Judicial Process and Judicial Policymaking
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Judicial Process and Judicial Policymaking

G. Alan Tarr

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eBook - ePub

Judicial Process and Judicial Policymaking

G. Alan Tarr

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An excellent introduction to judicial politics as a method of analysis, the seventh edition of Judicial Process and Judicial Policymaking focuses on policy in the judicial process. Rather than limiting the text to coverage of the U.S. Supreme Court, G. Alan Tarr examines the judiciary as the third branch of government, and weaves four major premises throughout the text: 1) Courts in the United States have always played an important role in governing and their role has increased in recent decades; 2) Judicial policymaking is a distinctive activity; 3) Courts make policy in a variety of ways; and 4) Courts may be the objects of public policy, as well as creators.

New to the Seventh Edition

? New cases through the end of the Supreme Court's 2018 term.

? New case studies on the Garland-Gorsuch controversy; plea negotiation (of special relevance to the Trump administration); and the litigation over Obamacare, as well as brief coverage of the Kavanaugh confirmation.

? Expanded coverage of the crisis in the legal profession, sentencing with attention to the rise of mass incarceration and the issue of race, constitutional interpretation and the rise of "originalism, " and same-sex marriage.

? Updated tables and figures throughout.

? A new online e-Resource including edited cases, a glossary of terms, and resources for further learning.

This text is appropriate for all students of judicial process and policy.

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Courts and Law

Today the United States has more than a million lawyers, and in 2017, the country’s law schools graduated an additional 36,000. The same year, the nation’s state and federal courts resolved more than 100 million cases, almost one for every three Americans. Striking as these figures are, they do not capture the full impact of law and the courts in the United States. Scan a newspaper, and you are immediately struck by how often Americans call upon judges to resolve important policy disputes. Judicial rulings affect everything from health care to conditions in jails and prisons, from the definition of marriage to the selection of the president.1 Most judicial decisions, of course, affect only the parties to the dispute. But as the U.S. Supreme Court’s rulings on school desegregation and abortion illustrate, other decisions may focus public attention on issues and encourage broad social changes.2 Thus, courts do not merely resolve large numbers of disputes; they also actively participate in governing.
So it is hardly surprising that Americans have long had a fascination with law, lawyers, and legal institutions. We closely follow publicized trials—more than 150 million Americans tuned in for the verdict in the O. J. Simpson murder case—and monitor other legal developments daily. We indulge our interest in the law through novels and movies such as To Kill a Mockingbird and The Firm, as well as television programs as different as CSI and Judge Judy. We incorporate legal terms such as “taking the Fifth” and “the right to privacy” into everyday conversations. We even tend to think about political issues from a legal perspective—witness the legal challenges to President Barack Obama’s health-care law and to President Donald Trump’s ban on people entering the United States from some Muslim-majority countries. Ours is truly a law-permeated society.
Often, however, our fascination with the legal order is combined with a concern about the law and American legal institutions. Thus, a 2017 Gallup Poll found that only 27 percent of Americans had “a great deal” or “quite a lot” of confidence in the criminal justice system, while 34 percent had “very little or none”. Many Americans see courts as too lenient in their sentencing of criminals, although the percentage holding this view has declined over time, but they also (inconsistently?) believe that too many people are in prison, and they tend to favor alternatives to incarceration for those convicted of property crimes or non-violent offenses. A majority of Americans say that courts are not even-handed in dispensing justice. According to a 2014 ABC/Washington Post poll, 54 percent of Americans believed that blacks and other minorities do not receive equal treatment in the criminal justice system. Underlying these figures are stark racial differences in perceptions of American criminal justice. For example, following the “not guilty” verdict in the 2013 trial of George Zimmerman, a white neighborhood-watch volunteer who shot and killed Trayvon Martin, an unarmed black teenager, 51 percent of whites approved of the verdict, whereas only 9 percent of blacks and 24 percent of Hispanics did so. Popular confidence in the legal profession is also low—since 1984, the percentage of respondents voicing “a great deal of trust” in law firms has never exceeded 17 percent. Simply put, there is a perception that American legal institutions are not working well.3
Whether this perception is correct is, of course, a matter of dispute. This book is designed to provide readers with the information and range of perspectives they need to arrive at their own assessment. To do so, it first describes the nation’s legal structures and the participants—judges, lawyers, and litigants—in the judicial process. Next, it examines the processes by which courts, from trial courts to the U.S. Supreme Court, resolve the cases that come before them and how judges reach their decisions. Finally, it surveys how courts participate in policymaking and analyzes the consequences of this judicial involvement in governing.
This book also analyzes various reform proposals, such as eliminating plea bargaining and permitting the use of illegally seized evidence at trial, so that readers may consider the likely consequences of the adoption of such reforms. In addition, it compares the legal arrangements in the United States with those in other countries. These comparisons highlight what is distinctive about the American legal system and show how other countries have dealt with legal problems similar to those in the United States.

Legal Systems

Legal scholars group the legal systems of the world into “legal families,” based on their origins and on similarities in their laws and legal institutions (see Table 1.1).4 The most influential families of secular legal systems, the common-law and civil-law (Romano-Germanic) families, originated in Europe. These legal systems have spread their influence throughout the world through colonialism and through the process of modernization in non-European countries. Nevertheless, many countries in Africa and Asia have also retained elements of their indigenous legal systems, and several Muslim countries have introduced religiously based Shari’a law as the foundation for their law and legal systems.
TABLE 1.1 Families of Legal Systems
The legal system of the United States belongs to the family of common-law legal systems. So, too, do the legal systems of other former British colonies, such as Australia, India, and Nigeria. Most legal systems on the European continent belong to the civil-law family, as do the legal systems of most Latin American countries and of former French and Belgian colonies in Africa and Asia. In some countries—for instance, in Japan—the legal system defies easy categorization into a legal family, because it has derived elements from French, German, English, and American law.

The Common-Law Legal Family

Although each country within the common-law legal family has its own legal institutions and bodies of law, common-law systems resemble each other in the general organization of their courts, in the rules of evidence and procedure they employ, and in the legal doctrines they have developed. Because these features of common-law systems derive from English law and legal practice, understanding of the origins of the common law in England is crucial to understanding other common-law systems.
The Development of the Common Law The Norman conquest of England in 1066 under William the Conqueror laid the groundwork for the development of the common law. To extend royal authority over their dominion, King William’s successors created permanent courts, staffed by judges appointed by the king, to administer the law of the realm. From the twelfth century onward, the English monarchs also dispatched “traveling justices” to rule in the king’s name in the county courts. By the thirteenth century, the kings had succeeded in establishing a common set of legal procedures and legal standards throughout England.
But what legal procedures were the royal judges to follow in deciding cases, and what legal principles were they to employ? The judges could not rely upon parliamentary enactments for guidance—Parliament’s emergence as a legislative body was still several centuries in the future. Nor could the judges rely much on royal edicts, for these did not extend to many of the legal problems confronting the judges. Rather, as William Blackstone observed in his famous treatise on the common law, the judges looked to a body of “unwritten law,” the common law, for guidance.5 In speaking of the common law as “unwritten,” Blackstone was emphasizing that the doctrines of the common law, unlike legislative enactments, “are not set down in any written statute or ordinance, but depend merely upon immemorial usage.” Common law was thus custom sanctioned by popular acceptance. Judges served as the “depositories of the law,” and their decisions served as “the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law.”6 Thus, the common law originated in judicial decisions, which enunciated authoritative legal principles, presumably drawn from the customs and practices of the society, in the course of resolving disputes between litigants.
These judicial decisions created a body of law that judges could draw upon to resolve the cases coming before them. Referring to precedent—that is, to the judges’ own earlier decisions or to those of their predecessors or colleagues—facilitated judicial decision making by giving judges standards that they could apply. Initially, “there was merely a tendency to establish a procedure, and perhaps adopt a few substantive principles which, taken together, constituted the custom of the court” and provided a standard for judicial decisions.7 Over time, however, as the practice of publishing written reports of judicial decisions developed, judges could consult the rulings of other courts. Over time, too, the authority of these precedents increased. This was reflected in the judges’ acceptance of the doctrine of stare decisis et non quieta movere, to stand by precedents and not to disturb settled points. Under the doctrine of stare decisis, common-law judges were obliged to conform their decisions to those that earlier judges reached in similar cases.
Despite the proliferation of legislation and administrative regulations over the last two centuries, judge-made law continues to play a role in common-law countries. In addition, the common law provides “a mode of treating legal problems rather than a fixed body of definite rules.”8 Thus, in dealing with statutes and other enactments, judges in common-law systems employ the same approaches to decision making, such as reliance on precedent, that they had developed for dealing with the common law. Recent legal developments therefore have not altered the basic character of common-law legal systems.
The Common Law in the United States
During the seventeenth century, most colonists immigrated to North America from England, and they brought the English legal system with them. When the United States declared its independence from England, the new states retained their common-law legal systems. Thus, like their English counterparts, American judges have enunciated legal standards in the absence of legislation to resolve disputes between litigants. This in turn has guaranteed American judges a major role in lawmaking.
Nevertheless, U.S. courts modified the body of common law that they received from England. In the decades following independence, American judges expunged aspects of the common law that reflected the aristocratic character of English society and were therefore inappropriate for the more democratic society being created in the United States.9 During the nineteenth century, American judges also adapted common-law doctrines that originated in an agrarian society to encourage economic development and accommodate industrialization.10 Finally American judges have never viewed precedent as binding to the same extent their English counterparts have. They have been more willing to overrule earlier decisions and alter the common law in response to changing circumstances.

The Civil-Law Legal Family

A second major family of legal systems is the civil-law, or Romano-Germanic, family. Civil-law legal systems are found on the European continent, throughout South America, and in various countries in Africa and Asia. The origins of the civil law, however, can be traced to the rediscovery of Roman law during the Middle Ages in Europe.
The Rediscovery of Roman Law
The creation of civil-law systems began with the intellectual revival during the twelfth and thirteenth centuries in Western Europe.11 The founding of universities and the spread of learning during this period led to the rediscovery of the highly developed body of law that had governed ancient Rome. Collected in the Emperor Justinian’s Corpus Juris Civilis, a systematic compilation or code of law dealing with relations between private persons, Roman law became the subject of law studies in major European universities. The study of Roman law promoted the notion that society should be governed by formal law, and it provided the vocabulary, categories, and concepts needed for the construction of a modern body of law.
This is not to say that European monarchs seized upon Roman law in order...

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