“Rarely has any public institution been held in such open
contempt by those who work for it and those who pass
through it. Judges call it a sham and a fraud. Lawyers say
that justice is unpredictable at best, and that the tawdry
surroundings and atmosphere of deal-making deprive the
court of even a semblance of justice.”
David Anderson
“The adversary process often achieves truth only as a
convenience, a by-product, or an accidental approximation.”
Former U.S. District Court Judge Marvin E. Frankel
17,000 courts
20,000 judges
220,000 total personnel
140 million cases/year (roughly a 1:2 ratio)
$20 B annual budget nationwide
Basic Court Structure
- Minor Trial Courts
- Major Trial Courts
- Appellate Courts
- Supreme Courts
- Misc. Courts
Hierarchical
Judicial review
Overlaid system (Federal and states)
Hierarchical Structure
Supreme Court
Appellate Court
District Court (Major Trial Court)
County Court (Minor Trial Court)
International Courts
 International Court of Justice
 International Criminal Court
 Permanent Court of Arbitration
Minor Trial Courts
Usually called County Courts. Roughly 90% of the criminal
case workload is handled by the minor trial courts. Typical
jurisdiction includes:
 Initial appearances
 Preliminary hearings
 Misdemeanor trials
 Traffic and parking cases
 Civil cases involving less than $51,000 (Nebraska)
 Often serve as the local juvenile court
59 County Court Judges serving 12 judicial districts in
Nebraska
Major Trial Courts
Usually called District Courts. Typical jurisdiction
includes:
 Arraignments
 Felony trials
 Civil cases involving more than $51,000 (Nebraska)
 Appeals from the minor courts
Court of fact (substantive court) vs. court of law
(procedural court) principle
Appellate Courts
 Handles appeals from the lower courts
 No jury
 Generally sit “in division”
 Adjudicate the law
Supreme Courts
 Handles appeals from the lower courts
 No jury
 Generally sit “en banc”
 Adjudicate the law
Misc. Courts
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Juvenile courts
Small claims courts
Courts of industrial relations
Tax courts
Customs courts
Copyright and patent courts
Bankruptcy courts
Military courts
Workers compensation courts
Regulatory agencies have judicial bodies
Administrative Support
 Clerk of the courts
 Maintain case histories/statistical reporting
 Monitor and schedule cases
 Document preparation
 Case indexing
 Issues summonses
 Notifies witnesses, attorneys and other principle parties
Administrative Support
 Administrative office of the courts
 Develop training programs
 Develop and administer personnel systems
 Budget preparation
 Develop and revise legal forms
 Records management
 Statistical reporting
Federal Court System
Minor Trial Courts – U.S. Magistrate’s Court:
- Roughly 525 U.S. Magistrates
- Serve 8 years terms; appointed by Federal judges
- Handle 900,000+ cases a yeare
Federal Court System
Major Trial Courts – U.S. District Court:
- Roughly 1,000 U.S. District Court judges (350 have Senior
Status)
- Serve for life; appointed by the President
- 94 judicial districts
Federal Court System:
U.S. District Court Jurisdiction
 Federal crimes
 Civil cases (patent rights, copyright, bankruptcy, anti-
trust)
 U.S. a party in a suit
 Appeals from lower courts
 Civil rights violations (Title 7)
 Diversive Jurisdiction (two or more parties from two or
more states involving a dispute of $75,000 or more)
Federal Court System
Appellate Courts – U.S. Courts of Appeal:
- 179 U.S. Appellate Court judges
- Serve for life; appointed by the President
- Usually sit “in division”
- 13 U.S. Appellate Court circuits or districts
- Nebraska is in the 8th circuit (based in St. Louis)
- Federal appellate courts handle roughly 65,000 cases
a year
- Court of law (vs. court of fact)
Federal Court System
U.S. Supreme Court:
- 9 U.S. Supreme Court justices (as few as 5; as many as 10)
- Serve for life; appointed by the President
- Usually sits “en banc”
- Roughly 8,000 requests for certiorari are requested
each year:
* Court grants “cert” to roughly 200
* Court hands down written decisions in roughly
70-80 cases a year
- Court of law (vs. court of fact)
Chief Justice
 Presides in open court and in conferences
 Speaks first, speaks last
 Sets the agenda
 Votes last
 Assigns the opinion writing duties if votes with the
majority
 Circulates a list of “cert denied” suggestions without
conference discussion. Takes 4 votes to remove the
case from the list and be heard.
Supreme Court Jurisdiction:
Article III, Section 2
 Foreign Diplomats
 State vs. State
 State vs. U.S./U.S. vs. State
 Foreign country vs. State/State vs. Foreign country
 Foreign country vs. U.S./U.S. vs. Foreign country
Original, non-exclusive, non-concurrent jurisdiction
Supreme Court Justices:
By Seniority
 John Roberts, Chief
 John Paul Stevens
 Antonin Scalia
 Anthony Kennedy
 Clarence Thomas
 Ruth Bader Ginsburg
 Stephen Breyer
 Samuel A. Alito, Jr.
 Sonia Sotomayor (111th Supreme Court Justice)
International Courts
 International Court of Justice (“World Court”)
- Established in 1946
- Meets in The Hague
- Financed by the United Nations
- 15 judges elected for 9 year terms by the U.N.
General Assembly
- Deals with 22 international crimes
22 International Crimes in the jurisdiction of the
International Court of Justice
1. aggression (crime against peace)
2. war crimes
3. unlawful use of weapons/unlawful emplacement of weapon
4. crimes against humanity
5. genocide
6. racial discrimination and apartheid
7. slavery and related crimes
8. torture
9. unlawful medical experimentation
10. piracy
11. aircraft hijacking
12. threat and use of force against internationally protected persons
13. taking of civilian hostages
14. drug offenses
15. international traffic in obscene publications
16. destruction and/or theft of national treasures
17. environmental protection
18. theft of nuclear materials
19. unlawful use of the mails
20. interference with submarine cables
21. falsification and counterfeiting
22. bribery of foreign public officials
International Courts…continued
 Permanent Court of Arbitration
- Established in 1899
- Meets in The Hague
- Free standing body (not affiliated with the United
Nations)
- Provides services for the resolution of disputes
involving states, intergovernmental organizations,
and private parties (treaty violations, boundary
disputes, international investment, international
trade)
International Courts…continued
 International Criminal Court (“War Crimes Tribunal”)
- Established in 1998
- Based in The Hague
- Free standing body (not affiliated with the United Nations)
- 18 judges elected for 9 year terms by the nations who are a
party to the Court
- Deals with:
* war against peace/war of aggression
* genocide
* crimes against humanity
*war crimes
- Two temporary “War Crimes Tribunals” (Yugoslavia, Rwanda)
International Courts:
Summary
 International Court of Justice (“World Court”)
 Permanent Court of Arbitration
 International Criminal Court (“War Crimes Tribunal”)
 All are based in The Hague
 The World Court is run under the auspices of the United
Nations, but the other two are free-standing entites.
Selection of Judges – State Level
 Gubernatorial appointment
 Legislative election
 Partisan election
 Non-Partisan election
 Missouri Plan
* Bi-lateral Commission identifies a small pool of
candidates
* Gubernatorial appointment
* Periodic unilateral elections
Selection of Judges - Federal Level
 Serve for life
 President appoints, Senate confirms
 Senatorial Courtesy Rule
 Supreme Court justice selection criteria:
- Political reward
- Desire to maintain good relations with interest groups
- Ideology
- Ability never really a factor (can hire top quality clerks)
Removing Federal Judges from Office
 Direct
- Die
- Retire
- Impeached
 Indirect
- Informal pressure to resign
- Prosecuted/convicted (serious misdemeanor or felony)
Removing State Judges from Office
 Direct
- Die
- Retire
- Impeached
- Judicial Misconduct Board
- Elect a new one at the next election/vote no if in a
Missouri Plan state
- Initiative/Recall/Referendum
 Indirect
- Informal pressure to resign
- Prosecuted/convicted (serious misdemeanor or felony)
- Bar Association action
Defense Counsel
 Public Defenders
 Court Appointed
 Private Attorney
Prosecuting Attorneys
 State and Local Level
- City Attorney
- County Attorney
- District Attorney
- State Attorney General
 Federal Level
- District Attorney
- Attorney General
- Solicitor General
Sentencing Disparity Reforms
 Move to a determinate sentencing model
 Consultation among judges
- Formal
- Informal
 Sentencing seminars
 Share sentencing information
 Appellate review of sentences
 Court Watch projects
Case Backlogs and Delays
 Delay in getting to trial
 Long trials
 Problems for prosecutors and defense
 Testilying/the jurisprudence of lying
Case Backlog and Delay Reforms
 Greater use of associate judges
 Expand the use of pretrial hearings and
conferences
 One day trials
 Set the precise court date at the
arraignment/initial appearance
 Individualized docket
Case Backlog and Delay Reforms…continued
 No plea bargaining within 24 hours of trial
 Reduce the number of continuances allowed
(virtually none within 24 hours of trial)
 Extend court hours
 Trial festivals
 Borrow judges from rural areas
Case Backlog and Delay Reforms…continued
 Rent a judge/Special Masters (civil options)
 Increase the number of waiverable offenses
(and utilize the day fine concept)
 Adopt the “English Rule”
 Greater use of community courts
Community Courts/Neighborhood Justice
Centers
Sent to the Community Court by:
a. Police in lieu of arrest
b. Prosecutors in lieu of a complaint being
authorized
c. Judges in lieu of trial
d. Go voluntarily
Community Courts/Neighborhood Justice
Centers…continued
Suspect and victim appear before a board of citizens drawn
from the local neighborhood who listen to the case.
a. Citizen board members are not paid.
b. No legal representation is allowed.
c. The Community Court proceeds in an informal fashion.
d. The Community Courts utilizes either the:
1. Arbitration Model (Didactic/Fisher model) – hear
both sides and render a decision
2. Mediation Model (Danzig model) – actively
become involved with dissenting parties and help
work out a solution
Community Courts/Neighborhood Justice
Centers…continued
The Community Court reaches a mutually agreeable, nonlegally binding resolution. That decisions nearly always
required both sides in the dispute to engage in some form of
compensation/restitution (reflects the mutual culpability
principle).
If no agreeable conclusion is reached, or, if one party fails to
fulfill the community court assignment, the case can go forward
into the regular judicial system, but this rarely happens.
Upward of 90% of the cases are mutually resolved at the
Community Court hearing, and 90% of those resolved cases
result in both parties completing their Community Court
assignments, yielding an aggregate 80% success rate.
Community Courts/Neighborhood Justice
Centers…continued
The justice officials who refer matters to the
Community Courts, agree in advance not to
continue with the case and to drop all charges, if the
matter is successfully resolved (the Community
Court resolution is adhered to by all parties
involved)
Community Courts/Neighborhood Justice
Centers…continued
The successful resolution rate for community courts
(80%) is far higher than the successful resolution
rate of regular courts due to two factors:
1. Creation principle (people support what they create)
2. Mutual culpability/compensation principle
Community Courts/Neighborhood Justice
Centers: Procedural Summary
 Both parties asked to appear in court – 90% of the time
 A mutually agreeable resolution in achieved during the
Community Court hearing – 90% of the time
 Reflecting the mutual culpability/compensation reality,
both parties required to engage in some kind of
restitution/compensation – 90% of the time
 Both parties complete their court assigned
sanction/sentence – 90% of the time
Points #2 and #4 yield a successful resolution rate of 80%.
Advantages of Community Courts
1.
2.
3.
4.
5.
6.
7.
8.
Convenience:
a. time
b. place
Speed in which the disputes are addressed
Frees up judicial system personnel
Reduces court backlog
Jail overcrowding is eased
Community safety valve
Disputes are resolved
Promotes community cohesiveness
Problems with Community Courts
The American due process model adheres to the
principle of procedural consistency and uniformity,
and utilizes objective standards and substantive law
which yields, in aggregate and in theory, a high
measure of social justice, equity and fairness. The
Community Court, in contrast, adheres to the
informal, fragmented, de-centralized model which
yields high level of. We moved away from that
model 200 plus year ago. Why do we want to return
to it now?
Problems with Community Courts…continued
Substantive and procedural legal concerns:
1. The legal proceedings utilized by the Community Courts are
not consistent, but rather vary from court to court, from
neighborhood to neighborhood based on local legal and
socio-politico-economic cultures, and with the attitudes and
perspectives of the individual community court board member.
2. There are no consistent set of rights that victims nor
offender have in the Community Court proceedings.
3. Substantive outcomes vary tremendously from court to court.
The Community Courts do resolve cases faster than do the
regular courts, but at a cost of sentencing/outcome variation,
even disparity.
Problems with Community Courts…continued
4. Who can go to the Community Court? There are no objective,
substantive legal standards.
5. What appellate options are there for those who are denied
access to this dispute resolution option and are being forced into
the regular judicial system?
6. Can statements made in the Community court be used in a
regular court trial?
This kind of informality opens the door to all kinds of potential for
abuse – bribery, favoritism, racial and Ethnic discrimination. We
tried this once, and it did not work.
Problems with Community Courts…continued
The philosophic assumption behind the use of
Community Courts is that processing people
through the standard judicial system, is a bad
thing. Generally that is true, but it is not always
the case. There are times when regular court
intervention is useful.
Drawn from Malcolm Feely,
Court Reform on Trial, 1983.
The court system is not capable of solving any Nations’
crime problems. While some proposed reforms can
have a positive impact, they should be viewed as
nothing more than new ways of holding our fingers in
the dike…just buying time. Fundamental changes any
nations’ crime and delinquency problems, require
fundamental changes in that society’s socio-economic
foundations and in its core institutions.
Nuremberg Trials
 London Charter/International Military Tribunal
 22 tried
 19 guilty
 12 hung
 3 received life sentences
 Victor’s Justice
Nuremberg Trial Issues
 No legal precedent
 Military trials (not civilian trials)
 Violated separation of powers principles
 Violated the principle of ex post facto
 Violated German sovereignty
 Ignored the Superior Order principle
Primary Jurisdiction of the
International Criminal Court
War crimes - Acts of violence against civilian populations or prisoners of war
by military personnel in violation of the laws and customs of war, not justified by
military necessity; Acts involving weapons or military methods of unusual
cruelty or devastation. Violence is the nature of warfare, though it is generally
recognized that violence should be limited to military personnel and military
targets.
Crime Against Peace/Crimes of Aggression - Acts based on the distinction
between offensive and defensive warfare. Offensive wars are illegal, but wars
in defense of one’s country and sovereignty are considered legal.
Crime Against Humanity - Acts that violate concepts of natural law and natural
rights of human beings as human beings. Genocide (the deliberate
extermination of one class, race, or religious group by another) is listed
separately but is often considered a component of this category.
Four Models of International Justice
1. Victor’s Justice – Nuremberg
2. International Tribunals –
a. International Criminal Court
b. International Court of Justice
c. Permanent Court of Arbitration
d. European Court of Human Rights
3. Hybrid tribunals with a mixture of internal and external
representation:
a. East Timor – more external
b. Sierra Leone – more of an even mix
c. Cambodia – more internal
4. Internal tribunals or Truth Commissions – Argentina, Chile, South
Africa