Law & Courts (GOVT 302)

Fall 2013

Midterm Examination Study Guide

Exam:Tuesday, October 15

Review Session: Monday, October 14, 6:00 PM

Material Covered:All readings, lectures, Powerpoints, handouts

Carp: 18-82, 206-251, 271-293

O’Brien: 110-323

Spreng & Tobias: Should the 9th Circuit Be Divided?

Kagan: The Evolution of State Supreme Courts

Crump: Law Clerks

Wasby: The Functions and Importance of Appellate Oral Argument

Campbell: The Spirit of Dissent

Listen to Supreme Court oral argument (on class website)

Slotnick: The Place of Judicial Review in the American Tradition

Melone and Mace: Judicial Review: The Usurpation and Democracy Marbury v. MadisonandEakin v. Raub

Van de Walt: The Comparative Method (pp. 51-57 only)

Frankel: The Adversary Judge

Frank: The “Fight” Theory versus the “Truth” Theory

Flango: Problem Solving Courts Under a Different Lens (for Oct. 1)

Berman (ed.): What is a Traditional Judge? (for Oct. 1)

Worden: Policymaking by Prosecutors

Kritzer: Contingency Fee Lawyers

Exam Format:1 longer essay (40 points each), choose from 2

1shorter essay (30 points each), choose from 2

10 multiple-choice/short answer questions (3 points each)

Origins and Roles of Courts

  • Are courts inevitable? What theories have been suggested to explain why they develop? Which is most persuasive?
  • Consider Shapiro’s identification of the elements of courts. What are the strengths and limitations of his criteria?
  • What are the distinctive characteristics of courts as compared to other political institutions? In what ways do many of these characteristics limit courts’ powers?

Federal Courts

  • How has Congress shaped the organization and operation of the federal courts? For example, what was the significance of the Judiciary Act of 1789? Why has Congress’ influenced diminished over time?
  • How has the organization of the federal judiciary changed over time? What factors have contributed to those changes? In what ways is decision-making in the federal judiciary both hierarchical and decentralized?
  • What are the important features that characterize the judging process in the circuit courts? Should circuit court judges and district court judges be bound to the rulings of other circuit courts?
  • How have workload demands impacted federal courts? Should the 9th Circuit be split?

State Courts

  • Consider the historical development of state courts. How have state supreme courts responded to their ever-increasing workload? In what ways did their response mirror the changes in the U.S. Supreme Court? What does Kagan suggest are the typical stages in the evolution of state supreme courts?
  • What is the rationale behind the division of trial courts into courts of limited or general jurisdiction? Is this an effective organizational approach?

Supreme Court: Organization and Operation

  • Why was the Supreme Court initially an institution of limited power and prestige? What factors led to the development of the Supreme Court from the “least dangerous branch” to a powerful political institution?
  • Do the trappings of the Supreme Court (robes, building, traditions, secrecy of deliberations, etc.) influence the public’s perception of the institution? Why might judges seek to cultivate a “cult of the robe”?
  • How have the staffing resources available to justices changed over time? Consider the influence of law clerks on Supreme Court operations. Do they exercise too much power? How is their influence enhanced by the increases in the Supreme Court caseload? Should clerks be selected from a pool of more experienced lawyers?

Supreme Court: Setting the Agenda

  • What legal doctrines does the court consider to determine whether a case is justiciable?
  • What is the significance of the Supreme Court’s procedures for screening cases (cert petitions, cert pool, cert memo, conference deliberations, discuss list, dead list, Rule of Four, join-3 votes)?
  • How does the management style of a Chief Justice influence the conference proceedings?
  • What considerations influence the Court’s decision to agree to hear a case?
  • In what ways has the Supreme Court sought to manage its caseload? What institutional reforms might be adopted to help the court deal with its rapidly growing docket?

Supreme Court: Oral Arguments and Opinions

  • How are oral arguments organized and scheduled? What is the potential value of oral arguments to both the judges and the litigants? Do oral arguments matter? Should they be eliminated? Should they be televised?
  • What are the procedures the Court uses in the conference on the merits? How are opinions assigned and written? What should be the objectives of a written opinion?
  • How has the practice of opinion writing changed over the Court’s history? Is the proliferation of individual (concurring, dissenting) opinions problematic?What is the value of a dissenting opinion? Should they be eliminated?

Judicial Review

  • Consider the evolution of the principle of judicial review from its early theorization to its implementation by the Supreme Court. Why does Slotnick argue that America was “uniquely hospitable” to the acceptance of judicial review?
  • Compare and contrast the arguments on judicial review laid out in Marbury v. Madison and in Justice Gibson’s dissent in Eakin v. Raub. What are the main points of disagreement? Was Marbury correctly decided?
  • Is the very nature of judicial review fundamentally inconsistent with democratic principles?

Adversarial System

  • What are the basic elements of the adversarial system? Compare the adversarial system with the inquisitorial system used elsewhere in the world. What are the strengths and weakness of each system?
  • Does the adversarial system sacrifice truth for fairness? How would you respond to Jerome Frank’s argument in his piece examining the “fight theory” vs. the “truth theory” in the American legal system? Critique Frankel’s argument regarding the affect of the adversarial system on judicial behavior.

Criminal Trial Process

  • Consider the important elements of the criminal trial process in America. Which aspects of this process do you consider the most problematic? Why? What reforms should be adopted to address these concerns?
  • What rights are afforded defendants in the criminal trial process?
  • How do problem-solving courts differ from standard courts? What are the strengths of such courts? What are their challenges and limitations? Should such courts be used more widely?

Plea Bargaining

  • Consider the influence of prosecutorial discretion and pleas bargaining and the criminal justice system. What are the possible causes of the dominance of plea-bargaining in the criminal law arena?
  • What does the Worden article suggest are the primary influences on the presence of rules limiting plea bargains in a jurisdiction? Is the prevalence of plea-bargaining a cause for concern?

Civil Trial Process

  • What are the important stages in the civil trial process in America? Compare the criminal justice process with its civil counterpart. What are the similarities and differences?
  • Do we live ina litigious society? Is tort reform necessary?
  • What does Kritzer conclude about the role of contingency fee lawyers as gatekeepers in civil law cases?
  • What advantages/disadvantages arise from the use of ADR (alternative dispute resolution)? Does the widespread use of ADR conflict with the basic premise that parties deserve their day in court?