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Article

This entry on the adult court system in the United States discusses the foundation, structure, and authority of courts at federal, state, and local levels. The role of criminal courts, the nature of an adversarial justice system, the plea bargaining process, and the goals of sentencing are described. Innovations such as specialized courts, restorative justice approaches, and therapeutic jurisprudence are presented. Finally, several social work roles in the court system are identified.

Article

The American judicial system is not a static, simple, or mechanical entity. Rather, it is a complex organization that is developed and staffed in response to changing caseload and societal pressures through a process that is inherently political. The key personnel who help the judiciary function bring varied backgrounds and perspectives with them that influence the work they do. As is the case with any political system, understanding American politics and policy making requires an understanding of the judiciary’s role in the American political system. In addition, on a daily basis, courts function to resolve disputes. While most cases have little direct impact on American policy or society broadly speaking, the resolution of these cases is important to those who turn to the courts of law to resolve their disputes.

Article

Andrew M. Riggsby

“Crime” lacks a fully agreed definition across modern societies, but competing versions tend to stress notions like punishment, protection of public or collective interests, and a pervasive role for the state in proceedings. Over time the Romans used a series of different procedures (successively, trial before the assemblies, by specialized juries, or by imperial inquisitors) to try most of their offences that would be more or less recognizably criminal today. Substantively, the core of this group were offences against the state in an institutional sense (e.g., sedition, electoral malpractice, abuse of public office, forgery). Over time it also came to include an increasing number of (personal) crimes of violence. Some core modern criminal offences such as forms of theft and forgery of private documents came to be grouped in with these only at a very late date and incompletely. “Moral” offences that are treated as criminal more sporadically today (e.g., use of intoxicants, gambling, prostitution) were not criminalized. Penalties in earlier periods included fines, civic disgrace, and exile; later periods introduced finer differentiation of penalties, as well as execution. Imprisonment was not a formal penalty.

Article

Christina L. Boyd and Adam G. Rutkowski

Trial court judges are often referred to as the workhorses of the judicial system. This is unsurprising given that millions of civil and criminal cases are filed and resolved in U.S. state and federal trial courts each year. Very few of these cases ever reach appellate courts, meaning that trial courts are often the first and only court with which people directly interact. At the same time, trial courts can make local and national policy, both in individual cases and in the aggregate. This important role of trial courts and their actors has not gone unnoticed by scholars across social science disciplines. One can consider trial courts in a broad sense by tracking the historical developments that led to the trial courts in the United States. As caseloads have increased, trial courts—particularly those with specialized jurisdictions—have been created out of necessity. State trial courts feature variation in their judicial selection methods, including elections and appointments. At the federal level, increased polarization has led to contentious partisan confirmation battles for federal trial court judges. Trials are a rare occurrence, with plea agreements and settlements being the most frequent methods of resolving cases. To understand trial court actor behavior, it is important to remember that state and federal trial courts sit at the bottom of their judicial hierarchies. The preferences of their hierarchical superiors, along with the presence of high trial court caseloads and the rarity of trials, rein in judges’ discretion and the potential effects of their personal characteristics and attitudes. Because of these judge constraints, actors such as prosecutors, defense attorneys, and juries play a significant role in trial court outcomes. As the literature reveals, the “repeat players” in trial courts hold significant advantages over less experienced litigants and attorneys that affect their likelihood of gaining favorable outcomes, among other things. Race and gender of these actors can have significant effects on behavior in certain types of cases. There are many hurdles that remain for scholars seeking to study trial courts. For example, state trial courts, in particular, continue to be difficult to study empirically. This is due largely to a lack of data availability. Relatedly, scholars must continue to strive to find ways to study trial court outcomes and events that do not lead to published opinions—for example settlements, plea bargains, prosecutorial declinations, and many decided motions. Each of these involves important decisions and outcomes that affect parties and may be affected by judges and lawyers.

Article

This section defines and discusses the jurisdictions of the juvenile and family courts as well as their influences on social work practice. The history of the court, several interpretations of it, as well as various reform efforts are reviewed. Opportunities for social workers to be employed by the numerous agencies affiliated with the court, as well as several nontraditional social work roles, are outlined in this section. The final two parts of the section discuss the major innovations and primary challenges faced by the contemporary court such as gender, class, and racial biases in the system, questions about the effectiveness of the court and associated programs. Finally, proposals to abolish or reinvent the juvenile court are presented.

Article

Matthew Epperson, Julian Thompson, and Kelli E. Canada

This article discusses the emergence, structure, and purpose of the mental health court. It details the therapeutic aspects of the mental health court and its function as a specialized-treatment court serving persons with serious mental illnesses in the criminal justice system. Guiding themes, such as the criminalization of mental illness, therapeutic jurisprudence, and drug-treatment courts are described. It also identifies key legislation that contributed to the funding and proliferation of mental health courts. The effectiveness of mental health court, along with current criticisms regarding its impact on participants’ mental health and recidivism outcomes, are also covered. Last, social work values and the various roles of social workers in the mental health court are highlighted to demonstrate the relevance of mental health court to contemporary social work practice and intervention.

Article

Sabine Saurugger and Fabien Terpan

Considered an unusually powerful actor that has furthered European integration, the Court of Justice of the European Union (CJEU) has attracted considerable interest from both scholars and the public. Legal scholars and political scientists, as well as historians, have studied the Court in the context of it being one of the main actors in the integration process. Those that saw European integration as “integration through law” originally considered the Court to be the core element driving this process. The Court’s case law has influenced market integration, the balance of power among the EU’s institutions, and the “constitutional” boundaries between supranational and national competences. The pathbreaking rulings Costa vs. Enel and van Gend en Loos introduced new legal principles of direct effect and primacy in the 1960s; the 2007 Laval and Viking rulings triggered criticism of the Court’s decision, which was said to put the rights of companies above those of workers; whereas the Mangold ruling in 2005 on age discrimination was widely welcomed in spite of some negative reactions in Germany. Hence, while “integration through law” remains a powerful narrative in the academic field of European studies, the Court’s decisions and its role in the EU system have not remained unchallenged. This view of the Court as being less central to European integration is based on two developments in this field of study. On the one hand, research findings based on various analytical approaches—from rational choice to post-positivist—suggest that “integration through law” since the beginning of European integration has been a far less straightforward process than we have otherwise been led to believe. Scholars assert that the Court has been constrained by political, administrative, and constitutional counteractions since its establishment in 1952. On the other hand, scholars have identified a number of developments in the integration process from the early 1990s and the Maastricht Treaty, such as the increase in new modes of governance and intergovernmental decision-making, that explain why the Court’s role has come into question. Understanding these debates is crucial to grasping the broader institutional as well as political and legal developments of European integration.

Article

Increasingly, the study of law in colonial Africa has moved out of the domain of legal scholarship per se, where it had its origins in the 1940s, and into that of social and cultural history; it has also shifted from a rules-based approach, primarily concerned with legal codes and judicial institutions, to one that focuses on process and explores the complex relationship between law and culture. As the field has expanded, it has divided into sub-branches. Some remain within the scope of legal history, defined as the study of how legal codes and judicial procedures have developed and changed and of the issues of principle that arose; others are more concerned with the social impact of law, how the establishment of colonial legal regimes, including customary law and the courts where cases could be heard, presented new dilemmas and opportunities and altered the distribution of power in African communities. Beyond this, historians have also used legal records, especially court records, as social documents without being directly concerned with their particular legal and judicial contexts. Once their limitations and the difficulties of interpretation that they present have been understood, such records offer potentially rich insights into family and household affairs as well as into more obviously civil or criminal matters.

Article

Alexes Harris and Frank Edwards

Despite the central role that fines and other fiscal penalties play in systems of criminal justice, they have received relatively little scholarly attention. Court systems impose fines and other monetary sanctions in response to minor administrative and traffic offenses as well as for more serious criminal offenses. Monetary sanctions are intended to provide a deterrent punishment to reduce lawbreaking, to provide opportunities for accountability through financial restitution, to restore harm caused to victims of crime, and to fund the operation and administration of courts and criminal justice systems. Fines, fees, and other monetary sanctions are the most common form of punishment imposed by criminal justice systems. Most criminal sentences in the United States include financial penalties, and monetary sanctions are routinely imposed for less serious, and far more common, infractions such as traffic or parking violations. For many, paying a monetary sanction for a low-level violation is an annoyance. However, for the poor and people of color who are disproportionately likely to be subject to criminal justice system involvement, monetary sanctions can become a vehicle for expanded social inequality and increasingly severe criminal justice contact. Failure to pay legal financial obligations often results in court summons or license suspensions that may have attendant additional costs and may trigger incarceration. In the United States, the criminal justice system is heavily and routinely involved in the lives of low-income people of color. These already-existing biases, coupled with the deep poverty that is common in many communities, join to widen the net of criminal justice involvement by escalating low-level infractions to far more serious offenses when people are unable to pay. Despite the routine justification of monetary sanctions as less-severe penalties, if imposed without restriction on the poor, they are likely to magnify the inequality producing effects of criminal justice system involvement.

Article

Much has been written about mass incarceration and how it has fallen especially hard on people of color. Given their representation in the U.S. population, for example, black and Hispanic males are far more likely than their white counterparts to be sent to jail or prison. Such disproportionality may be due to the greater involvement of blacks and Hispanics in serious street crime, especially violent crime, which would result in differential incarceration. It also could be due to discretionary decisions by criminal justice officials during arrest, charging, conviction—and, key to the focus of this article, sentencing—which might produce disparity, to the disadvantage of black and Hispanic men. Various theories seek to explain racial and ethnic sentencing disparity by focusing on characteristics of individuals and criminal cases, features of court organization and decision-making, and social contexts surrounding courts. Literally hundreds of studies in the past 40 years and beyond have focused on sentencing decisions in local courts and unwarranted racial/ethnic punishment disparity, defined as racial/ethnic differences that persist after accounting for legally prescribed and perhaps case-processing influences. Some reviews of this large and mature body of literature have shown that young, black, and (to a lesser extent) Hispanic male defendants tend to receive more severe sentences than other defendants. In addition, reviews have noted how the sentencing role of race/ethnicity is often conditional on gender and other factors, and that racial/ethnic disparity in sentencing varies in connection with characteristics of courts and their surrounding social contexts. Future research on race, ethnicity, and sentencing should address disparity in relation to earlier (e.g., charging and conviction) and later (e.g., parole, probation, or parole revocation) stages of criminal justice decisions, as well as how the social characteristics of judges, prosecutors, and defense attorneys affect disparity. Research studies should continue to examine how specific punishment policies (e.g., mandatory minimums, risk assessments, and sentencing guideline provisions and departures) may be the sources of racial and ethnic disparity.

Article

Elizabeth A. Lane and Ryan C. Black

The Supreme Court’s docket consists of thousands of cases each term, with petitioners hoping at least four justices will be compelled to grant review to their case. The decision to move a case from their docket to their calendar for oral arguments and all intermediate steps is what is known as the agenda-setting process. This is a fundamental step in the judicial process, as the Supreme Court cannot establish precedent and affect policy change without first deciding to review.

Article

Thomas M. Keck and Logan Strother

Scholars have long been interested in judicial impact—the ability of courts to meaningfully alter policy or politics—because judicial decisions shape law, have the potential to affect many people, and may even implicate democracy in a fundamental sense. Classic studies in this tradition concern the degree to which actors outside the court comply with judicial decrees, such as whether or not (or to what extent) schools desegregated in the wake of Brown v. Board of Education. However, scholars working in a variety of other traditions have likewise examined the impact of judicial decisions, though they have not always used those terms. For example, advocates of interbranch analysis have situated courts within broader ongoing policy processes, and in so doing have documented repeated instances in which policy outcomes were altered by the actions of lawyers and judges. Likewise, students of legal mobilization have documented the sometimes constitutive effects of legal ideas on a wide range of political identities, attitudes, and behaviors. In short, the concept of impact includes a variety of ways in which courts influence politics, and the field of judicial impact studies will continue to benefit from a vital diversity of methods of inquiry, subjects of analysis, and conceptions of law.

Article

Charles M. Cameron and Lewis A. Kornhauser

We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member (“collegial”) court employing the Supreme Court’s very distinctive and highly unusual voting rule. The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court’s voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.

Article

Julie Schroeder and Bridgette Harris

Drug courts were developed to facilitate treatment for criminal offenders with substance abuse problems. Drug courts operate using dual paradigms of healing and discipline via treatment, social service resources, and case management for healing, and judicial sanctions and criminal justice interventions in efforts to initiate change resulting in sobriety and no further criminal behavior. The key goals of most drug courts are to reduce drug use and associated criminal behavior by engaging and retaining drug-involved offenders in programs and treatment services; to concentrate expertise about drug cases into a single courtroom; to address other defendant needs through clinical assessment and effective case management; and to free judicial, prosecutorial and public defense resources for adjudicating non-drug cases. It is vital that social work students be introduced to drug courts and how they function for students to gain better understanding of how addiction can bring their clients into contact with the criminal justice system. Drug courts are ideal settings for internship placements so that students can get hands-on experience in a court setting and assist clients using a therapeutic jurisprudence model.

Article

Sunny Harris Rome

Forensic social work is a practice specialty that involves interaction with the courts. It has emerged as an important field in the past several decades. Forensic social workers often are involved in making recommendations regarding competency, involuntary commitment, risk of violence, and alternative sentencing. They conduct forensic interviews and psychosocial assessments, and testify as expert witnesses. They also provide treatment to court-ordered offenders. Their influence is felt in cases of domestic violence, child maltreatment, custody, mental health, immigration, elder abuse, divorce, visitation, foster care, adoption, criminal and juvenile justice, substance abuse, and probation and parole.

Article

actio  

Thomas Rüfner

In Roman law, the word actio refers to a civil lawsuit. At first sight, it seems obvious that actio derives from the verb ago, which has the basic meaning “to drive,” “to urge,” or simply “to act.” The Roman jurists themselves clearly regarded ago as the verb corresponding to the noun actio and meaning “to conduct a lawsuit” (cf. Festus, Gloss. Lat. 21, l. 15, s.v. agere). Hence, actio may be explained as referring to the claimant urging the judge (and/or the adversary) to do something,1 or simply to the claimant’s actions in court.2 Some scholars have proposed different etymologies. It seems possible that actio is not a derivative of ago (“to drive, to urge”), but of a root agjō meaning “to speak” (cf. the verb aio), and that the word was only later associated with ago.3 Alternatively, it has been argued that ago and aio have a common root that, in the context of archaic law, refers to a performative utterance which affects the Roman citizens collectively.

Article

A large amount of American law-related popular culture is comedic. Inexpensive literature, Hollywood movies, and prime-time series routinely include images of amusing lawyers and accounts of hilarious trials. These pop cultural works entertain readers and viewers and in some instances simultaneously speak to the public’s resentment of powerful legal institutions.

Article

The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. Understanding this process will allow scholars, students of the Court, and Court watchers alike to gain a better understanding of the way in which the justices conduct their business and to come to terms with some of the most important legal and political decisions in our nation’s history. Combining a theoretical account of Supreme Court decision-making with an examination of its internal decision-making process illuminates this opaque institution.

Article

This purpose of this essay is to reveal the diversity of writers responsible for creating the texts of lawsuits in the Spanish empire. It peeks behind the curtain of pages in civil complaints in an attempt to figure out how legal papers actually made it into the court record and who was doing their writing. While historians have recently thrown a spotlight on various official writers, from notaries to native procurators, in fact unidentified, unofficial writers penned quite a few petitions in civil suits. Knowing who wrote the filings in civil cases has a bearing on our understanding of Spanish imperial subjects, their interactions with the law, and ultimately how much of a hand they had in making their own historical record.

Article

Kathleen Barrett

Article 38 of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law” as the second source of law to be used by the Court. In other words, customary international law (CIL) requires state practice and opinio juris, the belief that the practice is legally required. A basic principle of international law is that sovereign states must consent to be bound by international legal requirements. Therefore, for a norm to become CIL, a widespread group of states must consistently follow the norm and indicate, either explicitly or implicitly, that they consent to the norm. Consistent action is important in two ways: consistent state practice following the norm indicates state consent to be bound by the norm and consistent objection to the norm indicates that the state does not consent to the norm. To avoid being bound by a rule of CIL, a state must persistently object to the rule during and after its formation. Changing CIL requires new state practice and evidence that opinio juris supports the new, not the old, state practice. Debates surrounding state practice include the number of states required to demonstrate “widespread” action, whether the states must be representative of the community of states, and how long consistent practice must occur before CIL is formed. Opinio juris is debated because it is subjective unless there is a specific, official statement that there is a belief that the practice is legally required. Once a state consents, implicitly or explicitly, to a CIL rule, it cannot withdraw that consent. States that gain independence after a CIL rule is established are bound by that rule if the former government was not a persistent objector. This is problematic, particularly for former colonies that were not able to object during the formation of existing CIL rules because they were not considered “sovereign states.” Scholars supporting this perspective argue that, prior to decolonization, CIL was used to control the colonies and, since their independence, it is used by the colonizers to maintain their power and perpetuate inequality.