PURPOSES AND RESPONSIBILITIES OF COURTS
A WORKSHOP FOR COURT LEADERS
Facilitated By: Thomas N. Langhorne, Esq.
The Langhorne Group, Inc.
4241 Saratoga Road
Richmond, VA 23235
(804) 306.3822
rightinfo@aol.com
COURSE DESCRIPTION
Monday, March 9, 2009
10:15-11:45 am
This highly interactive segment examines key historical and
constitutional milestones that continue to shape contemporary
judicial branch values and operations. Our discussions focus on
the doctrines of “judicial review” and “separation of powers” as
they were shaped by the Magna Carta, the Articles of
Confederation, The U.S. Constitution, Bill of Rights, Evarts Act of
1891 and Roscoe Pound’s 1906 speech, “The Causes of Popular
Dissatisfaction with the Administration of Justice.”
2:00-3:30 pm
Federalism: Competing Visions between “Federalists” and “AntiFederalists.” Our Founding Fathers’ original debate still dominates
contemporary court structure and process. Moreover, courts’
newly emerging roles embracing “therapeutic justice” and other
specialized court responsibilities are driven by this epic debate.
Tuesday, March 10, 2009
10:00-11:30 am
Beyond “Public Confidence in the Courts”- Why Do People Obey
Our Courts? The NCSC’s 1999 and 2001 ‘public confidence in the
courts’ research produced compelling, relevant conclusions for
courts. But, it failed to examine the fundamental question of and
foundational basis for the judicial branch’s real power and the
practical ways we can measure courts’ performance.
Understanding why Americans obey their courts’ orders goes to
the heart of the question, “What is the real role and responsibility
of our courts?” This segment bridges prior sessions’ aspirational
and conceptual themes by explaining how those themes translate
into the practical purposes courts’ administrative staff’s serve.
1:15-2:45 pm
Have courts met the compelling challenges contained in Roscoe
Pound’s famous 1906 ABA speech? What are the current trends
and challenges shaping today’s and the near future courts’ roles
and responsibilities? Are we up to the challenge? Why American
courts may be the single most remarkable contribution to civilized
society.
2
LEARNING OBJECTIVES
As a result of attending this workshop, participants will be able to…
1. Make practical meaning of learning objectives 2 through 5 as they concretely
manifest themselves into court staff’s daily administrative core
responsibilities.
2. Articulate why courts exist and explain the purposes underlying our routine
judicial processes.
3. Explain how historical and constitutional milestones continue to shape
contemporary judicial branch values and operations, including the doctrines
of “judicial review, “separation of powers,” and “judicial independence.”
4. Analyze courts as “institutions” and offer measurable, operational definitions
of “justice” by applying the five Trial Court Performance Standards (stated
otherwise, practically measure whether our courts are truly delivering
“justice”).
5. Practically explain to our citizens and important stakeholders the core
concepts of our rule of law based court system, including due process, equal
protection, judicial branch independence and accountability.
6. Describe contemporary and potential future challenges facing our courts and
how court leaders can prepare to meet those challenges.
Small Group Discussion
Form a small discussion group comprised of colleagues sitting near you (no more than 8, no
less than 3). Develop a consensus within your group as to what THE answers should be to the
following scenarios’ questions:
Scenario One: Actual Civil War Scenario: The workshop facilitator shares an actual letter written
from a Civil War soldier to his family. His letter describes a compelling scenario in which both
sides rebel against their superior officers’ orders (in the face of court martial and firing squad) so
as to honor their foot soldiers’ verbal compact made during the heat of battle. Participants will
be asked to apply collateral parallels from this true story to courts’ purposes and responsibilities.
Notes:
________________________________________________________________
________________________________________________________________
________________________________________________________________
3
Question: Our Constitution’s ‘Preamble’ tells us the grand purpose of our Constitution is to
“ensure justice.” Our Constitution does not tell us what “justice” is. Are our courts “ensuring
justice”? If so (or not), how do we objectively measure whether justice is being done (or not
being done) by our courts?
_____________________________________________________________________
_____________________________________________________________________
Scenario Two: Imagine the following scenario: In the McCain versus Obama 2008 presidential
election, Obama narrowly wins the popular vote. A third Independent Party candidate receives
enough popular votes in a few large electoral college states to throw the election into chaos.
The popular vote elects Obama, narrowly defeating McCain. None of the three candidates,
however, receives a simple majority of electoral votes.
Obama overwhelmingly carries Virginia’s and Pennsylvania’s popular votes. Much of the nation
is again shaken by allegations of widespread voter fraud in a particular populous Electoral
College state. Both Virginia and Pennsylvania publicly declare they are marshalling their militias
under the U.S. Constitution. Both states, fearing another Gore v. Bush Supreme Court decision,
mobilize and arm their militia to “move onto Washington, D.C.” to preempt their perceived
imminent injustice.”
Question: Would our constitutional republic or our courts survive public confidence if militias
were mobilized to thwart another Gore v. Bush result? What role, if any, would our courts play?
_____________________________________________________________________
_____________________________________________________________________
LEARNING OBJECTIVES 2 & 3:
Articulate why courts exist and the purposes underlying our judicial process.
Explain how historical and constitutional legal milestones continue to shape contemporary
judicial branch values and operations, including the doctrines of “judicial review” and “separation
of powers.”
Why Courts Exist: The National Association for Court Management's (NACM) Core
Competency Curriculum describes the accepted purposes of courts as:








Providing individual justice in individual cases
Appearing to do individual justice in individual cases
Providing a forum for the resolution of disputes
Protecting individuals against the arbitrary use of governmental power
Making of a record of legal status
Deterring criminal behavior
Rehabilitating persons convicted of crime
Separating some convicted people from society
4
Small Group Discussion
A. How does “doing justice in individual cases” practically translate into what courts do on a
daily basis? Does it mean treating all parties the same? Or, does it mean respecting that
each person’s and party’s circumstance is unique, and thus, “doing individual justice”
actually requires our courts to “to walk in party’s shoes”- treating each individual party
differently given they each have unique circumstances? Is the Fifth Amendment’s “equal
protection clause” relevant to this query?
B. Our Constitution begins by declaring:
We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this Constitution for the United States of America.
On a daily, routine basis, how do our courts’ administrative staff help “establish justice”
and/or “secure the Blessings of Liberty”?
Should these lines of questioning be the exclusive province of judges to ask, debate and
resolve? Or, do court employees also have a duty to routinely engage in that discourse?
[Note that Tom Tyler’s compelling research on why people obey the law confirms court
employees’ duty to regularly do so.]
C. Over our country’s history, can you think of instances when “insuring domestic tranquility”
or “promoting the general welfare” or “providing for the common defence” created tensions
with “establishing justice”? What has allowed our country to endure our chaotic, tumultuous
and often violent episodes where those tensions threatened to irrevocably tear our country
apart?
D. Currently, organizations such as the United Nations, USAID, foreign supreme courts and
Foreign Ministries of Justice invite American court administrators to help emerging
democracies establish “rule of law” based courts. What is the “rule of law” and is it uniquely
American? How would you practically describe how the “rule of law” concretely manifests
itself in our state courts? How do we reconcile the ‘rule of law’ when it becomes obsolete or
so contrary to our standard customs? Compare Plessy v. Ferguson, 163 U.S. 547 (1896),
upholding the “separate but equal” state law mandating separate accommodations for
black and white railroad passengers [overruled in Brown v. Board of Education of Topeka,
347 U.S. 483 (1954)]. See also, Griswald v. Connecticutt, 381 U.S. 479 (1965), finding that
married couples had a constitutional right to privacy and found unconstitutional
Connecticutt’s statute prohibiting the use of “any drug, medicinal article, or instrument for
the purpose of preventing conception.”
5
HISTORICAL MILESTONES FORGING TODAY’S COURTS’ VALUES & STRUCTURE
1215: Magna Carta
1689-1755: Montesquieu champions separation of the three co-equal branches, but
sees judges’ roles as being mere ‘mouth pieces’ mechanically
announcing their decision preferably based solely on statutes’ plain
meaning (planting seed of debate regarding ‘judicial activism’?).
July 4, 1776 American Declaration of Independence
“The King has obstructed the administration of justice, by refusing his
assent to Laws for establishing judicial powers; He has made judges
dependent on his will alone for the tenure of their offices, and the amount
and payment of their salaries; For depriving us, in many cases of the
benefits of trial by jury; We, therefore . . . Solemnly publish and declare
that these united colonies are . . . Free and independent…”
November 15, 1777:
Articles of Confederation agreed to by Congress;
(Ratified and in force March 1, 1781)
— Was actually our first “Constitution”
— No ‘federal court’, only state courts (each to give comity to other
states’ court rulings)
— Congress to essentially arbitrate conflicts between states’
courts’ rulings (like today’s AAA!)
Articles’ weaknesses lead to adopting ‘federal’ Constitution (led to
Constitutional Convention)
°too much state sovereignty for a unified government
(resist autocratic rule)
°states suffered economically with no strong central authority
°lack of unity in international relations and defense
°no provisions for an executive branch to enforce the laws
°no national court system to interpret laws (only a legislature with
no power over states)
1786: The Annapolis Convention of 1786 called for a general Constitutional
Convention that met at Philadelphia in May 1787
1787: Congress sends the Constitution to the states for ratification
1787-88: Federalist Papers (written by Madison, Hamilton and Jay) published to
respond to “Anti-Federalist” opposition to a strong, central government.
Anti-Federalists credited with adding Bill of Rights to the Constitution
June 21, 1788: Constitution ratified by requisite nine states (with the understanding that
the First Ten Amendments to the Constitution would be the 1st Congress’
first order of business!!!)
6
→
Compare the Constitution’s “Article III Courts” with Article 1, Section 8, Clause 18 which
empowers Congress “to constitute Tribunals inferior to the Supreme Court...” The former
explicitly creates the U.S. Supreme Court. The latter “inferior” lower courts would not be
firmly established until 1891 when Congress applied Article 1 in passing the Evarts’ Act.
HISTORICAL MILESTONES FORGING TODAY’S COURTS’ VALUES & STRUCTURE (CONT.)
1789: First Congress meets: James Madison (A Federalist!) introduces 1st Ten
Amendments to the Constitution to be sent to states for ratification;
Madison strategically thwarts Anti-Federalist’s movement for a Second
Convention which may have destroyed the Constitution
Judiciary Act of 1789 establishes 13 ‘inferior circuit and district courts’ (and
by necessity, the first ever court administrator!)
1790: All 13 of the original states have ratified the Constitution
1791: States ratify the 1st 10 Amendments (Bill of Rights)
1868: The 14th Amendment is ratified: guarantees equal treatment under the law;
requires states to apply Bill of Rights’ protections
Evarts Act of 1891:
The Civil War generated an avalanche of grievances to be heard by federal
courts. This act created what resembles our current federal circuit and district
court structure; eliminated Supreme Court’s burden of hearing all filed
appeals; gave Supreme Court the right to ‘grant certiorari’ in those cases it
wished to hear (Certiorari; Latin ”to be searched”)
Currently 13 judicial circuits, each with a court of appeals. 9th Circuit is huge – may be soon
divided into 2 Circuits. (See Title 28 of the U.S. Code, Section 41-44.) There are 94 districts in
the 50 states.
Federal court jurisdiction is limited to the types of cases listed in the Constitution and specifically
provided for by Congress. For the most part, federal courts only hear:

cases in which the United States is a party;

cases involving violations of the U.S. Constitution or federal laws (under
federal question jurisdiction) cases between citizens of different states if the
amount in controversy exceeds $75,000 (under diversity jurisdiction); and

bankruptcy, copyright, patent, and maritime law cases.
Each year about 30,000,000 cases are filed in state/local courts while 1,000,000 cases are filed
in federal courts.
7
Roscoe Pound’s 1906 ABA Speech, “The Causes of Popular Dissatisfaction with the
Administration of Justice" — launched the modern court reform movement
“Justice, which is the end of law, is the ideal compromise between the activities
of each and the activities of all in a crowded world”
Pound condemned the then current fragmented court structure, duplication caused by
concurrent jurisdictions, wasted judicial resources, delay and expense, public ignorance of
courts’ true purpose caused by a sensationalist press. He advocated law is not static and should
evolve and adapt to societal changes and needs. States’ court staffs now actively monitor and
manage case dockets. Many state court systems adopted unified trial court organization,
eliminated duplication and streamlined courts appellate and jurisdictional processes.
“…I venture to say that our system of courts is archaic and our procedure behind
the times. Uncertainty, delay and expense, and above all the injustice of deciding
cases upon points of practice, which are the mere etiquette of justice, direct
results of the organization of our courts and the backwardness of our procedure,
have created a deep-seated desire to keep out of court, right or wrong, on the
part of every sensible business man in the community.”
Small Group Discussion
A. What would our constitutional law (court cases) look like today if there were no Bill of Rights,
and instead, courts had to rely exclusively on the Constitution’s Article I ‘necessary and proper’
clause to determine if legislation conflicted with individual liberties?
_____________________________________________________________________
_____________________________________________________________________
B. Would this have led to a more ‘active’ and a less strict ‘constitutional constructionist” court?
_____________________________________________________________________
_____________________________________________________________________
SEMINAL COURT CASES & RELATED EVENTS FORGING OUR CURRENT COURT SYSTEM
(1) Principle of the Separation of Powers
While the first clauses of Articles I, II & III of the Constitution (the ‘distribution of power’ clauses)
distribute separate powers to each branch, the Constitution imposes no such requirement on
the states to maintain separation of powers.
See, Federalist No. 47, (Madison) (…that where the whole power of one department is
exercised by the same hands which possess the whole power of another department, the
fundamental principles of a free constitution are subverted…” (refining Montesquieu’s position,
Madison added, “…Montesquieu did not mean that these departments should have no partial
agency in, nor no control over the acts of the other)
8
See, Justice Brandeis’ dissenting opinion in Myers v. U.S., 272 U.S. 52 (1926) “ This doctrine
was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of
arbitrary power. The purpose was not to avoid friction…but to save people from an autocracy.”
Federal Supremacy Over State Laws: McCulloch v. Maryland,17 U.S. 316 (1819) States cannot
tax the federal government: This ruling established that Congress could use the Necessary and
Proper Clause to create a national bank even though the Constitution does not explicitly grant
that power to Congress.
(2) Courts Must Have “Jurisdiction” & “Power” to Hear a Case
To behave like a court, it must have two types of authority:
 Jurisdiction to bring the parties before the court
 Power to do something about the case before it
In other words, courts must first have both ‘jurisdiction’ over (power to hear) the case and
‘judicial power’ to decide it (under Article III)
Federal Jurisdiction arises in only two types of cases:
 Article III states that judicial power extends to all cases…” and then lists the
types of subject matter federal courts can hear (subject matter jurisdiction over
interpretation of the Constitution, laws and treaties of the U.S.). These include:
Admiralty/maritime laws; federal questions & treaties.
 Article III also states that the “…Judicial Power shall extend…to
controversies…between citizens of different states…” [to avoid favoritism].
(diversity jurisdiction). Corporations, generally, are citizens of their state of
incorporation. The U.S. government must consent to be sued.
In addition to ‘Jurisdiction,’ must also have power to hear cases:
 The Judiciary Act of 1789 indicates that Congress has complete control over the
lower courts jurisdiction [affirmed by Turner v. BONA, (1789)]
Courts’ Self-Imposed Limitations in Cases that Involve:
 Purely Political Questions: Courts will not entertain cases involving the purely
discretionary powers invested in the Executive or Legislative branch. See, Luther v.
Borden, 12 L. Ed. 581 (1849)
 Questions that are not “ripe” for adjudication: A controversy must be actual and matured,
not inchoate
 No “real case or controversy” (Litigant must have an actual stake in controversy e.g.,
deprivation of a right, and the parties must actually have conflicting interests in the
outcome). See, Muskrat v. United States, 219 U.S. 346 (1911)
9
(3) Doctrine of Judicial Review: The first case to declare a Congressional Act void and
unconstitutional was Marbury v. Madison. 2 L. Ed. 60 (1803) (Establishing courts’ power to
interpret and enforce the Constitution and declare Congressional Acts void). Thus, the Doctrine
of Judicial Review was established by Marbury v. Madison. Marbury established the judicial
branch as a separate and equal branch of government.
What is the Doctrine of Judicial Review? Analysis of Marbury v. Madison clarifies the doctrine.
Case Facts of Marbury v.Madison:
In 1801 a lame duck Federalist Congress passed an Act revising the judicial system. It gave
Marbury a justice of the peace commission/position for the county of Washington, D.C.
Marbury’s Commission was one of many ‘midnight’ commissions signed by President John
Adams. The actual Commission never reached Marbury due in part to Adam’s Secretary of
State’s (John Marshall’s) negligence. [Yes, John Marshall served a dual role of Secretary of
State and Chief Justice]. Jefferson, a Republican, soon thereafter became President and James
Madison became his Secretary of State. Secretary of State Madison refused (was ordered not
to give) Marbury his Commission. The new Republican Congress then repealed the Act
eliminating Marbury’s newly created justice of the peace position.
[Story behind the story: In yet another chapter of their continuing saga of struggles, Republican
President Jefferson was baiting Chief Justice John Marshall (a Federalist) into rendering a
decision in favor of the disappointed Marbury. Jefferson had arranged to have him impeached
by Congress should Marshal decide in Marbury’s favor. Marshall and the Supreme Court
Justices were all Federalists. John Adams, on the eve of his last day as President, appointed
Federalist John Marshall as Chief Justice (Jefferson’s chief antagonist). Chief Justice Marshall
was also the Secretary of State who should have timely delivered Marbury his commission. But
due to Marshall’s negligence or cavalier attitude, he failed to do so before the Republicans took
over.]
Plaintiff Marbury petitioned the Supreme Court asking it to issue a Writ of Mandamus to compel
the new Secretary of State Madison to issue Marbury’s commission. (Mandamus is a petition to
compel an official to specifically do something that his position requires him to do).
Despite Chief Justice John Marshall’s conflict of interest, Marshall decided not to recuse himself
and then assigned himself the honor of writing the Court’s opinion!
Holding: Congress cannot enlarge the original jurisdiction of the Supreme Court. The part of the
1789 Judiciary Act enlarging the Supreme Court’s jurisdiction to include Writ of Mandamus was
unconstitutional. Marbury had a legal right to the commission. The laws of the U.S. offer
Marbury a remedy, but that remedy did not lie with the Supreme Court of the United States. This
is because the Supreme Court had no constitutional power to issue a Writ of Mandamus.
Although Congress passed the new Judiciary Act giving the Supreme Court authority to issue
mandamus, the Court held that Act was unconstitutional. Therefore, the Court refused to issue
Mandamus and suggested Marbury look elsewhere to enforce his rights to the commission.
Related Learning Points of Marbury v. Madison:
Article III is the most original part of the Constitution — setting up an independent judicial
branch to judge the legality of Congressional and Presidential acts, empowering it to hold
unconstitutional and unenforceable, any law or official action because that law/action is contrary
to a Constitution. In short, the court applies the superior of two laws — the Constitution over a
legislative act. The lack of a judiciary and judicial review in the original Articles of Confederation
was one of its prime defects.
10
Marbury was criticized as representing an ‘activist’ court — justification nowhere found in the
Constitution! Hence, the decision is still debated as to whether it was a usurpation of power by
the judicial branch.
[Today, many ‘strict constructionists’ assert ‘Activist’ courts abuse their judicial review to
interfere with Congressional authority or even more so — legislate from the bench, to ’create
policy’ or set rules not expressly found in the Constitution. Every decision after Marbury fits that
definition. Other justices have argued that the Constitution, and the courts’ decisions flowing
from the Constitution, must be interpreted in a more contemporary context so as to guide
solutions to ever changing social, legal, scientific and economic problems].
Only a few countries vest their Supreme Court with power of judicial review. Many democratic
systems do not (England courts can review and adjudicate but cannot veto legislation).
Constitution contains no express provision empowering the courts with the power of judicial
review over Congressional acts. The Marbury court had to instead rely on Hamilton’s Federalist
#78 as authority that the Founding Fathers thought power of judicial review is embodied within
general principles of the Constitution.
Article III does, however, say; “The judicial power of the United States shall extend to all cases
arising under the Constitution.”
(4) Judicial Supremacy
Traditionally believed to have originated with John Marshall’s opinion in Marbury v. Madison
(1983). See, Judicial Review, supra. But see Federalist No. 78, below:
Federalist No. 78 (Judiciary is the ‘superior’ but ‘weakest’ branch)
“… the judiciary, … will always be the least dangerous to the political rights of the
Constitution; ...(the) judiciary, on the contrary, has no influence over either the
sword or the purse; no direction either of the strength or of the wealth of the
society; and can take no active resolution whatever. It may truly be said to have
neither force nor will, but merely judgment
“A constitution is, in fact, and must be regarded by the judges, as a fundamental
law. It therefore belongs to them to ascertain its meaning, as well as the meaning
of any particular act proceeding from the legislative body. If there should happen
to be an irreconcilable variance between the two, that which has the superior
obligation and validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of the people to the
intention of their agents…
[BUT]…this conclusion by no means supposes a superiority of the judicial to the
legislative power. It only supposes that the power of the people is superior to
both; and that where the will of the legislature, declared in its statutes, stands in
opposition to that of the people declared in the Constitution, the judges ought to
be governed by the latter rather than the former. (emphasis added) They ought to
regulate their decisions by the fundamental laws, rather than by those which are
not fundamental.”
United States v. Nixon (presidential claims of privilege must yield to a subpoena for the
production of evidence needed in ongoing criminal investigations) and Roe v. Wade
(overturning host of states’ abortion laws)
11
(5) Federalism: Competing Visions between ”Federalists” and “Anti-Federalists” Still Dominate
Contemporary Court Decisions
(What and who were the “Federalists” and the “Anti-Federalists”?)
Historical Context: The “First Constitution,“ The Articles of Confederation, connected the states
in a loose confederation giving independent, central powers to each state without a strong
national government.
Articles of Confederation’s had inherent weakness during our country’s infancy:
* No national army or defense- just individual state militias
* No centralized, national government frustrated international politics
* Foreign governments did not respect a state’s trade agreements
The solution to Articles of Confederation — create a document (Constitution) that strengthened
the national government while simultaneously protecting individual state’s rights (and the states’
rights issues are still contested in our courts today!).
June 1788: The proposed Constitution was close to being ratified (9 states had ratified,
needing one more state). Federalists wanted a stronger central, national
government. Federalists opposed adding any “Bill of Rights” to the proposed
Constitution believing the structure of separation of powers and checks and
balances alone protected individual rights.
Opposition to the Constitution’s ratification was lead by the “Anti-Federalists” who
opposed a strong, central government and opposed the proposed Constitution
unless it added specifically protected Bill of Rights.
1787-88: Federalist Papers were written by Madison, Hamilton and Jay under the
anonymous pen name, “Publius.” The Federalist Papers were published in
newspapers across America to respond to Anti-Federalists’ opposition to the
proposed Constitution version (without a Bill of Rights).
Federalists’ V. Anti-Federalists’ Major Areas of Disagreement
Federalists
Non-Federalists
Wanted stronger national government
Art. of Confederation sufficed; desired power
close to the people; not distant federal scheme
Constitution without Bill of Rights was okay
Listing ‘rights’ meant excluding other rights
States can’t nullify laws
Art. I all ‘necessary and proper’ powers clause
Checks & balances alone prevent tyranny
Prefers more remote ‘republic’ representation
Any Constitution must include specific rights
If rights aren’t listed, Congress will violate them
States rights require ability to nullify laws
Art. I Gives Congress too much power
Art. II gave Exec. Branch too much power
Prefer ‘representation’ to be closer to home
12
Small Group Discussion
A.
What would our constitutional law (court cases) look like today if there were no Bill of
Rights, and instead, courts had to rely exclusively on the Constitution’s ‘necessary and
proper’ clause to determine if legislation conflicted with individual liberties?
B.
Would this have led to a more ‘active’ and a less strict ‘constitutional constructionist”
court?
(6) The Civil War’s Legal Legacy for Contemporary Courts
See, passage of 1891 Evarts’ Act, supra
Compelled 1868 passage of 14th Amendment (essentially applying the Bill of Rights to
individual state actions, not just the federal government actions). Bill of Rights were
not originally intended to apply to the states (except where amendments refer
specifically to the Federal Government or a branch thereof e.g., the First Amendment,
under which some states in the early years of the nation officially established a
religion).
1868 passage of Fourteenth Amendment applied the Bill of Rights to the states (only by virtue of
the legal construct/argument that the Bill ofRights are essential to the “due process” of law:1
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
However, applying each individual Bill of Rights to the states was actually more
incremental:
1961-4th Amendment’s unreasonable search and seizure, Mapp v. Ohio, 367 U.S. 643
1964-5th Amendment’s guarantee against self-incrimination, Malloy v. Hogan, 378 U.S.
1
1963- 6th Amendment’s guarantee of counsel in all criminal cases, Gideon v. Wainright,
372 U.S. 335
1962- 8th Amendment prohibition against cruel and unusual punishment, Robinson v.
California, 370 U.S. 660
Prior to the Civil War and 14th Amendment’s passage, citizens had to rely on their state’s
constitution to protect his liberties and rights.
1
Technically, only Amendments 1 through 8 were thereby applicable to the states. Palko v. Conn., 302
U.S. 319 (1937) (denying the prohibition against double jeopardy applied to the states).
13
First Ten Amendments (Bill of Rights)
First Amendment: Addresses the rights of freedom of religion (prohibiting
Congressional establishment of a religion over another religion
through law and protecting the right to free exercise of religion),
freedom of speech, freedom of the press, freedom of assembly,
and freedom of petition
Second Amendment: Declares "a well regulated militia" as "necessary to the security of a
free State"; prohibits infringement of "the right of the people to keep
and bear arms"
Third Amendment: Prohibits the government from using private homes as quarters for
soldiers without the consent of the owners
Fourth Amendment: Guards against searches, arrests, and seizures of property without
a specific warrant or a "probable cause" to believe a crime has
been committed. Some rights to privacy have been inferred from
this amendment (and others) by the Supreme Court
Fifth Amendment: Forbids trial for a major crime except after indictment by a grand
jury; prohibits double jeopardy, forbids punishment without due
process of law; accused persons may not be compelled to testify
against himself (this is also known as "Pleading the Fifth")
Sixth Amendment: Guarantees a speedy public trial for criminal offenses, trial by a
jury, the right to legal counsel, guarantees that the accused may
require witnesses to attend the trial and testify in the presence of
the accused and the accused right to know the charges against him
Seventh Amendment: Assures trial by jury in civil cases
Eighth Amendment: Forbids excessive bail or fines, and cruel and unusual punishment
Ninth Amendment: The list of individual rights in the Bill of Rights is not meant to be
comprehensive and that the other rights not specifically mentioned
are retained elsewhere by the people
Tenth Amendment: Provides that powers that the Constitution does not delegate to the
United States and does not prohibit the States from exercising, are
"reserved to the States respectively, or to the people."
Small Group Discussion
Question: In your group’s opinion, what is the single most important contribution America’s
constitutional court system has made to civilization?
________________________________________________________________
________________________________________________________________
14
(7) Judicial Branch Independence and Accountability
Discussion: Are the notions of ‘judicial branch independence’ and ‘judicial branch accountability’
inconsistent or are they naturally compatible? How do you reconcile these two foundational
principles as they manifest themselves in our courts’ daily, ordinary course of business?
 What is Judicial Independence? How would you expand or contract the following
suggested definition? [“Judicial Independence” means that judges and courts should be
free from undue influences to decide the case based upon the case facts and controlling
law rather than public opinion about the case or the negative political consequences
arising from the decision.]
 What effect, if any, do popular elections have on the “independence” of the judicial
branch, especially on the state court level?
 What percentage of popularly elected judges, when confidentially asked, “Have you ever
made campaign promises on hot button issues that you ‘regret’ making in order to get
elected?”
[Recall, a fundamental reason giving rise to the Declaration of Independence was the
King’s habit of removing judges when their decisions ‘displeased’ him].
“Courts are not representative bodies. They are not designed to be a good
reflex of a democratic society…Their essential quality is detachment,
founded on independence.”
— Justice Felix Frankfurter in Dennis v. United Sates, 341 U.S. 494 at 525
 What is ‘judicial branch accountability’? To whom/ what are we accountable? To judges?
To NACM’s Canons of Conduct? To litigants? To public? To the rule of law?
Actual Case Example from American Judicature Society regarding one state’s
popular judicial election process:
“Not only are political parties involved in judicial selections in many states, but
also from an increasing rate so are special interest groups. In 2000, Citizens for a
Strong [state omitted] …, a group backed by the U.S. Chamber of Commerce,
spent an estimated $4 million on advertisements opposing the reelection of a
sitting supreme court justice, and the Chamber itself spent between $1 and $2
million. Citizens for an Independent Court, a group supported by trial lawyers and
labor unions, spent approximately $1.5 million in 2000. In 2002, independent
groups spent an estimated $5 million on television ads depicting various
candidates as pro-workers, pro-business, and pro-family. In 2004, the state
legislature adopted broad disclosure requirements for groups that raise and
spend money to influence elections.
See American Judicature Society website — http://www.judicialselection.us/judicial_selection/index.cfm?state=OHStudy
 Are the following threats or enhancements to “judicial branch accountability”?





Judicial performance evaluations and review boards
Media attention to courts generally and to individual cases/judges specifically
Popular elections of judges
State and federal legislation requiring judges to justify their departure from guidelines
Publishing caseload statistics, average age of courts’ cases
15
(8) Emergence of Specialized and Problem-Solving Courts
Everything comes full circle: Early state courts resembled our today’s ‘problem solving courts’
Drug Courts, DUI Courts, Truancy Courts, Mental Health Courts…
Philadelphia Courts’ “Mortgage Foreclosure” Diversion Pilot Program: Designed to
provide early court intervention in residential owner occupied mortgage foreclosure
cases. Assures timely determination of eligibility federal, state and local programs,
facilitates loan work-out and other solutions to permit residential homeowners to retain
properties and permit lenders to move forward to the Sheriff Sale of the properties upon
conclusion of the process
 What does this trend say about the expected roles and responsibilities of our state and
local courts? Was it thrust upon our courts, or did courts instead seize the initiative?
 Is this trend a favorable one for our country, our courts, our community? Is it just that- a
trend to be ultimately, subsequently jettisoned and forgotten?
LEARNING OBJECTIVE FOUR
Analyze courts as “institutions” and offer measurable, operational definitions of “justice” by
applying the five Trial Court Performance Standards (stated otherwise, practically measure
whether our courts are truly delivering “justice”).
 Beyond “Public Confidence in the Courts”- Why Do People Obey Our Courts?
Understanding why Americans obey their courts’ orders goes to the heart of the question, “What
is the real role and responsibility of our courts?”
NCSC’s 1999 and 2001 ‘public confidence in the courts’ research represented remarkable
research and produced compelling, relevant conclusions for courts.
BUT- it failed to examine the fundamental question of and foundational basis for the judicial
branch’s real power. Or, as Armenia’s Chief Justice asked Virginia’s Supreme Court Chief
Justice in 2004:
“How does your court get its citizens to obey your unpopular opinions given your court
has no army to enforce them?”
Tom R. Tylers’ fascinating research on why people obey the courts2:
1. People obey a major institution, like courts, if they believe the institution is legitimate. Their
motivation to do so is rooted in their social relationship and interactions with the institution.
So the algorithm really is:
Social Interactions with Courts
2.
2
→
Degree of Courts’ Legitimacy
Procedural fairness shapes reactions to justice more so than outcomes’ favorabilty
See Tyler, Tom R. 2006. Why People Obey the Law. Princeton University Press
16
Using “TCPS to Measure Whether Our Courts are Delivering Justice
Five Performance Areas of “TCPS”
1. Access to Justice
2. Expedition and Timeliness
3. Equality, Fairness and Integrity
4. Independence and Accountability
5. Public Trust and Accountability
1. Access to Justice
 Conduct court proceedings openly
 Maintain safe, accessible and convenient court facilities
 No undue hardship for those who want to participate, to be heard
 Judges and court staff are courteous and respectful to the public
 Maintain reasonable and fair costs of access to trial courts (whether measured in
terms of money, time or procedures that must be followed)
2. Expedition and Timeliness
 Establish guidelines for timely case processing
 Disperse funds, provide information and reports in timely fashion
 Promptly implement changes in the laws and procedures
3. Equality, Fairness and Integrity
 Faithfully adhere to relevant laws, rules and established policies
 Jury lists are representative of their jurisdiction
 Decide cases without undue disparity among similar cases
 Decisions unambiguously address the issues presented
 Clearly indicate how court’s order compliance can be achieved
 Monitor records of all relevant court decisions and actions for accuracy and proper
preservation
4. Independence and Accountability
(This standard recognizes the importance of Judicial Independence and Separation of
Powers. At the same time this standard requires courts to maintain effective working
relationships with other branches of government & other components of justice system)





Maintain institutional integrity and observe the principle of comity in its governmental
relations
Responsibly seek, use, and account for its public resources
Use fair employment practices
Inform the community about its programs
Anticipate new conditions, emergent events & adjust its operations
5. Public Trust and Confidence
(The judicial system derives its powers from the public it serves. Courts must attend to
several constituencies -- the general public, community opinion leaders, citizens who do
business with courts/court employees)

The public perceives the trial court and the justice it delivers as being accessible,
independent, and accountable without undue influence
17
NCSC’s “Ten CourTools”
(1) Clearance Rates
(2) Time To Disposition
(3) Access To Fairness
(4) Age Of Active Pending Cases
(5) Trial Date Certainty
(6) Reliability/ Integrity Of Case Files
(7) Effective Use Of Jurors
(8) Collection Of Monetary Penalties
(9) Court Employee Satisfaction
(10) Cost Per Case
Small Group Discussion
A.
How many of your courts have tried to use TCPS or CourTools? If so, how have you
used them in your courts?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
B.
Reviewing the above TCPS’ measures, how might your court use them to measure
whether your court is actually delivering ‘justice’ as referenced in the Constitution’s
Preamble? Give specific examples.
18
Table of Contents
Foreword
Preface
Acknowledgments
Introduction
History of the Trial Courts Performance Standards and Measurement System
Developing the System’s Measurement Component
Field Testing
Using the Measurement System
Purposes of Measurement
Nature of the Measures
Measurement Methods
Court Record Reviews and Case Data Examination
Observations and Simulations
Surveys and Questionnaires
Interviews
Group Techniques
Organization of this Implementation Manual
Applying the Measures
Modifying the Measures
Planning to Use the Trial Courts Performance Standards and Measurement System
Performance Area 1: Access to Justice
Standard 1.1: Public Proceedings
Measure 1.1.1: Access to Open Hearings
Measure 1.1.2: Tracking Court Proceedings
Measure 1.1.3: Audibility of Participants During Open Court Proceedings
Standard 1.2: Safety, Accessibility and Convenience
Measure 1.2.1: Courthouse Security Audit
Measure 1.2.2: Law Enforcement Officer Test of Courthouse Security
Measure 1.2.3: Perceptions of Courthouse Security
Measure 1.2.4: Court Employees' Knowledge of Emergency Procedures
Measure 1.2.5: Access to Information by Telephone
Measure 1.2.6: Evaluation of Accessibility and Convenience by Court Users
Measure 1.2.7: Evaluation of Accessibility and Convenience by Observers
Standard 1.3: Effective Participation
Measure 1.3.1: Effective Legal Representation of Children in Child Abuse and Neglect
Proceedings
Measure 1.3.2: Evaluation of Interpreted Events by Experts
Measure 1.3.3: Test of Basic Knowledge Required of Interpreters
Measure 1.3.4: Assessing Non-English Language Proficiency Through Back Interpretation
Measure 1.3.5: Participation by Persons with Disabilities
Standard 1.4: Courtesy, Responsiveness and Request
Measure 1.4.1: Court Users' Assessment of Court Personnel's Courtesy an Responsiveness
Measure 1.4.2: Observers' Assessment of Court Personnel's Courtesy and Responsiveness
Measure 1.4.3: Treatment of Litigants in Court
Standard 1.5: Affordable Costs of Access
Measure 1.5.1: Inventory of Assistance Alternatives for the Financially Disadvantaged
Measure 1.5.2: Access to Affordable Civil Legal Assistance
Measure 1.5.3: Barriers to Accessing Needed Court Services
Performance Area 2: Expedition and Timeliness
Standard 2.1: Case Processing
Measure 2.1.1: Time to Disposition
19
Measure 2.1.2: Ratio of Case Dispositions to Case Filings
Measure 2.1.3: Age of Pending Caseload
Measure 2.1.4: Certainty of Trial Dates
Standard 2.2: Compliance with Schedules
Measure 2.2.1: Prompt Payment of Moneys
Measure 2.2.2: Provision of Services
Measure 2.2.3: Provision of Information
Measure 2.2.4: Compliance with Reporting Schedules
Standard 2.3: Prompt Implementation of Law and Procedure
Measure 2.3.1: Implementation of Changes in Substantive and Procedural Law
Measure 2.3.2: Implementation of Changes in Administrative Procedures
Performance Area 3: Equality, Fairness, and Integrity
Standard 3.1: Fair and Reliable Judicial Process
Measure 3.1.1: Performance in Selected Areas of Law
Measure 3.1.2: Assessment of Court Performance in Applying the Law
Standard 3.2: Juries
Measure 3.2.1: Inclusiveness of Jury Source List
Measure 3.2.2: Random Jury Selection Procedures
Measure 3.2.3: Representativeness of Final Juror Pool
Standard 3.3: Court Decisions and Actions
Measure 3.3.1: Evaluations of Equality and Fairness by the Practicing Bar
Measure 3.3.2: Evaluations of Equality and Fairness by Court Users
Measure 3.3.3: Equality and Fairness in Sentencing
Measure 3.3.4: Equality and Fairness in Bail Decisions
Measure 3.3.5: Integrity of Trial Court Outcomes
Standard 3.4: Clarity
Measure 3.4.1: Clarity of Judgment and Sentence
Measure 3.4.2: Clarity of Civil Judgments
Measure 3.4.3: Experience in Interpreting Orders and Judgments
Standard 3.5: Responsibility for Enforcement
Measure 3.5.1: Payment of Fines, Costs, Restitution, and Other Orders by Probationers
Measure 3.5.2: Child Support Enforcement
Measure 3.5.3: Civil Judgment Enforcement
Measure 3.5.4: Enforcement of Case Processing Rules and Orders
Standard 3.6: Production and Preservation of Records
Measure 3.6.1: Reliability of the File Control System
Measure 3.6.2: Adequate Storage and Preservation of Physical Records
Measure 3.6.3: Accuracy, Consistency, and Utility of the Case Docket System
Measure 3.6.4: Case File Integrity
Measure 3.6.5: Reliability of Document Processing
Measure 3.6.6: Verbatim Records of Proceedings
20
Performance Area 4: Independence and Accountability
Standard 4.1: Independence and Comity
Measure 4.1.1: Perceptions of the Court's Independence and Comity
Suggested Steering Committee Activities for Standard 4.1
Standard 4.2: Accountability for Public Resources
Measure 4.2.1: Adequacy of Statistical Reporting Categories for Resource Allocation
Measure 4.2.2: Evaluation of Personnel Resource Allocation
Measure 4.2.3: Evaluation of the Court's Financial Auditing Practices
Suggested Steering Committee Activities for Standard 4.2
Other Related Considerations for Standard 4.2
Standard 4.3: Personnel Practices and Decisions
Measure 4.3.1: Assessment of Fairness in Working Conditions
Measure 4.3.2: Personnel Practices and Employee Morale
Measure 4.3.3: Equal Employment Opportunity
Suggested Steering Committee Activities for Standard 4.3
Standard 4.4: Public Education
Measure 4.4.1: Court and Media Relations
Measure 4.4.2: Assessment of the Court's Media Policies and Practices
Measure 4.4.3: Community Outreach Efforts
Suggested Steering Committee Activities for Standard 4.4
Standard 4.5: Response to Change
Measure 4.5.1: Responsiveness to Past Issues
Suggested Steering Committee Activities for Standard 4.5
Performance Area 5: Public Trust and Confidence
Standard 5.1: Accessibility
Measure 5.1.1: Court Employees' Perceptions of Court Performance
Measure 5.1.2: Justice System Representatives' Perceptions of Court Performance
Measure 5.1.3: General Public's Perceptions of Court Performance
Standard 5.2: Expeditious, Fair, and Reliable Court Functions
Standard 5.3: Judicial Independence and Accountability
Notes:
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
21
LEARNING OBJECTIVE FIVE
Practically explain to citizens and important stakeholders the core concepts of rule of law based
court system, including due process, equal protection, judicial branch independence
Pulling it All Together: Making Practical Meaning of Our Workshop’s Themes
Group Exercise: Filling in the blanks-Making practical connections to our daily court duties
Workshop Themes
1. Magna Carta
Practical Daily
Implications For Staff
Relation To TCPS
TCPS Standards/Measures
Began our C-L traditions
1.1.1 Access/Open hearings
Established jury trials
Rules for ‘credible’ evidence
Established ‘equal protection’
3.2.2 Equality/fair jury pool
Justice not delayed or denied
"Truth” by adversarial justice
2.1
Expedition/timeliness
(clearance rates, time to
final disposition)
3.3
Fair court decisions
2. NACM’s Court Purposes
*Individual justice in individual
cases
Per Tyler’s research, litigants
form opinions as to courts’
procedural and outcome
‘fairness’ based largely on
interactions with court staff
Standards for ‘Access’;
Timely, case delay reduction
programs; standards for
“Equality, Fairness & Integrity”
*The appearance of individual
justice in individual cases
Court staff treats everyone
with dignity, explain
procedures and resources,
provides equal access
All 5 TCPS! Court users’ exit
surveys
*Provide forum for the just
resolution of disputes
Jury pool management (pool
reflects community); maintain
public/electronic records
Standard 1.5 Affordable costs
of Access (e.g., mediation for
indigents and low income)
*Protection of individuals
against the arbitrary use of
governmental power
Manage the ‘notorious trial’ to
ensure open to media/public
Court sponsored community
forums/docent programs
3. Independent and
Accountable Courts
Accountable for public funds
4.2 Account for resources
4.2.3 (Forms) Audit checklists
4.5.1 Responds to past issues
2.3.1 Implements new laws
5.1.3 Public perception of
courts’ performance
Court responsive to change
Public has confidence in court
Court operations fairly funded
22
Workshop Themes
4. Pound’s ABA Speech
Practical Daily
Implications For Staff
Unified state court system:
modern public administration
applied to courts; eliminate
duplicitous/concurrent
jurisdictions; delay reduction
Relation To TCPS
TCPS Standards/Measures
All 5 TCPS
Calendar management; Est.
case “significant milestones”;
Court Financial Mngt System
5. Significant Historical
Milestones & Court Cases:
▪ Marbury v. Madison
Judicial Review
▪ Federalist Papers
Planted seed for judicial
branch supremacy
▪ Anti-Federalists
Autonomy to states’ courts
▪ Constitutional Amendments
14th applied Bill of Rights to
states
[Ask audience to offer more
examples]
________________________
_______________________
________________________
________________________
_______________________
________________________
________________________
_______________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
________________________
6. Trends & Future
Challenges to State Courts
Other workshop issues?
23
LEARNING OBJECTIVE SIX
Describe contemporary and potential future challenges facing our courts and how court leaders
can prepare to meet those challenges.
How Effective Courts Are Currently Changing
Yesterday
Today
Leadership = “command employees”
Leadership = “conversation”
Leader has the answers
Leader helps others find answers
Technical administration skills
Relationship skills
Formal authority
Informal influence
Compete ‘quietly’ for scarce resources
Collaborate, communicate needs for resources
Gather facts
Find meaning for courts’ work
Steady and controlled
Adaptive-anticipate change
Hierarchy
Hyperlinked & flattened
Metaphor = “Machinery”
Metaphor = “Networks”
Operational plans
Learning strategies
Trend Towards Creating High Performance Court Environments
A. The realities of the “court executive team” concept

The unspeakable taboo: Why judges aren’t traditionally trained or prepared to be the real
leaders of courts:

Self-selection from law schools prepare passive, detached judges

Lawyers trained to be ‘soloists’- not organizational team players

Requires judges to forfeit ‘personal autonomy’ in order to lead

Method of selecting ‘Chief Judges” undermines leadership
(rotating roles lead to short term/ad hoc visions)


Judges resist courts’ “performance outcomes management”
(TCPS’ Commission findings; Courts are not likely to maintain judicial independence
unless it manages itself, measures performance)
24

Judges see primary leadership role to equate “independent decision maker’ with
secondary duty towards the court as an organization


Judges, “It’s the attorney’s role to move the case along- not mine!”
(Why new case flow management impacts your leadership role)
B. Emerging Trends with ‘Court Executive Teams’ — The good news!
 Leadership becoming a team oriented concept
 Younger generation of judges stress collaborative leadership
 Your dual roles as a leader; internal & external responsibilities
 Your community influence as a court leader:
o
Tyler’s compelling research on why people obey the law
o
Citizen’s view of ‘procedural fairness’ can be more important to
citizens than their case ‘outcomes”
o
Your practical impact on public confidence in the courts
Other Trends Impacting Courts: Action Planning to Address Them
What types of trends affect the courts?
Demographic/Population
Political, Social, Judicial
Economic
Tech/Science
Aging of workforce
Immigration
End of Life Issues
Custody/Slave Trade
Judicial Selection
Scarcity Reality
I-Net Privacy
Tort Reform
Bankruptcy
Spillover
E-Filing
Other Trends:
Impact on Courts3






Problem solving courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . ..Judges’ roles change
Private dispute resolution methods . . . . . . . . . . . . . .Courts’ fee revenues decline
Self-represented clients. . . . . . . . . . . Courts’ time saved/embrace changing rules
War on Terrorism. . . . . . . . . . .Incidentally uncovers more non-terror state crimes
High incarceration/prison population . . States’ sentencing becomes more flexible
Wi-Fi. . . . . . . . . . . . . . . . . . . . . . . . . Demand for instant access vs. court security

Nano-technolgy. . . . . . . . . . . . . .Revolutionizes everything: Can courts keep up?
3Taken
in part from the NCSC’s Future Trends in State Courts, 2005. This is a fantastic, free resource to
local court managers/strategic planners. It identifies emerging trends and their practical impact on courts.
This will save your steering committee great research and analysis time. For free access and
downloading, go to http:www.ncsconline.org/wc/publications
25
Traditional steps in identifying trends and their impacts on state and local courts:
1. In-house professional “planner” or your newly created “trends analysis” committee
examines the above fields for trends. The planner or committee decides which
emerging trends are most likely to critically impact courts
2. For each emerging trend, the planner or committee asks at least one of the following
questions:
a.
If this emerging development continues, its probable impact scenario will be
____X____; and/or
b.
If this emerging trend continues (and we do nothing) the following impact
scenario for the courts is ____Y____.
EXERCISE:
Visualizing Trends’ Impact on Your Court4
Trend
Implications (if we do nothing) . . .

2/3 of African Americans feel they are _____________________________
treated worse than other people by courts _____________________________

80% believe cases are not resolved in a
timely fashion
_____________________________
_____________________________

68% disagreed with the statement: “It is
affordable to bring a case to court”
_____________________________
_____________________________

80% feel the wealthy get better treatment
_____________________________
_____________________________
If your court steering committee decides to conduct “trends’ analysis” internally, consider these
steps:
1. Consult local, state and national resources that routinely conduct trends’ analysis (especially
regarding courts)
National Center for State Courts. 888.228.6272 or www.ncsconline.org (publishes and
sells for a very small amount, extremely pertinent and relevant reports describing trends
impact on American state courts)
State Administrative Office of the Court or Judicial Educator. Some states’ courts have
in-house professional staff who constantly engage in this type of trends’ analysis.
Even if your state AOC does not, call neighboring states’ AOC offices (trends they spot will
probably bleed over into your jurisdiction)
4Taken
from 1999 Hearst Public Views Survey measuring public perceptions of state courts.
26
State Agencies. Contact state agencies such as the State Bureau of Economic
Development or state planning offices
Local volunteer service organizations. These often engage in trends’ analysis. (United
Way was a national pioneer in developing outcome measures for non-profit
organizations. Many local chapters are currently engaged in developing their 2008-2015
strategic plans which analyze many of the same trends that impact courts); local public
and non-profit business development and or community planning organizations.
Larger public state and private universities have institutes for public policy which
routinely examine various trends’ impact on the public (and usually have less senior
associates or grad students who will volunteer to help you or have already done some of
this analysis)
2. Conduct Literature Reviews: Each professional field publishes periodicals that examine
trends in particular field. Almost every public library has them:
3. Look for related professional journals specific to court management, judges, and lawyers
4. Read The Futurist Magazine for timely forecasts’ analysis. Consult the World Future Society
at www.wfs.org [also a valuable source should you wish to hire a futurist consultant in your area]
5. Conduct interviews and/or focus groups comprised of those professionals or fields’ local and
state representatives
Ask the above impact questions: “What do you think the trends’ likely impact on
courts will be” and the “If we do nothing?” impact scenario
The Langhorne Group, Inc.
4241 Saratoga Road, Richmond, VA 23235 Tel: 804.306.3822 Fax: 804.323.1136 rightinfo@aol.com
27
APPENDIX
U.S. Constitution
We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for
the United States of America.
Article 1. [CONGRESS]
Section 1
All legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representatives.
Section 8, Clause 18 - To make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all other Powers vested
by this Constitution in the Government of the United States, or in any
Department or Officer thereof…To constitute Tribunals inferior to the Supreme
Court
Article 2. [PRESIDENT-EXECUTIVE BRANCH]
Section 1
The executive Power shall be vested in a President of the United States of
America. He shall hold his Office during the Term of four Years, and,
together with the Vice-President chosen for the same Term, be elected, as
follows: [language herein omitted]
Article 3. [JUDICIAL BRANCH]
Section 1
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. The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behavior, and shall, at stated times,
receive for their services a compensation which shall not be diminished
during their continuance in office.
Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority; to all Cases affecting
Ambassadors, other public Ministers and Consuls; to all Cases of admiralty
and maritime Jurisdiction; to Controversies to which the United States shall
be a Party; to Controversies between two or more States; between a State and
Citizens of another State; between Citizens of different States; between
Citizens of the same State claiming Lands under Grants of different States,
and between a State, or the Citizens thereof, and foreign States, Citizens or
Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the Supreme Court shall have original
jurisdiction. In all the other cases before mentioned, the Supreme Court
shall have appellate jurisdiction, both as to Law and Fact, with such
exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;
and such Trial shall be held in the State where the said Crimes shall have
28
been committed; but when not committed within any State, the Trial shall be
at such Place or Places as the Congress may by Law have directed.
Section 3
Treason against the United States, shall consist only in levying War against
them, or in adhering to their Enemies, giving them Aid and Comfort. No Person
shall be convicted of Treason unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.
Article 4.
Section 1
Full Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State. And the Congress may
by general Laws prescribe the Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect thereof.
Section 2
The Citizens of each State shall be entitled to all Privileges and Immunities
of Citizens in the several States.
Article 5.
The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents
and Purposes, as part of this Constitution, when ratified by the Legislatures
of three fourths of the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first and
fourth Clauses in the Ninth Section of the first Article; and that no State,
without its Consent, shall be deprived of its equal Suffrage in the Senate.
Article 6.
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the
several State Legislatures, and all executive and judicial Officers, both of
the United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution; but no religious Test shall ever
be required as a Qualification to any Office or public Trust under the United
States.
Article 7.
The Ratification of the Conventions of nine States, shall be sufficient for
the Establishment of this Constitution between the States so ratifying the
Same.
Amendment 1
Congress shall make no law respecting an establishment of religion, or
29
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
Amendment 2
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
Amendment 3
No Soldier shall, in time of peace be quartered in any house, without the
consent of the Owner, nor in time of war, but in a manner to be prescribed by
law.
Amendment 4
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Amendment 5
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be
deprived of life,liberty, or property, without due process of law; nor shall
private property betaken for public use, without just compensation.
Amendment 6
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
Amendment 7
In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by
a jury, shall be otherwise re-examined in any Court of the United States,
than according to the rules of the common law.
Amendment 8
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
And unusual punishments inflicted.
Amendment 9
The enumeration in the Constitution, of certain rights,
construed to deny or disparage others retained by the people.
shall
not
be
Amendment 10
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or
to the people.
Amendment 11
The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United
30
States by Citizens
Foreign State.
of
another
State,
or
by
Citizens
or
Subjects
of
any
Amendment 12
The Electors shall meet in their respective states, and vote by ballot for
President and Vice-President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the person
voted for as Vice-President, and they shall make distinct lists of all
persons voted for as President, and of all persons voted for as VicePresident and of the number of votes for each, which lists they shall sign
and certify, and transmit sealed to the seat of the government of the United
States, directed to the President of the Senate; The President of the Senate
shall, in the presence of the Senate and House of Representatives, open all
the certificates and the votes shall then be counted;
The person having the greatest Number of votes for President, shall be the
President, if such number be a majority of the whole number of Electors
appointed; and if no person have such majority, then from the persons having
the highest numbers not exceeding three on the list of those voted for as
President, the House of Representatives shall choose immediately, by ballot,
the President. But in choosing the President, the votes shall be taken by
states, the representation from each state having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of the states,
and a majority of all the states shall be necessary to a choice. And if the
House of Representatives shall not choose a President whenever the right of
choice shall devolve upon them, before the fourth day of March next
following, then the Vice-President shall act as President, as in the case of
the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be
the Vice-President, if such number be a majority of the whole number of
Electors appointed, and if no person have a majority, then from the two
highest numbers on the list, the Senate shall choose the Vice-President; a
quorum for the purpose shall consist of two-thirds of the whole number of
Senators, and a majority of the whole number shall be necessary to a choice.
But no person constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States.
Amendment 13
1. Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within
the United States, or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate
legislation.
Amendment 14
1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
2. Representatives shall be apportioned among the several States according to
their respective numbers, counting the whole number of persons in each State,
excluding Indians not taxed. But when the right to vote at any election for
the choice of electors for President and Vice-President of the United States,
Representatives in Congress, the Executive and Judicial officers of a State,
or the members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens of the
31
United States, or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be reduced in the
proportion which the number of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of
President and Vice-President, or hold any office, civil or military, under
the United States, or under any State, who, having previously taken an oath,
as a member of Congress, or as an officer of the United States, or as a
member of any State legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given aid or
comfort to the enemies thereof. But Congress may by a vote of two-thirds of
each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services in
suppressing insurrection or rebellion, shall not be questioned. But neither
the United States nor any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or
any claim for the loss or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
Amendment 15
1. The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.
2. The Congress shall have power to enforce this article by appropriate
legislation.
Amendment 16
The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States, and
without regard to any census or enumeration.
Amendment 17
The Senate of the United States shall be composed of two Senators from each
State, elected by the people thereof, for six years; and each Senator shall
have one vote. The electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the
executive authority of such State shall issue writs of election to fill such
vacancies: Provided, That the legislature of any State may empower the
executive thereof to make temporary appointments until the people fill the
vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of
any Senator chosen before it becomes valid as part of the Constitution.
Amendment 18
1. After one year from the ratification of this article the manufacture,
sale,
or transportation of intoxicating liquors within, the importation thereof
into,
or the exportation thereof from the United States and all territory subject
to
the jurisdiction thereof for beverage purposes is hereby prohibited.
2. The Congress and the several States shall have concurrent power to enforce
32
this article by appropriate legislation.
3. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of the several States, as
provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
Amendment 19
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Amendment 20
1. The terms of the President and Vice President shall end at noon on the 20 th
day of January, and the terms of Senators and Representatives at noon on the
3d day of January, of the years in which such terms would have ended if this
article had not been ratified; and the terms of their successors shall then
begin.
2. The Congress shall assemble at least once in every year, and such meeting
shall begin at noon on the 3d day of January, unless they shall by law
appoint a different day.
3. If, at the time fixed for the beginning of the term of the President, the
President elect shall have died, the Vice President elect shall become
President. If a President shall not have been chosen before the time fixed
for the beginning of his term, or if the President elect shall have failed to
qualify, then the Vice President elect shall act as President until a
President shall have qualified; and the Congress may by law provide for the
case wherein neither a President elect nor a Vice President elect shall have
qualified, declaring who shall then act as President, or the manner in which
one who is to act shall be selected, and such person shall act accordingly
until a President or Vice President shall have qualified.
4. The Congress may by law provide for the case of the death of any of the
persons from whom the House of Representatives may choose a President
whenever the right of choice shall have devolved upon them, and for the case
of the death of any of the persons from whom the Senate may choose a Vice
President whenever the right of choice shall have devolved upon them.
5. Sections 1 and 2 shall take effect on the 15th day of October following
the ratification of this article.
6. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of three-fourths of the
several States within seven years from the date of its submission.
Amendment 21
1. The eighteenth article of amendment to the Constitution of the United
States is hereby repealed.
2. The transportation or importation into any State, Territory, or possession
of the United States for delivery or use therein of intoxicating liquors, in
violation of the laws thereof, is hereby prohibited.
3. The article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by conventions in the several States, as
provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
Amendment 22
33
1. No person shall be elected to the office of the President more than twice,
and no person who has held the office of President, or acted as President,
for more than two years of a term to which some other person was elected
President shall be elected to the office of the President more than once. But
this Article shall not apply to any person holding the office of President,
when this Article was proposed by the Congress, and shall not prevent any
person who may
be holding the office of President, or acting as President, during the term
within which this Article becomes operative from holding the office of
President or acting as President during the remainder of such term.
2. This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of three-fourths of the
several States within seven years from the date of its submission to the
States by the Congress.
Amendment 23
1. The District constituting the seat of Government of the United States
shall
appoint in such manner as the Congress may direct: A number of electors of
President and Vice President equal to the whole number of Senators and
Representatives in Congress to which the District would be entitled if it
were a State, but in no event more than the least populous State; they shall
be in addition to those appointed by the States, but they shall be
considered, for the purposes of the election of President and Vice President,
to be electors appointed by a State; and they shall meet in the District and
perform such duties as provided by the twelfth article of amendment.
2. The Congress shall have power to enforce this article by appropriate
legislation.
Amendment 24
1. The right of citizens of the United States to vote in any primary or other
election for President or Vice President, for electors for President or
Vice President, or for Senator or Representative in Congress, shall not be
denied or abridged by the United States or any State by reason of failure to
pay any poll tax or other tax.
2. The Congress shall have power to enforce this article by appropriate
legislation.
Amendment 25
1. In case of the removal of the President from office or of his death or
resignation, the Vice President shall become President.
2. Whenever there is a vacancy in the office of the Vice President, the
President shall nominate a Vice President who shall take office upon
confirmation by a majority vote of both Houses of Congress.
3. Whenever
Senate and
declaration
office, and
such powers
President.
the President transmits to the President pro tempore of the
the Speaker of the House of Representatives his written
that he is unable to discharge the powers and duties of his
until he transmits to them a written declaration to the contrary,
and duties shall be discharged by the Vice President as Acting
4. Whenever the Vice President and a majority of either the principal
officers of the executive departments or of such other body as Congress may
by law provide, transmit to the President pro tempore of the Senate and the
Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the
34
Vice President shall immediately assume the powers and duties of the office
as Acting President.
Thereafter, when the President transmits to the President pro tempore of the
Senate and the Speaker of the House of Representatives his written
declaration that no inability exists, he shall resume the powers and duties
of his office unless the Vice President and a majority of either the
principal officers of the executive department or of such other body as
Congress may by law provide, transmit within four days to the President pro
tempore of the Senate and the Speaker of the House of Representatives their
written declaration that the President is unable to discharge the powers and
duties of his office. Thereupon Congress shall decide the issue, assembling
within forty eight hours for that purpose if not in session. If the Congress,
within twenty one days after receipt of the latter written declaration, or,
if Congress is not in session, within twenty one days after Congress is
required to assemble, determines by two thirds vote of both Houses that the
President is unable to discharge the powers and duties of his office, the
Vice President shall continue to discharge the same as Acting President;
otherwise, the President shall resume the powersand duties of his office.
Amendment 26
1. The right of citizens of the United States, who are eighteen years of age
or older, to vote shall not be denied or abridged by the United States or by
any State on account of age.
2. The Congress shall have power to enforce this article by appropriate
legislation.
Amendment 27
No law, varying the compensation for the services of the Senators and
Representatives, shall take effect, until an election of Representatives
shall have intervened.
The Langhorne Group, Inc.
4241 Saratoga Road, Richmond, VA 23235 Tel: 804.306.3822 Fax: 804.323.1136 rightinfo@aol.com
35