Far too often when we discuss American courts and their judicial systems, we take little note of the significant differences in the ways in which cases are handled and law is practiced. We probably contemplate the dichotomy between trial and appellate courts; between rural and urban courts; between general and special jurisdiction courts; between state and federal courts; and between courts with elected and selected judges. We also surely contemplate the difference in attitudes, work habits, ideology, staff and the like which separate individual judges, as well as the divergent approaches to the balance of individual and societal interests. What we so frequently_ miss in discussion of American courts are the differences in their constitutional foundations. Not only is the judicial article to the federal constitution dramatically different from the judicial articles of many states, but the judicial articles of many states are distinct from one another. Further, quite unlike Article Ill of the Federal Constitution, many state judicial articles have undergone significant alterations. Perhaps the failure to discuss differences can be attributed to the view that any differences in constitutional foundation are meaningless in that no practical consequences flow. In effect, this view parallels the popular notion that all seemingly comparable courts in American actually have comparable powers and that whatever differences exist originate from such nonconstitutional sources as political ideology and community setting. This view of comparability is troubling for constitutional differences do result in practical consequences. Under current American constitutional law, all American trial courts do not possess the same power to make substantive law. All American courts of last resort do not possess the same explicit or inherent authority to regulate the practice of law. Moreover, all American courts do not possess the same responsibility for checking legislative inroads on judicial prerogatives. This article first explores some of the differences between the federal and state judicial articles, as well as some of the differences over time in the judicial article of a single state. More serious consideration of the noted differences in constitutional language is encouraged. The article concludes that there is a need for a heightened recognition of, and respect for, differences in the structure, function and operation of the American judicial systems.
Parness, Jeffrey A., "Comparative American Judicial Systems" (1990). Faculty Peer-Reviewed Publications. 569.
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