Judicial Process And Judicial Policymaking

by Tarr, G. Alan

• ISBN13: 9780534602437
• ISBN10: 0534602436
• Edition: 4th
• Format: Paperback
• Copyright: 2005-04-05
• Publisher: Cengage Learning

Summary

JUDICIAL PROCESS AND JUDICIAL POLICYMAKING-a brief text, now with a lower price-focuses on policy in its discussion of the judicial process. The author's approach is based on four major premises: 1) that courts in the U.S. have always played an important role in governing and that their role has increased in recent decades; 2) that judicial policymaking is a distinctive activity; 3) that courts make policy in a variety of ways; and 4) that courts may be the objects of public policy, as well as creators. Rather than limit the text to coverage of the U.S. Supreme Court, G. Alan Tarr examines the judiciary as the third branch of government. He then brings students into the debate by asking them to form their own evaluations of the organization, function, and impact of the courts on and within government.

Table of Contents

Preface	xv
Courts and Law	1	(22)
Legal Systems	3	(6)
The Common-Law Legal Family	3	(4)
The Civil-Law (Romano-Germanic) Legal Family	7	(1)
Civil Law versus Common Law	8	(1)
Law	9	(4)
Private Law and Public Law	9	(2)
Criminal Law and Civil Law	11	(1)
Substantive Law and Procedural Law	12	(1)
Law and Equity	12	(1)
Common Misconceptions about Law and Courts	13	(4)
Law and Uncertainty	13	(2)
Courts, Law, and Public Policy	15	(2)
Conclusions	17	(1)
Notes	18	(5)
Part One Structures and Participants in the Judicial Process	23	(110)
The Federal and State Court Systems	25	(28)
The Federal Court System	28	(8)
Structure	28	(1)
The Development of the Federal Judicial System	28	(3)
Federal Jurisdiction	31	(5)
The Federal Courts Today	36	(5)
The District Courts	36	(3)
The Courts of Appeals	39	(2)
The United States Supreme Court	41	(1)
State Courts	41	(7)
The Structure of State Court Systems	43	(3)
The Development of State Court Systems	46	(2)
Conclusions	48	(1)
Notes	49	(4)
Judges	53	(44)
What Sort of Judges Do We Want?	56	(1)
Judicial Independence versus Accountability	56	(1)
Representativeness	57	(1)
Judicial Selection in the States	57	(12)
Modes of Judicial Selection	57	(4)
The Politics of Judicial Elections	61	(4)
The Politics of Merit Selection	65	(3)
What Effect Do Judicial Selection Systems Have?	68	(1)
Who Are the State Judges?	69	(2)
The Selection of Federal Judges	71	(8)
The Size of the Federal Judiciary	71	(1)
The Selection of District Court and Appeals Court Judges	72	(2)
Selection of Lower Court Judges from Carter to George W. Bush	74	(5)
The Selection of Supreme Court Justices	79	(7)
Criteria for Selection	80	(4)
Obstacles to Presidential Influence	84	(2)
What Do Judges Do?	86	(6)
From Advocate to Arbiter	86	(2)
The Work of the Trial Judge	88	(2)
The Work of the Appellate Judge	90	(2)
Conclusions	92	(1)
Notes	93	(4)
Lawyers	97	(36)
The Trouble with Lawyers	99	(3)
The Legal Profession	102	(10)
Becoming a Lawyer	102	(5)
A Portrait of the Legal Profession	107	(4)
The Organization of the Legal Profession	111	(1)
Practicing Law	112	(5)
An Overview of Legal Practice	112	(1)
Current Types of Legal Practice	113	(4)
The Divided Legal Profession	117	(1)
Access to Legal Services	117	(7)
Criminal Justice	118	(1)
Civil Law	119	(5)
Lawyers and Clients	124	(3)
The Transformation of the American Legal Profession	127	(1)
Notes	128	(5)
Part Two Judicial Process and Judicial Decision Making	133	(142)
Trials and Appeals	135	(37)
An Overview of the Chapter	138	(1)
Trials	138	(12)
Disputes and Fact-Finding	138	(2)
The Diversity of Trials	140	(1)
Rights at Trial	140	(2)
The Trial Process	142	(8)
The Jury in the United States	150	(5)
The Changing Jury	150	(1)
Jury Size and Jury Decision Making	151	(1)
Evaluating the Jury	152	(3)
Appeals	155	(13)
The Appellate Process	155	(1)
The U.S. Supreme Court	156	(10)
Other Appellate Courts	166	(2)
Beyond Trials and Appeals	168	(1)
Notes	168	(4)
Criminal Justice and the Courts	172	(44)
Prosecutors and Defense Attorneys	173	(2)
Prosecutors	173	(1)
Defense Attorneys	174	(1)
The Process of Criminal Justice	175	(8)
Crime and Arrest	175	(3)
Charges and Dismissals	178	(2)
Bail and Pretrial Release	180	(1)
Preliminary Hearings and Grand Juries	181	(2)
Plea Bargaining	183	(9)
The Process of Plea Bargaining	183	(4)
Why Plea Bargaining Occurs	187	(2)
Attacks on Plea Bargaining	189	(2)
Evaluating Plea Bargaining	191	(1)
Policy Issues in Criminal Justice	192	(16)
The Exclusionary Rule	193	(4)
The Insanity Defense	197	(4)
Crime and Punishment: Sentencing	201	(4)
Crime and Punishment: Drug Courts	205	(3)
Conclusions	208	(2)
Notes	210	(6)
Civil Justice and the Courts	216	(31)
How Cases Arise	219	(4)
Injuries and Grievances	219	(2)
Responses	221	(2)
Rules and Processes	223	(4)
Rules	223	(1)
The Process of Civil Litigation	223	(4)
Civil Cases and Their Outcomes	227	(6)
The Universe of Cases	227	(4)
Outcomes of Civil Cases	231	(2)
A Litigation Crisis?	233	(4)
The Indictment	233	(1)
Is the United States a Litigious Society?	233	(4)
Is There a Better Way?	237	(5)
Alternatives in Dispute Resolution	238	(2)
Does ADR Work?	240	(2)
Conclusions	242	(1)
Notes	243	(4)
Judicial Decision Making	247	(28)
The Legal Perspective	248	(12)
The Phases of Judicial Decision Making	248	(1)
The Tools of Judicial Decision Making	249	(4)
Legal Reasoning as Deductive Reasoning	253	(2)
Legal Reasoning as Reasoning by Example	255	(4)
Implications	259	(1)
The Political Perspective	260	(10)
Attitudes	262	(3)
Judicial Role Orientations	265	(2)
Institutional Factors	267	(3)
Analyzing the Two Perspectives	270	(1)
Notes	271	(4)
Part Three Judicial Policymaking	275	(96)
Judicial Policymaking: An Introduction	277	(27)
The Occasions of Judicial Policymaking	278	(12)
Judicial Review and Constitutional Policymaking	278	(4)
Remedial Policymaking	282	(1)
Statutory Interpretation and Judicial Policymaking	283	(3)
Oversight of Administrative Activity and Judicial Policymaking	286	(1)
The Common Law and Judicial Policymaking	287	(2)
Cumulative Policymaking	289	(1)
The Incidence of Judicial Policymaking	290	(3)
The Level of Judicial Policymaking	290	(1)
Historical Shifts in Judicial Policymaking	291	(1)
The Agenda of Judicial Policymaking	292	(1)
Assessing Judicial Policymaking	293	(6)
Criteria for Evaluation	293	(1)
Judicial Capacity and Policy Effectiveness	293	(4)
Legitimacy	297	(2)
Conclusions	299	(1)
Notes	300	(4)
Federal Court Policymaking	304	(33)
School Desegregation	304	(11)
The Road to Brown	305	(1)
Brown I and Brown II	306	(2)
The Response to Brown, 1954--1964	308	(2)
School Desegregation, 1964--1971	310	(2)
The Courts and School Desegregation, 1971--2004	312	(3)
The Legacy of Brown	315	(1)
Abortion	315	(10)
Abortion Becomes a Legal Issue	317	(2)
Roe v. Wade	319	(2)
The Response to Roe	321	(3)
The Effects of Roe	324	(1)
Brown, Roe, and Beyond	325	(6)
The Development of Legal Issues	325	(1)
Policy Change	326	(1)
Legal Obligation	327	(3)
Policy Effectiveness	330	(1)
Notes	331	(6)
State Court Policymaking	337	(34)
School Finance	337	(12)
The Development of School Finance Litigation	338	(7)
The Broader Context of State Constitutional Policymaking	345	(4)
The Tort Law Revolution and Products Liability Law	349	(14)
The Changing Face of Products Liability Law	350	(7)
The Consequences of Policy Change	357	(5)
Responses to the Products Liability ``Crisis''	362	(1)
Conclusions	363	(1)
Notes	364	(7)
For Further Reading	371	(12)
Index	383