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No sitting federal judge has ever written so trenchant a critique of the federal judiciary as Richard A. Posner does in this, his most confrontational book. He exposes the failures of the institution designed by the founders to check congressional and presidential power and resist its abuse, and offers practical prescriptions for reform.
Presents a novel theory explaining how and why politicians and lawyers politicise courts.
Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made. The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors' view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.
This book examines the American legal system, including a comprehensive treatment of the U.S. Supreme Court. Despite this treatment, the 'in' from the title deserves emphasis, for it extensively examines lower courts, providing separate chapters on state courts, the US District Courts, and the US Courts of Appeals. The book analyzes these courts from a legal/extralegal framework, drawing different conclusions about the relative influence of each based on institutional structures and empirical evidence. The book is also tied together through its attention to the relationship between lower courts and the Supreme Court. Additionally, Election 2000 litigation provides a common substantive topic linking many of the chapters. Finally, it provides extended coverage to the legal process, with separate chapters on civil procedure, evidence, and criminal procedure.
"The book provides a very short, but complete introduction to the institutions and people, the rules and processes, that make up the American judicial system. Jargon free and aimed at a general reader, it explains the where, when, and who of American courts. It also makes clear the how and why behind the law as it affects everyday people. It is, in a word, a starting place to understanding the third branch of American government at both the state and the federal levels, a guide to those wishing to know the basics of the American judicial system, and a cogent synthesis of how the various elements that make up the law and legal institutions fit together"--
Drawing on economic and political theory, legal analysis, and his own extensive judicial experience, Posner sketches the history of the federal courts, describes the contemporary institution, appraises concerns that have been expressed with their performance, and presents a variety of proposals for both short-term and fundamental reform.
Known for shedding light on the link among the courts, public policy, and the political environment, Judicial Process in America provides a comprehensive overview of the American judiciary. In this Tenth Edition, authors Robert A. Carp, Ronald Stidham, Kenneth L. Manning, and Lisa M. Holmes examine the recent Supreme Court rulings on same-sex marriage and health care subsidies, the effect of three women justices on the Court’s patterns of decision, and the policy-making role of state tribunals. Original data on the decision-making behavior of the Obama trial judges—which are unavailable anywhere else—ensure this text’s position as a standard bearer in the field.
"This book describes and explains the failure of the federal courts of the United States to act and to provide remedies to individuals whose constitutional rights have been violated by illegal state coercion and violence. This remedial vacuum must be understood in light of the original design and historical development of the federal courts. At its conception, the federal judiciary was assumed to be independent thanks to an apolitical appointment process, a limited supply of adequately trained lawyers (which would prevent cherry-picking), and the constraining effect of laws and constitutional provision. Each of these checks quickly failed. As a result, the early federal judicial system was highly dependent on Congress. Not until the last quarter of the nineteenth century did a robust federal judiciary start to emerge, and not until the first quarter of the twentieth century did it take anything like its present form. The book then charts how the pressure from Congress and the White House has continued to shape courts behaviour-first eliciting a mid-twentieth-century explosion in individual remedies, and then driving a five-decade long collapse. Judges themselves have not avidly resisted this decline, in part because of ideological reasons and in part out of institutional worries about a ballooning docket. Today, as a result of these trends, the courts are stingy with individual remedies, but aggressively enforce the so-called "structural" constitution of the separation of powers and federalism. This cocktail has highly regressive effects, and is in urgent need of reform"--
How did the federal judiciary transcend early limitations to become a powerful institution of American governance? How did the Supreme Court move from political irrelevance to political centrality? Building the Judiciary uncovers the causes and consequences of judicial institution-building in the United States from the commencement of the new government in 1789 through the close of the twentieth century. Explaining why and how the federal judiciary became an independent, autonomous, and powerful political institution, Justin Crowe moves away from the notion that the judiciary is exceptional in the scheme of American politics, illustrating instead how it is subject to the same architectonic politics as other political institutions. Arguing that judicial institution-building is fundamentally based on a series of contested questions regarding institutional design and delegation, Crowe develops a theory to explain why political actors seek to build the judiciary and the conditions under which they are successful. He both demonstrates how the motivations of institution-builders ranged from substantive policy to partisan and electoral politics to judicial performance, and details how reform was often provoked by substantial changes in the political universe or transformational entrepreneurship by political leaders. Embedding case studies of landmark institution-building episodes within a contextual understanding of each era under consideration, Crowe presents a historically rich narrative that offers analytically grounded explanations for why judicial institution-building was pursued, how it was accomplished, and what--in the broader scheme of American constitutional democracy--it achieved.