The Supreme Court and the laws of the United States

Do this kind of cases of property issues never find their way into the U.S.Supreme Court？ Yes，they do，as long as the parties can find some “federal issues” in their dispute.For example，X says to B，“You cannot sell your property to A，an Asian，because of a covenant in our community that prohibits sales of property to Asians.”A private document containing racial discrimination is not against the law，but the U.S.Constitution does not allow federal or state governments to enforce such a document.Whether this covenant is enforceable is surely a federal constitutional issue，and therefore certainly reviewable by the U.S.Supreme Court.

The Supreme Court of the United States is specifically established by Article III of the Constitution，with very narrow jurisdiction of hearing appellate cases from lower federal courts (involving “federal issue”），and a few specified types of original claim，such as lawsuit between states，or between a state and a foreign country，etc.

The Court may not review a state court’s decision，except to the extent of constitutionality in the application of the state laws.The Court，like any other courts (state courts or lower federal courts），will have to follow the statutes passed by Congress(that，of course，is reviewable for constitutionality），and its own case law，as well as common law traditions under the historically the most important principle of stare decisis (meaning，“Let the decision stand”）.Each previously decided case carries with it the precedential value–the convincing reasoning–which will guide later courts in deciding similar cases.This is so-called the “unwritten law”.Why unwritten？ Because the wording of the law is buried in the judicial opinions，and that’s the reason we study the cases in order to understand what the law is，in sharp contrast to the continental European practice of promulgating the law in black and white in the form of a statute.A common law judge would habitually be suspicious of a statutory law.Because the words are taken out of their contexts，you would first need to interpret what the words mean，and that spells trouble.Of course，if there is statutory law directly on point over a dispute，and there is nothing wrong with the statute itself (proper legislative intent，proper applicability of the law），the judge would simple apply that law as the primary authority.

Frequently we encounter citations of “Restatement of the Law” (such as the Restatement of Property，or Restatement of Tort） and sometimes the statutory law of“land transactions”，or “housing acts”.The Restatement is a summary of rules made by courts in a form of a statement，which is organized and published by American Law Institute as legal treatises.A judge may follow it，or refuse to do so for some reason.A statutory law is binding and the judge must follow in deciding cases.Yet in the majority of cases，it is the “case law” that controls.The case law，or the precedential law，carries much more weight than any other forms of “law”，as an American judge would be more familiar with the cases.He would not hesitate to refuse application of the statutory law if he feels uncomfortable with it，but he would be extremely cautious if he has to deviate from the established rules derived from previous cases.

Another fascinating and yet complex aspect of the common law system is its jury system that flourishes in the United States more than anywhere else in the common law world.The common law trial process is also known as the adversarial process in which the litigating parties present their arguments，along with evidence to establish the facts，to the court which consists of the judge and jury.The judge would not interrupt the proceeding except for procedural reasons，and the jury of twelve men and women randomly selected would do nothing at all except listening.The judge and jury do not decide the case together，as they would in other countries such as China in a “judicial panel”.They perform different functions.The judge decides on the procedural and legal issues，i.e.，whether a piece of evidence may be admitted，and what the law is in this particular case (based on the prior cases，the statutes or others），and the jury decides on the factual issues，i.e.，what really happened，and whether an act is wrong or not (based on the “jury instructions”–the law in this case–given by the judge）.Often，the “jury instructions” are first proposed by the litigating lawyers，and each side will argue for its own version to be adopted.

Finally，the appeals.Most of the cases that we read are appellate opinions from the court of second instance.The appellate stage is not exactly like that in China where the second instance is more or less a second trial (although some scholars would disagree）.Under the common law，a litigant cannot have a “second bite” and have the same case tried again when they appeal.Fact-finding is the function of the trial court where evidence is introduced，examined and cross-examined； witnesses are called to testify in front of the jury； and the parties (through their lawyers） make their arguments.When these are done，they become the “record” of the case，and the reviewing court (appellate court） must not make its own finding of facts again.If the reviewing court finds that the evidence is insufficient for the lower court to reach its decision，it must remand the case–send the case back to the trial court–so that further finding of fact may be necessary.But，of course，a reviewing court can make its own decision overruling the lower court，if it finds the lower court’s decision is not supported by evidence.

Each case involves at least one issue over which there is a controversy of opposing views.The judge is to decide which view is plausible and make a ruling based on that view.He is not necessarily correct.We are to go over the controversy and argue which view is better，or if there are any other views.For this reason，you must read the case materials before you come to the class，and prepare yourself for the class discussion.