Friday, December 19, 2008
Wednesday, December 17, 2008
Tuesday, December 16, 2008
1) Protectionism: the belief that women should be spared from life’s cruelties, served as the basis for many laws that discriminated against women
a) in 1973 the SC upheld an Illinois statute prohibiting women from practicing law
b) in 1908 the SC upheld an Oregon law limiting the number of hours that women can work
c) in 1991 the SC struck down a company’s fetal protection policy in strong terms, stating that women should not be forced to choose between having a child or a job
2) in most states women were denied the right to vote until the movement for women’s suffrage culminated in the adoption of the 19th amendment in 1920
3) The prohibition of sex based discrimination has advanced through legislation
a) EPA, 1963 REQUIRED EQUAL PAY FOR MEN AND WOMEN DOIING SIMILAR WORK but did not account for stratification of work by gender
b) Title VII of CRA of 1964 covered discrimination on the basis of sex
c) Congress passed additional legislation prohibiting discrimination in federally aided education programs. Title IX of education amendment of 1972, which prohibited sex discrimination in education (and fostered many sports programs for girls)
4) Since 1970 the SC has consistently struck down laws that discriminate on bases of sex
a) The court determined Craig V. boren(1976) that gender distinction could be justified only if they served some important government purpose
b) the intention of gender related court decisions is to end sexual stereotyping while acknowledging relevant difference between men and women
c) in the US V. Virginia (1996) the court ruled that qualified women must be allowed admissions to the Virginia military institutions (a state supported military college in Virginia) it developed a test called skeptical scrutiny that requires parties who seek to defend gender based action to demonstrated all “exceedingly persuasive justification” for that action
5) the ERA was designed to ensure that no one could be denied ER under law on account of sex
a) after ERA passed the proposal stage in 1972, its proponents failed to obtain ratification by 1982 deadline
b) the ERA met with staunch opposition from some states and from Women who wanted to maintain their traditional roles
c) Some argue ERA is unnecessary because many goals are realized by actions of SC
d) Others have argues however that because the court could reverse those decisions an ERA is still necessary
AFFIRMATIVE ACTION PROGRAMS were designed to eliminate effects of past discrimination against women and members of other minority groups
1) Programs include recruitment preferential treatment, quotas for women, minorities and people with disabilities in education employment and awarding government contracts
2) in reverse discrimination cases, plaintiffs have argued that affirmative action programs designed to protect minorities discriminate against white Americans
a) Regents of university of California VS. Bakke: the SC agreed with Alan Bakke. He had been discriminated against, but it reaffirmed the use of AAP while outlawing racial quotas set aside.
b) Johnson v. Transportation agency: Santa Clara County (1987). The SC upheld the use of affirmative AP but with significant dissension form several justices
c) the SC tried to strike balance between traditional employment practices and affirmative AP
D) The SC decided that AAP do not overrule traditional seniority rules unless actual discrimination can be demonstrated
3) the legitimacy of some form of AA came into question in the 1990s
a) Aderand constructors V. Rena: the Court declared that programs that award benefits on the basis of race would be subject to strict scrutiny and must be “narrowly improved to meet a compelling government interest”
b) the court sent the case back to the trial court for education under strict scrutiny test, the matter is still in litigation
c) Legislation in several states seek to curtail or eliminate racial preferences in education admissions and financial aid. This is likely to have a substantial impact on the number of minority students pursuing higher education
1) HOPWOOD V. TEXAS: SC ruled that race of ethnicity cannot be the determining factor admissions to their university of Texas law
2) GRATZ V. BOLLINGER: SC upheld the admission procedure of the university of Michigan graduate school which used the race as a factor and shot down the Uni. Of Mich. Undergrad. Adm. Procedure.of applying a point scale giving more points to a racial minority
d) California voter affirmed proposed state constitutionally amendment would ban use of race, color, gender, ethnicity or national origin in public employment , education or contracting.
1)protectionism-the belief that women should be spared from lifes cruelties---served as basis for discrim.
-1873-S.C upheld Ilnois statue prohibiting women from law
-1908- S.C upheld Oregon work law limiting number of hours women could work
2) in most states women were denied right to vote until the movemnet for womens suffrage culminated into 19th amendment
3) the prohibiton of sex-based discrimination advocated through legislation
A.equal pay act-1963 required equal pay for men and women doing similar work.
B. title9- of civil rights act covered discrimination for gender
4) since 1970 the S.C has consistently sturnck down laws that discrimnate on basis of sex.
A. Craig v. Boren 1978: that gender distinctions could be justified only if they served some important purpose
B.intention is to end sexual steretyping
C. US v. VA 1996: court ruled that qualified women must be allowed in to VMI
-developed skeptical scrunitny- thatt requires parites who seek to defend gender-absed action to demostrate an "exceeding justification" for that action
Affirmative Action programs designed to eliminate effects of past discrimination agaisnt women and other minorities.
1)programs like recruitment, preference treatemen, quotas for women minorities and people with disablities
2) in reverse discrimination cases, protective programs discriminate agaisnt whites
-Univeristiy of CA v. Ballke (1978) the S.C agreed that he had been discriminated agaisnt bur reaffirmed use of affirmative action programs...while outlawing racial quotas
-In johnson v. transportation agency (1978) S.C upheld the use of programs but with lots of dissention
-tried to balance traditional employment practices and affirmative programs
-S.C decided that affirm. action programs do not oveerride traditonal rules unless actual discirmination can be demostrated.
3) the legitmacy of some forms came into question in 1990s
A. adarand constructions v. Pena- court declared that programs that award benefits based on race (set-asides for minority contractors) subject to "strict scruntiny" and must be narrowly tailored to mee a compelling govt interest
B. court sent case backc to the trial court for evaluation under strict scrutiny
C. CA voters affirmed a proposed state constituional amendment that would ban use of race sex color ehtinicity in public employment
The Civil Rights Act of 1991 reversed or altered twelve court decisions that had narrowed civil rights protections
During the 1960s, the level of violence related to desegregation increased:
Black muslims, Malcolm X, before his assassination in 1965 called for separation from whites. Black Panther Party called for increased "black power" in the struggle for civil rights.
One of the consequences of the black nationalist movement was to instill pride in black history and culture and to bring black elected officials to office in America's major cities.
1987, The Supreme Court ruled that the civil rights act of 1866 offers broad protection to minorities.
***federal government policies toward Native Americans changed.
1924- Native Americans were granted citizenship.
Poverty and unemployment have led to Native Americans to resort to militant action. Since the 1970s, some Native Americans have been able to extract compensation for loss of their lands.
**Hispanic Americans have been exploited in the Southwest as farm laborers in 1965 Cesar Chavez led a strike against farmers in California.
The difficulties faced by Hispanics were similar to those faced by other non-whites, but were complicated by language barriers. Language barriers have resulted in low voting turn-outs.
The creation of nine majority Hispanic Congressional districts have facilitated some representation, but these districts are now in jeopardy.
Americans with disability act
- covers mental and physical disabilites including people with AIDS, recovering alcoholics, and drug abusers.
- The deliberately vague way that disability is defined in the statute has forced the courts to make the law more specifically defined.
Gay Liberation Movement
- Stonewall Riots (1964)
- Supreme Court first addressed these rights in 1986 when it ruled in Hardwick vs Georgia that Georgia's law forbidding homosexual relations were constitutional.
- Romer vs. Evans (1996) the Court provided some support to homosexuals when it struck down a Colorado amendment to the state constitution that banned laws protecting homosexuals. The Court reversed Hardwick vs Georgia in 2003 with Lawrence v. Texas when it held that laws against sodomy violate the due process clause of the 14th Amendment.
- The gay community now maintains a significant presence in national politics.
- Gay and Lesbian communities are still denied protection under laws that protect other minority groups.
- Gay men and women cannot serve openly in the US military; cannot sign each others health plans; or take advantage of estate planning laws.
Boy Scouts of America vs. Dale highlights the modern conflict between freedom and equality for gay citizens. Boy Scouts sought to revoke the membership of longtime scout.
Americans want equality but they differ on the extent to which gov. should provide it.
1. Most americans support equality of opportunity which gives individuals the same opportunities to get ahead
2. American are less committed to equality of outcome, which entails uniformity of social, economic and political power for people
3. Civil rights movement in the U.S. has been based on the idea that social and economic equality should be attainable for all people. Individual discrimination shouldnt be sanctioned by gov. policies.
Civil war amendments (13,14, and 15) were adopted to provide black americans with civil and policital rights.The SC (Supreme Court) seemed to intend on weakening federal attempts to ensure the the civil rights of black American.
Court ruled in 1873 that state citizenship and national citizenship remained distinct despite the rights guarneted in the 14th amendment.The SC sturck down the section of the Civil Rights Act of 1875 dealing with equality of public accommodation on the grounds that the federal gov. couldnt prohibit discrimination by private citizens.Voting rights of black were weakened through several discriminatory mechanism like poll taxes.
2. With the nullificaton of Civil Rights Act of 1875 sate laws that formally protected racial segreagation
Jim Crow laws required that housing and all other public facilities for black and whites be seperated.Plessy vs Ferguson 1896 the SC upheld state imposed racial segregation based on seperate but equal faclilities. SC extended sperate but equal for school.Denied acces to the policital system black americans began to seek access to the courts in order to challenge racial segregation in education
The NAACP helped black Americans challegne in court state laws denying them access to white only universititesMissouri Ex Rel Gaines vs Canada 1938 the SC ruled that Gaines had to be admitted to the Univeristy of Missouri law School due that Missouri couldnt shift him to another state.
In 1984, the SC went further to reject the seperated but equal in its Brown vs Board of Education decison.
Prez. Truman ordered desegregation of armed forcesMany state resisted that desegregation be implemented "with all deliberate speed"The courts approved several remedies to achieve intergration.
Monday, December 15, 2008
C. The Supreme Court has recognized that prior restraint of the press may be necessary, but it has not specified under what circumstances restraint is appropriate. Generally, we follow a policy of no prio restraint.
D. The Courts have consistently held that freedom of the press does not override the requirements of law enforement.
5) The right to petition and to asemble peaceably have merged with the guarantees of freedom of the press and speech.
The Second Amendment - which acknowledges "the right of the people to keep and bear arms" - has been the focus of heated conmtroversy in recent years.
1) though restrictions on gun ownership have passed constitutional muster, prohibitions on gun ownership may infringe on the Second Amendment
2) Gun control advocates argue that the right to bear arms should apply only to state milities, not to individuals.
Because of the adoption of the Fourtenth Amendment, most of the individual protections found in the Bill of Rights now apply to the states (the incorporate doctrine). This incorporation took place over time and several court cases so we refer to "Selective incorporarion"
1) Even before its amendment, the Constitution set some limits on both the national and the state governments with regard to citizens' rights
A. Bill of attainder - laws that make an individual guilty of a crime without a trial - were barred
B. Ex post facto laws, which declared an action a crime after it had been performed, were not permitted.
C. Both the nation and the states were aksi barred from impairing the obligation of contrcts.
2) The Supreme Court's interpretation of the due process clause in the Fourteenth Amendment has allowed individuals to contest state violations of their liberties.
3) The Supreme Court has ruled, however, that extension of the Bill of Rights guarantees to the states via the due process clause applies onlt to "fundamental" rights.
A. In Palko v. Connecticut (1937), the Court determined that double jeopardy and trial by jury were not fundamental rights to protected by the states
B. In the thirty years after the Palko decision, the Court found that most of the guarantees found in the Bill of Rights were indeed fundamental.
4)The application of constitutional procedural safeguards in criminal proceedings to the system in the last thirty years.
A. Procedural safeguards have been applied to the states through a two-step process:
1) The judiciary decides whether the guarantee in question is applicable to the states
2) The judiciary gives specific meaning to the guarantee
B. The Supreme Court has recognized that there are a variety of ways to prosecute the accused while heeding their fundamental rights.
1) The right to a jury trial was made obligatory for the states, but nothing regulates jury size or whether jmudgements should be unanimous.
2) In Gideon vs. Wainwright (1963), the Supreme Court determined that the defendants in criminal proceedings were entiteld to a lawyer.
3) In Miranda vs. Arizona (1966), the Supreme Court instituted the Miranda warnings to ensure protection against self-incrimination.
4) In Mapp vs. Ohio (1961),the Supreme Court determined that the exclusionary rule - which protects individuals from unreasonable searches and seizures - applioed to all levels of government.
5) In United States vs. Leon (1984), the Supreme Court created a "good faith exception" to the exclusionary rule. The permitted evidence obtasined from a mistakenly issued search warrant to be presented in court.
The Ninth Amendment, which protects right not specifically enumerated in the Constitution, has been used by the Supreme Court to define the limits of government encroachment on personal autonomy.
Americans want equaltity, but their opinions of how much the govt should interfer differs.
1. Most Americans supposrt equaluty of oppurtunity and the same oppurtunities to get ahead
2. Americans are less commited to equaltity of outcomes- Civil War Amendments 13, 14, and 15 provide Black Americans Civil political rights.
A. Supreme Court ruked in 1873 state and national citizenshipremained district, despite rights guaranteed by the 14th amemdment
B. Supreme court sruck down selection of Civil rights Act of 1875 dealing with equality of public accomodations on grounds that a Federal govt could not prohibit discrimination by private citizens.
C. Voting Rights of Blacks weakened through several; discriminatory mechanisms such as poll tax, lwas requiring proof of property ownership or education requirements
2. With nullification of Civil Rights Act of 1875, state lwas that formally protected racial segregation poliferated
A. "Jim Crow Lwas" required housing and all other public facilities for Blacks and Whites to be separated ( allowed segregation by law)
B. Plessy vs. Furguson 1896 Supreme Court uphelp stste imposed racial segregation based on concept of separate but equal facilities for Blacks
C. Supreme Court extended separate but equal doctrine to schools
Denied access to political system, African Americans began to seek access to courts and challelge racial segregation in education
1.National association 4 The Advancement Of Colored People (NAACP) helped to challenge court state laws denying Blacks the right to White-Only universities
A. Missouri ex rel Gaines vs. Canada 1938 Supreme court rul;ed gaines admitted to university of Missouri law school. Missouri wanted to shift him to a new state, but the Supreme court said no.
B. Swealt vs. Painter 1950 Mclaurian Vs. oklahoma state regents 1950 Supreme court ruled that facilities made available to Swealt and McLuarin were inadequate, not equal state gad to grant full student status.
2. In 1954, Supreme cOurt went further and rejected separate but equal doctrine in its decision in Brown vs. Board of education of Topeka, Kansas
A. President Truman deseregation of armed forces paved way for Brown Decision.
B. Several States revisited courts demand of Brown vs. Board of education 2 1955 where the phrase "with all diliberate speed" came from.
C. Court apporoved several remedies to achieve integration busing children to better schools (Swann vs. Charlotte- meckenberg) racial quaotas.
D. Public opinion highly divdided on issue of bussing and other desegregation remeties
E. 1974 court has limited busing to school districts that practiced discrimination in past
Advancement of racial equality required political mobilization pf people through Civil Rights Movement
1. Under leadership of Martin Luther King. Jr Black Americans used several forms of civil disobedience to protect discriminatory laws.
A. 1955 Black Americans boycotted Montgomery's segregated bus system after arrest of Rosa Parks.
B. Non-violent sit ins demonstrates common form of protest.
2. Because of increased momentum of Civil Rights movement congress passed Civil Rights Act of 1964.
A. Civil Rights Act of 1964 designed to eliminate recial discrimination in all areas.
1. Entitled persons to "full and equal enjoyment" of goods, services, provledges places of public accomodation without discrimination on grounds of race, color, religion, or nation origin.
2. Strengthened voting rights legislation
3. Established right to equality employment opportunity.
4. Created equal employment opportunites commission (EECC) charged with hearing an investigating complaints of job discrimination.
5. Provided funds could withhold from federal assisted programs by ministered discriminating manners.
1. 24th Amendment banned poll taxes in primary and general elections
2. Voting Rights Act of 1965 attory general sent voting registration supervisors into places where one half eligible minority voters to help be registered and assisted voting
3. Economic Opportunity Act of 1964
4. Fair housing Act of 1968- education and training banned discrimination in housing
5. Supreme Court demonstrated tendency toward upholding freedom
A. Grove City College vs. Bell 1964 frustrated enforcement laws banning sex discrimination schools that recieved federal education grants were required to comply with government discrimination laws. Specific departments in school benefited from grants only.
B. Civil rights restoration Act made clear that if any of institutions get federal money no part can discriminate
C. Civil Rights Act 1991 reversed 12 court decisions narrowing civl rights protections
II. Lack of progress toward equality for blacks- an important factor in rise of black national movement of 1960s
A. During 1960s level of violence related desegregation increased
B. Violence took form in rioting
1. Black muslims particularly Malcom X (before assassignated in 1965) called separation from whites and use of violence in response to white violence
· The Civil Rights movement was lead by Martin Luther King Jr. They used civil disobedience to protest discriminatory laws
i. In 1955 they boycotted the Montgomery bus system after Rosa Parks was arrested for refusing to give up her seat.
ii. They use nonviolent sit-in demonstrations
· Congress passed the Civil Rights Act of 1964
· It was upheld by the Supreme Court
· Other civil rights legislation was passed through Lyndon B. Johnson’s Great Society
i. The 24th Amendment banned all poll taxes
ii. Voting Rights Act of 1965 empowered the Attorney General to send registration supervisors into areas where less than one-half of the eligible minority voters were registered
iii. The Economic Opportunity Act of 1964 and the Fair Housing Act of 1968 provided equal education and banned discriminating in housing respectively
· The Supreme Court’s decision in Grove City College v Bell (1984) frustrated enforcement of laws banning sex discrimination
· In 1988 Civil Rights Restoration Act made clear that if any part of institution gets federal money then no part can discriminate
· Civil Act of 1991 reversed or altered 12 Court decisions
· Lack of progress caused an increase in black nationalist movements in the 1960s
· Violence increased and took the form of rioting
i. Black Muslims, most notably Malcolm X, called for the separation of blacks and whites, but didn’t advocate violence
ii. The Black Panthers presence increased in California and violence between them and the Oakland police was frequent
· Civil Rights have been extended more slowly to other minorities
· In 1987 the Supreme Court ruled that the Civil Rights Act of 1866 (known as Section 1981) offers broad protection against discrimination of all minorities
· Government policy towards Native Americans has been characterized by appropriations for their lands, neglect, and social and political isolation
· Spanish-speaking American have also experienced substantial poverty and discrimination in cities and rural areas
· In 1990 Americans with Disabilities Act extended protections embodied in the Civil Rights Act of 1964
i. Began after WWII, when disabled veterans found that society was insensitive to their needs
ii. The law covers those with physical and mental disabilities, including people with AIDs, recovering alcoholics, and drug abusers
iii. The law had a deliberately vague definition of disability
· An often overlooked aspect of the Civil Rights struggle is gay liberation movement
· Began in 1969 with the Stonewall Riots
· The Supreme Court first addressed homosexual rights in the 1986 case Hardwick v Georgia
· Gays and lesbians are still denied protection under laws that protect other minority groups
i. They’re unable to serve openly in the U.S. Military
ii. In many states same-sex partners are not able to take advantage of estate planning laws
iii. In many states gay couples cannot sign on to their partner’s health plan
Sunday, December 14, 2008
Hazelwood School District v. Kuhlmeir (1988)
-The Court upheld a high school principal's decision to delete articles on divorce and teenage pregnancy from the school's newspaper.
-The Court said that educator's may limit speech within the confines of the school curriculum and speech might be distracting.
Right to assemble peacefully
-The right to assemble peacefully is equated with the right to free speech and free press. government cannot prohibit peaceful political meetings and cannot brand as criminals those who organize, lead, and attend such meetings.
Right to bear arms
-2nd amendment has created problems for gun owners and gun control advocats. Courts have upheld restrictions on gun ownership such as registration and licensing.
-Outright prohibition of gun ownership would not likely be upheld by the Courts.
14th Amendment due procession clause
-The due process clause of the 14th Amendment is the linchpin that holds the states to the provisions of the Bill of the Rights.
-No state shall make or enforce any law which shall abridge the privledges of citizens of the US nor shall any state deprive any person of life, liberty, or property, without due process of law.
-Because of the Supreme Court's interpretation of the Due Process Clause. Most freedoms protected in the Bill of Rights function as limitations on the states today.
Palko v. Conneticut (1937)
-Found that only certain provisions of the Bill of Rights, the Fundamental Freedoms were absorbed into the due process clause and made applicable to the States.
-As a result, Palko died in Conneticut's gas chamber.
-Next 30 years saw slow but perceptible change in the standard for determining whether a Bill of Rights guarantee was fundamental.
-By 1969, when Palko was finally over-turned, the Court had found most of the Bill of Rights applicable to the States.
Criminal Procedures: The meaning Constitutional Guarantees.
-Safeguards embodied in the 4th through 8th amendments specify how government must behave in criminal procedings.
-Right to a jury trial is guaranteed by the 6th amendment. In Duncan v. Louisiana (1968), the Supreme Court made this obligatory for the States. But, the Court left it to the States to decide:
-How many jurors where required
-What it takes to reach a verdict
Right to an attorney is guaranteed by the 6th Amendment. In Gidieon v. Wainwright (1963), the Supreme Court made this obligatory for the States.
-The right not to incriminate oneself is guaranteed by 5th Amendment. In Miranda v. Arizona (1966), the Supreme Court made it obligatory for the States to inform an accused of the full measure of their Constitutional rights before interrogating them. If a person is only custody without questioning or subject to questioning without arrest, the Court does not recquire warnings.
The right to be secure against unresonable searches is contained in the 4th Amendment, Wolf v. Colorado (1949) the Court made this obligatory on the States. But the Court did not specify how to handle the evidence gathered in an illegal search.
Federal Courts have followed the exclusionary rule in search and seizure case. The exclusionary rule holds that evidence obtained obtained from an illegal search and seizure cannot be used in trial.
In Mapp v. Ohio, the Supreme Court required all levels of government to operate according to the provisionsof the 4th Amendment. Failure to do so could result in the dismissial of criminal charges against guilty defendants.
United States v. Leon (1984) the Supreme Court establsiehd good faith exception to the exclusionary rule. This meant that a state can introduce at trail evidence seized on the basis of mistakenly issued search warrant.
In California v. Greenwood (1988), the Court said that evidence collected when police search through garbage bags and other containers that people leave outside their houses could be used in Court.
And then we talked about Jeff's car getting pulled over and the right of police officers to search a car. Then...
Right to Privacy
In Griswald v. Conneticut (1965), the Court struck down a Conneticut law that made the use of birth control devices a crime. It said that a zone of privacy is created by guarantees found in the 1st, 3rd, 4th, and 5th Amendments. Griswald establised the principle that the Bill of Rights as a whole creates a right to make certain personal choices, including the right of a married couple to engage in sexual intercourse for reproduction or pleasure.
In Roe v. Wade (1973), the Supreme Court struck down a Texas law making it a crime to obtain an abortion except for the purpose of saving a woman's life. The Court based its decision on the right to privacy protected by the due process clause of the 14th Amendment.
In Webster v. Reproductive Health Services, the Supreme Court upheld the Constitutionality of a Missouri law that denied the use of purblic employees or publicly funded facilities in the performance of an abortion unless the woman's life was in danger. This was the 1st time that the Court upheld siginificant government restrictions on abortion.
In 1990, the Court split on a two state parental notification laws:
-The Court struck down a state law requiring unwed minors to notify both parents before having an abortion.
-The Court upheld a state law requiring that a physician must notify one parent of a pregnant minor of her intent to have an abortion.
Thursday, December 11, 2008
-holds states to provisions of the bill of rights
-says "no state shall make or enforce any law which abridges the privileges or immunities of citizens nor depriving any person of life, liberty, or property without due process of law"
-most freedoms in the bill of rights function as limitations on the states
The Fundamental Freedoms
-Palko v. Connecticut (1937)
- found that only certain provisions of the bill of rights were absorbed into due process and made applicable to states
- Palko died in a Connecticut gas chamber
- Next 30 years saw slow but perceptible change in standard for determining whether a bill of rights guarantee was fundamental
- by 1969, when Palko was finally overturned, the court had found most of the bill of rights applicable to states
-safeguards- embodied in the 4th-8th amendments specify how government must behave in criminal proceedings
-right to a jury trial guaranteed by the 6th amendment. In Duncan v. Louisiana (1968), the supreme court made this obligatory for the states. But, the court left it to the states to decide:
- how many jurors required
- what it takes to reach a verdict
-the right not to incriminate oneself is guaranteed by the 5th amendment. In Miranda v. Arizona (1966) the SC made it obligatory for states to inform an accused of the full measure of their constitutional rights before interrogating them.
-the right to be secure against unreasonable searches is contained in the 4th amendment. In Wolf v. Colorado (1949) the court made this obligatory on the states, but the court didn't specify how to handle evidence gathered in an illegal search.
-the Federal courts have followed the exclusionary rule in search and seizure case. The exclusionary rule holds that evidence obtained from an illegal search and seizure can't be used in a trial.
-In Mapp v. Ohio, the SC required all levels of government to operate according to the provisions of the 4th amendment. Failure to do so could result in dismissal of criminal charges against guilty defendants.
-In US v. Leon (1984) the SC established good faith exception to the exclusionary rule. This meant that a state can introduce at trial evidence seized on the basis of a mistakenly issued search warrant.
-In California v. Greenwood (1988) the court said that evidence collected when police search through garbage bags and other containers that people leave outside their houses could be used in court.
The Right to Privacy
-In Griswold v. Connecticut (1965) the court struck down a Connecticut law that made use of birth control devices a crime. It said that a zone of privacy is created by guarantees found in the 1st, 3rd, 4th, and 5th amendments. Griswold established the principle that the bill of rights as a whole creates a right to make certain intimate, personal choices.
-In Roe v. Wade (1973) the SC struck down a Texas law making it a crime to have an abortion except for the purpose of saving the woman's life. The court based its decision on the right to privacy protected by the due process clause of the 14th amendment.
-In Webster v. Reproductive Health Services the SC upheld the constitutionality of a Missouri law that denied the use of public employees or publicly funded facilities in the performance of an abortion prohibited except when the mother's life is in danger. This was the first time the SC upheld significant government restrictions on abortion.
-In 1990 the SC split on 2 state parental notification laws:
- court struck down a state law requiring unwed minors to notify both parents before an abortion
- court upheld law that a physician notify one parent of a pregnant minor of her intent to have an abortion
-In Steinburg v. Carhart (200) court struck down a Nebraska law taht had banned the partial-birth abortion
-In Bowers v. Hardwick (1986) the court held that the constitution doesn't protect homosexual relationships
-In Lawrence v. Texas (2003) SC reversed Bowers and struck down a Texas law banning sex between a homosexual couple
-the Defense of Marriage Act signed into law in 1996. Defines marriage as a union between a heterosexual couple and declares states aren't obligated to recognize gay marriages performed elsewhere.
Wednesday, December 10, 2008
Ruth v. US (1957)
Obscenity is not protected; the difficulty is in deciding what is obscene.
-The court set a test for obscenity
-'Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'
Miller v. California (1973)
Reused the obscenity test
-Now, obscenity may be regulated by government if 1. the work taken as a whole appeals to the prurient interest 2. The work portrays sexual conduct in a patently offensive way 3. The work taken as a whole lacks serious literary, artistic, political, and scientific value
Local community standards govern the first and second prongs of this test
Feminism and Pornography
In American Booksellers Association Hudnut(1984), A US district court struck down an Indianapolis ordinance that tried to restrict pornography as a form of expression of ideas because of its effecton women's status and treatment in society.
The judge ruled that the ordinance went too far in its attempts to restrict otherwise protected expression. The District Court decision was upheld by a US court of Appeals and the Supreme Court opted not to take the case under review.
Feminist political theory challenged pornography because it affects women's status and treatment in society
Barnes V. Glen Theater
Court upheld state law banning public nudity in the interest of protecting social order and morality.
*This is an example of police power
The court hinted that erotic dancing was a form of artistic expression, and was entitled to some degree of 1st amendment protection.
Freedom of the Press
Goverment shall make no law... abridging the freedom of the press
Libel- the written defamation of character
slander- the verbal defamation of chaaracter
NY Times V. Sullivan (1964)
Freedom of the press takes precedence- At least when the defamed individual is a public official.
The 1st amendment protects the publication of all statemens- even false ones- about the conduct of public officials
-The exception is statements made with malice
-The ruling has been extended to apply to suits brought by any public person whether a government official or not a public person is someone who has a significant role in society:actors, sports figures, etc.
Hustler Magazine V. Falwell (1988)
Hustler published an article that ridiculed Jerry Falwell
-Falwell sued and won $200,000 for emotional distress. The Supreme Court overturned the award and broadened the latitude of free speech. Even outrageous and offensive publishments about public figures are protected under the 1st amendment.
Prior restraint and the Press
Near V. Minnesota (1931)
Minnesota officials obtained a court order to prevent the publication of a scandal sheet which charged that local government officials were in league with gangsters.
-The injunction was based on a state law that permitted restrictions on malicious and deflamatory publications.
-This is Prior Restraint
The Supreme Court struck down the law because of prior restraint
New York Times V. US
The Supreme Court would not issue a court order stopping the publication of stolen classified documents about US involvement in Vietnam.
The court said that the government had not shown that immediate, inevitable, and irreparable harm would follow publication.
Reporters and Protected Sources
Branzburg V. Hayes (1972)
-Precedent is that freedom of the press does not override the requirements of law enforcement.
A reporter who had done an article about criminal activity refused to testify about people he had seen breaking drug laws
The court rejected his claim that the 1st amendment protected him from having to testify. Court ruled that all citizens have a duty to give their government whatever testimony they are capable of giving
Zurcher V. Stanford Daily (1978)
Court reiterated that journalists are protected from the demands of law enforcement
In this case, the Stanford newspaper could not whithhold photographs of a violent demonstration.
Hazelwood School District V. Kuhlmar (1988)
The court upheld a high school principal's decision to delete articles on divorce and teenage pregnancy from the school's newspaper
The court said that educators may limit speech within the limit of the school's curriculum and speech that might seem to bear the approval of the school provided that their actions served a valid educational purpose
Right to Assemble Peacefully
The right to assemble peacefully is equated with the right to free speech and a free press. Government can't prohibit peaceful political meetings and can't brand as criminals those who organize, lead, and attend such meetings.
Tuesday, December 9, 2008
Contemporary interpretation of the free exercise clause of the 1st amendment protects religious beliefs but not actions based on those beliefs
Supreme Court held the 1st amendment protects religious observance and beliefs. Introduces strict scrutiny standard.
1990- Court refused to grant Native American Church exemption from Oregon law which made it illegal for the possession of peyote, a hallucinogenic drug
FREEDOM OF EXPRESSION CLAUSE
According to the dominant view, the freedom of expression clause confers on the individuals’ right to unrestricted discussion of public affairs, as long as public order is not directly threatened
Founder meant no prior restraint or censorship before publication- meant publisher can’t claim 1st amendment protection if they break the law
FREE SPEECH CASES
Schende v. US (1919)
Schende arrested under a federal criminal law for attempting to disrupt WW1 recruiting
Justice Oliver Wendell Homes articulate the clear and present danger test- subjective, if it presents danger to security of US, not protected
Gitlow v NY (1925)
Convicted under state law for disturbing a left-wing manifesto calling for establishment of socialism
For the first time the court assumed/ruled that the 1st amendment applied to state government law by extension of the 14th amendment’s due process clause- called incorporating the Bill of Rights
Gitlow’s conviction upheld but 2 justices dissented arguing that there was no clear and present danger
Dennis v. US (1951)
Several communist party members convicted under Smith Act which made advocating force or violence against the US a criminal offense
No evidence presented to more claims that the communists had actually urge people to commit violent acts
Court upheld conviction but justices couldn’t decide on rationale- vote went 5-4
Brandenburg v. Ohio (1969)
KKK leader convicted under state law for advocating racial strife
Court overturned conviction and extended limits of free speech
Court held threatening speech was protected by 1st amendment unless government could prove that speech would imminent lawless action and incite action
Today most speech is protected because angry, threatening speeches are really not likely to incite, imminent lawlessness
Tinker v Des Moines Independent County School District (1969)
Court overturned suspension of 3 students who wore black armbands to protest Vietnam War
Cohen v. California (1971)
Court recognized the “one mans vulgarity is another lyric” by protecting 2 elements of speech: expression of emotion and ideas
US v. Eichman (1990)
Court reaffirmed 1st amendment protection for expressions of political ideas, including flag burning
Internet Presents Challenges
Communications Decency Act- declared unconstitutional; court argued internet more analogous to print media and it deserved 1st amendment protection
Intimidating speech and threats not protected until 2001 by US Court of Appeals
Hard for government to maintain order
To pass Strict Scrutiny the law or policy must be justified by a compelling gov. interests as well as being the least restrictive means for achieving the interest
1990, Supreme Court refused to grant membership of the Native American Church exemption from an Oregon law that said they could not have a hallucinogenic drug called peyote.
Clear and present danger test- Schenck vs. U.S, government has the right to restrict freedom of speech when public order is threatened.
A. Gitlow vs. New York- Gitlow wanted socialism, first time Supreme Court ruled Bill of Rights had to be granted bt the National Gov. and the State Gov. as well, which is called "Incoportating the Bill of Rights".
B. Dennis vs. U.S- several communist party members convicted under the Smith Act which made advocating or violence against the U.S a criminal offense. No evidence had been presented to prove claims that the communists had actually urged people to commit violent acts.
Brandenburg vs. Ohio- KKK leader was convicted under a state law for advocating strife at a Klan rally. Court overturned the conviction and exteneded the limits of free speech. Court held that the threating speech was protected by the 1st Amendment unless the government could prove, which it didnt, that the Klan leader's speech would lead to imminent lawless action and was likely to intice that action. Today most speech is protected because angry, threating......
The failure to include the Bill of Rights was themost important obstacle to the adoption of the constitution
- As It was originally written, the bills of rights imposed limits on the nat'l gov't but not on state gov't. The Supreme Court affiremed this in Barron v. Baltimore (1823)
- Constitution guarantees Americans numerous liberties and rights
- Civil liberties are freedoms guaranteed to an individual
- Declare what gov't can not do
- May be thought of as 'negative rights'
- Civil rights are powers and priviledges guaranteed to the i ndividual and protected against arbitrary removal
- Declare what gov't must do or provide
- Mst be thought of as 'positive rights'
- Protection of civil liberties in the Bill of Rights has been a center of conflict between the basic values of freedom and order
Most framers believe that the constitution protected natural rights even before agreeing to add a Bill of Rights. Rights mentioned in the Constitution include;
- Writ of habeas corpus- laws that would punish a person w/out judicial trial
- No ex post facto laws- a retroactive criminal law that affects the accused negatively
- Trial by jury in federal criminal cases
- Protetion when people move from state to state
- No titles of nobility
- Limits on punishment of treason
- No religious oath required for holding federal office
- A guarantee of republican gov't for all states
The 1st amendment prevents gov't from intefering with freedom of religion in two different ways
- The Supreme Court has affirmed the Establishment Cluase- which requires gov't to maintain religious nuetrality (seperation btw church and state)but does not bar all assistance to religious institutions. Supreme Court has accepted only incidental gov't support of religion
- Lemon v. Jurtzman (1971) The Supreme Court, using a 3 pronged test, rejected a state program authorizing purchases of secular services for churchschools. Lemon established the criteria used by courts today to judge whether the establishment clauses is being violated. 3 points specified in test:
- Must have a secular purpose
- primary result should not advance/inhibit a religion
- Must not excessively entangle gov't and religion
2. In 1997, in Agonstina v. Felton, the court loosened its application of the 'Lemon Test'.
- The court rules that NY public school teachers could teach remedial education to disadvantaged students in By parochial schools at taxpayer expense.
- Supreme Court has updeld the constitutionality of state-funded nativity scenes with some limits. They must pass the 3 prong test
- Supreme court has consistently moved prayer in public schools as gov't encouragement of religion. the 1st major case was Engle v. Vitale (1962). where the court struck down a required prayer written by the NY state gov't. Other decisions overturned state laws require the saying of the Lord's prayer and the posting of the 10 commandments in classrooms. In 1985 an Alabama law requiring a moment of silence for meditation or voluntary prayer was struck down in Wallace v. Jaffree
- In 1990, the court upheld the constitutionality of the Equal Access Act, which declares that no public secondary school recieving federal funds may ban after-school meetings on school property by student religious or political groups if the same priviledge is provided to other groups
notes cut off here
Monday, December 8, 2008
1) Lawsuits are just the tip of the iceberg; most disputes do not end up in court.
A. Many civil cases end with settlements out of court.
B. Most criminal cases end by plea bargaining, in which defendants admit guilt, usually to a lesser charge and in return for some reduction in punishment.
C. The fact that a judge sentences a defendant to a period of imprisonment or a jury awards a plaintiff $1,000,000 is no guarantee that the offender will serve that time in prison or that the plaintiff will receive payment.
2) The Supreme Court relies on others to implement its policies; the impact of its decisions reaches far beyond the parties involved.
A. The creation of a majority or a unanimity on the High Court forces justices to compromise. Ambiguity may be one way to hold a coalition together, but it also creates uncertainty about implementation.
1) Some lower court judges dragged their feet when faced with enforcing the Courts “all deliberate speed” desegregation order of the Brown decision.
2) School prayer continued in many places despite the Supreme Court’s ban. Some communities interpreted the decision to mean a ban on compulsory prayer, not voluntary prayer.
B. The Supreme Court confronts issues loaded with conflicting values or fundamental political beliefs; its decision has impact beyond the immediate parties.
1) The Court’s decision in Roe v. Wade legalized abortion in 1973 and generated heated public reaction, including piles of hate mail and proposals to overturn the decision by constitutional amendment.
2) In 1989, the Court abandoned its strong defense of abortion rights by recognizing the government’s power to limit the exercise of the right.
3) Despite its seemingly undemocratic character, the Supreme Court is not usually out of line with national public opinion.
A. The Court is insulated from public opinion because:
1) It is appointed, not elected.
2) Members serve life terms.
3) The Court can control its own docket or agenda.
4) Salaries cannot be reduced.
5) The Public has limited access to Court proceedings.
B. A study of public opinion polls from the mid-1930s through the mid-1980s revealed that the Court reflected public opinion majorities or pluralities in over 60% of its rulings.
C. This convergence is not a coincidence.
1) The Court shows deference to national laws and policies, which typically reflect public opinion.
2) The Court moves closer to public opinion during times of crisis.
3) Rulings that reflect public opinion are subject to being revisited less often than rulings that are at variants with public opinions and…
D. The Court is kept from deviating too far from public opinion because:
1) The appointment and/or confirmation process
2) The Court relies on other public officials to execute decisions
3) The Supreme Court can be overruled with new laws or constitutional amendments.
4) The Court is concerned for its reputation both individually and as an institution.
5) Justices can be impeached.
6) Congress can change the Supreme Court’s appellate jurisdiction and/or change the number of justices on the Court.
The role of courts in American democracy
1) The majoritarian view of democracy defines judging to the letter of the law.
2) The pluralist view of democracy regards judging as simply another form of policymaking; individual values and interests of judges should advance the different values and interests of the population at large.
A. This view is supported by the procedure called a class action, in which claims or defenses of similarly situated individuals are assembled so that they can be tried as a single lawsuit.A class action makes it possible for people with small individual claims and limited financial resources to aggregate their claims and resources and thus make a lawsuit viable.
Bill of rights imposed limits on National government but not the state government- affirmed in the barron v. baltimore case
Constitution garuntees many liberties and rights
A. Civil liberties- freedoms garunteed to individial
(1) say what the government can't do
(2) "negative rights"
B. Civil rights- powers and privelages garunteed to individual and protected against arbitrary removal
(1) say what the government must do and provide
(2) "positive rights"
-protection of civil liberties in the bill of rights has been a center of conflicts between basic values of freedom and order
Rights in the Constitution include:
-writ of habeas corpus: requires government to present a prinsoner in court and explain to the court why person is being held
-No bills of attainder: a law that would punish a person with out a judicial trial
-No ex post facto laws: a retroactive criminal law that affects the accused negatively
-trial by jury in federal criminal cases
- protection when people more state to state
- no titles of nobility
-limits on punishment of treason
-no religious oath required for working in office
-garuntee of republican government for all states
-1st ammendment prevents government from interferring with freedom of religion- in 2 ways
(1) establishment caluse- requires government to maintain religious neutrality (seperation between church and state) but does not barr aoll assistance to religious institutions
-Supreme court accepted only incidental government support of religion:
--Lemon v. Kurtman
-three pronged test- Lemon test: establishes crtieria used by court today to judge
-this specific case says- rejected state program authority purchases of secular services for church schools.
3 points of test:
(a) statute must have a secular purpose
(b) primary effect of the statute shouldn't be able to advance or inhibit religion
(c) satute musn't excessively entangle government and religion
-Agostini v. Felton: Court loosened application of "Lemon test"- ruled New York public school teachers could teach remedial education to disadvantaged students in New York parochial schools at taxpayers expense
-Nativity scenes must pass the Lemon test
-Engle v. Vitale: Court struck down a required prayer written by New York state governments, as well as, the Lord's Prayer and 10 commandments
-Alabama law requiring a moment of silence for mediation or voluntary prayer was stuck down in Wallace v. Jaffree
Thursday, December 4, 2008
Chapter 13 (in the middle)
-most of the bureaucrats who work for the fed. gov't are hired under the requirements of the civil service overseen since 1973 by:
A) office of personnel management which administers civil service laws, rules and regulations which administer civil service exams for the competitive service which includes about 2/3's of al appointed officials. The OPM is in charge of hiring for most fed. agencies
B) the merit systems protection board protects the integrity of the federal merit system and the rights of federal employees. The board hears changes of wrongdoing and employee appeals against agency actions and orders disciplinary actions.
-the civil service was created to reduce patronage in awarding of fed. jobs. Jobs are filled on the basis of merit in accordance with pendleton act workers can't be fired for political reasons.
A) most civil servants work outside of wash as serv. need to be accesible to people across the country
-pres. can appoint fewer that 1% of all executive branch employees, though the ones they appoint fill the top policymaking positions.
A) pres. feel that they have insufficient control over the excutive branch and would like to fill a larger number of positions in the government.
B) it would seem more appointments would make bur. more responsive.
1) can't afford to ignore policy preferences of highway builders
2) generally bur. policy doesn't move in the direction set by the white house though progress might not be attained quickly
C) pres. appointments to bur. leadership positions may also broaden opp. for advancement of tradition under-represented groups. pres. clinton was particularly succesful making his administration resemble the broader population.
Administrative policymaking: formal process
1) latitude that congress gives agencies to make policy in the spirit of legislative mandate- also known as administrative discretion
A) critics of bur. frequently complain that agencies are granted too much discretion.
B) some critics say these agencies are out of control-exaggerated claims
1) congress can rein them
2) power of purse control agencies budget
3) lead to compromise and consensus
2)rulemaking is a power congress has.
A)since they are authorized by congressional statuates reg. have the force of the law
B) when agencies issure reg. they are 1st published as proposals so that all interested parties have opp. to comment on it
C) reg. are contoldded because they force people and businesses to act in certain prescribed ways often against their own self interest.
3) while in congress often gives agencies administrative discretion in deciding how to implement laws it also serves as a check on the activities of the bur. congress oversees the bur. in a number of ways
A) duplication giving job to more than one agency
B) authorization and appropriation power of purse
D) rewritting legislation to make it more detailed.
- agencies are also checked by the pres. through:
C) budget building
Again sorry this was late, I hope it was helpful to someone though =)
-states reasons for opinion
-justice can agree with judgement for different reasons rather than argument written: called concurrence and a concurring opinion can be created
-if minority- write dissenting opinion. why the majority was wrong.
-both can be drafted
E. after conference, chief justice writes majority opinion or assigns responsibility to another.
F. we should expect typical political behavior from justices as attempt to stamp their own views on cases
4) although he is only one of 9, the chief has unique/important functions
-may provide social leadership by generating solidarity or intellect, or leadership
-through his power to control docket and direct confferences, may excercise control over.
How become a judge?
-president nominates when vacancy occurs or new postion in federal judicary
-Senate confirm the prez's nomination by majority vote. known as advise and consent.
1.the constitution specifies that judges be appointed for life or good behavior, protects them
-in accordance with norm of senatorial courtesy.
-for district court nominees must be accepted by senior senator of presidents party from
the state the nominee is from
- senators can stall or scuttle unacceptable nominees
*share this nominating power with senate
-require that senators submit more than one name
-Bush wanted female/minority
*ABA is largest association of lawyers
-cannot nominate, but makes opinions of the well-known nominees
-for the most part, has given blessings
2)recent presidents have made thier mark
-presdients can influence process
-CLinton differed from Reagen and Bush---minority/women
-Prez accepts nominees who share values
Thats it from WED. quiz on friday (tom)
Access and decision Making:
1) the mottos inscribed on the Supreme Court building capture the courts difficult task-hard job.
2) The work of the S.C is determined by access.
A. decides 100 cases per year, though gets 7000 requests to review.
B. The courts jursdiction falls into 2 categories-orginal and appellate
1. orginal-not many cases. court is the first and only fourm for resolution.
2. appellate- subject to congressional control (congress defines the courts appellate in law)
recent example is 2004 bill that would take away jurisdiction (federal) over gay marriage.
Primary source of cases entering the court.
A. cases being appealed by state courts must have reached the end of line in system and also raise federal question
B. litigants ask cour to issue writ of certerion
C. the court nearly has complete control over ist docket, agenda
D. it takes the votes of 4 justices to grant a case full consideration known as RULE OF FOUR
3) the decision to grant or deny review is affected by an executive officail, soliator general
-represents the federal govt before the court
-duties include whether the govt should apppeal lower court decisions and decide whether the govt should file "friend of court" or amicus briefs
-appointed by prez. (advocate for prez.)
-has influecne, known as tenth justice
*once the court grants review, submit writtne arguemnets (briefs). oral arguments follow
*only make decision after meet in conference
How do they make decisons??
-Judicial restraint- maintanins that legislators, not judges, should mkae laws. Judges are siad to exxcercies judicial restraint when they hew closely to statues and previous cases in reaching decision
-judical review- judges hsould interperet laws loosely, using powers to promote their preferred goals (may further liberal or conservative agenda)
- the doctrine of orginal intent- holds meaning of constituion depends on the intentions of framer.
-voting outcome is judgement
-after voting the justices in majoiry draft an opinion (majority opinion) set out reasons for decision
MORE will come later on today. About another page left
Tuesday, December 2, 2008
The role of the courts in American government
1) American courts shape policies that form the heart of American democracy
a) Because judges tend to accept the ruling of other courts in similar cases, judges in effect make policies with their decisions
b) The Supreme Court for example makes fundamental decisions vital to the preservations of freedom, order, and equality
2) Courts can undo the work of representative institutions (congress)
3) This thwarts democratic theory which argues that the majority should rule
The conferral of power on federal courts
1) The constitution established “one supreme court” but left it to congress to structure the federal judiciary
a) Congress adopted the judiciary act of 1789. It provided a system of federal courts that would coexist with the courts of each state by be independent from them
b) Congress created two general types of lower courts
I) constitutional exercise the judicial powers found in article III. Their judges are given constitutional protection of lifetime terms there are 94 district courts and 13 courts of appeals
II) Congress set up legislative courts for special purposes. They are sometimes called article I courts. They help congress carry out legislative powers. Examples are the court of claims, court of international trade, tax courts, and court of military appeals. Courts do not carry out article II and therefore the judges are not protected for life.
c) in the first decade under the constitution the supreme court was not especially powerful
I) the first Supreme Court judge (John Jay) resigned for lack of power
II) Several states men refused appointments
2) Judicial review led to the ascending of supreme courts
a) The courts power boosted under the 4th Supreme Court judge john marshal when he authored his opinion on Marbury vs Madison
I) established the power of judicial review, the power to declare congress. It was declared invalid because they conflicted with the constitution
c) The Supreme Court also exercises judicial review over state laws and executive actions. The courts hold actions of coordinate branches of the federal government.
3) Hamilton anticipated the power of judicial review and discussed it in Federalist No. 78. With this, he sought to minimize the people's fear of judicial review and also pointed out that there is the power to impeach and constitutionally amend
Organization of the court system
1) The state courts
a) Each state (and the District of Columbia) has its own court system and no two are alike
b) State courts coexist with federal court systems and indiciduals fall under the jurisdiction of both. Under the doctrine of dual sovereignty, state and federal courts can prosecute the same person for the same bad behavior under the state and federal law.
c) State courts handle and receive the vast majority of legal disputes
2) The federal courts: they are like pyramids. The Supreme Court is at the apex, the us courts of appeals occupy the middle, and the 94 district courts on the base
How courts work
1) Court fundamentals:
a) Crime is a violation of the public order as defined in the criminal code. The code is legislation that regulates conduct and specifies sanctions for violation
I) government (state and local) maintains order by prosecuting persons for violating the criminal code (criminal cases)
II) Most criminal cases are prosecuted in state courts. Some criminal cases (possession of cocaine) are prosecuted in federal courts
b) Civil cases stem from disputed claims to something value, they involve private disputes (accidents, contracts, divorce) government can be a party to such disputes
c) Few cases ever go to trial most are settled out of court, some are abandoned
d) When a judge decides a case, it is said to be adjudicated
I) to support their decision, they may give their opinion
II) if circumstances are novel, judges may publish their opinions (set precedent and add to the body of common law)
2) The US district courts (original jurisdiction only)
a) There are 94 district courts, each state have at least one (will not hear case on appeal, 1st time cases only)
b) Heard by single judge depending on the case there may or may not be a jury
c) District courts cover criminal cases, civil case which national government is a party, civil case between citizens of different states provided amount disputed exceeds $50,000
3) if a person is unhappy with the court decision they may have the option to have it appealed. Cases litigated beyond the federal district courts usually go to one of the regional appeals court known as US court of appeals
a) 13 courts, 12 cover cases from geographic areas called circuits
b) Judges on these courts sit on panels of three. They aim at correcting errors in lower courts and making policy through opinions they write.
I) their opinion gives judges influence beyond the immediate case
b) Stare decisis which means “let the decision stand”. Its decision making according to a precedent rather than some other rule
2) Judicial policy making occurs:
a) When judges interpret prior judicial decisions (known as common law or judge made laws)
b) When judges interpret legislations (known as statutory constitution)
c) Judges interpret constitution (judicial review)
c) the 13 circuits of courts of appeals do not have to consult with each other about application of law. They are made in variance in their interpretation. Such conflicts are corrected by review at the
- Federal agencies
- How they assist during natural disasters
- Roles of federal agents (counseling and handling crisis)
- Federal employees increased from 1000’s to 3million in 2002
- Government evolved as society evolves
- EPA gained power during Nixon’s year
- 4 original executive departments expanded to dozens
- Redison vs. regulation
- Whether or not little league bb should be able to hire an umpire of the age of 12-13 w/out being restricted by child labor laws
Then we took some notes
4) Agencies are checked by the president
b) Executive orders
c) Budget building
Administration and policy making (in formal politics)
1) “The science of mudding theory”- Charles Lindblom
a. The ideal rational comprehensive model holds that administrators rank values, clarify objectives, etc.
b. Real world decision making does not meet these criteria. Though bureaucrats are often criticized for “going by the book” they are required to enforce the book by law.
c. Rules do not make sense all the time bureaucrats interpret laws as the please
2) Agency policy makers encounter a number of constraints
a) Difficult to precisely define goals
b) Cannot always select most effective means for desired goals
c) Problems are often too pressing to complete study
d) Policy making tends to be characterized by incriminations with policies and programs changing bit by bit rather than dramatically
3) Behavior of bureaucrats tend to irritating and “going by the book”
a) Bureaucrats are effected by normal rules of their agencies
Problems in policy interpretation
1) Implementation: process of putting policies into implement. Bureaucrats must convert policies from words to actions
2) Factors can influence an implementation
a. if it is vague it is difficult to get it right
b. however if it is complex it is also difficult
c. sometimes lower level bureaucrats do not have enough discretion to effectively administer policies according to local circumstances
3) Implementation is the incremental process in which trial and error may lead to other policies that work
4) Bureaucratic pathology: characteristic criticized in a number of ways:
a. red tape: the maze of government rules, regulations and paper work that makes government hard to deal with
b. conflict agencies working at cross purposes with one another
d. unchecked growth
e. waste spending more on products than necessary
f. lack of accountability, difficulty firing or demoting an incompetent bureaucrat
The bureaucracy and interest groups
1) Informal ties may give interest groups influence in important policies
a) Iron triangles
b) Interest networks
Reforming the bureaucracy
1) President and agency administration always seek to improve the performance of the bureaucracy. These initiatives tend to alternate between two dominant themes:
a) Making government smaller and less intrusive
b) Fighting waste in government
2) The most recent wave of government responsiveness
a) Total quality managements: techniques applied to bureaucracy focuses on treating citizens like customers
3) Deregulation was an approach
ROLE OF COURTS IN AMERICAN GOVERNMENT
- Courts shape policies that form the heart of American democracy
- because judges tend to accept the rulings of other courts in a similar case, judges, in effect, make policy with their decisions.
- The supreme court makes fundamental decisions that are vital to the preservation of representative institutions.
THE CONSTITUTION ONLY ESTABLISHES THE SUPREME COURT
- The constitution has language that implies the creation of state courts
- Congress has adopted the judiciary act of 1789 that provided for a system of federal courts that coexist with courts of each state
- Constitutional courts- exercise judicial power found in Article III of the constitution so judges are given the constitution's protection of lifetime terms. There are 94 district courts and 13 courts of appeal.
- Legislative courts- these called Article I courts because they help carry out congress' legislative power
- During its first decade the supreme court was not especially powerful.
- The court's power was boosted under John Marshall who authored the opinion in Marbury v. Madison. This established the power of judicial review: This is the power to declare congressional acts invalid because they conflict with other legislation
- Judicial review has power over state laws and executive actions
- Hamilton anticipated the power of judicial review and discussed it in Federalist No. 78. With this, he sought to minimize the people's fear of judicial review
- Each state has its own court system and no two are alike
- They coexist with the federal court system and individuals are under jurisdiction of both court systems
- State courts handle and resolve the majority of legal disputes.
- Like a pyramid, the supreme court is at the apex, the U.S. courts of appeals are in the middle, and U.S. district courts serve as the base.
- A crime is a violation of public order defined in the criminal code. The code is legislation that regulates conduct and specifies sanctions for violation.
- Government maintains order by prosecuting persons for violating criminal code. These are called criminal cases.
- Most criminal cases are prosecuted in state courts but some are prosecuted in federal court
- Civil cases stem from disputes between people and or government over something of value(accidents, breaking contract, divorce, etc.)
- The government can be a party in a civil dispute
- Few cases ever go to trial because most are settled out of court
- When a judge decides a case it is said to be adjudicated. To support a decision, judges may give their reasons through writing an opinion
U.S. DISTRICT COURTS
- There are 94 district courts that have original jurisdiction
- Each case is heard by a single judge; depending on the case, there may or may not be a jury.
- District courts cover federal criminal cases, civil cases that allege violations of national law, civil cases against national government, civil cases between citizens of different states where the amount exceeds $50,000
- Cases that are litigated beyond the federal district courts usually go to the regional appeals courts; 12 of these courts cover cases from geographic areas called circuits
- Judges in these courts sit in panels of 3; they aim at correcting errors in lower courts and making policy through opinions they write.
- Opinion writing gives judges influence beyond the immediate case
- Precedent is a decision in one case that provides a reason for deciding a similar case in the same way.
- This can be described by the Greek phrase Stare decisis which means "let the decision stand"
- Judicial policy occurs when
- the judges interpret prior judicial decisions. This is called common law or judge-made law
- the judges interpret legislation. This is called statutory construction
- judges interpret the constitution. This is called Judicial Review
Monday, December 1, 2008
Today in class was very fun and interesting.
The class watched a movie on bureaucracy in America
Then Came the notes:
Agency faces constraints that make their job difficult.
Policy making occurs bit by bit
Government workers work by “the book” which is the laws that they must carry out.
Factors that make it difficult for people
More than one agency is involved
Bureaucratic pathology- common characteristics that criticized in many ways
Red-tape- rules and regulations that government makes
Conflict-agencies- work against each other.
More than one agency works for the same thing.
Waste-spending more on products and/or services than necessary
Lack of accountability difficulty firing or demoting an incompetent bureaucrat.
Iron Triangle- alliances among bureaucrats, interest groups, and congressional subcommittee members.
Working together to promote the same interest.
Interest Networks- both sides of the issue are involved.
Workout good policy
Total quality management- technique applied to the bureaucracy focused on treating citizens like customers.
Deregulation- approach to reform that was championed by conservatives who prefer less government involvement in the economy.
Difficult to decide an appropriate level of regulation.
The End of Class.
Homework is to finish the free response sheet that is due on Wednesday.
Sunday, November 30, 2008
**I apologize for any misspelled words**
Most of the bureaucrats who work for the fed. govt are hired under the requirements of the civil service overseen since 1978 by:
- the office of personnel mng. which administers civil service laws, rules and regulations. The OPM administers written exams for the competitive service which includes about 2/3 of all appointed officials.
- the Merit Systems Protection Board protect the integrity of the federal merit system and the rights of federal employees. The board hears charges of wrongdoing and employee appeals against agency actions and orders disciplinary actions against agency executes or employees.
- The civil service was created to reduce patronage in the awarding of fed jobs. Jobs are filled on the basis of merit in accordance with the Pendleton Act and workers cannot be fired for political reasons.
- Most civil servants work outside of was as service need to be accessible to people across the country.
Presidents can appoint fewer than 1% of all executive branch employees though the ones they appoint fill the top policymaking positions:
- Presidents feel that they have insufficient control over the executive branch.
- On the surface it might seem that increasing the # of political appt would make the bureaucracy more responsive to the president. (Not always the case.)
- Pluralism can pull agencies in different directions.
- Bureaucratic policy does move in the direction set by the White House though the progress may not be attained quickly.
- Presidential appts to bureaucratic leadership positions may also broaden apportunity for advancement of traditionally under-represented groups. Clinton was particularly successful in making his administration resemble the broader population.
Administrative policy making: formal process
- The latitude that Congress gives agencies to make the policy in the spirit of their legislative mandate is called administrative discretion.
- Critics of bureaucracy freq. complain that agencies are "out of control" and a "power unto themselves" But these claims are often exaggerated.
- when agencies do something that congress doesn't like it can rein them in with additional legislation.
- Congress can also use the power of the purse or control over an agencies budget to express its preference.
- Informal contacts between legislators and administrators lead to compromise and concensus in agency policy making.
The policymaking discretion that congress gives to agencies is usually exercised through role making. These administrative procedures result in the issurance of regulations. This is a source of agency's power.
Since they are authorized by Congressional statutes, regulations have the force of law.
When agencies issue regulations they are 1st published as proposals so that all interested parties have an opportunity to comment.
Reg. are controversial becuase they force people and businesses to act in certain prescribed ways, often against their own self interest.
Congress oversees the bureaucracy in a # of ways:
- Authorization and Appropriation
- rewriting legislation to make it more detailed
Agencies are also checked by the Pres. through:
- executive orders
- budget building
Saturday, November 29, 2008
- Most bureaucrats are hired un der requirements of civil service oberseen since 1978 by:
- A.) Office of Personnel Management which administers civil service laws, rules, and regulations. Th OPM administers written exams for computer service which includes 2/3 of all appointed officials. OPM is in charge of hiring for most federal agencies
- B.) The merit systems protection board protect the integrity of the federal merit system and rights of federal employees. The board hears charges of wrong doing and employee appeals against agency action and orders disciplinary actions against agency executives or employees
- The civil service was created to reduce patronage in awarding of federal jobs. Jobs are filled on basis of merit in accordance with the PENDLETON ACT, and workers cannot be fired for political reasons
- Most civil service work outside of DC as services need to be accessible to people across that country
- The president can appoint fewer than 1% of all executive branch employees, though the ones they appoint fill top policy making positions
- Presidents feel that they have in sufficient control over the executive branch and would like to fill larger numbers of positions in government
- On the surface, it seems that increasing the number of political appointments would make bureaucracy more responsive to the president. This is not the case
- Pluralism can pull agencies in different directions.
- Bureaucratic policy does move in the direction of the white house, though progress may not be attained quickly
- Presidential appointments to bureaucratic leadership positions may also broaden opportunities for advancement of traditionally under represented groups. President Clinton showed this by appointing more women, blacks, Hispanics, than did his predecessors
- The latitude that congress gives agencies to make policy in the spirit of their legislative mandate is called administrative discretion
- Critics of bureaucracy frequently complain that agencies are granted too much discretion
- Some critics say that agencies are "out of control" and a 'power unto themselves" but these are often exaggerated
- When agencies do something that Congress does not like it can reign them in iwht additional legislation
- Congress can also use its "power of the purse" or control over an agency's budget to express its preferences
- Moreover informal contacts between legislation and administration lead to compromise on consensus in agency policy making
- The policy making discretion that congress gives to agencies is usually exercised through rule making. These administrative procedures result in the issue of regulations. This is a source of an agency's power
- Since they are authorized by congressional statutes regulations have force of law
- When agencies issue regulations, they are first published as proposals so that all interested parties have an opportunity to comment on them
- Regulations are controversial because they force people and businesses to act in certain ways often against own self interest
- While Congress often gives agencies administrative discretion in how to implement laws, it also serves as a check on the activities of the bureaucracy. Long oversees bureaucracy in a number of ways
- Duplication- giving responsibilities for a job to no more than one agency
- Authorization and appropriation- no agency may spend money unless it has first been authorized by congress and then appropriated by congress (set aside for particular use)
- Rewriting legislation to make it more detailed
- Agencies are also checked by president through: appointments, executive orders, budget building, and reorganization
Wednesday, November 26, 2008
Bureaucracies are a large complex organizing in which employs have a specific job responsibilities
a. government bureaucracies consists of the departments thier in
b. employees of these units are know as bureaucrats
c. manner in which a bureaucracy therefor centers around finding solutions to the many different kinds of departments.
In recent years witnesses have a movement towards reducing the size of the bureaucracy
A difficult to do b/c different segments of the population work hard to protect the programs that serve them
B recent years national government seems to have reduced the number of bureaucrats employs with our reducing government programs this has been accomplishment by contracting these factions out to private employers who then pay their employees to do the same job.
C efforts at budget cutting reflect the tension
Bureaus and Bureaucrats
15 executive department largest unit of the executive branch
-A presidents policy goals often have conflict w/ the institutional goal of an individual cabinet level agency
-Cabinet members often do not have a dominate influence on precedential decision making
-Regulatory are not a part of the cabinet. The regulatory agencies are governed by small commission 5 to 10 members appointed by the president and confirmed by the senit and can not be removed by president.
-government corporation perform services that theoretically could be handled by the private sectors.
-independent executive agencies resemble cabinet department but are smaller and complex
most bureaueate that work for the federal governement.