Judicial Process and Judicial Policymaking

by Tarr, G. Alan

• ISBN13: 9780534586805
• ISBN10: 0534586805
• Format: Paperback
• Copyright: 2002-06-20
• Publisher: Wadsworth Publishing

Summary

JUDICIAL PROCESS AND JUDICIAL POLICYMAKING 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. Then he 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	(108)
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	(6)
The District Courts	36	(4)
The Courts of Appeals	40	(2)
The United States Supreme Court	42	(1)
State Courts	42	(6)
The Structure of State Court Systems	43	(4)
The Development of State Court Systems	47	(1)
Conclusions	48	(1)
Notes	49	(4)
Judges	53	(43)
What Sort of Judges Do We Want?	56	(1)
Judicial Independence versus Accountability	56	(1)
Representativeness	57	(1)
Judicial Selection in the States	57	(10)
Modes of Judicial Selection	57	(5)
The Politics of Judicial Elections	62	(3)
The Politics of Merit Selection	65	(2)
What Effect Do Judicial Selection Systems Have?	67	(1)
Who Are the State Judges?	67	(4)
The Selection of Federal Judges	71	(8)
The Size of the Federal Judiciary	73	(1)
The Selection of District Court and Appeals Court Judges	73	(3)
Selection of Lower Court Judges from Carter to Clinton	76	(3)
The Selection of Supreme Court Justices	79	(6)
Criteria for Selection	80	(3)
Obstacles to Presidential Influence	83	(2)
What Do Judges Do?	85	(6)
From Advocate to Arbiter	85	(2)
The Work of the Trial Judge	87	(2)
The Work of the Appellate Judge	89	(2)
Conclusions	91	(1)
Notes	92	(4)
Lawyers	96	(35)
The Trouble with Lawyers	99	(2)
The Legal Profession	101	(10)
Becoming a Lawyer	101	(6)
A Portrait of the Legal Profession	107	(3)
The Organization of the Legal Profession	110	(1)
Practicing Law	111	(6)
An Overview of Legal Practice	111	(1)
Current Types of Legal Practice	112	(4)
The Divided Legal Profession	116	(1)
Access to Legal Services	117	(6)
Criminal Justice	117	(1)
Civil Law	118	(5)
Lawyers and Clients	123	(3)
The Transformation of the American Legal Profession	126	(1)
Notes	127	(4)
Part Two Judicial Process and Judicial Decision Making	131	(146)
Trials and Appeals	133	(38)
An Overview of the Chapter	136	(1)
Trials	136	(12)
Disputes and Fact-Finding	136	(2)
The Diversity of Trials	138	(1)
Rights at Trial	138	(2)
The Trial Process	140	(8)
The Jury in the United States	148	(5)
The Changing Jury	148	(1)
Jury Size and Jury Decision Making	149	(1)
Evaluating the Jury	150	(3)
Appeals	153	(13)
The Appellate Process	153	(1)
The United States Supreme Court	154	(10)
Other Appellate Courts	164	(2)
Beyond Trials and Appeals	166	(1)
Notes	166	(5)
Criminal Justice and the Courts	171	(45)
Prosecutors and Defense Attorneys	172	(2)
Prosecutors	172	(1)
Defense Attorneys	173	(1)
The Process of Criminal Justice	174	(8)
Crime and Arrest	174	(3)
Charges and Dismissals	177	(2)
Bail and Pretrial Release	179	(1)
Preliminary Hearings and Grand Juries	180	(2)
Plea Bargaining	182	(10)
The Process of Plea Bargaining	183	(3)
Why Plea Bargaining Occurs	186	(3)
Attacks on Plea Bargaining	189	(1)
Evaluating Plea Bargaining	190	(2)
Policy Issues in Criminal Justice	192	(16)
The Exclusionary Rule	193	(4)
The Insanity Defense	197	(2)
Crime and Punishment: Sentencing	199	(5)
Crime and Punishment: Drug Courts	204	(4)
Conclusions	208	(2)
Notes	210	(6)
Civil Justice and the Courts	216	(32)
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	(5)
Judicial Decision Making	248	(29)
The Legal Perspective	250	(11)
The Phases of Judicial Decision Making	250	(1)
The Tools of Judicial Decision Making	250	(5)
Legal Reasoning as Deductive Reasoning	255	(2)
Legal Reasoning as Reasoning by Example	257	(3)
Implications	260	(1)
The Political Perspective	261	(9)
Attitudes	262	(5)
Judicial Role Orientations	267	(1)
Institutional Factors	268	(2)
Analyzing the Two Perspectives	270	(2)
Notes	272	(5)
Part Three Judicial Policymaking	277	(96)
Judicial Policymaking: An Introduction	279	(27)
The Occasions of Judicial Policymaking	281	(11)
Judicial Review and Constitutional Policymaking	281	(3)
Remedial Policymaking	284	(2)
Statutory Interpretation and Judicial Policymaking	286	(2)
Oversight of Administrative Activity and Judicial Policymaking	288	(1)
The Common Law and Judicial Policymaking	289	(2)
Cumulative Policymaking	291	(1)
The Incidence of Judicial Policymaking	292	(3)
The Level of Judicial Policymaking	292	(1)
Historical Shifts in Judicial Policymaking	293	(1)
The Agenda of Judicial Policymaking	294	(1)
Assessing Judicial Policymaking	295	(6)
Criteria for Evaluation	295	(1)
Judicial Capacity and Policy Effectiveness	295	(4)
Legitimacy	299	(2)
Conclusions	301	(1)
Notes	302	(4)
Federal Court Policymaking	306	(33)
School Desegregation	306	(11)
The Road to Brown	307	(1)
Brown I and Brown II	308	(2)
The Response to Brown, 1954--1964	310	(2)
School Desegregation, 1964--1971	312	(2)
The Courts and School Desegregation, 1970--2000	314	(3)
The Legacy of Brown	317	(1)
Abortion	317	(10)
Abortion Becomes a Legal Issue	319	(2)
Roe v. Wade	321	(3)
The Response to Roe	324	(2)
The Effects of Roe	326	(1)
Brown, Roe, and Beyond	327	(6)
The Development of Legal Issues	327	(1)
Policy Change	328	(1)
Legal Obligation	329	(3)
Policy Effectiveness	332	(1)
Notes	333	(6)
State Court Policymaking	339	(34)
School Finance	339	(11)
The Development of School Finance Litigation	340	(7)
The Broader Context of State Constitutional Policymaking	347	(3)
The Tort Law Revolution and Products Liability Law	350	(14)
The Changing Face of Products Liability Law	351	(7)
The Consequences of Policy Change	358	(5)
Responses to the Products Liability ``Crisis''	363	(1)
Conclusions	364	(1)
Notes	365	(8)
For Further Reading	373	(12)
Index	385