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SUMMARY OF KEY CONCEPTS

Section 1. The Nature of LawThe law is comprised of the legal principles andstandards applied by the courts in deciding thecontroversies brought before them. Some mightbelieve that the law is found solely in the legisla-tive acts of Congress and the state legislatures. Butthose statutes are only one source of the law. It isfound also in the U.S. Constitution, state constitu-tions, government regulations, and the decisionsof the courts. The latter form of law is known as“common law” or “case law.”

The body of law is so vast and complex that nolawyer can possibly know it all. In law school, stu-dents learn the major principles of law and how toapply them to the facts of different situations. Theylearn to reason logically, and how to find the law.But the law is not static because new statutes, reg-ulations, and court decisions constantly add to thebody of law, and often change the legal rules es-tablished in earlier days. Even constitutions arechanged now and then.

As vast as the body of law is, it can never pro-vide a precise answer to every possible situation.No one can foresee every possible situation. Con-sequently, the courts often must derive legal prin-ciples from the entire body of law—constitutions,statutes, regulations, and prior court decisions—

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and craft a resolution to the controversies broughtbefore them. Thus, the body of common law grows.

Unfortunately, the law often lacks precision.Ambiguity, poor organization, and inconsistencycreate problems for attorneys and the courts. Sim-ply reading a statute or court decision does not al-ways resolve a legal issue which that statute or de-cision was intended to resolve.

When laws conflict with each other, several ba-sic rules apply. Statutes take precedence overcourt decisions. When several state statutes are in-consistent with each other, the most recently en-acted governs. The same rule applies to conflictsbetween federal statutes. However, inconsisten-cies often raise the question of legislative intent.When statutes are unclear, the courts often at-tempt to discover the intent of the legislature.

Unfortunately, laws that appear to be stated in“clear and simple language” can be the most difficultof all to understand and apply. The First Amend-ment states, in part, that “Congress shall make nolaw respecting an establishment of religion, or pro-hibiting the free exercise thereof. . . .” Before one can understand that statement, however, she mustknow the meaning of “religion”—or at least what theFounding Fathers thought it to be. Does it mean “or-ganized” religion, as in congregations, which meet insynagogues, temples, or churches? Does the FirstAmendment protect a solitary individual’s practiceof a faith or belief that might be shared by no other

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person on earth? The court system exists to dealwith exactly this type of uncertainty about the lawand to resolve the competing interests that alwaysarise between opposing parties.

A free society requires a rule by law—not bythe prejudices or whims of public officials. Thatmeans that courts must base their decisions uponestablished legal principles and sound logic. But,of course, judges are humans with their own biasesand life experiences. If a legal assistant is to workeffectively in the law, he must appreciate the im-portance of logical analysis and recognize how dif-ficult it can be to know which legal principlesshould apply to a given situation. One must resistthe tendency to adopt the “obvious” conclusionwhich quickly comes to mind.

One thing that is generally clear is the distinc-tion between criminal and civil law, whether fed-eral or state. Criminal law prohibits and punishesconduct that is so serious that it offends society atlarge. Criminal offenses can be punished by im-prisonment or death—violations of civil law maynot. Even when there is no single individual victimof a criminal act, the concept of criminal law is thatall of society is harmed by that act. For that reason,the plaintiff in every criminal case is the govern-ment acting in the name of “the people.”

Civil law governs “private” relationships be-tween persons, such as contracts, property rights,marriage and parenthood, and a person’s duty notto harm others. Civil law also regulates “public” re-lationships, including public education, the elec-tion of public officials, the licensing of attorneys,and the operation of the court system. Sometimes,civil law (e.g., marriage) is reinforced by criminallaw (prohibiting bigamy, for example). In the sameway, criminal law prohibits election fraud, fraud inprivate contracts, and the practice of medicinewithout a license.

There is a hierarchy of legal authorities withfour levels. Constitutional law is the highest legalauthority, followed in descending order bystatutes, regulations, and common law. Constitu-tional law establishes a system of government anddetermines the powers and limitations of that gov-ernment. Federal and state statutes implement thepowers granted by the U.S. Constitution and by thestate constitutions, respectively. The constitutionsestablish basic principles, and the statutes spellout the details of the law. No other legal authoritymay conflict with constitutional law. In the sameway, statutes override any conflicting regulation orcommon law decision. Government regulations,and the court decisions which interpret and applythem, are known as administrative law. Executiveorders issued by the President or a state governor

are also part of administrative law. As the lowestrank in the hierarchy, common law must yield toregulations, statutes, and constitutions.

Common law is often called “judge-made” law,simply because it is found in the decisions writtenby judges. Although at the bottom of the hierarchy,it continues to have enormous importance in ourlegal system. That is because so many legal ques-tions lie beyond the scope of existing statutes andadministrative law. In that circumstance, a courtusually relies upon earlier court decisions to find arule of law for the controversy before it. When acourt relies upon an earlier case, that earlier caseis known as a precedent. The rulings by the U.S.Supreme Court and the state courts of last resort(in most states, known as the “supreme court”)provide the most important precedents.

Courts always follow the highest legal author-ity that applies to the facts of any given case. Thus,a court will use common law only if no higher au-thority can be found to resolve a controversy. Re-gardless of the legal authority being applied, thecourt must always apply its own legal analysis todetermine how that legal authority applies to thefacts of the specific case before it. Thus, statutorylaw becomes stamped with the views of the judgeswho apply it to particular cases. Sometimes, Con-gress and the state legislatures revisit a statute andamend it because they are displeased with the in-terpretation that the courts have applied to theoriginal words of that statute.

The U.S. Constitution establishes a division ofpowers between the federal and state govern-ments. Some powers, such as bankruptcy, patentsand copyrights, and coining money, are reservedexclusively to the federal government. Other pow-ers, such as the conduct of the election of federalofficials, are delegated to the states within certainlimitations established in the Constitution. Anypower not given to the federal government, and notprohibited to the states, becomes a power of stategovernment, but all state powers are subject to thelimitations placed upon them by the Constitution.

Article VI, Section 2, of the Constitution isknown as the Supremacy Clause. It states that fed-eral law (the Constitution, and federal statutes andtreaties) shall be the Supreme Law of the Land. Andit specifically requires the judges of state courts tobe bound by federal law. Therefore, state constitu-tions and state laws must not conflict with the U.S.Constitution or other forms of valid federal law—treaties, administrative regulations, etc. Not onlyare state constitutions and statutes subordinate tofederal law, but so are state administrative law andthe actions of state courts, officers, and employees.Of course, a federal statute or executive action is

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not valid federal law if it conflicts with the Constitu-tion. So, an unconstitutional presidential action, oract by Congress, cannot override a valid state law.

Cities, counties, and other local agencies arecreatures of state government. They, too, mustcomply with the U.S. Constitution and other fed-eral laws. Of course, they also are subject to theconstitutions and statutes of their states. Conse-quently, city and county ordinances can be chal-lenged under state statutes, the state constitution,the U.S. Constitution, and federal statutes.

Questions under the Supremacy Clause oftenarise in state and federal courts. State laws are chal-lenged as being unconstitutional, or on groundsthat they conflict with some other federal law.When courts examine state or federal statutes forpotential conflict with higher legal authority, theyare exercising the power of judicial review. In effect,the court is faced with two conflicting laws. Whichone shall the court enforce? In every case, if thecourt finds a genuine conflict between the two, thecourt will enforce the higher legal authority. In anyconflict between state and federal law, the federallaw is always the superior legal authority, and mustbe enforced.

The principle of judicial review was establishedby the U.S. Supreme Court in Marbury v. Madison, 5U.S. 137 (1803). In that case the Supreme Courtfound unconstitutional a federal statute whichwould have granted the courts more power thanthe Constitution permitted. In rejecting an illegiti-mate gift of power from the Congress, the SupremeCourt simultaneously claimed for the courts thepower to hold congressional acts to be unconstitu-tional. Judicial review is not mentioned in the Con-stitution, but is the result of the Supreme Court’sown interpretation of the judiciary’s role under theConstitution. Of course, without judicial review, theconstitutional system of limited government mighthave disappeared, as Congress and the Presidentclaimed for themselves ever greater powers.

When interpreting the Constitution andstatutes, the courts generally follow the precedentsset in earlier court decisions. In other words, thecourts do not often make a dramatic departure fromtheir prior interpretations of the Constitution. Theimportance of this continuity in constitutional prin-ciples is difficult to overemphasize. It prevents con-stitutional law from becoming whatever the major-ity of Supreme Court justices—the majority of themoment, perhaps—simply prefer that it be. Judicialdiscipline requires that the justices honor earlierdecisions with which they might strongly disagree.

Decisions by state courts or lower federalcourts on federal constitutional law do not oftenforge new territory. Instead, they simply apply prior

Supreme Court decisions to the cases before them.When a clearly applicable Supreme Court decisioncannot be found, then state and other federal courtssometimes reach their own innovative holdings ona constitutional question, but those decisions are al-ways subject to reversal by the Supreme Court.

Not only must a statute not conflict with con-stitutional law, there also must be actual constitu-tional authority for government to legislate on thesubject of that statute. That authority to legislatemight be:

• explicitly expressed in the words of theconstitution;

• implied by the provisions of the constitution;or,

• inherent in the nature of government.

For example, the U.S. Constitution gives expressauthority for Congress to define and punishcrimes. The authority to regulate immigration isnot expressed in the Constitution, but is implied bythe express authority to grant citizenship and reg-ulate foreign commerce. Although the Constitutiondoes authorize Congress to raise an army andnavy, if military forces had not been mentioned, itis likely that the Supreme Court would have upheldtheir establishment as an exercise of the inherentself-defense power of a sovereign nation.

Section 2. Laws of the StateGovernmentsThe legislative authority of the state governments isfound in the Tenth Amendment to the U.S. Constitu-tion (the “reserved powers” clause) and in the vari-ous state constitutions. States must meet a consti-tutional authority test for all state statutes andpolicies. But that test is less stringent, because theTenth Amendment reserves to the states all powers“not delegated to the United States by the Constitu-tion, nor prohibited by it to the states. . . .” Thus, thestates have all governmental powers not mentionedin the Constitution. That gives enormous signifi-cance to the general police powers of the states.

The general police powers of the state govern-ments encompass the protection of public health,safety, welfare, and morals. The broad scope hascaused the courts to uphold a broad range of statelaws that find no specific grant of authority in ei-ther the U.S. Constitution, nor in the state consti-tutions. Thus, the states are the greater beneficiar-ies of the “inherent powers” concept. Inherentpowers derive from the fundamental purpose ofgovernment: to preserve the peace and provide forthe general welfare.

Because state police powers are so broad, thecourts tend to uphold any state policy that pro-tects public safety, health, welfare, or morals. Theexceptions occur when the state policy conflictswith the U.S. Constitution or state constitution,particularly any guaranteed individual freedoms.States routinely do such things as regulating thefreedom of parents to educate their children athome, dictating the retail price of milk, and requir-ing owners of ocean-front property to provide freepublic access across their property to the beach.Each of these policies is based upon the state’sgeneral police powers.

Although federal law is supreme, in many areasthe state and federal governments share concur-rent powers. That is, each level of government isfree to legislate on the same subject matter. Themost obvious concurrent powers are to collecttaxes, define and punish crimes, defend againstarmed invasion, and spend public monies for thegeneral welfare. The state and federal govern-ments also regulate banks and the sale of securi-ties (e.g., stocks and bonds), prohibit variousforms of discrimination in employment, and estab-lish pollution standards for motor vehicles. Be-cause of the Supremacy Clause, none of these statelaws may conflict with federal law. Therefore,states may establish stricter pollution laws, butthey may not exempt vehicle manufacturers frommeeting federal standards. In other words, statelaws may not defeat the purpose of federal law.

All states in the Union have enacted variousstatutes based upon model statutes proposedjointly by legal scholars of the American Law Insti-tute and the National Conference of Commissionerson Uniform State Laws. These enacted statutes areknown as the “Uniform Acts.” Their adoption is en-tirely at the discretion of each state legislature, andsome states adopt some Uniform Acts in a modifiedform. The purpose of these acts is to establish com-mon legal standards, rules, and procedures for mat-ters that often “cross” state boundaries. Examplesof widely adopted Uniform Acts include:

• Uniform Commercial Code;

• Uniform Partnership Act;

• Uniform Child Custody Jurisdiction Act; and,

• Uniform Anatomical Gifts Act.

One benefit of Uniform Acts is the body of case lawthat develops based upon them. Although case lawfrom one state is only persuasive authority in thecourts of another state, when the statutes areidentical, the case law of the various states tendsto develop common concepts. It would defeat thepurpose of the Uniform Acts if the courts of each

state imposed their unique interpretations uponidentical statutory language. For that reason, statecourts give exceptional weight to the interpreta-tions already made in other jurisdictions.

Except for Louisiana, which follows French le-gal tradition, the American system of law is basedupon the English system developed in medievaltimes. As a court system developed in England,there was very little statutory law upon which tobase the court’s decisions. Instead, the judgesmade their rulings based upon common culturalvalues, and gradually came to rely on the decisionsmade by other courts in earlier cases. Those priordecisions became precedent, establishing therules of law to be followed when similar casescame before the courts in later years. Over time,these precedents became known as the “commonlaw,” which was so called because it was intendedto be “common” to the entire English nation.

Those early English courts became known as“courts of law.” While a great improvement overthe unpredictable decisions of hereditary lords—who held quasi-judicial powers before the courtsystem was developed—the courts of law came toenforce the common law with little flexibility. Oldlegal principles were applied even after they losttheir relevance to changing times, and the law be-came so rigid that it often bore little resemblanceto justice, in any human sense.

Consequently, a second, parallel court systemwas established to provide a remedy where thecommon law turned a blind eye to justice. Thesewere known as the “courts of equity.” Their stan-dard was fairness, rather than rigid adherence toprecedent. In most of the United States, the judicialfunctions of law and equity have been combinedwithin a single court system.

Common law continues to be an essential partof the American system, and courts attempt to fol-low precedents closely, so long as the result is nota grave injustice. American courts will depart fromprecedent when changing social and economicconditions render earlier common law principles ir-relevant to modern realities. In effect, “new prece-dents” are established, and common law becomesan evolving body of legal principles. In practice,this evolution is a very gradual process. In addition,departure from established precedent is ratherrare in trial courts and unusual in the lower appel-late courts. The most dramatic changes in commonlaw usually occur in the decisions of the statecourts of last resort. Once made, those new prece-dents tend to stand undisturbed for many years.

When the U.S. Constitution was being drafted,a key concern was the sanctity of state laws and of-ficial state acts. Would the courts of one state try


to overturn the marriages, wills, and contracts thatanother state had officially recognized? Wouldcourt judgments from one state be enforceable inother states? The result of this concern was theFull Faith and Credit Clause in Article IV, Section 1,of the Constitution.

This clause requires—with very few excep-tions—that the courts of each state must recog-nize and uphold the statutes, administrative lawand court judgments, and official records of allother states. Congress has enacted statutory pro-cedures for authenticating official state and federalgovernment records.

One exception to Full Faith and Credit occurswhen a state has acted without proper jurisdic-tion—that is, without legal authority—over theperson or matter involved. A second exception oc-curs when to uphold a particular action would vio-late public policy (i.e., the well-established con-science of society regarding human relationships).For example, public policy concerns might cause aUtah court to refuse enforcement of a New Jerseyjudgment on a gambling debt incurred in a New Jer-sey casino.

The U.S. Supreme Court has held that a state’sjurisdiction may be examined by the courts of an-other state before giving full faith and credit tocourt judgments of other states. However, if ajudgment appears to be the official record of acourt of general jurisdiction (i.e., a court of unlim-ited trial jurisdiction), there is a presumption thatthe court had proper jurisdiction. Milliken v.Meyer, 311 U.S. 457 (1940). Of course, this pre-sumption may be challenged by evidence thatproper jurisdiction was actually lacking. If the ju-risdiction is found to have been proper, a statecourt is prohibited from exercising any form of ju-dicial review over the decision made in the court ofanother state.

The question of state residency often has beenthe basis for examining the jurisdiction of anotherstate. A classic example is the controversy over so-called “quickie” or “easy” divorces granted by onestate to the citizens of another state. Before themodern era of “no-fault” divorce laws, many peo-ple traveled from their own “strict standard” statesto seek divorce in the courts of states with more re-laxed standards. Thus, one could divorce a spousefor reasons of “irreconcilable differences” withoutthe necessity of proving such conduct as infidelityor physical abuse. Similarly, people who wished toremarry as soon as possible would travel to stateswhere the divorce decree became final immedi-ately, rather than endure the statutory waiting pe-riod of their home state. Because these personswould return to their true home state immediately

after obtaining the divorce decree, the jurisdictionof the “foreign” state could be challenged in thecourts of their home state, and the divorce decreemight not be recognized there.

Although only the federal government is per-mitted by the Constitution to regulate interstateand foreign commerce, the meaning of that restric-tion is not always clear. By enacting the UniformCommercial Code, the states have established astandardized set of rules for conducting interstatecommerce. How can that be constitutional? Theanswer lies in two parts:

• Congress has not enacted a uniform law forcommercial contracts in interstatecommerce—which it clearly could do.

• State laws affecting interstate commerce areusually valid if they do not impose excessiveburdens on, or discriminate against,interstate commerce.

If Congress were to enact a “Federal Uniform Com-mercial Code,” the existing state laws would be-come suspect, and subject to a constitutional chal-lenge. Since no such federal act exists, the UniformCommercial Code actually facilitates interstatecommerce by establishing uniform standards forinterpreting and enforcing commercial contracts.Since it does not impose an excessive burden oninterstate commerce, it does not violate the con-stitutional protections for interstate commerce.

Basically, it is the interstate and foreign aspectsof commerce that states may not regulate. For ex-ample, the states may not restrict the destinationsfor the airline or trucking industries, but they mayimpose highway speed limits on interstate truckersand specify the landing fees at public airports serv-ing interstate flights, so long as those state actionsdo not impose unreasonable burdens.

Section 3. The State andFederal CourtsThere are two parallel court systems in the UnitedStates. The state courts—including county, parish,municipal, and other local courts—apply state andlocal law, primarily. However, they are bound torecognize and enforce the Supreme Law of theLand (i.e., federal law) as well. The federal courtsapply state and/or federal law—whichever is ap-propriate to the case before them—but alwaysgive primacy to the Supreme Law of the Land.

Both state and federal courts hear civil cases(e.g., lawsuits) and both hear criminal cases. Sometypes of cases arising under state law (probate andfamily law, for example) rarely find their way into

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federal courts. A fundamental question before thecourt in every case is its authority to hear and de-cide that controversy.

The authority of a court to hear and determinea case is called its jurisdiction. There are three ba-sic types of jurisdiction:

• subject matter jurisdiction;

• in rem jurisdiction; and,

• personal jurisdiction.

Under the Fifth and Fourteenth Amendments’ dueprocess clauses, a court must have subject matterjurisdiction, and also personal jurisdiction overthe defendant. Federal courts receive their juris-diction from the U.S. Constitution and the federalstatutes implementing it. State courts receive theirjurisdiction under the Supremacy Clause, by impli-cation of the Tenth Amendment, and from stateconstitutions and statutes.

Subject matter jurisdiction is the court’s au-thority to determine the type of case before it. Sev-eral federal courts have very narrow subject mat-ter jurisdiction: the Bankruptcy Court, Tax Court,Court of International Trade, etc. Courts with un-restricted subject matter jurisdiction are known ascourts of general jurisdiction.

In rem jurisdiction is the court’s authority todetermine the status of real or personal propertylocated within its geographical territory. A com-mon example is a suit to quiet title (i.e., a suit toresolve uncertainty about legal title to property).In rem jurisdiction also arises when a ship or air-craft is present within the territory of the court’sjurisdiction.

Personal jurisdiction (also known as in per-sonam jurisdiction) is the authority of the courtover the particular defendant being sued, and itspower to determine that person’s legal rights, du-ties, and liabilities in that case. Plaintiffs automati-cally accept a court’s jurisdiction when they file alawsuit in that court, so personal jurisdiction overthe plaintiff is never an issue.

Personal jurisdiction over a civil defendant de-pends upon both geography and proper service ofprocess. Service of process is the delivery of courtdocuments (e.g., a summons or subpoena) to theperson named in them, so that she might appear incourt to respond. The usual method is personalservice, done by hand delivering the documents tothe defendant or (in some states) leaving them witha responsible person at his residence or office.

An appearance occurs whenever a person orhis attorney files written documents with the court,or is physically present in court for the purpose ofaffecting the outcome of the proceedings. A defen-

dant who makes a general appearance has acceptedthe court’s jurisdiction and cannot later challengeit. A general appearance is one in which the defen-dant addresses the merits of the case. Defendantswho want to challenge the court’s personal juris-diction over them make a special appearance forthat limited purpose. A special appearance does notconstitute acceptance of the court’s jurisdiction.

Long arm statutes permit a state’s court to ex-ercise jurisdiction over persons (individuals andcompanies) that are located far beyond their geo-graphical territory. Long arm jurisdiction generallyis based upon that individual or company havingsome form of involvement in events occurringwithin the state claiming long arm jurisdiction. Ad-vertising and selling products within the statecould establish the “minimum contacts” requiredto establish jurisdiction.

Long arm criminal jurisdiction has its roots incenturies-old international maritime law. So thatcriminals may not evade punishment for crimescommitted on the high seas, international law gavejurisdiction to the nation where the ship next madeport. In modern times, that jurisdiction is shared bythe nation where a ship or aircraft is registered.Some federal statutes extend United States jurisdic-tion to persons who participate in criminal activityoutside of the U.S., which substantially affects Amer-ican national interests. The most famous examplewas the apprehension of Panamanian dictator Gen-eral Manuel Noriega, who was arrested by Americantroops in Panama (following the 1989 U.S. invasion ofthat nation). He was transported to the UnitedStates, where he was convicted of aiding the trans-portation of illegal drugs into the United States.

Criminal defendants who are apprehended inanother jurisdiction—another state, or a foreignnation, for example—are returned to the stateclaiming jurisdiction through a process known as“extradition.” The U.S. Constitution provides formandatory extradition of fugitives who flee to an-other state (Article IV, Section 2). The UnitedStates has extradition treaties with many foreignnations. Most states have adopted the UniformCriminal Extradition Act which establishes uni-form procedures.

In both civil and criminal cases, questions ofvenue and forum often arise. Venue is a matter ofgeography—should the trial be held in Houston orDallas? In criminal cases, a change of venue issometimes granted to avoid the affects of prejudi-cial pretrial publicity in the community where thecrime was committed. Forum is a matter of state orfederal court—should the defendant be prose-cuted under federal drug laws, or state drug laws?In civil cases, if both federal and state courts have


jurisdiction, the plaintiff may file in either one. Ifthe case is filed in state court, the defendant mayask that the case be removed to federal court.

The courts of most states are organized in athree- or four-tier system, with the top tier occu-pied by a single court of last resort. In most states,the court of last resort is known as the “supremecourt,” but in New York the Supreme Court is a trialcourt of general jurisdiction. Most states have oneor two tiers of trial courts that hear evidence andreach decisions about the facts and the law. Wheretwo tiers exist, the lower court usually has limitedjurisdiction. Most states also have a small claimscourt which hears cases without the participationof attorneys.

The losing party in a court case usually mayrequest that the decision be reviewed by a highercourt. In civil cases, both parties sometimes ap-peal different aspects of the decision. The right torequest a review, however, is no guarantee that ahigher court will grant the review unless there is astatutory right to review. When a higher court re-views a lower court decision, its review is usuallylimited to legal and procedural issues.

Generally speaking, questions of fact are de-termined finally and forever in the trial court. Atrial court’s procedures and its rulings on ques-tions of law, however, are subject to review. In or-der to gain a review, the appealing party must haveraised that objection or legal argument during thetrial. The party appealing the decision is called theappellant or petitioner. The opposing party iscalled the appellee or respondent. A party’s statusas appellant or appellee has no relationship to be-ing either the plaintiff or defendant at the trialstage. Some of the common grounds for appeal ofa trial court decision are:

• lack of proper jurisdiction in the trial court;

• incorrect application of the law to the facts ofthe case;

• unreasonable or arbitrary action taken by thetrial court without due consideration of thefacts and the law (termed an “abuse ofdiscretion”);

• incorrect instructions to the jury about thelaw to be applied;

• incorrect rulings on the admissibility ofevidence; and,

• premature dismissal of a lawsuit withoutpermitting the plaintiff to revise hisallegations and present evidence to supportthem.

At times, an attorney must walk a fine line be-tween his duty of vigorous representation and the

risk of presenting a frivolous appeal. This dilemmaraises the same ethical issues which were dis-cussed in Chapter 3. An appeal is considered to befrivolous when it fails to raise any relevant legalquestion that the court could resolve, or when anobjective attorney would recognize that it is com-pletely without merit and has no prospect of suc-cess. For fear of discouraging vigorous representa-tion, the courts are reluctant to impose penaltiesunless it appears obvious that the attorney hasacted in bad faith.

The appellate court hearing is very differentfrom the trial. The facts have been established bythe trier of fact—whether judge or jury. On appeal,the issues are legal, not factual. Harmless errorswill not cause reversal of the trial court’s decision.The appealing party must have suffered an injus-tice for the trial court decision to be set aside.

Most appeals end with the state court of lastresort. However, a state court case may be ap-pealed to the federal courts if there is a substantialquestion of federal law. Theoretically, one can ap-peal such a case “all the way to the SupremeCourt.” In reality, however, the Supreme Court ac-cepts very few petitions for review.

The U.S. Constitution establishes a SupremeCourt and authorizes Congress to establish trialcourts and additional appellate courts. The U.S.District Court serves as the trial court of general ju-risdiction, and the Courts of Appeals serve as theintermediate appellate courts. Congress has estab-lished some special courts of limited jurisdiction(e.g., Bankruptcy Court) and a completely separatemilitary court system (the Courts Martial).

The Constitution grants federal courts the ju-risdiction over all actions, civil and criminal,brought under federal law. This is known as federalquestion jurisdiction. The statutes and actions ofstate and local government may be challenged infederal court if they conflict with the U.S. Constitu-tion or other federal law. In addition to federalquestion jurisdiction, the Constitution providesfor federal jurisdiction:

• whenever the United States is a party to alawsuit;

• whenever a state is a party to a suit, and theopposing party is another state or the citizenof another state;

• in lawsuits between a state or U.S. citizen anda foreign nation or a citizen of a foreign nation;

• when foreign diplomats are parties to theaction; and,

• in lawsuits under state law between citizensof different states.

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Federal courts have concurrent jurisdiction(together with state courts) over lawsuits arisingunder state law if diversity of citizenship existsand the amount in controversy exceeds a mini-mum amount set by Congress (currently $75,000).The original reason for providing federal jurisdic-tion in diversity cases was the fear that the courtsof one state might favor parties who were citizensof that same state. Federal jurisdiction was in-tended to provide a neutral court for lawsuits be-tween citizens of different states.

There are some exceptions to concurrent ju-risdiction in diversity cases. In multiple-partycases, if any one defendant and any one plaintiffare citizens of the same state, the federal courtswill not have concurrent jurisdiction. Of course, di-versity of citizenship is required only if the basisfor the lawsuit arises under state law—it is neverrequired for cases arising under federal law.

Federal courts can take jurisdiction in somecases arising under state law, even if diversity doesnot exist. If a case is in federal court for an issuearising under federal law, that court can assume ju-risdiction over state law claims arising from thesame factual situation. This is known as “pendentjurisdiction.” Federal courts may exercise pendentjurisdiction, or refuse to do so, in the court’s owndiscretion.

At the trial level, the personal jurisdiction of aU.S. District Court is limited to those personswithin the state in which the court sits. Under thelong arm statutes discussed previously, however,that “geographic” jurisdiction can be extended toestablish personal jurisdiction over persons out-side of the state. There is a minimum of one Dis-trict Court for each state, although a few largerstates have as many as four or five.

There are thirteen federal Courts of Appeals,and eleven of those serve geographic regions re-ferred to as “circuits.” This term originated in earliertimes, when the appellate justices would “ride a cir-cuit”—sometimes on horseback—through thestates and territories of the court’s regional jurisdic-tion, hearing cases in various cities and towns.These eleven circuits are numbered, as in the “Sev-enth Circuit” (the U.S. Court of Appeals for Wiscon-sin, Illinois, and Indiana). There also is a Court of Ap-peals for the District of Columbia, and a Court ofAppeals for the Federal Circuit (which hears appealsfrom customs, patent, and trademark cases, andcases involving claims against the federal govern-ment). Some of the larger circuits are further dividedinto north, east, south, west, and central “districts,”and the U.S. District Courts in those areas are identi-fied by the district in which they sit (e.g., the U.S. Dis-trict Court for the Central District of California).

The District Courts within a circuit are boundby the decisions of the Court of Appeals for thatcircuit. At times, the various circuits adopt con-flicting rules of law on a given issue, but the Dis-trict Courts may not pick and choose amongthose—they must follow the lead of their “own”circuit court. When the issue is of substantial im-portance, this circumstance often leads the U.S.Supreme Court to grant review for an exemplarcase on that issue. The Supreme Court’s ruling onthat case then resolves the conflict among the cir-cuits, and all federal courts henceforth will followthe ruling of the Supreme Court.

The Supreme Court has original jurisdiction(i.e., trial jurisdiction) over cases involving foreigndiplomats, and also lawsuits in which a state is ei-ther defendant or plaintiff. In practice, however, itis extremely unusual for the Supreme Court to heara case under its original jurisdiction. Instead, theCourt usually appoints a distinguished jurist toserve as a special master, hearing both evidenceand legal argument and then rendering a report tothe Supreme Court. The full Court then reviews themaster’s report and issues its formal ruling.

The vast majority of Supreme Court casescome before the Court by:

• writ of certiorari;

• mandatory review; and,

• original jurisdiction.

The greatest number are heard under writ of cer-tiorari, and the least number under original juris-diction. Mandatory review occurs when Congresshas required by statute that the Court review casesof a particular category. In those cases, the Courthas no discretionary power to deny a hearing inthe case. In recent decades, however, Congress hassubstantially reduced the number of categories inwhich mandatory review is available.

Nearly all cases coming before the SupremeCourt today are discretionary—the Court may ac-cept or reject them at will. Appellants file a petitionfor review, but the sheer number of cases, some5,000 petitions each year, forces the Court to granta writ of certiorari in only a small portion of thosecases. When the Supreme Court refuses to hear acase, that has the effect of making the lower appel-late court decision final.

A writ of certiorari is an order to the lowercourt to certify the record in the case and forwardit to the Supreme Court. The litigating parties thensubmit written legal arguments (known as “appel-late briefs”) to the Court. Sometimes, the Courtpermits interested third parties, who are not di-rectly involved in the case, to submit additional


briefs as “friends of the court.” When the casecomes before the Court for oral argument, it iscommon for the justices to question the attorneysand engage in brief discussion with them. Follow-ing oral argument, the Court meets in closed ses-sion to discuss the case. One justice among the ma-jority is assigned by the Chief Justice to write theopinion of the court. Other justices may write con-curring or dissenting opinions, which will be pub-lished immediately following the Court’s opinion.

Judges enjoy an extraordinary measure of in-dependence. All federal judges—and judges insome states, as well—serve for life unless they areimpeached and removed for misconduct. In addi-tion, all judges are absolutely immune from civil li-ability for their official acts, no matter how injuri-ous and reprehensible. The Supreme Court hasruled that such immunity applies even to judicialacts that are alleged to have been done maliciouslyor corruptly. The reason for such blanket immunityis the chilling effect which civil liability would haveon the judicial system. Without immunity, judgeswould be the constant target of lawsuits by dis-gruntled litigants, convicted criminals, and victimsof crimes not adequately punished. Judges mightbe inclined to practice “defensive adjudication”with constant concern for those litigants mostlikely, and most financially able, to “sue the judge.”

Civil immunity for judges is “purchased” at theprice of the occasional gross injustice, with no civilremedy available to those who are harmed. Ofcourse, judges are not immune from criminal pros-ecution for crimes they commit, either as privatecitizens or as judges. Now and then, a judge is con-victed of bribery. In October 2000, a superior courtjudge in California pled guilty to using his powersto coerce a defendant before his court to have asexual relationship with him. Such incidents, ofcourse, are extremely rare exceptions.

Most people probably agree that public opinionand politics should not govern court decisions. Thereality is that both politics and public opinion exer-cise significant influence, although indirectly, overthe courts. In part, this is because the courts mightlose credibility if the public sees them as too iso-lated from the realities of modern times. The otherinfluential factor is the political process by whichjudges are nominated and confirmed. This factor isamplified when the President makes an appoint-ment to the U.S. Supreme Court. Because SupremeCourt justices can be removed only upon impeach-ment and conviction for “high crimes and misde-meanors,” the Senate confirmation process is theonly opportunity to limit the President’s ability toshape the legal philosophy of the Supreme Court.

REVIEW QUESTIONS

1. Laws enacted by a legislature are known as __________.

2. Legislative __________ is the purpose whichthe legislature had in mind when it enacted aparticular statute.

3. In every criminal case, the plaintiff is the __________.

4. Regulations established by governmentagencies, and the court decisions whichinterpret them, are part of __________ law.

5. Executive __________ issued by the Presidentor a state governor carry the force of law.

6. The court of last __________ is the highestappellate court in that jurisdiction.

7. The Supreme __________ comprises allfederal constitutional, statutory, treaty, andadministrative law.

8. The authority to enact legislation must befound in a constitution. That authority can be:

• explicitly __________ in the words of theconstitution;

• __________ by the provisions of theconstitution; or,

• __________ in the nature of government.

9. The general __________ powers of the stategovernments encompass the protection ofpublic health, safety, welfare, and morals.

10. The powers to impose taxes and define andpunish crimes are examples of __________powers held by both the state and federalgovernments.

11. When English courts of law became inflexiblein their application of the common law,courts of __________ were established toresolve disputes more fairly.

12. Article IV, Section 1, of the U.S. Constitutionstates, in part:

“Full __________ and __________ shall be givenin each State to the public Acts, Records, andjudicial Proceedings of every other State.”

13. The authority of a court to determine thelegal issues and the rights and obligations ofthe parties that are before it is that court’s__________.

14. A state court of __________ has the authorityto hear and determine any civil or criminalcase arising under the laws of that state.

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15. The __________ (UCC) establishes the law ofcommercial contracts for the sale of goodsand merchandise.

16. Business transactions and transportation thatcross state lines, or have a substantial impacton commercial activity among the states, fallwithin the laws of __________ commerce,which only Congress may regulate.

17. There are three basic types of jurisdiction:

• ___________ matter jurisdiction;

• __________ jurisdiction; and,

• __________ jurisdiction.

18. The court’s authority to determine the statusof real or personal property located within itsgeographic jurisdiction is known as__________ jurisdiction.

19. Service of process is the delivery of__________ in accordance with proceduresestablished by law.

20. Whenever a party or her attorney files writtendocuments with the court, or is physicallypresent in court, for the purpose of affectingthe outcome of the proceedings, that partyhas made an __________ before the court.

21. Long arm statutes permit a state’s courts toexercise __________ over non-residentpersons that are located outside of that state.

22. Unlawful flight is leaving a jurisdiction for thepurpose of avoiding __________ or__________.

23. If the location of a court is greatlyinconvenient for a civil defendant andwitnesses, the defendant can petition for achange of __________.

24. A trial court hears and makes a finaldetermination of all questions of __________.

25. In most states, a(n) __________ may not bethe plaintiff in a small claims court.

26. If a court decision lacks any reasonablefoundation, either in the evidence or the law,that is termed an __________ of discretion.

27. A __________ appeal is one completelywithout merit, lacking any reasonable basisunder the facts and the law.

28. When all opposing parties in a lawsuit arefrom different states (i.e., no one defendantand no one plaintiff are citizens of the samestate), __________ of citizenship exists.

29. Under pendent jurisdiction, a federal courtmay hear and decide a matter under state lawif it arises from the same set of __________ as

another matter which is properly before thefederal court.

30. In addition to the eleven numbered circuits,there is a Court of Appeal for the __________of __________, and a Court of Appeal for the__________ Circuit.

31. To have the U.S. Supreme Court review thedecision of a lower court, one must file a__________ for review.

32. Most cases heard by the Supreme Court comebefore it on a __________ of certiorari.

33. Under the doctrine of judicial immunity,judges are absolutely immune from any__________ liability for their official acts.

KEY TERMS

Act of Congress

Your “best effort” definition:

Your revised definition:

case law



circuit court of appeals



civil law



common law




concurring opinion



criminal law



damages



dissenting opinion



diversity jurisdiction



extradition



federal question jurisdiction



felony



forum



judicial review



misdemeanor



ordinance



overrule



personal jurisdiction



precedent



public policy



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question of law



question of fact



reverse



statute



subject matter jurisdiction



Supreme Law of the Land



trial court



trier of fact



venue



WORKING ON-LINEGo to the Federal Judiciary Home Page:

http://www.uscourts.gov

Using the “Newsroom” link from that page, find astory about court developments. Use yourbrowser’s search engine to locate additional infor-mation about the same story. Check the Web sitefor the National Law Journal, as well:

http://www.nlj.com

Prepare a report using information from the vari-ous sources you have found.

ETHICAL CHALLENGERoger Ellsworth is a legal assistant in the countypublic defender’s office. Before coming to this of-fice, he worked in a criminal defense law firm. Overthe years he has come to know a number of attor-neys and paralegals in the district attorney’s office,and occasionally a group from both offices havelunch together.

At one of these lunches, a deputy D.A. talkedabout a recent case in which the suspect fled thestate. No one knew where the suspect had gone.That evening, Roger learned that his wife’s secondcousin was once involved with a man by the samename. “He was always in trouble, and they finallysplit up. But she can’t seem to get over him,” Mariesaid. “Whenever he shows up, she takes him in.”

The following evening Marie informed Rogerthat her aunt had confirmed that the cousin’s oldboyfriend had moved back in several weeks be-fore. When Roger stated his intention to call afriend in the D.A.’s office, Marie urged him not tomake the call. “We don’t even know for sure thatit’s the same person,” Marie pointed out. “And, ifhe is, my aunt and cousin would never forgive me.”Roger spent a restless night, torn between his loy-alty to Marie and his sense of ethical responsibility.

ETHICAL ANALYSISRoger truly faces a dilemma. Like any citizen, hehas a civic duty to cooperate with law enforcementin the search for a fugitive from the law. Of course,he also has a moral responsibility to his wife, as


well as a personal interest in protecting their rela-tionship from discord.

Unless the law of his state so requires, Rogerdoes not have a legal duty to report the informa-tion he has learned. And, at this point, it is sheerspeculation that the cousin’s boyfriend might bethe fugitive suspect. So, it appears that this is anethical dilemma, not a legal one.

Roger is not an attorney and officer of thecourt. He is not employed in the D.A.’s office, andthe public defender’s office is not involved at thistime, so Roger has no ethical duty as an employeeto volunteer the information. There is no specialethical standard for legal assistants which givesRoger a greater duty in this situation than hewould have if he were not a paralegal. In effect,Roger has the same ethical duty as any member ofthe public.

Consequently, Roger must balance the risk ofdamage for the marital and family relationshipsagainst the general obligation to assist law en-forcement in apprehending a fugitive. If Roger re-ports the information, and the cousin’s boyfriendturns out not to be the suspect, Marie and her rel-atives might still feel betrayed by his action. Rogerand Marie might pay a very high emotional pricefor a futile effort to aid law enforcement.

Does Roger have other options, not mentionedhere?

READING CASE LAWThe full text of Stump v. Sparkman, 435 U.S. 349, 98S.Ct. 1099 (1978) follows. Read the opinion of thecourt (beginning immediately following “Mr. Jus-tice WHITE delivered the opinion of the Court”),and then Justice Stewart’s dissenting opinion.

Make a list of Justice Stewart’s key points fordenying to Judge Sparkman the immunity usuallygranted judges for their official actions. Then, re-read the majority opinion and summarize an argu-ment opposing each of Justice Stewart’s keypoints. Finally, write a few paragraphs explainingwhich view you agree with—the Court’s or JusticesStewart’s.

ANSWERS TO REVIEWQUESTIONS

1. Laws enacted by a legislature are known asstatutes.

2. Legislative intent is the purpose which thelegislature had in mind when it enacted aparticular statute.

3. In every criminal case, the plaintiff is thegovernment/people.

4. Regulations established by governmentagencies, and the court decisions whichinterpret them, are part of administrative law.

5. Executive orders issued by the President or astate governor carry the force of law.

6. The court of last resort is the highestappellate court in that jurisdiction.

7. The Supreme Law of the Land comprises allfederal constitutional, statutory, treaty, andadministrative law.

8. The authority to enact legislation must befound in a constitution. That authority can be:

• explicitly expressed in the words of theconstitution;

• implied by the provisions of theconstitution; or,

• inherent in the nature of government.

9. The general police powers of the stategovernments encompass the protection ofpublic health, safety, welfare, and morals.

10. The powers to impose taxes and define andpunish crimes are examples of concurrentpowers held by both the state and federalgovernments.

11. When English courts of law became inflexiblein their application of the common law,courts of equity were established to resolvedisputes more fairly.

12. Article IV, Section 1, of the U.S. Constitutionstates, in part:

“Full faith and credit shall be given in eachState to the public Acts, Records, and judicialProceedings of every other State.”

13. The authority of a court to determine thelegal issues and the rights and obligations ofthe parties that are before it is that court’sjurisdiction.

14. A state court of general jurisdiction has theauthority to hear and determine any civil orcriminal case arising under the laws of thatstate.

15. The Uniform Commercial Code (UCC)establishes the law of commercial contractsfor the sale of goods and merchandise.

16. Business transactions and transportation thatcross state lines, or have a substantial impacton commercial activity among the states, fallwithin the laws of interstate commerce, whichonly Congress may regulate.

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17. There are three basic types of jurisdiction:

• subject matter jurisdiction;

• in rem jurisdiction; and,

• personal jurisdiction.

18. The court’s authority to determine the statusof real or personal property located within itsgeographic jurisdiction is known as in remjurisdiction.

19. Service of process is the delivery of courtdocuments in accordance with proceduresestablished by law.

20. Whenever a party or her attorney files writtendocuments with the court, or is physicallypresent in court, for the purpose of affectingthe outcome of the proceedings, that partyhas made an appearance before the court.

21. Long arm statutes permit a state’s courts toexercise personal jurisdiction over non-resident persons that are located outside ofthat state.

22. Unlawful flight is leaving a jurisdiction for thepurpose of avoiding arrest or prosecution.

23. If the location of a court is greatlyinconvenient for a civil defendant andwitnesses, the defendant can petition for achange of venue.

24. A trial court hears and makes a finaldetermination of all questions of fact.

25. In most states, a(n) attorney may not be theplaintiff in a small claims court.

26. If a court decision lacks any reasonablefoundation, either in the evidence or the law,that is termed an abuse of discretion.

27. A frivolous appeal is one completely withoutmerit, lacking any reasonable basis under thefacts and the law.

28. When all opposing parties in a lawsuit arefrom different states (i.e., no one defendantand no one plaintiff are citizens of the samestate), diversity of citizenship exists.

29. Under pendent jurisdiction, a federal courtmay hear and decide a matter under state lawif it arises from the same set of facts asanother matter which is properly before thefederal court.

30. In addition to the eleven numbered circuits,there is a Court of Appeal for the District ofColumbia and a Court of Appeal for theFederal Circuit.

31. To have the U.S. Supreme Court review thedecision of a lower court, one must file apetition for review.

32. Most cases heard by the Supreme Court comebefore it on a writ of certiorari.

33. Under the doctrine of judicial immunity,judges are absolutely immune from any civilliability for their official acts.


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chapter€¦ · chapter 4 51 and craft a resolution to the controversies brought before them. thus,...

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