Judicial Process and Judicial Policymaking

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ISBN: 9780495567363 | 0495567361
Cover: Paperback
Copyright: 3/3/2009

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Preface	p. xv
Courts and Law	p. 1
Legal Systems	p. 3
The Common-Law Legal Family	p. 4
The Civil-Law Legal Family	p. 6
Civil Law versus Common Law	p. 7
Law	p. 8
Private Law and Public Law	p. 8
Criminal Law and Civil Law	p. 10
Substantive Law and Procedural Law	p. 10
Law and Equity	p. 11
Common Misconceptions about Law and Courts	p. 12
Law and Uncertainty	p. 12
Courts, Law, and Public Policy	p. 13
Conclusions	p. 15
Notes	p. 16
Structures and Participants in the Judicial Process	p. 21
The Federal and State Court Systems	p. 23
The Federal Court System	p. 25
Structure	p. 25
The Development of the Federal Judicial System	p. 27
Federal Jurisdiction	p. 28
The Federal Courts Today	p. 32
The District Courts	p. 32
The Courts of Appeals	p. 35
The United States Supreme Court	p. 37
State Courts	p. 37
The Structure of State Court Systems	p. 39
The Development of State Court Systems	p. 41
Conclusions	p. 43
Notes	p. 44
Judges	p. 48
What Sort of Judges Do We Want?	p. 51
Judicial Independence versus Accountability	p. 51
Representativeness	p. 51
Judicial Selection in the States	p. 52
Modes of Judicial Selection	p. 52
The Politics of Judicial Elections	p. 56
The Politics of Merit Selection	p. 59
What Effect Do Judicial Selection Systems Have?	p. 61
Who Are the State Judges?	p. 62
The Selection of Federal Judges	p. 63
The Size of the Federal Judiciary	p. 64
The Selection of District Court and Appeals Court Judges	p. 65
Selection of Lower Court Judges from Carter to George W. Bush	p. 67
The Selection of Supreme Court Justices	p. 71
Criteria for Selection	p. 71
Obstacles to Presidential Influence	p. 75
What Do Judges Do?	p. 76
From Advocate to Arbiter	p. 76
The Work of the Trial Judge	p. 79
The Work of the Appellate Judge	p. 80
Conclusions	p. 82
Notes	p. 83
Lawyers	p. 88
The Trouble with Lawyers	p. 90
The Legal Profession	p. 92
Becoming a Lawyer	p. 92
A Portrait of the Legal Profession	p. 97
The Organization of the Legal Profession	p. 99
Practicing Law	p. 101
An Overview of Legal Practice	p. 101
Current Types of Legal Practice	p. 101
The Divided Legal Profession	p. 105
Access to Legal Services	p. 106
Criminal Justice	p. 106
Civil Law	p. 108
Lawyers and Clients	p. 112
The Transformation of the American Legal Profession	p. 114
Notes	p. 115
	p. 121
Trials and Appeals	p. 123
An Overview of the Chapter	p. 125
Trials	p. 126
Disputes and Fact Finding	p. 126
The Diversity of Trials	p. 127
Rights at Trial	p. 128
The Trial Process	p. 130
The Jury in the United States	p. 137
The Changing Jury	p. 137
Jury Size and Jury Decision Making	p. 138
Evaluating the Jury	p. 139
Appeals	p. 141
The Appellate Process	p. 141
The U.S. Supreme Court	p. 142
Other Appellate Courts	p. 151
Beyond Trials and Appeals	p. 152
Notes	p. 153
Criminal Justice and the Courts	p. 157
Prosecutors and Defense Attorneys	p. 158
Prosecutors	p. 158
Defense Attorneys	p. 159
The Process of Criminal Justice	p. 160
Crime and Arrest	p. 160
Charges and Dismissals	p. 163
Bail and Pretrial Release	p. 165
Preliminary Hearings and Grand Juries	p. 166
Plea Bargaining	p. 168
The Process of Plea Bargaining	p. 168
Why Plea Bargaining Occurs	p. 171
Attacks on Plea Bargaining	p. 173
Evaluating Plea Bargaining	p. 174
Policy Issues in Criminal Justice	p. 176
The Exclusionary Rule	p. 177
The Insanity Defense	p. 181
Crime and Punishment: Sentencing	p. 183
Crime and Punishment: Drug Courts	p. 187
Conclusions	p. 189
Notes	p. 191
Civil Justice and the Courts	p. 198
How Cases Arise	p. 201
Injuries and Grievances	p. 202
Responses	p. 202
Rules and Processes	p. 204
Rules	p. 204
The Process of Civil Litigation	p. 205
Civil Cases and Their Outcomes	p. 208
The Universe of Cases	p. 208
Outcomes of Civil Cases	p. 211
A Litigation Crisis?	p. 213
The Indictment	p. 213
Is the United States a Litigious Society?	p. 214
Is There a Better Way?	p. 217
Alternatives in Dispute Resolutions	p. 217
Does ADR Work?	p. 219
Conclusions	p. 221
Notes	p. 222
Judicial Decision Making	p. 227
The Legal Perspective	p. 229
The Phases of Judicial Decision Making	p. 229
The Tools of Judicial Decision Making	p. 229
Legal Reasoning as Deductive Reasoning	p. 234
Legal Reasoning as Reasoning by Example	p. 235
Implications	p. 238
The Political Perspective	p. 239
Attitudes	p. 241
Judicial Role Orientations	p. 244
Institutional Factors	p. 245
A Third Perspective	p. 246
Analyzing the Perspectives	p. 248
Notes	p. 249
	p. 253
Judicial Policymaking: An Introduction	p. 255
The Occasions of Judicial Policymaking	p. 256
Judicial Review and Constitutional Policymaking	p. 256
Remedial Policymaking	p. 260
Statutory Interpretation and Judicial Policymaking	p. 261
Oversight of Administrative Activity and Judicial Policymaking	p. 263
The Common Law and Judicial Policymaking	p. 264
Cumulative Policymaking	p. 265
The Incidence of Judicial Policymaking	p. 267
The Level of Judicial Policymaking	p. 267
Historical Shifts in Judicial Policymaking	p. 267
The Agenda of Judicial Policymaking	p. 268
Assessing Judicial Policymaking	p. 269
Criteria for Evaluation	p. 269
Judicial Capacity and Policy Effectiveness	p. 270
Legitimacy	p. 273
Conclusions	p. 275
Notes	p. 276
Federal Court Policymaking	p. 280
School Desegregation	p. 280
The Road to Brown	p. 281
Brown I and Brown II	p. 282
The Response to Brown, 1954 to 1964	p. 284
School Desegregation, 1964 to 1971	p. 285
The Courts and School Desegregation, 1971 to 2009	p. 287
The Legacy of Brown	p. 290
Abortion	p. 291
Abortion Becomes a Legal Issue	p. 291
Roe v. Wade	p. 294
The Response to Roe	p. 296
The Effects of Roe	p. 298
Brown, Roe, and Beyond	p. 299
The Development of Legal Issues	p. 299
Policy Change	p. 300
Legal Obligation	p. 301
Policy Effectiveness	p. 303
Notes	p. 305
State Court Policymaking	p. 311
School Finance	p. 311
The Development of School Finance Litigation	p. 312
The Broader Context of State Constitutional Policymaking	p. 318
The Tort Law Revolution and Product Liability Law	p. 321
The Changing Face of Product Liability Law	p. 322
The Consequences of Policy Change	p. 328
Responses to the Product Liability "Crisis"	p. 332
Conclusions	p. 333
Notes	p. 334
Further Reading	p. 340
Index	p. 351
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