PS 326

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Political Science 326 is, according to the Oregon State Catalog, [1] "the study of the operation, processes, behavior and influence of the state and federal judiciaries, as well as current research in the judiciary as it relates to politics." In winter of 2007 it was taught by Rorie Solberg.

[edit]

Class notes from 2/22/07

Actors in the system -Clerks

Hisory of the Law Clerk

(Recently a big topic of debate with Law Clerks)

  • Justice Horace Gray -1882

-First Justice with an assisitant

  • by the End of the century every justice had one clerk

-Today up to 4

  • Clerks were on an Ad Hoc Basis

-Assigned by your professor -Maybe by a lower coart jusge

  • Not Much Criteria either
  • Mid 20th Centery there was more control with selection
  • By the Late 1960's Formal applicaiton process

-Idiology became very important -Its necessar to have justices interview because they were doing more work for the justices

  • Ideology

-Cues in there resume -What type of type of societies the clerks are apart of IE:The federalist society for conservatives

  • The Trend to a tructed and formal selection process

Who are the Clerks

  • Backgroud is as you would expect, White Rich Males
  • From 1945 to 1985 slected from a small number of schools, Harvard, Yale, Columbia, Chicago, MIchigan, Stanford, Virgina
  • Usually They were involved with the campus law review (if not chief editors)
  • Supreme Court Clerks have previous clerkship

Law Clerk Duties

  • Serve for one or two years
  • At first not given a lot of responsiblitiy
  • by 1940's informal norms developed

-Review certiorari petitions -prepare cer memos -Draft opinions (Justice scalia still writes his own) -Bench memos

The Invluence of thh Law Clerk

  • The Brethren is a book about clerks in 1979. It showed them in a negitive light
  • The Book CLosed Changers in 1998

-"Guerilla war that liberal and conservative clerks conducted, largely out of sight of the Justices, to control the course of con Law" -Conservative law clerks are blamed

The influence of the Law Clerk

  • What is influence
  • Two Main avenues for influence

-Stylistic influence -Hard to find fauld -But lately the opinions are narrow and borroing

  • substantive Influence-Higlights facts or point out law

-'but for' principle-Inervention of clerk. ('but for' principle is when a clerk makes a counter aurgment to the justice)

  • Can clerks ecert such influence?

End of lecture on Clerks

Judical Decision Model

Legal model

  • "a mysterious document..."(the constitution)
  • a viable claim?

-7000 words -But runs the enitre government -Rorie Solberg asks "what is the general welfare? Job of justices? How do we get these choices?"

  • what is a bodel

-A simplified version of how tings work

Interpretivism

-AN approach to interpretation -Extreme form

  • only the law and the constitution, Nothing else
  • stare Decisis
  • facts

-for most

  • begins and ends with the constitution
  • must be in document or derived from it

-Limiting

  • e.g. Frankfurter in Baker v. Carr

-looser form

  • allws for implied principles
  • still leaves questions unanswerd

-1928 Taft in U.S. v. Olmstead

  • 4th Amendment does not cover thelephone
  • constitution should not be interpreted to keep step with modernity

Non Interpritivism

-different approach to interpratation

  • constutional and intention as guides

-could not predict every thing in 1787 -Closely associete with leagal realism

  • e.g. Dissent in Olmstead
  • katz.v. U.S. overturns olmstead

-dwarkin sayed equality will change...let it change -still a "legal" preception

  • based upon principle
  • olds vertically
  • holds horizontally

How to interpret

-Nothing new -Neither helps answer "why"

  • how does one juge choose interpertivism v. Non interpritivism

-Need Evidience -Need to Expleain

  • changes in doctrine, choice of approach, dissent

Evidence for the leagal model

-Unaniomous opinons -Use of precedent -Compelling for lower courts

Fact Pattern Analysis

-Search and Seizure Cases

  • 1962-1980
  • area thought to be messy
  • hierarchy of expectation of privacy
    • home-business-car-friends house

-using just facts -Findings

  • facts influcnce ruling (the law matters)
  • facts and precedent affect decisions in search and siezure cases

Effect of Precendent

-History of the Court

  • Every body cites precident mojority and minority
  • find times when justices dissent in the land mark cases
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