Judicial Process – Week 3 Assignment
Your State's Judicial Selection System
Research the judicial selection method in your state. Discuss the following:
1. Are judges elected in partisan or nonpartisan elections?
2. Are judges appointed?
3. Is there a form of merit selection such as the Missouri Bar Plan?
4. What are the advantages and disadvantages of your state's judicial selection method?
Your submission should adhere to the following guidelines:
· The total length of your paper should be a minimum of 3 full pages in length.
· Use APA style for general formatting, including margins, font type and font size, spacing, and cover page.
· Include Bluebook formatted citations within the body of the paper and on the References page.
Chapter 5: Lawyers and Legal Representation
Judicial Process: Law, Courts and Politics in the United States
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1
Chapter Topics
Legal Education
Licensing Requirements
Legal Ethics and Discipline
Bar Associations
The Work of Lawyers
Diversity and Stratification of the Legal Profession
Access to Legal Services
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Legal Education before 1870
lawyers were scarce in the Colonies
entry into the profession was open – trained through self-study, often combined with an apprenticeship
start of University based American legal education at William and Mary (1779)
legal education connected to philosophy, political economy and ethics
proprietary law schools (for-profit) emerged for practitioners (Litchfield 1784)
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The Modern Law School
Harvard Law School and Dean Christopher Columbus Langdell changed legal education
introduced the case method – reading appellate court opinions
the case method is now the standard form of instruction
night law schools were founded as an alternative to University education
in 1900 32 prestigious law schools founded the Association of American Law Schools
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Law School Admission
119,775 law students
based on Law School Admission Test (LSAT) and undergraduate performance
Law School Admission Council (LSAC) develops and administers the test
applicants use the Law School Data Assembly Service (LSDAS) to send their application materials to schools
2014-15, 101,689 LSAT tests compared to 1963-64, 37,598
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women are 50% of enrolled law students, but only 34% of attorneys
minorities earn 26% of the degrees
Law School Curriculum
early curriculum was 2 years today a standard curriculum is 3 years
train students as generalists
teach students to “think like lawyers”
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Curriculum
distinctive feature is the case method
casebooks organize appellate court decisions
few references to other disciplines (history, economics, public policy, etc.)
employs the Socratic method – professor challenges student to explain the logic of their thinking
no correct way of analyzing opinions, it is the process that counts
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Curriculum
critics of legal education argue:
method of instruction is confrontational which does not suit many learning styles
some argue too focused on knowledge needed to pass the bar exam
others say not enough attention to the actual practice of law
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Differences in Law Schools
204 American Bar Association (ABA) approved law schools in 2014
most are affiliated with a university
the rest are free standing (proprietary)
law schools differ in prestige, elite national law schools, public and private university schools, and local/night schools
ranked by U.S. News and World Report every year but not without controversy—the LSAC encourages applicants to find the “best law school for them”
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Law School Costs
90% of law students rely on loans
2012 survey showed typical debt for public law schools of $66,627 and for private law schools, $126,723
2/3 of students report that law school debt keeps them from considering public sector jobs
law school has always been expensive, but the cost is rising faster than lawyer salaries
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Licensing Requirements
passing the bar exam is required to practice law
historically lawyers were admitted to the bar by courts and judges
bar associations worked to improve the quality of the legal profession
most bar exams include:
(1) basic areas of law, (2) knowledge of state law, (3) legal ethics
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Licensing Requirements
the Multistate Bar Examination is used 48 states and offered twice a year:
2010, 79,953 tests administered with a passage rate of 68%
NY & CA administer the most tests
other tests include the Multistate Professional Responsibility Test and the Multistate Essay Test
many students take a bar review course
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Legal Ethics and Discipline
are lawyers dishonest, unscrupulous, and conniving?
increasingly law schools focus on ethics
bar associations work to improve the public image of lawyers
state high courts establish the standards of conduct for the legal profession—based on the ABA’s Model Rules of Professional Conduct
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typically a state bar association disciplinary committee handles discipline
common complaints include:
(1) misuse of client funds, (2) acceptance of money for services never rendered, (3) felony conviction
complaint is filed, investigation performed, recommendation made
most complaints are dismissed, very few result in sanctions
dissatisfied clients can also file a malpractice lawsuit
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Bar Associations
created to try and improve the professional standing of the legal profession
traditionally elitist and conservative
State Bar Associations
30 states have adopted an integrated bar, requiring all attorneys to join the state bar association
American Bar Association – 600,000 members, attempts to speak for the legal profession
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Bar Association Activities
attempt to upgrade the quality of the legal profession
try to remove dishonest lawyers
promote the public image (by conducting assessments of public confidence)
activities aimed at the unauthorized practice of law — lawyers traditionally have a monopoly over legal services
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advocates argue that legal education is necessary to represent clients
researchers have found that “experience” not legal training is the best predictor of success in court (Kritzer 1998)
many legal tasks are routine (uncontested divorces, adoptions, name changes, wills)
these tasks are being made easier by computer programs and handbooks
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The Work of Lawyers
many think of lawyers and trials together but the reality is that most lawyers do not spend their time in court
England draws a formal distinction between:
Solicitors – office attorneys who advise clients but argue only minor cases,
Barristers – litigators who argue case in major trial courts
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The Work of Lawyers
Litigating – presenting cases before judges or juries
trial attorneys must organize a case and the facts for presentation to the judge or jury
only a small number of attorneys are full-time litigators
Representing – helping clients with securing a license, dealing with administrative regulations, requesting variances, etc.
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The Work of Lawyers
Negotiating – most lawsuits are settled through negotiation. Lawyers work to settle a dispute in the most favorable way for their client. Negotiations in criminal court are frequently referred to as plea bargaining.
Drafting Documents – lawyers spend a great deal of time writing documents. A properly drafted document can help a client avoid a lawsuit in the future. Documents are required at every stage of a lawsuit.
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The Work of Lawyers
Counseling Clients – lawyers advise clients about the dictates of the law. They are expected to provide sound, dispassionate advice about the law.
this role sometimes creates tension between the lawyer and client. Lawyers must sometimes give advice that the client would rather not hear—for example, the evidence will likely lead to a conviction or your not going to be able to get that much money in a settlement.
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The Work of Lawyers
Cause Lawyering – involves the mobilization of the law combined with political calculations.
emerged in the 1960s with civil rights and consumer safety initiatives
includes both the political left and right
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Where Lawyers Work
Private Practice – nearly 75% of lawyers work in private practice
number of solo practitioners is declining
economies of scale make working in a firm—an association of lawyers—more and more desirable
Business – many business hire lawyers
house counsel – employed by the business as salaried employees
outside counsel – a lawyer or firm hired by the business but not a employee
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Government – nearly 10% of the nations lawyers work for government.
typically we think of government lawyers prosecuting criminals
but many other lawyers are employed by the federal, state and local government
Law Clerks – provide legal research and writing for judges. Judicial clerkships are highly prized by law students and seen as prestigious by future employers.
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Diversity and Stratification of the Legal Profession
there are many differences among lawyers and law firms
Heinz and Lauman and Nelson found in a Chicago study:
lawyers range from general to specific in their practice with less than 25% considering themselves specialists
lawyers consistently represent either plaintiffs or defendants
lawyers tend to represent either large corporations or individuals
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Diversity and Stratification of the Legal Profession
they concluded that lawyers are either part of the
corporate sector—representing large corporations, regulatory agencies, or governmental bodies, or
personal client sector attorneys—representing individuals
corporate sector lawyering has been growing faster than the private client sector
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Large Law Firms
Often referred to as Wall Street Lawyers
Largest is Chicago’s Baker & McKenzie, 3,774
small number of “large law firms” but they have a great deal of influence
represent mostly corporate clients
offer coordinated, highly specialized legal services
lawyers are
associates—recent law school graduates who provide legal assistance
partners—hold permanent positions and contribute to firm management
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Large Law Firms
firm lawyers are sometimes described as: finders (finding new clients), minders (managing the firm), and grinders (doing legal research and work)
participate in bar association leadership
expanded rapidly in the 1980s, but number of super large firms has been declining
Solo Practitioners
individual attorneys
represent one-shotters—individuals who rarely make legal claims
have modest incomes and focus mostly on criminal, personal injury, divorce, real estate, etc.
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Lawyer Employment and Salaries
geography is important, most all new lawyer jobs are in the largest 20 cities!
fastest growth in large states, NY, CA, TX
2014 median salary $114,970
10% make less than $55,400
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Legal Services
there are many lawyers in the U.S. (>1M) but individual citizens still report difficulty obtaining legal services, why?
many lawyers work for business
lawyers can be expensive
but they are often necessary
in criminal prosecutions, legal representation is a right (Gideon v. Wainwright 1963)
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Legal Services
legal services are provided—if you cannot afford them. There are two systems:
assigned counsel – lawyers are assigned cases by a judge on case by case basis and paid hourly for their work
often young and inexperienced lawyers
used by half of the counties in the U.S.
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Legal Services
public defender—salaried lawyers working for the state or local jurisdiction who are assigned cases by an administrative professional
intended to bring professionalism to criminal representation of the poor
used frequently in urban areas
proponents argue that lawyers can focus on the cases because they are salaried, critics charge that because they receive a salary they will not be as passionate advocates
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Civil Representation for the Poor
in civil matters, free legal representation is a privilege, not a right
mostly offered by a legal clinic, the Legal Services Program or on a contingency fee basis
Contingency Fee—the lawyers agrees to be paid only if the case is won
very controversial, but
increase the availability of lawyers to the poor
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Civil Representation for the Poor
distinctive feature of U.S. law
opponents charge that (1) unfair to clients because winning lawyers take a large portion of the settlement, (2) lawyers make too much for their time spent, (3) the chance of winning big causes reckless behavior by the attorneys.
proponents counter that (1) lawyers that use the contingency fee do not benefit all that much, (2) they turn away plenty of cases, (3) may not cause higher verdicts
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Civil Representation for the Poor
Advertising and Legal Clinics
most advertising is modest, but accident victims often do receive letters from attorneys. States may place restrictions on advertising
legal clinics may be run by community based organizations or law schools. They often specialize in uncomplicated matters: uncontested divorce, wills, bankruptcy, etc.
the number of clinics has been declining
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Civil Representation for the Poor
Legal Services Program—created in 1965 by President Lyndon Johnson to offer civil legal services to the poor
precursors were small, largely urban organizations trying to provide professional legal services
the LSP created neighborhood offices, government funded, independent, advocated for the poor
replaced by the Legal Services Corporation in 1974
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Civil Representation for the Poor
Legal Services Corporation – is a private, nonprofit corporation established by Congress in 1974
overseen by an 11 person committee appointed by the president and confirmed by the Senate
FY 2005 budget, $330.8M
provides aid to >1M annually
subject of partisan debates in Congress, but support is bi-partisan and budgets have been steady
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Conclusion
legal representation is very important
legal education is rigorous
lawyers belong to bar associations and attempt to police themselves for ethical violations
the legal profession is diverse
legal services for indigents in criminal matters is a right, but for civil matters it is a privilege
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Chapter 6: Judges
Judicial Process: Law, Courts and Politics in the United States
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1
Chapter Topics
Judicial Selection
Appointment of Federal Judges
Judicial Elections
Merit Selection
Which Selection System is Best?
Judges at Work
Judging the Judges
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Characteristics of a Good Judge?
no agreed upon set of criteria that make up the personality of a good judge
judges are expected to be fair, honest, patient, wise, legal wisdom, etc…
but they are also expected to be good managers—keep the docket moving, organized
what are the characteristics of a good judge?
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Who Should Select Judges?
no consensus on whom we should trust to select judges
the choices include, lawyers, elected officials or the voters
a case can be made for and against each of these actors
because of disagreement about who should select judges, judicial selection is a highly unstructured process that includes many different actors depending on the jurisdiction
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Judicial Independence or Political Accountability?
judicial independence is viewed as vital for neutral and impartial decision making, but
elections are viewed by many as the best method of guaranteeing the popular accountability of judicial policy makers
a tension is created between judicial independence and accountability
judges typically enjoy longer terms than elected officials
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Varying Roads to a Judgeship
three principle methods of judicial selection are used in the United States
appointment – selection by either the executive or legislative branch of government
election – either partisan or non-partisan
merit selection – typically involving appointment with retention elections
political geography matters
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Appointment of Federal Judges
determined by the Constitution
nominated by the President
confirmed by the Senate
serve during good behavior (i.e., life)
the process appears simple but it is complex and political
varies by the level of court (District, Circuit, Supreme)
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Appointment of Federal Judges
The President has considerable power
only the President can nominate
vacant judgeships are highly valued
present opportunities to purse political objectives and reward party faithful
however, the president has very little control over when vacancies will occur
lifetime appointment and Congress rarely authorizes additional judgeships
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Appointment of Federal Judges
Historically the Senate played a greater role in the confirmation process
suggested nominees
the home-state Senator had to approve of the nomination “senatorial courtesy”
Today the role of the Senate is diminished, observers agree that there is less consultation and there has a been decline in “senatorial courtesy”
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The Demise of Senatorial Courtesy?
The Senate is granted the power of “advice and consent”
Senatorial courtesy is the unwritten tradition whereby presidents allow Senators to be consulted before the president nominates a person to a federal judicial vacancy in their state
a Senator from the president’s party could place a hold on the nominee, preventing their consideration
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The Demise of Senatorial Courtesy?
the influence of senatorial courtesy has been diminished in recent years
its impact varies depending on the:
political party of the president and Senators, Senators of the same party have more influence
the level of Court, Senators have more influence at the District level, less at the Circuit level and virtually none when the vacancy is on the Supreme Court
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Interest Group Involvement
interests groups are focusing on judicial selections
the American Bar Association (ABA) has historically been very influential—recently that influence has been diminished
interest groups focus on:
promoting possible nominees
influencing the confirmation votes of Senators
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Presidential Political Goals
federal judges have been selected to:
reward the party faithful (e.g., Presidents Harding and Theodore Roosevelt)
maximize the professionalism of the judiciary (e.g., Presidents Taft and Harding)
influence public policy (e.g., Presidents Wilson and Franklin Roosevelt)
modern presidents clearly focus on the political nature of appointments
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The Obama Judiciary
In just over six years President Obama has left his imprint on the Federal judiciary.
he has appointed the most diverse judiciary ever
over 50% of his District Court nominations have been women
he has appointed the largest number of judges with a net worth >$1,000,000
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