The American Judiciary
Second Quiz Explainer
Ashford v. Thornton – this was the case we read about in the PDF excerpt from “The
Law of the Land” by Charles Rembar. It is the story of how the “appeal” and trial by
battle were put to rest around 1818. Appeal in this sense refers to the outdated practice of
a criminal proceeding brought by a private citizen. For a time public and private
prosecution existed side by side. Parliament had not abolished appeal and courts could
not do so either (legislative supremacy). The judges in this case, however, let the appeal
and battle request go through; or in other words said to Parliament “if you insist on
keeping this procedure, now unwise…take it with all its thorns.” Parliament was
enraged, abolished trial by battle and appeal with it a short time later. This shows that
even though we don’t usually think about it, judges do make policy.
Social background facts – According to Carter & Burke, this is one of the four building
blocks of legal reasoning that are always present. Social background facts can be facts,
events and other conditions; they are conclusions about the world independent of the
specific case facts that parties to lawsuits dispute. Can be benign and straightforward,
like “infants do not arise spontaneously in the womb” or contested as in “standard and
commonly accepted medical treatment.”
Fact freedom – in deciding which precedent will govern, a judge has to choose the facts
in the current case that resemble or differ from the facts of the case(s) in which prior
judicial decisions first announced the rule. In other words, judges have fact freedom, the
freedom to decide for him/herself what the relevant facts of a case are. A judge can
influence the future user of the precedent by not reporting certain facts, but even when
reporting facts deemed unimportant later judges can “make a molehill” out of it. This
perpetuates uncertainty in law b/c it’s impossible to know how a judge will use their fact
freedom.
Courts of limited jurisdiction – courts that consider civil claims 1.)up to a specified
dollar amount, 2.)crimes punishable by <1yr. jail or $1000 fine, traffic, family, estate,
juvenile and small claims cases.
- states with more than 1 type have traffic court, probate court, family court,
juvenile court, small claims court as well as magistrate’s court, justice
court or municipal court.
- Justice of the peace, mayor’s or alderman’s court operated by non-lawyers
& judges have a stake in outcome; court reformers want to abolish this
- mostly small claims and traffic cases; the caseload is large and thus speed is
essential
o states have experimented with reducing caseloads, for example
referring cases to mediation/mediator to save time and money.