Litigants and Types of Litigation - Class Notes - Judicial Politics | POLI 4023, Study notes of Political Science

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Litigants and Types of Litigation  Goal - ordinary litigation : personal, compensatory, not aimed at changing a business/ government policy – divorce, child custody, personal injury, criminal law - political/ policy litigation : challenging business/ government policy- gay marriage- changing business or government policy- much more likely to be appealed to a higher court  Issue - Private law/ dispute : individual or organization – sue each other- can be ordinary or political litigation - Public law/ dispute : government has violated right established in constitution or statue- gun regulations in Chicago Interest Groups participate in litigations Why? - If don’t have success in legislature, courts might give you a better chance - Trying to set precedent if you get favorable ruling and you could continue to benefit - If focus is on compensation- class action suits - Selling a set of legal arguments may be easier to sell to 1 judge over the majority of the legislatures because the legislatures have to consider the voters - If an issue for a minority- the legislatures are the majority will not vote for the minority because of the voters opinion of them- where a case might have a better chance  Sponsor of Test Case – provide attorney- more expensive- have to pay- if win, huge benefits- have control over legal argument- Plessy v Ferguson- looking for sympathetic plaintiff  File Amicus Brief- judge does not have to do anything with these where he has to rule on a case- can file more because they are less expensive- not only sets rules of game, but how courts should rule on past precedent o Affirmative Action- University of Michigan- race got points on undergraduate application o Law school used race as a plus factor- it could or could not help o Unconstitutional because of Article 14 Legal Profession  US is based on case method for training lawyers  Law schools in the US have lots of emphasis on learning case, learning about precedent and legal roles and how law developed  20th century has diversified with its applicants to law school  It has stratified- Elite Wall Street firms- large corporations who have in-house lawyers dealing day to day  small law firms dealing with individuals, flat fee, hourly rate Lawyers daily: - very few get into court- legal research, negotiation, counseling, drafting documents, investigating/ research 1 Government attorney- US Attorney- appointed by President- confirmed by Senate- 4 year term- fairly regularly re-appointed- designed to different districts- trying cases on the Federal level Assist Federal Prosecutor- appointed by US attorney State District Attorney- horizontal: specialist at 1 stage; vertical: you use a case from start to finish- more though and consistent Public Defender and Assign council- - deferral and state- indigent  cannot afford attorney - 25% states have public, state wide defenders - 75% assigned council- list of private attorney and judge picks off list Evidence shows not much difference between public and private attorney State attorney General- - State: main legal official for the sate- partisan election- give advisory opinion’s about legality of Constitution- figure head - Federal: head of Department of Justice- does not argue in court Federal: - Solicitor General - temporary justice – represents US in front of Supreme Court- seen as very reliable and very skilled litigator- represents US in federal Court- o Decides which cases the Supreme Court will be asked to take in the federal level Legal Services for the poor- civil cases (foreclosures on home)- 1974 Legal Services Corp grants to agencies who provide legal aid to poor- 1 million people a year are turned away Ordinary- more private Political- more public Thinking about the goal of the lawsuit and what the lawsuit is about can tell which type of litigation it is Religious groups getting involved in court - US, India, Israel- all modern democracies o Lots of different religion and history of political religious groups - US unlike others because not strong multi-party system - India and Israel- interest groups are competing with other parties Get involved in court because: - size, money, connections- if they have an in house lawyer - standing requirements are lax- its pretty easy to get to court in India - court fees in India and Israel are low 2 o more serious crimes = 2 lay people and 3 judges o less serious crimes= 2 lay people and 1 judge - requirement of 2/3rds vote - deliberations: there is a presiding judge o wan experts in jury o problem if Japan used because of hierarchy  lay people would just listen to judge because norm of deferring to higher up (judge) - - not random selection- 2 lay people- lay people tend to look like judges- wealthy, smart, educated people 5 Do we in the US get a good cross selection of people? - voter registration, drivers license, phone books are used - opportunity costs- missing a day of work- different economic consequences for different people - should it depend who is on trial- because peers are different for each defendant Sentencing - Why punish people? o Deterrence/ recidivism to prevent from doing it again o Streets safer o Retribution- an eye for an eye o Rehabilitation- goal in prison is to have them get back to society Parole Laws- determining the amount of time served in prison Justice Brior- US Federal Sentencing Guidelines - came out in 1988 - 2005: Supreme Court- US V. Booker- o 2 criminal defendants challenged sentencing guidelines because judge enhanced jury rule o 5-4 decisions made by judge was in violation of 6th amendment- Guidelines were not set in stone, but recommendations, but mandatory, But advisory Goal of having guidelines- uniformity, people who commit crimes in the same circumstances are sentenced alike- concerns about parole, rebuilt public confidence Used empirical data to make guidelines – had to make compromise - Charge offence system : ties punishment to statue- bank robber= 10 years o Not sensitive to context of crime - Real offense system : much more sensitive to context of crime o Each harm increases sentence o Post trial hearing o Hearsay exception allowed, not protected by Constitution - Compromise : offense charged is base level and judges can look to aggravating, mitigating and characteristics of offender into affect when making a final sentence Just deserts- you are ranking crimes on severity- problems because may not have consensus about serious crime Deterrent- punishment to each act should deter the crime again- individual preferences- can affect this (problem) Compromise: past practices and asked probation officers to analyze past cases Difference between criminal case and civil case - Nature of dispute: o criminal – crime against state o civil- crime against private individuals - Burdon of proof o criminal- beyond reasonable doubt o civil- preponderance of evidence - outcome o criminal- jail o civil- monetary- $$ - constitutional rights o criminal- 4,5,6,8 o civil- neither party if guaranteed a lawyer Categories of Civil Disputes: - tort- medial malpractice, personal injury - contracts - property - inheritance- laws of succession - family law- divorce, child custody, adoption How does a dispute become a lawsuit? - 50- Filed in court - 103- Resort to lawyers - a lot of things drop off because lawyers will not think its worth the time - 449- Dispute - discrepancy between people on what is owed - 718- Claim - confronting other person who owes you - 1000- Grievance - idea personally that someone should own something or someone is at fault - Injury Cases filed in court are not representative of all claims that people might make Damages to be awarded: - Nominal : plaintiff was wronged by defendant but very small damages $1- more symbolic - Compensatory : will cover hard or future harm that occurred because of the instance o Car wreck- hospital bill, car, work time, etc o Have to list specifically in case o Repairing what happened - Punitive : punish defendant for actions and make an example to others - Liquidated : breach of contract- enforced when can prove that break occurred- less common Options other than trail: - settle individually - mutual advisor - arbitration - mitigation - private judge - Injury- spills coffee in the car of the passenger seat with grandson driving- when car stops, puts between her legs and spills coffee- 3rd degree burns on her legs and lap- grandson thinks it not a big deal.. she starts to have shock like symptoms and goes to hospital- treated for 3rd degree burns— - Grievance- ($10,000) - Writes letter to McDonalds to get compensated for medical expenses and asked them to check the coffee maker, also asks for compensation for daughter who missed work and if this is not an accident to look at the temperature policy - Claim- when asked for compensation - Dispute ($800)- McDonalds responds  does not change anything but offers $800 - Lawyers ($90,000)- she gets a lawyer- lawyer asks for $90,000  Attorney field in court a formal complaint; arguing product liability  When trial date’s set- layers offer $300,000 to McDonalds – McDonalds rejects  Judge assigns to pre-trial mediation- mediator recommends $225,000 – McDonalds rejects  By playing the game- McDonalds has dramatically increases the money to be paid - Court- claim has 4 elements:  1- accident was common but injury was atypical because how dangerously hot coffee was  2- customers are not aware of how hot the coffee is and other restaurants don’t serve coffee this hot  3- McDonalds knows that their customers are not aware of how hot the coffee is- 700 claims about hot coffee  4- reckless indifferent – McDonalds did nothing to change policy, and did not do a good job of warning customers  Her lawyers don’t argue negligence because she admits the she caused the spill  McDonalds’s lawyers says:  Personal responsibility for actions  She is used as an example of someone who is litigious (too willing to jump into court)  Marketing says people like their coffee hot and cups and lids are fine  argument that she did not take her clothes off quick enough  also because of her age she got more burn then someone who is younger  Jurors- award both punitive ($2.7 million) and compensatory ($160,000) damages  Judge- reduces punitive from 2.7 mil to $480,000 (3x compensatory) - Media plays a huge role on personal responsibility  Its missing the legal facts of the case  Media makes it sensational- like spilling coffee is like winning the lotto  Coverage stops at jury because made so much attention to 3 million and they didn’t want to correct themselves  There is not a lot of follow up in the case  There is also no info on the settlement because it is confidential Collegial Courts- more than 1 judge sitting - appellate courts- courts of last resort (US Supreme Court) ---Cue Theory- unit of analysis is the case- looking at the cases and not the judges - looks at cases not judges- which cases the court will take and identify trends 4 things that are most likely to get on Supreme Court docket: 1- US Government asking for review 2- civil rights or civil liberties issue 3- judges below are not unanimous 4- ideological direction of lower court decisions Trends in the Supreme Court Docket: - Warren- economic cases in conservative way get brought up and overturned– want to send court in liberal decision and setting liberal precedents - Burger- more likely to review liberal court decisions and reverse - Rehnquist- take conservative court decisions and affirm them ---Small Group Analysis- thinks about how people work in groups - group dynamics - important factors:  persuasion, bargaining, threat of sanction and threat to go public Role of Chief Justice in Supreme Court: selected by President - States- elected by peers - Opinion Writing: gets to decide who writes opinion- if in minority, next in seniority gets to write  May be able to pull a few votes over if the majority is written in a more moderate way ---Attitude/ Attitudinal Model- focus on ideology or political preferences - related to models about judges by background information - attitudes are important in decisions - decide cases on policy- liberal/ conservative  not law or case itself - judges attitudes predict outcome - How do you know attitudes:  Prior decisions- past votes (this is a circular process)  Who appointed them- there are exceptions  They are all indirect measurements- about 80% prediction  Newspaper coverage of nominee  Probably works best at Supreme Court level  Because they have a tremendous amount if discretion - Judges make rational choices to implement policy goals based on attitudes ---Rational Choice Theory/ Strategic Models- judges goals - attitudes are too narrow to predict - we should think about judges goals (to get policy into law) - judges are going to understand constraints with Congress - Judges will negotiate to a more middle ground - “Sincere” Voting – Republican voting Republican - Strategic Voting- vote that is counter to their party- role of other actors, role of institution has effected - Economic idea of maximizing utility - Judges care about policy goals but cannot always vote the way they want because restrictions and regulations - Comes out of economics US Supreme Court Strategic Behavior Video - strategic model- voting depends on other factors other than policy  who is on the court with you (other judges)  other political actors (Congress and President) - Stages of Decision making  1- Grant Certiorari (Rule of 4- 4 judges have to agree to grant cert)  Pool- send law clerks and read petitions and get cases which they think Justices should read  “Discuss” List  2- Briefs and Oral Arguments ( preference might already have been set)  3- conference  4- opinion assignment  5- opinion circulation (compromise might be reached)  6- final opinion - Craig v. Boren (OK State)  What standard of review should the court use to evaluate sex-based classifications?  DUI law that differentiates between men (21) and women (18)  Craig/ Whitener- strict scrutiny should apply just like race  Oklahoma- thought rational basis was ok to use  ACLU- in between strict scrutiny and rational basis - Once opinion is assigned, Justices can:  Join majority and not write  Write concurrence or join concurrence  Write or join special concurrence- agree with outcome but not reason  Write / join dissent - Powell, Blackman, Burger- shift votes from conference to final vote  Burger and Rehnquist- dissent - Justice are not voting sincerely- they are voting strategically - Intermediate scrutiny should be applied for sex - With strategic behavior- more information is needed Function of writing a separate opinion: - Individual : British Court- opinion about individual beliefs and opinions - Institutional - looks at President and Colleagues- Civil law system- France and Germany- 1 answer, don’t air disagreement/ dissent - Hybrid - US- both factors of individual and institutional Reasons dissent rate is lower for US Courts of Appeals vs. US Supreme Court - 3 judges in the US Court of Appeal v 9 in the US Supreme Court - Supreme Court is dealing with the tough constitutional questions - Less room for disagreement in the Courts of Appeals because of the docket and error correction - Lower court is bound more tightly by precedent than US Supreme Court