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Inherent in the approach proposed in this book is the basic insight that facts are dynamic over time, in that they themselves might change with advancing technology or an evolving society, or that our knowledge of them might change as more research is completed. Yet the standard model of constitutional fact-finding is limited. It describes fact-finding statically. Lower courts find them at time-one, and higher courts ratify or correct them at time-two. But what happens at time-three? Specifically, what happens in constitutional jurisprudence when the facts that support constitutional precedent change? This chapter considers the question whether lower courts can revisit precedent so as to adjust earlier rulings to account for a changed factual landscape. The answer to this question is sometimes yes, sometimes no, and is contingent on the type of fact involved.

This chapter examines how the lower courts confront central legal questions that routinely arise in price-fixing and other horizontal-restraints cases in which the existence of an agreement is in dispute. In light of the discussion in the previous chapters, it is not surprising that the practice in lower courts is difficult to characterize—although some commentators nevertheless depict a substantially harmonious state of affairs. The problem begins with the frequent need to make inferences from circumstantial evidence, which all acknowledge to be necessary. As a consequence of the problem of defining agreement, it is difficult to know what one is trying to infer or how inferences can be made even when evidence of agreement appears to be fairly direct. Various seemingly clear rules, such as the demand for so-called plus factors, are unclear upon examination and cast serious doubt on the conventional view of the law.

This chapter begins with a discussion of the court system in the late Roman Empire. It then discusses lower-level judicial hearings and their interaction with the higher courts, training for magistrates, and the iudex as a ‘creative’ interpreter of law.

This chapter briefly recounts the origins of the policing experiment of the early 1990s that flew under the Broken Windows banner. It also explores how that experiment has become an institutionalized feature of New York City's law enforcement since then. The history is tailored to highlight those changes in enforcement that most affected the flow and composition of cases into the lower criminal courts. It also portrays how the justifications for this policing model demanded bureaucratic practices that in turn shaped how these low-level cases came to be processed by criminal justice actors. Specifically, the chapter emphasizes the new record-keeping and record-sharing practices that the police and courts innovated in this period in an effort to mark suspected persons for later encounters and to check up on prior records to identify and target persistent or serious offenders.

This chapter is dedicated to procedural hassle—the degradation of arrest and police custody, the stress and frequency of court appearances, and the opportunity costs incurred in order to make court appearances or to comply with court orders. The technique of procedural hassle is distinct from marking. In this case, it is not about tracing a potentially risky defendant in the outside world but rather about delaying, engaging, and compelling the defendant to conform to the institutional and organizational demands of the court and court actors. The chapter shows that these experiences are something more than a set of inconvenient burdens that dissuade defendants from pushing adjudication or even a collection of informal means by which judges and prosecutors punish defendants. They can be also a set of active, productive tools in the ongoing relationship of social control that lower courts have with defendant populations.

This chapter addresses Jews and the courts more generally between the early years of the twentieth century and the Second World War. Jews were keen litigants in the lower-level civil courts, particularly in the Whitechapel and Shoreditch county courts presided over from 1911 by Judge Albert Rowland Cluer. Although an able judge, Cluer possessed many foibles and prejudices, and the chapter assesses whether Jewish litigants had their cases fairly tried and whether they were adequately represented by the Jewish barristers who regularly appeared there. It also considers the small minority of Jewish businessmen who were charged at the Old Bailey and quarter sessions with credit fraud, fraudulent claims against insurance companies, and illegal share-pushing schemes. The number of Jewish bankruptcies was also high, for Jewish businessmen tended to be risk-takers and entrepreneurs, always seeking new opportunities in the market—and sometimes, in the process, exposing themselves to prosecution. After the Second World War, many moved into the urban property market or took over sluggish public companies with hidden assets.

This chapter describes the history, functions, and notable rulings issued by the Supreme Court of Israel. The Supreme Court, in addition to being the highest appellate court for civil and criminal cases, also serves as the court of original jurisdiction in matters regarding the legality of the actions of the state or other bodies and persons performing public functions. In this capacity, the Supreme Court expanded the protection of human rights in broad areas including freedom of speech and freedom of occupation. Notably, despite their ongoing friction with the Supreme Court and lower courts, the government and the Knesset displayed good judgment when it came to critical issues such as judicial independence, authority, and appointments. For its part, the classic Supreme Court respected the Knesset’s sovereignty and did not hand down rulings that were likely to incur the ire of the other branches of government. The legislative and executive branches almost always respected and acted in accordance with the high court’s decisions. Following the six day war, legal issues relating to the settlements in the areas conquered during the war came to be decided by the Supreme Court.