03 Key 1. The members of the U.S. Supreme Court are called magistrates. Answer: False The individuals who operate our courts are called judges or magistrates. In some appellate courts, such as the U.S. Supreme Court, members of the court are called justices. 2. In cases tried before a jury, the function of the jury is to decide questions of fact, but the judge still is responsible for deciding questions of law. Answer: True In cases tried before a jury, the function of the jury is to decide questions of fact. The judge still is responsible for deciding questions of law. 3. The judiciary can review the laws passed by the legislative body. Answer: True In the United States the most significant power of the courts, or "judiciary," is judicial review, which is the power to review laws passed by the legislative body and to declare them to be unconstitutional and void. It also allows the courts to review actions taken by the executive branch and to declare them unconstitutional. 4. Many states have rules allowing for juries of less than twelve in civil cases but all states continue to require juries of twelve in criminal matters. Answer: False Historically, a jury consisted of 12 persons. Today many states and some federal courts have rules of procedure that provide for smaller juries in both criminal and civil cases. 5. The results arrived at by juries of 6 and juries of 12 show quite discernable differences. Answer: False Several studies have found no discernible difference between results reached by a six-person jury and those reached by a 12-person jury. As a result, many cases are tried before six-person juries today. 6. In most states, a jury's decision must be unanimous. Answer: True In most states, a jury's decision must be unanimous because many believe that the truth is more nearly to be found and justice rendered if the jury acts only on one common conscience. 7. The U.S. Constitution does not specify the size of juries required in civil and criminal trials. Answer: True Federal law does not specify the number of jurors—only the types of cases that may be brought to trial before a jury at common law. 8. The Sixth and Seventh Amendments of the U.S. Constitution guarantee the right to a jury trial in civil and criminal cases. Answer: True Trial by jury is a cherished right guaranteed by the Bill of Rights. The Sixth and Seventh Amendments to the Constitution guarantee the right of trial by jury in both criminal and civil cases. 9. Jurors are required to give reasons for their decisions. Answer: False Actually, it would be almost impossible for the jury to agree on the reasons for its verdict. A jury may agree as to the result but disagree on some of the facts, and different jurors may have different ideas or understandings of the testimony. 10. The U.S. court system is an adversarial system. Answer: True The U.S. court system is an adversarial system. Although private parties may represent themselves without a lawyer, as a practical matter, lawyers are required in most cases. Since knowledge of court procedures and substantive law is required as a bare minimum in most cases, lawyers serve as the representative advocates in the court system. 11. A lawyer cannot be actively involved in the personal decisions of clients Answer: True A lawyer is often actively involved in the personal decisions of clients, ranging from their business affairs and family matters such as divorce to their alleged violations of the criminal law. 12. A lawyer's first duty is to his client. Answer: False A lawyer's first duty is to the administration of justice. As an officer of the court, he or she should see that proceedings are conducted in a dignified and orderly manner and that issues are tried on their merits only. 13. A lawyer cannot testify against a client, even if called to do so at a trial. Answer: True To encourage full disclosure by a client, the rules of evidence provide that confidential communications to a lawyer are privileged. The law does not permit a lawyer to reveal such facts and testify against a client, even if called to do so at a trial. 14. The judicial power of the federal courts is defined and limited by the U.S. Constitution. Answer: False Article III of the Constitution (see Appendix) provides that judicial power be vested in the Supreme Court and such lower courts as Congress may create. The judicial power of the federal courts has been limited by Congress. 15. All taxpaying American citizens automatically have the right to begin any lawsuit in any court they choose. Answer: False Jurisdiction refers to the power of a court, at the state or federal level, to hear a case. For any court to hear and decide a case at any level, it must have subject matter jurisdiction, which is the power over the issues involved in the case. Jurisdiction may be limited as to subject matter, amount in controversy, or area in which the parties live. 16. Diversity of citizenship requires that all plaintiffs be citizens of different states from all defendants. Answer: True Diversity of citizenship requires that all plaintiffs be citizens of different states from all defendants. 17. Congress has created a separate U.S. Court of Appeals for each state. Answer: False Under its constitutional authorization, Congress has created 12 U.S. Courts of Appeal plus a special Court of Appeals for the Federal Circuit. 18. When the U.S. Supreme Court reviews petitions for a writ of certiorari, the writ is granted if four of the nine justices vote to take the case. Answer: True When the U.S. Supreme Court reviews petitions for a writ of certiorari, the writ is granted if four of the nine justices vote to take the case. 19. A writ of certiorari is a request from the winner in a case to have the favorable judgment confirmed by a higher court. Answer: False A petition for a writ of certiorari is a request by the losing party in the court of appeals for permission to file an appeal with the U.S. Supreme Court. 20. Every citizen must have his or her petition for a writ of certiorari granted by the U.S. Supreme Court by right. Answer: False The Supreme Court has discretion as to whether or not it will grant the petition and allow another review. This review is not a matter of right. 21. Proponents of judicial restraint do not view the role of attorneys and the practice of law as that of social reform. Answer: True Those who believe that the power should not be used except in unusual cases are said to believe in judicial restraint. Those who think that the power should be used whenever the needs of society justify its use believe in judicial activism. 22. The terms judicial restraint and judicial activism are not exclusive to particular judges and many may share aspects of both in their judicial philosophy. Answer: True Often a jurist may be an activist in one area of the law and a firm believer in judicial restraint in another. 23. The philosophy of judicial restraint is sometimes referred to as strict constructionism. Answer: True The philosophy of judicial restraint is sometimes referred to as strict constructionism. 24. Those who believe in judicial restraint believe that social, political, and economic change in society should result from the political process rather than from court action. Answer: True Those who believe in judicial restraint believe that social, political, and economic change in society should result from the political process rather than from court action. 25. Activist courts tend to be more result conscious and to place less reliance on precedent. Answer: True Activist courts tend to be more result conscious and to place less reliance on precedent. 26. Declaring that seniority has preference over Affirmative Action layoffs is an example of a typical judicial restraint decision. Answer: True Followers of judicial restraint often take a pragmatic approach to litigation. Whenever possible, decisions are based on the facts rather than a principle of law. Reviewing courts exercising judicial restraint tend to accept the trial court decisions unless they are clearly wrong on the facts or the law. 27. The government cannot ban political spending by corporations. Answer: True In a 5-4 decision, the Court overturned Austin and McConnell, declaring that the government may not ban political spending by corporations. 28. The main job of judges is to: A. determine the facts from the evidence in a jury trial. B. present the evidence to the jury. C. give juries no deference. D. apply the law to the facts. E. campaign for reelection. Answer: D. apply the law to the facts. In all cases, the function of the trial judge is to determine the applicable rules of law to be used to decide the case. In cases tried without a jury, the judge is also responsible for finding the facts. The judge still is responsible for deciding questions of law in jury trials. 29. Which of the following is most likely to be the function of a judge? A. Determining the relevant facts B. Presenting evidence to the jury C. Serving as representative advocates in the courts D. Applying the law to the facts E. Arguing the law to the court Answer: D. Applying the law to the facts Judges apply the law to the facts, jurors find or determine the facts from conflicting evidence, and the facts as found by the jury are given great deference. 30. The Amendments to the Constitution guarantee the right to a jury trial. A. Sixth and Seventh B. First and Twelfth C. First and Seventh D. Second and Fifth E. Ninth and Fourteenth Answer: A. Sixth and Seventh Trial by jury is a cherished right guaranteed by the Bill of Rights. The Sixth and Seventh Amendments to the Constitution guarantee the right of trial by jury in both criminal and civil cases. 31. In civil cases, the right to trial by a jury is preserved in suits at common law when the amount in controversy exceeds: A. $20. B. $2,500. C. $500. D. $175. E. There is no minimum amount. Answer: A. $20. Although juries are used in only a very small percentage of all cases, they remain critical to the administration of justice. In civil cases the right to trial by a jury is preserved in suits at common law when the amount in controversy exceeds $20. 32. The jury is the trial jury that returns a verdict in both criminal and civil cases. A. grand B. appellate C. petit D. federal E. hung Answer: C. petit The petit jury is the trial jury that returns a verdict in both situations. Although juries are used in only a very small percentage of all cases, they remain critical to the administration of justice. 33. Which of the following is true of the role of jurors? A. They determine the applicable rules of law relevant to the case. B. They present the evidence and arguments to the juries and judges. C. They apply the law to the facts. D. They apply constitutional limitations and guarantees. E. They determine the facts from conflicting evidence. Answer: E. They determine the facts from conflicting evidence. It is important to understand the role of the jury as a fact-finding body. Since litigation may involve both questions of law and questions of fact, the deference given to the decisions of a jury is very important. 34. A lawyer's first duty is: A. to his or her client. B. to make money. C. to defeat the opposing lawyer. D. to apply law to the facts. E. the administration of justice. Answer: E. the administration of justice. As an officer of the court, the lawyer should see that proceedings are conducted in a dignified and orderly manner and that issues are tried on their merits only. The practice of law should not be a game or a battle of wits, but a means to promote justice. 35. Which of the following is true of a trial by jury? A. Juries are used in all civil and criminal cases. B. Federal law does not specify the types of cases that can be tried by juries. C. The right of trial by jury is guaranteed in both criminal and civil cases. D. In most states, a jury's decision need not be unanimous, but must be based on a simple majority. E. Federal law specifies that juries for criminal cases must be made up of twelve jurors. Answer: C. The right of trial by jury is guaranteed in both criminal and civil cases. The Sixth and Seventh Amendments to the Constitution guarantee the right of trial by jury in both criminal and civil cases. 36. Which of the following is true of attorney-client communication? A. A lawyer may not testify against a client unless called to do so at a trial. B. Confidential attorney-client communication is privileged. C. A lawyer is obliged to reveal anything a client tells him that is material to the case. D. Attorney-client privilege does not extend to anyone other than the lawyer him or herself. E. Attorneys are obliged to reveal confessions of a client's guilt in criminal cases. Answer: B. Confidential attorney-client communication is privileged. To encourage full disclosure by a client, the rules of evidence provide that confidential communications to a lawyer are privileged. The law does not permit a lawyer to reveal such facts and testify against a client, even if called to do so at a trial. 37. The attorney-client privilege extends to: A. conversations the client has with his or her coworkers. B. emails written by the client to a family member. C. communications made to the lawyer's employees. D. letters written by the judge to the client. E. the conversations between a client and the opposing party. Answer: C. communications made to the lawyer's employees. This is especially important today because law firms frequently use paralegals (legal assistants) to gather facts and assist attorneys. 38. Most lawsuits begin at the level. A. appellate court B. trial court C. Supreme Court D. magistrate's court E. state supreme court Answer: B. trial court Lawsuits begin at the trial court level, and the results may be reviewed at one or more of the other two appellate court levels. 39. is a court's power over the issues involved in the case. A. Power of attorney B. Judicial restraint C. Subject matter jurisdiction, D. Judicial activism E. Res judicata Answer: C. Subject matter jurisdiction, Jurisdiction refers to the power of a court, at the state or federal level, to hear a case. For any court to hear and decide a case at any level, it must have subject matter jurisdiction, which is the power over the issues involved in the case. 40. refers to the power of a court, at the state or federal level, to hear a case. A. Activism B. Res judicata C. Power of attorney D. Voir dire E. Jurisdiction Answer: E. Jurisdiction Jurisdiction refers to the power of a court, at the state or federal level, to hear a case. 41. provides that judicial power be vested in the Supreme Court and such lower courts as Congress may create. A. The Sherman Act B. The First Amendment C. Article III of the Constitution D. The Fifth Amendment E. The Federal Arbitration Act Answer: C. Article III of the Constitution Article III of the Constitution provides that judicial power be vested in the Supreme Court and such lower courts as Congress may create. 42. A request for a second review is, in some states, called a writ of: A. certiorari. B. attachment. C. possession. D. replevin. E. mandamus. Answer: A. certiorari. Although a party is entitled to one trial and one appeal, he or she may obtain a second review if the higher reviewing court, in the exercise of its discretion, agrees to such a review. The procedure for requesting a second review is called in some states a petition for leave to appeal and in others a petition for a writ of certiorari. 43. In addition to the state in which it is incorporated, a corporation's "citizenship" is recognized by the courts as: A. any state where it conducts even a minor amount of business. B. the state in which it maintains its principal place of business. C. the state where its CEO lives. D. the state where most of its employees live. E. any state that the corporation declares as being its hometown. Answer: B. the state in which it maintains its principal place of business. For purposes of diversity jurisdiction, a corporation is a citizen of the state of incorporation and also a citizen of the state in which it has its principal place of business. 44. Josh and Shiela are neighbors. One morning they have a motor vehicle accident. Amanda is severely injured and suffers $95,000 worth of medical and property damages. She believes that the accident was Josh's fault and wishes to sue. Which court(s) may she file her initial lawsuit in? A. Court of public opinion B. State appellate court C. Federal district court D. U.S. Supreme Court E. State trial court Answer: E. State trial court In the trial courts, parties file their lawsuits or complaints seeking to protect their property rights or redress a wrongdoing. 45. Josh and Shiela are neighbors. One morning they have a motor vehicle accident. Amanda is severely injured and suffers $95,000 worth of medical and property damages. She believes that the accident was Josh's fault and wishes to sue. What would have to be different in order for Sheila to be able to file an initial complaint against Josh in a federal court? A. The amount must be less than $75,000. B. Josh must have severely injured Sheila. C. Josh and Sheila must live in different states. D. Sheila must petition her elected officials. E. Josh must have been intoxicated during the accident. Answer: C. Josh and Sheila must live in different states. In order to file in federal court, the amount in controversy must be over $75,000 and there must be diversity of citizenship, meaning the parties reside in different states. 46. The federal courts have original jurisdiction over all of the following matters EXCEPT: A. questions of federal law. B. suits between citizens of the same state. C. controversies among the states. D. when the U.S. is a party. E. cases arising out of the U.S. Constitution. Answer: B. suits between citizens of the same state. Federal courts may hear matters involving (1) questions of federal law (including the Constitution), the United States as a party, (3) controversies among the states, and (4) certain suits between citizens of different states (diversity of citizenship). 47. Which of these can only be a state court? A. District court B. Small claims court C. Court of Appeals D. Supreme Court E. Bankruptcy court Answer: B. Small claims court Reed - Chapter 03 #46 Topic: Organization of the Court System Small claims courts are courts of limited jurisdiction that fall below the trial court and do not deal with facts or values sufficient to be raised in federal courts. 48. Which of the following provides the details of how court litigation is conducted in federal court litigation? A. Article III of the Constitution B. The First Amendment C. The Sixth Amendment D. Federal Rules of Civil Procedure E. Federal Rules of Evidence Answer: D. Federal Rules of Civil Procedure The Federal Rules of Civil Procedure provide the details concerning procedures to be followed in federal court litigation. These rules are strictly enforced by the courts and must be followed by the parties in every lawsuit. 49. How many Supreme Court justices does it take to vote for a writ of certiorari for it to be granted? A. Five B. Four C. One D. Nine E. Eight Answer: B. Four When the U.S. Supreme Court reviews petitions for a writ of certiorari, the writ is granted if four of the nine justices vote to take the case. 50. Which of the following is true of the federal district courts? A. They are the appellate courts of the federal judicial system. B. There are only 12 such courts in the U.S. C. These courts do not have the authority to impanel juries. D. They lack subject matter jurisdiction over diversity of citizenship cases. E. Most significant federal litigation begins in these courts. Answer: E. Most significant federal litigation begins in these courts. These courts have the authority to review lawsuits, receive evidence, evaluate testimony, impanel juries, and resolve disputes. Most significant federal litigation begins in this court. 51. How many total Courts of Appeal have been created by Congress in the U.S.? A. 50 B. 51 C. 25 D. 5 E. 13 Answer: E. 13 Under its constitutional authorization, Congress has created 12 U.S. Courts of Appeal plus a special Court of Appeals for the Federal Circuit as intermediate appellate courts in the federal system. 52. Federal question cases are those: A. that have the United States as a party. B. based on issues arising out of the U.S. Constitution. C. based on controversies among the states. D. based on certain suits between citizens of different states. E. cases between a citizen and a corporation. Answer: B. based on issues arising out of the U.S. Constitution. Federal question cases may be based on issues arising out of the U.S. Constitution or out of federal statutes. 53. What is a writ of certiorari? A. The underlying principle of a case B. The process of finding out the facts of the case C. An oath administered to a witness requiring him to speak the truth D. A request for permission to file an appeal with the U.S. Supreme Court E. A plea wherein the defendant agrees not to contest the charges Answer: D. A request for permission to file an appeal with the U.S. Supreme Court A petition for a writ of certiorari is a request by the losing party in the court of appeals for permission to file an appeal with the U.S. Supreme Court. 54. A petition for a is a request by the losing party in the court of appeals for permission to file an appeal with the U.S. Supreme Court. A. writ of certiorari B. writ of mandamus C. writ of assistance D. writ of habeas corpus E. writ of possession Answer: A. writ of certiorari A petition for a writ of certiorari is a request by the losing party in the court of appeals for permission to file an appeal with the U.S. Supreme Court. 55. Writs of certiorari are granted primarily in cases: A. where the value in controversy is more than $50 million. B. of significant presidential importance where sever political controversy could change an election. C. where there is an obvious conflict between two or more Courts of Appeal. D. where the judge in the original trial court has been removed from the bench for reasons of unethical conduct. E. where the attorneys on both sides of the case are well known to the justices. Answer: C. where there is an obvious conflict between two or more Courts of Appeal. Writs of certiorari are granted primarily in cases of substantial federal importance or where there is an obvious conflict between decisions of two or more U.S. Circuit Courts of Appeal in an important area of the law that needs clarification. 56. A petition for a writ of certiorari is a request by the losing party in the court of appeals for permission to file an appeal with the . A. trial court B. Court of Appeals C. arbitration panel appointed by the court D. U.S. Supreme Court E. magistrate's court Answer: D. U.S. Supreme Court A petition for a writ of certiorari is a request by the losing party in the court of appeals for permission to file an appeal with the U.S. Supreme Court. 57. Parties to litigation are entitled, as a matter of right, to appeal(s) of their case by a higher court. A. 0 B. 1 C. 2 D. 5 E. Unlimited Answer: B. 1 Litigants are entitled to only one review, or appeal, a subsequent review by the U.S. Supreme Court must be obtained through a petition for a writ of certiorari to the Supreme Court. 58. Proponents of believe that judicial review by judges should not be used except in unusual cases. A. judicial restraint B. judicial activism C. voir dire D. judicial relativism E. res judicata Answer: A. judicial restraint The philosophy of judicial restraint developed naturally from the recognition that, in exercising the power of judicial review, the courts are overseeing coequal branches of government. 59. Judicial review is: A. the right of a court to review legislation and declare it unconstitutional. B. the right of a legislature to pass statutes that overrule court decisions. C. the right of an appellate court to overrule a lower court decision. D. the right of the executive branch to enforce or not enforce judicial decisions. E. the right of a court to create laws. Answer: A. the right of a court to review legislation and declare it unconstitutional. Judicial review is the power to review laws passed by the legislative body and to declare them to be unconstitutional and void. It also allows the courts to review actions taken by the executive branch and to declare them unconstitutional. 60. Strict constructivism is also known as: A. judicial liberalism. B. judicial activism. C. judicial review. D. judicial abstention. E. judicial formalism. Answer: D. judicial abstention. Strict constructionists believe that the Constitution should be interpreted in light of what the Founding Fathers intended. 61. Supreme Court Justices are: A. appointed and approved by the president. B. appointed by the members of the lower courts. C. appointed by the U.S. House of Representatives. D. appointed by Congress. E. appointed by the president alone. Answer: B. appointed by the members of the lower courts. In the federal system, the U.S. Constitution gives the president the power to appoint federal judges, including Supreme Court justices, subject to the advice and consent of the U.S. Senate. In practical terms, this means a majority of the U.S. Senate must vote to confirm the president's nominee. 62. Which of the following is true of the Supreme Court's use of the power of judicial review? A. It has exercised this power more than once per presidential cycle. B. It exercises the power of judicial review at least once a year. C. It uses its power of judicial review only when the country faces war. D. It rarely uses judicial because of its self-imposed limits. E. It uses the power only when the majority of the justices are strict constructionists. Answer: D. It rarely uses judicial because of its self-imposed limits. In practice, the U.S. Supreme Court rarely exercises its extraordinary powers and has developed carefully crafted rules as self-imposed limits on its authority as individual jurists. 63. Those who believe in judicial restraint believe that social, political, and economic change in society should result from rather than from court action. A. dispute resolution B. market intervention C. the political process D. quiet introspection E. governmental cooperation Answer: C. the political process Judges who identify with judicial restraint give great deference to the political process. 64. Those who believe that judicial power should be exercised whenever the needs of society justify such use believe in: A. judicial functionality. B. judicial activism. C. judicial extension. D. judicial abstention. E. judicial absenteeism. Answer: B. judicial activism. Those who believe in the philosophy of judicial activism believe that courts have a major role to play in correcting wrongs in our society. To them, courts must provide leadership in bringing about social, political, and economic change because the political system is often too slow or unable to bring about those changes necessary to improve society. 65. believe that judicial review should be utilized when the needs of society justify its use. A. Strict constructionists B. Judicial activists C. Judicial realists D. Judicial conservatives E. Judicial abstentionists Answer: B. Judicial activists Activist jurists believe that constitutional issues must be decided within the context of contemporary society and that the meaning of the Constitution is relative to the times in which it is being interpreted. 66. The primary issue in Citizens United was the significance of: A. the First Amendment. B. the Seventh Amendment. C. the Confrontation Clause. D. the War Powers Act. E. the Fourteenth Amendment. Answer: A. the First Amendment. In a 5-4 decision, the Court overturned Austin and McConnell, declaring that the government may not ban political spending by corporations. 67. The Citizens United decision was met with opposition from a number of individuals and groups concerned about: A. the influence of legislators in the judicial process. B. the influence of corporate money in political elections. C. the erosion of civil liberties. D. the influence of alcohol. E. the corruption of voter registration laws. Answer: B. the influence of corporate money in political elections. President Obama immediately issued a statement expressing his disagreement with the majority, asserting that the decision "has given a green light to a new stampede of special interest money in our politics." 68. If the answer to a case is not clearly established by statute or by unquestioned precedent, the judge must first extract from the precedents the underlying principle, known as the . A. obiter dicta B. ratio decidendi C. voir dire D. habeas corpus E. writ of ceritorari Answer: B. ratio decidendi If the answer to a case is not clearly established by statute or by unquestioned precedent, the judge must first extract from the precedents the underlying principle, known as the ratio decidendi. 69. Ratio decidendi refers to: A. the underlying principle of the case. B. stare decisis. C. narrow-tailoring. D. justifying the amount of a verdict in relation to the injury. E. judicial activism. Answer: A. the underlying principle of the case. Justice Benjamin Cardozo discussed the sources of information judges utilize in deciding cases. He stated that if the answer were not clearly established by statute or by unquestioned precedent, the problem was twofold: "He [the judge] must first extract from the precedents the underlying principle, the ratio decidendi; he must then determine the path or direction along which the principle is to work and develop, if it is not to wither or die." 70. How do trial judges and appellate judges differ? Answer: A trial judge spends his or her time very involved with a trial, managing what happens in the trial. The judge can use these experiences as part of the judge's decision. The appellate court judge spends most of his or her time in the law library researching previous decisions, and learns about the trial through briefs and trial transcripts. The personal characteristics required for a justice or appellate judge are somewhat different from those for a trial judge. The manner of performing duties and the methods used also vary between trial and reviewing courts. A trial judge who has observed the witnesses is able to use knowledge gained from participation as an essential ingredient in his or her decisions. A justice must spend most of the time studying the briefs, the record of proceedings, and the law in reaching decisions. 71. Why is there a strong trend among states to require jury duty? Answer: There is a strong trend requiring jury duty because so many prospective jurors fight serving on the juries. This can make the jury pool non-representative of the population in many ways. Jury duty is a civic responsibility that does not occur often. Each citizen should proudly serve when requested to serve. Many individuals attempt to avoid jury duty. Some lose money because of time away from a job or profession. Others feel great stress in having to help make important decisions affecting the lives of many people. Because so many potential jurors seek relief from jury duty, many trials often end up with more jurors who are unemployed or retired than should be the case. Today, there is a strong trend toward requiring jury duty of all citizens, irrespective of any hardship that such service may entail. Courts often refuse to accept excuses because jury duty is a responsibility of all citizens in a free society. 72. Trial by jury is a Constitutional right that presents difficult issues when complex and complicated issues and cases arise. What are some of these issues? Answer: Juries are chosen from pools of typical citizens that span the range of education, comprehension, patience and understanding. Frequently, complicated cases turn on issues so complex that even experts often have difficulty in reaching agreement as to their interpretation. Thus, the average juror may be unable to render a proper decision because of their inability to follow the evidence. The complexity of many trials also results in proceedings that require weeks if not months of trial time, time which most citizens cannot afford to take away from their families or away from the job. 73. In most states, a jury's decision must be unanimous. What is the rationale behind such a requirement? Answer: The decision must be unanimous because many believe that the truth is more nearly to be found and justice rendered if the jury acts only on one "common conscience." However, there is growing evidence that the requirement of unanimity is taking its toll on the administration of justice in the United States. 74. Describe the functions and capacities that a lawyer serves in the legal system. Answer: A lawyer serves in three capacities: counselor, advocate and public servant. As a counselor, the lawyer must gather personal information about their client and then advise their client as to proper courses of action. As an advocate, the lawyer must represent their client zealously but within the law and as a public servant, the lawyer must work within the legal system and support federal law as well as the state law of their jurisdiction. These relationships dictate that a lawyer meet the highest standards of professional and ethical conduct. 75. What potential dangers do lawyers and law firms pose to the administration of justice? Answer: Students' answers may vary. Lawyers may take advantage of the potential ignorance of juries, manipulating them into judgments that are not about justice but about clever lawyering. Law firms are continuing to grow into large businesses, and decisions are becoming more profitable, so there may be business decisions behind forcing verdicts or forcing settlements. The adversarial system may also engender too much competition, making the cases more about the lawyers' egos than about justice. 76. What is the purpose of having specialized lower state courts and how does this serve justice? Answer: Courts of different scope and subject matter jurisdiction help create order and efficiency. Subject matter jurisdiction exists to make sure that people are being heard in the proper venue within a timely fashion. Having specialized courts like small claims, probate, juvenile, and criminal courts ensures that the general jurisdiction courts have smaller dockets. Consequently, more people with general complaints and suits are heard and in a much more timely fashion. Further, having specialized courts allows for more specialized administration of justice in that the judges and magistrates that handle those are used to those types of things. 77. Beatrice owns a trucking company in Texas, and is looking for a few new trucks to add to her fleet. She buys three trucks, each valued at $50,000, from the partnership of Ted & Larry Trucks. However, when Beatrice receives the trucks, it is obvious that they are in disrepair and not at all what she ordered. In preparation for bringing a suit against Ted & Larry Trucks, Beatrice finds out that the partnership was created in Louisiana, where Larry lives, and Ted lives in Texas. Should Beatrice file her claim in a state or federal court? Answer: Beatrice must file her claim in a state court, as there is no complete diversity. In order to file a suit in a federal court, there must be complete diversity, and diversity jurisdiction is based on the citizenship of all members of a partnership. So even though the amount in controversy is over $75,000, and the partnership, itself is located in Louisiana, the fact that Ted lives in Texas destroys diversity. Diversity of citizenship requires that all plaintiffs be citizens of different states from all defendants. If a case involves a party on one side that is a citizen of the same state as a party on the other, there will then be no diversity of citizenship and thus no federal jurisdiction. 78. What is the major reason Congress provides for diversity of citizenship jurisdiction and why could this help a litigant? Answer: One of the reasons Congress provides for diversity of citizenship jurisdiction is to guard against state court bias against the nonresident party in a lawsuit. Litigants may be able to get a venue that is less biased. Conversely, litigants may be able to take advantage of this supposed bias to draw an out-of- town defendant into their "home court." Since the biggest increase in federal lawsuits in recent years has been over businesses suing one another in contract disputes, diversity jurisdiction preserves the sense of fairness in such situations when one of the parties is out of state. 79. What is the court process that a typical litigant will go through if they take their case from the beginning to the last court possible in a typical state court system? Answer: The litigant must enter a complaint with the court of first instance, the trial court, which may be called the superior court, the circuit court, or the district court. If the litigant loses, he or she is entitled as a matter of right to a review of the case by a higher court, or an appeal. In some states there is only one appellate court, which is usually called the supreme court of the state. In more populous states, there often are two levels of reviewing courts—an intermediate level and a court of final resort. In states with two levels of review, the intermediate courts are usually called the courts of appeal, and the highest court is again called the Supreme Court. Depending on the nature of the case, it may even be possible to submit a petition for certiorari. 80. With regard to state court decisions, what is the extent of federal jurisdiction in these matters? Answer: The federal district courts and courts of appeals cannot review, retry or correct judicial errors charged against a state court. The Supreme Court does have the right to review final decisions or decrees issued by the state's highest court only if a federal question involving an issue of constitutional relevance is involved. 81. What is judicial review? How did it originate and what was the rationale for its existence? Answer: Judicial review is the power of the federal judiciary to declare acts of federal and state legislatures to be unconstitutional. Although judicial review is not provided for in the Constitution, it was established by the Supreme in the case of Marbury v. Madison. In his opinion Chief Justice John Marshall stated that the constitution controls any legislative act and that a legislature may not alter the constitution by an ordinary act. The decision maintained that it was the court's duty to review legislative acts to assure that they did not violate the constitution. 82. Why do judicial restraint jurists have a deep commitment to precedent? Answer: Judicial restraint jurists have a deep commitment to precedent because they believe that the legislature should handle social issues, not the courts. These judges try not to allow their own personal opinions to decide cases for them. They only want to decide cases based on the facts of each case. These judges will only overturn precedent if it is clearly in error. 83. What benefits to society can activist judges effect, and how does their philosophy both respond to and advance society? Answer: Those who believe in the philosophy of judicial activism believe that courts have a major role to play in correcting wrongs in our society. To them, courts must provide leadership in bringing about social, political, and economic change because the political system is often too slow or unable to bring about those changes necessary to improve society. Activists tend to be innovative and less dependent on precedent for their decisions. They are value oriented and policy directed. Activist jurists believe that constitutional issues must be decided within the context of contemporary society and that the meaning of the Constitution is relative to the times in which it is being interpreted. Activists believe that the courts, and especially the Supreme Court, sit as a continuing constitutional convention to meet the needs of today. 84. Congratulations! You have just been sworn in as a member of your state's highest court. What will your judicial philosophy be? Will you likely practice judicial restraint or judicial activism? Why? Identify a current Supreme Court Justice that shares your chosen philosophy. Answer: Student answers will vary but should include both pro and con justifications regarding the two philosophies, as well as an engaged discussion of what the student feels is the purpose of judicial review. 85. Discuss your opinion about the Citizens United case. Thoroughly discuss the legal issues decided, the reasons given for the majority opinion, and whether you agree or disagree with the majority. Answer: Student answers will vary but should involve discussions on the justifications of First Amendment freedoms as they pertain to the political process. Further, the students should discuss the concepts covered in the chapter regarding the power of the judiciary to overturn precedent and alter legislative decisions from the bench. 86. In your opinion, do the decisions of the Supreme Court affect the daily lives of American citizens? What are the implications of 5-4 decisions, and are these any guide to how the populace views the court? Answer: Students will likely declare that the court has little impact on the daily lives of Americans. Student should discuss the concepts covered regarding the implications of split and concurring positions, and how the law is often muddled when the justices do not seem to agree, even within the majority. Students may reflect media coverage of the court, as well as the responses of Citizens United, stating that the court's divisiveness lowers the populace's opinion of it. 87. Do you think it is a good or bad thing that the Supreme Court has become more divided? What benefits and problems do you see in this development, and what effect might it have on the average citizen? Answer: Student answers should discuss the difficulties faced by justices of the Supreme Court in deciding the course and conduct of the country. Students should engage the purposes of human compassion or frailty in the interest of justice, and how this is a benefit to society and/or a damage to the pure foundations of justice. 88. According to Benjamin Cardozo, what are the forces that shape the progress of the law? Answer: Logic, history, custom, utility and the accepted standards of right conduct shape the progress of the law. 89. Do you think justice would be better served if the human element could be removed from judicial decision-making? Would our system be better and more dependable if computers decided right and wrong? Answer: Student answers will vary greatly, but they should grasp with the realities of judicial restraint, judicial activism, and the concepts discussed at the end of the chapter regarding the ideas of Justices Holmes and Cardozo. 90. Taking the chapter a whole, what, in your opinion, are the most dangerous problems facing the American justice system, and what suggestions would you make to fix these problems? Answer: Answers may include problems involving too much lawyerly intervention, too little access to courts, fallibility of judges, lack of judicial oversight, and whether or not permitting justices the power of review is allowing for too much power. Test Bank for The Legal and Regulatory Environment of Business O. Lee Reed, Marisa Pagnattaro, Daniel Cahoy, Peter Shedd, Jere Morehead 9780073524993, 9780077437336, 9781260161793
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