Resolved: the United States federal court system should be significantly reformed.

NCFCA TOPIC LECTURE

PRINCIPLES OF JUSTICE• “Justice is Blind”

• Justice = “The constant and perpetual disposition to render every man his due.” (Black’s Law)

• Justice must be fair and separated from human biases

• “Innocent Until Proven Guilty”

• It is better to find someone innocent when they are guilty than to find someone guilty when they are innocent

• Uniform Rule of Law

• Western Democracies – Law must be fixed and knowable

• The courts’ duty is to enforce the law

THE DIFFERENT FUNCTIONS OF JUSTICE• Retributive – Justice that is concerned with paying each man his “just deserts,” giving

men the due penalty for their crimes

• Deterrent – Justice that exists for the good society to prevent further crime. For example, society may have harsh penalties for murder to prevent future murders.

• Restorative – The part of justice that stipulates it is good for the criminal. By giving him a punishment and putting him in jail, justice posits that it can reform him.

• Restitute Justice – A fourth, controversial part of justice. The type of justice that posits victims should be repaid for the damages of the crime.

JUDICIAL REVIEW• Judicial Review is the power to strike down laws

• Laws are usually judged against a superior power, like treaties or the Constitution

• Courts then decide the case, holding the superior power over the conflicting law

• The Constitution does not explicitly give the judicial branch the power of judicial review

• This was decided in Marbury v. Madison

• John Marshall gave the federal courts this power, but it is implied in the Constitution

• Article VI: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

COURT PRECEDENT• Otherwise known as “Stare Decisis”

• Case precedent is the most important factor when courts are deciding cases (NOTE: it shouldn’t be… the law should)

• Whenever a case is decided, it creates three possible parts

• Majority Opinion – decided by a majority of the justices and is considered “controlling precedent”

• Dissenting Opinion – decided by a minority of justices and is considered “advisory precedent”

• Concurring Opinion – extra opinion decided by a minority of justices on the majority side of the argument and is considered “advisory precedent”

• Courts usually follow what they have ruled before

• Precedent can be overturned, but this rarely happens

THE FOURTH AMENDMENT• The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• Establishes the right of privacy for persons, houses, papers, and effects

• Establishes the rule of probable cause

• Establishes the rule of warrants before search and seizure

• The issue of warrants is given to the judicial branch

• Acts as a check on executive power

• Protects the individual’s right to due process

THE FIFTH AMENDMENT• No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

• Establishes the right of people to a grand jury

• Establishes that no one can be tried for the same crime twice (this does not count the appeals process) (also called Double Jeopardy)

• Establishes the right of people not to witness against themselves (“I plead the fifth”)

• Establishes the right of due process

THE SIXTH AMENDMENT• In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

• Establishes the right to a speedy and public trial for criminal cases

• Establishes the right to trial by your peers

• Establishes the right to be informed of the evidence against you (Habeas Corpus)

• Establishes the right to have witnesses at your trial

• Establishes the right to Counsel

THE SEVENTH AMENDMENT• In Suits at common law, where the value in controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

• Establishes the right to trial by jury for civil suits covering costs over twenty dollars

• Establishes that facts in these trials shall not be tried more than once

THE EIGHTH AMENDMENT• Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.

• Establishes that punishments should never be “cruel and unusual”

• Bans torture and strange forms of execution and torture

THE TWO TYPES OF TRIALS• All trials can be classified into two types

• Criminal trials – when someone is accused of committing a crime

• Always involves the state against someone accused of breaking the law

• Examples: Murder trials, tax evasion, theft, trespassing, traffic court, assault, rape, and battery trials

• Criminal offenses are either felonies or misdemeanors

• Civil trials – when two parties seek an official settlement

• When two individuals/organizations have a disagreement

• Examples: lawsuits, small claims, divorce settlement, intellectual property suits, contract enforcement, restitution of loss, constitutional lawsuits

ELEMENTS OF A CRIMINAL TRIAL• Judge presides and decides the sentence

• The jury decides the case based on the facts

• The bar separates the trial from the audience

• Ahead of the bar are the prosecution and defense

• Prosecution is on the left – brings the case

• Defense is on the right – defends the accused

• Courtrooms always have clerks to record everything that is said

• The bailiff is in charge of materials and times in the courtroom

THE JURY• The jury decides whether the defendant is “guilty” or “not guilty”

• Juries are chosen from the district that the defendant was accused in

• In most states, when you register to vote you automatically register for jury duty

• Fun fact: jury duty is the only constitutional obligation citizens have

• Juries are chosen by the prosecution and defense attorneys together before the trial

• Jury members can be dismissed for any number of reasons (e.g. personal issues)

• Possibly jury members are interviewed before they are chosen

• A jury always has a “jury foreman” who acts as chairman and spokesperson for the trial

• The jury has three options

• Decide defendant is not guilty

• Decide defendant is guilty

• Nullify the law

JURY NULLIFICATION

GRAND JURIES• Grand juries are independent from the courts

• The US is the only country that has grand juries

• Guaranteed by the Fifth Amendment for capital and infamous crimes

• Usually comprised of 16 to 23 jury members

• Grand juries investigate a case before it goes to trial

• They can examine witnesses and evidence

• They decide whether there is probable cause to take it to trial

THE APPEALS PROCESS• If one party has lost his case, he has the right to appeal

• Everyone has the right to appeal their case at least once

• There are two sides in the appeals process

• The appellate is the one appealing

• The appellee is the other party in the case

• Most appeals are final

• Appeals always go to a higher court – sometimes called an “appellate court”

THE APPEALS PROCESS CONTINUED

ELEMENTS OF AN APPELLATE CONSTITUTIONAL TRIAL• Convicted defendants can challenge the law itself

• Citizens who feel their rights are being violated can also sue the government in a civil trial

• The two sides are then called the Plaintiff/Petitioner and the Respondent

• The two parties submit briefs to the court before the trial

• Third parties can also submit briefs

• Constitutional trials decide matters of law rather than matters of fact

• In Circuit Courts, justices vote based on the facts of the case and case precedent

• Circuit court decisions hold precedential value but not as much as Supreme Court decisions

• The loser can petition for a writ of certiari to be heard at the Supreme Court

• The Supreme Court accepts around 1% of cases

CIRCUIT COURTS• Circuit courts are the federal courts of appeal

• 12 circuit courts are divided into different geographic areas

• The circuit courts hear appeals

• They often have the power to reject appeals

• Circuit court trials usually have three justices

• Unlike the trial level, the appellate level has the ability to decide the law

• There is no jury

• The trial level court decides the facts

• The circuit court can interpret the law just like the Supreme Court

SCOTUS – THE SUPREME COURT• The Supreme Court is the highest court in the US

• Theoretically there is no limit on the Supreme Court’s power

• Their decisions are final and cannot be reheard (except by themselves)

• There are nine Supreme Court Justices

• Justices are nominated by the President

• They also have to be confirmed by the US Senate

• Justices serve for a full life term

• The Supreme Court has a Chief Justice who acts as the chairman and spokesperson of the group

• When the Supreme Court makes a decision, the justices vote and the majority wins

• The Chief Justice does not have any more voting power than the other justices

COMPOSITION OF THE SUPREME COURT• The justices on the Supreme Court are members of political party

• Republican Justices:

• John Roberts (Chief Justice)

• Samuel Alito

• Clarence Thomas

• Antonin Scalia

• Democrat Justices:

• Stephen Breyer

• Ruth Bader Ginsburg

• Elena Kagan

• Sonia Sotomayor

• The one swing vote is Anthony Kennedy

THE POINT: SCOTUS IS POLITICAL

THE MARSHALL COURT• John Marshall was the first SCOTUS Chief Justice

• He defined the role of the Supreme Court in the US

• His Court decided Marbury v. Madison - 1803

• Gave the courts the power of judicial review

• Decided the treason case of Aaron Burr in 1807

• The first treason case in the US

• Set the standard for witnesses – must have at least two (prosecution had one)

• Worcester v. Georgia – 1832

• Defended the right of Cherokee Indians to their land in

• Was pro business and believed in Loose Constructionism

LOOSE CONSTRUCTIONISM V. STRICT CONSTRUCTIONISM• This was the primary judicial debate for the Founding Fathers

• Democratic-Republicans (like Thomas Jefferson) were for Strict Constructionism

• Federalists (like John Marshall) were for Loose Constructionism

• Basically it was a debate of literal wording v. implied meaning

• Loose constructionists interpreted the constitution to create a National Bank

• Strict constructionists said this was unconstitutional

• The Federalist Loose Constructionists won out

• Loose Constructionism is different from “Living Constitution”

ORIGINALISM V. JUDICIAL ACTIVISM/ “LIVING CONSTITUTION”• This is the main debate for today’s Supreme Court

• Originalism says the law should be interpreted as it was written

• Originalist justices go back and look at what the Founders said

• These are most of the Republican justices

• Other justices hold to Living Constitution

• They believe that the Constitution and the Courts are an expression of the will of people

• They read into the Constitution “implied rights”

• Living Constitution is generally the guiding philosophy of Liberal justices

PRE CIVIL WAR COURT• From 1930 to the Civil War, the biggest political issue was slavery

• The Chief Justice was Roger Taney, a Southern slaveholder

• Justices during this time believed that it was their role to enforce their politics through the court

• US v. the Amistad – 1841

• Slaves on a slave ship killed their captors

• The US ruled in favor of the slaves

• Dred Scott v. Sanford – 1857

• Ruled that the Constitution said slaves were property

• Ruled that no state (not even Northern States) could outlaw slavery

THE NEW DEAL ERA• The Supreme Court was conservative during the New Deal

• They voted down a lot of FDR’s policies

• The Court Packing Scandal

• FDR proposed a bill that would increase the number of justices to 15

• FDR would appoint these all from his own Party

• His proposal was defeated and he was called a tyrant

• Schechter Poultry Corp. v. United States – 1935

• Struck down FDR’s National Industrial Recovery Act

• Expanded the Commerce Clause to include commerce inside the state

THE WARREN COURT• Led by Chief Justice Earl Warren

• Court was Liberal and mirrored the ethos of the era

• Supported a number of Great Society reforms

• Brown v. Board of Education - 1954

• Reversed the Plessy v. Fergusson decision – struck down “Separate but Equal”

• Miranda v. Arizona – 1961

• Created mandatory “Miranda Rights”

• Mapp v. Ohio – 1961

• Created the “Exclusionary Rule”

• Roe v. Wade – 1973 (Chief Justice Warren Earl Burger)

• Created the “right to abortion”

THE CONSERVATIVE REVOLUTION• When Ronald Reagan was in office, a number of the liberal justices retired

• Reagan appointed conservative justices

• Chief Justices were William Rehnquist and then John Roberts (current)

• The court has only become more conservative since the Great Society

• Most decisions have either been consistent with past decisions or have moved in a conservative direction

• Planned Parenthood v. Casey - 1992

• Made abortion harder by allowing states to pass laws to protect life

• US v. Lopez – 1995

• Congress passed the Gun Free School Zones Act under the Commerce Clause

• Said Commerce Clause activity had to actually be commercial in nature

FEDERAL SPECIALTY COURTS• Foreign Intelligence Surveillance Court

• Court of International Trade

• Court of Federal Claims

• United States Tax Court

• Court of Appeals for the Armed Forces

• Court of Appeals for Veterans Claims

FOREIGN INTELLIGENCE SURVEILLANCE COURT (FISC)• Often called the Secret Court or the FISA Court

• Established by FISA (Foreign Intelligence Surveillance Act)

• Most dealings are kept secret and court records are not published

• Oversees the request for surveillance warrants

• Deals with surveillance of foreign individuals and entities

• The agency makes a request for a warrant (like the NSA or FBI)

• They present their evidence and need before a judge

• The judge will most likely issue a warrant

• The FISC only has prosecution – no defendants

• Case idea: public advocate in the FISC

• Has a ton of power – often called a “Parallel Supreme Court”

US TAX COURT• Federal trial level court

• Adjudicates disputes over federal income taxes

• The tax court is always the litigant vs. IRS experts

• The US tax court is the only court in which you have to pay the full charged amount before you go to court

• This disincentivizes people from taking tax matters to court

• Case idea: remove the up-front payment system

• Some people legally consider the tax court under the executive branch because it’s part of the enforcement of the IRS

COURT OF INTERNATIONAL TRADE• The court is composed of nine sitting judges

• The court is in New York City but has the ability to move anywhere – including foreign nations

• The court reviews decisions made by customs officials

• May only hear matters of international trade

• Enforces anti-dumping laws and efforts to countervail customs

• There is one exception to the jurisdiction of the tax court

• Under NAFTA, a litigant from Canada or Mexico may request permission to have his case heard under a special, bi-national tribunal

COURT OF FEDERAL CLAIMS• Hears monetary claims against the US federal government

• Hears cases involving contracts with the federal government

• Hears claims of monetary damages that come from federal regulations, laws, or the US Constitution

• Has jurisdiction over cases no matter where they occur in the country

• Judges serve for a term of 15 years and can be reappointed

• The President appoints the justices with the Senate’s consent

• The Court of Federal Claims have concurrent jurisdiction with federal district courts when the claim is for less than $10,000

COURT OF APPEALS FOR THE ARMED FORCES• Has worldwide appellate jurisdiction for active duty members of the Armed Forces

• Hears cases from military tribunals

• Also hears cases from the intermediate appellate courts: the Army, Coast Guard, and Navy-Marine Courts of Appeal

• Composed of five civilian judges who serve for 15 year terms

• Judges are appointed by the President and confirmed by the Senate

• The Armed Forces Court of Appeals is a Martial Court

• Martial Courts are courts run by the military

• Martial Courts are usually decided only by judges and are not open to the public

COURT OF APPEALS FOR VETERANS CLAIMS• Established under the authority of Article I of the Constitution

• Has exclusive jurisdiction to review decisions from the Board of Veterans’ Appeals

• Even though the court is part of the US Department of Veterans Affairs, it is an independent federal court

• Judges serve 15 year terms

• Judges are appointed by the President and confirmed by the Senate

WHERE ARE TERRORISTS TRIED?• Should terrorists be tried as criminals or warriors?

CORPORATE PERSONHOOD• There has been a lot of debate surrounding the SCOTUS

Citizens United decision

• You’ve probably heard the phrase “a corporation is a person”

• This is actually equivocation most times you will hear it used

• There are two types of persons

• Actual persons – This is the ordinary human being. Isaiah McPeak and Donald Trump both count as actual persons for purpose of law

• Juridical persons – This is when an entity or organization has a judicial “personhood” for purposes of the law. Churches, businesses, governments, government agencies, schools, and nonprofit organizations all have juridical personhood. This is simply a way of making it so that these entities can go to court and file forms as a whole.

THE EXCLUSIONARY RULE• The exclusionary rule is a way of enforcing the 4 th Amendment

• It was established as a uniform rule for courts in the SCOTUS decision Mapp v. Ohio

• Says evidence cannot be admitted in court if it was obtained in violation of the 4 th amendment

• For instance, if police found marijuana by searching someone’s basement when that person was not home, the court would not accept that evidence

• This is one of the most controversial rules of the courtroom

• “The criminal is to go free because the constable has blundered”

• Is it worth the cost to allow a few guilty men to go free to create disincentives for violating the 4 th Amendment?