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OVERVIEW OF CLASSES  U.S. Constitution  Overview and introduction  Structure of federal government  Relationship between federal and state governments  U.S. Judicial Systems   

Introduction: Multiple, independent systems Federal courts State courts

 Precedent and Stare Decisis


THE CONSTITUTION OF THE UNITED STATES  Longstanding – Ratified in 1787  Short:  Preamble 


Basic themes and goals.


Structure and powers of national government.  Relationship between states and national government. 

 27


Refinement to articles  Personal rights and liberties. 

THE CONSTITUTION OF THE UNITED STATES  Many Undefined Terms:  “Due process”  “Equal protection”  “Cruel and unusual”  “Reasonable”  “Other high crimes and misdemeanors”  “Advice and consent”  “Commerce among the several states”

STRUCTURE OF U.S. FEDERAL SYSTEM  Two Basic Principles:  The Federal/National Government: A System of Separation of Powers and Checks and Balances.  Federalism: The Limited Nature of the Federal/National Government.

Both based on fundamental mistrust of government and notions of dividing power so as to prevent abuses.

STRUCTURE OF U.S. FEDERAL SYSTEM  Separation of Powers—Three branches of government,

each with its own role/powers: 

Legislative Branch (Article I): Makes the law  Consists of Senate and House of Representatives 

Executive Branch(Article II): Enforces/executes/administers the law  Consists of President/Vice President/White House Staff/Cabinet/”Independent Agencies” 

Judicial Branch (Article III): One Supreme Court; Congress given power to establish “inferior” federal courts  Interprets law and applies it in individual cases; says what the law is  More later 

STRUCTURE OF U.S. FEDERAL SYSTEM  Checks and Balances:  Each branch has some control over the other branches.  Way to prevent abuses by any branch.  Examples: President’s veto power over laws passed by Congress.  Congress can override presidential veto.  President nominates federal judges, subject to Senate confirmation.  Congress controls budgets of executive and judicial branches.  Congress has power to impeach federal judges and executive officers.  Power of judicial review over legislative and executive actions. 

FEDERALISM  Federalism Defined:  Sharing of powers between two or more governmental entities.  U.S. Style Federalism:  Sharing of power between federal/national government and states.  National government a government of limited powers: 

Powers of federal government are broad but limited:  Enumerated (listed) in the Constitution (see, e.g., Article I, section 8). • Federal government may not exceed enumerated powers. • Source of continued debate (e.g., 2010 healthcare law).

Residual (remaining) governmental powers reside with the states.

FEDERALISM  Each State:  State Constitution – can confer greater (but not fewer) rights than the federal Constitution.  Legislative branch – enact state laws.  Executive branch –enforce/execute/administer state laws.  Judicial branch – ultimate arbiter of state law; may also apply federal law.



War and International Relations

Real Property



Securities regulation

Family Law

Intellectual Property

Criminal Law (traditional)

Labor Relations, Wages, Safety

Inheritance and Succession

Consumer Safety, including Food & Drug

Contract Law

Unfair Trade Practices

Corporation Law

Banking Law

SUPREMACY AND PREEMPTION  Doctrine of Supremacy:  Federal law is supreme to state law.  When there is a conflict between federal law and state law, federal law prevails and trumps state law.  Doctrine of Preemption:   

Related to supremacy. Congress can preempt (preclude) state action in specific areas. Preemption can be: Express  Implied, e.g., from comprehensive regulatory scheme that evidences congressional intent to occupy the entire field. 

INDIVIDUAL RIGHTS AND LIBERTIES  Bill of Rights – Amendments I-X:  Free

speech, press, and association  Religion:  No

establishment of religion  Free exercise of religion  Right

to keep and bear arms  Government can take private property only for public use and only with just compensation.

INDIVIDUAL RIGHTS AND LIBERTIES  Bill of Rights – Amendments I – X:  No

deprivation of life, liberty, or property without “due process of law”:  Procedural

component  Substantive component  Right

to trial by jury in most civil damages cases

INDIVIDUAL RIGHTS AND LIBERTIES  Bill of Rights –Amendments I – X:  Special Protections in Criminal Trials:  Freedom

from unreasonable searches and seizures  Exclusionary rule  No double jeopardy  No forced self-incrimination  Right to attorney  Right to be free from punishment that is excessive or cruel and unusual

INDIVIDUAL RIGHTS AND LIBERTIES  Bill of Rights – Amendments I – X:  Special protections in criminal trials:  Right

to speedy and public criminal trial  Right to be informed of charges  Right to trial by jury  Right to confront witnesses  Right to compulsory process for witnesses in his favor

INDIVIDUAL RIGHTS AND LIBERTIES  Reconstruction Amendments – XIII, XIV, XV:  Reconstruction = period after U.S. Civil war when the country was being “reconstructed”  13th Amendment = Abolition of Slavery  14th Amendment = Equal Protection  15th Amendment = Voting Rights Extended to Blacks 

Congress given power to enforce by “appropriate legislation.”

INDIVIDUAL RIGHTS AND LIBERTIES  Other Amendments:  19th Amendment =Right to vote extended to women.  26th Amendment = Right to vote extended to those 18 years of age or older.


WHAT ARE THE U.S. JUDICIAL SYSTEMS?  Several Judicial Systems:  One federal judicial system  50 state judicial systems  Other judicial systems (District of Columbia and territories)

SEVERAL JUDICIAL SYSTEMS  Each System is Independent and Autonomous.  State judiciary is function of state Constitution and laws.  State court of last resort is the ultimate arbiter of that state’s law.  Most state judicial systems are organized like federal judiciary.  Parallel systems –cases go through one system or the other

FEDERAL VERSUS STATE JUDICIAL SYSTEMS  Method of Judicial Selection:  

Federal: President nominates; Senate confirms. State: Nomination or election.

 Tenure of Judges:  

Federal: Life tenure; no maximum term or retirement age. State: Term limits.

 Presence of Specialized Courts:  

Federal: Courts of general jurisdiction. State: More specialized courts common.

 Jurisdiction:  

Federal courts as courts of limited jurisdiction. State courts: Exclusive jurisdiction over some matters.  Also can hear some federal claims. 

CONSTITUTIONAL FOUNDATION  Organization of Federal Judiciary:  

One Supreme Court. Congress given power to establish lower federal courts.  System of courts based on geography and hierarchy (more later)

 Method of Federal Judicial Selection:  

Nomination by President. “Advice and Consent” by senate.

 Judicial Independence:   

Tenure “during good behaviour.” No diminution of salary. Removal only upon conviction of impeachable offense.

CONSTITUTIONAL FOUNDATION  The Power of Judicial Review  Power to interpret acts of legislature and the executive  Power to declare acts of coordinate branches and state actors to be unconstitutional  The Federal Judicial Power  “Case” and “controversy” requirement– no advisory opinions.  Limited jurisdiction.

ORGANIZATION OF THE FEDERAL COURTS  Hierarchical Organization (the Pyramid)  District courts at the base of the pyramid 

Courts of appeal in the middle of the pyramid 

Trial level/first instance courts. Hear appeals from district court cases.

Supreme Court of the United States as the court of last resort. 

Mainly discretionary review under the writ of certiorari.


ORGANIZATION OF THE FEDERAL COURTS  Geographical Organization  Nation divided into “judicial districts” and then into “circuits.” 94 judicial districts  Each state has one, two, three, or four judicial districts.  Each judicial district has one district court.  12 regional “circuits”  Each circuit contains one court of appeals and all the district courts within the geographic range of the circuit.  Circuits critical to the operation of stare decisis rules. 

One Supreme Court



WHAT IS STARE DECISIS?  “Let it [earlier decided case law] Stand”  The tendency of courts to follow the rulings of earlier

decided cases when confronted with similar legal issues and facts.  

An art, not a science. Not an inflexible rule.

BENEFITS OF STARE DECISIS  Predictability  Stable and consistent legal principles may lead to enhanced economic stability/growth.  Fairness  Similarly-situated parties should be treated in a similar way.

BENEFITS OF STARE DECISIS  Judicial Efficiency  Courts do not need to consider anew every legal principle that comes before them.  Parties may be discouraged from litigation if the case law is heavily against their position.  Integrity of the Judicial System  Limits judicial discretion in individual cases.  Promotes confidence in the judicial and legal system.  Added incentive for judges to craft well-reasoned decision.

APPLICATION OF STARE DECISIS  Factors to be Considered:  Legal issue presented  Whether the court issuing the precedent is authoritative over the current court (*)  Scope of holding of earlier case: Facts presented (*)  Holding versus dictum (*) 

APPLICATION OF STARE DECISIS  Authoritative Court  Consider geography and hierarchy.  Precedent is binding/controlling/mandatory only if the court issuing the precedent is authoritative over the current court. Supreme Court precedent binding on all.  Court of appeals precedent binding within that circuit, including on court of appeals itself.  District court decisions binding only on the parties in the specific case. 


Precedent may also be persuasive In the absence of binding/mandatory/controlling authority  Courts may consider other precedent  Courts may reject persuasive precedent if it does not find its reasoning to be persuasive. 

APPLICATION OF STARE DECISIS  Facts Presented  Lawyers analogize to and distinguish facts based on whether they want the court to feel bound by precedent.  Court has discretion to determine whether to apply precedent to new set of facts presented.  Courts often do not apply otherwise binding precedent by distinguishing current case on the facts.

APPLICATION OF STARE DECISIS  Holding versus Dictum  Holding = court’s resolution of the case; includes reasoning applied by court.  Dictum = judicial pronouncements that go beyond facts or legal issues presented.  Holding is binding; dictum technically is not  Not always clear what is dictum.

APPLICATION OF STARE DECISIS  What Federal Precedent is Binding on State Courts:  All courts – state and federal – bound by U.S. Supreme Court precedent on federal law.  Lower federal court precedent is persuasive only on the state courts.

APPLICATION OF STARE DECISIS  How does Stare Decisis Apply as to State Law?  Each state has its own rules about the application of precedent within that state.  Federal courts and other state courts are to “stand in the shoes” of the court of last resort of the state whose substantive law applies.

OVERRULING PRECEDENT  Who can Overrule Precedent:  Supreme Court can overrule its own precedent.  Court of appeals can reverse or overrule circuit precedent by en banc review.  N.B. All courts can distinguish facts as a way of not applying precedent that would otherwise be binding.

OVERRULING PRECEDENT  Why Might Court of Appeals Overrule

Precedent? First panel ruling was not well reasoned.  First panel ruling led to problems in implementation in lower courts. 

 Why Might Supreme Court Overrule Precedent?  More likely on matters of constitutional law than on matters of statutory law.  More likely on matters of constitutional law than on matters of statutory law.

OVERRULING PRECEDENT  Why Might Supreme Court Overrule Precedent?

(continued) 

Special prudential/pragmatic considerations: Whether rule has proven to be unworkable in practice;  Whether rule is subject to reliance that would lend special hardship and inequity if overruled.  Whether related legal principles have left old rule “a remnant of an abandoned doctrine.”  Whether facts have so changed so as to have robbed old rule of significant justification. 

OVERRULING PRECEDENT  Recent cases in which Supreme Court overruled

precedent:    

Atkins v. Virginia (2002) – execution of the mentally retarded. Lawrence v. Texas (2003) – gay sodomy statutes. Roper v. Simmons (2005) – Juvenile death penalty. Hillary, the Movie (2010) – Election Campaign Finance Law.

CONCLUSION  Thank you for your attention!  I look forward to your questions and comments.  For a continuing dialogue, please contact me

anytime at  Or visit us for an LLM program or the Fordham Law

Summer Institute in New York City.

power point Toni Fine USA legal system  

Professor Toni Fine, USA Legal system

power point Toni Fine USA legal system  

Professor Toni Fine, USA Legal system