Respecting State Courts: The Inevitability of Judicial Federalism

By Michael E. Solimine; James L. Walker | Go to book overview

4
Judicial Federalism, Civil Law, and the New Forum Shopping

The popular consciousness is overwhelmed with an image of the law in the criminal mode. Police shows on television, action movies about terrorism, courtroom novels by former lawyers, televised actual criminal trials, and day-to- day newspaper and television news shows are generally subsumed with justice as punishment or retribution.1 In a similar manner, as described in chapter 2, the dialogue about rights in the United States is overly concentrated on the rights of the criminal defendant. This is certainly understandable as the consequences of criminal trials can range from significant loss of liberty to ritual death by execution. The stakes are usually higher and thus the dramatic potential is greater.

A more balanced view of the life of the law in the United States would be far different. Self-governancerequires not only a regime of legal rules but a pervasive respect for these rules that govern social relations. Remedies for evils in a society are just as likely, and in many cases more likely, to flow from civil actions than

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1
Legal images in popular culture (books, movies, television shows) are, and probably always have been, dominated by criminal trials and lawyers and judges involved in such cases. Harry P. Stumpf, American Judicial Politics 300 ( 2d ed. 1998); Marc Galanter, "The Faces of Mistrust: The Image of Lawyers in Public Opinion, Jokes, and Political Discourse", 66 U. Cin. L. Rev. 805, 810-816 ( 1998) (observing that "the criminal justice system has been the central focus of much of the recent research on the public. [P]eople are dissatisfied with both the criminal and civil justice systems. Moreover, these two aspects of the legal system are not especially distinct in the public's eyes.") To be sure, a few high profile (and low profile, see "The People's Court" television show) civil cases dominate public discourse, e.g., the wrongful death case against O.J. Simpson, the sexual harassment suit against President Clinton. See also Jonathan Harr, A Civil Action ( 1995). But even in those civil cases, criminal issues are sometimes a large part of the story, e.g., Simpson's murder trial, or claims of perjury against Clinton.

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