Structure of the American Legal System

The legal system is more than just courts!

• Let’s not forget the lawmakers: Legislatures, Executives, Administrative Agencies (The Bureaucracy)

• The assigned book (by Carp, Stidham & Manning) is fairly typical of books on this topic. It focuses on courts to the exclusion of all the other important players.

Classic Legal Theory

• Courts have no power to make laws

• Courts can only “find” law, or at best apply old law to new situations.

• So let’s start with the institutions that do have the right to make laws: Legislatures job is to “pass” laws.

Lawmaking Bodies

1 United States Congress

Lawmaking Bodies

1 United States Congress

50 State Legislatures

Lawmaking Bodies

1 United States Congress

50 State Legislatures

3000+ County Boards

18,000+ City Councils

School Districts

Special Districts

Legislatures are not hierarchical.

Different type of lawmaking

• Legislatures and Courts sometimes appear to be rivals but really aren’t. They make decisions in didfferent ways.

• Legislatures can did things courts can’t (or do only poorly)– Impose taxes– Spend Money

• Legislatures set general rules.• Courts respond to specific cases. (Dictum covers

any comments that go beyond a case decision.)

Lawmaking I

• Only a member of the House or Senate may introduce a bill …but anyone can write a bill (e.g., Presidential staff, groups/lobbyists)

• Bills are numbered consecutively within each chamber. HB1 ≠ SB1

• 10,000+ bills are proposed and fewer than 5 to 10% are enacted.

Lawmaking II

A bill must survive three stages to become a law:

1. committees (and their subcommittees),

2. the floor, and

3. the conference committee

A bill can die at any stage.

How a Bill Becomes a Law:The Short Version

Start in the House – Part 1

• Introduce the Bill

• Send it to the Relevant Committee

• Assign it to the Relevant Subcommittee

• Hold hearings & “Markup” Bill

• Approve a Subcommittee Version

• Approve a Committee Version

• Send it to the Rules Committee

Start in the House – Part 2

• Construct a “Rule” and Send the Bill to the Floor

• Consider Amendments (if allowed by “rule”)

• Vote on Final passage of the (Amended) Bill

• Send the Approved Bill to the Senate

• Wait for Senate Approval

Return Trip and Further Consideration

• The Senate Considers the Bill (Committee and Subcommittee Hearings and Votes, & Final Passage of the Bill

• Resolution of Conflict – The Conference Committee

• Final Passage of an Identical Bill in Both Houses

How a Bill Becomes a Law:The Long Version (Part 1)

How a Bill Becomes a Law:The Long Version (Part 2)

A Bill Becomes Law

• If The President signs a Bill that has passed by both the House and the Senate.

• If the President Vetoes the Bill, the House and Senate can re-pass the Bill each by a 2/3’s vote. Is they do so, the Bill becomes law without the President’s signature.***

Establishing a Dept. of Homeland Security

• Original Proposal (Joe Lieberman, D-RI), October 2001

• Presidential Endorsement, June 8, 2002• House (HR5005)

– Select Committee on Homeland Security– Passage 11-13-02 (299-121)

• Senate– Government Affairs Committee– Passage, 11-19-02 (90-9)

• Reconciliation in Conference

Bills come in all shapes and sizes

• One Extreme: The Sherman Anti-Trust Act (handout)

• The Other Extreme– Any Tax Bill– The Budget– Most contemporary legislation*

Statutes

• Statutes (Legislative bills signed into law by Executives) are general directives, unlike court decisions that apply to specific cases.

• A statute for example, defines a crime and sets a penalty. But a Court determines if John Doe or Jane Smith is guilty of that crime.

US Code Annotated

Delegation

• Congress does not have the time to handle every detail. It defers to agencies who develop expertise to accompany the mandate they are given.

• Delegation is also a form of delay. It involves a way of dodging or compromising a difficult political issue.

Building a Court System

• The Constitutional Convention (1787)

Two principal plans were offered:

– “The Virginia Plan”• A Supreme Court and lower federal courts

– “The New Jersey Plan”• A Supreme Court and existing state courts

Building a Court System

• The US Constitution -- Article III

“The judicial power …shall be vested in one Supreme Court …

Building a Court System

• The US Constitution -- Article III

“The judicial power …shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.”

Article III

• Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Article III

• Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state; --between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

Article III

• In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

• The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

The Constitution and the National Judiciary

• Article III of the Constitution establishes:

– a Supreme Court in which the judicial power of the United States is vested

– the original jurisdiction of the Supreme Court – life tenure for judges– judges receive compensation that cannot be

diminished during their service

Building a Court System

• The Judiciary Act of 1789– The Supreme Court shall have a Chief Justice

and 5 Associate Justices.– There will be 3 (regional) Circuit Courts

(staffed by 2 Supreme Court Justices and 1 District Court Judge)

– There will be 13 district courts (1 per state) and each staffed by a federal District Court Judge.

The Original Colonies/States

Building a Court System

• Evarts Act of 1891– Established the US Courts of Appeals while

abolishing the Circuit Courts (which existed as a dual appeals system until 1911).

– Designed to eliminate “circuit riding” by Supreme Court justices.

– 9 regions

Building a Court System

• Judiciary Act of 1925– Gave the US

Supreme Court what it wanted most: control over its caseload.

• In Federalist # 78, Alexander Hamilton argued that the judiciary would be the “least dangerous branch of government. It lacked the teeth of both the other branches of government; it had neither the power of the sword nor the power of the purse.”

The “Least Dangerous Branch”

• Today the federal courts are more powerful than Hamilton anticipated. Nevertheless, the courts still suffer the two basic limitations that Hamilton identified.

The “Least Dangerous Branch”

Three Layers of the Federal Courts

Geography of Courts of Appeals

The American Legal System

• The American legal system is a dual system:

– State courts

– Federal courts

• Both systems (usually) have three tiers:

– Trial courts

– Intermediate appellate courts

– High or supreme courts

State Court Questions

• How many states have their own court system?– All of them!

• How many state supreme courts exist?– Hint: 50 would seem a good guess.– How about 52?

State Court Questions II

• How many states have intermediate level courts of appeals?– Hint - Not all of them– CSM: 40

• How many cases do state trial courts handle each year?– Hint: In relative terms– Many more than the federal trial courts do.

The Courts in Colorado

History of the Colorado Courts

When Colorado became an official territory, a new Supreme Court was established. Its first threejustices were appointed by President AbrahamLincoln. This court held its initial session in Denveron July 10, 1861.

Colorado was admitted to the union as a state on Aug. 1, 1876.

The state’s original constitution provided for a Supreme Court with a bench of three justices, as well as four judicial districts, with one judge serving each

History of the Colorado Courts1876 – 4 judicial districts; 1 judge in each1881 – 7 judicial districts; 1 judge in each1887 – 9 judicial districts; 1 judge each, except Arapahoe County (incl.

Denver) with 21891 – 13 judicial districts; first Court of Appeals1893 – 2nd judge given to Pueblo area1895 – 2nd judge given to Colorado Springs area1905 – Supreme Court given 7 justices; first Court of Appeals abolished1913 – second Court of Appeals established for a four-year life1917 – second Court of Appeals abolished1921 – 14 judicial districts1945 – 15 judicial districts1953 – 16 judicial districts1958 – 18 judicial districts1963 – 22 judicial districts, the present number1970 – third and current Court of Appeals was established1977 – Supreme Court and Court of Appeals moved into current

building

Colorado Courts Today

• There are 22 Judicial Districts within the State of Colorado as established by the State Legislature in 1963. The last major revision was November 2001 with the consolidation of Broomfield in the 17th Judicial District. Changes in district boundaries require a two-thirds vote of each house of the legislature.

• As of July 1, 2006, the Colorado Judicial Branch has a total of 275 Judges and Justices: 7 Supreme Court Justices, 19 Court of Appeals Judges, 144 District Court Judges, and 105 County Court Judges. This excludes Denver County Court Judges (17), who are appointed by the Mayor of Denver.

• There are seven water courts, one in each of the major river basins (South Platte, Arkansas, Rio Grande, Gunnison, Colorado, White, and San Juan rivers). They are divisions of the district court in that basin.

The Colorado Supreme Court

Colorado Judicial Districts

Administrative Agencies

• The Government “Residual” (that which remains after we eliminate the courts, legislatures and chief executives)

• They are the alphabet soup of government

NATIONAL STATE LOCAL

ICC Licensing Boards

Zoning Boards

FDA Water Commissions

Park Commissions

SEC Motor Vehicle Bureaus

Port Authorities

FTC Tourism Tax Assessors

IRS Commerce Mosquito Control

Administrative Agencies

• Mixture of dependence and independence

• Creature of the legislature in most instances

• Diverse Powers:– Legislative (Make up rules and regulations)– Executive (staff/Inspectors to enforce rules)– Judicial (administrative hearings)

A Cancerous Growth or Fulfillment of Social Needs

• The rest of government has a short attention span:– Legislatures move from crisis to crisis– Courts from case to case

• Agencies work day & night (“Who you gonna call?”)

Controlling Administrative Behavior

• Fear of delegated authority

• Agencies make laws based on delegated authority. How are we protected from the abuse of power?

Controlling Administrative Behavior

• Internal – Supervision– Auditors– Reports, Records, Spot Checks

• External– Governing Laws– Administrative Procedure Act

Administrative Procedures Act of 1946

• Publish descriptions of central and field administration

• Make procedural rules public• Inform public of where they can get necessary

forms• Make rules and regulations publi• Give notice of changes to existing rules and

regulations• Allow public objection in hearings or in written

form

The Federal Register

CFR

Judicial Review of Administrative Agencies

• Our system of Checks and Balances involves form that just the 3 branches of the national government.

• A disgruntled individual may take an Agency to court only under certain circumstances:– The individual has exhausted all administrative

procedures– The individual must show standing (a financial

stake)

Judicial Review of Administrative Agencies

• Judicial review is “Narrow”;– Did the agency follow APA standards?– Did the agency follow its enabling legislation?

• If “YES” to both, courts will usually not overrule but will defer to agency “expertise”. The degree of deferral fluctuates over time and may be a function of the contemporary legal culture.