February 24, 2014
Deeply Legalistic Political Culture
• Openness? Democratic concern for citizens’ rights?
• No alternative mechanisms?
o E.g. No insurance.
• More than any other nation, the US relies on courts to handle disputes of all
types. Most other countries rely on mediation before court, and civil servants.
• Why do they spend so much time in the court rooms?
o Some say it is a measure of openness and concern for the rights of
o Others say it is because there is a lack of alternative mechanisms. E.g.
Uninsured Americans (healthcare before Obamacare takes full effect).
Suing is their only way of getting compensation.
• The real reasons?
o The Constitution. It is THE rulebook.
o Only the judicial branch can interpret its rules – the courts are the ultimate
o The result?
A very litigious nation – lots of litigation (legal action/court case).
Selfreenforcing. Many Americans have come to expect “total
justice” –the notion that when something goes wrong, someone
else is automatically at fault.
• Cases are not only costly for those that have to defend themselves, but cost
taxpayers money (paying court officials).
• This legalistic culture has even breached TV and social media culture. Example:
Judge Judy. See Clip: Judyism: Judge Judy at her Best.
• 1 million in the US.
o Works out to be 1 lawyer per 275 people (1 for every 450 in Canada).
• The billboards!
o Lawyers have to stand out and make themselves known.
Origins of the Judicial Branch
• Article III
o 6 paragraphs
• “Judicial Power of the United States, shall be vested in one supreme court.”
o The creation of the Supreme Court. The National Supreme Court is the
o Does not provide how many justices there should be.
• Empowers Congress to make “inferior” courts. o Congress set up the federal system – everything except the Supreme Court
is a product of Congress.
o Says nothing about conduct or composition of lower courts – completely
left up to Congress.
• Judiciary Act of 1789.
o Came a year after the Constitution was ratified.
• Establishes the third branch (federal system).
• Federalist system.
• Judicial federalism (a dualsystem).
o State court system.
o Federal court system.
• 3 “layers” (of both the state and federal court system).
o Trial courts
o Appellate courts
o Supreme courts
• National Supreme Court
o This reigns over the state and federal supreme courts – the ultimate top
• Workhorses of the judiciary.
• 99% of America’s legal actions.
o Because the majority criminal cases.
• About 100 million legal actions in a year. Overwhelming amounts involved
violations of state law. If one of these cases is brought to court, it will go through
the following process:
• Trial > Appellate > State Supreme > National Supreme
*Note: One state cannot use a precedent set by another state!
• Supreisingly low standards.
• In 22 states, you don’t need any (e.g. Arizona).
o No law degree.
o No formal training.
• 17 states (e.g. Maryland)
o Selected by governor…likely politicized, governor will select a fellow
• 2 states
o State legislature decides.
• 31 states (e.g. Nebraska)
o Elect their judges. o 214 year terms.
• Free from political pressures
• Undermines judicial equity?
o Cashmoney – Campaigns are expensive, and SuperPACS are very
o Potential for corruption.
• “The general liberty of the people can never be endangered….so long as the
judiciary remains truly distinct from both the legislature and the Executive…
liberty can have nothing to fear from the judiciary alone, but would have
everything to fear from its union with either of the other departments.”
o The liberty and unbiased nature of the courts loses its legitimacy as soon
as it is connected with the other branches – e.g. elected judges. They are
now aware of how potential decisions will affect their next elections! (E.g.
• Original jurisdiction
o Federal laws (e.g. immigration)
o Treaties (e.g. international)
o Intrastate (e.g. drug trafficking between states/across state borders)
o Constitutional (e.g. civil rights, civil liberties)
o Any dispute with the US as party (whether suing or being sued).
• There are 94 district courts, grouped into 12 Circuit Court regions.
• District (Trail) Courts
o General jurisdiction
o 94 judicial districts/94 district courts
o US territories (Guam, the US Virgin Islands, and the Northern Marianas)
o Varies per size of state (1 to 4)
Number of district courts a state gets depends on its size
o Presidential appointment
All federal judges are appointed by the President, which is subject
to Senate approval.
• Circuit (Appellate) Courts
o 12 (DC+) regional circuits o 12 corresponding circui