Judicial review

Judicial review is the idea that courts can review acts by other branches of government (state or federal) and declare these acts unconstitutional and void based on their conflict with the Constitution. The concept of judicial review can be traced back to Sir Edward Coke’s opinion in Dr. Bonham’s Case:

And it appears in our books, that in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void;

Now we move from 1600′s England to early 1800′s America.

Marbury v. Madison

Read Article III of the US Constitution. Does it clearly give the Supreme Court the right to declare acts of the other two branches invalid?

Marbury v. Madison is the case that established judicial review. It involved whether the court had the authority to direct another branch of government, the new Secretary of State to do an act — deliver the commissions of several would-be Federal Judges appointed by a ‘lame duck’ President (a President still in office for the period of time between the election and the time for swearing-in of the next President).  It is a very influential opinion, and how it is crafted, as well as its context is worthy of discussion at length.  The entire opinion and some brief historical background in available here.

From the opinion:

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions — a written constitution — would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.

The act of Congress ‘repugnant to the Constitution’ was part of The Judiciary Act of 1789, parts of which are still in force today. It violated the Constitution, according to the opinion, because it gave original jurisdiction to the Supreme Court for that which Article III only gave appellate jurisdiction. With this opinion, judicial review was in many ways born, and the hand of the Supreme Court was greatly strengthened.

Earlier post in this series available here (federal jurisdiction), here (federal courts), and here (about lawyers).

An influential early document, Federalist Paper #78 “The Judiciary Department” http://thomas.loc.gov/home/histdox/fed_78.html is also worth reviewing.

About this post

In this post we will discuss the “three rings” of jurisdiction in civil cases:

1. Personal jurisdiction
2. Subject matter jurisdiction
3. Venue

In order for a case to be heard in a particular court, that case must meet the requirements of each of the three element outlined above (think of the rings in a Venn diagram). We will be discussing two of these rings — personal jurisdiction and subject matter jurisdiction. The third ring, venue, concerns which particular court can hear a case. This issue is not as relevant to the comparative study of US law for researchers and law students (from outside the US) and so will not be discussed.

Personal jurisdiction

Personal (in personam) jurisdiction is whether or not a court can exercise control over a defendant in an action, and revolves on a central question: “Is it fair for the defendant to be asked to appear in this court?” This question usually revolves around the amount and kind of contacts that the defendant had in the forum — the place where the court sits.

We have discussed in the previous posts how the 14th Amendment applies to the states, and the Bill of Rights apply to the federal government. As a matter of Constitutional law, the federal courts are constrained by principles of due process (that have been developed through case law) in the 5th Amendment, and state are constrained by 14th Amendment due process principles (which have also been developed through caselaw).

The limits of personal jurisdiction for states in the 14th Amendment represents a minimum amount of contacts with a state that the state’s can apply in order to exercise personal jurisidiction over a defendant. State’s are free to require more contacts with a state (thus granting personal jurisdiction in fewer cases) than the Constitutional minimum. The statutes describing the jurisdiction of a state court to reach non-state residents (personal jurisdiction) are known as “long arm statutes” because of their ability to “reach out” of a state and require someone not present in the state to appear in its courts.

Issues of personal jurisdiction often come into play when looking at internet-related litigation because of its trans-jurisdictional nature.

Subject matter jurisdiction

This type of jurisdiction deals with the authority of the court to hear the type of case. Some courts have very broad subject matter jurisdiction (often called “general jurisdiction”) and can hear all kinds of claims, such as torts/delict, contract, and real property. In contrast, some courts have very limited jurisdiction, such as courts that only hear probate cases, or family law matters.

Like the split in legislative power, the Constitution splits judicial power along principles of federalism. The federal court system was never meant to completely replace state courts, and so it has a limited subject matter jurisdiction. Article III Section 2 of the Constitution lists the limited categories of cases that may be heard in federal courts, and we will be discussing two primary areas — disputes involving federal questions and disputes between citizens of different states.

The result of this two-part system is that for every case, there are generally three options for the court that can hear the case:

1. State court only;
2. Federal court only; or
3. Either state or federal court.

Given that the federal courts are more limited in their subject matter jurisdiction, it should come as no surprise that most of the cases filed are in state courts.

Federal question

Federal question jurisdiction comes from the ‘arising under’ language in Article III Section 2 of the Constitution. This language was given a broad interpretation in Osborn v. Bank of the United States 22 U.S. 738 (1824):

We think, then, that when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. P. 22.

This idea of a “federal ingredient” gives an extremely broad range of cases that could come under federal jurisdiction — however there must be some federal element (such as a federal statute or Constitutional issue) in the case.

It should be kept in mind that Article III, however, does not create lower federal courts:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

Congress has the power to establish the lower courts (any court other than the Supreme Court) and to grant their jurisdiction. This is one way that the Legislative branch keeps the Judicial branch in check within the system of “checks and balances” of the three branches of government. There is no requirement for Congress to vest jurisdiction in the lower federal courts all the way to outer limits of the meaning of ‘arising under’ — for absolutely any case involving a federal ingredient. So at the heart of every federal question jurisdiction issue is two questions — is there a constitutional power to hear the case and is there statutory authority to hear the case. Federal question jurisdiction is granted in 28 U.S.C. 1331.

There is a great deal of case law and many interesting procedural questions involved in this issue, but we will leave those aside for the moment. The key issue is that if a case involves federal issues, there is the possibility of it being tried in a federal court.

Diversity

Diversity jurisdiction also originates with Article III Section 2 — the ‘between citizens of different states’ language. Like in federal question jurisdiction, Congress has the power to establish the lower federal courts and determine their jurisdiction. There is an outer limit of jurisdiction in Article III — any case where there are parties from different states on either the plaintiff or defendant side — and a narrower limit granted by statute — 28 U.S.C. 1332. This statute requires that the all the parties on both sides of a case be diverse (from another state) and that the claim is for over a certain dollar amount (the “amount in controversy”).

Removal

Removal is another aspect of federalism and the dual nature of the US court system. Removal is when a defendant asks that an action commenced in a state court against him or or her be brought to the federal court. For actions that fit into the third option outlined above — actions that could be in either state or federal court — it makes sense that the defendant gets the chance to have the action heard in federal court. Generally cases can only be removed if the action could have been filed by the plaintiff in federal court.

We will be exploring issues of procedure in the next several installments of this series.

The various federal courts

Because of federalism, there is essentially a dual court system — one set of federal courts, and a set of state courts in the United States. The state courts are different between states and their organisation and arrangement is largely a matter of state law (within the confines of applicable Federal law).

The Supreme Court of the United States – This is the nation’s highest court and consists of eight Associate Justices and one Chief Justice.

The US Courts of Appeal – These courts have appellate jursidiction. The Appeals courts are divided into different circuits. There are 11 circuits divided up to cover the 50 US States and a DC Circuit for Washington, D.C. In addition, there are specialised courts, including the Federal Circuit, which among other duties handles appeals on patent matters.

The District Courts – These are the trial courts within the Federal court system.

Circuit map of the United States
The flow of cases within the system

Broadly speaking, cases reach the Supreme Court in one of two ways:

1. Via appeal (on an appropriate issue) from the highest court in an individual state.
2. Via appeal from one of the federal circuit courts.

Federal cases reach one of the individual circuit courts of appeal from district courts within their geographical region, as shown on the above map. Thus a case tried in a federal district court in Austin, Texas would get appealed to the 5th Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi. From there it gets appealed to the Supreme Court.

One exception is the Court of Appeals for the Federal Circuit. Its appellate jurisdiction is based on subject matter, and it hears a wide variety of appeals. Most importantly for IP and IT researchers, it hears appeals on patent cases when patent infringement is brought up by the claimant of a suit. This means that counterclaims, claims brought by a defendant, can still result in patent cases being brought before the various circuit courts of appeal.

Precedent and Circuits

As you can see from the above, cases do not flow from one Circuit Court of Appeals to another. Cases decided by the 5th Circuit, for example, only progress to the Supreme Court (if at all), not to another Circuit Court of Appeals.

But what happens if two different circuits address the same legal issue? How does this factor in to the role of precedent in common law systems?

The answer is that the decisions of one circuit are only persuasive to another circuit. One circuit is not bound to follow the interpretation of the law in a case decided by another circuit. Circuit courts are only obliged to follow US law (such as statutes), Supreme Court decisions, and precedential caselaw within their own circuit. This fact may result in a ‘circuit split’, whereby the law on a particular issue is different in one circuit than in another. The split can even be on how to interpret a previous Supreme Court case on an issue.

Cases decided by a circuit court of appeals do of course serve as precedent to the lower courts — the district courts — within that circuit.

Splits are not just true between the various Circuit Court of Appeals, but can be true between the states. One state can decide one way on an issue of US federal or Constitutional law, and another state a completely different way. Until there is some resolution of the issue by the Supreme Court or Congress, the split may remain.

The Supreme Court generally takes cases not on the basis of correcting a wrong interpretation of law in a specific case but rather takes cases in an effort to resolve splits between circuits or state courts.

You may wish to read the following copyright cases in which two different circuits came to different conclusions about the same matter:

• Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988).
• Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997).

Advocate and solicitor rolled into one

The US system, unlike systems such as Scotland, does not separate out legal representatives who can appear in court from those who engage in other legal work. Any appropriately licensed US attorney can appear in court — many however limit their practice to only litigation (contentious) or only transactional (non-contentious) practice. This, however, is a personal decision. There is no legal distinction between calling oneself an “attorney”, a “lawyer” or even “attorney and counsellor at law”.

Legal education

Lawyers, as we will explore, are mostly regulated state-by-state and so there are many different rules for what it takes to become a lawyer. There are, however, some generalisations about how one becomes a lawyer in the US:

1. An undergraduate (or first) degree in any field. Unlike in England and Wales, in the United States these degrees generally last at least four years.
2. A three year postgraduate legal education at an ABA accredited university. The degree granted is called a ‘JD’ and stands for ‘Jurisdoctor’ or ‘Doctor of Jurisprudence’.
3. An exam by the state licensing authority called the bar exam. What is on the exam, and how long it lasts, varies between state to state.

Once he or she passes the exam and pays all necessary fees and dues, generally he or she is licensed to practice law within that specific jurisdiction. You’ll note that there is no traineeship nor a separate “Legal Practice Course”, as there is in many other jurisdictions, including Scotland.

Where can lawyers practice?

Licensing of lawyers is on a state-by-state basis, and generally lawyers cannot practice law in another state without a license for that state. Admission to the other state can sometimes be made “on motion”, whereby a practicing lawyer with sufficient experience in one state can be allowed into another without taking the bar exam. The courts and agencies in the Federal system generally do not have their own bar exams, though one exception is the USPTO, mentioned below. They do generally require however that lawyers appearing before their courts be licensed in a state and be admitted before their court.

The US Patent and Trademark Office (USPTO), for example, has its own regulations as to who may be licensed to practice before its office when “prosecuting patents” (the back and forth trying to get a patent to issue). For more, see the USPTO Office of Enrollment and Discipline.

Some additional links

• University of Texas School of Law.
• Local Rule AT-1, Admission and Discipline of Attorneys – Western District of Texas (Federal Court).
• Texas State Board of Law Examiners, “Rules Governing Admission to the Bar of Texas adopted by the Supreme Court of Texas“.
• NCBE, Comprehensive Guide to Bar Admission Requirements.

This last one is especially recommended for those wanting more details on lawyers within the US system.

• US Dept. of State, Outline of the U.S. Legal System, Ch. 4 “Lawyers, Litigants, and Interest Groups in the Judicial Process”