prompted by Patrick Crusade Member Marla Mazoch.
We hope you enjoy and benefit from it.
From: Marla Mazoch <email@example.com
Date: Sunday, October
31, 1999 9:31 AM
Subject: A Tour Through The United States Court System
In order to 'work the system' you must know how the system works! I have noticed that many folks get lost in the workings of the court system here in the US and so I want to try to clarify things.
Some of the questions I hope to answer in this posting are:
1. Why one must have trial transcripts in order to file an appeal.
2. That the courts (especially appellate) are interested in ensuring that the law was applied correctly and nothing more. They really do not care of Joe Bob's third grade teacher's aunt gave him a spanking when he is 11 and thus he is now a serial killer. They do however care that criminal procedure, the Constitution, etc. were applied correctly.
Another thing I want to say is this: The system is damaged, yes, and I am not in any way denying that in my letter below. However, the only way to change the system is to change the law. The trial courts are not in place to change the law nor are the appellate courts. Now, some might be quick to jump in and state the appellate courts can/do change the laws...but that is not true. They ensure that the law is applied....and in many cases will issue clarification on a particular law already in place. It is very important to understand that the appellate court is only in place to make sure the lower court, the trial court, applied the law correctly during trial. Period.
Finally, I want to say one more thing. I am not going to provide a detailed description here, but I want to let you know right up front that the courts have certain procedures that MUST be followed. That is true for all courts, but I want to direct your attention specifically to the appellate courts for a moment. The courts have some very particular rules in place......and they must be followed or the appeal is thrown out. When I say 'detailed' I mean that even the margins must meet certain criteria. So before sending something into the appellate court it would be really smart to find out what criteria needs to be met.
Let's start at the basics...with an interesting bit of trivia. Lady Justice is the traditional symbol. She is blindfolded, carried a scale in one hand, a sword in the other and is dressed in long flowing robes. Justice is blindfolded because the law is meant to be equally applied to all persons regardless of sex, age, or race. Her scale symbolizes her power to weigh the facts of a case empirically and objectively, while her sword emphasizes her power to enforce the law.
The goal of the United States Court system is quite simple. The courtroom is meant as a venue for expression of facts, the testimony of witnesses and the rendering of a just verdict. Justice occurs when the law has been fairly applied to the facts of the case. When parties meet in court to settle a disagreement, the process is known as litigation or a lawsuit. Because there are many different types of legal disputes, many different types of courts are required in order to ensure a fair and expedient trial.
It is now that I want to introduce you to the basic features of the United States Court System as best I can. A trial court is the place in which all cases begin. In order to ensure that all individuals are fairly tried, the trial court system is designed to provide a place for witnesses to be heard and evidence to be presented. Because trial courts are the place in which major and minor cases are initially heard, they're often referred to as the lower courts.
The main responsibility of the trial court is to determine the facts surrounding the dispute. If a jury is in attendance its duty is to understand and interpret the facts of a case. If no jury is present, this responsibility falls solely on the judge. After the facts are revealed, the appropriate legal principles are applied. Most of these principals have been previously established by the legislature and the higher courts.
Before the current trial system, as late as the 13th century, justice was sought using a method called trial by ordeal. In a trial by ordeal all forms of proof such as evidence, witnesses, etc. were thrown to the wind and a simpler method was applied. One popular method was called trial by ordeal by fire. In this test of innocence, an accused individual was forced to walk through a large blazing fire. Anyone able to come through the fire without suffering any burns was immediately judged innocent of his or her crimes. The guilty either perished in the flames or were horribly burned. The theory behind ordeal by fire was the God would protect the innocent from suffering and ensure that they guilty were properly punished!
Anyhow, back to the topic: It is thus said that trial courts have original jurisdiction. Original jurisdiction refers to the authority a court has to hear certain cases. Put simply, the court in which the case begins and is initially tried is the court of original jurisdiction.
Appellate courts are referred to as appellate jurisdictions or higher courts, since they are designed to review the action and decisions of the lower court. The primary function of the courts of appeal is to review and examine the results of the trial court, making sure both parties received a fair trial. In order to accomplish this the appellate court reviews the transcripts of the lower court proceedings, and reviews written arguments called briefs, which are submitted by the attorneys of both parties. The role of the appellate court is to determine if any legal errors were made in the trial court. Note here that I said "LEGAL ERRORS". The appellate court examines whether any error was committed in the way the law was interpreted and applied in a given case. If an error is discovered, appellate courts have the power to throw out the ruling made by the lower court.
In many court cases, issues come up that require the interpretation of the Constitution. For this reason, we have established a court system to review matters which deal directly with issues of constitutionality. Within the federal court system, trial courts are known as United States District Courts. Other federal trial courts include specialized courts such as the Court of International Trade or the Tax Court...etc. The federal appellate courts are known as the U.S. Courts of Appeals.
US District Courts are the most basic trial courts. They are on the bottom level of the federal food chain. Each state has at least one federal district court within its boundaries. Larger states require more than one district court to exist within the state due to extensive population. Currently the US Court system is divided into 94 districts, with a federal court in each district. Each of these federal courts is represented by a district attorney who is appointed to serve the interests of the government. Within the federal district court system, the number of appointed judges remains flexible to meet the varying needs of the districts.
Sometimes after a case is tried in a federal district court questions of constitutionality are still present. If this is the case, the case can be taken to the federal district court of appeals....which is obviously the next step up from the district courts and is available to all citizens to ensure the fair and equitable rendering of the law. Each case that appears at this level does benefit from a new twist which is that each case MUST be heard by two judges. They are responsible for reviewing the cases from the US District Courts....to ensure that no legal errors were committed at the district court level. Furthermore, the Court of Appeals for the Federal Circuit holds national jurisdiction. It is responsible for hearing appeals from the district courts involving patent, copyright and trademark cases....and in addition appeals from the Court of Federal Claims and the US Court of International Trade.
Supreme Courts are also known as courts of last resort. As is the case with courts of appeal, courts of last resort are considered courts of appellate jurisdiction. Therefore they only review the proceedings of the trial court. This means that the only case records that the Supreme Court will be looking at are those of the original trials. The Supreme Court reserves the right to hear only the appeals it wishes to hear. Neither party involved in a case has the right to demand a review by the Supreme Court. Courts of last resort are very particular in picking the cases they will review or hear. If the Supreme Court chooses not to review your case, then the decision of the appellate court stands. Likewise, if the court of last resort decides to hear the case, the decision it renders will be final.
The Supreme Court will only grant a hearing if the content of the case proves vital not only to the parties involved by to the general population of the United States. There is only one federal Supreme Court. It holds sessions from October to June. Due to time restrictions and the amount of cases presented, the Supreme Court has no choice but to be highly selective in choosing the cases they will hear. The Supreme Court is the highest and most powerful court in the nation. It consists of one Chief Justice and also 8 assoc. justices. Any 6 justices constitutes a quorum. The prevail before the USSC a party must have the vote of the majority of the justices who have heard the case. Appointment of justices to the Supreme Court is made by the one person only: The President. Their appointment is for life.
As you should well imagine the process of having a case accepted for review by the Supreme Court is not simple. The first step, which must be taken to get a hearing, is the filing of a document called a petition for a writ of certiorari. This document must be filed with the court and should explain in detail why the case is important enough for the court to review. The petitions are then considered by the justices...who then vote whether or not to grant the request. In order for a case to be heard, four out of the nine justices must agree that the case is relevant to the welfare of the American people. If the petition is denied, the, frankly you are out of luck. There's no other avenue for federal appeal and the ruling of the lower appellate courts must stand.
If the USSC does agree to hear your case, it does the same thing as the other appellate courts: examines transcripts, allows attorneys who have submitted briefs to argue the case, etc. Since the justices are already familiar with the details of the case, the oral arguments are usually fairly brief. However, not all questions can be answered through the study of transcripts and briefs and it has been my understanding that the oral arguments phase of the review allows the justices the opportunity to ask any questions they might have for the sake of clarification....
After the facts of the case are reviewed and the oral arguments presented, the justices take a vote. In order to reach a verdict, a majority of the justices must be in agreement. In other words, five of the nine justices side with a particular party then that party will come away a victor. The USSC does not merely end with a majority vote though. It must also present or write its opinion. Therefore the adjudication of the case is the decision and the reason for that decision is the opinion. The opinion of the court must be approved by the majority of the justices in support of the USSC decision. However, certain justices might NOT agree and write an opinion of why they felt the majority was in error. One justice usually writes a brief, also called the dissenting opinion, on behalf of all the other justices.......just the same as with the majority decision. Finally, there is one other category of how a USSC might express their decision....and that is with something called a concurring opinion. A concurring opinion is that of any other justices who agree with the majority decision yet have different reasons for reaching that decision. An opinion/brief is also submitted for these instances.
The USSC is usually NOT the court of original jurisdiction for obvious reasons....but it CAN be! The USSC serves as the court of original jurisdiction for cases involving the following: An ambassador, public minister or consul and a state is party to a dispute....any dispute.
Each state contains trial courts and an appellate court. Furthermore, most states also contain a supreme court or a court of last resort.
Starting at the very bottom and a court system that has its place in the state but not federal system is small claims court. These courts hear cases in which parties are usually suing for very small amounts of money. Because of the relative insignificance of these cases, the trial process of the small claims court is fairly unique. Attorneys are seldom present and parties to the suit represent themselves or act pro se. The advantage to this sort of court is that a quicker means to litigation can be provided for small cases at less cost to the plaintiff.
The court system has established guidelines to determine which courts have the right to hear which cases. The power and authority a court has to hear must be appropriately connected to the duties and responsibilities . This is known as subject matter jurisdiction.
At the very least the defendant must fall under the power and authority of the court in which he or she is being tried. This is known as personal jurisdiction. If the court lacks jurisdiction, the case may be heard if in rem jurisdiction (or quasi rem jurisdiction) applies. In rem jurisdiction is used when property involved in a law suit is connected to a particular state. Quasi in rem jurisdiction is a bit more complicated. It may be applied to a case if a defendant owns property within a particular state. Although the property need not be directly connected with the lawsuit, the property may be needed in order to satisfy a judgment against a party.
In a situation where jurisdiction is unclear, subject matter jurisdiction is used to decide which court has the authority to hear a particular case. For instance, the federal court will have subject matter jurisdiction only if the following factors specifically give power to the court: The Constitution; Treaties; and Federal Law. Also, federal courts have jurisdiction in criminal cases if a federal crime (such as tax evasion or the robbing of a bank) has been committed. In civil cases the federal courts have subject matter jurisdiction when a lawsuit involves some constitutional issue, a federal law, a treaty, or if the plaintiff and defendant are citizens from different states.
BUT WAIT! Even though the federal courts have subject matter jurisdiction, it does not necessarily mean that the case will be heard in federal court. Exclusive jurisdiction means the case must be heard in federal court and concurrent jurisdiction means that either court (federal or state) can hear the case. Concurrent jurisdiction can be shared between two or more states.
Each individual state does have the power to determine the jurisdictional limits of the courts within its state system. Most states have at least one trial court with general jurisdiction in civil cases. This means it has the power to hear all cases except for federal ones. Courts such as county circuit, superior courts and courts of common plea are examples of courts with general jurisdiction.
Unlike the federal court system which has only one level of trial court, many states choose to create specialized trial courts with limited subject matter jurisdiction. These courts, known as the courts of limited jurisdiction, have the power to hear only certain types of cases (family law, juvenile, etc. These courts are known as district courts, municipal courts or justice courts.
Even if all of the requirements are met to satisfy subject matter jurisdiction a court does not have authority over a case unless it can also claim personal jurisdiction over the parties involved. Simply put, this requires that individuals be tried in a state which is directly connected to the defendant, the plaintiff or the crime itself. Long arm statutes are state laws that describe the circumstances under which a state may exercise jurisdiction over a non-resident.
The power to review the decision of the court of original jurisdiction is known as appellate jurisdiction. When a court has appellate jurisdiction, one of three things will occur: 1. The appellate court will choose to affirm the decision of the trial court...thus upholding the verdict of the lower court. 2. The court will choose to reverse the decision and changes the verdict of the lower court. 3. The court will choose to reverse and remand the case....a decision essentially that erases the previous verdict and sends the case back to the lower court to be retried. The lawsuit is then sent back to the lower court because appellate jurisdiction does NOT allow a reviewing court the authority to completely retry a case.
That is why any attorney or other legal professional worth his or her salt will not, cannot, work on a case without the trial transcripts. It is impossible to do. Also, I want to reiterate again that the appellate courts are REVIEWING courts and not trial courts. They will not retry the case ......
Well, hope this helps out some. I'll write more as I have time.
----- Original Message
From: John V. Wilmerding <firstname.lastname@example.org
Sent: Monday, November 01, 1999 10:03 AM
Subject: Marla Mazoch's 'USA Court System Tour'
On Sun, 31 Oct 1999, CERJ Texas correspondent Marla Mazoch <email@example.com published this very well-written commentary on the United States court system. It is eminently worth reading, and stands on its on as a thorough exposition of conventional thinking about the court system in the USA.
It is not Marla or her commentary per se, but this conventional view itself that does not, in my opinion, fully agree with my own interpretation of what justice really is. Within the rationale of the conventional view, there are good reasons for almost everything Marla describes here in terms of how the courts work, why they do what they do, etc. However, one thing the courts of today do not do well is provide justice, and over time I hope you will read the many further commentaries sure to appear here on the CERJ list about (1) the nature of justice itself, and (2) how we must change things radically if we are to achieve it.
For the moment I'd just like to say that I do not agree with the common view -- described by Marla below -- of how 'Lady Justice' is depicted. Frankly, I think it is wrong -- even immoral -- to depict her carrying a sword. This is an arrogant image that totally identifies justice with the state; the state supposedly having a legitimate 'monopoly on violence', etc. Why symbolically legitimize a state's violence against its people?
For me, justice is much more aptly depicted -- and is also commonly shown -- as holding scales in one hand and a book in the other, like 'Lady Liberty', to symbolize the rule of law rather than the rule of brute force. And if we really believe the philosophy and principles of Restorative Justice that this CERJ coalition is dedicated to, we believe that justice is a function of community and of communities, rather than of nation-states, and that justice and fear (including the fear of the sword) cannot co-exist.
Do courts as we know them in the USA have an important role to play in justice? I think so, but they must be changed a lot. As a people, we need to get used to the idea of providing justice to one another, for all of us, instead of the state providing it for us. The state is incapable of providing the kind of justice -- true justice -- that is a function of *community. Courts -- or something like them -- can serve as fact-finders in cases where the truth is difficult to obtain. But to figure out the right thing to do among victim, offender, and community -- only Restorative Justice truly suffices.
Also, both trial courts and appellate courts change the law; this is because the law is not only bodies of legislation passed by lawmakers -- the law is also bodies of case precedent generated by previous court decisions. Even juries have the power to change the law -- jury nullification can take place when a person has been charged with a crime and the jury essentially decides 'that's no crime, and this person should not have been brought to trial'! But you think we hear about those possibilities in this cop-and-prosecutor, trail 'em, nail 'em, jail 'em system we have in the USA today! No way, Jose! Or LaMont, or LaCreesha, Or Mumia ...
Law schools teach legal theory, not just what is in law books. And in theory, the law is the will of the people made manifest. When we try to articulate the will of the people into words, we can only do so imperfectly, so the law is always imperfect and is subject to drastic changes over time. Mr. Bumble in Charles Dickens' 'Oliver Twist' said 'The Law Is a Ass, a Idiot' -- this was Dickens' way of supporting the common man's view of the fallibility of the law.
From: cj <firstname.lastname@example.org>
To: John V. Wilmerding <email@example.com>
Date: Monday, November 01, 1999 1:07 PM
Subject: [cerjcoordinators] Re: Marla Mazoch's 'USA Court System Tour'
The 2,000,000 incarcerated folks in the United States as well as the roughly 4,000,000 people under supervision by the state and federal government, and the people affected by this, which would include virtually all of society have just been given, by your commentary, the power to sabotage themselves with yet more attempts to impress morality on the courts! The prison reform movement is largely based on finding a way to get justice in a legal system that is irretrievably broken. Your opinions on justice are the same as the opinions of most of these people previously stated herein. So you have said nothing new but Marla has. Marla Mazoch is sharing information on how the court systems operate in this country to give people the information they need to understand proper legal procedure. I have read way too many cases (both pro se and represented by lawyers) where defendants are procedurally barred from federal appeal simply because they don't appear to either understand the court system (pro se) or care about justice (legal community).
Marla's commentary has nothing to do with 'conventional thinking'! It is the facts and only the facts stated with the explicit purpose of showing people that MORALITY has NOTHING to do with the court system! When people separate morality from the actual operation of the courts they have a much better chance of prevailing.
If one is suddenly involved in a street fight and the other gang is using knives you DON'T tell them, "now wait a minute here, using knives is an ineffectual way to fight". You'll get your throat slit! If you know they're using knives you pull out your 45 instead! Marla's information is to show these people how the street fight works so they can be best prepared to fight. You can talk all day about how street fights are wrong or ineffective but that does you no good when you're lying on the street bleeding. There are millions of Americans lying on the street bleeding because they didn't understand or realize the basic operation of the court systems!
Who cares whether justice is represented with a sword or scales or anything else for that matter. Talking about what's wrong with the system won't change the system! Saying that it is an improper representation of justice is ludicrous in the first place. There are already too many people in the activist community doing nothing but talking about how the system is wrong. We all need to move past that! Yes, it's wrong; so let's take it down from the inside.
As the sole port of CERJ postings you need to take some responsibility for the lives of people you affect with your words, John! I'm totally sick to my stomach of hearing people talk about how the justice system is not moral (even though it isn't moral; that's a given)...THAT'S NOT THE POINT! I have been talking for the last 6 years about knowing the nature of the Beast before we attack the Beast! It's discussion such as you have presented that assure that people will not even look at the nature of the Beast, and will go blindly into battle only to get their throats slit....and you are partially responsible for that, just as so many other "reform" leaders in this country. The court system is not nearly as dangerous as this misinformation spread far and wide where it blinds the people who are trying to change it...activists! I dare you to post this to CERJ.
From: John V. Wilmerding <firstname.lastname@example.org
To: email@example.com <firstname.lastname@example.org
Date: Monday, November 01, 1999 2:10 PM
Subject: [cerjcoordinators] Re: Marla Mazoch's 'USA Court System Tour'
Candyce, you didn't need to dare me to post this -- I post to the CERJ list almost all critical responses that I receive. And furthermore I agree with you that Marla has carefully and laboriously supplied a very valuable service here, and you have aptly assessed its value below. I feel I was remiss in not thanking and properly acknowledging her for it. Thanks for the 'slam dunk'. ;-) -- John
From: Taoss <email@example.com>
To: firstname.lastname@example.org <email@example.com>; John V. Wilmerding <firstname.lastname@example.org>
Date: Monday, November 01, 1999 6:45 PM
Subject: Re: [cerjcoordinators] Re: Marla Mazoch's 'USA Court System Tour'
John, Candy, Marla and All,
I read with interest Candy's words with regard to your take on the information Marla sent about the USA Court System. What Marla wrote includes the cold hard facts of how the system works today. No layperson can understand these things. Most attorneys admit they don't understand Law either, yet they practice it anyway. Perhaps this is why everyone uses the term "practice". Still, the system that is presently in place is the system that incarcerates or frees a person, like it or not.
Of course, I also read with interest John's take on Marla's information and you are correct that the system leaves a LOT to be desired. However, I have learned that regardless of how bad we think the system is, we must follow those rules or we go to prison for life with no possibility of return to any semblance of freedom or rights in this society.
I agree that the system is broken, spout and argue continuously that the system is broken, and strive with other activists to get the system changed. To change the system, Legislators need to change the laws. To do that, the US Supreme Court needs to hear cases/motions for such changes and then they have to agree that the changes need to be made. Without millions of people screaming continuously about changing these bad laws and broken system, we have what we have and - in the meantime - we must follow that system or be killed emotionally, financially, and sometimes physically.
Restorative Justice is the new paradigm that is on the horizon. I think many of us agree that this is so. It will eventually become reality, but it is not reality today. Today it is just a dream, a hope, a prayer, a wish.
The one thing people need to know is the truth about the information Marla sent which I think needs to go into the Patrick Crusade Operation Manual we are presently assembling, and I've told this to Marla, commending her for her good work. While we do not think the system works, we have a duty to citizens to advise them of what the system requires everyone to do, "IF" they want any hope of receiving something that appears to look like justice. Then, someday when citizens get sick enough of seeing their loved ones wrongly incarcerated, beaten and chewed up by this broken system, only to be mauled, raped, stabbed, beaten, starved, and generally forgotten/rejected/abandoned/betrayed and generally shown indifference by society to which they once belonged, then - and only then - will the new paradigm begin to surface toward reality.
So, we activists will continue working hard to open eyes. I believe therein lies the answer. But, we cannot tell the sleepers to go to court and tell court it is broken or wrong because that would be doing them a disservice. It would ensure their incarceration. Remember, this is no longer "America" where freedom of speech is allowed. So, I agree with Candy when she says that we must change the system from within. I think we need RJ people to become our lawyers, judges, legislators, teachers, professors, police, wardens and presidents. How do we accomplish this? With our children, so that their children will grow up in a free world where justice means justice for all.
From: cybernet <email@example.com
To: firstname.lastname@example.org <email@example.com
Date: Monday, November 01, 1999 12:15 AM
Subject: [jeff-dicks] Re: A Tour Through The United States Court System
Another thing I want to say is this: The system is damaged, yes, and I am not in any way denying that in my letter below. However, the only way to change the system is to change the law.
And the only way to get their cooperation is not to tear into them. I realize that American tradition has a greater respect for demanding that authority treat its subjects better than American tradition has for demanding economic justice for someone. Around the last turn of the century, William James wrote that Americans tend to classify people as either redbloods or mollycoddles, and standing up to authority could seem red-blooded while standing up for economic justice would very likely seem mollycoddle. Yet negativity when standing up to authority could very easily have the same negative effect as would the pessimism and bitterness you'd necessarily have when standing up for economic justice.
We should keep in mind that, for example, a lot of the inadequate medical care in prison would be due to a few rednecks in the prison staff, rather than official government policy. In such a case, writing to government officials as if of course the problem is with the entire system might seem powerfully and unhesitatingly anti-authoritarian, but the only effect that this would have would be to offend people. Maybe if those in charge paid more attention those who they supervise, they wouldn't be able to get away with so much, but if you write to the officials as if of course they want to see prisoners suffer, the officials will wonder what you're talking about.
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From: Marla Mazoch <firstname.lastname@example.org
To: CERJ_Commentaries@cerj.org <CERJ_Commentaries@cerj.org; John V. Wilmerding <email@example.com
Date: Monday, November 01, 1999 2:04 PM
Subject: [jeff-dicks] Re: Marla Mazoch's 'USA Court System Tour'
John & All:
I'm going to say the same thing as you did because you put it so well. I do not disagree with you, John or your views on this. In fact, I agree with them. Where you and I differ is the way we are going to accomplish this. I think it is a wonderful point to ponder and explore because until we do, I think we are spinning our proverbial wheels....and are working against each other (activists as a whole, not you and I specifically) in our endeavors.
Of course it might be immoral for "Lady Justice" to have a sword in her hand...may even be arrogant, but that does not change that she has it in her hand and that the meaning that was attributed to that is false....it might not be agreeable to some or even most, but it is nonetheless factual.
As a paralegal, I'm not trained to think emotionally when working on a case. If I did think that way I would only do a disservice to my client. Of course the mother, wife, citizen side of me DOES see the emotion etc. in these cases. How could I not? But there has to be a point where I draw the line or I cannot use my personal skills to help anyone.
I work with prisoners and I see many of them wasting THEIR time AND appeals and MONEY going through the system in a disorderly fashion, at random, with impulsiveness. Do I blame them? Heck no! BUT, that is what we should be there to help the prisoners with. I doubt, no, I KNOW, I would not be rational if I were incarcerated! No one can be rational, logical, or especially unbiased about a case that affects someone else's life for the duration, but the activists life specifically for only a moment. I'm not saying that an activist is NOT affected by their work, I'm saying that they only work on personal specific cases...with specific clients for a period of time (which is brief in the grand scheme of things) and when it is over...even if the results are favorable or not.....the person that has to bear the ultimate decision of the legal system is the person being put through it. AND, in my eyes, that says that we have a duty to them to be realistic, to encourage them to not do anything to alienate themselves, etc. from whatever method or person(s) directly or indirectly associated with their particular freedom.
John, you are right....case law DOES set precedent in ANY court. However, the problem is that when case law and statutes are in opposition the statute wins out.
The foundation for common law was built by William the Conqueror, who became the King of England. He established what is known as the Kings Court. This term referred to a system of royal courts that judged throughout England. To promote uniformity in the law, judges began using the decisions of other royal courts as the basis for ruling on cases in their own courts. By the 1200's officials had begun recording the important decisions of these royal courts. These accumulated rulings became known as Common Law and is the oldest form of law in the United States. It is not based on absolute, fixed or inflexible laws but rather changes as the needs of society changes. It takes recent developments and social situations into consideration. It also makes it possible for courts to rule on cases dealing with modern issues.
The process of judging a case by analyzing prior decisions or case law is called stare decisis. It is a Latin term which means to 'stand by that which was decided'. A previously decided case that is used as a model in which to rule upon a case involving similar legal problems is called a precedent. Although common law (which is known also as laws set by case precedents) is an important component of our legal system, most common law is inferior to laws created by legislature (statutes). In addition if a prior court ruling (precedent) contradicts a statute, the statute is controlling, unless it is found to be unconstitutional. Let me reiterate: If there is a conflict between the Constitution and any other source of law, the US Constitution is controlling.
Here are the guidelines as I use them to remember what is controlling law: Each state has a constitution which is the supreme law of that state. No state branch of govt. can enforce or apply any law in conflict with the state constitution. The state constitution though, cannot be contrary to the US Constitution. Therefore the Constitution of the US is what is central to the enactment of statutory law. Since the mid 1800's statutes have replaced common law as the principal source of law in the US. This is due to the fact that a great deal of common law has been codified or enacted into statutes by legislatures. If a common law conflicts with a statute....again....the statute is controlling. This simply means that court decisions are not considered as important or binding as a statute. The only thing a statute does not have the power to violate is the US Constitution.......the Constitution will always be controlling law.
So, John, that is why we do not always hear about cases of which you speak. Although interested, an attorney is not going to be interested in any case precedent that .... although made some defendant quite happy and quite possibly was the right MORAL decision to make......if it is in fact in violation of statutes or the constitution. Remember, court rules have a limited amount of authority and therefore are considered inferior to the Constitution and statutes. The court rulings, precedents or common law (however you want to refer to it) is on the bottom of the application of law food chain.
Yes, law school teaches more than what is in the books.....and I so much agree with your last paragraph! Only over time may the law be changed. Thus, we must attempt and persevere to change the law, but while at the same time not creating more victims and examples of prisoners. Which is WHY I wrote what I did in the first place. In order to be successful or effective in this endeavor we must follow some rules: 1. Know your opponent (the system in this case) 2. The middle ground is always best (not radical and not conservative). In the spirit of what I just said, I of course realize this is my own personal belief and that it is not necessarily that of others. However, I have learned all I know from others for the most part.....and so I hope that folks are willing to listen to my ideas and thoughts as well. I deal in facts as anyone can see. Sure, I get off track and outraged, disenchanted, and the like.....but I always come back to what I call reality....which is whatever the facts of a situation are. Until we understand what is, and WHY it is....we cannot change HOW it is.
Take care all and have a great week.
From: John V. Wilmerding <firstname.lastname@example.org
To: CERJ_Responses@cerj.org <CERJ_Responses@cerj.org
Date: Monday, November 01, 1999 3:27 PM
Subject: [cerjcoordinators] Re: Marla Mazoch's 'USA Court System Tour'
From: "John V. Wilmerding" <email@example.com
I think we have not
only a crack paralegal, but also a great justice educator budding in our
midst! ;-) -- JW
From: Kenneth L. Brickley <firstname.lastname@example.org
To: email@example.com <firstname.lastname@example.org
Date: Tuesday, November 02, 1999 2:39 AM
Subject: [jeff-dicks] Re: Marla Mazoch's 'USA Court System Tour'
After having read Mr. Wilmerding and Ms Mazoch I am inclined to agree with Ms Mazoch.
Ms Liberty enjoys a book with little or no force behind the intellect; while Ms Justice retains the ability to enforce the prescribe behavior desired by the collective will of the people in a society. Therefore, our nation's Constitution was drafted providing a prescribed manner for out government to function. Please note the amendments to the Constitution. Specifically 1-10 known as the Bill of Rights designed for our independent protection from the State(s) and the Unites States government. Note amendment 14 section 1, making the Bill of Rights ENFORCEABLE on the State(s) as well as in the state(s) regardless of the state constitution it's statutes or the United States Code.
Regardless of our ideals of how it should be, the fact is people will continue to be people with a need for and of government to provide for governing of the affairs of persons and State(s). Part of governing is providing a means to decide and resolve disputes, we provide a court. World history has shown and proven no other manner of governing has been shown to prevail.
Justice to one man
may not be justice to another. Surely not a feeling of injustice by the
other? Of course, there is that perception and so it goes. Without a system
of justice and means to enforce it then government could and history has
shown that it would take away liberty, never mind the books, symbols, and
Kenneth L. Brickley @Justicemail.com