In WV_ if you go to magistrate court and you lose _speeding ticket

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In WV_ if you go to magistrate court and you lose _speeding ticket Powered By Docstoc
					In WV, if you go to magistrate court and you lose (speeding ticket, for example) you
appeal to the circuit court (general jurisdiction).
        When you get to the circuit court, you get a brand new trial (appeal de novo)
                It’s still a trial court! New trial, old record doesn’t count
        If you lose in general jurisdiction, you appeal to appellate court
                They look at the record of the prior case, precedent
                          Lawyers for either side write legal briefs (extended argument for
                          one side) in which you set forth what you think the law is, what
                          precedents, statutes, etc lead you to believe this is the law and that
                          your side should win
        In most states/kinds of cases, you have the right to one appeal, which
        would be to some kind of intermediate appellate court; they have a duty
        to hear your appeal.

        In a lot of states, for certain kinds of cases, that appeal is to a court of last resort.
        For instance capital punishment you get an automatic appeal to the state’s highest
                 Other cases: you ask the court of last resort to hear your case; it’s
                 discretionary for them (they would issue a writ of certiorari)

        In WV, there is no intermediate court of appeals, only Supreme Court of Appeals
              Cases are all discretionary (no capit. punishment)

Courts of gen. juris
       In some states called circuit courts or superior courts, courts of common pleas
       and even district courts.
               KY: district courts of appeal & circuit courts are the lower ones
               NY: no.1 trial court is called the Supreme Court (Law & Order)

Federal Courts:

        Chart on p.31:
Courts of limited jurisdiction in the federal system: called “Article X Courts”

Every state has at least one federal District Court (WV has 2)
       Most of your federal trials start here
       If you lose, you have a right to an appeal to
               Fed judiciary divided up into courts and circuits
                        Each district part of a circuit
                               If you appeal from fed. District court it goes to the fed.
                               Circuit court (this one located in Richmond)

If you lose there, you can petition the Supreme Court for a writ of certiorari
        Receive about 8000-10000 and hear between 110-140 cases
                Your odds are pretty slim
        Later: what kind of cases they are likely to take
        How do they decide which ones they’re going to take?
                Law clerks review them
                        - For 8 justices, the clerks work in a pool and divide them up,
                                partially on the basis of which Justice they work for
                        - Justice Stevens isn’t part of the pool
                Justices get together in conference room and discuss them.
                        - The Rule of Four: if four justices want to hear it, the Court
                            will hear the case
                                o Not enough to win, but enough to get it on docket
                                o Originated with justices who wanted to settle western
                                    water-rights cases

Legal reasoning happens within this infrastructure

Ashford v. Thornton – Ashford charges Thornton with rape & murder of his sister
through the appeal process, or initiating a criminal proceeding as a private citizen. This
was the original way of prosecution
                      - long after this procedure originated, crown begins to pursue
                          cases as a harm to society
                      - public prosecution & appeal existed alongside for a time; 1
                          year and 1 day statute of limitations on appeal
                      - after a year witnesses are gone, evidence is disturbed, people
                          didn’t want to wait
                      - appeal fell into disuse, but was still on the books
                      - Ashford brings charges, Thornton pleads not guilty and his
                          defense is the trial by battle (throws his glove down.. “not
                          guilty and I am ready to defend the same by my life”
                      - In 18th-century England we call this due process of law (have
                          the lawyers duel with words or duel yourself)
                              o Trial by battle came to Britain from the Normans in
                             o Before Normans, you had 2 methods for dealing with
                                 crimes against peace & order:
                                       Chasing and killing them after catching
                                       Trial by ordeal – i.e. holding hot bricks,
                                          drowning witches (and if you drowned, you
                                          were not guilty; live and you get burned)
                     -   That’s 1066-1818!
                     -   Ashford thinks about it; comes back
                     -   He cites an exception to the law: strong presumptions of
                         guilt (others could have been if the accuser was a woman,
                         child, old, etc)
                             o Originally this meant like if you were found over a
                                 body (in that case, we get out the rope and string you
                             o Here the strong indications were:
                                       Someone had had “carnal knowledge” of Mary
                                       Thornton had said he would have her that night
                                       They were seen out together
                                       Footprints looked like a pursuit
                                       Marks looking like impression of human hand
                                          had grasped and held with violence
                                       Clothes were torn
                                       Impression of human figure lying
                                       Thornton was stained with blood
                                       He admits he had carnal knowledge, but with
                             o There’s a lot of evidence indicating that he might have
                                 done this!
                                       Is it strong enough to deny him the right to
                                          defend himself by battle?
                                       If he was a virgin, and he’s telling the truth
                                          there would be blood even without force
                                       He had been tried and acquitted before; found
                                          not guilty
                                               This is a separate charge
                     -   Rules in favor of Thornton; Ashford appeals
                     -   Gets into appellate court
                             o Appellate courts have a panel of judges

Behrman quote of the day: “You cannot understand Scots law until the second 5th is
already gone.”
Trial by battle would seem archaic in 1800’s England
Second indictment would also seem archaic

Difference between US & England – Parliamentary sovereignty (legislative supremacy)
                    - no judicial review
                    - no overturning on basis of constitution b/c the constitution is
                       what Parliament says it is
                          o the constitution is organic statutes, custom and tradition
                    - judges here can’t change anything in the statute
                    - can interpret a little, weasel a little, but can’t say it’s invalid
                    - The appellate court here upholds right to trial by battle in
                       response to appeal
                          o Next year Parliament meets and gets rid of battle and
                    - The obvious point: the court forced the hand of Parliament,
                       and in doing so made policy

What would have happened if the Court would have just gotten rid of trial by battle (by
saying it was no longer part of the law)?
                      - Appeal would have been affirmed w/o battle and Parliament
                          would not have been outraged, hence not acted
                      - Had the chance to make the law a little better or a lot better by
                          nudging Parliament

Even when deprived of judicial review, courts still make policy

Conclusion: There is no fine line between law and politics. The law is part of politics.
It’s politics in a different form than it takes in legislature, agencies, etc. – but it’s still a
form of politics

Legalism – ideology that tends to look down on politics; politics as sort of a nasty
activity based on brute force

                         -   the basic decision rule in politics in countries like the US is
                             counting noses and saying one side is big enough to beat up the
                             other side – it’s brute force!
                         -   judicial politics isn’t the same kind of brute force; it’s power
                             wealth and influence against the weaker party. And there’s
                             compromise, etc.
                         -   legalism says decisions shouldn’t be based on power,
                             accommodation & compromise, but simply what’s right
                         -   but the problem with that is that not everbody is going to agree
                             on what’s right; on the other hand we can usually agree on who
                             voted for A or B
                        -   legalism says that compromising (i.e. on human life for
                            example) is not good. Politics is kind of dirty, brutal and
                            “what’s right” is better.

But there is still politics there (that is the lesson for today I think)

Question to think about: Is legalism a form of fundamentalism?

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