Harvie, III. Cosmic Constitutional Theory: Why Americans Are Losing
Their Inalienable Right to Self-Governance. New York: Oxford University Press, 2008.

520
EndNotes
1. Dan Balz and Keith B. Richburg, “Historic Decision Renews Old Debate,” Washington
Post (June 27, 2008), A01. See also District of Columbia v. Heller, 554 U.S. 570 (2008).

2. Brian Doherty, “How the Second Amendment Was Restored: The Inside Story of How
a Gang of Libertarian Lawyers Made Constitutional History,” available at
http://reason.com/archives/2008/11/18/how-the-second-amendment-was-r (last retrieved
June 16, 2014).

3.District of Columbia v. Heller, 554 U.S. 570 (2008), at 570, 592 (“It has always been
widely understood that the Second Amendment, like the First and Fourth Amendments,
codified a pre-existing right”). See ibid., 577–78, 579–95.

4.Heller, 554 U.S. at 681 (J. Breyer, dissenting, in which JJ. Stevens, Souter, and Ginsburg
joined). See also ibid. at 636 (J. Stevens, dissenting, in which JJ. Souter, Ginsburg, and
Breyer joined).

5.McDonald v. Chicago, 561 U.S. 742 (2010).

6.Rose v. Clark, 478 U.S. 570, 579 (1986).

7. See Donald J. Farole and Thomas H. Cohen, Appeals of Civil Trials Concluded in 2005
(October 2011, NCJ 235187), available at www.bjs.gov (last retrieved July 6, 2014); C. K.
Rowland and Robert A. Carp, Politics and Judgment in Federal District Courts (Lawrence:
University Press of Kansas, 1996), 8.

8. Rowland and Carp, Politics and Judgment in Federal District Courts, 24–57.

9. Richard A. Posner, The Federal Courts: Challenge and Reform (Cambridge, Mass.:
Harvard University Press, 1996), 340. For an explanation of appellate standards of review,
see Jonathan Matthew Cohen, Inside Appellate Courts: The Impact of Court Organization on
Judicial Decision Making in the United States Courts of Appeals (Ann Arbor: University of
Michigan Press, 2002), 46–48.

10. Posner, The Federal Courts, 158.

11. J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System: A Study of the
Second, Fifth, and District of Columbia Circuits (Princeton, N.J.: Princeton University Press,
1981), xvii. See also Susan B. Haire, Stephanie A. Lindquist, and Donald R. Songer,
“Appellate Court Supervision in the Federal Judiciary: A Hierarchical Perspective,” Law &
Society Review 37 (2003), 145.

521
12. Cass R. Sunstein, David Schkade, Lisa M. Ellman, and Andres Sawicki, Are Judges
Political? An Empirical Analysis of the Federal Judiciary (Washington, D.C.: Brookings
Institution Press, 2006), 11–12 (finding that a panel of three Democratic appointees issue
liberal rulings 62 percent of the time, whereas a panel of three Republicans deliver liberal
rulings 36 percent of the time). See also Cohen, Inside Appellate Courts, 12–13, 27–34,
171–74.

13. Posner, The Federal Courts, 158, 348–49. Allocations of legal staff for state appellate
judges are found in Roger A. Hanson, Carol R. Flango, and Randall M. Hansen, The Work
of Appellate Court Legal Staff (Williamsburg, Va.: National Center for State Courts, 2000),
20–22.

14. See Hanson, Flango, and Hansen, The Work of Appellate Court Legal Staff, 8. Random
panel selection is discussed in Cohen, Inside Appellate Courts, 72.

15. Hanson, Flango, and Hansen, The Work of Appellate Court Legal Staff, 19, 46–52, 54–
55.

16. Mary Lou Stow and Harold J. Spaeth, “Centralized Research Staff: Is There a Monster
in the Judicial Closet?” Judicature (December/January 1992), 216–21, 218–20. See also
Hanson, Flango, and Hansen, The Work of Appellate Court Legal Staff, 54–55; Cohen,
Inside Appellate Courts, 71.

17. Cohen, Inside Appellate Courts, 83–84. The time law clerks spend on procedural
motions in state appeals courts is reported in Hanson, Flango, and Hansen, The Work of
Appellate Court Legal Staff, 42.

18. Ruth Bader Ginsburg, “Workways of the Supreme Court,” Thomas Jefferson Law
Review 25 (Summer, 2003), 517, 522.

19. H. W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court
(Cambridge, Mass.: Harvard University Press, 1991), 272–77. See also S. Sidney Ulmer,
“The Decision to Grant Certiorari as an Indicator to Decision ‘On the Merits,’” Polity 4
(1972), 429–47. See generally, Lee Epstein and Jack Knight, The Choices Justices Make
(Washington, D.C.: CQ Press, 1998).

20. Paul Brace and Melinda Gann Hall, “‘Haves’ Versus ‘Have Nots’ in State Supreme
Courts: Allocating Docket Space and Wins in Power Asymmetric Cases,” Law & Society
Review 35 (2001), 393, 409.

21. Jeff Yates, Andrew B. Whitford, and William Gillespie, “Agenda Setting, Issue
Priorities and Organizational Maintenance: The U.S. Supreme Court, 1955 to 1994,”
British Journal of Political Science 35 (2005), 369–81.

522
22. Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Oxford,
U.K.: Hart, 2013).

23. Robert H. Jackson, “Advocacy Before the United States Supreme Court,” Cornell Law
Quarterly (Fall, 1951), 2. For an analysis of the legal norms of written and oral advocacy in
the United States and England, see Suzanne Ehrenberg, “Embracing the Writing-Centered
Legal Process,” Iowa Law Review (April 2004), 1159–99.

24. Frank M. Coffin, On Appeal: Courts, Lawyering, and Judging (New York: Norton,
1993), 107–8, 111–12.

25. Cohen, Inside Appellate Courts, 91–92, 101–5. See also Howard, Courts of Appeals in the
Federal Judicial System, 198.

26. Ginsburg, “Workways of the Supreme Court,” 522–25; John M. Harlan II, “What Part
Does the Oral Argument Play in the Conduct of an Appeal?” Cornell Law Quarterly 41
(1955), 6. See also Timothy R. Johnson, Oral Arguments and Decision Making on the
United States Supreme Court (Albany: State University of New York Press, 2004).

27. David M. O’Brien, Storm Center: The Supreme Court in American Politics, 10th ed.
(New York: Norton, 2014), 251–57. For an analysis of the dynamics underlying shifting
judicial preferences, see J. Woodford Howard, Jr., “On the Fluidity of Judicial Choice,”
American Political Science Review (March 1968), 43–56.

28. Ginsburg, “Workways of the Supreme Court,” 526.

29. Jeffery R. Lax and Charles M. Cameron, “Bargaining and Opinion Assignment on the
U.S. Supreme Court,” Journal of Law, Economics and Organization 23 (2007), 276–302.

30. See Cliff Carrubba, Barry Friedman, Andrew D. Martin, and Georg Vanberg, “Who
Controls the Content of Supreme Court Opinions?” American Journal of Political Science
56 (2012), 400–412 (finding that the median justice of the coalition of justices that sign
the opinion is influential in determining the content of Supreme Court majority opinions
after noting the alternative claim that opinion writers shape content); Forrest Maltzman
and Paul J. Wahlbeck, “A Conditional Model of Opinion Assignment on the Supreme
Court,” Political Research Quarterly 57 (2004), 551–63. See, generally, Maltzman, Spriggs,
and Wahlbeck, Crafting Law on the Supreme Court.

31. Timothy R. Johnson, James F. Spriggs II, and Paul J. Wahlbeck, “Passing and Strategic
Voting on the U.S. Supreme Court,” Law & Society Review (June 2005), 349–77.

32. Howard, Courts of Appeals in the Federal Judicial System, 208.

33. Ginsburg, “Workways of the Supreme Court,” 526.

523
34. Lewis F. Powell, Jr., “What the Justices Are Saying,” American Bar Association Journal
62 (1976), 1454.

35. Justice Thomas is quoted in Corey Ditslear and Lawrence Baum, “Selection of Law
Clerks and Polarization in the U.S. Supreme Court,” Journal of Politics (August 2001), 869,
883.

36. Normana Dorsen and Amelia Ames Newcomb, “John Marshall Harlan II, Associate
Justice of the Supreme Court 1955–1971: Remembrances by His Law Clerks,” Journal of
Supreme Court History (July 2002), 138–75.

37. John P. Frank, Marble Palace: The Supreme Court in American Life (Westport, Conn.:
Greenwood Press, 1958), 116.

38. John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons,
1994), 294. See also J. Harvie Wilkinson III, “Justice Lewis F. Powell, Jr.: A Personal View
by a Former Clerk,” in In Chambers: Stories of Supreme Court Law Clerks and Their Justices,
edited by Todd C. Peppers and Artemus Ward (Charlottesville: University of Virginia
Press, 2012), 342–49.

39. Hanson, Flango, and Hansen, The Work of Appellate Court Legal Staff, 39, 64–65. For a
specific description of the various tasks law clerks perform, see Charles H. Sheldon, “Law
Clerking With a State Supreme Court: Views From the Perspective of the Personal
Assistants to the Judges,” Justice System Journal 6 (1981), 346, 352 (Table 1).

40. David M. O’Brien, “The Dynamics of the Judicial Process,” in Judges on Judging: Views
From the Bench, 4th ed.,ed. David M. O’Brien (Washington, D.C.: CQ Press, 2013), 75–
76. The “ambassadorial role” is analyzed in Todd C. Peppers and Artemus Ward,
“Introduction,” in In Chambers: Stories of Supreme Court Law Clerks and Their Justices, eds.
Todd C. Peppers and Artemus Ward (Charlottesville: University of Virginia Press, 2012),
7–8.

41. Pamela C. Corley, Amy Steigerwalt, and Artemus Ward, The Puzzle of Unanimity:
Consensus on the United States Supreme Court (Palo Alto, Calif.: Stanford University Press,
2013). The percentages of unanimity on the Supreme Court and circuit courts are reported
in Lee Epstein, William M. Landes, and Richard A. Posner, The Behavior of Federal Judges:
A Theoretical and Empirical Study of Rational Choice (Cambridge, Mass.: Harvard
University Press, 2013), 54–55.

42. See Lax and Cameron, “Bargaining and Opinion Assignment on the U.S. Supreme
Court,” 276–302.

43. On the role of concurrences, see Pamela C. Corley, Concurring Opinion Writing on the
U.S. Supreme Court (Albany: State University of New York Press, 2010).

524
44. David M. O’Brien, “Institutional Norms and Supreme Court Opinions: On
Reconsidering the Rise of Individual Opinions,” in Supreme Court Decision-Making: New
Institutionalist Approaches, ed. Cornell W. Clayton and Howard Gillman (Chicago:
University of Chicago Press, 1999), 113.

45. The remark by Chief Justice Hughes is found in Ruth Bader Ginsburg, “The Role of
Dissenting Opinions (October 21, 2007),” available at www.supremecourt.gov (last
retrieved July 7, 2014). See also Eva M. Guzman and Ed Duffy, “The Multiple Paths of
Dissent: Roles of Dissenting Judges in the Judicial Process,” Judicature 97 (2013), 105, 106
(observing that writing a dissent may “further the interests promoted by the rule of law”).

46. Ginsburg, “The Role of Dissenting Opinions.”

47. Jill Duffy and Elizabeth Lambert, “Dissents From the Bench: A Compilation of Oral
Dissents by U.S. Supreme Court Justices,” Law Library Journal 102 (2010), 7–37.

48. Adam Liptak, “Compromise at the Supreme Court Veils Its Rifts,” New York Times
(July 1, 2014), available at www.nytimes.com (last retrieved July 8, 2014); Linda
Greenhouse, “In Dissent, Ginsburg Finds Her Voice at the Supreme Court,” New York
Times (May 31, 2007), available at www.nytimes.com (last retrieved July 8, 2014). See also
National Labor Relations Board v. Canning, 134 S.Ct. 2550 (2014); Burwell v. Hobby Lobby
Stores, Inc., 134 S.Ct. 2751 (2014).

49. Administrative Office of the U.S. Courts, “U.S. Courts of Appeals—Types of Opinions
or Orders Filed in Cases Terminated on the Merits After Oral Hearing or Submission on
Briefs During the 12-Month Period Ending September 30, 2013 (Table S-3),” available at
www.uscourts.gov (last retrieved July 3, 2014).

50. Cohen, Inside Appellate Courts, 74.

51. Oliver Wendell Holmes, “The Path of the Law,” Harvard Law Review 10 (1896), 43.

52. The distinction between normative and empirical theory is discussed in John B. Gates,
“Theory, Methods, and the New Institutionalism in Judicial Research,” in The American
Courts: A Critical Assessment, ed. John B. Gates and Charles A. Johnson (Washington,
D.C.: CQ Press, 1990), 469–70.

53. C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–
1947 (New York: Macmillan, 1948).

54. See Nancy Maveety, “The Study of Judicial Behavior and the Discipline of Political
Science,” in The Pioneers of Judicial Behavior, ed. Nancy Maveety (Ann Arbor: University of
Michigan Press, 2003), 9–17. See also Pritchett, The Roosevelt Court, xiii.

525
55. Jeffrey A. Segal, “Glendon Schubert: The Judicial Mind,” in The Pioneers of Judicial
Behavior, ed. Nancy Maveety (Ann Arbor: University of Michigan Press, 2003), 80. See
also Lawrence Baum, “C. Herman Pritchett: Innovator With an Ambiguous Legacy,” in
The Pioneers of Judicial Behavior, ed. Nancy Maveety (Ann Arbor: University of Michigan
Press, 2003), 57–77.

56. Segal, “Glendon Schubert,” 80. See also Glendon A. Schubert, The Judicial Mind: The
Attitudes and Ideologies of Supreme Court Justices, 1946–1963 (Evanston, Ill.: Northwestern
University Press, 1965).

57. Segal, “Glendon Schubert,” 78–100. See also Glendon Schubert, The Judicial Mind
Revisited: Psychometric Analysis of Supreme Court Ideology (New York: Oxford University
Press, 1974).

58. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model
(New York: Cambridge University Press, 1993).

59. Ibid., 65.

60. See, e.g., Emmett Macfarlane, Governing From the Bench: The Supreme Court of Canada
and the Judicial Role (Vancouver: University of British Columbia Press, 2013) (finding that
judicial role perceptions, along with attitudinal and strategic factors, explain judicial
behavior on the Supreme Court of Canada).

61. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model
Revisited (Cambridge, U.K.: Cambridge University Press, 2002). Various criticisms and
rebuttals from political scientists and legal scholars concerning the merits and application of
the attitudinal model are found in “Symposium: The Supreme Court and the Attitudinal
Model,” Law and Courts Newsletter (Spring, 1994), 3–12; “Symposium on the Supreme
Court and the Attitudinal Model Revisited,” Law and Courts Newsletter (Summer, 2003),
10–38.

62. Leading empiricists have “questioned” the coding decisions and have declared that the
Spaeth (and Songer) judicial data sets (used in research studying Supreme Court and U.S.
Court of Appeals cases) “contain errors” that have only partially been “corrected,” and then
relied upon, in their own studies. Epstein, Landes, and Posner, The Behavior of Federal
Judges, 76–77, 388. Other publications critical of the Spaeth data set are listed in ibid., 77
n. 28.

63. Howard Gillman, “Separating the Wheat from the Chaff in the Supreme Court and the
Attitudinal Model Revisited,” Law and Courts Newsletter (Summer 2003), 14.

64.Van Orden v. Perry, 545 U. S. 677 (2005).

526
65.McCreary v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005).

66. Rogers M. Smith, “Political Jurisprudence, the ‘New Institutionalism,’ and the Future
of Public Law,” American Political Science Review 86 (1988), 89–108. For an overview of
the rise of new institutionalism in political science, see Rogers M. Smith, “Historical
Institutionalism and the Study of Law,” in The Oxford Handbook of Law and Politics, eds.
Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (New York: Oxford
University Press, 2010), 46–59. See also J. G. March and J. P. Olsen, “The New
Institutionalism: Organizational Factors in Political Life,” American Political Science Review
78 (1984), 734–49.

67. Keith E. Whittington and R. Daniel Kelmen, “The Study of Law and Politics,” in The
Oxford Handbook of Law and Politics, eds. Keith E. Whittington, R. Daniel Kelemen, and
Gregory A. Caldeira (New York: Oxford University Press, 2010), 3–15.

68. Cornell W. Clayton, “The Supreme Court and Political Jurisprudence: New and Old
Institutionalisms,” in Supreme Court Decision-Making: New Institutionalist Approaches, ed.
Cornell W. Clayton and Howard Gillman (Chicago: University of Chicago Press, 1999),
15–41.

69. Clayton, “The Supreme Court and Political Jurisprudence,” 35 (“patterns of purpose
and meaning”); Rogers M. Smith, “Historical Institutionalism and Public Law,” Law and
Courts Newsletter (Summer, 1998), 6–7.

70. Cornell W. Clayton and Howard Gillman, eds., Supreme Court Decision-Making: New
Institutionalist Approaches (Chicago: University of Chicago Press, 1999); Howard Gillman
and Cornell Clayton, eds.,The Supreme Court in American Politics: New Institutionalist
Interpretations (Lawrence: University Press of Kansas, 1999).

71. See Lee Epstein and Jack Knight, “The New Institutionalism, Part II,” Law and Courts
Newsletter (Spring, 1997), 4–9; Howard Gillman, “Placing Judicial Motives in Context: A
Response to Lee Epstein and Jack Knight,” Law and Courts Newsletter (Spring, 1997), 10–
13.

72. Walter Murphy, The Elements of Judicial Strategy (Chicago: University of Chicago
Press, 1964), 207.

73. Lee Epstein and Jack Knight, “Toward a Strategic Revolution in Judicial Politics: A
Look Back, A Look Ahead,” Political Research Quarterly (September 2000), 625–61.

74. Epstein and Knight, “The New Institutionalism, Part II,” 4.

75. See, e.g., Jeffrey A. Segal, Chad Westerland, and Stephanie A. Lindquist, “Congress,
the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers

527
Model,” American Journal of Political Science 55 (2011), 89–104; Tom S. Clark, “The
Separation of Powers, Court Curbing, and Judicial Legitimacy,” American Journal of
Political Science 53 (2009), 971–89; Jeffrey A. Segal, “Separation-of-Powers Games in the
Positive Theory of Courts and Congress,” American Political Science Review 91 (1997), 28–
44; and David C. Nixon and J. David Haskin, “Judicial Recruitment Strategies: The
Judge’s Role in Influencing Party Control of the Appellate Courts,” American Politics
Quarterly 28 (2000), 458–89.

76. Forrest Maltzman, James F. Spriggs II, and Paul J. Wahlbeck, Crafting Law on the
Supreme Court: The Collegial Game (Cambridge, U.K.: Cambridge University Press, 2000);
Epstein and Knight, The Choices Justices Make.

77. On the growth of legal empirical studies and its relationship to political science and
law, see What’s Law Got To Do With It?: What Judges Do, Why They Do It, and What’s At
Stake Ed. Charles Gardner Geyh (Stanford, CA.: Stanford University Press, 2011); Gregory
C. Sisk, “The Quantitative Moment and the Qualitative Opportunity: Legal Studies of
Judicial Decision Making,” Cornell Law Review (2008), 873–900; Michael Heise, “The
Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the
New Empiricism,” University of Illinois Law Review (2002), 819–50.

78. Epstein, Landes, and Posner, The Behavior of Federal Judges: A Theoretical and Empirical
Study of Rational Choice, 385–86. See also Richard A. Posner, How Judges Think
(Cambridge, Mass.: Harvard University Press, 2008); Richard A. Posner, “What Do Judges
Maximize? (The Same Thing Everybody Else Does),” Supreme Court Economic Review 3
(1993), 1–41. For an overview and criticisms of labor market theory, see Susan B. Haire
and Rorie Spill Solberg, “Introduction: The Behavior of Federal Judges,” Judicature 97
(2013), 70–71; Jeffrey A. Segal, Benjamin Woodson, and Joshua Johnson, “The Behavioral
Economics Alternative: The Legal-Model Fiction in Epstein, Landes, and Posner’s The
Behavior of Federal Judges,” Judicature 97 (2013), 75–81; Renee Cohn Jubelirer, “The
Behavior of Federal Judges: The ‘Careerist’ in Robes,” Judicature 97 (2013), 98–104; and
Douglas H. Ginsburg, “The Behavior of Federal Judges: A View From the D.C. Circuit,”
Judicature 97 (2013), 109–12.

79. See Laurence Baum, “Motivation and Judicial Behavior: Expanding the Scope of the
Inquiry,” in The Psychology of Judicial Decision Making, eds. David Klein and Gregory
Mitchell (New York: Oxford University Press, 2010), 3; Laurence Baum, The Puzzle of
Judicial Behavior (Ann Arbor: University of Michigan Press, 1997), 137. The audience-
based theory is detailed in Laurence Baum, Judges and Their Audiences: A Perspective on
Judicial Behavior (Princeton, N.J.: Princeton University Press, 2006). Other research using
psychological orientations to judging is found in The Psychology of Judicial Decision Making,
eds. David Klein and Gregory Mitchell (New York: Oxford University Press, 2010); Eileen
Braman, Law, Politics and Perception: How Policy Preferences Influence Legal Reasoning
(Charlottesville: University of Virginia Press, 2009).

528
80. See, e.g., MacFarlane, Governing From the Bench: The Supreme Court of Canada and the
Judicial Role.

81. Harry T. Edwards, “The Judicial Function and the Elusive Goal of Principled
Decisionmaking,” Wisconsin Law Review (1991), 837, 838.

82. Edward H. Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago

Press, 1949), 1.

83. Levi, An Introduction to Legal Reasoning, 2, 4.

84. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, Conn.: Yale
University Press, 1921), 16, 23, 28, 30–31.

85.Roe v. Wade, 410 U.S. 113 (1973). See also Webster v. Reproductive Health Services, 492
U.S. 490 (1989), 535 (Scalia, J., concurring in part).

86.Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

87. Ibid., 846, 861, 866, 877–79.

88. See, e.g., Mark J. Richards and Herbert M. Kritzer, “Jurisprudential Regimes in
Supreme Court Decision Making,” American Political Science Review 96 (2002), 305–20;
Herbert M. Kritzer and Mark J. Richards, “Jurisprudential Regimes in Supreme Court
Decision Making: The Lemon Regime and Establishment Clause Cases,” Law and Society
Review 37 (2003), 827–40; and Herbert M. Kritzer and Mark J. Richards, “The Influence
of Law in the Supreme Court Search-and-Seizure Jurisprudence,” American Politics Research
33 (2005), 33–55.

89.Burnett v. Coronado Oil and Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J.,
dissenting). See also William O. Douglas, “Stare Decisis,” Columbia Law Review 49 (1949),
735.

90. David M. O’Brien, Constitutional Law and Politics: Struggles for Power and
Governmental Accountability (Volume One), 9th ed. (New York: Norton, 2014), 138–39.
See also Saul Brenner and Harold J. Spaeth, Stare Indecisis: The Alteration of Precedent on
the U.S. Supreme Court, 1946–1992 (Cambridge, U.K.: Cambridge University Press,
1995).

91. Payne v. Tennessee, 501 U.S. 808 (1991), 828.

92. See, e.g., Dickerson v. United States, 530 U.S. 428 (2000), 443 (“special justification”);
and Planned Parenthood of Southeastern Pennsylvania v. Casey, 864, “special reason.” For a
general statement of stare decisis principles, see Planned Parenthood of Southeastern
Pennsylvania v. Casey, 854.

529
93. Cardozo, The Nature of the Judicial Process, 149; Robert C. Wigton, “What Does It
Take to Overrule? An Analysis of Supreme Court Overrulings and the Doctrine of Stare
Decisis,” Legal Studies Forum 18 (1994), 3, 7–8; Christopher P. Banks, “Reversals of
Precedent and Judicial Policy-Making: How Judicial Conceptions of Stare Decisis in the
U.S. Supreme Court Influence Social Change,” University of Akron Law Review 32 (1999),
233–58.

94.Payne v. Tennessee, 501 U.S. 808 (1991), 844. See also Christopher P. Banks, “The
Supreme Court and Precedent: An Analysis of Natural Courts and Reversal Trends,”
Judicature (February/March 1992), 264–68, Tables 3, 4, 5; Douglas, “Stare Decisis,” 736–
37.

95. Thomas G. Hansford and James F. Spriggs II, The Politics of Precedent on the U.S.
Supreme Court (Princeton, N.J.: Princeton University Press, 2008). See also James F.
Spriggs II and Thomas G. Hansford, “Explaining the Overruling of U.S. Supreme Court
Precedent,” Journal of Politics (November 2001), 1091–111.

96.PGA Tour, Inc. v. Martin, 532 U.S. 661, 691 (2001) (Scalia, J., dissenting).

97. PGA Tour, 691.

98. See John Paul Stevens, “The Shakespeare Canon of Statutory Construction,” University
of Pennsylvania Law Review 140 (1992), 1373–87.

99. Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process, eds. William N. Eskridge,
Jr., and Philip P. Frickey (Westbury, N.Y.: Foundation Press, 1994), 1169.

100. Felix Frankfurter, “Some Reflections on the Reading of Statutes,” in Judges on Judging:
Views From the Bench, 2nd ed., eds. David M. O’Brien (Washington, D.C.: CQ Press,
2003), 248.

101. Stephen Breyer, “On the Uses of Legislative History in Interpreting Statutes,”
Southern California Law Review 65 (1992), 845, 848.

102. Abner J. Mikva, “Reading and Writing Statutes,” University of Pittsburg Law Review
(1987), 627, 629.

103. As quoted by Abner. J. Mikva, “Statutory Interpretation: Getting the Law to Be Less
Common,” Ohio State Law Journal 50 (1989), 979, 981.

104. David M. O’Brien, “The Judiciary and Federal Regulation,” in Judges on Judging:
Views From the Bench, 2nd ed. (Washington, D.C.: CQ Press, 2004), 242.

105. Edwin Meese III, “Speech Before the American Bar Association, July 9, 1985,
Washington, D.C.,” in The Great Debate: Interpreting Our Written Constitution

530
(Washington, D.C.: The Federalist Society, l986), 1.

106. Daniel A. Farber and Suzanna Sherry, Desperately Seeking Certainty: The Misguided
Quest for Constitutional Foundations (Chicago: University of Chicago Press, 2002), 11.

107. Antonin Scalia, “Common-Law Courts in a Civil-Law System,” in A Matter of

Interpretation: Federal Courts and the Law, ed. Antonin Scalia (Princeton, N.J.: Princeton
University Press, 1997), 38.

108. William H. Rehnquist, “The Notion of a Living Constitution,” Texas Law Review 54
(1976), 693, 699; Antonin Scalia, “Originalism: The Lesser Evil,” Cincinnati Law Review
57 (1989), 849, 854–55, 862.

109.Roper v. Simmons, 543 U.S. 551 (2005).

110. William J. Brennan, “The Constitution of the United States: Contemporary

Ratification,” in Interpreting Law and Literature: A Hermeneutic Reader, ed. Sanford
Levinson and Steven Mailloux (Evanston, Ill.: Northwestern University Press, 1988), 17–
18.

111. Frank B. Cross, The Failed Promise of Originalism (Stanford, Calif.: Stanford Law
Books, 2013), 1–22.

531
CHAPTER 10 The Scope and Limits of Judicial
Power

IN FEDERALIST NO. 78, ALEXANDER HAMILTON DEFENDED JUDICIAL

INDEPENDENCE by arguing that federal courts are “the least dangerous branch.” In
response to anti-Federalists (who defended states’ rights and feared an expansive federal
government), Hamilton reasoned that courts were less powerful than the executive or
legislative institutions because the judiciary has “neither force nor will, but merely
judgment.”1 Courts were institutionally different from the political branches because they
lacked the authority to create or administer law—thus their policymaking and enforcement
capacity was limited. Hamilton concluded that judicial discretion was relatively harmless
because its exercise was constrained by democratic politics and the judicial obligation to
uphold the rule of law. In light of those checks, courts would, arguably, remain
independent to strike an appropriate balance between the competing demands of respecting
majority will and protecting minority rights.

Federal and state judges are nonetheless routinely attacked for “legislating from the bench.”
The Roberts Court’s striking down campaign finance regulations and expanding religious
freedoms generate as much partisan criticism as its endorsement of corporate rights or
upholding mandatory health care insurance. In the states, political opposition has led to
reform proposals and new legislation seeking to diminish judicial influence over public
policies preventing same-sex marriage, reforming funding for public schools, limiting gun
rights, or stopping natural gas exploration through hydraulic fracking (see Table 10.1).

Not surprisingly, perhaps, there are repeated calls to increase legislative oversight over
courts and judges. For example, congressional representatives argue for the creation of an
inspector general’s office as a watchdog to keep judges in check and accountable. Other
legislative solutions include diminishing court funding; stripping the courts of jurisdiction
over abortion, health care, or death penalty cases; and, in addition to impeachment or
altering the size of a court, expediting the removal of judges who are deemed to not exhibit
“good behavior.”2

This chapter considers the scope and limitations of judicial power by examining the
political struggles over judicial policymaking. The first section provides an overview of
judicial policymaking and whether judges engage in so-called “judicial activism” or “judicial
restraint.” It then illustrates how courts may become agents of political change in, for
example, creating rulings on public school funding, abortion, and affirmative action. Next,
the impact of judicial policymaking is considered in light of the implementation of school
desegregation policies and the corresponding struggle to recognize same-sex marriages. The
chapter concludes by considering the internal and external restraints on judicial power and

532
whether courts are institutionally capable of forging major social change.

533
Judicial Policymaking
Although Justice Benjamin Cardozo acknowledged that judges have discretion to make law,
he nonetheless admonished that a judge “is not to innovate at pleasure” as “a knight-errant
roaming at will in pursuit of his own ideal of beauty or of goodness.”3 Yet beauty is in the
eye of the beholder. And critics often attack courts and their exercise of judicial review for
the following interrelated reasons: (1) for making “unprincipled” decisions (those not based
on established rules of law); (2) for making social policy decisions exceeding judicial
capacity or competence; and (3) for “legislating from the bench” and functioning as
counter majoritarian institutions that are not directly accountable to the people.4 Each of
these issues is discussed after considering the concepts of “judicial activism” and “judicial
restraint.”

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“Judicial Activism” and “Judicial Restraint”
Courts are often attacked for forging legal policy over a wide range of areas of law—from
school desegregation to the rights of the accused, abortion, freedom of speech and religion,
and same-sex marriages. They are typically accused of engaging in judicial activism or
judicial restraint. Yet, the meaning of these terms fluctuates with the prevailing political
climate and the proverbial “whose oxen is gored.”

Generally speaking, an activist court is typically linked to rulings that deviate or overturn
precedents or legislation that result in major political controversy. Judges are said to
“legislate from the bench” or engage in “result-oriented jurisprudence.”5 By contrast, a
judicially self-restrained court is typically thought of as adhering to precedent, deferring to
Congress or state legislatures, and not in the forefront of social policymaking.

Often, but mistakenly, “conservative” courts are viewed as exemplifying judicial self-
restraint whereas “liberal” courts are branded as “activist.” But history and contemporary
examples show such labels are misleading. The liberal Roosevelt–New Deal Court of the
1930s–1940s favored judicial self-restraint in upholding progressive federal and state
legislation. Indeed, the term judicial self-restraint was coined in the 1930s by liberal critics
of the then-conservative majority on the Supreme Court, which was striking down
progressive legislation dealing with child labor, women’s rights, and minimum
wage/maximum hours laws. Yet, thirty years later, conservatives attacked the liberal Warren
Court (1953–1969) for forging a “due process revolution” that expanded protections for
the right of the accused, and “the reapportionment revolution” that reinforced the
democratic process and equal voting rights. Today, a bare majority of the Roberts Court
(2005–present) is frequently criticized for its conservative activism in extending protection
for gun rights and corporate business interests, along with striking down campaign finance
laws.6

Judicial activism and self-restraint, in other words, are “notoriously slippery” terms that
both liberals and conservatives have invoked in attacking rulings and constitutional
interpretations with which they disagree. Yet “the majestic generalities” of constitutional
provisions, as Justice Cardozo put it, are inexorably ambiguous and virtually “empty vessels
into which [a justice or judge] can pour nearly anything he [or she] will.”7

With these caveats in mind, political scientist Bradley Canon created a useful framework
for understanding “judicial activism” by assigning it certain “dimensions” (see Table 10.2).
Canon’s analysis is similar to the other research that concludes “activist” judicial behavior is
invariably multidimensional and complex.8

The debate over whether courts are “activist” or not is exemplified by two controversial

535
topics of legal and social policy: state school-funding cases and federal court rulings on
abortion and affirmative action. (In addition, it bears noting that criticisms of judicial
activism are not confined to the United States. The expanding powers of courts elsewhere
in the world, such as the European Court of Justice, are increasingly criticized as well. See
“In Comparative Perspective: The European Court of Justice and the Globalization of
Judicial Power.”)

Source: Based on Bradley C. Canon, “Defining the Dimensions of Judicial Activism,” Judicature
(December/January 1983), 236, 239.

536
In Comparative Perspective

537
The European Court of Justice and the Globalization of
Judicial Power
The European Court of Justice (ECJ) was created in 1952. Along with the Council of Ministers, the
European Commission, the European Parliament, and later the Court of Auditors, the ECJ was established
to promote economic integration in Western Europe. The ECJ’s role is to create a uniform system of law—
referred to once as European Community (EC) law and now as European Union (EU) law. Originally, only
six countries—Belgium, France, West Germany, Italy, Luxembourg, and the Netherlands—participated,
but other countries subsequently joined. In 1973, Denmark, Ireland, and Britain became members,
followed by Greece in 1981, and Portugal and Spain in 1986. In 1995, Austria, Finland, and Sweden
joined, bringing the total number in the EU to fifteen. The largest expansion occurred in 2004 with the
addition of ten other Central and East European countries—Cyprus (Greek part), the Czech Republic,
Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia—followed by Bulgaria and
Romania in 2007, and Croatia in 2013—bringing the current membership to twenty-eight.

The ECJ, located in Luxembourg, is composed of twenty-eight justices—one justice appointed from each
country with the unanimous approval of all member states. The justices serve six-year staggered terms, and
generally hear cases in panels of three, five, or thirteen, and occasionally as a whole court. They also vow not
to consider national interests in rendering decisions. All decisions are unanimous, no dissenting opinions are
issued, and even opinions announcing the decisions are not signed by individual justices.

Cases may be filed before the ECJ by other EU institutions, member states, or “directly affected” EU
citizens. Most of the ECJ’s caseload comes as reference (Article 177) cases from member states’ national
courts that ask for preliminary rulings on EU law that the ECJ has not yet determined. Since its inception,
the ECJ’s caseload has grown steadily. As a result, in 1998, a General Court (formerly the Court of First
Instance) was created in order to ease the ECJ’s workload and backlog of cases. There are also now a
number of specialized courts, such as the Civil Service Tribunal. Still, the ECJ annually hands down about
six hundred decisions.

The ECJ has been compared to the U.S. Supreme Court in the early nineteenth century under Chief Justice
John Marshall, whose rulings striking down state taxes, trade barriers, and other regulations promoted an
economic common market and solidified the Court’s power of judicial review. Critics of the ECJ have
complained that it has been too activist. Yet EU member states may overturn ECJ decisions, though only by
unanimous consent of all member states.

During the 1960s and 1970s, the ECJ laid the groundwork for promoting the value of European
integration. From the 1980s to the 2000s, the ECJ solidified not only its power of judicial review but also
(1) the supremacy of EU law over that of member states’ legislation, in holding that national courts of the
EU must always interpret their laws to be in conformity with EU laws, and (2) the competence and
superiority of EU institutions over areas, such as environmental protection and human rights, that the
treaties were originally silent about; and (3) it expanded the legal policy areas over which it has jurisdiction
by expanding standing for private parties to sue on the basis of treaty provisions and acts of EU institutions
requiring implementing legislation. The ECJ also ruled that national courts have the power to declare EU
acts valid, but not invalid, within their countries. Moreover, the ECJ held that a national court must refuse
to enforce a national law or statute that contravenes EU laws while questions concerning the compatibility
of the national law and EU law are pending before the ECJ.

In addition, initially, EU law based on treaties contained few provisions for dealing with individual rights.
Yet the ECJ’s decisions on citizens’ standing to sue when “directly affected” by EU law expanded its
jurisdiction over member states and its power to strike down legislation contravening EU law. As a result,
the ECJ not only promoted an economic common market, but also developed a human rights jurisprudence
based on the doctrines of the “direct effect”—the direct effects doctrine—and the supremacy of EU law. For

538
example, in J. Nord, Kohlen und BaustoffengroBhandlung v. Commission of the European Communities, the
ECJ invoked the European Convention for the Protection of Human Rights, in addition to the
constitutions of member states, as sources for its recognition of fundamental rights.

Paralleling the U.S. Supreme Court’s incorporation of guarantees of the Bill of Rights into the Fourteenth
Amendment and their application to the states, the ECJ also “discovered” fundamental rights in the treaties
of member states. The ECJ also requires member states’ national courts to always interpret their own laws in
conformity with EU laws—the so-called indirect effects doctrine. In addition, the ECJ has enforced human
rights principles against not only member states but also corporations and private parties.

Observers and scholars disagree over how to explain the expansion of the ECJ’s power of judicial review.
Some consider the expansion of the ECJ’s power as inevitable given its treatment of EU treaties as though
they are a “higher law” constitution. Others argue that the ECJ’s role has grown as part of the so-called
trend toward the “globalization of judicial power” as a result of pressures for greater economic and legal
integration.

More specifically, four competing explanations for the expanding power of the ECJ have been advanced: (1)
a legalist explanation, (2) a neorealist explanation, (3) a neofunctionalist explanation, and (4) an intercourt
competition explanation.

The legalist explanation for the ECJ’s expanding power maintains that EU law, like other countries’
constitutional law, has an inherent logic. That creates a kind of internal dynamic built on precedents and
expanding the role of the ECJ along with member states’ courts’ compliance with the ECJ’s decisions. In
other words, the ECJ’s rulings are authoritative because they have transformed the legal and political
integration of Europe. Political scientist Martin Shapiro, among others, however, has criticized this legalist
explanation as “constitutional law without politics,” because the ECJ is presented “as a juristic concept; the
written constitution (the treaty) as a sacred text; the professional commentary as a legal truth; the case law as
the inevitable working out of the correct implications of the constitutional text; and the constitutional court
(the ECJ) as the disembodied voice of right reason and constitutional teleology.” In short, critics of the
legalist explanation argue that it amounts to legal formalism. It omits the role of politicians, the member
states, and other political forces in reinforcing the ECJ’s decisions.

By contrast, neorealists argue that ECJ and national courts’ decisions are shaped by EU member states’
national self-interests in economic integration. They underscore that courts are subject to external political
pressures and reprisals if they go too far and too fast. In the words of political scientists G. Garrett and
Barry Weingast:

Embedding a legal system in a broader political structure places direct constraints on the discretion of a
court, even one with as much constitutional independence as the United States Supreme Court....The
reason is that political actors have a range of avenues through which they may alter or limit the role of
courts....The principal conclusion...is that the possibility of such a reaction drives a court that wishes to
preserve its independence and legitimacy to remain in the arena of acceptable latitude.

Courts, of course, are constrained by external political pressures and their environment. But all political
institutions are subject to political and legal constraints and restraints, so it remains unclear whether
neorealists explain that much. Critics of the neorealist theory counter that it fails to demonstrate how
national self-interests are constituted and influence the ECJ’s decisions. Neorealists also have been criticized
for neglecting political opposition to the ECJ’s decisions promoting integration. In contrast to the legalist
theory, the neorealist position appears to amount to “politics without constitutional law.”

A third, neofunctionalist, explanation emphasizes the self-interests of litigants, judges on national courts and
the ECJ, and other EU institutions promoting integration; and thereby reinforcing the ECJ’s role. In other
words, the ECJ and its rulings created incentive structures for entrenching its role through economic and
legal integration. EU citizens received new rights and the basis for pursuing their interests through litigation
and EU integration, national courts enhanced their prestige by referring cases to the ECJ, and lawyers
practicing EU law received more business through the continuing expansion of EU law. In short,

539
neofunctionalists, like the legalists, emphasize the role of the rule of law but, unlike the legalists, explain the
expansion of the ECJ’s power in terms of a process of incremental legal integration that “upgrades common
interests” of individuals and institutions in the EU.

Finally, a fourth explanation underscores the ECJ’s and national courts’ intercourt competition in
promoting legal integration, and thereby buttressing the role of the ECJ. A variant of the theory of
bureaucratic politics, the intercourt competition theory emphasizes that courts, like other bureaucracies,
pursue their own interests within the constraints imposed by other political institutions.

Ultimately, each of these competing explanations is not mutually exclusive. Together, they go a long way
toward explaining different aspects of the expansion of the ECJ’s power and the EU’s legal integration.

For further reading, see Martin Shapiro, “Comparative Law and Comparative Politics,” Southern California
Law Review 53 (1980); G. Garrett and Barry Weingast, “Ideas, Interests, and Institutions: Constructing the
ECs Internal Market,” in Ideas and Foreign Policy, edsited by J. Goldstein and R. Keohane (Ithaca, N.Y.:
Cornell University Press, 1993), 173; A. M. Burley and W. Mattli, “Europe Before the Court,”
International Organization 47 (1993), 41; Karen Alter, Establishing the Supremacy of European Law: The
Making of an International Rule of Law in Europe (New York: Oxford University Press, 2001); Anne-Marie
Slaughter, Alex Stone Sweet, and J. H. H. Weiler, eds., The European Court and National Courts—Doctrine
and Jurisprudence (Oxford, U.K.: Hart, 1998); Gunner Beck, The Legal Reasoning of the Court of Justice of
the European Union (Oxford, U.K.: Hart, 2013); and Mark Dawson, Bruno DeWitte, and Elise Muir, eds.,
Judicial Activism at the European Court of Justice (Cheltenham, U.K.: Edward Elgar, 2013).

540
State Judicial Policymaking: “Equal” and “Adequate” Public
School Funding
In ruling that separate educational facilities are unconstitutional, Brown v. Board of
Education (1954) stressed that “education is perhaps the most important function of state
and local governments,...[because] it is the very foundation of good citizenship.” As Chief
Justice Earl Warren explained, “It is doubtful that any child may reasonably be expected to
succeed in life if he is denied the opportunity of an education, [and] such an opportunity,
where the state has undertaken to provide it, is a right which must be made available to all
on equal terms.”9 By the 1970s, state supreme courts began to test the scope of Brown’s
equality principle in school financing litigation.

In Serrano v. Priest (1971),10 the Supreme Court of California struck down the state’s
system of public school funding because it deprived students of a “fundamental right” of
education based on the Fourteenth Amendment’s Equal Protection Clause. Specifically,
the state overrelied on local property taxes to fund public schools, and that policy created
disparities in expenditures that discriminated against the poor living in underfunded school
districts. In Robinson v. Cahill (1972), the New Jersey Supreme Court likewise nullified the
state’s financing scheme. But, unlike Serrano, the court reasoned that it did not satisfy the
state constitution’s obligation to provide for a “thorough and efficient” system of public
education.11

The movement toward reforming state public school funding on the basis of the
Fourteenth Amendment Equal Protection Clause was abruptly halted, however, by the
Burger Court’s decision in San Antonio Independent School District v. Rodriguez (1973).12 In
a 5:4 ruling, the justices rejected the claim of Hispanic students living in urban districts
with a low property tax base, who argued they were denied an equal public education
compared to schools in wealthier districts. The bare majority of the Court rejected that
claim in holding that equally funded education is not a “fundamental right.” In reaching
that conclusion, the Court applied the rational basis test—that is, whether the state had a
rational, or reasonable, basis for funding public schools based on local tax rates and in
maintaining local control over educational policy.13 In short, the Court exercised judicial
self-restraint in deferring to state and local governments’ power to set educational policy, a
traditional province of the states.

Ironically, despite its holding, Rodriguez led to litigation in state courts. Between 1973 and
2002, forty-four states faced legal challenges to their education finance systems based on
provisions in their state constitutions. In several early cases, state courts relied on the equal
protection clauses in their state constitutions to invalidate inequitable school funding
mechanisms. But they did not specify how to remedy the problem. In other states, some
popular assemblies struggled to equalize resources but found it impracticable to do so. As a

541
result, the initially favorable rulings for reforming public school funding systems in the
1970s gave way to a series of defeats in the 1980s. By 1989, fifteen state supreme courts
had denied relief, whereas only seven others granted it.14

Nonetheless, reformers continued to bring litigation aimed at achieving equality in state

financing for public schools on state constitutional grounds but by stressing the “adequacy”
of educational resources instead of “equity.” Whereas “equity lawsuits” pushed for the
elimination of wealth disparities by equalizing the amount of resources distributed to all
districts, “adequacy lawsuits” sought school reforms on the basis of demonstrable standards
of academic performance. In doing so, state courts interpreted educational clauses in their
state constitutions that guarantee a “system of free common schools” or a “thorough and
efficient” or “adequate public education” as the basis for reforms. Simply put, the new
approach meant all students must have a reasonable chance to get an “adequate” public
education, and whether they received one was measured by academic achievement through
performance standards.15

Although the state supreme courts in New Jersey, Washington, and West Virginia nullified
state education financing systems on the basis of inadequacy, it was not until the Kentucky
Supreme Court’s ruling in Rose v. Council for Better Education (1989) that the adequacy
reform movement in state courts reached its full potential.16 After Rose, the shift from
equity to adequacy challenges produced more victories than in the preceding fifteen years,
even though slightly more state courts upheld, rather than struck down, school funding
systems. Indeed, a recent study found that there were twenty-two victories in state courts as
opposed to eleven defeats in suits for educational reforms.17

Rose also remains important because it established specific standards for measuring whether
students were achieving an “efficient” education: whether, for example, they were taught
effective oral and written communication skills or gained a sufficient understanding of
government, the arts, or vocational skills. Significantly, the reliance on standards as a
measure of adequacy was, in part, developed from the findings by various commissions and
studies that were initiated by the federal government and states in the aftermath of
Rodriguez. Once a trial court determined liability, many of the guidelines originating from
Rose resulted from public hearings and the input from a select commission (created by the
trial court) based on reform plans initially adopted by the Kentucky Supreme Court.18

In short, Rose was the “starting point in what has become a significant dialogue among the
public, the courts, and the legislature on standards-based reform.”19 The focus on adequacy
and intergovernmental cooperation has had significant consequences for other jurisdictions.
Since Rose, an overwhelming majority of states have addressed public school funding issues
through litigation, and scholars (and some courts) continue to develop new legal rationales
that support public school reforms. Moreover, recently, state courts have begun to fuse the
adequacy and equity theories. In Gannon v. State (2014), for example, the Kansas Supreme

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Court reaffirmed the state’s constitutional obligation to “make suitable provision for
finance of the educational interests of the state,” based on the convergence of equity and
adequacy theories (see Table 10.1).20

In all likelihood, state supreme courts will remain at the forefront of shaping local
education financing policy for years to come.21 The trend has been fueled, in part, by the
No Child Left Behind Act of 2001, requiring states to meet academic performance
standards, and Congress’s reauthorization of the Elementary and Secondary Act of 1965
shortly thereafter. Subsequent federal initiatives, such as the Obama administration’s Race
to the Top Fund and the American Recovery and Reinvestment Act of 2009, similarly use
competitive grants along with standards and assessments to create incentives for states to
enact educational reform. In the states, state leaders also launched the Common Core State
Standards Initiative, a performance-based reform designed to encourage states to develop a
“common core” of knowledge and skills that all high school students should master before
going to college or entering into a career.22

To be sure, new litigation will invariably test the limits of judicial activism in educational
policy following the Great Recession of 2008 and the failure of some state and local
governments to meet their educational funding obligations under federal and state
legislation.23 A related issue involves the political uncertainty of whether courts may in fact
force state legislatures to enact reforms. In Alabama and Ohio, for example, both state
supreme courts terminated judicial proceedings in public school funding suits because their
legislatures declined to pass laws to remedy the constitutional violations, thus leaving
reforms in limbo. These suggest that state supreme courts have an important but, perhaps,
diminishing impact on educational reform because the enforcement of their decrees is
contingent upon the responses and support of other political institutions.24

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Federal Judicial Policymaking: Abortion and Affirmative
Action
In two cases, McCullen v. Coakley (2014)25 and Schuette v. Coalition to Defend Affirmative
Action (2014),26 the Supreme Court continued to develop constitutional principles dealing
with abortion and affirmative action. In McCullen, the Roberts Court upheld the First
Amendment free speech rights of protesters at abortion clinics by striking down a
Massachusetts law that created a thirty-five-foot “buffer zone” between protesters and
women seeking access to clinics. In Schuette, the Court upheld a Michigan constitutional
amendment barring affirmative action programs in public universities as well as in the
hiring of state employees and awarding of governmental contracts. While neither decision
directly addressed the merits of the disputes over abortion and affirmative action, their
significance reflects the continuing political controversy over earlier Supreme Court rulings
that expanded privacy rights and upheld affirmative action in the 1970s and 1980s.

Abortion
Although courts have long recognized protected privacy interests,27 a constitutional right of
privacy was not established until Griswold v. Connecticut (1965).28 There, a physician and
the director of the Planned Parenthood League of Connecticut were prosecuted for
dispensing contraceptives to a married couple in violation of state law. In a 7:2 decision
written by Justice William O. Douglas, the Court invalidated the state law and proclaimed
a constitutional right to privacy based on the penumbras or shadows of several guarantees
in the Bill of Rights. Justice Douglas explained:

Specific guarantees in the Bill of Rights have penumbras, formed by emanations from
those guarantees that help give them life and substance....Various guarantees create
zones of privacy. The right of association contained in the penumbra of the First
Amendment is one....The Third Amendment in its prohibition against the quartering
of soldiers “in any house” in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the “right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables
the citizen to create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: “The enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.”29

In dissent, however, Justices Hugo Black and Potter Stewart countered that the Court was

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acting like “a super-legislature” in proclaiming a right to privacy and exercising
“unbounded judicial authority would make of this Court’s members a day-to-day
constitutional convention.”30

Griswold had implications for other areas of privacy and reproductive rights as well.
Eisenstadt v. Baird (1972)31 held that Griswold and the Fourteenth Amendment justified
striking down a Massachusetts law outlawing the use of contraceptives by unmarried
persons. According to Justice William J. Brennan, “If the right to privacy means anything,
it is the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child.”32Eisenstadt, then, helped set the stage for the landmark
ruling in Roe v. Wade (1973)33 on abortion.34

In Roe, the Burger Court struck down Texas’s criminal abortion statute on the grounds that
it violated a woman’s constitutional right to privacy. Specifically, it compromised a
pregnant mother’s “liberty” interest to have an abortion under the Fourteenth
Amendment’s due process clause. In writing for the majority, Justice Harry Blackmun
reasoned that government did not have a compelling interest in barring access to abortions.
Instead, it had the power to regulate abortions more intensively as the pregnancy progressed
to term. As a result, under the so-called trimester approach, it was necessary to balance the
interests of women and those of states in protecting the unborn. Women and their
physicians retained a right to abort, at least in the first three months of the pregnancy. In
the second trimester, up to the point of viability (between twenty-four and twenty-eight
weeks—the time a fetus may live outside of the womb), states could regulate abortions in
order to protect maternal health. After viability, or in the third and last stage of pregnancy,
states had a compelling interest to preserve fetal life and could limit access to or even ban
abortions, except when necessary to save a woman’s life.

Roe ignited a firestorm of controversy, and a majority of states and the federal government
rewrote their abortion laws. Some state jurisdictions tailored their legislation to conform to
the Court’s ruling, but many others either left their pre-Roe laws in place or began to
sharply restrict the availability of abortions. Some laws restricted or eliminated public
funding for abortions, prohibited abortions in public hospitals, required spousal or parental
(for a minor) informed consent before allowing abortions, required fetal lung and maturity
tests, imposed mandatory waiting periods, and banned advertisements for abortion
clinics.35

Anti-Roe sentiments framed the Christian evangelical movement and Republican platforms
during the Ronald Reagan presidency as well as the administrations of George H. W. Bush
and George W. Bush. In addition, abortion politics fueled battles over federal judicial
appointments—most notably, in the Senate’s defeat of President Reagan’s 1987
nomination of Judge Robert Bork for a seat on the Supreme Court (for further discussion,

545
see the section in Chapter Four titled, “The Battle Over Robert Bork’s 1987
Nomination”).36 Afterward, President Reagan appointed Anthony Kennedy, a more
moderate Ninth Circuit appeals court judge, and he was easily confirmed by the Senate.37
Ironically, Justice Kennedy would come to play a key role in voting to uphold Roe in
subsequent cases seeking to overturn that precedent.

The changing composition of the bench and the shift to the right since the 1980s has led
the Court to revisit Roe several times. But thus far a majority of the Court has upheld “the
essence of Roe.” Most significantly, in an unusual joint opinion by Justices O’Connor,
Souter, and Kennedy, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992),38
they reaffirmed Roe’s “essential holding” that women have the freedom to terminate a
pregnancy up to the point of a fetus’s viability. The ruling was based on two underlying
factors. First, the Court feared its legitimacy would suffer if Roe was reversed under political
pressure. Second, Roe was upheld as a precedent that citizens relied upon as an enduring
principle of personal autonomy.

Roe nonetheless has been considerably weakened because the Rehnquist and Roberts Courts
have jettisoned its trimester analysis and strict scrutiny test, along with introducing a new,
less rigorous standard, the undue burden test. Under the undue burden test, restrictive
antiabortion laws are upheld if they do not place a substantial obstacle on the availability of
abortions. Consequently, although Roe remains the law of the land, Casey undermined it
considerably since its effect is to allow for more and greater restrictions on the availability of
abortions.

Moreover, in spite of the ruling in Casey, the abortion controversy remains hotly contested
and politically explosive. As Yale law professor Jack Balkin observed, the Court’s efforts to
settle the question of abortion rights “has proved to be little more than wishful thinking.”39
A recurring issue, among others,40 is the constitutionality of so-called “late-term” or
“partial-birth” abortion bans that were enacted immediately after Casey.41 In Stenberg v.
Carhart (2000), a bare majority of the Rehnquist Court struck down Nebraska’s ban on
partial-birth abortions because it did not contain a medical exception for the procedure to
take place if the pregnant mother’s health was in danger. Thereafter, however, Congress
passed the Partial-Birth Abortion Act, which also banned late-term abortions, and the
Court’s composition changed with the appointment of Chief Justice John Roberts and
Justice Samuel Alito. Subsequently, in Gonzales v. Carhart (2007), a bare majority of the
Roberts Court upheld that federal law even though it did not have a medical exception for
allowing the procedure if a woman’s health is endangered. But, ironically, the majority
stopped short of overruling Stenberg v. Carhart. As a result, the constitutionality of states’
partial-birth abortion bans will remain uncertain—until (and if) the Roberts Court decides
to revisit the issue.42

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Pro-abortion and anti-abortion protestors rally outside the Supreme Court on January 22,
2014.

AP Photo/Susan Walsh

Finally, new reproductive technologies, such as RU486 (the so-called “morning after” pill),
cloning, cryogenics, stem cell research, and procedures relating to same-sex procreation,
continue to keep the abortion controversy on national political and judicial agendas.
Abortion politics is now a central issue in virtually every federal judicial nomination and
confirmation. The growing politicization of the federal bench will likely persist or intensify
as new efforts to restrict or ban abortion rights will continue apace. Over forty years after
Roe, states continue to enact an array of laws limiting the availability of abortion (see Table
10.3 for a survey of state abortion laws). These new laws prompted an American Civil
Liberties Union lawyer to observe that, while this “sort of chipping away at Roe” has been
going on for decades, the most recent efforts are akin to using a “jackhammer” instead of a
“chisel.”43 Consequently, challenges to the constitutionality of such restrictions are certain
to continue returning the controversy to the Supreme Court.

Affirmative Action
Affirmative action began in the 1960s with executive orders from Democratic presidents
John F. Kennedy and Lyndon B. Johnson. These orders specified that federal contractors
and agencies must use affirmative action in making governmental contracts and ensuring
federal employees were not discriminated against in terms of race, color, religion, sex, or
national origin. Adopting racial preferences in government, private sector jobs, and higher
education grew across the nation—typically in the form of set-asides, quotas, preferences,

547
or priorities in employment, promotion, and admissions decisions. This growth was
accompanied by strident political opposition, especially in the late 1970s.44

Opponents argue that using race-based (instead of race-neutral) factors violates the
principle of equal protection of law and in fact is reverse discrimination. Proponents
counter that affirmative action programs are sound legal and social policy. Not only are
they remedies for past discrimination, but they also temper the effects of economic
inequalities suffered by politically disadvantaged minorities. Arguably, these reasons explain
why affirmative action policies have been adopted in many of the world’s democracies and
legal systems, such as India, South Africa, Northern Ireland, and Brazil.45

548
549
 Source: Derived from Alan Guttmacher Institute, “An Overview of Abortion Laws” (as of July 1, 2014),
available from www.guttmacher.org/sections/by-type.php?type=spib (last retrieved July 25, 2014).

These competing arguments have also long framed the Supreme Court’s jurisprudence on
affirmative action. In DeFunis v. Odegaard (1974), a white applicant challenged an
affirmative action program at the University of Washington law school after he was denied
admission. Yet the Burger Court (1969–1986) dismissed his appeal under the mootness
doctrine (discussed in Chapter Six) because a state court had ordered his admission while his
appeal was pending, and he would graduate before the Court could render a decision.
Dissenting liberal Justice Douglas, however, argued that

there is no constitutional right for any race to be preferred. The years of slavery did
more than retard the progress of blacks. Even a greater wrong was done the whites by
creating arrogance instead of humility and by encouraging the growth of the fiction of
a superior race. There is no superior person by constitutional standards. A DeFunis
who is white is entitled to no advantage by reason of that fact; nor is he subject to any
disability, no matter what his race or color. Whatever his race, he had a constitutional
right to have his application considered on its individual merits in a racially neutral
manner.46

In advocating racial neutrality, Justice Douglas foreshadowed contemporary arguments

claiming that affirmative action creates inequality by stigmatizing minorities and placing
those who should be recognized for their individual merits at a competitive disadvantage.

A few years later, Regents of the University of California v. Bakke (1978) directly addressed
affirmative action in higher education. In Bakke, a badly divided Supreme Court ruled that
using racial preferences was permissible so long as the affirmative action program did not
use racial quotas, and that the program was necessary to promote diversity in the student
body. Still, Bakke did not resolve much, and the controversy actually intensified after
President Reagan’s 1980 election. Moreover, attacks on affirmative action increasingly
became centered in the courts. Special interest groups, such as the Center for Equal
Opportunity, the Center for Individual Rights, the Independent Women’s Forum, and the

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Pacific Legal Foundation, took the lead in bringing lawsuits challenging the
constitutionality of affirmative action programs. Opponents also saw an opportunity for
success in the Supreme Court because of its changing composition and the appointments
made by Republican presidents Richard Nixon, Ronald Reagan, George H. W. Bush, and
George W. Bush, which resulted in an increasingly conservative majority on the Court in
the post-Bakke era.47

While a majority of the Rehnquist Court (1986–2005) resisted the pressure to overturn
Bakke, the justices nonetheless increasingly came to oppose affirmative action. In Gratz v.
Bollinger (2003), a 6:3 ruling, the Rehnquist Court struck down the University of
Michigan’s undergraduate admissions program because it awarded a set number of points
to applicants solely on the basis of race. But, in a companion case, Grutter v. Bollinger
(2003), a 5:4 bare majority (with Justice O’Connor joining the four liberals and writing the
opinion for the Court) upheld the University of Michigan law school’s affirmative action
program. Applying the strict scrutiny test, Justice O’Connor reasoned that achieving
educational diversity through race-conscious policies is a compelling government interest,
though taking race into account as a remedy for past discrimination is not. The law school’s
admission program was permissible because it adopted a “holistic” approach (taking into
account multiple qualification factors) in order to achieve diversity and a “critical mass” of
minority students. By contrast, dissenting Chief Justice Rehnquist and Justices Scalia,
Thomas, and Kennedy sharply disagreed. They countered that the Court misapplied Bakke
and the strict scrutiny interest test. Chief Justice Rehnquist and Justice Kennedy, in
particular, thought that Bakke was not followed since the University of Michigan’s law
school automatically applied racial preferences (akin to an impermissible quota) under the
fiction of achieving a “critical mass” of diverse students.48

Subsequently, a bare majority of the Roberts Court (2005 to present) further questioned
and cut back on affirmative action programs. The Roberts Court reconsidered the effect of
Gratz and Grutter on K–12 school policies using race-based considerations in Parents
Involved in Community Schools v. Seattle School District No. 1 (2006). Writing for the
Court, Chief Justice Roberts struck down student assignment plans that used race as a
factor in assigning students to high schools that were increasingly racially isolated due to
housing patterns, in order to maintain integration in compliance with Brown v. Board of
Education (1954). Chief Justice Roberts reasoned that such race-based policies are not
narrowly tailored and fail to survive strict scrutiny. As he flatly put it: “The way to stop
discrimination on the basis of race is to stop discriminating on the basis of race.” Justice
Kennedy concurred but argued that the plurality’s interpretation of Brown was flawed. And
he countered that local school boards may “consider the racial makeup of schools and to
adopt general policies to encourage a diverse student body, one aspect of which is its racial
composition.” As for the plurality’s interpretation of Brown, Kennedy wrote:

Fifty years of experience since Brown v. Board of Education (1954) should teach us that

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 the problem before us defies so easy a solution. School districts can seek to reach
Brown’s objective of equal educational opportunity. The plurality opinion is at least
open to the interpretation that the Constitution requires school districts to ignore the
problem of de facto resegregation in schooling. I cannot endorse that conclusion. To
the extent that the plurality opinion suggests the Constitution mandates that state and
local school authorities must accept the status quo of racial isolation in schools, it is, in
my view, profoundly mistaken.

Writing for the dissenters, Justice John Paul Stevens contended that Chief Justice Roberts’s
interpretation of Brown effectively “rewrites the history of one of this Court’s most
important decisions.”49

The Roberts Court, then, again considered Bakke and Grutter—but notably declined to
reverse those precedents—in reviewing the University of Texas at Austin’s affirmative
action plan in Fisher v. University of Texas at Austin (2013). Since many Texas high schools
were dominated by one specific race or ethnicity, the University of Texas argued that its
admissions policy was aimed at diversifying its study body by admitting about 75 percent of
all applicants if they were in the top 10 percent of their graduating high school class, and
the rest based on considering race and other factors in order to achieve a “critical mass” of
African American and Hispanic students. The latter applicants were judged on a “holistic
basis,” taking into account several individual “plus” factors, along with race, such as
leadership skills, work experience, community service, awards, honors, and other special
talents or circumstances. Not automatically admitted under the “Top Ten Percent” rule, a
white woman denied admission, Abigail Fisher, sued and charged the use of race in
admissions was constitutionally impermissible. With only Justice Ruth Ginsburg dissenting
(and Justice Elena Kagan recused), Justice Kennedy’s opinion for the Court returned the
case back to the lower court for further review, upon concluding that it failed to apply strict
scrutiny and the compelling interest test correctly. In doing so, the Roberts Court clearly
signaled that affirmative action plans in higher education may consider race in admissions
only if other race-neutral factors do not achieve the goal of educational diversity. In
concurring opinions, Justices Scalia and Thomas indicated that they would overturn
Grutter. By contrast, dissenting Justice Ginsburg stressed that in her view the Texas
affirmative action policy was constitutionally permissible, but notably also emphasized that
“the Court rightly declines to cast off the equal protection framework settled in Grutter.”50

The Roberts Court is likely to consider the affirmative action controversy in future cases.
After remand, for example, in Fisher v. University of Texas at Austin (2014),51 the Court of
Appeals for the Fifth Circuit reaffirmed its earlier holding that Texas may continue to use
race as a factor in undergraduate admissions. Judge Patrick Higginbotham reasoned that
the university’s race-conscious but holistic review of applicants furthered a compelling
interest in fostering educational diversity. Dissenting Circuit Judge Emilio Garza countered

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that the university failed to show that its plan was “narrowly tailored” to achieving the goal
of diversity. While some pundits have predicted that Judge Higginbotham’s opinion was
“cert.-proof” (making it unlikely that the Supreme Court will grant certiorari again because
it was decisively written), conservative interest groups vowed to continue the fight
affirmative action in light of the Roberts Court’s Schuette decision (discussed in this
chapter’s introduction).52

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The Impact of Judicial Decisions
Judicial decisions shape public policy and social relationships. They may not only affect the
parties to a lawsuit, but also influence the choices of government officials and private
entities who must, in turn, implement the legal rules or policies that their decisions create,
affirm, or reverse. So, too, they may broadly affect the public at large and have an impact
on whether their rulings invite political opposition or compliance and respect.

The concept of “judicial impact,” however, is multifaceted, fluid, and complex. The “cause
and effect” of judicial rulings is largely dependent upon how they are perceived,
implemented, and followed. Though courts may dictate social policy, at the end of the day
they must rely on other institutional actors to translate their rulings into practice. Courts
cannot control whether their rulings will be administered properly or accepted as
legitimate, though they may fine noncomplying parties to a lawsuit in contempt of court.
As a result, “implementation” and “compliance” are analytically distinct from “judicial
impact,” but both underscore not only the practical consequences of judicial decision
making, but also their public policy effect.

Although all judicial rulings have some effect on different subpopulations, groups, or
citizens,53 the extent to which judicial decisions are properly administered is far from
certain and sometimes controversial. The Roberts Court’s decision upholding “Obamacare”
(the Patient Protection and Affordable Care Act) in National Federation of Independent
Business v. Sebelius (2012)54 is illustrative. Though the ruling upheld the so-called
“individual mandate”—the legal obligation to buy health insurance—the decision’s
implications forced the federal government and state governments to create an insurance
marketplace through “American Health Benefit Exchanges” (for individuals) and “Small
Business Health Options Programs” (for small business owners) in order to comply with
the Court’s ruling. Each exchange provides buyers with information and access to the
insurance coverage they must buy (or face a tax penalty if they do not). Although governing
the exchanges is the responsibility of the states, the federal government must set them up if
a state refuses to create them. As of 2014, thirty-six states have relied upon the federal
government to run parts or all of their exchanges. Besides these mandates, the legality of the
exchanges and how they operate has been challenged in the federal appeals courts, and the
Supreme Court may have to revisit the constitutionality of the law in the future.55
Accordingly, the Department of Health and Human Services (the agency responsible for
implementing the law), as well as federal judges, state officials, insurance companies, small
businesses, and citizens, must adjust their policies, behavior, and actions in a rather
uncertain legal and political environment.

National Federation of Independent Business illustrates that a number of interrelated factors

influence implementation of and compliance with judicial decisions and hence their

554
impact. Whether an appellate court speaks with one voice, or is fragmented or split by
dissents and separate opinions, affects the weight of a decision as a precedent and, therefore,
compliance with it. The nature of the dispute may make a difference as well, because
controversial decisions are likely to provoke more hostility and opposition. The
institutional prestige of the court, along with the dynamics of the prevailing political
climate and public opinion, is important too.

These elements and many other intangibles may hinder enforcement and compliance,
especially when the Supreme Court is ahead of the prevailing public opinion. Although
there are many high-profile examples of the implementation of and compliance with
rulings of the Court—ranging from the enforcement of affirmative action policies, to the
regulation of political campaign finances, to the display of religious monuments in public
spaces, to the imposition of capital punishment—arguably, the best example of the
difficulties courts may confront in achieving implementation and compliance with their
rulings on major political controversies involves the politics of school desegregation
following the Warren Court’s decision in Brown v. Board of Education (1954).56

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Brown v. Board of Education (1954) and School
Desegregation Politics
In Brown, racial segregation in public schools was prohibited by implicitly ending (but not
directly overruling) the so-called “separate but equal principle” of Plessy v. Ferguson
(1896).57 In a companion case, Bolling v. Sharpe (1954),58 racial segregation in the District
of Columbia’s public schools was invalidated on the basis of the Fifth Amendment’s due
process clause, a decision holding that the guarantee of equal protection applied against
federal action as well as against state governments. The mandate in both cases, however,
met with stiff resistance in many local communities, a problem that was compounded by
the Court’s failure to issue any remedial orders to implement its decree until a year later in
Brown v. Board of Education (1955)(Brown II).59 Even then, the only remedy offered was
the justices’ insipid pronouncement that desegregation in schools should commence “with
all deliberate speed.”

The Court’s inability to enforce its own rulings transformed Brown’s mandate into little
more than a “moral appeal and an invitation for delay.”60 Although a few states began to
move toward desegregation even before the Court’s rulings, Brown II invited defiance in
the South instead of compliance. Immediately after Brown, white supremacist “citizen
councils” were organized. Several state legislatures and school boards enacted numerous
resolutions disputing Brown and condemning the Warren Court for its decision. In
Congress, 101 senators and representatives issued the “Southern Manifesto,” denouncing
Brown as an unconstitutional exercise of judicial power. President Dwight Eisenhower
reluctantly accepted Brown but refused to enforce it aggressively and defended the federal
government’s inaction, saying that “it is difficult through law and through force to change a
man’s heart.”61

Mounting pressures of the civil rights movement and persistent litigation by the National
Association for the Advancement of Colored People Legal Defense Fund forced the federal
government to act more decisively in the early 1960s. In 1961, the U.S. Civil Rights
Commission recommended that all school districts file desegregation plans with the federal
government and to deny 50 percent of federal funds for education from segregated districts.
Subsequently, Congress passed the Civil Rights Act of 1964, the landmark civil rights
legislation that guaranteed prohibiting segregation in public accommodations and the
workplace.62 The Department of Justice then began suing school districts and forcing them
to desegregate or lose millions of dollars in federal money.

Despite this progress, Brown’s enforcement remained uneven and piecemeal as the
composition of the Supreme Court changed with President Nixon’s four appointees and
the momentum of the civil rights movement also began to fade in the late 1970s. The
Burger Court reacted to lower court rulings authorizing gerrymandered school district lines

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and compulsory busing of school children by issuing key rulings prohibiting de jure (state-
sponsored) segregation in public schools, but permitting de facto segregation (resulting from
demographic changes in housing patterns), unless there was evidence of intentional
discrimination.63

Although hundreds of lawsuits were filed in the 1970s and 1980s to press local school
boards to integrate fully, courts confronted massive resistance to enforcing Brown in local
communities, and the Burger Court generally upheld lower courts’ micromanaging efforts
to achieve integration. Without firm Supreme Court guidance, the desegregation litigation
remained controversial and arguably floundered in the lower federal courts. After 1986,
when the most conservative member of the Burger Court—Justice William H. Rehnquist
—was elevated by President Ronald Reagan to the chief justiceship, the Rehnquist Court
began revisiting the controversy over school desegregation. A majority of Rehnquist Court
started disengaging the federal judiciary from the task of superintending local school boards
in order to achieve integrated, or “unitary,” school districts.

In Missouri v. Jenkins (1990),64 the Rehnquist Court affirmed the power of federal judges
to order a school board to levy taxes to implement desegregation plans. But, subsequently,
as the Court’s composition further changed and became more conservative, a majority of
the Rehnquist Court moved further in the direction of getting lower federal courts out of
the business of forcing compliance with Brown. In Board of Education of Oklahoma City
Public Schools v. Dowell (1991),65 and later in Freeman v. Pitts (1992),66 the Rehnquist
Court held that judicial supervision of segregated school districts could end if there was
evidence that school boards had made reasonable efforts to comply with desegregation plans
and, to the extent practicable, eliminated “the vestiges of past discrimination.” As one
political scientist observed, Dowell and Freeman heralded a “new course, not a dramatic
reversal, pointing to a new period of litigation—a period not unlike that immediately after
Brown but one in which lower courts gradually moved to relinquish, rather than assert,
control over public schools.”67 Arguably, the Roberts Court’s Parents Involved in
Community Schools ruling (discussed earlier) is further evidence of the federal judiciary’s
retreat from Brown.

For critics, Brown and its aftermath underscore the inability of courts to force major social
change.68 The Supreme Court could not fully implement Brown without the sustained
cooperation of the political branches and, in the end, without full public support. Although
total compliance with Brown has never been achieved, the Court’s policymaking did steer
the country in the direction of significant public policy change toward ending racial
discrimination in public schools and elsewhere. In this regard, Brown “dramatically and
undeniably altered the course of American life.”69

Nor is Brown an isolated case. Lawrence v. Texas (2003),70 the Court’s controversial ruling
striking down laws criminalizing homosexual sodomy, provoked similar responses and

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opposition. The reactions are considered in the next section in accordance with a model
public law scholars use in evaluating the implementation, compliance, and impact of
judicial rulings.

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The Politics of LGBT Rights and Same-Sex Marriages
Political scientists Bradley Canon and Charles Johnson have analyzed the scope and
application of judicial policymaking in terms of how different populations in the legal
culture interpret, implement, and comply with judicial decisions.71 They emphasize that
judicial policies are not self-executing, and appellate courts must rely on other institutional
actors—besides lower courts, state attorneys general, for example, and prosecutors, police,
key agency officials, and municipal employees—to translate legal principles into public
policy.

Judicial impact is a function of implementation (how court decisions are implemented by

government officials) and compliance (whether judicial policies are followed or not by
those interpreting or implementing them) (see Figure 10.1). The underlying dynamics of
implementation, compliance, and impact are not mutually exclusive or static. Rather, they
are fluid and situational. Illustrative of the impact of the Court’s watershed rulings is
Lawrence v. Texas (2003)72 and its consequences for the development of the law and gay
rights and same-sex marriage.

Before Lawrence, in Bowers v. Hardwick (1986),73 a bare majority of the Burger Court
ruled there was no constitutional right under the Fourteenth Amendment to engage in
consensual homosexual sodomy. But, by a 6:3 vote, Lawrence struck down Texas’s
antisodomy law and overturned Bowers. Writing for the Court, Justice Anthony Kennedy
held that criminalizing homosexual conduct between consenting adults violates the
Fourteenth Amendment and the right to privacy. Although Bowers emphasized that “for
centuries there have been powerful voices to condemn homosexual conduct as immoral,”
Justice Kennedy highlighted the “emerging awareness” over the past fifty years that “liberty
gives substantial protection to adult persons in deciding how to conduct their private lives
in matters pertaining to sex.” This “emerging recognition” is apparent not only in U.S. law,
but also in foreign law. In Justice Kennedy’s words, “Other nations...have taken action
consistent with an affirmation of the protected right of homosexual adults to engage in
intimate, consensual conduct.” Consequently, Justice Kennedy emphasized, the personal
autonomy of homosexuals “has been accepted as an integral part of human freedom in
many other countries.”74

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Figure 10.1 Judicial Compliance and Impact

Although Lawrence v. Texas only nullified criminal bans on sodomy, advocates and critics
of homosexual rights perceived it as opening the door for judicial recognition of same-sex
marriages.75 Still, there remained crosscutting movements and countervailing pressures to
reaffirm heterosexual marriage, along with recognizing the legality of same-sex
relationships. In 1996, President Bill Clinton signed the federal Defense of Marriage Act
(DOMA), which defined marriage as a heterosexual relationship. That law prompted a
majority of states to enact similar laws, “junior DOMAs.” At the same time, as Lawrence
recognized, many states were moving in a different direction. In 2000, Vermont became
the first state permitting homosexual “civil unions” (allowing same-sex couples to enjoy
legal rights given in heterosexual marriages). And by 2001, half of the states had repealed
their criminal laws banning consensual sodomy.76

Different constituencies responded to Lawrence in diverse ways. Their reactions were based
on the possibility that the judiciary would continue to play an active role in expanding
homosexual rights. Homosexual rights activists saw hope in Lawrence, but the decision
caused an equally intense backlash, especially among religious and conservative groups.
Significantly, Lawrence had the unintended effect of changing rights’ discourse: antigay
animus was no longer necessarily rooted in moral objections to homosexuality, as it was
before Lawrence. Rather, arguments for restricting same-sex unions were refashioned to
stress that they undermined the traditional institution of marriage and harmed children.77
The new parameters of the political debate about gay rights thereby redefined the strategies,
responses, and burdens of legislators and well-organized special interest groups for and

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against same-sex marriages.

Consequently, after Lawrence, the primary actors—lower courts, judges, and lawyers—
began to adjudicate the basic question of whether the traditional conception of marriage
should remain. With the state supreme court’s ruling in Goodridge v. Department of Health
(2003),78 Massachusetts became the first state to validate same-sex marriages. At the time,
only four other jurisdictions across the globe—Ontario, British Columbia, Belgium, and
the Netherlands—had authorized gay marriages. In the United States, the ruling created a
strong backlash among religious leaders and political opponents. In his 2004 State of the
Union Address, President George W. Bush declared that a constitutional amendment
preserving traditional marriage would be the “only alternative left” if “activist judges”
continued to thwart the people’s will. With public opinion polls showing little support for
same-sex marriage, several states passed nonbinding resolutions demanding Congress enact
such an amendment, but it did not garner enough votes in the House of Representatives to
pass.79

Local officials, however, began issuing marriage licenses to gay and lesbian couples.
Subsequently, the courts voided them in California, New Mexico, New York, and Oregon.
In response, opponents of homosexual rights turned to the ballot box and pressured state
legislatures to pass laws and constitutional amendments to bar same-sex marriages. By
2004, anti–gay marriage amendments to state constitutions had been enacted in thirteen
states. Within five years of Goodridge, more than twenty-five states had enacted similar
prohibitions; before Goodridge, only three states—Alaska, Nebraska, and Nevada—had
constitutional bans on homosexual marriages.80

In light of these developments, the progress toward judicially sanctioned same-sex marriage
remained uneven, though public opposition dramatically increased after 2006.81 Yet,
public opinion polls found increasing support for gay marriage or civil unions. Also, there
was a growing recognition of “relationship equality policies” in a variety of progressive
venues—by 2006, several hundred Fortune 500 companies gave their employees health care
plans for same-sex domestic partners, and by 2008, fifteen states enacted similar benefits for
public employees. Several states enacted enhanced punishments for antigay “hate crimes,”
and many others passed antidiscrimination laws applying to sexual orientation. While the
different signals emerging from the judiciary may have complicated reform efforts,
Lawrence and Goodridge undeniably encouraged the national lesbian, gay, bisexual, and
transsexual (LBGT) community to advance its political agenda.82

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Political cartoon depicting growing public support for same-sex marriage

Mike Luckovich Editorial Cartoon used with the permission of Mike Luckovich and
Creators Syndicate. All rights reserved.

By 2009, the Connecticut, California, and Iowa Supreme Courts each interpreted its state
constitution to recognize same-sex marriages.83 While the Connecticut ruling was accepted
by legislature and a majority of voters, the California and Iowa decisions generated a
substantial political backlash that reverberated across the nation. Whereas California voters
approved of a constitutional amendment banning same-sex marriage (Proposition 8), Iowa
voters removed three justices from the state supreme court in the 2010 retention elections.
Also, the remaining four Iowa justices were targeted for impeachment and salary cuts by
some Republican legislators, though those efforts failed. These developments were
accompanied by a sharp decline in public opinion polls supporting gay marriage and
Maine’s ratification of a constitutional amendment banning them. Legislative bills to
legalize same-sex marriages also failed in New York and New Jersey.84

Subsequently, however, the Supreme Court handed down two rulings that significantly
altered the legal and political landscape. U.S. v. Windsor (2013)85 challenged the
constitutionality of the federal DOMA law, and Hollingsworth v. Perry (2013)86 challenged
California’s antigay Proposition 8. In Windsor, in a 5:4 ruling with Justice Kennedy joining
his four liberal colleagues (Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court
held that DOMA’s Section 3, which defined marriage as only between heterosexuals,
violated due process and equal protection because it discriminated against same-sex couples
who were legally married in states that recognized those unions. In Hollingsworth, another
bare majority decision, Chief Justice Roberts—joined by only one conservative (Justice

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Scalia) and three liberals (Justices Ginsburg, Breyer, and Kagan)—ruled that supporters of
Proposition 8, who intervened in the suit when state officials refused to defend the
controversial initiative in the litigation, lacked standing to bring the suit in order to force its
implementation. While the Court did not directly address the constitutionality of same-sex
marriages, Hollingsworth left intact the lower federal court decisions declaring Proposition 8
unconstitutional. For some scholars, Windsor “alter[ed] the terms of the debate” over gay
rights because same-sex couples could no longer be denied federal rights and benefits.87

Nonetheless, the same-sex marriage controversy remains politically volatile and subject to
ongoing litigation in state and federal courts. Arguably, public acceptance of nontraditional
relationships continues to grow, as by January 2015 some thirty-five states have recognized
same-sex marriages based on state laws and judicial decisions. However, in light of
Hollingsworth, Windsor, and other precedents that support the recognition of same-sex
marriages, the state bans against them continue to be challenged and ultimately will force
the Court to rule on their constitutionality.88 In short, the politics of gay rights and the
controversy over same-sex marriages underscore that the capacity of courts to forge social
change is contingent upon whether its decisions are in line or out of step with prevailing
dominant political coalitions and public opinion (for further discussion, see the
“Contemporary Controversies Over Courts: Do Courts Forge Major Social Change?” box
in this chapter).89

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The Limitations of Judicial Power
As the abortion, school desegregation, affirmative action, and same-sex marriage
controversies demonstrate, courts are often asked to forge political and social change. They
may do so, but with mixed results. As these controversies illustrate, judicial power is subject
to a variety of internal and external constraints that limit the impact of judicial
policymaking.

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Internal Constraints
A number of informal norms and professional constraints limit judicial policymaking.
These “internal” constraints stem from the personal values of judges, shared conceptions of
collegiality, and informal traditions defining proper judicial behavior. A fundamental
maxim, though, is the faithful adherence to the judicial oath. As Chief Justice John
Marshall put it, the Constitution was thought of by the Framers as “a rule for the
government of courts.”90 On assuming office, all judges vow to uphold the Constitution
and the rule of law. Hence, they have a duty to follow what the founding document says in
discharging their official duties, notwithstanding their personal feelings about a case and its
public policy implications.

So, too, ingrained conceptions of judicial philosophy and deference to court-generated

norms, procedures, and traditions incline judges not to “yield to spasmodic sentiment, to
vague and unregulated benevolence” and compel them to “draw...inspiration from
consecrated principles.”91 In other words, judicial norms reinforce basic notions of judicial
integrity and deference to duly enacted statutes and institutional rules, as well as promote
adherence to precedent.92

Judges understand these restrictions and consider them seriously in judging. “Judges have
to look in the mirror at least once a day, just like everyone else,” federal appellate Judge
Alex Kozinski observed, and “they have to like what they see.”93 In other words, self-respect
is another powerful constraint on judicial behavior because it forces judges to base their
decisions on legal reasons that must withstand scrutiny from peers and the test of time.
Self-respect thus works in tandem with the fear of being chastised by colleagues, either
internally or by appellate judges who have the power to reverse lower court decisions.
Consequently, judges deviating too far from the law or precedent may also damage
professional reputations.94

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External Restraints
Besides internal constraints, the structural politics of constitutionalism and the separation
of powers operate as broad “external” limitations on judicial decision making. Courts are
subject to an array of checks imposed by legislatures, the executive branch, interest groups,
and public opinion. One federal court of appeals judge perceived Congress’s enactment of
the Civil Rights Act of 1991 as such a check because it overturned several Supreme Court
opinions relating to employment discrimination. Another example is the decision of
California voters to oust at least three state supreme court justices in judicial elections,
because of their rulings on the death penalty.95 In 2005, a group known as the South
Dakota Judicial Accountability unsuccessfully pushed for a state constitutional amendment
to eliminate immunity for state judges and permit citizens to sue and criminally prosecute
judges who were considered to violate the law in their decisions.96 These illustrations, and
countless others, highlight that federal and state judiciaries are ultimately accountable to
politicians and the public for their rulings, especially in controversial areas of public policy.

Restraints Imposed by Legislatures

Legislatures have a variety of options that can be used to curb courts that stray too far. They
may (1) amend their constitutions to reverse unpopular judicial decisions, (2) change the
court’s size or jurisdiction by legislation, (3) enact legislation that “overturns” unpopular
judicial decisions, or (4) simply ignore judicial rulings and not comply with them. They
may also use other tactics to pressure courts, such as attempting to influence judicial
appointments and reelection, or imposing term limits on judges. They also may reduce
funding for courts or refuse to provide salary increases. In extreme instances of political
retribution, legislatures may opt to initiate impeachment proceedings or, more commonly,
to at least threaten to use them against particular judges.

Still, constitutional amendments remain the most effective court-curbing method, although
it is a cumbersome and lengthy process to implement. Amendments have been regularly
introduced in order to reverse or revise judicial decisions relating to hot-button topics such
as abortion, flag burning, busing, and same-sex marriages; but only a small percentage have
been ratified.

Amending the constitution has the symbolic effect of representing the people’s will while
also reigning in courts that threaten to go too far ahead of prevailing public opinion in local
or national political communities. In the aftermath of Goodridge, for instance, one-half of
the states put amendments on the ballots that would bar same-sex marriages, and none
were rejected by the voters.97 On the federal level, constitutional amendments have also
overturned judicial rulings (see Table 10.4). Still, out of the tens of thousands of proposed
constitutional amendments introduced in Congress, only seven have overridden rulings of

566
the Supreme Court, with the passage of the Eleventh, Thirteenth, Fourteenth, Sixteenth,
Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments.

Besides amending constitutions, legislatures may limit courts by altering their size,
changing their jurisdiction, or redrawing jurisdictional boundaries. In the 1970s, for
example, the Nixon administration convinced conservatives in Congress to contest the
liberal direction of the Court of Appeals for the D.C. Circuit by taking away its authority
to act as a de facto “state” supreme court in criminal appeals, principally because the D.C.
Circuit was perceived to favor criminal defendants and protection of their constitutional
rights. Under the pretext of court reform, Congress thus enacted the “D.C. Circuit Crime
Bill,” legislation that removed criminal appeals from the docket and, in turn, replaced that
jurisdiction to hear federal agency appeals.98

Source: David M. O’Brien, Storm Center: The Supreme Court in American Politics, 10th ed. (New York: Norton,
2014), 362.

Likewise, in the 1980s, the Fifth Circuit, which then spanned a number of southern states,
was split in two, in part because federal judges in that region were sympathetic to black civil

567
rights. As a result, a new circuit, the Eleventh, was created in an attempt to defuse the old
Fifth Circuit’s authority.99 Circuit-splitting, or the process of reconfiguring judicial
boundaries, remains a popular court-curbing tool in the new millennium as well because
conservatives in Congress have reignited legislation to divide the Ninth Circuit in late
2005, the nation’s largest appellate court covering several western states. As in the cases of
the D.C. and Fifth Circuits, splitting the Ninth is purportedly justified by claims that the
division would streamline judicial operations; but studies have shown that the proposal is
driven by potent political constituencies seeking to diminish the power of liberal California
judges to decide cases favoring criminal defendants’ rights and broadening environmental
protection, and others that strike down the Pledge of Allegiance on the grounds of religious
freedom.100

Attempts to reign in courts by statutory overrides may not always succeed, especially if they
threaten the power of courts to be the final arbiter of constitutional disputes. After the
Court’s ruling in Employment Division, Department of Human Resources of Oregon v. Smith
(1990) (Oregon),101 which cut back on the free exercise of religion, Congress enacted the
Religious Freedom Restoration Act (RFRA), reinstating the preexisting legal test governing
religious freedom in cases prior to Oregon v. Smith. But, shortly thereafter, the Rehnquist
Court ruled in City of Boerne v. Flores (1997)102 that Congress exceeded its authority in
enacting the RFRA under power to “enforce,” by “appropriate legislation,” the Fourteenth
Amendment. The Court justified its ruling on the basis of judicial supremacy and its power
to determine the scope and meaning of constitutional law. Thus Boerne is an example of the
judiciary rebuffing a bold attempt by Congress to override a decision of the Court on
constitutional law.

The historic struggles over legislative versus judicial supremacy underscore that courts and
legislatures are engaged in an ongoing constitutional dialogue to set legal and public
policy.103 The Court has struck down an estimated 76 to 186 congressional acts in whole
or in part between 1789 and 2013.104 However, other studies find that Congress has
overridden 275 Supreme Court statutory construction decisions between 1967 and
2011.105 Of course, Congress has overridden the Court’s decisions due to pressures of
interest groups and political parties in a dynamic, open, and fluid political process.106

Finally, as already indicated, other political branches may limit judicial power by simply
ignoring rulings from the judiciary. As passive institutions, courts have little power to
enforce their own decisions. Perhaps the most famous example of this principle is President
Andrew Jackson’s refusal to abide by Worcester v. Georgia (1832),107 a Supreme Court
decision favoring the rights of Cherokee Indians over the sovereign rights of Georgia.
President Jackson reportedly rebuked the Court, saying, “John Marshall made his decision
—now let him enforce it!”108 The strain of such interbranch relations continues today, and
at all levels of the state and federal courts. In Ohio, for instance, the state supreme court
ruled in DeRolph v. Ohio (1997)109 that the method of funding public schools violated the

568
state constitution by creating an unequal disparity between rich and poor school districts.
Yet, that decision has never been enforced because of fierce legislative opposition and
partisan changes in the court’s composition.110

Restraints Imposed by the Executive Branch.

While governors and the president, along with their subordinates (attorneys general, agency
counsel, and cabinet officials) have limited authority to curb courts, the main method
remains judicial recruitment in the states and the federal appointment process (discussed in
Chapter Four). The pervasive impact of state judicial elections diminishes executive control
over the judiciary, although governors may still influence the composition of the bench by
making recess appointments during vacancies or, conversely, by affecting decisions about
who serves on judicial nomination commissions. Likewise, with few exceptions, presidents
have not been successful in entirely transforming the federal courts. In the beginning of the
republic, Presidents George Washington and John Adams were able to entrench the bench
with Federalist appointments; and President Franklin D. Roosevelt’s long tenure in the
Oval Office over four terms in the 1930s and 1940s gave him the unprecedented chance to
fill eight vacancies on the Supreme Court.111 Still, presidents, especially those serving two
terms, have had more success in packing lower federal courts because they have more
opportunities to fill vacancies with like-minded judges.

Besides appointments, presidents and governors may undermine judicial policymaking in

subtle ways by using litigation to advance their own political agendas or, conversely, to
resist certain unpopular rulings. Political support for the president’s agenda may come from
the use of a sympathetic judiciary that is allied with the many of the same litigation goals as
the prevailing administration.112 Similarly, government lawyers appointed by the president
—most notably the solicitor general and the attorney general—have a significant influence
on “repeat players” in the judicial and governmental process (as discussed in earlier
chapters). It is not an overstatement to say that the president, either directly or indirectly,
controls litigation policy in the federal bureaucracy,113 and thereby influences judicial
decision making over vast areas of law, ranging from abortion, affirmative action, the death
penalty, and religious freedom, to environmental protection, consumer rights, and antitrust
law.

Restraints Imposed by Public Opinion.

In addition, the judiciary is always accountable to the people. Scholars have demonstrated
that courts are sensitive to public opinion in different ways. Judges are responsive to public
views as part of the information they gather in deciding cases and making legal policy.114
Of course, public opinion may generate resistance to judicial policymaking, especially
during times of political upheaval, such as partisan realignments, or during critical

569
elections.115 Generally, though, courts tend to follow the election returns and to dispense
justice in accordance with the policy preferences of dominant national coalitions. In this
sense, courts are simply one element in an ongoing “constitutional dialogue” in American
democratic politics.116 Even so, scholars remain divided on the related question of whether
courts are institutionally capable of creating major social change. (For further discussion,
see “Contemporary Controversies Over Courts: Do Courts Forge Major Social Change?”)

570
Contemporary Controversies Over Courts

571
Do Courts Forge Major Social Change?
In one of his annual reports on the state of the federal judiciary, Chief Justice William H. Rehnquist
focused “on the recently mounting criticism of judges for engaging in what is often referred to as ‘judicial
activism,’” though he also emphasized that “criticism of judges and judicial decisions is as old as our
republic. “The Marshall Court (1801–1835) was sharply criticized, and as the chief justice noted, it took a
generation for the Court’s reputation to recover after its infamous ruling on slavery in Dred Scott v.
Sandford, 19 How. (60 U.S.) 393 (1857). The Court’s invalidation of early New Deal and other progressive
legislation culminated in President Franklin D. Roosevelt’s court-packing plan and the “constitutional
crisis” of 1937. Over sixty years ago, the landmark school desegregation decision, Brown v. Board of
Education of Topeka, Kansas, 347 U.S. 483 (1954), sparked massive resistance and a long-running
controversy over the implementation of its mandate. More recently, cases such as Goodridge v. Department
of Health, 798 N.E.2d 941 (Mass. 2003), and other decisions, register the role state supreme courts have
played in advancing gay rights and same-sex marriage, and also have produced significant political and social
backlash.

Along with the issue of same-sex marriage, judicial rulings on abortion, health care, immigration, and
religious freedom have intensified contemporary controversies over the role of courts. Sometimes, judicial
outcomes even generate sharp disagreements within courts and amongst colleagues. In 2013, Justice Ruth
Bader Ginsburg, one of the Court’s leading liberals, said in an interview with a New York Times reporter
that the Roberts Court is “one of the most activist courts in history.” She explained that she made a
“mistake” in joining an earlier opinion that later helped the Court to strike down a key provision of the
Voting Rights Act of 1965 in Shelby County v. Holder, 570 U.S. 2 (2013). She characterized, Shelby County
as a ruling that is “stunning in terms of activism.” Such high-profile criticisms fuel the debate about whether
the judiciary is an “activist” body that disregards the rule of law; an “imperial” institution in overturning
federal, state, and local laws; leading a “vital national seminar” that engages the country in a constitutional
dialogue within a pluralistic political system; usually “behind the times” and reinforcing the dominant
national coalition; or, finally, a “hollow hope” in terms of ensuring minority rights and bringing about
major social changes.

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“Imperial Judiciary”?
Whereas liberals criticized a conservative Court for invalidating progressive legislation before 1937,
afterward conservatives turned the table and attacked courts during the last fifty years for “activist” liberal
rulings on individual rights, due process, and the equal protection of the law. In a very influential article in
Public Interest, “Towards an Imperial Judiciary?,” Harvard University sociologist Nathan Glazer argued that
“American courts, the most powerful in the world...are now far more powerful than ever before....And
courts, through interpretation of the Constitution and the laws, now reach into the lives of the people,
against the will of the people, deeper than they had in American history.”

Subsequently, conservative scholars, jurists, and politicians expanded and advanced Glazer’s argument in
two different directions. On the one hand, many conservatives contending that we have “an imperial
judiciary” follow Judge Robert H. Bork in claiming that courts have forged major social changes with their
rulings on desegregation, abortion, affirmative action, school prayer, the rights of the accused, and equal
protection for women and homosexuals. In their view, over the last fifty years, unelected judges have
increasingly functioned antidemocratically, and their rulings are countermajoritarian in thwarting popular
opinion. Moreover, in light of the Court’s and federal judiciary’s move in more conservative directions since
the 1980s, even some liberal scholars agree and have lamented recent conservative “judicial activism” and
the judiciary’s antidemocratic role.

On the other hand, some conservatives and scholars argue that the judiciary lacks the resources and
managerial expertise to forge significant social change in, for example, overseeing the supervision of public
school desegregation, improving the conditions of prisons, and reforming law enforcement policies. In
short, courts lack not only the legitimacy but also the institutional capacity, expertise, and resources to bring
about coherent social change.

573
A “Vital National Seminar,” “Behind the Times,” or a
“Hollow Hope”?
By contrast, writing in the 1960s at the height of massive resistance to Brown v. Board of Education, Yale
law school professor Eugene V. Rostow countered conservative criticisms of the judiciary by arguing that
the Court engages the country in a “vital national seminar” over constitutional values. In his words, “The
Supreme Court is, among other things, an educational body, and the Justices are inevitably teachers in a
vital national seminar.” Rostow highlighted the fact that

the process of forming public opinion in the United States is a continuous one with many participants—
Congress, the President, the press, political parties, scholars, pressure groups, and so on....The reciprocal
relation between the Court and the community in the formulation of policy may be a paradox to those who
believe that there is something undemocratic in the power of judicial review. But the work of the Court can
have, and when wisely exercised does have, the effect not of inhibiting but of releasing and encouraging the
dominantly democratic forces of American life.

Other scholars, such as historian Louis Fisher, have further developed the argument that the Court’s rulings,
along with those of state and federal judiciaries, engage other political branches and the country in a
constitutional dialogue over the direction of law and public policy. They underscore the often neglected but
important role of state legislatures, Congress, the executive branch, and other political institutions and
organizations within a pluralistic political system in determining the direction of law and social change.

Yet, Yale University political scientist Robert Dahl took a different direction in charging that the Supreme
Court is generally in tune with the dominant national political coalition, and hence it is not as
countermajoritarian as conservatives claim. “By itself,” he concluded, “the Court is almost powerless to
affect the course of national policy.” On the basis of an examination of the Court’s invalidation of
congressional legislation, Dahl found that Congress ultimately prevailed 70 percent of the time. Congress
was able to do so by reenacting legislation and because of changes in the composition and direction of the
Court. In other words, on major issues of public policy, Congress is likely to prevail or at least temper the
impact of the Court’s rulings.

However, the Court forges public policy not only when invalidating federal legislation but also when
overturning state and local laws, and Dahl failed to consider that important fact. The continuing
controversies over decisions invalidating state and local laws on abortion, school prayer, and gay rights are a
measure of how the Court’s striking down state and local laws may elevate issues to the national political
agenda.

Nonetheless, a number of scholars have recently followed Dahl in maintaining that, contrary to
conservatives who charge that we have an “imperial judiciary,” the Court largely reinforces the policy
preferences of dominant national political coalitions rather than forging major social change. Put
differently, the Court usually only reaches out to bring “outliers” into line with an emerging or the
dominant national consensus. Among others, for one, law school professor Michael J. Klarman contends
that the Court has not brought about major social changes. Instead of forging “countermajoritarian
revolutions” with its rulings on civil rights and liberties, the Court has largely followed social changes in
tune with an emerging national consensus. He contends that

the modern Court’s individual rights jurisprudence can be usefully distilled into two general categories.
First,...frequently...the [court seizes] upon a dominant national consensus and impos[es] it on resisting local
outliers. Cases illustrating this pattern include Griswold v. Connecticut, 381 U.S. 479
(1965)....Second,...the Court intervenes...where the nation is narrowly divided—racial segregation in 1954,
the death penalty in 1972, abortion in 1973, affirmative action in 1978, and...sexual orientation in 1986.
On these occasions, the justices seem, whether consciously or not, to be endeavoring to predict the future.

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In From the Closet to the Altar (2013), Klarman strikes a similar tone in conceding that “gay marriage
litigation has undeniably advanced the cause of gay rights,” but also that “dramatic social change does not
happen until the people begin contemplating and discussing it.”

Still other scholars, such as Gerald N. Rosenberg, in his book The Hollow Hope: Can Courts Bring About
Social Change?, go even further in claiming that “courts can almost never be effective producers of significant
social reform.” Brown’s failure to achieve widespread desegregation in the following decades, for instance,
remains instructive, Rosenberg contended, in developing a model of judicial policymaking based on two
opposing theories of judicial power. On the one hand, a “constrained court” theory posits that three
institutional factors limit judicial policymaking: “the limited nature of constitutional rights,” “the lack of
judicial independence,” and “the judiciary’s lack of powers of implementation.” On the other hand, a
“dynamic court theory” emphasizes the judiciary’s freedom “from electoral constraints and [other]
institutional arrangements that stymie change” and thus enable the courts to take on issues that other
political institutions might not or cannot. But neither theory is completely satisfactory, according to
Rosenberg, because occasionally the Court does bring about social change. The Court may do so when the
three institutional restraints identified with the constrained court theory are absent and at least one of the
following conditions exists to support judicial policymaking when other political institutions and actors
offer either (1) incentives or (2) costs to induce compliance; (3) “when judicial decisions can be
implemented by the market”; or (4) when the Court’s ruling serves as “a shield, cover, or excuse, for persons
crucial to implementation who are willing to act.” On the basis of the resistance to Brown’s mandate,
Rosenberg concluded that “Brown and its progeny stand for the proposition that courts are impotent to
produce significant social reform.” Likewise, in regard to the negative backlash same-sex marriage litigation
generated in the states and across the country, Rosenberg determined that “there is no reason why the
constraints and conditions that limit federal courts from producing significant social reform should not
apply to state courts as well.” In sum, conservatives’ charges of “an imperial judiciary” are sometimes
exaggerated, whereas liberals may be misguided in looking to the courts to bring about major social changes.

For further reading, see Chief Justice William H. Rehnquist, “2004 Year-End Report on the Federal
Judiciary” (January 1, 2005), available at www.supremecourt.gov/publicinfo/year-end/2004year-
endreport.pdf (last retrieved July 29, 2014); Adam Liptak, “Court Is ‘One of Most Activist,’ Ginsburg Says,
Vowing to Stay,” New York Times (August 24, 2013), available at www.nytimes.com (last retrieved July 29,
2014); William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of
Roosevelt (New York: Oxford University Press, 1995); Nathan Glazer, “Towards an Imperial Judiciary?” The
Public Interest 104 (1975), 106; Robert H. Bork, The Tempting of America: The Political Seduction of the
Law (New York: Free Press, 1990); Donald L. Horowitz, The Courts and Social Policy (Washington, D.C.:
The Brookings Institution, 1977); Eugene V. Rostow, The Sovereign Prerogative: The Supreme Court and the
Quest for Law (New Haven, Conn.: Yale University Press, 1962), 167; Louis Fisher, Constitutional
Dialogues: Interpretation as Political Process (Princeton, N.J.: Princeton University Press, 1988); Robert
Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of
Public Law 6 (1957), 279, 293; Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the
Struggle for Same-Sex Marriage (New York: Oxford University Press, 2013); Gerald N. Rosenberg, The
Hollow Hope: Can Courts Bring About Social Change? 2nd ed. (Chicago: University of Chicago Press, 2008),
35–36, 340; and Robert J. Hume, Courthouse Democracy and Minority Rights: Same-Sex Marriage in the
States (New York: Oxford University Press, 2013).

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Chapter Summary
Appellate courts are agents of legal and political change. Under the principle of judicial
federalism, judicial policy is made by state and federal appellate courts. Judicial
policymaking is controversial because critics assert that judges engage in “judicial activism”
or “results-oriented” jurisprudence in forging social policy, as with imposing restrictions on
public school funding, for example, or ruling on abortion rights, affirmative action
programs, and same-sex marriages.

The concept of “judicial impact” is complex. Since courts are not “self-starters,” the
enforcement of their rulings depends on the responses of government officials and private
entities and, ultimately, public opinion. The impact of major judicial policymaking is
exemplified by the controversies over school desegregation in the aftermath of Brown v.
Board of Education (1954) and the struggle to win legal recognition for same-sex marriages
after Lawrence v. Texas (2003) and Goodridge v. Department of Health (2003). In short, the
judiciary cannot fully implement its policies without the sustained cooperation of other
political branches and public support.

There are internal constraints and external restraints on judicial power. Internally, judges
are mindful of judicial norms, principles of judicial philosophy, and informal traditions of
collegiality that define proper judicial behavior and influence judicial decision making.
Externally, the judiciary is subject to various checks by legislatures, the executive branch,
interest groups, and public opinion.

576
Key Questions for Review and Critical Analysis
1. What are the different constraints and restraints on state versus federal judges?
2. Explain and contrast the concepts of “judicial self-restraint” and “judicial activism.”
What contrasting examples would you give, and why?
3. What are the most effective “internal” constraints or “external” restraints on judicial
power?
4. Can and should courts attempt to forge social change? In what areas has the judiciary
appeared to try to do so?

577
Web Links
1. Judicial Watch (www.judicialwatch.org)
A conservative organization that strives to provide transparency to legal and
judicial developments through public outreach, litigation, and educational
projects.
2. Justice at Stake (www.justiceatstake.org)
A liberal organization that supports litigation, public outreach, and education
about progressive issues relating to judicial reform, judicial selection, civil rights
and liberties, and special interest group activities.
3. Washington Legal Foundation (www.wlf.org)
A conservative public interest law and policy center engaged in litigation,
public outreach, and educational activities.
4. American Civil Liberties Union (ACLU) (www.aclu.org)
A major liberal organization devoted to individual rights and progressive
reforms through litigation, public outreach, and educational activities.

578
Selected Readings
Canon, Bradley C., and Charles A. Johnson. Judicial Policies: Implementation and Impact.
2nd ed. Washington, D.C.: CQ Press, 1998.

Craig, Barbara, and David M. O’Brien. Abortion and American Politics.Chatham,N.J.:

Chatham House, 1993.

Deslippe, Dennis. Protesting Affirmative Action: The Struggle Over Equality After the
Civil Rights Revolution. Baltimore: John Hopkins University Press, 2012.

Garrow, David. Liberty and Sexuality: The Right to Privacy and the Making of Roe v.
Wade. New York: Macmillan, 1994.

Hume, Robert J. Courthouse Democracy and Minority Rights: Same-Sex Marriage in the
States. New York: Oxford University Press, 2013.

Kahn, Ronald, and Ken I. Kersch, eds. The Supreme Court and American Political
Development. Lawrence: University Press of Kansas, 2006.

Keck, Thomas M. The Most Activist Supreme Court in History: The Road to Modern
Judicial Conservatism.Chicago: University of Chicago Press, 2004.

Klarman, Michael J. From the Closet to the Altar: Courts, Backlash, and the Struggle for
Same-Sex Marriage.New York: Oxford University Press, 2013.

Moller, Kai.The Global Model of Constitutional Rights. Oxford: Oxford University Press,
2012.

Peretti, Terri Jennings. In Defense of a Political Court. Princeton, N.J.: Princeton

University Press, 1999.

Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring About Social Change? 2nd ed.

579
 Chicago: University of Chicago Press, 2008.

Tate, C. Neal, and Torbjorn Vallinder, eds. The Global Expansion of Judicial Power. New
York: New York University Press, 1995.

West, Martin R., and Paul E. Peterson, eds. School Money Trials: The Legal Pursuit of
Educational Adequacy. Washington, D.C.: Brookings Institution Press, 2007.

580
EndNotes
1. Alexander Hamilton, “Federalist No. 78,” in The Federalist Papers, ed. Clinton Rossiter
(New York: Mentor, 1961), 465.

2. In 2011, Congressman Jim Sensenbrenner (R-WI) and Senator Chuck Grassley (R-IA)
sponsored legislative proposals to create an Inspector General to monitor “waste, fraud and
abuse with the federal judiciary.” Jim Sensenbrenner, “Press Release and Statements:
Sensenbrenner, Grassley Work to Bring Transparency, Accountability to Federal Judiciary
(February 15, 2011),” available at
http://sensenbrenner.house.gov/news/documentsingle.aspx?DocumentID=225193 (last
retrieved June 16, 2014); Jay L. Jackson, “The Siege on State Courts,” ABA Journal 99
(2013), 54–61 (reporting several states use chastisement, salary cuts, and removal from
office as measures to retaliate against unpopular state judge opinions). See also Ruth
Marcus, “Booting the Bench,”Washington Post (April 11, 2005), A19. See also Pamela A.
MacLean, The National Journal (May 5, 2005), available at www.law.com (last retrieved
May 27, 2005).

3. Benjamin Cardozo, The Nature of the Judicial Process (New Haven, Conn.: Yale
University Press, 1921), 141.

4. See, e.g., Herbert Weschler, “Toward Neutral Principles of Constitutional Law,”

Harvard Law Review 73 (1959), 1–35.

5. See Stephanie A. Lindquist and Frank B. Cross, Measuring Judicial Activism (New York:
Oxford University Press, 2008), 39; and Wayne Justice, “The Two Faces of Judicial
Activism,” in Judges on Judging: Views From the Bench, 4th ed., edited by. David M.
O’Brien (Thousand Oaks, Calif.: CQ Press, 2013), 44.

6. Adam Liptak, “Court Under Roberts Is Most Conservative in Decades,” New York Times
(July 24, 2010), available at www.nytimes.com (last retrieved July 25, 2010); Lee Epstein,
William M. Landes, and Richard A. Posner, “How Business Fares in the Supreme Court,”
Minnesota Law Review 97 (2013), 1431–72. See also Lindquist and Cross, Measuring
Judicial Activism, 1–9.

7. Learned Hand, “Sources of Tolerance,” University of Pennsylvania Law Review 79

(1930), 1, 11–12. See also Keenan D. Kmiec, “The Origin and Current Meanings of
‘Judicial Activism,’” California Law Review 92 (October 2004), 1441, 1463–77 (analyzing
activism and judicial role); and Frank H. Easterbrook, “Do Liberals and Conservatives
Differ in Judicial Activism?” Colorado Law Review 73 (Fall, 2002), 140 (labeling activism as
a “notoriously slippery” term).

581
8. Lindquist and Cross, Measuring Judicial Activism, 33 (listing studies in Table 1).
Lindquist and Cross also conclude in an empirical study that “judicial activism [is] best
viewed as a multidimensional concept.” Ibid., 133.

9. Brown v. Board of Education, 347 U.S. 483 (1954), 493.

10. Serrano v. Priest, 487 P.2d 1241 (1971).

11. Robinson v. Cahill, 287 A.2d 187 (1972).

12. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

13. San Antonio Independent School District, 24, 31, 33, 40. Notably, some scholars have
challenged this interpretation by asserting there is a recognizable federal right to an
adequate education in the U.S. Constitution. See Barry Friedman and Sara Solow, “The
Federal Right to an Adequate Education,” George Washington Law Review 81 (2013), 92–
155.

14. Michael A. Rebell, “Educational Adequacy, Democracy, and the Courts,” in Achieving
High Educational Standards for All: Conference Summary (2002), available at
www.schoolfunding.info/resource_center/research/adequacychapter.pdf (last retrieved July
24, 2014), 226–27.

15. Most research characterizes school finance reform in terms of three “waves” of judicial
rulings. The first began in the late 1960s in which plaintiffs relied upon the U.S.
Constitution’s Equal Protection Clause to argue that funding schemes were discriminatory.
After the Supreme Court’s Rodriguez (1973) decision, the second wave concentrated on
relying upon state equal protection clauses and the inequities caused by property-based
funding mechanisms. After Rose (1989), plaintiffs in the third wave based their claims on
education clauses in state constitutions. Richard Briffault, “Adding Adequacy to Equity,” in
School Money Trials: The Legal Pursuit of Educational Adequacy, edited by Martin R. West
and Paul E. Peterson (Washington, D.C.: Brookings Institution Press, 2007), 25. See also
Rebell, “Educational Adequacy, Democracy, and the Courts,” 229–34.

16. Rebell, “Educational Adequacy, Democracy, and the Courts,” 229–34. Other scholars
observe that Rose v. Council for Better Education, 790 S.W.2d 186 (1989), along with
Helena Elementary School District No. 1 v. State, 769 P.2d 684 (Mont. 1989), and Edgewood
Independent School District v. Kirby, 777 S.W.2d 391 (Tex. 1989), made adequacy, instead
of equity, the predominant theory underlying plaintiffs’ victories. The “adequacy” case
trilogy was a spark to the reform movement because six years had passed after the last
plaintiffs’ victory, and the highest courts in several states upheld their state school finance
systems. William E. Thro, “Judicial Humility: The Enduring Legacy of Rose v. Council for
Better Education,” Kentucky Law Journal 98 (2009–2010), 717–38.

582
17. National Education Access Network, “Education Adequacy Liability Decisions Since
1989 (June 2010),” available at www.schoolfunding.info/litigation/litigation.php3 (last
retrieved July 24, 2014). See also Thro, “Judicial Humility: The Enduring Legacy of Rose v.
Council for Better Education,” 720–21. After Rose, fifteen states invalidated their state school
funding systems, whereas eighteen upheld them. Ibid., 721 n. 18. As a result, scholars
generally acknowledge that the shift to adequacy had a significant impact on generating
more plaintiff victories than in the past. Briffault, “Adding Adequacy to Equity,” 26.

18. In the underlying litigation of Rose, after finding liability, the trial court judge issued a
“stay” in order to conduct a thorough investigation about how to devise a remedy. During
the six-month stay, the trial judge appointed a select committee to construct a remedy to fix
the problem of insufficient school resources. After five highly publicized hearings across the
state, the committee recommended standards that constituted an “adequate” education,
and many of those were adopted by the Kentucky Supreme Court. Rebell, “Educational
Adequacy, Democracy, and the Courts,” 229–30, 235.

19. Rebell, “Educational Adequacy, Democracy, and the Courts,” 235.

20. In Gannon, the court declared the adequacy element is met when the funding system
for grades K–12 is structurally and reasonably calculated to meet the standards set out in
the Kentucky Supreme Court’s Rose ruling, as codified in Kansas law; and the equity
component is met through Gannon’s creation of a “new test” that obliges the legislature to
give “school districts... reasonably equal access to substantially similar educational
opportunity through similar tax effort.” Gordon L. Self, “Analysis of the Kansas Supreme
Court’s Opinion in Gannon v. State, Case No. 109, 335 (March 7, 2014),” Office of Revisor
of Statutes, Legislature of the State of Kansas, available at
www.ksrevisor.org/rpts/gannon_v_state_analysis.pdf (last retrieved July 24, 2014). See also
Joshua E. Weishart, “Transcending Equality Versus Adequacy,” Stanford Law Review 66
(2014), 477–544; Thro, 719 n. 7 (listing nearly forty states addressing school funding
issues through litigation); and Gannon v. State, 298 Kansas 1107 (Kan. 2014).

21. By 2014, twelve states were actively engaged in defending their school funding systems
(Kansas, Washington, Texas, California, Florida, New York, Arkansas, South Carolina,
Arizona, Connecticut, Rhode Island, and North Carolina). Education Justice, “Many States
Face School Funding Litigation: Update,” available at http://educationjustice.org (last
retrieved July 24, 2014). As of June 2010, the National Education Access Network listed
thirteen states in the process of litigating the constitutionality of K–12 funding. Only five
states, Delaware, Hawaii, Mississippi, Nevada, and Utah, have never had a funding lawsuit.
National Education Access Network, “Litigations Challenging Constitutionality of K–12
Funding in the 50 States,” available at www.schoolfunding.info/litigation/litigation.php3
(last retrieved July 24, 2014).

22. See National Conference of State Legislatures, “Common Core State Standards (May 1,

583
2014),” available at www.ncsl.org/research/education/common-core-state-standards.aspx#1
(last retrieved July 24, 2014). U.S. Department of Education, “Race to the Top Fund,”
available at www2.ed.gov/programs/racetothetop/index.html (last retrieved July 24, 2014).

23. Michael A. Rebell, “Safeguarding the Right to a Sound Basic Education in Times of
Fiscal Constraint,” Albany Law Review 75 (2012), 1855–976. See also National Conference
of State Legislatures, “Promises Versus Challenges Related to Implementing the Common
Core Standards,” available at www.ncsl.org/research/education/common-core-state-
standards-promises-vs-challenges.aspx (last retrieved July 24, 2014) (identifying cost, along
with the effect of federal legislation and general unknown policy consequences, as a few of
the problems that will impede implementing the core standards).

24. Christopher Berry and Charles Wysong, “Making Courts Matter: Politics and the
Implementation of State Supreme Court Decisions,” University of Chicago Law Review 79
(2012), 1–27. The Alabama and Ohio cases are Ex Parte Governor Fob James,836 So.2d
813 (Ala. 2002) and State v. Lewis, 789 N.E.2d 195 (Ohio 2003).

25. McCullen v. Coakely, 134 S.Ct. 2518 (2014).

26. Schuette v. Coalition to Defend Affirmative Action, 134 S.Ct. 1623 (2014).

27. In Boyd v. United States, 116 U.S. 616 (1886), the Supreme Court recognized privacy
rights in the Fourth and Fifth Amendments in a search and seizure case. Thereafter, state
courts began to recognize privacy, and by 1960, the right to privacy was recognized in over
thirty states. David M. O’Brien, Constitutional Law and Politics: Civil Rights and Civil
Liberties (Volume 2), 9th ed. (New York: Norton, 2014), 1312–13. By the mid-twentieth
century, the Supreme Court also extended the right under the Fourteenth Amendment’s
due process clause to protect against governmental interference in areas of child rearing
and, later, to reproductive rights and marriage interests. In Pierce v. Society of Sisters, 268
U.S. 510 (1925), the Court struck down a state law requiring parents to send their children
to public instead of private schools because it restricted parental freedom to rear and
educate offspring. Although Buck v. Bell, 274 U.S. 200 (1927), upheld a Virginia law
authorizing the compulsory sterilization of mentally challenged individuals, in Skinner v.
Oklahoma, 316 U.S. 535 (1942), the Court nullified a state law allowing for the
sterilization of “habitual criminals.” Several years later, interracial marriages were legally
sanctioned by the reversal of a state miscegenation law in Loving v. Virginia, 388 U.S. 1
(1967).

28. Griswold v. Connecticut, 381 U.S. 479 (1963).

29. Ibid., 484.

30. Ibid., 520 (Black, J. dissenting).

584
31. Eisenstadt v. Baird, 405 U.S. 438 (1972).

32. Ibid., 453 (Brennan, J.).

33. Roe v. Wade, 410 U.S. 113 (1973).

34. The movement to liberalize abortion laws prior to Roe, ironically, was a return to earlier
pre–Civil War jurisprudence. By the mid-nineteenth century, most states permitted
abortions until the first movement of the fetus, or “quickening”; and in jurisdictions
criminalizing it, abortions were generally minor offenses. The growing pressure of the
medical profession and antiabortionists induced states to ratchet up penalties and
enforcement. By 1910, all states except Kentucky made abortions a felony, and a majority
authorized them when it was necessary to save the mother’s life. Still, in the 1960s and
1970s, the trend had begun to reverse itself as a minority of states condoned abortions in
other circumstances, such as when the pregnancy was the result of a rape or incest, or when
there was a likelihood of fetal abnormality. Four jurisdictions—Hawaii, Alaska, New York,
and Washington—went so far as to abolish criminal penalties for abortions performed in
the early stages of pregnancy. Barbara Hinkson Craig and David M. O’Brien, Abortion and
American Politics (Chatham, N.J.: Chatham House Publishers, 1993), 9–10.

35. O’Brien, Constitutional Law and Politics: Civil Rights and Civil Liberties, 1319–20.

36. Bork, who was widely regarded as the new “swing vote” in replacing Justice Lewis
Powell, generated intense interest group and media coverage because Bork had not only
publicly denounced Roe but also intimated that he would vote to overturn it. As a result,
Bork and the abortion issue polarized the nation. In the end, the pro-choice groups
mobilized faster and better than their conservative counterparts, and they were instrumental
in defeating Bork’s claim to the bench.

37. Jack M. Balkin, “Roe v. Wade: An Engine of Controversy,” in What Roe v. Wade Should
Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision,
edited by Jack M. Balkin (New York: New York University Press, 2005), 11–13.

38. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S 833 (1992).

39. Balkin, “Roe v. Wade: An Engine of Controversy,” 17.

40. For example, a majority of states compel minors to notify their parents or obtain their
consent before having an abortion. Only two states, plus the District of Columbia, permit
all minors to consent to abortions. The Alan Guttmacher Institute, “An Overview of
Minors’ Consent Law” (as of July 1, 2014), available at www.guttmacher.org/sections/by-
type.php?type=spib (last retrieved July 25, 2014). In Ayotte v. Planned Parenthood of
Northern New England, 546 U.S. 320 (2006), a unanimous Roberts Court returned the
case to the lower courts to reconsider whether New Hampshire’s law, which barred

585
abortions for minors until forty-eight hours after a parent was notified, was appropriate
because the law did not have a medical emergency exception to protect the pregnant teen’s
health. The Court suggested that the entire law should be invalidated, however, if it did not
have a medical exception.

41. The Alan Guttmacher Institute, “Bans on Partial Birth Abortion” (as of July 1, 2014),
available at www.guttmacher.org/sections/by-type.php?type=spib (last retrieved July 25,
2014). See also O’Brien, Constitutional Law and Politics: Civil Rights and Civil Liberties,
1324–26.

42. As of July 1, 2014, thirty-two states have partial birth abortion bans, but all have some
sort of health exception. Of the thirty-two, thirteen have been blocked or not in effect due
to state court rulings. Of the remaining nineteen, seven remain unchallenged but are
arguably constitutionally suspect under Stenberg v. Carhart, 530 U.S. 914 (2000). The Alan
Guttmacher Institute, “Bans on Partial Birth Abortion” (as of July 1, 2014), available at
www.guttmacher.org/sections/by-type.php?type=spib (last retrieved July 25, 2014). See also
Gonzalez v. Carhart, 550 U.S. 124 (2007).

43. Tracy A. Thomas, “Back to the Future of Regulating Abortion in the First Term,”
Wisconsin Journal of Law, Gender, and Society 29 (2014), 47–86. See also Juliet Eilperin,
“Abortion Limits at State Level Return Issue to the National Stage,” Washington Post (July
5, 2013), available at www.washingtonpost.com (last retrieved July 25, 2014); L. J.
Jackson, “A Right-to-Life Movement Reborn Friendlier State Legislatures Lead to a Rise in
Anti-Abortion Legislation,” ABA Journal 97 (2011), 20; and Anonymous note, “After
Ayotte: The Need to Defend Abortion Rights With Renewed ‘Purpose,’” Harvard Law
Review 119 (2006), 2552–73.

44. Dennis Deslippe, Protesting Affirmative Action: The Struggle Over Equality After the Civil
Rights Revolution (Baltimore: John Hopkins University Press, 2012), 19–32, 66–78, 210–
11; Zoya Hasan and Martha C. Nussbaum, “Introduction,” in Equalizing Access:
Affirmative Action in Higher Education in India, United States, and South Africa, eds. Zoya
Hasan and Martha C. Nussbaum (Oxford: Oxford University Press, 2012).

45. Edmund Terence Gomez and Ralph Premdas, “Affirmative Action, Horizontal
Inequalities, and Equitable Development,” in Affirmative Action, Ethnicity, and Conflict,
eds. Mohammed Hazim Shah, A.B. Shamsul, and Terence Gomez (London: Routledge,
2013), 1–2, 5–7; Hasan and Nussbaum, “Introduction,” 4–7.

46. Defunis v. Odegaard,416 U.S. 312, 336-337 (1974) (J. Douglas, dissenting).

47. Deslippe, Protesting Affirmative Action, 206–8, 210–17. See also Regents of the
University of California v. Bakke, 438 U.S. 265 (1978).

48. Grutter v. Bollinger, 539 U.S. 306 (2003). See also Gratz v. Bollinger, 539 U.S. 234

586
(2003).

49. Parents Involved in the Community Schools v. Seattle School District No. 1, 551 U.S. 701,
799 (2006) (J. Stevens, dissenting); ibid, 747 (C.J. Roberts Opinion for the Court); ibid,
788 (J. Kennedy, concurring in part and in the judgment). See also Brown v. Board of
Education, 347 U.S. 483 (1954).

50. Fisher v. University of Texas at Austin, 133 S.Ct. 2411, 2415 (2013) (J. Kennedy
Opinion for the Court); ibid., 2422 (J. Scalia, concurring); ibid., 2422 (J. Thomas,
concurring); and ibid., 2422 (J. Ginsburg, dissenting).

51. Fisher v. University of Texas at Austin, 2014 WL 3442449 (July 15, 2014).

52. Veteran Supreme Court reporter Linda Greenhouse predicts that the Texas litigation in
Fisher will end, but also observes that Edward Blum, a conservative who is “the frontman
for a network of conservative foundations that channel money to his Project on Fair
Representation,” is seeking “a new Abigail Fisher” to litigate the affirmative action issue
again in the Supreme Court. Linda Greenhouse, “With All Due Deference: Ruling Defends
Affirmative Action From New Challenges,” New York Times (op-ed, July 23, 2014),
available at www.nytimes.com (last retrieved July 25, 2014).

53. See Bradley C. Canon and Charles A. Johnson, Judicial Policies: Implementation and
Impact, 2nd ed. (Washington, D.C.: CQ Press, 1999), 2–3.

54. Blakely v. Washington, 542 U.S. 296 (2004). The Court based its holding on the
principles first announced in Apprendi v. New Jersey, 530 U.S. 466 (2000).

55. Jonathan H. Adler, “Why Did the Court Grant Cert. in King v. Burwell?” Washington
Post (November 7, 2014), available at http://www.washingtonpost.com/news/volokh-
conspiracy/wp/2014/11/07/why-did-the-court-grant-cert-in-king-v-burwell/ (last retrieved
November 9, 2014).

56. Brown v. Board of Education, 347 U.S. 483 (1954).

57. Plessy v. Ferguson, 163 U.S. 537 (1896).

58. Bolling v. Sharpe, 347 U.S. 497 (1954).

59. Brown v. Board of Education, 349 U.S. 294 (1955), (Brown II).

60. O’Brien, Constitutional Law and Politics: Civil Rights and Civil Liberties, 1472.

61. As quoted in Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court
and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 324. See
also Klarman, From Jim Crow to Civil Rights, 320, 344–45.

587
62. Klarman, From Jim Crow to Civil Rights, 362–63.

63. Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1 (1971); Milliken v.

Bradley, 418 U.S. 717 (1974).

64. Missouri v. Jenkins, 495 U.S. 33 (1990).

65. Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991).

66. Freeman v. Pitts, 503 U.S. 467 (1992).

67. O’Brien, Constitutional Law and Politics: Civil Rights and Civil Liberties, 1477.

68. See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social
Change? (Chicago: University of Chicago Press, 1991).

69. David M. O’Brien, Storm Center: The Supreme Court in American Politics, 10th ed.
(New York: Norton, 2014), 336.

70. Lawrence v. Texas, 539 U.S. 558 (2003).

71. Bradley C. Canon and Charles A. Johnson, Judicial Policies: Implementation and Impact,
2nd ed. (Washington, D.C.: CQ Press, 1998).

72. Lawrence v. Texas, 539 U.S. 558 (2003).

73. Bowers v. Hardwick, 478 U.S. 186 (1986).

74. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992); Griswold v. Connecticut, 381 U.S. 479 (1963); Pierce v. Society of Sisters, 268 U.S.
510 (1923).

75. In the words of dissenting Justice Antonin Scalia, Lawrence “leaves on pretty shaky
grounds state laws limiting marriage to opposite-sex couples.” Lawrence, 540–41 (Scalia, J.
dissenting).

76. See William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay
Rights (New York: Routledge, 2002), 16–82. Also, before Lawrence, two state appellate
courts, in Vermont and Hawaii, and a lower court in Alaska extended some legal
protections to homosexual relationships. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); Brause
v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Sup.Ct 1998); Baker v. Vermont, 744
A.2d 864 (Vermont 1999). In both Hawaii and Alaska, however, the popular assembly
subsequently amended their constitutions to limit marriage to opposite-sex couples. Jason
Pierceson, Same-Sex Marriage: The Road to the Supreme Court and Beyond (Lanham, Md.:
Rowman and Littlefield, 2014), 93–103.

588
77. Frederick Liu and Stephen Macedo, “The Federal Marriage Amendment and the
Strange Evolution of the Conservative Case Against Gay Marriage,” PS: Political Science &
Politics (April 2005), 211–15.

78. Goodridge v. Department of Health, 798 N.E.2d 941 (Mass. 2003). Shortly after
Goodridge, the state senate drafted a “civil unions” bill and forwarded to the court for an
advisory opinion about whether those arrangements complied with Goodridge. The justices
rejected civil unions because they reduced gays and lesbians to “second-class citizens.” This
allowed Massachusetts to begin granting marriage licenses. Michael J. Klarman, From the
Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (New York:
Oxford University Press, 2013), 91–92. See also Opinions of the Justices to the Senate, 802
N.E.2d 565 (2004).

79. Klarman, From the Closet to the Altar, 90–105.

80. Klarman, From the Closet to the Altar, 105–6. See also Kavan Peterson, “Same-Sex
Unions—A Constitutional Race,” available at www.stateline.org (last retrieved August 30,
2005).

81. In 2006–2007, the Georgia, Maryland, New Jersey, New York, and Washington state
supreme courts ruled against same-sex marriages under their state constitutions, whereas, in
2008–2009, Connecticut, California, and Iowa state supreme courts ruled in favor of it
under their state constitutions. Moreover, though New Jersey’s high court did not find
same-sex marriage to be a “fundamental right,” it held that denying same-sex state benefits
was an equal protection violation. Pierceson, Same-Sex Marriage, 126–31, 151–59;
Klarman, From the Closet to the Altar, 116 n. 142, 120–32.

82. Patrick J. Egan and Kenneth Sherrill, “Marriage and the Shifting Priorities of a New
Generation of Lesbians and Gays,” PS: Political Science & Politics (April 2005), 229–32.
See also Pierceson, Same-Sex Marriage, 151 (noting that “relationship equality policies”
increased without help from the courts); Klarman, From the Closet to the Altar, 119
(surveying growing trend of public support for, and recognition of, same-sex legal rights
and benefits).

83. Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008); In re Marriage
Cases, 183 P.3d 384 (Calif. 2008); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

84. Klarman, From the Closet to the Altar, 143–55; Pierceson, Same-Sex Marriage, 126–33,
154–60; see also Miranda Blue, “Iowa Republicans Threaten to Cut Salaries of Judges Who
Backed Marriage Equality (April 24, 2013),” available at www.rightwingwatch.org (last
retrieved July 28, 2014).

85. U.S. v. Windsor, 133 S.Ct. 2675 (2013).

589
86. Hollingsworth v. Perry, 133 S.Ct. 2652 (2013).

87. Pierceson, Same-Sex Marriage, 243.

88. See Robert Barnes, ”Appeals Court Upholds Bans on Same-Sex Marriage for First
Time,” Washington Post (November 6, 2014), available at www.washingtonpost.com (last
retrieved November 10, 2014). See also Pierceson, Same-Sex Marriage, 248 (observing that
the “right to travel,” as part of the Supreme Court’s Fourteenth Amendment privileges or
immunities clause, is part of new litigation pressing for interstate recognition of same-sex
marriages).

89. See Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a

National Policy-maker,” Journal of Public Law 6 (1957), 279, 293.

90. Marbury v. Madison, 5 U.S. 137 (1803), 180.

91. Cardozo, The Nature of the Judicial Process, 141.

92. Henry J. Abraham, The Judicial Process, 7th ed. (New York: Oxford University Press,
1998), 359–60.

93. Alex Kozinski, “What I Ate for Breakfast and Other Mysteries of Judicial Decision-
Making,” Loyola of Los Angeles Law Review 26 (Summer, 1993), 993, 994.

94. Ibid., 994–95.

95. Ibid., 995–96. Eskridge reports that the Civil Rights Act of 1991 overrode a total of
twelve Supreme Court rulings. William N. Eskridge, Jr., “Overriding Supreme Court
Statutory Interpretation Decisions,” Yale Law Journal 101 (November 1991), 331, 332 n.
4 (listing cases).

96. Associated Press, “Judges in S.D. May Lose Lawsuit Immunity,” New York Times
(November 14, 2005), available at www.nytimes.com (last retrieved November 15, 2005).

97. See Graziella Romeo, “The Recognition of Same-Sex Couples’ Rights in the US
Between Counter-Majoritarian Principle and Ideological Approaches: A State Level
Perspective,” in Same-Sex Couples’ Before National, Supranational and International
Jurisdictions, eds. Daniele Gall, Luca Paladini, and Pietro Pustorino (Berlin/Heidelberg:
Springer, 2014), 21. See also Klarman, From the Closet to the Altar, 107–9.

98. Christopher P. Banks, Judicial Politics in the D.C. Circuit Court (Baltimore: John
Hopkins University Press, 1999), 26–32.

99. Deborah J. Barrow and Thomas G. Walker, A Court Divided: The Fifth Circuit Court of
Appeals and the Politics of Judicial Reofrm (New Haven, Conn.: Yale University Press,

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1988), 68.

100. Christopher P. Banks, “The Politics of Court Reform in the U.S. Courts of Appeals,”
Judicature 84 (2000), 34–43.

101. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S.
872 (1990).

102. City of Boerne v. Flores, 521 U.S. 507 (1997).

103. Pablo T. Spiller and Emerson H. Tiller, “Invitations to Override: Congressional

Reversals of Supreme Court Decisions,” International Review of Law and Economics 16
(1996), 503–21.

104. Congressional Research Service, The Constitution of the United States of America:
Analysis and Interpretation (up to Supreme Court cases decided through June 26, 2013),
2277–325 (listing 176 acts of Congress overturned up to 2006), available at
https://beta.congress.gov/constitution-annotated (last retrieved July 27, 2013); David M.
O’Brien, Constitutional Law and Politics: Struggles for Power and Governmental
Accountability (Volume One), 9th ed. (New York: Norton, 2014), 36 (listing 186 acts of
Congress overturned up to and through the Roberts Court).

105. Matthew R. Christiansen and William N. Eskridge, Jr., “Congressional Overrides of

Supreme Court Statutory Interpretation Decisions, 1967–2011,” Texas Law Review 92
(2014), 1317–541. See also Eskridge, “Overriding Supreme Court Statutory Interpretation
Decisions,” 331–424.

106. See Jeb Barnes, Overruled? Legislative Overrides, Pluralism, and Contemporary Court-
Congress Relations (Stanford, Calif.: Stanford University Press, 2004).

107. Worcester v. Georgia, 31 U.S. 515 (1832).

108. Abraham, The Judicial Process, 370.

109. DeRolph v. Ohio, 677 N.E.2d 733 (Ohio 1997).

110. The Ohio Supreme Court, in fact, has terminated educational financing review
because of the assembly’s repeated failure to act to fix the constitutional violation. State v.
Lewis, 789 N.E.2d 195 (Ohio 2003).

111. R. Shep Melnick, “The Courts, Jurisprudence, and the Executive Branch,” in The
Executive Branch, eds. Joel D. Aberbach and Mark A. Peterson (New York: Oxford
University Press, 2005), 470.

112. Keith E. Whittington, “‘Interpose Your Friendly Hand’: Political Supports for the

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Exercise of Judicial Review by the United States Supreme Court,” American Political Science
Review (November 2005), 583–96.

113. Melnick, “The Courts, Jurisprudence, and the Executive Branch,” 476–79.

114. Kevin T. McGuire and James A. Stimson, “The Least Dangerous Branch Revisited:
New Evidence on Supreme Court Responsiveness to Public Preferences,” Journal of Politics
(November 2004), 1018–35.

115. Richard Funston, “The Supreme Court and Critical Elections,” American Political
Science Review (September 1975), 795–811; Dahl, “Decision-Making in a Democracy,”
279.

116. Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton,

N.J.: Princeton University Press, 1988).

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Glossary

Administrative office of the courts:

An administrative agency of the state judiciary that collects workload statistics,
performs budgetary functions, handles personnel matters, and discharges
miscellaneous functions that are related to the mission and operation of courts.
Adversarial legal system:
Legal institutions and legal practices within the legal system that are designed to find
the truth through accusatorial methods. Evidence is gathered by the parties and
lawyers and presented to a neutral fact-finder (either a judge or a jury) to resolve legal
disputes. Common law jurisdictions use adversarial legal institutions, procedures, and
practices.
Adversarial model:
See Adversarial legal system.
Advisory opinion:
An opinion or interpretation of law that does not have binding effect. The Supreme
Court does not give advisory opinions, for example, on hypothetical disputes; it
decides only actual cases or controversies.
Advocates:
Lawyers who use their professional skills to advocate their clients’ interests in trial
court litigation.
Affirm:
In an appellate court, to reach a decision that agrees with the result reached in a case
by the lower court.
Affirmative action programs:
Programs required by federal or state laws designed to remedy discriminatory
practices by hiring minority-group persons and/or women.
Alford plea:
A plea of guilty in a criminal prosecution that lets defendants plead guilty while
protesting their innocence.
Amicus curiae:
A friend of the court, a person not a party to litigation, who volunteers or is invited
by the court to give their view on a case.
Appeal:
To take a case to a higher court for review. Generally, a party losing in a trial court
may appeal once to an appellate court as a matter of right. If the party loses in the
appellate court, appeal to a higher court is within the discretion of the higher court.
Most appeals to the Supreme Court are within its discretion to deny or grant a
hearing.
Appeal by permission:

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 A discretionary appeal that appeals courts have the power to decide or not, even if
there is an adverse trial court decision.
Appeal by right:
A mandatory appeal that appeals courts must decide because the parties have a right
to appeal an adverse trial court decision.
Appellate jurisdiction:
A court’s power to review appeals from trial courts.
Assigned counsel systems:
A public defender system that lets judges appoint members of the local bar to
represent clients as a public defender on a case-by-case basis.
Attitudinal model:
A social science research methodology that asserts that appellate court decisions are
solely based on the ideological attitudes and policy preferences of judges and not “the
law.”
Bench memorandum:
An informal legal analysis written by appellate court law clerks that details an appeal’s
facts, legal issues, and legal authorities. The memo is often shared with other law
clerks and judge’s chambers during the appellate court decision-making process.
Bipartisan model (of judicial selection):
A model of judicial selection that is used by Republican and Democratic presidents to
appoint judges to federal courts. Typically, a judicial appointment is based on a
candidate’s professional qualifications in combination with patronage (to reward
loyalty to a political party) or symbolic representation (to “represent” a specific race,
gender, or ethnicity) criteria.
Blue slip:
A Senate tradition in which a form on blue paper is sent by the chair of the Senate
Judiciary Committee requesting if a senator from the nominee’s home state approves
or disapproves of the president’s judicial appointment. An approval is signified by
returning the blue slip; disapproval is signified by not returning the blue slip.
Brief:
A document prepared by counsel to serve as the basis for an argument in court,
setting out the facts and legal arguments in support of a case.
Career judiciary:
A professional judiciary akin to civil service, based on competition examinations,
requiring specialized education, and under strict supervision by higher courts; in
contrast to U.S. judiciaries that are staffed by judges who are generalists by training
and selected through a political process.
Case:
A general term for an action, cause, suit, or controversy, at law or equity; a question
contested before a court.
Casebook method:
A method of legal instruction that allows students to learn legal principles by

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 studying appellate opinions from a casebook that is devoted to a specific legal subject,
such as contracts, torts, corporations, civil procedure, or criminal law.
Cert. pool:
Since 1972, a majority of Supreme Court justices (except now for Justice Alito) have
their clerks join in a cert. pool that screens and recommends which cases should be
granted review. (See also Certiorari, writ of.)
Certiorari, writ of:
A writ issued from the Supreme Court, at its discretion and at the request of a
petitioner, to order a lower court to send the record of a case to the Court for its
review.
Challenge for cause:
A formal procedure that excuses a potential juror from jury service based on “cause,”
or a reason that establishes that the person cannot evaluate the evidence in a jury trial
fairly due to personal bias.
Civil law:
The body of law dealing with the private rights of individuals, as distinguished from
criminal law.
Civil law system:
A legal system that is based on codified law, or legal codes enacted by the legislature.
Most European countries use civil law systems but they are also found in Asia, Latin
America, South America, and parts of the Caribbean.
Civil procedure:
A body of formal rules by which courts conduct trials to resolve private disputes.
Class action:
A lawsuit brought by one person or group on behalf of all persons similarly situated.
Classic Democratic model (of judicial selection):
A model of judicial selection that is used by Democratic presidents to appoint judges
to federal courts. Typically, it rewards those who are faithful to the political party,
and less attention is paid to achieving policy goals through the appointment.
Sometimes, the president appoints judges as a “symbol” to represent a specific race,
gender, or ethnicity.
Clear and convincing standard:
A standard of legal proof in civil cases that requires the plaintiff to prove at trial a
defendant’s liability by a greater certainty, or beyond a mere probability, that the
allegations are true.
Clerk of court:
A public employee of a court who administers court operations, including record
keeping, establishing court calendars, scheduling cases, and maintaining the flow of
litigation between judges, attorneys, and the public.
Codification movement:
SeeField Codes.
Collegiality:

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 A professional norm that characterizes the close interpersonal working relationships
between groups of “colleagues,” or appellate court judges, who decide appeals.
Common law:
The collection of principles and rules, particularly from unwritten English law, that
derive their authority from long-standing usage and custom or from courts
recognizing and enforcing those customs.
Compelling (state) interest:
A test used to uphold state action against First Amendment and equal protection
challenges because of the serious need for government action (see Strict scrutiny test).
Compensatory damages:
An award of money that attempts to put the injured parties in a civil lawsuit back to
the position they were in before they suffered harm by the defendant’s wrongdoing
after liability is established.
Competitive private contract systems:
A public defender system that allows lawyers, law firms, and legal nonprofit
organizations to represent clients as a public defender through a competitive bidding
process.
Complaint:
A formal court document filed in civil cases that alleges the court’s jurisdiction, the
legal allegations of the legal dispute, and a statement of legal remedies or damages
that the injured party is entitled to if liability and causation are established.
Compliance:
A description of how a judicial opinion is followed or not by other officials or
institutional actors who must interpret what the opinion means as law. (See
Implementation and Judicial impact.)
Concurrent jurisdiction:
The power of federal and state courts to decide the same type of case.
Contingency fee:
An agreement between lawyers and clients in civil lawsuits that stipulates that legal
fees are only paid as a percentage of the total amount of monetary damages recovered.
Contract:
An agreement between two or more persons that creates an obligation to do or not do
a particular thing.
Corrective justice:
A typology of justice that attempts to correct a legal wrong by imposing appropriate
punishments or sanctions on those who break the law and cause harm to innocent
parties.
Counter claim:
A formal court document filed in civil cases that is filed by a defendant who raises
new allegations against the plaintiff.
Countermajoritarianism:
The power exercised by courts when overturning majoritarian preferences that are

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 expressed in legislative enactments during the process of interpreting the
Constitution’s meaning.
Court unification movement:
A reform movement to improve the judicial administration of state courts.
Crime control model:
A model of criminal justice created by Herbert Packer that is associated with the swift
prosecution of criminal defendants in an “assembly line” fashion, presuming that
defendants are guilty as charged.
Criminal law:
The body of law that deals with the enforcement of laws and the punishment of
persons who, by breaking laws, commit crimes against the state.
Critical legal studies:
An approach that critiques law and legal reasoning by arguing that judges use
deductive reasoning and formal rules as a pretext to reach results that are based on
personal preferences.
Critical race theory:
A legal theory arguing that law and legal institutions are deeply ingrained with
racism. Racism is socially constructed and manipulated by the dominant white legal,
economic, and political power structure.
Cultural theory:
A strand of the feminist movement that argues that women are different from men in
the ways they construct their social identity, solve problems, and view the world.
Customary law:
Law based on social customs enforced by the community.
Declaratory judgment:
A court pronouncement declaring a legal right or interpretation but not ordering a
special action.
Declaratory theory of law:
A legal theory or philosophy of legal positivism that holds that judges do not have the
power or discretion to make law because they can only discover and declare the law.
De facto:
In fact, in reality.
Defendant:
In a civil action, the party denying or defending itself against charges brought by a
plaintiff. In a criminal action, the person indicted for the commission of an offense.
De jure:
As a result of law, as a result of official action.
Determinate sentencing:
Sentences imposed by judges that are based on a combination of retribution and
deterrence policies.
Deterrence:
A punishment rationale in criminal cases that exacts a punishment on the basis that it

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 will deter persons from committing crimes in the future.
Discovery rules, civil:
The formal rules of civil procedure that govern the operation of civil cases.
Discretionary jurisdiction:
Jurisdiction that a court may accept or reject in particular cases. The Supreme Court
has discretionary jurisdiction in over 90 percent of the cases that come to it.
Dismissal:
An order disposing of a case without a hearing or trial.
Distributive justice:
A typology of justice that attempts to fix inequalities between legal parties by fairly
distributing legal benefits and legal burdens to all members of society.
Docket:
All cases filed in a court.
Due process:
Fair and regular procedure. The Fifth and Fourteenth Amendments guarantee
persons that they will not be deprived of life, liberty, or property by the government
until fair and usual procedures have been followed.
Due process model:
A model of criminal justice created by Herbert Packer that is associated with
achieving fairness through the imposition of formal procedural rules, allowing
criminal defendants to pass through an “obstacle course” that slows down the efficacy
of criminal prosecutions, based on the presumption that defendants are innocent
until proven guilty.
Empirical legal studies:
A research methodology developed in the legal academy that uses statistical modeling
and quantitative methods from the social sciences to explain judicial decision making.
En banc:
“In the bench.” An appellate court ruling that is decided by all of its judges, not just a
panel or group of three.
Equal Protection Clause:
The guarantee that no person or class of persons shall be denied the same protection
of the law in their lives, liberty, and property.
Equality theory:
A strand of the liberal feminist movement that posits that legal institutions
discriminate against women and subjugate them on the basis of gender difference.
Equality theory argues that women must be treated in the same way as men when
they are similarly situated.
Equity law:
A special set of legal rules in common law legal systems that allow parties to get legal
relief under circumstances in which the law, as applied, cannot adequately remedy an
injustice under the facts of a legal case.
Exclusionary rule:

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 This rule commands that evidence obtained in violation of the rights guaranteed by
the Fourth and Fifth Amendments must be excluded at trial.
Ex parte:
From, or on, only one side. Application to a court for some ruling or action on behalf
of only one party.
Felony:
An offense in criminal law that has a punishment of fines or incarceration of more
than one year.
Feminism:
A legal theory that posits that law creates gender inequality and cultural bias by
distorting personal identity and sexual orientation.
Field Codes:
Five volumes of substantive and procedural codes law that were drafted in New York
by David Dudley Field and other reformers between 1847 and 1865. As part of the
“codification movement” in the United States, they were designed to simplify the
common law and its pleadings, forms, and practices in the common law system.
Fight theory:
A theory of the adversarial common law system developed by Judge Jerome Frank.
The theory criticized the operation of the common law because lawyers representing
parties are only interested in winning the legal case through adversarial combat, and
not discovering the facts or truth underlying legal disputes.
Filibuster:
A Senate procedure in which a senator can elect to continue to debate a president’s
judicial appointment, thus preventing the nomination from getting an up-or-down
vote on confirmation by the full Senate.
Game theory:
A social science theory that posits appellate judges make strategic choices to set a
court’s agenda and decide appeals.
General jurisdiction, court of:
A court that has the power to decide a general set of legal issues, such as civil and
criminal cases that are more serious in subject matter and possible legal consequences
or punishments.
Grand jury:
A jury of twelve to twenty-three persons that hears in private evidence for serving an
indictment.
Habeas corpus:
Literally, “you have the body”; a writ issued to inquire whether a person is lawfully
imprisoned or detained. The writ demands that the persons holding the prisoner
justify his detention or release him.
Hybrid merit systems:
Judicial selection methods that combine “merit” (e.g., selecting judges by
gubernatorial appointment after approval from a nomination commission) with other

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 election methods to select or retain judges at the trial or appellate level of state courts.
Implementation:
A description of how officials and institutional actors interpret the meaning of
judicial opinions when they implement them as statements of legal and public policy.
(See Compliance andJudicial impact.)
Indeterminate sentencing:
Sentences imposed by judges after considering a broad range of minimum and
maximum punishments to sanction offenders.
Indictment:
A formal charge of offenses based on evidence presented by a prosecutor from a grand
jury.
In forma pauperis:
In the manner of a pauper, without liability for the costs of filing cases before a court.
Information:
A written set of charges, similar to an indictment, filed by a prosecutor but without a
grand jury’s consideration of evidence.
Initial appearance hearing:
A court proceeding in which those accused of a crime appear before a magistrate or
judge generally within forty-eight hours of arrest for the purpose of being informed
of the charges they face in a criminal prosecution.
Injunction:
A court order prohibiting a person from performing a particular act.
Inquisitorial legal system:
Legal institutions and legal practices within the legal system are structured to find the
truth by following specific legal procedures under a written code of law. It is
nonaccusatorial. Civil law jurisdictions use inquisitorial legal institutions, procedures,
and practices.
Inquisitorial model:
See Inquisitorial legal system.
Interpretivism:
A method of constitutional interpretation that gives strict construction to textual
language in the context of its historical meaning.
Judgment:
The official decision of a court.
Judicial accountability:
A principle establishing that the judiciary is not “above the law” because it must be
held accountable by majoritarian and democratic processes.
Judicial discretion:
The capacity of judges to make legal decisions using judgment and reason.
Judicial federalism:
The independence and interrelationship of federal and state courts.
Judicial impact:

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 A description of how a judicial opinion, as law, affects the legal system, society, and
public policy. (See Compliance and Implementation.)
Judicial independence:
A principle establishing that the judiciary must be insulated from ordinary politics
and the biases and pressures exerted upon courts by political institutions, such as the
legislative or executive branches.
Judicial “merit” plans:
A judicial selection method using a combination of appointment and elective
mechanisms to staff state courts with judges that have “merit,” or nonpolitical
qualifications.
Judicial review:
The power to review and strike down any legislation or other government action that
is inconsistent with federal or state constitutions. The Supreme Court reviews
government action only under the Constitution of the United States and federal laws.
Judicial self-restraint:
A description of judicial behavior that asserts that courts or judges are constrained by
law in using their authority to decide legal cases.
Jurisdiction:
The power of a court to hear a case or controversy, which exists when the proper
parties are present and when the point to be decided is among the issues authorized
to be handled by a particular court.
Jus commune:
The “law of the community,” which is part of the basic codes found in civil law
countries and adopted by some European states. It encompasses the civil code, the
commercial code, the code of civil procedure, the penal code, and the code of
criminal procedure.
Justiciability:
A controversy in which a claim of right is asserted against another who has an interest
in contesting it. Courts will consider only justiciable controversies, as distinguished
from hypothetical disputes.
Legal model:
A social science research methodology that stands in contrast to the attitudinal
model. It asserts that appellate court decisions are based on legal factors, such as
precedent and judicial legal philosophies.
Legal remedy:
The specific legal relief that is granted by a court, jury, or agreement of the parties to
a lawsuit that resolves a legal matter.
Legal system:
A set of institutional structures, procedures, and rules for applying the law and giving
it substantive content.
Legislative intent:
The meaning judges give to written law in the course of deciding how to interpret

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 ambiguous statutes enacted by the legislature.
Limited jurisdiction, court of:
A court that has the power to decide a narrow set of legal issues, such as traffic, minor
civil, and less serious nonfelony criminal cases.
Magistrate judges:
Judicial officers who serve in the U.S. district courts. They are appointed by district
judges and decide almost all types of federal trial court cases except for felony
criminal cases.
Mandamus, writ of:
“We command”; an order issued from a superior court directing a lower court or
other government authority to perform a particular act.
Mandatory jurisdiction:
Jurisdiction that a court must accept. The Supreme Court must decide cases coming
under its appellate jurisdiction, though it may avoid giving them plenary
consideration.
Mandatory-minimum sentences:
Punishments in criminal law that require offenders to serve minimum sentences
before becoming eligible for parole.
Mega-firms:
Large, elite corporate law firms that deliver legal services domestically and across the
globe.
Misdemeanors:
Offenses that are punishable in criminal law that have a punishment of fines or
incarceration of less than one year.
Missouri merit plan:
A type of judicial selection method that Missouri adopted in 1940 and that uses
appointment-elective mechanisms to staff state courts with judges who have “merit,”
or nonpolitical qualifications.
Mixed election:
A method of judicial selection used in Michigan. Nonpartisan elections select trial
and intermediate courts of appeals judges, but partisan nomination and nonpartisan
elections select court of last resort judges.
Moot:
Unsettled, undecided. A moot question is also one that is no longer material, or that
has already been resolved, and has become hypothetical.
Motion:
A written or oral application to a court or judge to obtain a rule or order.
Natural court:
A period of stable membership in which there are fewer reversals.
Natural law:
A legal philosophy that conceptualizes law in divine terms, or as God’s law.
Natural rights:

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 Rights based on the nature of man and independent of those rights secured by man-
made, positive laws.
Negligence:
The failure to do something that a reasonable person would do.
New institutionalism:
An interdisciplinary social science research methodology that asserts judicial decision
making is the result of institutional arrangements, legal practices, and judicial norms
that underlie American political development.
Nolo contendere:
A plea of guilty in a criminal prosecution that admits only that the government
probably has enough evidence to convict the defendant.
Nominal damages:
An minimal award of money in civil lawsuits that do not involve any substantial
injury or loss to plaintiffs.
Noninterpretivism:
An approach to constitutional interpretation that emphasizes text, history, and
contemporary values to decide constitutional cases.
Nonpartisan election:
A method of judicial selection used in the states. The judge’s political affiliation does
not appear on the ballot.
Opinion assignment:
An appellate court norm that determines which judge will write the court’s
controlling opinion in an appeal. Assigning the responsibility to write opinions
occurs during judicial conferences and is part of the coalition-building process during
appellate court decision making.
Opinion for the Court:
The opinion announcing the decision of a court.
Original jurisdiction:
The jurisdiction of a court of first instance, or trial court. The Supreme Court has
original jurisdiction under Article III of the Constitution.
Originalism:
The “original meaning” or “original understanding” of constitutional provisions.
Panel:
A group of appellate court judges that decides an appeal.
Partial merit systems:
A judicial selection method that gives the governor, or the legislature, more authority
to determine if a judge will serve on a state court. Typically, the governor’s
appointment is approved by a nomination commission (thus demonstrating “merit,”
or nonpolitical qualifications), but the appointment is subject to additional executive
or legislative approval (e.g., governors may reappoint an incumbent judge instead of
subjecting the judge to a retention election before voters at the next general election).
Partisan election:

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 A method of judicial selection used in the states. The judge’s political affiliation
appears on the ballot.
Per curiam:
“By the court”; an unsigned opinion of the court.
Peremptory challenge:
A formal procedure that excuses a potential juror from jury service for any reason in
accordance with the prosecutor’s discretion.
Petitioner:
One who files a petition with a court seeking action or relief, including the plaintiff
or appellant. When a writ of certiorari is granted by the Supreme Court, the party
seeking review is called the petitioner, and the party responding is called the
respondent.
Petit jury:
A trial jury, traditionally a common law jury of twelve persons, but since 1970 the
Supreme Court has permitted states to use juries composed of fewer than twelve
persons.
Plaintiff:
A party who commences a lawsuit in a civil case.
Plea bargaining:
The process in which the accused and the prosecutor in a criminal case agree to a
mutually acceptable disposition of a case without a trial.
Plenary consideration:
Full consideration. When the Supreme Court grants a case review, it may give it full
consideration, permitting the parties to submit briefs on the merits of the case and to
present oral arguments, before the Court reaches its decision.
Plurality opinion:
An opinion announcing the decision of the Court, but that has the support of less
than a majority of the Court.
Political question:
A question that courts refuse to decide because it is deemed to be essentially political
in nature, or because its determination would involve an intrusion on the powers of
the executive or legislature, or because courts could not provide a judicial remedy.
Preliminary hearing:
A court proceeding in which those accused of a crime appear before a magistrate or
judge to determine if there is probable cause to charge the accused with a crime and
“bind over” the defendant for trial.
Preponderance of the evidence:
A standard of legal proof in civil cases that requires the plaintiff to prove at trial a
defendant’s liability by “a preponderance of the evidence.”
Presumptive sentences:
SeePresumptive sentencing guidelines.
Presumptive sentencing guidelines:

604
 Punishments in criminal law that fix the sentences of convicted defendants by using
ranges that base the punishment on the offense’s seriousness and an offender’s prior
criminal history. The guidelines are deemed presumptively correct, and judges cannot
depart from them absent a legally permissible reason that is explained on the trial
record.
Private law:
A typology of law that defines legal relationships among the affairs of citizens in
which private individuals resolve legal disputes.
Probable cause:
Reasonable cause, having more evidence for, rather than against, when establishing
the basis for obtaining a search warrant, for example.
Pro bono publico:
Literally, “In the public good.” It represents the ethical obligation of lawyers to
represent clients for free, without the payment of legal fees.
Pro se filers:
Clients who represent themselves without the help of an attorney in legal cases.
Public defender programs:
The way in which legal aid is provided to clients who are eligible to be appointed a
lawyer in criminal cases because they cannot afford to pay for one.
Public law:
A typology of law that defines legal relationships among governments and between
governments and individuals.
Punitive damages:
An award of money that goes beyond merely compensating injured parties for their
actual losses in a civil lawsuit. They are designed to punish and deter defendants from
committing egregious acts that cause substantial injuries to persons.
Quo warranto, writ of:
Literally, “By what authority.” An order from a court challenging a person’s legal
right to hold a public or corporate office.
Rational basis test:
A test used by appellate courts to uphold legislation if there is evidence of a rational
basis for the law’s enactment.
Reasonable doubt standard:
A standard of legal proof in criminal cases that requires the government to prove at
trial a defendant’s guilt “beyond a reasonable doubt.”
Reasoning by example or analogy:
A legal reasoning technique that uses the analogy of past legal precedents as examples
to derive legal principles that control how a new case is analyzed by judges and
lawyers.
Rehabilitation:
A punishment rationale in criminal cases that exacts a punishment on the basis of
trying to rehabilitate offenders with the possibility of allowing them to assimilate into

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 the community after their punishment has been served.
Reply:
A formal court document filed in civil cases that answers the allegations of the
plaintiff.
Republican ideological model (of judicial selection):
A model of judicial selection that is used by Republican presidents to appoint judges
to federal courts. Typically, a judicial appointment is based on achieving policy goals
because the judgeship is a symbolic instrument of presidential power.
Respondent:
The party that is compelled to answer the claims or questions posed in a court by a
petitioner.
Retribution:
A punishment rationale in criminal cases that exacts a punishment on the basis of
revenge.
Reverse:
In an appellate court, to reach a decision that disagrees with the result reached in a
case by a lower court.
Ripeness:
When a case is ready for adjudication and decision; the issues presented must not be
hypothetical, and the parties must have exhausted other avenues of appeal.
Rules of discovery:
SeeDiscovery rules, civil.
Search warrant:
An order issued by a judge or magistrate directing a law enforcement official to search
and seize evidence of the commission of a crime, contraband, the fruits of crime, or
things otherwise unlawfully possessed.
Senatorial courtesy:
The Senate tradition that the president consult with senators from the judicial
nominee’s home state before nomination.
Separation of powers:
The division of the powers of the national government according to the three
branches of government: the legislative, which is empowered to make laws; the
executive, which is required to carry out the laws; and the judicial, which has the
power to interpret and adjudicate disputes under the law.
Single-tier trial courts:
A method of court organization in the states that gives trial courts general jurisdiction
over a wide variety of civil and criminal cases.
Socialist law:
Law derived from the political ideology of Marxism.
Standing:
Having the appropriate characteristics to bring or participate in a case; in particular,
having a personal interest and stake in the outcome.

606
Stare decisis:
“Let the decision stand.” The principle of adherence to settled cases; the doctrine that
principles of law established in earlier cases should be accepted as authoritative in
similar subsequent cases.
State court administrator:
A public employee who is in charge of running the state agency called the
“administrative office of the courts.” The administrator’s duties include managing the
agency and exercising oversight over the state judiciary.
Statute:
A written law enacted by a legislature.
Strategic choice theory:
A social science research methodology that asserts judicial decision making is based
upon the strategic choices of judges in the pursuit of policy goals after weighing the
risks and benefits of their actions.
Strict constructionism:
Dictates that judges should examine the plain meaning of the words as they literally
appear within the four corners of a document.
Strict scrutiny test:
A judicial standard of review that courts apply to constitutional law cases. It is used to
discover whether government has a “compelling interest” and has used the “least
restrictive means” in enacting legislation that is challenged as being a violation of
constitutional rights and civil liberties.
Summary judgment:
A motion asserting that there is “no genuine issue as to any material fact” and that
the moving party in a civil lawsuit is entitled to a judgment as a matter of law and
without the need for a jury trial.
Third-party litigation funding:
A practice of allowing an independent third party with no direct connection to the
claims of a lawsuit to fund a party in civil litigation in exchange for receiving a share
of the damages ultimately awarded.
Three pillars:
Written codes in civil law systems that broadly protect property, contract, and
patriarchal family relationships. See Civil law systems.
Tort law:
Affords remedies for private civil injuries.
Traditional legal studies:
A research methodology in the legal academy that asserts that the “law” and the
interpretative process of legal reasoning explains judicial decision making.
Transactional lawyers:
Lawyers that use their professional skills to complete business and legal transactions
and generally do not engage in trial court litigation.
Trial administrators:

607
 SeeClerk of court.
Two-tiered trial courts:
A method of court organization in the states that splits trial courts into one or more
sets of general and limited jurisdiction.
Voir dire:
Literally, “to speak the truth.” The formal process by which jurors are selected from
the community to serve on civil or criminal trials.
Wall Street law firm:
A type of private law practice developed in the 1890s by New York City attorney
Paul D. Cravath. It uses a law office that is designed to be bureaucratically efficient
and profitable.
Writ:
An order commanding someone to perform or not perform acts specified in the
order.

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Appendix A

609
Legal Research Sources and Strategies
Most sources in legal research are found in public libraries, in law libraries, and on the
Internet. Judicial opinions are accessed in “case reporters,” or bound volumes of cases that
are published and distributed by the Government Printing Office or West Publishing
Corporation. Case reporters are indexed and arranged chronologically, by court and region.
Electronic, or online, access to judicial opinions can be secured by home pages of courts
(e.g., the U.S. Supreme Court’s website is www.supremecourt.gov) or through generic legal
research search engines, such as FindLaw (www.findlaw.com), or fee-based or academic
online databases, such as Westlaw (or WestlawNext) (www.westlaw.com), LexisNexis (Lexis
Advance, or LexisNexis Academic) (www.lexisnexis.com), and Bloomberg Law
(www.bna.com/bloomberglaw).

A comprehensive law-related web journal, LLRX, provides online resources relating to

court rules, legal forms, court dockets, and legal research (www.llrx.com). An annotated list
of mobile apps for smartphones, tablets, and other mobile devices is found in the UCLA
Law Library’s “Mobile Applications for Law Students and Lawyers”
(http://libguides.law.ucla.edu/content.php?pid=112286&sid=845584) (some apps are fee
based, but others only require registration). Current and past U.S. Supreme Court merit
and amicus briefs are accessible through the American Bar Association
(www.americanbar.org/publications/preview_home.html).

Other free online legal research directories, portals, and blogs, some tailored to the U.S.
Supreme Court and others to international or foreign law, include

Cornell Law School’s Legal Information Institute (www.law.cornell.edu);

SCOTUSblog (www.scotusblog.com);
Supreme Court Review (http://supremecourtreview.com);
Oyez (www.oyez.org);
Library of Congress’s “Guide to Law Online” (www.loc.gov/law/help/guide.php)
(this source has U.S. and foreign law links);
Georgetown Law Library’s “Free and Low Cost Legal Research Guide”
(www.law.georgetown.edu/library/research/guides/freelowcost.cfm) (this source also
has a “Case Law Research Guide” at
www.law.georgetown.edu/library/research/guides/cases.cfm);
American Society of International Law’s “Electronic Resources Guide”
(www.asil.org/resources/eresources) and “Electronic Information System for
International Law” (www.eisil.org);
New York University School of Law’s “Guide to Foreign and International Legal
Databases” (www.law.nyu.edu/library/research/foreign_intl);
Justia (www.justia.com); and

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 ABA Journal Blawg Directory (www.abajournal.com/blawgs).

For legal news, some free sites include Law.com (www.law.com), Jurist (www.jurist.org),
and ABA Journal: Law News Now (www.abajournal.com).

In short, there are plenty of ways to “get into” (i.e., discover) the law. The following
provides a legal research strategy that gives you some guidelines or tips in analyzing a legal
topic.

1. Primary and secondary sources. Generally, your task as a researcher is to discover

primary and secondary legal authorities to support the legal argument or position (i.e.,
thesis statement) taken in your written legal analysis. Primary authority is the most
persuasive source since it represents “official statements” from government sources as
to what the law “is.” Examples of primary authority include federal or state
constitutions, statutes, case opinions (written by judges deciding specific legal
disputes), and administrative regulations. Secondary authority, on the other hand,
represents “secondary” perspectives about what the law says, or how the law may or
should be interpreted. Secondary authority does not convey what the law actually
“is.” Examples of secondary authority include law review articles (written by law
students or scholars), legal treatises (e.g., the Restatement of the Law of Contracts),
legal annotations (e.g., American Law Reports), legal encyclopedias (e.g., American
Jurisprudence), academic journal articles (in law or the social sciences, like Judicature
or American Political Science Review), books, and legal newspapers (e.g., Legal Times
or National Law Journal).
2. The research strategy. Below are some guidelines or tips that will help you devise an
appropriate strategy if you are writing a college paper using legal and social science
sources.
First, begin your research early. Legal research takes (lots of) time! Start your
legal research as soon as you receive the assignment.
Second, consult secondary authorities first about how the “law” (or the legal
topic) is interpreted, or what others say it means, as gleaned from a general
perspective. Most times, you can accomplish this step by consulting legal
encyclopedias, legal annotations, and/or legal (or nonlegal) newspapers. Once
you are comfortable with the topic, review law reviews and, if relevant, peer-
reviewed journal articles, such as American Political Science Review, Law and
Society Review, American Journal of Political Science, Political Research Quarterly,
and similar social science databases.
Third, after you have a sense of the general legal issues, topics, or law involved
in your assignment, explore primary authority, as described above. For example,
if you are researching an issue regarding a Fourth Amendment case that
challenges an allegedly illegal police search or seizure done without a warrant,
then read what the courts say about the issue in their judicial opinions (see
below).

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 Fourth, generate a balanced perspective about what the law says by considering
opposing viewpoints or criticisms about how the courts have ruled on the legal
case or topic of interest. This can be done through analyzing “concurring” or
“dissenting” opinions or, in regard to secondary sources, law reviews, legal or
social science journals, and/or academic books.
Fifth, try to be judicious in your research. It is very tempting to “over-research”
a case or issue. Use common sense.
3. Nonlegal and legal citation style. As a rule of thumb, any time you take an idea or
direct quotation from any kind of source, legal or otherwise, you must cite that
source. Style manuals (MLA Handbook, Chicago Manual of Style, etc.) instruct you
how to refer properly to nonlegal sources (and construct an appropriate list of
“Works Cited” or “Bibliography”). Also, usually legal writing mandates correct
citation form; but your instructor may not require it. If legal citation is necessary, the
standard guide to legal citation form is The Bluebook: A Uniform System of Citation
(19th ed.) (www.legalbluebook.com), although some law schools and journals use the
Association of Legal Writing Directors’ ALWD Guide to Legal Citation, 5th ed.
(www.alwd.org/publications/citation-manual/). Although many times legal research
is done electronically, you may need to consult the print source if you need to cite a
specific page. Not all electronic sources have corresponding print page references, but
some do.
4. Where to find legal cases. Cases contain official and unofficial “citations” to a court
opinion and include reference to the volume, page, and date of the case. Official
citations are the formal citations of reported cases that are cited as precedents in
judicial opinions or lawyers’ briefs and memoranda. The official citation to a U.S.
Supreme Court opinion is Brown v. Board of Education, 347 U.S. 483 (1954), which
means it can be located in volume 347 of the United States Reports, at page 483. Yet
the same case, Brown, can be located by accessing unofficial citations, or supplemental
references to the same case, but using different reporters. Thus, Brown can also be
found in volume 74, on page 686, of the Supreme Court Reporter, at 74 S. Ct. 686
(1954), or volume 98, page 873, of the Lawyer’s Edition, at 98 L. Ed. 873 (1954), all
in West’s National Reporter System.
For federal courts: U.S. Courts of Appeals cases are reported in West’s Federal
Reporter (Buckley v. Valeo, 519 F.2d 821 [D.C. Cir. 1975]), and U.S. District
cases are found in West’s Federal Supplement series (Eaton v. Solon, 598 F.
Supp. 1505 [N.D. Ohio 1984]).
For state courts: These are reported similarly, with the official citation naming
the court issuing the opinion (e.g., Ohio Supreme Court) and the unofficial
citation naming the region (Pacific Reporter, South Western Reporter, Southern
Reporter, North Eastern Reporter). For example, the Ohio Supreme Court
decided DeRolph v. State of Ohio, 93 Ohio St. 3d 628, 758 N.E.2d 1113
(2001). In researching state cases, it is helpful to review how state courts are
organized because each state is different in terms of its trial and appellate court

612
 structure. A useful source is the National Center for State Courts, which has a
listing of state court websites (www.ncsc.org) (see Chapter Three for discussion
of state and federal courts’ organization).

5. Which cases should you cite? When looking for cases to support your thesis statement
or legal argument, consider the order of priority (or legal weight) of the cases that are
consulted. Judicial opinions from “higher” appellate courts generally carry more legal
weight, and hence are more persuasive. In general, use the following order of priority:
1. Majority opinions for the U.S. Supreme Court
2. Plurality opinions for the U.S. Supreme Court
3. U.S. Court of Appeals opinions (previously known as Circuit Courts of
Appeal; sometimes called “circuit courts”)
4. District Court opinions
5. State Court opinions (only if there is an issue of state law presented in the case)

Note that nonmajority opinions, like concurrences or dissents, should not be cited as
precedent to support your argument (but they can be useful in making an argument).
6. Shepard’s Citations. Shepard’s Citations, or “Shepardizing,” is an important research
tool. It can be done manually, using print volumes, or, more commonly, through
electronic sources such as LexisNexis. Shepardizing will provide the most up-to-date
version of the law (as compiled from primary authority), and it confirms if the case
you are using as primary authority is still “good” law and has not been overturned or
weakened by other courts by being treated differently. Also, it tells you how other
courts have treated the case you are Shepardizing, which may be an important part of
what you are trying to discover in your research. Moreover, it gives you references to
other legal sources, including law reviews, which have analyzed the case you are
researching.

613
Appendix B

614
Membership of the Supreme Court of the United States

615
616
617
618
Case Index

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), 183

Alleynev. United States, 133 S.Ct. 2151 (2013), 222
Allgeyerv. Louisiana, 165 U.S. 578 (1897), 18
American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir., 1981), 44
Apodacav. Oregon, 406 U.S. 404 (1972), 216
Apprendiv.New Jersey, 530 U.S. 466 (2000), 222
Argersingerv. Hamlin, 407 U.S. 25 (1972), 163
Arizona Christian School Tuition Organization v. Winn, 131 S.Ct. 1436 (2011), 182
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S.Ct. 2806 (2011),
105
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009), 243
Ashwanderv. Tennessee Valley Authority, 297 U.S. 288 (1936), 180
AT&T Mobility v. Concepcion, 131 S. Ct. 2541 (2011), 250
Atkins v. Virginia, 536 U.S. 304 (2002), 189

Baker v. Carr, 396 U.S. 186 (1962), 184

Ballew v. Georgia, 435 U.S. 223 (1978), 216
Batson v. Kentucky, 476 U.S. 79 (1986), 17
Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007), 243
Betts v. Brady, 316 U.S. 455 (1942), 158
Blakely v. Washington, 542 U.S. 296 (2004), 222
Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991),
317
Boddiev. Connecticut, 401 U.S. 371 (1971), 165
Bollingv. Sharpe, 347 U.S. 497 (1954), 316
Bond v. United States, 131 U.S. 2355 (2011), 177, 178
Bond v. United States, 134 S.Ct. 2077 (2014), 177, 178
Bowers v. Hardwick, 478 U.S. 186 (1986), 35, 318–319
Bradwellv. Illinois, 83 U.S. 130 (1873), 32–33
Brady v. United States, 397 U.S. 742 (1972), 208
Breedlove v. Suttles, 302 U.S. 77 (1937), 323 (table)
Brown v. Board of Education, 347 U.S. 483 (1954), 33, 46, 186, 306–307, 314,
316–317, 325, 326
Brown v. Kendall, 60 Mass. 292 (1850), 18
Brown v. Legal Foundation of Washington, 538 U.S. 216, 165
Brown v. Plata,131 S. Ct. 1910 (2011), 21, 250
Burch v. Louisiana, 441 U.S. 130 (1979), 216
Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), 274, 302 (table)

619
Bush v. Gore, 531 U.S. 98 (2000), 41, 86, 114, 184, 278

Calder v. Bull, 3 U.S. 386 (1798), 32

Capertonv. A. T. Massey Coal Co., 556 U.S. 868 (2009), 104
Cherokee Nation v. Georgia, 30 U.S. 1 (1831), 69
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
16
Chisholm v. Georgia, 2 U.S. 419 (1793), 323 (table)
Citizens United v. FEC, 558 U.S. 50 (2010), 302 (table)
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), 88, 103
City of Boerne v. Flores, 521 U.S. 507 (1997), 324
Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013), 182
Clark v. Arizona, 548 U.S. 735 (2006), 208
Colegrovev. Green, 328 U.S. 549 (1946), 184

DeFunisv. Odegaard, 416 U.S. 312 (1974), 183

Defunisv. Odegaard, 416 U.S. 312, 336-337 (1974), 311, 313
DeRolphv. Ohio, 677 N.E.2d 733 (Ohio 1997), 324
District of Columbia v. Heller, 554 U.S. 570 (2008), 186, 264, 302 (table)
DredScott v. Sandford, 60 U.S. 393 (1857), 32, 323 (table), 325
Duncan v. Louisiana, 391 U.S. 145, 156 (1969), 212

Eisenstadtv. Baird, 405 U.S. 438 (1972), 309

Eisenv. Carlisle & Jacquelin, 417 U.S. 156 (1974), 249
Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S.
872 (1990), 324
Ex Parte Crow Dog, 109 U.S. 556 (1883), 69

Fisher v. University of Texas at Austin, 133 S.Ct. 2411, 2415 (2013), 314
Fisher v. University of Texas at Austin, 2014 WL 3442449 (July 15, 2014), 315
Flastv. Cohen, 392 U.S. 83 (1962), 182
Fletcher v. Peck, 10 U.S. 87 (1810), 18
Freeman v. Pitts, 503 U.S. 467 (1992), 317
Fuller v. Oregon, 417 U.S. 40, 53-54 (1974), 163
Furman v. Georgia, 408 U.S. 238 (1972), 189

Gannon v. State of Kansas, Case No. 109, 335 (March 7, 2014), 302 (table), 308
Gideon v. Wainright, 372 U.S. 335 (1963), 16
Gideon v. Wainwright, 372 U.S. 335 (1963), 16, 158–159
Gideon v. Wainwright, 372 U.S. 355 (1963), 158–159
Gonzalez v. Carhart, 550 U.S. 124 (2007), 310
Goodridgev. Department of Health, 798 N.E.2d 941 (Mass. 2003), 319, 322, 325
Gratzv. Bollinger, 539 U.S. 244 (2003), 185, 313, 314

620
Gregg v. Georgia, 428 U.S. 153 (1976), 189
Griswold v. Connecticut, 381 U.S. 479 (1965), 309, 327
Grutterv. Bollinger, 539 U.S. 306 (2003), 186, 313, 314, 315

Hall v. Florida, 134 S. Ct. 1986 (2014), 187

Hein v. Freedom of Religious Foundation, Inc., 551 U.S. 587 (2007), 182
Hinton v. Alabama, 134 S.Ct. 1081 (2014), 196–197
Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), 181, 320–321
Hurtadov. California, 110 U.S. 516 (1884), 207

In re Marriage Cases, 183 P.3d 384 (Calif. 2008), 302 (table)

In re Marriage of Donald B. and Roberta B., 2014 Illinois 115463 (Illinois Supreme
Court, 2014), 183

Johnson v. Louisiana, 406 U.S. 356 (1972), 216

Johnson v. Zerbst, 304 U.S. 458 (1938), 158

Laflerv. Cooper, 132 S.Ct. 1376 (2012), 210–211

Lassiter v. Department of Social Services, 452 U.S. 18 (1981), 165
Lawrence v. Texas, 539 U.S. 558 (2003), 35, 37, 317, 318–319
Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), 165
Lewis v. United States, 518 U.S. 322 (1996), 215
Lochnerv.New York, 198 U.S. 45 (1905), 18

Mapp v. Ohio, 367 U.S. 643 (1961), 16

Marbury v. Madison, 5 U.S. 137 (1803), 15, 59, 183–184
Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), 182
Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir. 2003), 41–42
McCreary v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005), 278
McCullen v. Coakely, 134 S.Ct. 2518 (2014), 308
McCutcheon v. FEC, 134 S.Ct. 1434 (2014), 302 (table)
McDonald v. Chicago, 561 U.S. 742 (2010), 264, 302 (table)
Michigan v. Long, 463 U.S. 1032 (1983), 63
Minor v. Happersett, 88 U.S. 162 (1875), 323 (table)
Miranda v. Arizona, 384 U.S. 436 (1966), 16, 202
Missouri v. Frye, 132 S.Ct. 1399 (2012), 210–211
Missouri v. Jenkins, 495 U.S. 33 (1990), 317
Missouri v. Seibert, 542 U.S. 600 (2004), 202
M. L. B. v. S. L. J., 519 U.S. 102 (1996), 165
Montoy v. State of Kansas, 112 P.3d 923, 279 Kan. 817 (Kan. 2005), 302 (table)

National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012), 186,
302 (table), 315–316

621
National Labor Relations Board v. Canning, 134 S. Ct. 2550 (2014), 116, 274
North Carolina v. Alford, 400 U.S. 25, 37 (1970), 208
Northern Pipeline Construction Company v. Marathon Pipe Line Company, 458 U.S.
50 (1982), 75

Oregon v. Mitchell, 400 U.S. 112 (1970), 323 (table)

Parents Involved in the Community Schools v. Seattle School District No. 1, 551 U.S.
701, 799 (2006), 314, 317
People of the State of Illinois v. Aguilar, 2013 IL. 112116 (Sept. 12, 2013), 302 (table)
PGA Tour, Inc. v. Martin, 532 U.S. 661, 691 (2001), 286, 288
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), 22,
284–285, 310
Plessy v. Ferguson, 163 U.S. 537 (1896), 316
Pollock v. Farmers’ Loan and Trust Company, 157 U.S. 429 (1895), 323 (table)
Powell v. Alabama, 287 U.S. 45, 71 (1932), 158

Regents of the University of California v. Bakke, 438 U.S. 265 (1978), 183, 313–314
Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), 47
Renne v. Geary, 501 U.S. 312 (1991), 183
Republican Party of Minnesota v. White, 536 U.S. 765 (2002), 104–105, 279–280
Riley v. California, 573 U.S. ___ (2014), 244, 302 (table)
Robinson v. Cahill, 287 A.2d 187 (1972), 307
Roe v. Wade, 410 U.S. 113 (1973), 22, 42, 183, 185, 284–285, 309–311
Romer v. Evans, 517 U.S. 620 (1996), 37
Roper v. Simmons, 543 U.S. 551 (2005), 290
Rose v. Council for Better Education, 790 S.W.2d 186 (1989), 307–308
Rudolph v. Alabama, 375 U.S. 889 (1963), 189

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 307–308
Schuette v. Coalition to Defend Affirmative Action, 572 U.S. __ (2014), 30, 308, 315
Serrano v. Priest, 487 P.2d 1241 (1971), 307
Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 130 S.Ct. 1431
(2010), 250
Shelby County vs. Holder, 133 S. Ct. 2612 (2013), 325
Smith v. Bayer Corporation, 131 S. Ct. 2368 (2011), 250
Sparf & Hansen v. United States, 156 U.S. 51 (1895), 217
State v. Long, 138 Ohio St.3d 478 (2014), 302 (table)
Stenberg v. Carhart, 530 U.S. 914 (2000), 310
Strickland v. Washington, 466 U.S. 668 (1984), 196

Taylor v. Louisiana, 419 U.S. 522 (1975), 215

Trop v. Dulles, 356 U.S. 86 (1958), 189

622
Trustees of Dartmouth College v. Woodward, 127 U.S. 518 (1819), 18
Turner v. Rogers, 131 S.Ct. 2507 (2011), 165

United States v. Ballin, 144 U.S. 1 (1892), 115

United States v. Booker, 543 U.S. 220 (2005), 222
United States v. Carolene Products Co., 304 U.S. 144 (1938), 22
United States v. Holmes, 26 F. Case 350 (E.D. Pa. 1842), 47
United States v. Kras, 409 U.S. 434 (1973), 165
United States v. Morrison, 529 U.S. 598 (2000), 44
United States v. Windsor, 133 S. Ct. 2675 (2013), 37, 320–321

Valley Forge Christian College v. Americans United for Separation of Church and State,
Inc., 454 U.S. 464 (1982), 182
Van Orden v. Perry, 545 U. S. 677 (2005), 278

Wallach v. Town of Dryden, 23 NY 3d 728 (2014), 302 (table)

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), 250
Webster v. Reproductive Health Services, 492 U.S. 490 (1989), 185, 284
Wilbur v. City of Mount Vernon (2013), 160
Williams v. Florida, 399 U.S. 78, 102 (1970), 216
Williams v. New York, 337 U.S. 241, 245 (1949), 219–220
Woodward v. Alabama,134 S. Ct. 405 (2013), 88
Worcester v. Georgia, 31 U.S. 515 (1832), 69, 324

623
Subject Index

Abdullah, Muhammad ibn, 9–10

Abel, Richard L., 21, 157, 168
Abortion, 22, 308–311, 312–313 (table)
Abraham, Henry J., 106, 131
Academia/law professors, 157–158
Accessibility
litigation strategies, 177–178, 184–188
organized interests, 178, 184–188
see Litigant access
Access policymaking, 180
Access to Justice program, 160
Activism, judicial, 325–328
Adams, John, 324
Adat law, 253
Administrative law, 14 (table), 15–16
Administrative Office Act (1939), 128
Administrative Office of the U.S. Courts, 62 (figure), 63 (table), 73 (table), 74
(figure), 77 (figure), 80 (figure), 85, 124 (table), 270 (table)
Administrative offices of the courts (AOCs), 84
Administrative Procedure Act (1946), 16
Adversarial legal systems
basic concepts, 5–6, 6 (table), 199–200
characteristics, 201 (table)
civil litigation, 197, 233–235, 237–240
crime control model, 200–203, 210
criticisms, 197, 199, 210
due process model, 200–203, 210
jury system, 212–217
legal experience, 8
plea bargaining, 199–200, 205 (figure), 208–211, 209 (table)
post-trial sentencing process, 217–220, 218–219 (table), 221 (table), 222–223
truth–fight theory, 199
Advisory opinions, 179
Advocates, 152
Affirmation, 17–18
Affirmative action, 30, 308–309, 311, 313–315
Affordable Care Act (2010), 315–316
Africa

624
 jury trials, 214
legal systems, 10–11
Agenda setting, 266 (figure), 267–268
Alabama
amicus curiae briefs, 178
judicial election financing, 103
public defender programs, 161 (table)
public school funding, 308
trial courts, 196–197
Alan Guttmacher Institute, 312–313 (table)
Alaska
judicial selection, 102
public defender programs, 161 (table)
same-sex marriages, 319
Albania, 189
Alford pleas, 208
Alien Terrorist Removal Court (ATRC), 76
Alito, Samuel, 80 (figure), 99, 107, 118, 210, 250, 278 (figure), 310
Al-Nasr, Buthaina, 2
Alter, Karen, 306
Alternative Dispute Resolution Act (1998), 254
Alternative dispute resolution (ADR), 19, 250–255, 251–252 (table)
American Association for Justice (AAJ), 247
American Bar Association (ABA), 88
admission standards, 143–144
comparison studies, 148
education and training, 146 (figure)
employment trends, 153 (figure)
judicial nominee assessments, 112
judicial reform, 64, 86, 87, 105
merit systems, 101, 105
pro se representation, 166
American Civil Liberties Union (ACLU), 188, 189
American Family Association, 103
American Judicature Society (AJS), 64, 86, 87, 101, 102 (figure), 166
American Legislative Exchange Council, 247
American Recovery and Reinvestment Act (2009), 308
Americans with Disabilities Act (1990), 14–15, 286
American Tort Reform Association (ATRA), 247, 248 (table)
Amicus curiae, 30, 81, 178, 185, 186–188, 189
Anckar, Carstein, 189
Anderson, Helen A., 164

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Anti-essentialism, 46
Antisodomy laws, 318–319
Antitrust law, 14 (table)
Appeal by right cases, 70
Appeals, 265
Appeals by permission cases, 70
Appellate courts
agenda setting, 266 (figure), 267–268
attitudinal model, 275, 275 (figure), 277–279
case selection, 266 (figure), 267–268
coded decisions, 278, 281
constitutional interpretation, 288–291
decision-making processes, 265–274, 266 (figure), 276 (table)
functional role, 70–71, 265–267
judicial conferences, 266 (figure), 270–272
legal/political variables, 276 (table)
legal precedent, 284–285
legal reasoning, 283–284
new institutionalism, 275 (figure), 281
opinion writing, 266 (figure), 272–274
oral arguments, 266 (figure), 268–270, 270 (table)
research methodologies, 274–275, 275 (figure)
state courts, 67 (figure), 68 (figure)
statutory interpretation and construction, 286, 286–287 (table), 288
strategic choice theory, 275 (figure), 281–283
terminated appeals, 270 (table)
voting alignments, 277, 278 (figure)
Appellate jurisdiction, 59
Apprenticeships, 142–143
Aquinas, Saint Thomas, 31
Arbitration, 251 (table)
Argentina, 214
Aristotle, 31
Arizona
jury system, 217
public defender programs, 161 (table)
Arkansas
judicial selection, 104
public defender programs, 161 (table)
Armed Forces court, 78
Arraignment, formal, 205 (figure), 207–208
Article III (U.S. Constitution), 178–179, 184

626
Articles of Confederation, 57–58
Asia, 214
Assange, Julian, 76
Assigned counsel systems, 160
Association of American Law Schools (AALS), 144
Atkinson, David, 131
Attitudinal model, 275, 275 (figure), 277–279
Attorneys
see Legal practice
Audience-based theory, 283
Auerbach, Jerold S., 168
Austin, John, 33–34
Australia
alternative dispute resolution, 253
jury trials, 214
Austria
European Court of Justice, 304
jury trials, 214
Austrian Second Republic (1920–1934), 82
Autonomy feminism, 43

Balkin, Jack, 293, 310

Bankruptcy Abuse Prevention and Consumer Protection Act (2005), 75
Bankruptcy Amendments and Federal Judgeship Act (1984), 75
Bankruptcy judges, 75
Bankruptcy law, 14 (table)
Banks, Christopher P., 25, 90, 250
Bannon, Alicia, 88
Bar admissions, 143–144, 146 (figure), 147–148, 150
Barak, Aharon, 12, 280
Barber, Sotirios, 293
Barkow, Rachel E., 191
Barona, Silvia, 254, 256
Barriers to justice
discretionary barriers, 179–184
formal barriers, 178–179
litigation strategies, 177–178, 184–188
organized interests, 178, 184–188
procedural rules, 179
Battle of Hastings (1066), 6
Baum, Lawrence, 91, 283, 293
Beck, Gunner, 306

627
Behavioralism, 275, 277, 281–283
Belgium
European Court of Justice, 304
jury trials, 214
same-sex marriages, 319
Bell, Derrick, 46
Bell, Griffin, 111
Bench memorandum, 268
Bentham, Jeremy, 7, 33–34
Bibas, Stephanos, 211, 224
Bickel, Alexander M., 181, 191
Billing methods, 144, 154–155, 242
Bill of Rights, 309
Binder, Sarah A., 131
Bipartisan judicial selection models, 106–107, 119–120
Black, Hugo, 158–159, 219–220, 272, 309
Blackmun, Harry, 158, 284, 309
Blackstone, Sir William, 7, 31–32, 283
Blakeman, John C., 90, 250
Blaming process, 20–21
Bloom, Lackland, 293
Blue slip tradition, 112–113
Bonaparte, Napoléon, 3
Bonneau, Chris W., 131
Bork, Robert, 280, 293, 328
conservative viewpoint, 326
constitutional interpretation, 289, 290
law–morality separation, 34, 35
nomination and confirmation hearings, 106, 117–118, 129, 310
Bornstein, Brian H., 26, 256
Brace, Paul, 187, 268, 276 (table)
Brandeis, Louis, 16, 180–181, 184, 272, 284
Brazil
affirmative action programs, 311
jury trials, 214
Brennan, William J., 309
Brennan, William J., Jr., 189, 204, 284, 290, 291
Brewer-Carias, Allan R., 84
Breyer, Stephen, 293
appointment, 80 (figure)
class action lawsuits, 250
constitutional interpretation, 291

628
 First Amendment rights, 279
gun-control policies, 264
on law graduates, 155–156
political question doctrine, 184
same-sex marriages, 320, 321
statutory interpretation, 288
voting alignments, 278 (figure)
Briefs, 268
Brierley, John E. C., 26
Britain
see United Kingdom
Brown, Steven, 191
Buckley, James, 121
Bulgaria, 304
Burden of proof, 240
Bureaucratic justice, 81
Bureau of Indian Affairs (BIA), 69
Bureau of Justice Assistance, 219 (table)
Bureau of Justice Statistics, 161 (table), 162 (table)
Burger, Warren, 35, 181, 182, 250–251, 272, 313, 317
Burley, A. M., 306
Bush, George H. W.
abortion rights, 310
judicial appointments, 80 (figure), 107, 109 (table), 111, 120 (figure), 122
(table), 123 (table), 313
Bush, George W.
abortion rights, 310
class action lawsuits, 249–250
faith-based intiative programs, 182
judicial appointments, 80 (figure), 99–100, 107, 110 (table), 111–114, 115,
120 (figure), 122 (table), 123 (table), 313
presidential elections, 278
on same-sex marriages, 319
wiretap authorizations, 76
Business and industry law, 157

Cabranes, Jose A., 224

Calabresi, Steven, 293
Calavita, Kitty, 21
Caldeira, Gregory A., 191
California
bar admissions, 150

629
 judicial selection, 103
junk lawsuits, 247
Proposition 8, 181–182, 320
public defender programs, 161 (table)
same-sex marriages, 181–182, 319, 320
California judicial selection plan, 101
Campaign finance laws, 87–88, 103–105
Campaign for Working Families, 103
Canada
alternative dispute resolution, 253
constitutional courts, 188, 189
jury trials, 213
legal education and training, 146–148
same-sex marriages, 319
Cannibalism, 47
Canon, Bradley C., 303, 304 (table), 318, 329
Canon law, 3, 9
Capital punishment, 188, 189, 204
Cardozo, Benjamin N., 7, 26, 204, 283–284, 290, 293, 302
Career judiciary, 121
Caribbean, 214
Carozza, Paolo G., 189
Carter, Jimmy, 107–108, 109 (table), 110–111, 120 (figure), 122 (table), 123 (table)
Casebook method, 144
Cases, appeals, 70
Cases, criminal, 5–6
Cato Institute, 178, 186
Center for Equal Opportunity, 313
Center for Individual Rights, 313
Centralization, 64
Certiorari petitions, 60, 79, 80
Certiorari pool, 80–81
Challenge for cause, 215
Champerty, 238
Charter of Rights and Freedoms (1982), 213
Chase, Samuel, 32
Chaskalson, Arthur, 189
Chile, 214
China, 11
Choudrhry, Sujit, 189
Circuit Court of Appeals Act (1891), 60
Circuit courts, 59, 67, 76–78, 77 (figure), 322–323

630
Citizen juries, 212, 215
Citizen lawsuits, 182
Civil code, 3
Civil Justice Reform Act (1990), 254
Civil Justice Reform Group (CJRG), 247
Civil law systems, 3–6, 6 (table), 14 (table)
see also Private law
Civil litigation
adversarial process, 197, 233–235, 237–240
alternative dispute resolution, 250–255, 251–252 (table)
average lawyer time, 234, 235 (figure)
burden of proof, 240
class action lawsuits, 237–238, 239 (table), 249–250
contract cases, 246 (table)
costs, 241–242
criticisms, 232–233
current trends, 233–235
damage awards, 240
decision to litigate, 240–242, 241 (figure)
discovery process, 243–244
dismissal motions, 243
filing actions, 241 (figure), 242–243
goals and challenges, 234 (table)
jury trials, 244–245, 245–246 (table)
legal remedies, 240
legal representation, 162, 165
mass tort litigation, 237–238, 239 (table)
plantiff awards, 245–246 (table)
pleadings, 242–243
pretrial conferences, 244
real property cases, 246 (table)
repeat players versus one-shotters, 237
summary judgment motions, 243
third-party litigation funding, 238–239
tort cases, 245–246 (table)
tort reform, 247–248, 248 (table)
trial and appeal process, 240–245, 241 (figure)
trial courts, 232–256
typologies and practices, 235, 236 (figure)
Civil Rights Act (1964), 250, 317
Civil Rights Act (1991), 322
Civil rights movement, 316–317

631
Claiming process, 20–21
Clark, David S., 148
Class Action Fairness Act (2005), 248, 249–250
Class action lawsuits, 237–238, 239 (table), 249–250
Classic Democratic judicial selection models, 106
Clayton, Cornell W., 168, 276 (table), 293, 294
Clear and convincing standard, 240
Clerks of court, 84, 267–268
Clinton, Bill
judicial appointments, 80 (figure), 107, 109 (table), 111, 120 (figure), 122
(table), 123 (table)
same-sex marriages, 319
Whitewater real estate deal, 210
Cloture votes, 114, 115
Coalition building, 271–272
Coded decisions, 278, 281
Code Napoléon, 3, 5
Code of civil procedure, 3, 7
Code of criminal procedure, 3
Code of Federal Regulations, 16
Codification movement, 7–8
Coffin, Frank M., 268, 293
Cohen, Jonathan Matthew, 267, 270 (table), 293
Cohen, Thomas H., 245–246 (table)
College of William and Mary, 143
Collegial courts, 267
Collins, Patricia Hill, 49
Collins, Paul M., Jr., 191
Colonial legal institutions, 57–58
Colorado
judicial selection, 102
public defender programs, 161 (table)
Commentaries on the Laws of England (Blackstone), 7
Commercial code, 3
Commercial law, 3
Common Core State Standards Initiative, 308
Common law systems, 4, 6 (table), 6–8, 213
Communism, 11
Comparative constitutional law, 188–189
Comparative perspectives
alternative dispute resolution, 253–254
capital punishment, 189

632
 comparative constitutional law, 188–189
European constitutional courts, 82–84, 188–189
European Court of Justice, 304–306
global legal systems, 4
interest group litigation, 189
Japanese judicial system, 126–128
judicial politicization, 279–280
jury system, 213–214
morality and same-sex marriages, 37–38
Western legal education and lawyers, 147–148
Compelling interest, 279
Compensatory damages, 240
Competitive private contract systems, 160
Complaints, 242
Compliance, judicial, 315, 318 (figure)
Concerned Women for America, 118
Concurrent jurisdiction, 58, 63
Concurring opinion, 273 (table), 274
Confirmation politics, 115–118
Conflict mediation, 19
Confucianism, 11
Congressional Research Service, 116
Connecticut
alternative dispute resolution, 252
law schools, 143
public defender programs, 161 (table)
right to privacy laws, 309
same-sex marriages, 320
Consensus building, 271–272
Consent, 32
Conservative Legal Defense and Education Fund, 178
Consolidation, 64
Constitutional amendments, 322, 323 (table)
Constitutional avoidance, 180–181
Constitutional courts, 82–84, 188–189
Constitutional interpretation, 288–291
Constitutional law, 14 (table), 15, 188–189
Constitutional morality, 34–36
Constitutional protections, 203 (table)
Constitutional rights, 22–23
Contemporary controversies
cannibalism, 47

633
 class action lawsuits, 249–250
constitutional avoidance, 180–181
constitutional interpretation, 290–291
dispute pyramid, 20–21
judicial appointment process, 115–116
judicial election financing, 87–88
plea bargaining, 210–211
right to counsel, 163–164, 210–211
social change, 325–328
Contingency fees, 165, 242
Contract law, 14 (table), 17–18
Controversies, legal, 178–179
Coomans, Fons, 191
Corley, Pamela C., 293
Corporate law, 14 (table), 157
Corpus Juris Civilis (CJC), 3
Corrective justice, 13–14
Corwin, Edward S., 49
Cost recovery systems, 163–164
Cotterrell, Roger, 49
Council of Europe, 189
Counter claims, 242
Counter majoritarian institutions, 303
Counter-storytelling, 46
Court of Appeals for the Armed Forces, 78
Court of Indian Offenses, 69
Courtroom workgroup, 204
Courts of appeals, 72 (figure), 76–78, 77 (figure)
Courts of Federal Regulations (CFR Courts), 69–70
Courts of justice, 6–7
Courts of last resort, 67 (figure), 68 (figure), 71
Court system
administration, 84–85, 85 (figure), 86 (figure)
bureaucratic justice, 81
case types, 63 (table)
functional role, 19, 22
Japan, 126–128
judicial campaign politicization, 103–105
judicial election financing, 87–88, 103–105
litigant access, 177–190
organizational characteristics, 62 (figure), 62–64
origins, 57–59

634
 political trends, 56
procedural rules, 179
reform efforts, 85–86, 88
salaries, 124 (table)
selection and removal processes, 99–129
trial stages, 198 (figure)
tribal courts, 69–70
see also Adversarial legal systems; Federal courts; Inquisitorial legal systems;
State courts; Trial courts
Court unification movement, 64
Craig, Barbara, 329
Cravath model, 144, 154
Cravath, Paul D., 144, 166
Crenshaw, Kimberlé, 46, 49
Criminal Code (1892), 213
Criminal Justice Act (1964), 160
Criminal Justice Act (1967), 213
Criminal law
adversarial process, 196–197, 199–203
constitutional protections, 203 (table)
criticisms, 203, 210
jury system, 215
plea bargaining, 199–200
post-trial sentencing process, 217–223, 218–219 (table), 221 (figure)
prosecutorial discretion, 204–208
right to counsel, 158–160, 162 (table)
trial and appeal process, 203–204, 205 (figure), 209 (table)
typologies and practices, 14 (table), 16–17
Critical legal studies, 40, 44–45
Critical race theory, 45–46
Croatia, 304
Cross, Frank B., 91, 293
Crowe, Justin, 91
Cultural norms, 2
Cultural theory, 43
Customary legal systems, 4, 10–12
Cyprus, 304
Czech Republic, 304

Dahl, Robert, 327, 328

Damage awards, 240
Dartmouth College, 18

635
David, Rene, 26
Davis, Richard, 131
Dawson, Mark, 306
D.C. Circuit, 322–323
Death penalty, 188, 189, 204
Declaration of Independence, 32, 33
Declaratory judgments, 240
Declaratory theory of law, 7, 283
DeCoste, F. C., 148
De facto segregation, 317
Defendants, 16
Defense of Marriage Act (1996), 37, 319
De jure segregation, 317
Delaware public defender programs, 161 (table)
Delgado, Richard, 46, 49
Demosthenes, 31
Deng Xiaoping, 11
Denmark
European Court of Justice, 304
jury trials, 214
Department of Justice (DOJ), 107, 111–112, 161 (table), 162 (table), 219 (table),
254, 317
Depositions, 244
Dershowitz, Alan, 220
Desegregation, 33, 46, 316–317
Deslippe, Dennis, 329
Determinate sentencing, 218–219 (table), 218–220, 222
Deterrence, 217
Devlin, Lord Patrick, 37–38
DeWitte, Bruno, 306
Dickinson, John, 58
Difference theory, 42
Discipline, judicial, 125, 128–129
Discovery process, 201 (table), 208, 212, 243–244
Discretionary barriers, 179–184
Discretionary jurisdiction, 60, 79
Discrimination
gender bias, 42–43, 44
homosexuality, 35–36, 37, 44
racial discrimination, 30, 33, 46, 186, 311, 313–317
Dismissal motions, 243
Dispute pyramid, 20–21

636
Dissenting opinions, 273 (table), 273–274
Distributive justice, 14
District courts, 59, 66, 67, 72–74, 73 (table), 74 (figure), 122 (table), 126
Diversity
diversity cases, 58, 59, 63 (table), 72
employment inequality trends, 151, 152 (table)
judicial appointments, 109–110 (table), 110, 121
see also Affirmative action
Divine law, 31
Dockets, 24
Doctrine of precedent, 7
Doherty, Joseph, 256
Dominance theory, 42
Douglas, William O., 111, 284, 309, 313
Due process, 158–159, 165, 200–203, 210, 303, 316
Durkheim, Émile, 38
Durose, Matthew, 209 (table)
Duxbury, Neil, 49
Dworkin, Ronald, 35, 38, 49
Dynamic statutory interpretation, 287 (table)

Eagle Forum Education and Legal Defense Fund, 178

Early neutral evaluation, 251 (table)
Eastern Caribbean Court of Appeal, 189
Eastland, James, 107
Economic theory, 41–42
Ecuador, 214
Educational opportunities, 306–308
Education and training, legal
casebook method, 144
contemporary enrollment, 145
growth and demand, 145, 146 (figure)
historical perspective, 142–145
tuition, 149
United States, 146–149
Edwards, Harry, 283
Egypt, 279
Eighth Amendment (U.S. Constitution), 189, 203 (table), 250, 290
Eisenhower, Dwight D., 106, 122 (table), 123 (table), 316
Electronically stored information (ESI), 244
Elementary and Secondary Act (1965), 308
Eleventh Amendment (U.S. Constitution), 323 (table)

637
Empirical legal studies, 282–283
Empowerment, 64
En banc courts, 70, 71, 77, 267
Engels, Friedrich, 9
England
judicial system, 6–7
jury trials, 213
Epp, Charles R., 168, 191
Epstein, Lee, 131, 191, 282, 293
Equality theory, 42
Equal justice, 158
Equal Protection Clause, 307
Equal Rights Initiative (ERI), 196
Equity, 7
Eskridge, William N., Jr., 286–287 (table)
Esplugues, Carlos, 254, 256
Estonia, 304
Ethical behaviors, 149–150
European constitutional courts, 82–84, 188–189
European Court of Human Rights, 188, 189
European Court of Justice, 188, 304–306
European Union (EU), 304–306
Evarts Act (1891), 60
Evarts, William M., 60
Exclusionary rule, 202
Ex parte court, 76
Expert witnesses, 196–197
External judicial constraints, 322–325

Fact-based pleading, 242–243

Factory system of law, 144
Fallon, Richard H., Jr., 191
Family courts, 126
Family law, 14 (table)
Fancsal, Beth L., 239 (table)
Farber, Daniel, 294
Federal Arbitration Act (1925), 250
Federal courts
administration, 85, 86 (figure)
bankruptcy courts, 75
case types, 63 (table)
civil litigation, 235, 236 (figure), 237

638
 class action lawsuits, 249
court dockets, 73 (table)
courts of appeals, 76–78, 77 (figure), 123 (table)
demographic characteristics, 121, 124–125
district courts, 59, 66, 67, 72–74, 73 (table), 74 (figure), 122 (table)
evolutionary reform, 59–61, 61 (figure)
judicial policymaking, 302 (table), 308–311, 313–315
judicial selection and removal, 105–114, 108 (figure), 109–110 (table)
Judiciary Act (1789), 58–59
magistrate judges, 74–75
organizational characteristics, 62 (figure), 62–64, 72
presidential appointments, 105–107
procedural rules, 179
reform efforts, 85–86, 88
salaries, 124 (table)
specialized courts and tribunals, 75–76
see also Appellate courts; U.S. Supreme Court
Federalism, judicial, 15, 59, 62–64
see also Court system
Federalist Society, 111
Federal Judicial Center (FJC), 61 (figure), 85
Federal Judicial Selection Committee, 111
Federal Magistrates Act (1968), 74
Federal prosecutors, 205–206
Federal Register, 16
Federal Rules of Appellate Procedure, 179
Federal Rules of Bankruptcy Procedure, 179
Federal Rules of Civil Procedure, 85, 179, 249–250
Federal Rules of Criminal Procedure, 179
Federal Rules of Evidence, 179
Federal Trade Commission (FTC), 288
Feeley, Malcolm M., 224
Felonies, 204
Felstiner, William L. F., 21, 235 (figure)
Feminist jurisprudence, 42–44
Feminist theory, 42–44
Field Codes, 7
Field, David Dudley, 7
Fifth Amendment (U.S. Constitution), 203 (table), 309, 316
Fifth Circuit, 323
Fight theory, 8, 199
Filibusters, 114, 115–116

639
Financing, judicial election, 87–88, 103–105
Finland, 304
Finnis, John, 31
First Amendment (U.S. Constitution), 278–279, 308, 309
FISC
see Foreign Intelligence Surveillance Court (FISC)
Fisher, Abigail, 314–315
Fisher, George, 210, 211, 224
Fisher, Louis, 326, 328
Fish, Peter Graham, 91
501(c)(4)s, 103
Flango, Carol, 267
Flemming, James, 293
Florida
alternative dispute resolution, 252
amicus curiae briefs, 178, 187
judicial election financing, 103
junk lawsuits, 247
presidential elections, 184
public defender programs, 161 (table)
sentencing guidelines, 220
Fontana, David, 189
Footnote Four, 22–23
Ford, Gerald R., 106, 122 (table), 123 (table)
Foreign Intelligence Surveillance Act (1978), 76
Foreign Intelligence Surveillance Court (FISC), 76
Foreign Intelligence Surveillance Court of Review (FISCR), 78
Foreign judiciary, 188–189
Forensic evidence, 196–197
Formal arraignment, 205 (figure), 207–208
Fortas, Abe, 106
Founding Fathers, 32, 57–58, 290
Fourteenth Amendment (U.S. Constitution), 158–159, 203 (table), 215, 307, 309,
323 (table), 324
Fourth Amendment (U.S. Constitution), 203 (table), 309
France
civil law system, 3, 5
constitutional courts, 82–84
European Court of Justice, 304
jury trials, 214
plea bargaining, 211
Frankel, Marvin E., 224

640
Frankfurter, Felix, 60, 147, 181, 184, 288
Frank, Jerome N., 8, 39, 40, 49, 125, 199, 224
Frank, John P., 272
Frase, Richard S., 224
Freedom of religion, 324
Freeman, M. D. A., 49
Free speech rights, 308
French Civil Code (1804), 3, 5
Friedman, Lawrence M., 14 (table), 26
Fuller, Lon L., 33, 47, 49

Galanter, Marc, 21, 169, 191

Gambia, 214
Game theory, 277
Gang of 14, 114
Garner, Bryan A., 294
Garrett, Elizabeth, 286–287 (table)
Garrett, G., 306
Garrow, David, 329
Garth, Bryant G., 234 (table)
Garza, Emilio, 315
Gay rights, 318–321, 327–328
see also Same-sex marriages
Gender
bar admissions, 150, 151, 152 (table)
bias, 42–44
see also Affirmative action
General jurisdiction courts, 67, 67 (figure), 68 (figure), 69, 69 (table), 73
General Motors (GM), 232
George, Robert P, 49
Georgia
judicial selection, 104
public defender programs, 161 (table)
Gerhardt, Michael J., 131
German Civil Code (1896), 5
Germany
civil law system, 3, 5
constitutional courts, 82–84, 188, 189
criminal cases, 199–200
European Court of Justice, 304
judicial politicization, 279
jury trials, 214

641
 plea bargaining, 211
Geyh, Charles Gardner, 294
Ghana, 214
Ghassaneya, Shaimaa, 2
Gibson, James L., 131
Gideon, Clarence, 158
Gillman, Howard, 276 (table), 293, 294
Ginsburg rule, 118
Ginsburg, Ruth Bader
affirmative action programs, 314, 315
appointment, 80 (figure), 99
class action lawsuits, 250
confirmation hearings, 118
equality theory, 42
First Amendment rights, 278
on judicial activism, 325
judicial politicization, 279
opinion writing, 272, 274
oral arguments, 269
political question doctrine, 184
same-sex marriages, 320, 321
voting alignments, 278 (figure)
Glazer, Nathan, 326, 328
Glendon, Mary Ann, 149
Glenn, Patrick H., 26
Global legal systems, 4, 12
God’s law, 31
Goldberg, Arthur J., 106, 189
Goldman, Sheldon, 110 (table), 116, 120 (figure), 121, 122–123 (table), 131
Gotanda, Neil, 49
Government attorneys, 155–157
Government-subsidized legal aid, 165–166
Grand jury indictments, 205 (figure), 207
Great Britain
see United Kingdom
Greece
European Court of Justice, 304
jury trials, 214
Grievances, 20–21
Grossman, Joel B., 235 (figure)
Grotius, 31
Guarnieri, Carlo, 26, 84, 280

642
Guilty pleas, 205 (figure), 208, 209 (table)
Gun-control policies, 264
Gun Owners of America, 178
Gunther, Gerald, 181, 191
Guttman scaling, 277

Hagel, Chuck, 115

Hall, Kermit L., 26
Hall, Matthew E. K., 26
Hall, Melinda Gann, 131, 187, 268, 276 (table)
Haltom, William, 256
Hamilton, Alexander, 7, 22, 58, 105, 301
Hansen, Randall, 267
Hansford, Thomas G., 285, 294
Hanson, Roger A., 91, 267
Hans, Valerie P., 257
Harlan, John M., 116, 268–270
Harper, Steven J., 169
Harris, Angela, 46
Harrison, Cynthia, 91
Hart, H. L. A., 33, 34, 35, 38, 49
Harvard University Law School, 143, 144, 166
Hatch, Orrin, 112, 113
Hawaiian public defender programs, 161 (table)
Health insurance coverage, 186, 302 (table), 315–316
Heinz, John P., 169
Heller, Dick Anthony, 186, 264
Hershkoff, Helen, 191
Hettinger, Virginia A., 294
Higginbotham, Patrick, 315
Hill, Anita, 118
Hinduism, 9
Hinsey, Joseph, 154
Hinton, Anthony Ray, 196–197
Historical institutionalism, 281
Hobbes, Thomas, 32
Hojnacki, Marie, 191
Holmes, James E., 208
Holmes, Oliver Wendell, Jr., 15, 39, 269, 272, 274
Holt, Kathryn A., 62 (figure), 69 (table)
Homosexual sodomy, 35–36, 37, 318–319
Hood, Roger, 189

643
Horowitz, Donald L., 328
Horwitz, Morton, 44
Howard, J. Woodford, Jr., 91, 106
Hughes, Charles Evans, 178, 273
Hume, Robert J., 328, 329
Hungary
constitutional courts, 189
European Court of Justice, 304
jury trials, 214
Hung juries, 217
Hutchinson, Allan C., 47
Hybrid merit systems, 102, 102 (figure)

Idaho public defender programs, 161 (table)

Ideological legal systems, 4, 8–9
Illinois
court system, 65 (figure)
junk lawsuits, 247
law of standing cases, 183
public defender programs, 161 (table)
Impact, judicial, 315–321, 318 (figure)
Impeachment, 125, 128
Implementation, judicial, 315, 318 (figure)
Independent Women’s Forum, 313
Indeterminate sentencing, 218, 218 (table), 220
India
affirmative action programs, 311
alternative dispute resolution, 253
Indiana public defender programs, 161 (table)
Indian Reorganization Act (1934), 69
Indictments, 206
Indigent defendants, 158–160, 162 (table), 165
Individual rights, 2, 22–23
Indonesia, 253
Inequality trends, 151, 152 (table)
In forma pauperis petitions, 79
Information, 206
Inherit the Wind (1960), 197
In-house counsel, 157
Initial appearance hearing, 205 (figure), 206
Injunctions, 240
Inquisitorial legal systems, 5–6, 6 (table), 199–200, 201 (table)

644
Insanity pleas, 208
Institute for Court Management (ICM), 84
Institute for Justice, 186, 264
Institute for Legal Reform, 247
Intentionalism, 286 (table)
Intentional torts, 18
Interest convergence, 46
Interest groups, 117–118, 178, 184–188, 189
Interest on Lawyers Trust Accounts (IOLTA), 165, 166
Intermediate sanctions, 219 (table)
Intermediate state appellate courts, 70–71
Internal judicial constraints, 321–322
International law, 14 (table)
Internet-based legal businesses, 145
Interpretative canons, 287 (table), 288
Interpretivism, 288–289
Interrogation practices, 202
Interrogatories, 244
Intersectional feminism, 43, 46
Iowa
judicial retention elections, 103
judicial selection, 102, 104
public defender programs, 161 (table)
same-sex marriages, 320
Iredell, James, 32
Ireland
affirmative action programs, 311
European Court of Justice, 304
jury trials, 214
Irresistible-impulse test, 208
Isaacson, Julie, 239 (table)
Islamic law, 4, 9, 12
Israeli legal systems, 4, 12
Italy
constitutional courts, 82–84
European Court of Justice, 304
plea bargaining, 211

Jackson, Andrew, 324

Jackson, Donald W., 280
Jacksonian democracy, 143
Jackson, Robert, 268

645
Jackson, Vicki C., 26
Japan
alternative dispute resolution, 253
judicial system, 126–128, 188
Japan Commercial Arbitration Association, 254
Jefferson, Thomas, 32
Jenness, Valerie, 21
Jewish law, 4, 9, 12
Johnson, Charles A., 318, 329
Johnson, Lyndon B., 106, 122 (table), 123 (table), 165, 311
Jonakait, Randolph N., 224
Jones, Paula, 210
Judges’ Bill (1925), 60
Judgments, 22
Judicial accountability, 100, 104
Judicial activism, 325–328
Judicial architecture, 56
Judicial behavior theory, 275, 277, 281–283
Judicial campaign politicization, 103–105
Judicial Code (1911), 60
Judicial Code (1948), 128
Judicial compliance, 315, 318 (figure)
Judicial Conference of the United States, 179
Judicial conferences, 266 (figure), 270–272
Judicial Councils Reform and Judicial Conduct and Disability Act (1980), 128–129
Judicial Crisis Network, 103–104
Judicial discipline, 125, 128–129
Judicial discretion, 301
Judicial federalism, 15, 59, 62–64
see also Court system
Judicial impact, 315–321, 318 (figure)
Judicial implementation, 315, 318 (figure)
Judicial Improvements Act (2002), 128
Judicial Improvements and Access to Justice Act (1988), 60
Judicial independence, 100, 104
Judicial opinions, 272–274, 273 (table)
Judicial Panel on Multidistrict Litigation (JPMDL), 76, 237–238
Judicial policymaking
access policymaking, 180
appellate court decision-making processes, 265–274, 266 (figure), 276 (table)
attitudinal model, 275, 275 (figure), 277–279
coded decisions, 278, 281

646
 constitutional amendments, 322, 323 (table)
criticisms, 302–303
decision-making impact, 315–321, 318 (figure)
executive branch restraints, 324–325
external constraints, 322–325
federal judicial policymaking, 302 (table), 308–311, 313–315
internal constraints, 321–322
judicial activism, 303, 304 (table)
judicial restraint, 303
legal/political variables, 276 (table)
legal precedent, 284–285
legal reasoning, 283–284
legislative oversight, 301
legislative restraints, 322–324, 323 (table)
limitations, 321–325
litigation strategies, 177–178
new institutionalism, 275 (figure), 281
occurrences, 24–25
public opinion, 325
research methodologies, 274–275, 275 (figure)
state judicial policymaking, 302 (table), 306–308
strategic choice theory, 275 (figure), 281–283
voting alignments, 277, 278 (figure)
Judicial removal, 125, 128–129
Judicial review, 5, 22–23
Judicial selection
American Bar Association (ABA) role, 112
appointment systems, 102 (figure), 103
blue slip tradition, 112–113
Bush administration appointments, 99–100, 110 (table), 120 (figure),
122–123 (table)
Carter administration appointments, 107–108, 109 (table), 110–111, 113,
120 (figure), 122–123 (table)
Clinton administration appointments, 120 (figure), 122–123 (table)
confirmation process, 108 (figure), 113–114
demographic characteristics, 121, 122–123 (table), 124
Eisenhower administration appointments, 122–123 (table)
election systems, 100, 101–102, 102 (figure), 103
federal courts, 105–114
Ford administration appointments, 122–123 (table)
historical perspective, 100, 115
ideological considerations, 106–107

647
 Johnson administration appointments, 122–123 (table)
Kennedy administration appointments, 122–123 (table)
merit systems, 101–102, 106–107
Nixon administration appointments, 122–123 (table)
nomination process, 107–108, 108 (figure), 109–110 (table), 110–113
nominee merit evaluation, 113–114
Obama administration appointments, 99, 110 (table), 113, 114, 120 (figure),
122–123 (table)
obstruction and delaying tactics, 119, 120 (figure)
politicization, 100, 103–105, 115–118
prenomination vetting, 111–112
presidential appointments, 105–107, 115
Reagan administration appointments, 106, 107, 109 (table), 111, 120 (figure),
122–123 (table)
recess appointments, 116
reform efforts, 119–121
retention elections, 101–102, 102 (figure), 104
salaries, 124 (table)
Senate confirmation hearings, 107, 113–121
Senate Judiciary Committee (SJC), 112–113
state courts, 100–105
Judicial self-restraint, 22–23, 180
Judicial systems
administration, 84–85, 85 (figure), 86 (figure)
bureaucratic justice, 81
case types, 63 (table)
England, 6–7
federal courts, 59–61, 61 (figure), 72 (figure), 72–81, 73 (table), 74 (figure),
85, 86 (figure), 124 (table)
Japan, 126–128
judicial activism, 325–328
judicial campaign politicization, 103–105
judicial election financing, 87–88, 103–105
litigant access, 177–190
organizational characteristics, 62 (figure), 62–64
origins, 57–59
political trends, 56
procedural rules, 179
reform efforts, 85–86, 88
salaries, 124 (table)
selection and removal processes, 99–129
state courts, 64–71, 65 (figure), 66 (figure), 67 (figure), 68 (figure), 69 (table),

648
 84–85, 85 (figure), 124 (table)
trial stages, 198 (figure)
tribal courts, 69–70
see also Adversarial legal systems; Inquisitorial legal systems; Judicial
policymaking; Judicial selection; Trial courts
Judiciary Act (1789), 58–59, 179
Judiciary Act (1925), 60
Junk lawsuits, 247
Juries Act (1974), 213
Jurisdiction, 57, 58, 59, 62–69, 72–79
Jurisprudence
basic concepts, 30–31
classical theories, 31–36, 38–40
constitutional morality, 34–36
contemporary theories, 40–46
critical legal studies, 40, 44–45
critical race theory, 45–46
economic theory, 41–42
feminist jurisprudence, 42–44
law–morality separation, 33–36
legal positivism, 33–36
legal realism, 39–40, 44
natural law, 31–33
sociological jurisprudence, 38–40
therapeutic agents, 23–24
Jury Selection and Service Act (1968), 215
Jury system
civil litigation, 244–245, 245–246 (table)
comparative perspectives, 213–214
criminal cases, 215
England, 213
functional role, 212, 215
historical perspective, 213
hung juries, 217
jury size, 216
nullification, 216–217
reform efforts, 217
selection processes, 215–216
summary jury trials, 252 (table)
trial stages, 198 (figure)
verdict unanimity, 213–214, 216
Jus commune, 3

649
Justice, 13–14
Justice of the peace courts, 66
Justiciability, 178, 179–180

Kadi justice, 10
Kagan, Elena, 80 (figure), 99, 118, 250, 278 (figure), 320, 321
Kagan, Robert A., 199–200, 237, 257
Kahn, Ronald, 329
Kaldor-Hicks criteria, 41
Kane, Paul, 116
Kansas
public defender programs, 161 (table)
public school funding, 308
Katzmann, Robert A., 286–287 (table), 294
Keck, Thomas M., 329
Kelsen, Hans, 82
Kennedy, Anthony
abortion rights, 22, 310
affirmative action programs, 314–315
antisodomy laws, 35, 318–319
appointment, 80 (figure), 111, 310
class action lawsuits, 250
constitutional interpretation, 290
First Amendment rights, 279
interest group litigation, 185
legal precedent, 284
plea bargaining decision, 210–211
same-sex marriages, 320
voting alignments, 278 (figure)
Kennedy, Duncan, 44
Kennedy, Edward, 113, 117
Kennedy, John F., 106, 122 (table), 123 (table), 311
Kentucky
judicial election financing, 88
public defender programs, 161 (table)
public school funding, 307–308
Kenya, 214
Kersch, Ken I., 329
Klarman, Michael J., 327, 328, 329
Kleiman, Matthew, 91
Klonoff, Robert H., 250
Kloppenberg, Lisa, 181

650
Knight, Jack, 282, 293
Koch, Charles H., Jr., 201 (table)
Koran, 9–10
Kotz, Hein, 26
Kozinski, Alex, 321
Kritzer, Herbert M., 6 (table), 26, 155, 169, 235 (figure), 242, 257

LaFountain, Robert C., 62 (figure), 69 (table)

Langbein, John H., 224
Langdell, Christopher Columbus, 144, 166
Langton, Lynn, 245–246 (table)
Laniewski, Susan, 63 (table)
Laski, Harold, 101
Latvia, 304
Laumann, Edward O., 169
Law
basic concepts, 13–14
law–morality separation, 33–36
typologies, 14 (table)
Law and Order (television show), 152, 197
Law clerks, 267–268, 272–273
Law firms, 154–155, 156 (table)
Law of equity, 7
Law of standing, 177, 181–182
LawPivot, 145
Law professors, 157–158
Lawrence, Susan E., 169, 186
Law School Admission Test (LSAT), 145, 146 (figure), 148, 149
Law School Data Assembly Service (LSDAS), 149
Law schools
contemporary enrollment, 145
growth and demand, 145, 146 (figure)
historical perspective, 142–145
tuition, 149
United States, 146–149
Lawyers
see Legal practice
Leahy, Patrick, 113
Lear, Norman, 118
Legal claims, 20–21
Legal controversies, 178–179
Legal Defense and Educational Fund (NAACP), 186, 189, 316

651
Legal disputes, 20–21
Legal expectations, 19, 22
Legal model, 277
Legal positivism, 33–36
Legal practice
academia/law professors, 157–158
bar admissions, 143–144, 146 (figure), 147–148, 150
billing methods, 144, 154–155, 242
business and industry law, 157
career mobility, 151
civil litigation, 162, 165
cost recovery systems, 163–164
criminal cases, 158–160, 162 (table)
demographic characteristics, 152 (table)
diversity–employment inequality trends, 151, 152 (table)
education and training, 142–146
employment trends, 152–154, 153 (figure)
equal justice, 158
government attorneys, 155–157
government-subsidized legal aid, 165–166
growth and demand, 145, 146 (figure)
historical perspective, 142–145
in-house counsel, 157
law firms, 154–155, 156 (table)
lawyers as counselors and advocates, 152
legal representation, 158–167
private practice, 154–155
pro bono legal services, 166–167
professional ethics, 149–150
pro se representation, 166
public defender programs, 160, 161 (table), 162 (table)
public interest law, 157
right to counsel, 158–160, 163–164, 210–211
salaries, 154, 157, 158
truth–fight theory, 199
Legal precedent, 284–285
Legal principles, 35
Legal realism, 39–40, 44
Legal reasoning, 283–284
Legal remedies, 240
Legal research resources and strategies, 346–349
Legal Services Authorities Act (1987), 253

652
Legal Services Corporation (LSC), 165, 166
Legal Services Program (LSP), 165
Legal storytelling, 46
Legal systems
classifications and characteristics, 3–12, 6 (table)
comparative perspectives, 4
definitions, 3
globalization, 12
Legal Training and Research Institute (LTRI), 126, 127, 128
LegalZoom, 145
Legislative address, 125
Legislative history, 287 (table)
Legislative intent, 288
Legislative recall, 125
Legislative resolution, 125
Leiter, Brian, 49
Leuchtenburg, William E., 328
Leventhal, Harold, 288
Levi, Edward H., 283
Levy, Leonard W., 214
Lewinsky, Monica, 210
LGBT (lesbian, gay, bisexual, and transgender) community, 44, 318–321
see also same-sex marriages
Li, 11
Liability
see Tort law
Life-without-possibility-of-parole laws, 220
Limited jurisdiction courts, 66–67, 67 (figure), 68 (figure), 69, 69 (table)
Lincoln, Abraham, 60
Lindquist, Stephanie A., 294
Lindsey, Ursula, 280
Liptak, Adam, 328
Lithuania, 189, 304
Litigant access
discretionary barriers, 179–184
formal barriers, 178–179
procedural rules, 179
Litigation
see Dispute pyramid
Llewellyn, Karl N., 39–40
Locke, John, 32
Logan, Wayne A., 164

653
Lok Adalats, 253
Louisiana
junk lawsuits, 247
public defender programs, 161 (table)
Luna, Erik, 224
Luxembourg, 304

Macfarlane, Emmett, 294

MacKinnon, Catherine A., 42, 44, 49
Madison, James, 7, 57–58
Magistrate judges, 74–75
Maiman, Richard J., 169
Maine
bar admissions, 150
public defender programs, 160
same-sex marriages, 320
Maintenance, 238
Majority opinion, 273 (table), 273–274
Malta, 304
Maltzman, Forrest, 131, 282, 294
Mandatory appeals, 70, 79
Mandatory jurisdiction, 60
Mandatory minimum sentencing, 219 (table), 220, 222
Mao Tse-tung, 11
Marshall, John, 15, 59, 183–184, 273, 305, 321
Marshall, Thurgood, 45, 106, 284, 285, 290, 291
Martin, Casey, 286
Martineau, Marlene, 63 (table)
Martinek, Wendy L., 294
Martin, Luther, 268
Marxist theory, 9
Marx, Karl, 9
Maryland public defender programs, 161 (table)
Maryland State Archives, 85 (figure)
Massachusetts
jury system, 217
legal practice, 142
public defender programs, 161 (table)
right to privacy laws, 309
same-sex marriages, 319
Supreme Court decisions, 182
Massive open online courses (MOOCs), 145

654
Mass tort litigation, 237–238, 239 (table)
Material determinism, 46
Mather, Lynn, 169
Mattli, W., 306
McBride, Nicholas J., 148
McCann, Michael, 256
McEwen, Craig A., 169
McGarity, Thomas O., 157, 257
McNeil, Barry F., 239 (table)
Media
judicial media campaigns, 103–104
judicial selection processes, 118
Mediation, 251 (table)
Meese, Edwin, III, 289
Mega-firms, 155, 156 (table)
Menkel-Meadow, Carrie J., 234 (table)
Mental illness, 208
Merit judicial selection systems, 101–102, 102 (figure)
Merryman, John Henry, 26
Michigan
affirmative action programs, 308–309, 313–314
judicial election financing, 87
judicial selection, 103
public defender programs, 161 (table)
Mikva, Abner, 288
Miller, Monica K., 26
Miller, Richard E., 21
Mill, John Stuart, 38
Mini-trials, 252 (table)
Minnesota
judicial politicization, 279–280
judicial selection, 104
public defender programs, 161 (table)
sentencing guidelines, 220, 221 (figure)
Minority populations
bar admissions, 150, 151, 152 (table)
critical race theory, 45–46
jury selection, 216
see also Affirmative action
Minority rights, 22–23, 30, 46, 301, 325–326
Misconduct, 125, 128
Misdemeanors, 204

655
Misfeasance, judicial, 125, 128
Mississippi public defender programs, 161 (table)
Missouri
judicial selection, 104
public defender programs, 161 (table)
Missouri Plan, 101–102, 127
Mixed elections, 102 (figure), 103–105
Mixed legal systems, 4, 9, 10–12
M’Naghten rule, 208
Model Rules of Professional Conduct (MRPC), 150
Moller, Kai, 330
Montana public defender programs, 161 (table)
Mootness, 183, 313
Morality
constitutional morality, 34–36
law–morality separation, 33–36
same-sex marriages, 37–38
Motel 6, 41–42
Motion for production, 244
Motions, 205 (figure), 208
Motions for physical or mental examinations, 244
Motions of dismissal, 243
Motion to answer interrogatories, 244
Mubarak, Hosni, 279
Muir, Elise, 306
Multistate Bar Examination (MBE), 150
Multistate Essay Examination (MEE), 150
Multistate Performance Test (MPT), 150
Multistate Professional Responsibility Examination (MPRE), 149–150
Municipal courts, 66
Murphy, Walter, 281, 294
Muslim law, 4, 9, 12

Nagareda, Richard A., 239 (table), 257

Naming process, 20–21
Napoleonic Criminal Code (1808), 214
National Admissions Test for Law (LNAT), 147, 148
National Association for Criminal Defense Lawyers, 164
National Association for Gun Rights, 264
National Association for the Advancement of Colored People (NAACP), 186, 189,
316
National Center for State Courts (NCSC), 84, 124 (table), 166, 217

656
National Conference of Bar Examiners (NCBE), 146 (figure), 150
National Conference of State Legislatures, 248 (table)
National Conservative Political Action Committee, 118
National Judicial College, 84
National Organization for Marriage, 103
National Public Radio, 164
Natural courts, 285
Natural law, 31–33
Natural rights, 32
Nazi law, 33
Nebraska
judicial selection, 102
public defender programs, 161 (table)
same-sex marriages, 319
Negligence, 18
Negligent torts, 18
Nelson, Robert L., 169
Netherlands
European Court of Justice, 304
same-sex marriages, 319
Nevada
public defender programs, 161 (table)
same-sex marriages, 319
New Hampshire
bar admissions, 150
public defender programs, 161 (table)
New institutionalism, 275 (figure), 281
New Jersey
alternative dispute resolution, 252
judicial selection, 103
public defender programs, 161 (table)
public school funding, 307
same-sex marriages, 320
New Jersey Plan, 58
New Mexico
judicial election financing, 88, 105
public defender programs, 161 (table)
same-sex marriages, 319
New York
junk lawsuits, 247
jury system, 217
pro bono service, 166

657
 public defender programs, 161 (table)
same-sex marriages, 319, 320
New Zealand, 214
Nineteenth Amendment (U.S. Constitution), 323 (table)
Nineteenth Judicial Circuit Court of Lake County, 65 (figure)
Ninth Amendment (U.S. Constitution), 309
Ninth Circuit, 323
Nixon, Richard M., 100, 107, 122 (table), 123 (table), 313, 317, 322
No bill, 207
No Child Left Behind Act (2001), 308
Nolo contendere, 208
Nominal damages, 240
Noninterpretivism, 288–289, 290
Nonpartisan elections, 100–101, 102 (figure), 103–105
North Carolina
judicial election financing, 87, 88, 103, 105
judicial selection, 104
legal practice, 142
public defender programs, 161 (table)
North Dakota
alternative dispute resolution, 252
public defender programs, 161 (table)
Northern Ireland, 311
Norway, 214
Notice pleading, 242–243
Nuclear option, 114, 115
Nullification, 216–217

Obama, Barack, 80 (figure), 99, 107, 110 (table), 120 (figure), 122 (table), 123
(table), 264
Obamacare, 315–316
O’Brien, David M., 26, 91, 128, 131, 276 (table), 291, 294, 323 (table), 329
O’Connor, Sandra Day
abortion rights, 22, 310
affirmative action programs, 313–314
appointment, 99, 111
confirmation hearings, 116
First Amendment rights, 278
interest group litigation, 185
on judicial architecture, 56
judicial campaign reform, 88
legal precedent, 284

658
 voting alignments, 278 (figure)
Office of Legal Policy, 111
Ohio
amicus curiae briefs, 187
judicial election financing, 87, 103
jury system, 217
public defender programs, 161 (table)
public school funding, 308, 324
two-tiered trial court system, 66 (figure)
Oklahoma public defender programs, 161 (table)
Omnibus Judgeship Act (1978), 108
One L (Turow), 144
One-shotters, 237
Online dispute resolution, 252 (table)
Opinion assignment, 271
Opinion for the Court, 35
Opinion writing, 266 (figure), 272–274
Oral arguments, 81, 266 (figure), 268–270, 270 (table)
Oral dissents, 273–274
Oregon
public defender programs, 161 (table)
same-sex marriages, 319
Organic societies, 38
Organization of American States Inter-American Court of Human Rights, 189
Organized interests, 117–118, 178, 184–188, 189
Originalism, 289–290
Original jurisdiction courts, 59, 73
Ostrom, Brian J., 91
Ostrom, Charles W., Jr., 91
Otto, Jan Michiel, 26
Ottoman law, 10, 12

Pacific Legal Foundation, 313

Packer, Herbert L., 200, 224
Palay, Thomas, 169
Panels, 70
Paper Chase, The (film), 144
Pareto efficiency principles, 41
Pareto optimal, 41
Pareto superior, 41
Parker, John, 64
partial-birth abortion bans, 310

659
Partial merit systems, 102, 102 (figure)
Partisan elections, 100, 102 (figure), 103–105
Passing, 272
Paterson, Alan, 294
Paterson, William, 58
Patient Protection and Affordable Care Act (2010), 315–316
Patronage, 106
“Pay as you go” justice, 160, 163–164
Payne, Andrew, 196–197
Pederzoli, Patrizia, 26, 84, 280
Peller, Gary, 49
Penal code, 3
Pennsylvania
public defender programs, 161 (table)
sentencing guidelines, 220
People for the American Way, 118
Peppers, Todd C., 294
Per curiam (unsigned) opinion, 196, 273 (table)
Peremptory challenges, 17, 215–216
Peretti, Terri Jennings, 330
Perritt, Henry H., Jr., 251–252 (table)
Peterson, Paul E., 330
Petitioner, 81
Petitions, legal, 7
Petit jury, 212, 215
Plaintiff, 18
Plapinger, Elizabeth, 252 (table)
Plato, 31
Plea bargaining, 199–200, 205 (figure), 208–211, 209 (table)
Pleas, 205 (figure), 207–208, 209 (table), 242–243
Plenary consideration, 79
Plunkett, Leah A., 164
Plurality opinion, 22, 273 (table), 278
Poland, 304
Police courts, 66
Policymakers, 24–25
Political Action Committees (PACs), 103, 104, 118
Political question doctrine, 183–184
Portugal
European Court of Justice, 304
jury trials, 214
Positive law, 33–36

660
Posner, Richard A., 41–42, 49, 254, 267
Postmodernism feminism, 43–44
Post-trial sentencing process
determinate sentencing, 218–219 (table), 218–220, 222
historical perspective, 217–218
post-trial motions and appeals, 222–223
presumptive sentencing, 220, 221 (figure)
sentence-enhancement rulings, 222
typologies and practices, 218–219 (table)
Pound Conference on the Causes of Popular Dissatisfaction With the Administration
of Justice (1976), 251
Pound, Roscoe, 13, 38–39, 64
Powell, Lewis F., 117, 163, 185, 272
Pragmatism, 41–42
Precedent, 7
Preliminary hearings, 205 (figure), 207
Preponderance of the evidence, 240
Presidential judicial appointments, 105–107, 115
Presumptive sentences, 219 (table), 220, 221 (figure)
Pretrial conferences, 244
Pretrial motions, 205 (figure), 208, 242–243
Primary rules, 34
Primitive societies, 38
Pritchett, C. Herman, 275, 277, 294
Private contract systems, 160
Private law, 14 (table), 17–19
Private practice, 154–155
Private Securities Litigation Reform Act (1995), 248
Probable cause, 206
Probate law, 14 (table)
Problem-solving jurisprudence, 23–24
Pro bono legal services, 166–167
Procedural rules, 179
Process jurisprudence, 40
Product-of-mental-illness test, 208
Professional ethics, 149–150
Property law, 14 (table)
Proposition 8 (California), 181–182, 320
Prosecutorial discretion
formal arraignment, 205 (figure), 207–208
grand jury indictments, 205 (figure), 207
initial appearance, 205 (figure), 206

661
 preliminary hearings, 205 (figure), 207
prosecutor role, 204–206
see also Sentencing process
Pro se representation, 166
Public choice theory, 287 (table)
Public defender programs, 160, 161 (table), 162 (table)
Public financing programs, 87–88
Public hearings
see Senate confirmation hearings
Public interest law, 157
Public law, 14 (table), 14–17
Public school funding, 306–308
Punitive damages, 240
Purposivism, 286 (table)

Race to the Top Fund, 308

Racial discrimination
affirmative action programs, 30, 311, 313–315
school desegregation, 33, 46, 316–317
Rakove, Jack, 26, 294
Ramseyer, J. Mark, 128
Rasmusen, Eric B., 128
Rational choice institutionalism, 281
Reagan, Ronald
abortion rights, 310
judicial appointments, 100, 106, 107, 109 (table), 111, 120 (figure), 122
(table), 123 (table), 313, 317
Reasonable doubt standard, 204
Reasoning by example or analogy, 283
Recall, legislative, 125
Recess appointments, 116
Redish, Martin H., 257
Reeve, Tapping, 143
Rehabilitation, 217
Rehnquist, William, 328
abortion rights, 310
affirmative action programs, 313, 314
appointment, 111
on capital punishment, 189
constitutional avoidance, 181
constitutional interpretation, 289
death, 99

662
 First Amendment rights, 278, 279
on judicial activism, 325
legal precedent, 284–285
opinion assignment, 272
oral arguments, 81
personal ideology, 107
school desegregation, 317
Reid, Harry, 114, 115
Reitz, Kevin R., 219 (table)
Religious Freedom Restoration Act (RFRA), 324
Religious legal systems, 4, 9–10
Religious traditions, 2
Repeat players, 237
Reply, 242
Reproductive rights, 308–311, 312–313 (table)
Republican ideological judicial selection models, 107
Request for admission, 244
Resnick, Judith, 250
Respondent, 81
Retention elections, 101–102, 102 (figure), 104
Retribution, 217
Reverse decisions, 265
Reville, Robert T., 256
Reynolds, William L., 91
Rhode, Deborah L., 151, 169, 191
Rhode Island public defender programs, 161 (table)
Richman, William M., 91
Riding circuit, 59
Right to counsel, 158–160, 163–164, 210–211
Right to privacy laws, 309
Ripeness, 183
Roberts, John G., Jr.
abortion rights, 310
affirmative action programs, 314–315
appeals cases, 177
appointment, 80 (figure), 99
class action lawsuits, 250
confirmation hearings, 118
decision-making impact, 315–316
judicial duties, 78
law of standing cases, 181–182
personal ideology, 107

663
 plea bargaining decision, 210
same-sex marriages, 321
school desegregation, 317
voting alignments, 278 (figure)
RocketLawyer, 145
Roman Catholicism, 9
Romania, 304
Roman law, 3
Roosevelt, Franklin D., 106, 324, 325
Rosenberg, Gerald N., 327–328, 328, 330
Rosenblum, Victor G., 169
Rosenmerkel, Sean, 209 (table)
Rostow, Eugene V., 326, 328
Rules Enabling Act (1934), 179
Rules of discovery, 212
Rumble, Wilfrid E., Jr., 49
Russell, Peter H., 26
Russia, 214

Same-sex marriages, 37–38, 103, 104, 181–182, 319–321, 327–328

Sanctions, 125, 129, 197, 219 (table)
Sandefur, Rebecca L., 169
Sarat, Austin, 21, 235 (figure)
Saudi Arabia, 2, 10, 13
Scalia, Antonin, 291, 294
affirmative action programs, 314, 315
antisodomy laws, 35–36, 37
appointment, 80 (figure), 111
on capital punishment, 189
class action lawsuits, 250
concurring opinion, 274
constitutional interpretation, 289–290
First Amendment rights, 279
gun-control policies, 264
interest group litigation, 184–185
judicial politicization, 279–280
on judicial selection, 99
jury trials, 222
legal precedent, 284
originalism, 290–291
personal ideology, 107
plea bargaining decision, 210, 211

664
 same-sex marriages, 321
statutory interpretation, 286
taxpayer standing cases, 182
voting alignments, 278 (figure)
Schauffler, Richard Y., 62 (figure), 69 (table)
Scheindlin, Shira, 46
Scherer, Nancy, 131
Schiavoni, Sara, 110 (table), 120 (figure), 122–123 (table)
School desegregation, 33, 46, 316–317
Schopp, Robert F., 256
Schubert, Glendon, 275, 277
Search warrants, 206, 244
Searle Civil Justice Institute, 247
Second Amendment (U.S. Constitution), 264
Secondary rules, 34
Securities and Exchange Commission (SEC), 288
Segal, Jeffrey A., 131, 276 (table), 277–278, 294
Self-representation, 166
Self-respect, 321–322
Senate confirmation hearings, 107, 113–121
Senate Judiciary Committee (SJC), 107, 112–113, 116, 120
Senatorial courtesy, 112
Sentencing process
determinate sentencing, 218–219 (table), 218–220, 222
historical perspective, 217–218
post-trial motions and appeals, 222–223
presumptive sentencing, 220, 221 (figure)
sentence-enhancement rulings, 222
typologies and practices, 218–219 (table)
Sentencing Reform Act (1984), 220
Separate opinions, 273 (table)
Separation of powers, 56
Settlement conferences, 252 (table)
Seventh Amendment (U.S. Constitution), 212, 244
Shapiro, Martin, 281, 305, 306
Shapo, Marshall S., 257
Shariah law, 10
Shaw, Lemuel, 18
Sherry, Suzanna, 294
Shugerman, Jed Handelsman, 131
Sierra Leone, 214
Silbey, Susan S., 169, 257

665
Sims, Nicole, 63 (table)
Single-tier trial courts, 65, 65 (figure)
Sixteenth Amendment (U.S. Constitution), 323 (table)
Sixth Amendment (U.S. Constitution), 158, 166, 196, 203 (table), 210, 212, 215,
222
Slaughter, Anne-Marie, 306
Slotnick, Elliot, 110 (table), 120 (figure), 122–123 (table)
Slovakia, 304
Slovenia, 304
Smith, Christopher E., 6 (table)
Smith, Rogers, 281
Snowden, Edward, 76
Social change, 325–328
Social contracts, 32
Socialist legal systems, 8–9
Social welfare organizations, 103
Sociological jurisprudence, 38–40
Sodomy, 35–36, 37
Solicitor General, 187
Sossin, Lorne M., 191
Sotomayor, Sonia, 80 (figure), 88, 99, 250, 278 (figure), 320
Souter, David
abortion rights, 22, 310
due process cases, 202
First Amendment rights, 278–279
legal precedent, 284
political question doctrine, 184
retirement, 99
voting alignments, 278 (figure)
South Africa
affirmative action programs, 311
capital punishment, 189
judicial system, 188
jury trials, 214
South America, 214
South Carolina
amicus curiae briefs, 178
judicial selection, 103
public defender programs, 161 (table)
South Dakota
judicial accountability, 322
public defender programs, 161 (table)

666
Southern Manifesto, 316
South Pacific Islands, 214
Southworth, Ann, 191
Soviet Union, 8–9
Spaeth, Harold J., 276 (table), 277–278, 294
Spain
constitutional courts, 82–84
European Court of Justice, 304
jury trials, 214
Spriggs, James F., II, 282, 285, 294
Standards of Judicial Administration, 64
Standing, law of, 177, 181–182
Stare decisis, 7, 22, 284–285
Starr, Kenneth, 210
State court administrators (SCAs), 84
State courts
administration, 84–85, 85 (figure)
appellate courts, 67 (figure), 68 (figure), 70–71
background, 64
case types, 63 (table)
civil litigation, 235, 236 (figure)
class action lawsuits, 249
court dockets, 69 (table)
courts of last resort, 67 (figure), 68 (figure), 71
demographic characteristics, 121, 124–125
judicial campaign politicization, 103–105
judicial election financing, 87–88, 103–105
judicial policymaking, 302 (table), 306–308
judicial selection and removal, 100–105
law of standing cases, 183
organizational characteristics, 62 (figure), 62–69
procedural rules, 179
public school funding, 306–308
reform efforts, 64
salaries, 124 (table)
trial courts, 65 (figure), 65–67, 66 (figure), 67 (figure), 68 (figure), 69, 69
(table)
tribal courts, 69–70
see also Appellate courts
State interest, 279
State Justice Institute, 166
State prosecutors, 204–206

667
State public school funding, 306–308
State supreme courts, 67 (figure), 68 (figure), 71, 187, 268, 306–308, 320
Statutes, 286
Statutory interpretation and construction, 286, 286–287 (table), 288
Statutory law, 14–16
Stearns, Travis, 164
Stefancie, Jean, 49
Steigerwalt, Amy, 131, 293
Stevens, John Paul
affirmative action programs, 314
on capital punishment, 189
First Amendment rights, 278, 279
gun-control policies, 264
legal precedent, 284
political question doctrine, 184
retirement, 99
statutory interpretation, 286, 288
voting alignments, 278 (figure)
Stevens, Robert, 169
Stewart, Potter, 309
Stienstra, Donna, 251–252 (table)
Stith, Kate, 224
Stone, Harlan F., 116, 272
Stookey, John A., 106
Strategic choice theory, 275 (figure), 281–283
Strategic consensus building, 271–272
Strauss, David, 294
Strickland, Shauna M., 62 (figure), 69 (table)
Strict constructionism, 289
Strict liability torts, 18–19
Strict scrutiny test, 310
Structural determinism, 46
St. Vincent and the Grenadines, 189
Sulh justice, 10
Summary judgment motions, 243
Summary jury trials, 252 (table)
Sunnah, 10
Superior courts, 67
Super PACs, 103
Supremacy Clause, 58, 59, 62–63
Supreme Court
abortion rights, 22, 308–311

668
 affirmative action, 308–309, 311, 313–315
agenda setting, 267–268
amicus curiae briefs, 187
antisodomy laws, 35, 318–319
appeals cases, 177–178
attitudinal model, 277–278
characteristics and functional role, 78–81
class action lawsuits, 250
coded decisions, 278, 281
constitutional avoidance, 180–181
constitutional interpretation, 289–290
constitutional law, 15
court dockets, 78–79, 80 (figure), 81
criticisms, 325–328
decision-making impact, 315–316
gun-control policies, 264
judicial activism, 325–328
Judiciary Act (1789), 59
jurisdiction, 62–64
law of standing cases, 181–182
legal precedent, 284–285
membership and appointments, 80 (figure), 350–353
natural law, 32–33
oral arguments, 268–270
plea bargaining decision, 210–211
political question doctrine, 184
public school funding, 306–308
right to privacy laws, 309
same-sex marriages, 320–321
search warrants, 244
sentence-enhancement rulings, 222
summary judgment motions, 243
taxpayer standing cases, 182
voting alignments, 277, 278 (figure)
see also Court system
Supreme Court of Japan, 126–127
Supreme Court of Ohio, 66 (figure)
Susskind, Richard, 169
Sutherland, George, 158
Sweden, 304
Sweet, Alex Stone, 306

669
Taft, William H., 60, 203
Talmudic law, 4, 9, 12
Tamanaha, Brian Z., 169
Tanzania, 214
Tarr, G. Alan, 131
Tate, C. Neal, 280, 330
Tauber, Steven, 25
Taxation law, 14 (table)
Taxpayer lawsuits, 182
Teles, Steven M., 191
Tennessee public defender programs, 161 (table)
Tenth Amendment (U.S. Constitution), 177, 178
Terminated appeals, 270 (table)
Terrill, Richard, 214
Texas
affirmative action programs, 314–315
antisodomy laws, 318
judicial election financing, 87
judicial selection, 104
public defender programs, 161 (table)
public school funding, 307
right to privacy laws, 309
Textualism, 286 (table)
Thaman, Stephen, 211
Therapeutic jurisprudence, 23–24
Third Amendment (U.S. Constitution), 309
Third-party litigation funding, 238–239
Thirteenth Amendment (U.S. Constitution), 323 (table)
Thomas, Clarence
affirmative action programs, 314, 315
appointment, 80 (figure)
confirmation controversy, 118
constitutional interpretation, 290
First Amendment rights, 279
natural law, 33
opinion writing, 272
oral arguments, 269
plea bargaining decision, 210
statutory interpretation, 286
taxpayer standing cases, 182
voting alignments, 278 (figure)
Thomas, Kendall, 49

670
Three pillars, 5
Three-strikes laws, 220
Threshold doctrines, 177–178
Tocqueville, Alexis de, 142, 213
To Kill a Mockingbird (1962), 152, 197
Tolley, Michael C., 280
Tort law
civil litigation, 245–246 (table)
reform efforts, 247–248, 248 (table)
typologies and practices, 14 (table), 18–19
Traditional legal studies, 283
Transactional lawyers, 152
Transnational networks, 12
Trial administrators, 84
Trial courts
adversarial process, 197, 199–203
civil litigation, 232–256, 234 (table), 236 (figure), 239 (table), 241 (figure)
court dockets, 69 (table)
court structure, 65 (figure), 65–67, 66 (figure), 67 (figure), 69
historical perspective, 59
jury system, 212–217
post-trial sentencing process, 217–223, 218–219 (table)
stages, 198 (figure)
trial and appeal process, 203–204, 205 (figure), 209 (table)
types, 68 (figure)
Tribal courts, 69–70
Tribal Law and Order Act (2010), 69
Tribe, Laurence, 294
Trinidad and Tobago, 189
Trubeck, David M., 235 (figure)
Trubek, David, 44
True bill, 207
Truman, Harry, 106
Truth–fight theory, 199
Truth in sentencing, 219 (table), 220
Turow, Scott, 144
Tushnet, Mark, 44, 45
Twentieth Century Fund Task Force on Judicial Selection, 119–120
Twenty-Fourth Amendment (U.S. Constitution), 323 (table)
Twenty-Sixth Amendment (U.S. Constitution), 323 (table)
Twining, William, 47, 49
Two-stage interrogation practice, 202

671
Two-strikes laws, 220
Two-tiered trial courts, 65–66, 66 (figure), 67 (figure)

Ukraine, 189
Ulmer, S. Sidney, 268, 275
Unanimous opinions, 273
Undue burden test, 310
Unger, Roberto, 44
Unification movement, 64
United Kingdom
alternative dispute resolution, 253
court system, 82
European Court of Justice, 304
legal education and training, 146–148
United Nations Commission on International Trade Law (UNCITRAL) Model Law
(1985, 2006), 253, 254
United States
alternative dispute resolution, 253
legal education and training, 146–149
legal systems, 7
see also specific states
University of Michigan, 313–314
University of Ottawa, 4
University of Texas at Austin, 314–315
University of Virginia Miller Center of Public Affairs, 119
Unpublished opinions, 274
Uruguay, 214
U.S. attorneys, 204–205
U.S. Bankruptcy Courts, 75
U.S. Census Bureau, 152 (table)
U.S. Civil Rights Commission, 317
U.S. Court of Appeals for Veterans Claims, 78
U.S. Court of Federal Claims, 76
U.S. Court of International Trade, 75–76
U.S. Courts of Appeals, 72 (figure), 76–78, 77 (figure), 123 (table)
U.S. District Courts, 72–74, 73 (table), 74 (figure), 122 (table)
U.S. Judicial Conference, 179
U.S. Magistrate Judges, 74–75
U.S. Patent and Trademark Office, 77
U.S. Solicitor General, 187
U.S. Supreme Court
abortion rights, 22, 308–311

672
 affirmative action, 308–309, 311, 313–315
agenda setting, 267–268
amicus curiae briefs, 187
antisodomy laws, 318–319
appeals cases, 177–178
attitudinal model, 277–278
characteristics and functional role, 78–81
class action lawsuits, 250
coded decisions, 278, 281
constitutional avoidance, 180–181
constitutional interpretation, 289–290
constitutional law, 15
court dockets, 78–79, 80 (figure), 81
criticisms, 325–328
decision-making impact, 315–316
gun-control policies, 264
judicial activism, 325–328
Judiciary Act (1789), 59
jurisdiction, 62–64
law of standing cases, 181–182
legal precedent, 284–285
membership and appointments, 80 (figure), 350–353
natural law, 32–33
oral arguments, 268–270
plea bargaining decision, 210–211
political question doctrine, 184
public school funding, 306–308
right to privacy laws, 309
same-sex marriages, 320–321
search warrants, 244
sentence-enhancement rulings, 222
summary judgment motions, 243
taxpayer standing cases, 182
voting alignments, 277, 278 (figure)
see also Court system
U.S. Tax Court, 76
Utah public defender programs, 161 (table)
Utilitarianism, 33

Vallinder, Torbjorn, 280, 330

Vanderbilt, Arthur, 64
Van Gramberg, Bernadine, 254

673
Venezuela, 214
Verdict unanimity, 213–214, 216
Vermont
public defender programs, 161 (table)
same-sex marriages, 319
Veterans Claims court, 78
Vidmar, Neal, 214
Violence Against Women Act (1994), 44
Virginia
judicial selection, 103
public defender programs, 161 (table)
Virginia Plan, 58
Vogel, Mary E., 211, 224
Voir dire process, 215–216
Volcansek, Mary L., 131, 280
Volitional incapacity test, 208
Voluntary sentencing guidelines, 219 (table)
von Savigny, Friedrich Carl, 5
Voter rolloff, 104

Wade, Marianne L., 224

Wahlbeck, Paul J., 282, 294
Wall Street law firm, 144, 166
Ward, Artemus, 293, 294
Warren, Earl, 181, 182, 306–307, 316
Washington
indigent defendants, 160
public defender programs, 161 (table)
public school funding, 307
sentencing guidelines, 220
Washington, George, 324
Watson, George L., 106
Weber, Max, 38
Webster, Daniel, 268
Weiler, J. H. H., 306
Weingast, Barry, 306
West, Martin R., 330
West Virginia
judicial election financing, 105
junk lawsuits, 247
public defender programs, 161 (table)
public school funding, 307

674
Wheeler, Joe, 63 (table)
Wheeler, Russell R., 91, 116
White, Byron, 35, 118
Whitewater real estate deal, 210
Whitman, James Q., 224
Wiener, Richard L., 256
Wilkinson, J. Harvie, III, 294
Willborn, Steven L., 256
William I (King of England), 6
Williams, Wendy, 42
Wiretaps, 76
Wisconsin
bar admissions, 150
judicial election financing, 88, 103, 105
public defender programs, 161 (table)
Wolfenden Report, 37
Wolfenden, Sir John, 37
Wright, John R., 191
Wright, Ronald F., 164
Writ of certification, 79
Writ of certiorari, 60, 79, 189
Writs, 7
Written dissents, 273–274
Wyoming
judicial selection, 102
public defender programs, 161 (table)

Xi Jinping, 11

Yalof, David Alistair, 131

Zakaras, Laura, 256

Zemans, Frances Kahn, 169
Zimbabwe, 214
Zweigert, Konrad, 26

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About the Authors

Christopher P. Banks
is a professor at Kent State University. In 1980, he earned his BA in political science,
and in 1984, he graduated with his law degree. Before receiving his doctorate in
American politics from the University of Virginia in 1995, he practiced law in civil
and criminal litigation in Connecticut as well as being active in local and state
politics. In Connecticut, he ran as a political candidate for state representative in
1988. After the election, he was appointed by Governor William O’Neill to serve as
an administrative hearing officer for the Connecticut Commission on Human Rights
and Opportunities. After graduating from the University of Virginia, he taught at the
University of Akron for eleven years in the political science department while also
serving as prelaw advisor. At Kent State University, he served as the department’s
graduate coordinator for its MA and PhD program, as well as an affiliate for the
Center for Public Administration and Public Policy. Presently, he is the department’s
prelaw advisor. He regularly teaches undergraduate and graduate courses in the
judicial process, constitutional law, civil rights and liberties, law and society,
terrorism, and American politics. He is the author of Judicial Politics in the D.C.
Circuit Court (John Hopkins University Press, 1999); the co-author of The U.S.
Supreme Court and New Federalism: From the Rehnquist to the Roberts Court (Rowman
& Littlefield, 2012) and Courts and Judicial Policymaking (Prentice Hall, 2008); and
co-editor of The Final Arbiter: The Consequences of Bush v. Gorefor Law and Politics
(State University of New York Press, 2006), along with Superintending Democracy:
The Courts and the Political Process (University of Akron Press, 2001). He has
published numerous book chapters, book reviews, and journal articles on judicial
behavior, law and politics, federalism, terrorism, and human rights in Justice System
Journal, Publius: The Journal of Federalism, Judicature, The International Journal of
Human Rights, Public Integrity: A Journal of the American Society for Public
Administration, Social Science Quarterly, Southeastern Political Review (currently titled
Politics & Policy), and The Journal of Law & Politics, among others.
David M. O’Brien
is the Leone Reaves and George W. Spicer Professor at the University of Virginia. He
has been a judicial fellow and research associate at the Supreme Court of the United
States; and held Fulbright teaching and research awards at Oxford University in
England; at the University of Bologna in Italy; and in Japan; and was a visiting fellow
at the Russell Sage Foundation in New York, and a visiting professor at Institut
d’Études Politiques Université Lumière Lyon 2, France. He was a commissioner on
the U.S.-Japan Conference on Cultural and Educational Interchange and the Japan-
U.S. Friendship Commission. He is the author of numerous books and over one
hundred journal articles and book chapters, including Storm Center: The Supreme

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Court in American Politics (10th ed., Norton, 2014), which received the American
Bar Association’s Silver Gavel Award; a two-volume casebook, Constitutional Law
and Politics (9th ed., Norton, 2014); the annual Supreme Court Watch (Norton);
Animal Sacrifice & Religious Freedom: Church of the Lukumi Babalu Aye v. City of
Hialeah (University of Kansas Press, 2004); To Dream of Dreams: Religious Freedom
and Constitutional Politics in Postwar Japan (University of Hawaii Press, 1996); and
Congress Shall Make No Law: The First Amendment, Unprotected Expression, and the
U.S. Supreme Court (Rowman & Littlefield, 2010), among other books. In addition,
he has edited several books, including Judges on Judging: Views From the Bench (4th
ed., CQ Press, 2013), and co-authored others, including Government by the People
(22nd ed., Prentice Hall, 2008), Courts and Judicial Policymaking (Prentice-Hall,
2008), and Judicial Independence in the Age of Democracy: Critical Perspectives From
Around the World (University of Virginia Press, 2001).

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