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LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I USEFUL VOCABULARY:

Sittings – the part of the year in which judicial business is transacted. A session or term of court; usually plural.

Recess – in the practice of the courts, a short interval or period of time during which the court suspends business, but without adjourning. The period between sessions of court.

Motion – an application requesting a court to make a specified order. Though it is properly classifiable as a court paper, a motion is not a pleading.

Application – in some jurisdiction this term is merely a variant name for motion. Where that is so, motion is the better term.

Pleading – (1) the art of preparing formal statements in lawsuits; (2) a document containing the written allegations of fact that each party is required to communicate to the opponent before trial, so that each will know what contentions must be met by the evidence. In sense (2), pleading should be distinguished from court paper, which is a broader term. Motions, briefs, and affidavits are court papers, not pleadings. Examples of pleadings are complaints, petitions, counter-claims, and answers.

Brief – (1) in AmE, the written arguments of counsel for consultation by the court; (2) in BrE a document by which a solicitor instructs a barrister with an abstract of the pleadings and facts as the barrister prepares to appear as an advocate in court; (3) in BrE a barrister’s authority to appear; or I=(4) in AmE and BrE, an abstract of all the documents affecting the title to real property (known also as abstract of title)

TASK II Find the broader context for the following:

…30minute argument…

…up to 24 cases…

…more than 130 petitions…

…until 3 p.m….

…the 10 a.m. entrance of the Justices…

TASK III Compare the meanings and usages of the verbs: precede and proceed

Precede = to go ahead of; to come before.

Proceed = to go ahead; to continue.

Use the verbs or their derivatives in the following:

Prior cases which are close in facts or legal principles to the case under consideration are called ________________

______________ is machinery for carrying on lawsuit including pleading, evidence and practice.

The law of ____________ is what is commonly termed by jurists “adjective law”.

_______________ refers to all the steps or measures adopted in the prosecution or defense of an action.

______________ means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given.

_____________ may be overruled especially by the same court that originally rendered the decision.

The Supreme Court has set rules of ______________ governing such matters as bankruptcy ____________, copyright cases, appellate _____________, civil law, and criminal law.

TASK IV Answer the following questions:

Text 5

No other court in the country matches the United States Supreme Court's prominence and political importance. It is the final adjudicatory body for all cases, whether they originate in state or federal courts. It also hears as the original tribunal a very small number of cases involving disputes between states. No judicial appeal is available beyond the Supreme Court.

Appellate cases may reach the Supreme Court by several routes. They may be appealed from state courts, from federal courts of appeals, or from the special three-judge federal courts. Unlike most other appellate courts, the United States Supreme Court may choose the cases it wishes to hear. This is fortunate, because more than five thousand cases are filed with the court every year. If the court had to hear each of these, it could give careful attention to none.

The Supreme Court selects its cases carefully. Each request for a hearing, either by petition for a writ of certiorari, a writ of appeal, or certification, goes to the office of the Chief Justice. Almost half the petitions come from paupers, usually prisoners in penitentiaries. These are investigated by the Chief Justice's law clerks, for the petitions are usually ill-prepared and cannot be evaluated on the basis of the evidence included in them. Other petitions come replete with the necessary records of previous court hearings, and these are circulated to the other eight justices. Each justice then examines (or has his law clerk examine) the petition. During a conference the justices vote on each petition for review. If four justices vote in favor of review, the case is docketed. If fewer justices favor review, the case is rejected and the decision of the lower court stands.

When a case is accepted for review by the Supreme Court, the Court notifies the attorneys involved so that they can enter whatever additional briefs and materials they desire, Interest groups may also file briefs if they have the permission of the litigants, or the Court. A few cases are scheduled for oral argument, but most are decided on the basis of the records that the attorneys supply without oral argument. The justices confer on the latter cases during their conferences and decide them with a very brief opinion. These are known as per curiam decisions. The opinion simply states the decision of the Court and cites other cases that supply some reasons for the Court's action.

Cases scheduled for oral argument are handled quite differently. The Court allows each side to speak for a specified period, usually one hour but sometimes longer. The attorney must be prepared to emphasize what he believes to be the strongest parts of his case. He must also be prepared to answer whatever questions a justice may ask. The questions seek to clarify difficult problems that bother particular justices in their contemplation of the case. An attorney's answers to questions sometimes directly affect the outcome of a case. The importance of the oral argument is well illustrated by the decision in Rathbun v. United States, a case involving the power of the President to remove a member of the Federal Trade Commission. The government's attorney, Solicitor General Reed, was asked whether the logic of his argument would also allow the president to remove a judge of the court of claims. Solicitor General Reed agreed that it would. The decision in the case emphasized this point. Justice Sutherland, writing the opinion of the Court, stated:

We are thus confronted with the serious question whether not only the members of these quasi-legislative and quasi-judicial bodies, but the judges of the legislative Court of Claims, exercising judicial power... continue in office only at the pleasure of the President.

We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect to offices of the character of those just named.

Various justices use oral arguments differently. Some - Justice Frankfurter was a notorious example –- treat attorneys as if they were law-school students and bombard them with questions. Others rarely intrude on the attorney's argument.

After oral arguments have been heard, the Court reserves its decision until later. Periodically during its term the Court goes into conference to discuss the cases that it has heard argued. The conferences are attended only by the justices; no outsider is admitted. At the conferences the justices decide which new cases to hear and how to decide the argued cases.

The Chief Justice presides over the conference. His position enables him to exert great influence. He speaks first in the discussion of each case and may therefore define the issues and set the tone for the debate. In addition, he calls for the vote when the discussion appears to have reached the decisive point. Some Chief Justices, such as Taft and Hughes, have used these powers skillfully to keep the discussion moving briskly without allowing acrimonious debate. Stone, on the other hand, was not as effective in leading the conference: while he was Chief Justice, conferences sometimes lasted several days Discussion proceeds from the Chief Justice to the most junior justice according to seniority.

After a vote has been taken, the justices write opinions for those cases on which they have heard argument. The opinion for the Court (that is, for the majority) is assigned by the Chief Justice if he voted with the majority; otherwise, the most senior justice in the majority makes the assignment. Assigning opinions to the justices is very important. The opinion must be written so that the majority agrees with it after it has been written. A justice who writes too extreme an opinion may find that his majority has melted away. Opinion writing assignments must also be distributed so that every justice has a manageable work load. Since quite old justices often sit on the Court, sometimes fewer opinions can be assigned to them than to the younger justices. Moreover, justices become expert in certain fields of the law. Whenever possible, cases in a particular field will be assigned to the Court's expert. Finally, but not least important, the choice of the opinion writer rests somewhat on his reputation in the world at large. Justices who are particularly respected, may be chosen to write opinions the Court expects will stir controversy. Chief Justice Warren, for instance, often wrote the most controversial opinions of the Court, partly at least because he felt that the added prestige of the Chief Justiceship would help win acceptance of the decision.

Much bargaining accompanies the task of opinion writing. Those who disagree with the majority on the Court may, if they wish, write dissenting opinions. They may circulate the dissent among all the members of the Court in the hope of winning votes away from the majority, so that what was originally a minority view may become the majority decision. Dissenters may also seek to persuade the majority to modify their opinion in exchange for not publishing quite as stinging a dissent or not publishing one at all. Such bargaining has occasionally led to the development of caucuslike meetings, which occur before the official conference; these meetings are attended by justices who think alike but want to be better prepared for the conference. Unlike many legislative negotiations, no evidence of logrolling exists. Justices who often vote together may at times bitterly attack each other; justices who often oppose each other may be on warm personal terms.

Conference voting and the negotiations that ensue take place in complete privacy. No outsider is aware of what is happening. When the opinions are completed and the justices are agreed on them, they are announced. Until a decision is announced from the Supreme Court bench, changes can be made.

The action of the United States Supreme Court is the final judicial decision on the points considered by the justices in the case, but it is not the final judicial action. Only when the Court affirms lower court action does the litigation cease, in which case the only further action required is to enforce the lower court decision. When the Supreme Court reverses a lower court action, further judicial action often follows. In a criminal case the prosecution may try the defendant again; in a civil case the trial may likewise be reheard. Litigants who win before the Supreme Court often lose in the rehearing of their case. They may win the affirmation of a principle but lose their case on the particular fact in dispute.

The form of the Supreme Court's opinions also has significance for the judicial process. Its opinions provide judges, lawyers, and the world at large with statements of the Court's reasoning and policy. At times the Court has used its opinions to invite further litigation in order to allow it to reverse previous policies. For instance, in a flag salute case, the Court's opinion made it clear that a majority of justices was ready to reverse an earlier decision if a case involving an appropriate set of facts was appealed to it. Likewise, dissenting opinions provide lawyers with clues that may help them to argue later cases more successfully.

Decisions announced without opinion also play a significant role in the judicial process. Per curiam decisions indicate that the Court feels that a matter is sufficiently well settled so the Court need not justify its decision at length. It merely refers to its past decisions and announces the results of the present case: affirmance or reversal of the lower court action. The Court often uses per curiam decisions to reverse obvious errors by lower courts. On the other hand, when it wishes to affirm a lower court without further proceedings, the Supreme Court may simply refuse to review the case, either by denying a writ of certiorari or by stating that no appeal is justified because of insufficient federal questions. These summary decisions often have substantive significance. Although the Court never says so, some refusals to review seem to signify approval of the lower court action.