Chapter 3In the third chapter of his book, Mr. Friedman discusses the jurisdiction and policy making boundaries of the American Court system, placing his main emphasis in the Federal Court system.There are two principal issues explained in the text; the first one is a dissertation about jurisdiction and the second one, about a concept hard to translate to Spanish which is defined by the author as “justiciability”.Jurisdiction can be defined as the boundaries in relation to the types of cases which a certain Court is or isn’tallowed to hear. These limits are established either by Congress, in the case of Federal Courts, or by State legislatures in the case of local Courts.The Chapter starts by explaining the roles of the three levels of the federal court system, reminding us of the existence of District Courts, appellate tribunals and the USA Supreme Court. Much of this is a repetition of concepts already discussed in the first chapter of the book.District Judges hear different types of cases which can be grouped into different classifications depending of the criteria applied. The classification used by Mr. Friedman, would divide them into criminal and civil cases. In a few moments, I will explain a second classification I came up with in order to facilitate the comparison between the American and the Mexican legal systems.Within the classification contained in the book, District judges hear those civil cases in which the controversyrelates to the interpretation of the Constitution or of federal laws, as well as cases between citizens living in different States or between an American citizen and a foreign country or citizen. Among civil federal cases, we should also consider those in which an agency or branch of the federal government is one of the warring parties, either as a plaintiff or as a defendant. Criminal Federal cases are those in which the US attorneys obtain an indictment from a federal grand jury, and then prosecute someone for a conduct that might constitute a violation to the U.S. Penal code (we used the word “might”, since the objective of the trial will be, precisely, to determine if that possible violation indeed happened or not). Within the classification I am proposing, we may group civil cases into two categories. The first category would be composed of those trials which might be considered the equivalent to our Mexican “ordinary” federal procedures. "Ordinary" procedures are those in which the conflict is in relation to how facts relate to federal laws or in regards on how a federal law should be interpreted or applied to an specific case; however, a relevant requirement for a procedure of this nature is that the parties in conflict are warring with each other on a same level, such as it happens when the trial is between two private citizens, between two authorities or even between an state office or agency and a private citizen, but with the first one not acting as an authority, such as would happen in a controversy related to a contract governed by civil or commercial law.On the other hand, it is apparent from what we read, that American District Judges also hear cases in which an office or agency, or even a branch of the federal government, is sued by a citizen who argues that certain actions from those authorities violate the US Constitution. These kinds of actions are equivalent to our “amparo indirecto” trials. It was very interesting for me, to learn that in the USA, the same might happen if a citizen files a lawsuitbefore a State Superior Court against a local authority, arguing the breach of a State Constitution article. I am not aware of the existence of state amparo trials although they might exist and, of course, even if they don’t , this would not mean that a Mexican citizen is defenseless before an act that might breach a state constitution, it would simply mean that he or she should use a different defense (perhaps, a federal amparo trial).American appellate courts, just as their name indicates, do not have original jurisdiction and they review cases that were firstly heard by district judges or, in some cases, by administrative agencies. The role of these Courts would be filled in Mexico by the Unitary Circuit Tribunals and by the Collegiate Circuit Tribunals. The firsts, would hear appeals in ordinary trials, while the latter, on amparo procedures. American appellate courts do not rule on factual questions, they only do it in relation to legal questions. This is a difference with the Mexican system which will be discussed in the second delivery of this assignment.Another difference between the two systems is that US prosecutors might no appeal those rulings in which a defendant on a criminal case is declared not guilty, while in Mexico this is possible and frequent, although, aMexican prosecutor is limited from promoting an amparo trial against the ruling of the appellate court, while the defendant has this option available.The jurisdiction of the US Supreme Court was already discussed in the first chapter of the book: The supreme court has an original jurisdiction to hear cases between the states and between the states and the federal government and it also has a role as an appellation Court capable of reviewing the constitutionality of issues already argued before federal or state Courts.The concept of jurisdiction is relevant to the policy making role of the American Courts. By “policy making role” we are referring to the fact that certain decisions from the tribunals, shape the policy and fundamental orientations of the society, such as when the rulings are related to civil rights, and other socially important themes. Jurisdiction is relevant, because at different stages of history, Courts might not been able to pronounce themselves in regards to a certain issues, since Congress had not included these issues among those which they might adjudicate. According to the article, Congress has used the expansion or limitation of the jurisdiction as a tool to force courts to take action in the shaping of political issues.The second part of the article deals with the concept of justiciability. “Justiciability” is not the same as the jurisdiction. Justiciability may be defined as a set of certain characteristics that a case should present, in order be in aptitude to be the subject of a judicial procedure. According to the author, “there are 10 principles, derived from legal tradition and constitutional and statutory law that govern a judge’s decision about whether to review (or not) a case”.We will talk about some of those ten principles in the second delivery of this report.--------------Chapter 3 (Second part) On the final part of our last report, we discussed the notion of “justiciability” and explained that this concept can be understood as the set of characteristics that a case should have, in order be in aptitude to be the subject of a judicial procedure; in words of the author, justiciability relates to “the question of whether judges in the system ought to hear or refrain from hearing certain types of disputes.” Mr. Friedman identifies 10 principles that a judge, magistrate or justice should take into consideration to decide to hear or reject a case brought before him. We will briefly explain those principles and, we will comment only on those which we found to be the more interesting: 1) A Definite Controversy Must Exist: Tribunals are not consultant bodies, their reason to exist is solving disputes. In order to hear a case, there must be an actual controversy between legitimate adversaries and their dispute must concern the protection of a meaningful, nontrivial right “or the prevention or redress of a wrong that directly affects the parties to the suit.” One of the consequences of this principle, is that the parties to the suit must have “proper standing”. According to Mr. Friedman, this notion deals with the matter of who may bring litigation to court. While a literal translation of this expression to Spanish would not relay anything meaningful, in my opinion, there are two concepts in the civil law tradition with which “proper standing” can be related. One is the idea of “legitimación” and the other one in the existence of a real and identifiable injury suffered by the plaintiff. In the Mexican forum, the phrase frequently used to express this, is “agravio personal y directo”. An additional consequence to the first principle “is that courts ordinarily will not hear a case that has become moot”. According to the dictionary, the word “moot” has two different meanings; one of them is “debatable”, and the second one: something of no practical consequence and purely of academic interest. I believe that the second connotation is the one that applies to the text we are studying since Mr. Friedman explains that “The death of a litigant or the fact that the litigants have ceased to be warring parties would render a case moot in most tribunals. However, sometimes judges may decide that it is necessary to hear a case, even though the status of the facts and parties would seem to have radically altered. Examples include cases where someone has challenged a state’s refusal to permit an abortion or to permit the life-support system of a terminally ill person to be switched off. (In such cases, by the time the suit reaches an appellate court, the woman may already have given birth or the moribund person may have died.) In these cases judges have believed that the issues were so important that they needed to be addressed by the court. To declare such cases moot would, practically speaking, prevent them from ever being heard in time by an appellate body”. In Mexico, Federal Courts follow an analogous criteria to reject cases For example, if a District Judge is studying a claim regarding the alleged illegality of an arrest warrant, he or she would cancel the trial if prior to his or her ruling the plaintiff is indicted by a criminal court, and this cancelation of the procedure (the technical word in Spanish is sobreseimiento), would take effect even if the arrest warrant contained evident flaws. Hence, the most important difference between the two systems lays in the fact that American courts exercise a discretionary power to temper the discussed principle. 2.A plea must be specific: judges will hear no case on the merits unless the petitioner is first able to cite a specific part of the Constitution as the basis of the plea. 3. Beneficiaries may not sue: A petitioner who has been the beneficiary of a law or an official action, may not subsequently challenge that law. 4.Appellate Courts rule on legal —not factual — questions: In words of Mr. Friedman, “courts will generally not hear cases if the grounds for appeal are that the trial judge or jury wrongly amassed and identified the basic factual elements of the case. It is not that trial judges and juries always do a perfect job of making factual determinations. Rather, there is the belief that they are closer to the actual parties and physical evidence of the case, and, therefore, they will do a much better job of making factual assessments than would an appellate body reading a transcript of the case some months or years after the trial”. This is another aspect in which the American and the Mexican legal systems diverge. Mexican procedures are not predominantly oral, and judges are used to issue their rulings based on the lecture of transcripts (this is a byproduct of years of doing things in a certain way, in fact, the written laws are quite similar in both countries an Mexican judges, theoretically, should have direct contact with the evidence produced at court). With some exceptions (such as in “amparo directo” trials and in the appeals that follow the rules of the new Mexican Criminal system, which will only review legality issues), Mexican appellate courts do rule on factual questions. 5. The Supreme Court is not bound by precedents. The same principle applies in Mexico. Most of the binding precedents come from Tribunales Colegiados de Circuito. These tribunals are not bound by precedents issued by lower or same hierarchy Courts. They are not even bound by their own previous decisions. The same applies to the Mexican Supreme Court. 6. Other remedies must be exhausted: Courts in the United States will not accept a case until all other remedies, legal and administrative, have been exhausted. In Mexico, Federal Courts follow the same principle which in Spanish is called “principio de definitividad”: 7. Courts Do Not Decide “Political Questions”: There are certain conflicts or issues that are considered by Courts to be “nonjusticiable”, because they are product of the constitutional jurisdiction excercised by a different branch of government, and the invasions to those jurisdictions should be avoided and the separation between the three powers of government should be preserved. 8. The burden of proof is on the petitioner: “An individual who would challenge the constitutionality of a statute bears the burden of proof. Thus, if someone were to attack a particular statute, he or she would have to persuade the court” that the evidence against the law was overwhelming. In the USA the only exception to this principle is in relation to civil rights controversies. In Mexico, there is a principle called “suplencia de la queja”, according to which, Courts should “help” the petitioner if they find elements on his or her favor even if they were not argued in the lawsuit, as long as the plaintiff is a worker on a labor law trial, a peasant on an agrarian law procedure, or the accused party on a criminal trial. 9. Laws are overturned on the narrowest grounds only: if a judge must overturn a law, he or she should do it, if possible, only partially and if there are several possible reasons for overturning that law, the ruling should be construed in the least harmful way to such statute. Mexican Courts act in the same way. 10. No rulings are made on the “wisdom” of legislation: the only basis for declaring a law or an official action unconstitutional is that it literally violates the Constitution. The opinion of the judge in regard to the intrinsic fairness or unfairness of such act or law, is irrelevant.