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Chapter 2: The Legal System: Issues, Structure, and Players
Chapter 2
The Legal System: Issues, Structure, and Players
Questions for Class Discussion and/or Essay Examinations
1.Describe the adversarial system of justice. How does it differ from the inquisitorial approach? (pp. 27-28)
2.Provide a criticism and a benefit of the adversarial model. (p. 28)
3.Describe the Lester Zygmanik case (facts, charges, verdict, relevance to the issue of legality versus morality).(pp. 28-29)
4.What is black letter law? Why would someone not make a judgment based on black letter law? (p. 29)
5.Give an example of a situation in which the law is inconsistent with typical views of morality. (p. 29)
6.Summarize the case of Ralph Damms and explain how it illustrates the concept of intention. (p. 31)
7.What does the Model Penal Code say about attempted, as opposed to completed crimes? According to research by Darley et al. (e.g., 1996), how does the position of the Model Penal Code differ from citizens’ general views? (pp. 30-31)
8.Describe how attribution theorists would consider culpability. (pp. 31-32)
9.Discuss how people tend to make inferences about what causes another’s negative behavior. Differentiate this from inferences about what causes one’s own negative behavior. (pp. 31-32)
10.Comment on the potential consequences of discrepancies between citizens’ sense of morality and the legal system’s sense of legality. (p. 32)
11.Discuss how justice has been viewed historically. (p. 32)
12.Differentiate between distributive justice and procedural justice. (pp. 32-33)
13.According to research conducted by Tyler and Huo (2002), do citizens have a better view of police officers and judges if they perceive that they are being treated fairly? (p. 33)
14.According to Chapter 2, there are three ways in which jurors’ basic notions of what is just and fair (“commonsense justice”) tends to differ from the “law on the books.” What are these differences? (pp. 33-34)
15.Describe the federal court system. When would something come before a federal court? (p. 344)
16.Describe the federal appellate court system. (p. 35)
17. What kinds of cases come before the U.S. Supreme Court? (p. 35)
18.Describe the appointment process for justices of the U.S. Supreme Court. (p. 35)
19. Describe the structure of state court systems and indicate what sorts of cases each court reviews. (p. 35)
20. What is therapeutic jurisprudence? (p. 36)
21.How does a problem solving court differ from a traditional court? (pp. 36-37)
22. Discuss the Schiavo case and the issue of independence of the judiciary from the legislature. (pp. 36-37)
23.What is the goal of drug courts and how do they work to accomplish this goal? (pp. 37-38)
24. According to information provided in Chapter 2, how successful are drug courts in reducing drug-related criminal activity? (p. 38)
25.What is deinstitutionalization and what has been the result of this process? (p. 38)
26.Describe what happens when one is diverted to a mental health court. (pp. 38-39)
27.Comment on the successfulness of homeless courts. (p. 39)
28.How has the legal response to domestic violence cases changed historically? (p. 39)
29.How do domestic violence courts differ from other problem-solving courts? (p. 39)
30.Have domestic violence courts been successful? (p. 39)
31. What are some criticisms of problem-solving courts? (pp. 39-40)
32. What is alternative dispute resolution? What are some forms it takes? Is it effective? (pp. 40-42)
33. Describe the arbitration process. Differentiate between binding and nonbinding arbitration. (p. 41)
34. Describe what occurs in a summary jury trial. (p. 41)
35.Describe the mediation process. How do lawyers and clients generally feel about mediation? (p. 42)
36. According to Shestowsky (2004), what dispute resolution features do people prefer? (p. 42)
37. According to information provided in Chapter 2, what are the positive and negative consequences of having mandatory alternate dispute resolution? (p. 42)
38. What are the most common methods for the selection of state judges? (pp. 42-43)
39.Describe the pros and cons of having retention elections for state judges? (p. 43)
40.According to research presented in Chapter 2, how do judges’ behavior change as election time draws near? (p. 43)
41.Comment on the past and present gender and racial minority makeup of the population of federal judges. (pp. 43-44)
42.Have male and female judges been found to view cases differently? Provide an example of the relevant research in your answer. (p. 44)
43.Comment on the stresses of judgeship. What are the sources of stress that judges commonly experience? Comment on how well female and male judges are said to handle the stress. (p. 44)
44.Discuss the two “schools of thought” of appellate decision making. (pp. 44)
45.How would one use a two-process model to explain trial judges’ decision making? (pp. 44-45)
46. Provide a history of public defenders; be sure to include a discussion of Betts v. Brady (1942) and Gideon v. Wainwright (1963). (pp. 46-47)
47.Discuss how the training of American lawyers has changed over time. (p. 48)
48.What have researchers found with regard to law students’ well-being? (pp. 48-49)
49.Comment on the state of professional satisfaction among lawyers. (p. 49)
50. Discuss minority admissions into law school and the influence of Grutter v. Bollinger (2003). (pp. 49-51)
51. What are the criticisms of the legal profession? Are they justified? (pp. 50-52)
Suggested Activities
1. Activity: Have students compare the American trial procedure (adversarial) with that of other countries.
2. Discussion: Discuss the case of Lester Zygmanik. Should he have killed his brother? Should he have gone to prison for committing this act? Also consider dividing the class into juries that deliberate this case; discuss the results of this process and consider the reasons for each verdict.
3.Discussion: On April 5, 2006, four teens in New Jersey were arrested and charged with first degree counts of conspiracy to commit murder, and conspiring to make terrorist threats. The terrorism charge is a charge lawmakers created in response to the September 11, 2001 attacks; it carries a minimum sentence of 30 years in prison for adults. These teens were accused of plotting to kill about 25 people in a lunch-period massacre at Winslow Township High School in Camden County. The teens, a couple of whom have arrest records for fighting in school, did not have any weapons, although allegedly they did try and purchase them. Officials decided to try two of the youths as adults. Here are some questions for students to ponder: Should someone be punished for planning a crime that never occurred? If so, should the punishment be as severe as it would be if the crime had occurred? Should these teens be charged as adults or should officials just consider this as one of the parents described it—“just kids hanging out together and having a little wild time?” Source: Teens in threat case face severe anti-terrorism law. (2006, April 7). The Trenton Times, A6.
4.Survey: Students can use the scenarios presented in the following reference to investigate the differences between community views and the law as stated in the Model Penal Code.
Robinson, P. H., & Darley, J. M. (1995). Justice, liability & blame: Community views and the criminal law. Boulder, CO: Westview Press, Inc.
5.Survey: Students can take or administer surveys to assess attitudes toward the legal system. See Wrightsman, Batson, and Edkins (2004). Measures of legal attitudes. Belmont, CA: Wadsworth (pp. 7-18).
6.Video (DVD): The Judicial Branch (2002) explains the federal and state court systems. This 23 minute program is available by calling Insight Media at 1-800-233-9910 or by visiting
7.Video (VHS/DVD): Judicial Opinions: The Supreme Court Justices. Interviews with various justices are presented in this 67 minute program including a discussion with Sandra Day O’Connor and Stephen Breyer on Judicial Independence. Go to Films for the Humanities and Sciences at or call 1-800-257-5126 to order.
8.Video (DVD): The Supreme Court (2007). This 4 part DVD set (240 minutes total) traces the evolution of the Supreme Court. Call Insight Media at 1-800-233-9910 or visit to order this program.
9.Video (DVD): The ABC News program titled The Right to Die: Terri Schiavo (2003) provides information on the medical, ethical and legal aspects of the Schiavo case. Call Insight Media at 1-800-233-9910 or visit to order this 23 minute video. Insight Media also offers a 51 minute DVD titled Persistent Vegetative State: Live …or Let Die (2005).
10.Discussion: Discuss the case of Terri Schiavo. See the Suggested Readings section for possible sources of information.
11. Video (VHS): Introducing TJ: Therapeutic Jurisprudence(2000) is a program that profiles a Mental Health Court in Florida. Call Insight Media at 1-800-233-9910 or visit to order this 27 minute video.
12.Assignment: What kinds of problem-solving courts are present in your community? Have students investigate.
13.Video (DVD): South Boston Drug Court (2006). This 24 minute HBO production shows how this drug court works with addicts. Go to Films for the Humanities and Sciences at or call 1-800-257-5126 to order.
14.Video (DVD): Family Court Crisis: Our Children at Risk (2008). This documentary looks at what happens when the family court system doesn’t work and custody is awarded to abusive parents. Call Insight Media at 1-800-233-9910 or visit to order this 42 minute video.
15.Video: Frontline’s program The New Asylums provides information about the mentally ill in state prisons. Includes information about deinstitutionalization. Watch the video online ( Also see the Suggested Websites section for more information.
16.Video (DVD): Alternative Dispute Resolution (2008) is a 28 minute program that includes information on mediation, negotiation and arbitration (using an Australian model). Go to Films for the Humanities and Sciences at or call 1-800-257-5126 to order.
17.Speaker: Have a mediator come to class.
18.Discussion: How do students feel about the fact that an unpopular decision could result in a judge being voted out of office? Should judges consider the possible acceptance of their decision when deciding?
19.Speaker: Have a judge come to class to discuss the experience (e.g., stresses) of being a judge.
20.Assignment: Ask students to interview a trial lawyer who is in private practice who must represent some indigent clients, at lower pay. The lawyer’s experiences? Reactions?
21.Assignment: What should the criteria be for deciding eligibility for free counsel? Ask students to interview a judge, a lawyer in private practice, and a public defender.
22.Video (VHS/DVD): Show the 105 minute film Gideon’sTrumpet(1980) which details the story of Clarence Earl Gideon, a story briefly described in Chapter 2.Available for purchase from
23.Video (VHS/DVD): Presumed Guilty: Tales of the Public Defenders (2001). Call Wallen Blake Media at 1-888-879-5919 or visit their website to order this 120 minute program that features the attorneys in the San Francisco Office of the Public Defender (
24.Video (VHS/DVD): Gideon’s Trumpet: The Poor Man and the Law: 1964. This CBS News Program documents the case of Gideon v. Wainwright. Includes interviews with Gideon and his attorney. Go to call 1-800-257-5126 to order this 51 minute program.
25.Video (VHS): Frontline’s program Real Justice provides an inside look at the world of defense lawyers and prosecutors. Call 1-877-PBS-SHOP or visit to purchase a videotape of this program. Also see the Suggested Websites section for more information.
26.Discussion: Arrange for a panel of law students to speak to the class about “What law school is really like.” Do they feel that their values have changed during law school? If so, how and why?
27.Assignment: Have a student poll members of the pre-law group on campus to determine their motivations for wanting to attend law school.
28.Video (VHS/DVD): Justice Sandra Day O’Connor. Justice O’Connor discusses the difficulties she had breaking into the male-dominated legal profession. Call Wallen Blake Media at 1-888-879-5919 or visit their website to order this 60 minute ABC News program (
Suggested Readings
1.van Koppen, P. J., & Penrod, S. D. (2003). Adversarial versus inquisitorial justice:
Psychological perspectives on criminal justice systems. New York: Springer.
Using primarily a comparison between the United States criminal justice system and that of the Netherlands, van Koppen and Penrod consider how each system handles different kinds of issues (e.g., risk assessment).
2.Tyler, T. R., Boeckmann, R. J., Smith, H. J., & Huo, Y. J. (1997). Social justice in a
diverse society. Boulder, CO: Westview.
See this book for more on justice (including psychological and behavioral reactions to justice and injustice).
Also see:
Tyler, T. R. (2006). Why people obey the law. Princeton, NJ: Princeton University
Press.
More on procedural justice. Tyler has updated this text (originally published by Yale University Press).
Robinson, P. H., & Darley, J. M. (1995). Justice, liability & blame: Community views and the criminal law. Boulder, CO: Westview Press, Inc.
Tyler, T. R. (2001). Public trust and confidence in legal authorities: What do
majority and minority group members want from law and legal institutions?
Behavioral Sciences and the Law, 19, 215-235.
3.Murphy, K., & Tyler, T. (2008). Procedural justice and compliance behaviour: The
mediating role of emotions. European Journal of Social Psychology, 38, 652-
668.
Recent research that demonstrates that emotional reactions to perceived justice or injustice can predict one’s level of compliance with authority decisions and rules.
4.Benesh, S. C., & Howell, S. E. (2001). Confidence in the courts: A comparison of
users and non-users. Behavioral Sciences and the Law, 19, 199-214.
Considers procedural justice and how that affects confidence in state and local courts.
5.Bryan, P. E. (2005). Constructive divorce: Procedural justice and sociolegal
reform. Washington, DC: American Psychological Association.
Bryan discusses a procedural justice approach to divorce. Included are suggestions for procedural reforms that can improve outcomes, and promote the psychological well-being of participants.
6. Liptak, A. (2005, December 31). So, guy walks up to the bar, and Scalia says…The
New York Times, A1, A12.
For an interesting view of the Supreme Court justices, read the article cited above. It profiles a study completed by Jay Wexler, a law professor at Boston University, who tabulated the number of laughs generated by comments from the justices over a nine month term. According to Wexler, “Justice Scalia is the funniest…Justice Thomas gave rise to no laughter at all” (p. A1).
7.Caplan, A. L., McCartney, J. J., & Sisti, D. A. (2006). The case of Terri Schiavo:
Ethics at the end of life. Amherst, NY: Prometheus Books.
A number of books on the Terri Schiavo case have been published (including a book written by Terri’s husband, and another written by her family). For more on the case of Terri Schiavo, consult the book noted above which provides a timeline of the case and a discussion of the state and federal issues.
8.Daicoff, S., & Wexler, D. B. (2003). Therapeutic jurisprudence. In A. M. Goldstein
(Ed.). Handbook of psychology, Vol. 11, Forensic psychology. New York: John
Wiley & Sons, pp. 561-580.
This chapter includes a discussion of how legal practice can be conducted in a more therapeutic way.
9.Cuellar, A. E., McReynolds, L. S., & Wasserman, G. A. (2006). A cure for crime:
Can mental health treatment diversion reduce crime among youth? Journal of
Policy Analysis and Management, 25, 197-214.
These authors evaluate the effects of a mental health diversion program for youth in Texas.
10.Torrey, E. F. (1997). Out of the shadows: Confronting America’s Mental Illness.
New York: John Wiley & Sons.
Provides information on deinstitutionalization (“a psychiatric titanic”).
11.The December, 2005 issue (volume 11, number 4) of Psychology, Public Policy and Law is entirely on the topic of mental health courts (edited by Bruce J. Winick and Susan Stefan).
12.Eaton, L., & Kaufman, L. (2005, April 26). Judges turn therapist in problem-
solving court. The New York Times, A1, B7.
Describes New York state’s use of problem-solving courts (i.e., homelessness court, domestic violence courts and mental health courts).
13.Behavioral Sciences & the Law had an issue in 2005 (Volume 23, number 2) that was devoted to Diversion from the Criminal Justice System (edited by John Petrila). It includes articles on drug and mental health courts.
14.Folger, J. P., Poole, M. S., & Stutman, R. K. (2000). Working through conflict in
strategies for relationships, groups and organizations (4th ed.), Boston:
Allyn & Bacon.
Folger et al. include case studies in their book that help illustrate what mediators do.
15.Steffensmeier, D., & Hebert, C. (1999). Women and men policymakers: Does the
judge’s gender affect the sentencing of criminal defendants? Social Forces, 77,
1163-1196.
Here’s more on the topic of whether male and female judges view cases differently (the authors of this study found that female judges tended to be harsher).
16.Wrightsman, L. S. (2006). The psychology of the Supreme Court. New York:
Oxford University Press.
Wrightsman, L. S. (2008). Oral arguments before the Supreme Court: An empirical
approach. New York: Oxford University Press.
Consult Wrightsman’s books on the Supreme Court for more information on how the Supreme Court justices make their decisions.
17.Sheldon, K. M., & Krieger, L. S. (2007). Understanding the negative effects of legal
education on law students: A longitudinal test of self-determination theory.
Personality and Social Psychology Bulletin, 33, 883-897.
Considers students at two law schools over three years; they found that students at both law schools suffered, but students had greater difficulties at the school that was perceived as more controlling.
18.Feige, D. (2006). Indefensible: One lawyer’s journey into the inferno of American
justice. Boston: Little, Brown.
David Feige provides an account of a typical day in the life of a public defender in the South Bronx.
19.Lewis, A. (1989). Gideon’s trumpet. New York: Vintage.
A moving account of a landmark case. (Reissued edition available in paperback.)
20.Parker, L. (2005, August 29). 8 years in a Louisiana jail, but he never went to trial.
USA Today, 1A-2A.
As Chapter 2 notes, most people accused of a crime cannot afford to hire a lawyer. The article cited above tells the story of one of those people. In 1996, James Thomas was charged with murder. He didn’t have any money to hire an attorney, so he asked the government to provide him with one. He then spent the next 8 1/2 years waiting in jail, waiting for his case to go to trial. Recently, an appeals court ruled that prosecutors had waited too long to try him and threw the case out. This story is not all that unusual. Many poor people go to jail without talking to a lawyer. Read the article cited for stories of the public defender system and its problems.
21.Krakauer, L., Chen, C. P. (2003). Gender barriers in the legal profession: