An Overview of the U.S. Courts System

NEW YORK FOREIGN PRESS CENTER, 799 UNITED NATIONS PLAZA, 10TH FLOOR 

MODERATOR: Welcome to the New York Foreign Press Center. My name is Najlaa Abdus-Samad. I will moderate today’s briefing. A special welcome to Foreign Press Center members here in the room with us and to member journalists online in Washington, D.C. and across the United States. 

Today, we’ll hear from Dr. Noah Rosenblum, assistant professor of law at the New York University School of Law. Professor Rosenblum will provide an overview of the U.S. judicial system, including a discussion of the relationship between the state and federal judiciaries. 

Dr. Rosenblum is a legal historian with expertise in administrative law and constitutional law. He is not a U.S. government official and does not represent the official policy views of the U.S. government. 

If you are tuning in online, please make sure your digital profile states your full name and media organization and country where the organization is based. This briefing is on-the-record.  It will be transcribed, and the transcript will be posted at www.fpc.state.gov.  

After opening remarks, I will moderate the Q&A session. Welcome. Dr. Noah Rosenblum, over to you. 

MR. ROSENBLUM: Thank you for having me. I’m delighted to be here. I’ve been asked to provide a short overview of the U.S. court system to help foreign journalists. I’m going to speak for about 15-20 minutes. My notes are longer than that, which means I will probably talk very quickly. Apologies in advance. 

I have three things I’m going to try to cover. I’m going to start by talking about a key distinction in the United States court system which is the distinction between state courts and federal courts, then I’m going to describe how the two systems relate to each other, and then I’m going to close with an overview of how the two systems are organized. So hopefully, I can make good on the promises that have been made on my behalf about what I’ll cover. 

First thing – last thing I’ll say before I start, which is please don’t worry if you’re confused. This is a very difficult area of law. It draws on one of the hardest classes in law school known as Federal Courts, which is a whole-semester class that people take at the end of law school, and we’re going to try to distill it for a general audience in 15 minutes, so apologies in advance. 

Okay. Point one – starting point, there is no such thing as the single U.S. court system. There are several court systems, plural, and they intersect at various points. The critical distinction to keep in mind is that between state courts and federal courts. Federal courts are courts whose authority ultimately flows from the government in Washington, D.C. They trace their legal existence back to the United States Constitution and to laws passed by the Congress. So for example, the United States Supreme Court, which is often described in the newspapers, is a federal court. It sits in Washington, D.C. It is created by Article 3 of the United States Constitution. The Supreme Court is the court of last resort in the entire federal system. 

State courts, on the other hand, trace their authority to the government of the state of which they are a part – not the United States Constitution, but to that state’s constitution. So, for those of you who are in the room with me right now, we are in New York State, right? The highest state court in New York is not the United States Supreme Court – that’s a federal court – the highest New York State court is the New York Court of Appeals. That court sits in Albany, and it is – it traces its existence to the New York State Constitution. Weirdly, in New York, there is a court known as the Supreme Court, but the New York Supreme Court is not the highest court for New York. In fact, it’s one of the lowest courts. It’s the general trial court. It’s the court of general jurisdiction. 

Okay, so key point, right – state courts and federal courts are different. They have different rules, they have different powers, they trace their authority to different sources, they have different judges, and they are part of different systems. 

But state courts and federal courts are not completely isolated. As I said a minute ago, they intersect at various points. So, this gets us into the complicated question of how the two systems relate to each other. In fact, they have a bunch of overlap, which can make things very confusing. As a threshold matter, state courts and federal courts have overlapping jurisdictions. Nearly every square foot of U.S. territory falls in the jurisdiction of both the state court system and the federal court system. So here, in this building, we are in the jurisdiction both of the Southern District of New York, which is a federal court, and the New York County Supreme Court, which is a state court. 

Also state courts and federal courts can apply the other system’s law. The exact circumstances in which they do this are complicated, but state courts can apply federal law, and they do it all the time, and federal courts can apply state law, and they do that all the time, too. 

However, this is not true of every legal issue. There are some legal issues that are exclusively creatures of federal law and some issues that are exclusively creatures of state law, and there are some cases in which you have to be in a federal forum. So, for example, if you’re a business that declares bankruptcy, you have to go to federal bankruptcy court. There is no state bankruptcy court. There is no state bankruptcy law, only federal law. Same thing with immigration law or matters of military justice, right? If those are the legal issues you’re dealing with, you must be in a federal forum. 

On the flipside, federal courts are courts of limited jurisdiction. Basically, the way you should think about it is that in general – your default place is going to be a state court. You need a special reason to go to a federal court; you need a special hook to be in a federal court. If you don’t have the hook, your only option is to go to a state court. State courts, by contrast with federal courts, are courts of general jurisdiction. 

So as a result of this, of the fact that state courts are courts of general jurisdiction and you need a special hook to be in a federal court, the vast majority of cases are heard in state courts, not federal courts. So, there’s something like 300,000 civil cases filed last year in the federal court system in 2022, according to the Federal Judicial Center. By contrast, there were more than 700,000 cases in – civil cases filed in New York State alone, according to the Court Statistics Project. 

The state court numbers are hard to track down for a variety of reasons we can talk about in the Q&A, but just to reiterate, there were more than two times as many cases, civil cases, filed in New York State Court alone – just New York State, more than two times as many civil cases – than in the entire federal system. And that discrepancy is even greater when it comes to criminal cases, because federal criminal law is much smaller and more limited as compared to state criminal law. 

Circle back to what I said a minute ago, about the fact that you need a special hook to get into federal court, right. Your default forum is going to be a state court, unless you have a special reason to be in federal court, which means that as a legal matter you can’t be in federal court unless Congress has passed a special law authorizing you to be in federal court, but the United States Constitution limits the kinds of matters that Congress can legislate on. Moreover, federal courts have interpreted the Constitution to put additional limits on what it is that federal courts can do, regardless of what it is that Congress might say. 

So, for example, federal courts are not allowed to issue what are called advisory opinions, interpreting a law before it goes into effect. But state courts, on the other hand, might be allowed to do that. You have to go state by state to figure that out. 

As a general matter, federal courts will hear cases about matters that cross state lines or that affect the whole country, but not much more than that. State courts will hear almost everything else, so most criminal law will be state court, although some big drug cases that involve crimes that cross state lines will be in federal court. Similarly, most tort claims, like defamation, will be heard by state court, although in very unusual circumstances you might be able to bring your case into federal court. 

Okay, two last things to keep in mind on this score. First, since each court can apply the other’s law, the forum often matters less for the law than for the things like personnel and procedure that the choice of forum get you. So suppose that your defamation case is being heard in state court. Because each court gets to apply the other court’s law, just because you’re in a state court doesn’t mean federal law doesn’t apply. You don’t lose your federal constitutional rights just because your defamation case is being heard by a New York State court. Because federal law is supreme, state courts have to follow federal law, even if there’s a conflict between that state’s law and the federal law, okay. 

And the second thing to keep in mind is that you can often pull a case from one forum to another forum. In particular, if a case involves a federal issue, than even if you begin the case in state court or even if the case is heard in the state court system, you might be able to pull it into a federal court, maybe right at the beginning if the real issue is a federal legal issue, or at the very end of the hearing by an appeal to a federal court to get the federal legal issue heard. 

So that takes me to my last topic, which is how these two different court systems are organized. Each court system is different, but they all have the same general structure. So in general, the U.S. court systems have some kind of a trial court, and then you have at least one appeal as of right to an appellate court, and then maybe you get another appeal or maybe not. And in the final instance, if there’s a federal issue, you can get that case taken to the U.S. Supreme Court. 

Okay, that’s a little bit abstract. Let’s make it more concrete. So here in New York, like I said, the lowest general trial court is known weirdly as the New York Supreme Court. So, if you commit a felony to a serious crime or if you’re one big business and you’re suing another big business, that’s where your case is going to start, in New York Supreme Court. And if you’re here in the room with me, the New York Supreme Court that we would go to is the Supreme Court for New York County down at 50 Center Street, downtown. 

Now you should know that there are some other trial courts below New York Supreme Court in New York State that are special for certain small issues, like a small civil case for example, like a small claims case or something like that. But basically, your court of general jurisdiction is New York Supreme. 

All right, from New York Supreme you have one appeal as of right to the appellate division. For historic reasons, in New York State, the appellate division court is technically known as the Appellate Division of the Supreme Court, which is a little confusing, but whatever; welcome to New York. The appellate division in New York State is divided into four different geographic departments. Each department covers a different part of the state. Here in New York County, your appeal goes to the first department. And whereas at New York Supreme your case was heard by a single judge, at the appellate department – or excuse me, at the First Department of the Appellate Division, your case is going to be heard by a panel of five judges who are drawn from all the judges who sit on the First Department Appellate Division. 

After that court hears your case, you’re probably done. But you can try to appeal to the highest court in the state, the New York Court of Appeals. That court has seven judges, they sit in Albany, New York, the chief judge is Rowan Wilson. But in New York, our highest court has what’s called a discretionary docket. They don’t have to hear every case that you try to appeal to them; you have to ask them for permission, and they have to decide whether or not to hear your case. But not every state has a discretionary court of last resort. That’s just true for New York State. 

Whether the New York Court of Appeals takes your case or not, that’s the end of the line for your case unless there was a matter of federal law embedded somewhere in your case. If there was, then you can try to get your case appealed to the United States Supreme Court, but they will probably say no. The United States Supreme Court also has a discretionary docket, and they only hear something like 70 cases a year, and they’re not supposed to hear cases that have already been decided on independent and adequate state grounds. In practice, in the last few years the United States Supreme Court has taken barely any cases out of the state court system. They mostly take their cases from the federal court system. 

So, like the state court system, the federal system starts with the general trial courts. Those courts are called district courts, and as I mentioned a little while ago, the lowest district court is known as the Southern District of New York, here in New York City, where we are right now in this building. Just as with the state court system, there are some courts below the district courts that work in partnership with it, like magistrate judges and bankruptcy courts, but we can talk more about those later if you’re interested. 

Just as in the state system, in the federal system you have one appeal as of right. Those appeals go from the district courts to the United States Circuit Court of Appeals. And just as with the New York State system, the circuit courts of appeals are divided geographically across the whole country, for the most part. There are 12 geographic circuits. There is one special circuit known as the federal circuit, which doesn’t have geographic jurisdiction, it has thematic jurisdiction. So, the federal circuit takes, for example, all intellectual property cases, all patent cases. Those go on appeal to the federal circuit. 

Okay. And just as in the state system, at the appellate level your case is heard by a panel of judges. First it goes to a panel of three judges, and then if you don’t like the answer you can try to get it heard by the rest of the judges on that circuit court in a process known as en banc review. Here in New York State, in New York City, you would go from the Southern District of New York to the Second Circuit Court of Appeals, and you could then try to get en banc review from the second circuit. 

Okay. Finally, you can petition the Supreme Court to hear your case if you’re already within the federal system. Since you’re already in the federal system, that means there is definitely some kind of a federal hook, so you probably don’t have to worry about whether the Supreme Court has jurisdiction to take your case. Like I said, they will probably say no because they only hear 70 cases a year. 

Okay. There’s lots more that I could say about all this, but I think I’ve gone on as long as I said I would, so why don’t I stop there, and I’m happy to take your questions. 

MODERATOR: Thank you so much. Please, can you state your name, media organization, and country? 

QUESTION: Thank you. My name is Toshi Inaba. I work for Japanese news wire; it’s called Kyodo News. 

I have a question on double jeopardy. If – when I look at the case of Derek Chauvin, he was tried both in federal and state system, I believe. Of course, the charges are different, but the act itself is the same, I think. And maybe you can say the same thing with election interference case by – with former President Trump. How do you explain, how – what’s the reasoning of doing that? Because even – you got the sentences overlapping, you don’t – it’s not accumulated, I believe. And why – why do you have to do that, like both in federal and state system? Why do you have to try twice? 

MR. ROSENBLUM: It’s a great question, and I could give you answers of various length, because it cuts to some really complicated legal questions. The starting point is just to remember that the reason we have two systems in the United States is because we don’t think of ourselves as having a single sovereign. There are two sovereigns. And if we think about different kinds of especially criminal legal matters, what we’re dealing with in a philosophical way is an offense against the sovereign. The ultimate sovereign is the people, but when you commit a crime, you may have violated federal law, in which case you committed a crime against the United States, but you may have also violated state law, in which case you committed a crime against the state.  

And so, each of those sovereigns has an independent interest in seeing its law enforced. So, if you have committed a single act but the act offends two different sovereigns, then there are two different wrongs that trace back to the same act. 

And if you want to think about it conceptually, right – if I commit fraud, so this is – would be civil as opposed to criminal, but if I commit fraud against you in a single act, I may nevertheless have violated many of your interests and caused many different wrongs at the same time. And so you might want to vindicate those different wrongs even if they all trace back to a single transaction. 

So that’s sort of like the quick answer about why the system allows this. It gets more nuanced and complicated because there are questions about when jeopardy attaches, and there are disagreements among law professors over whether this kind of subsequent prosecution for the same act should be allowed or not. But what I’ve just given you is the kind of philosophical explanation and the underlying legal explanation for why we allow it. 

The last thing you asked about is a little bit different, though, which is about how sentencing works, and in the United States sentencing and guilt are separate from each other. So, the sentencing phase of a trial follows upon the guilt phase of a trial, and there are different considerations that attach. So, you can have concurrent sentences, but you can also stack them and have cumulative sentences, and that question is independent from the question of the double jeopardy – like the prosecution in two different court systems. So even in a single court system, a judge could decide that you need to serve your sentences concurrently or cumulatively even if that’s just a state sentence. 

MODERATOR: Thank you. Okay, any other question in the room? 

QUESTION: Yeah, I might ask – I just wanted to know about the – when things get taken up by the Supreme Court of the U.S. 

MODERATOR: May I ask that you state your name, media organization, and country? 

QUESTION: Oh, sorry. Benedict Brook, News Corporation Australia. So, there’s been some cases about election boundaries, like accusations of gerrymandering within states, and I believe that’s being heard by the U.S. Supreme Court in some cases. So given those boundaries are within states, why does the U.S. Supreme Court make decisions on that? 

MR. ROSENBLUM: It’s another great question, and you have to go case by case, but the basic issue is that there’s a federal claim that’s being raised in conjunction with it. So, depending on – even though from the outside many of the gerrymandering cases may look the same, the kind of underlying federal claim is often different. So, you might argue, for example, that the way a state has drawn its electoral boundaries violates the Voting Rights Act. The Voting Rights Act is a federal law; states have to follow federal law, so now you have a federal claim. You might argue that even if it doesn’t violate the Voting Rights Act, it’s racially discriminatory in a way that violates the Equal Protection Clause. The Equal Protection Clause is part of the federal Constitution. States have to follow it; now you have a federal claim. So those are two examples of the way in which a state district-drawing exercise might wind up in federal court. 

There was a case from last term that presented a novel theory, the independent state legislature doctrine. Law professors and the Supreme Court all agreed that this was not a viable legal claim and threw it out, but the argument there was that the Constitution gave special responsibilities to state legislatures to draw – to draw voting boundaries within the states, and that the way that the states had drawn their boundaries violated that part of the Constitution. But the underlying legal argument is the same as the Equal Protection Clause – there is a federal constitutional provision at issue, the state in drawing its electoral boundaries had violated it, so you have a federal claim, so you can wind up in a federal forum. 

MODERATOR: Please. Full name. 

QUESTION: Sally Patterson from the United Kingdom and working for FSN News Agency. And I’m sorry, I’ve got a horrible cold, so I sound awful. Thank you, this is really helpful.  

A question on judges briefly: Are judges – you said that they were part of the two separate systems. Do they go through a completely different sort of like training and system to get there? Is there any crossover? And I know one of the unique qualities in the U.S. is many judges are elected rather than appointed, and that has led historically to sort of criticisms over how impartial they can be and biases within court cases. I just wondered if that’s a similar issue across both systems. Yes, thank you. \

MR. ROSENBLUM: So, as I see it, you asked three different questions. Let me see if I can just remember them all and unpack them. There was a question about the training and selection for state judges versus federal judges, there was a question about overlap between the judges, and then there was a question about the election of judges and the effects on the system of that. 

So let me start with the training and selection – completely different. The selection of judges in the federal system and state system is radically different, and the question of training is also really different. It’s hard to speak about the state system as a whole because there is no state system, right, there are 51 – at least – different state judge systems, the 50 states plus the District of Columbia. Territorial judges are a whole separate issue; military judges are a whole separate issue. Territorial and military judges are technically federal, but okay. And D.C. judges are complicated because the District of Columbia is a federal territory, but it’s organized sort of like a state system. 

Each of the state judicial systems has a different way of going about selecting its judges. As you alluded to, the vast majority of state court judges are elected. So, we can say that as a general matter state judges are often elected, but how the elections work are really different state by state. In some states the judges run for election across the whole state. I can’t remember if any states have partisan judicial elections where you run as a Democrat or Republican, but in a lot of cases even if its nonpartisan people know that you are sort of connected to a party. 

In New York state, even though you get to vote for your state judges, the judges are selected by the parties before the election, and that party selection happens through judicial delegates who you vote for at a different election, and then the delegates come together to select the judges. So you don’t get to vote for somebody who has campaigned across the state the same way that you vote for governor, so even there the election is actually – looks a little bit different. And in New York State, not all of the judges are elected. The supreme court judges are elected. The appellate division judges are selected by the governor from the elected judges at supreme court, and the judges on the highest court, the New York Court of Appeals, are selected by the governor from a short list produced by an independent nominating commission whose members are made up of gubernatorial and state legislature appointees. Right, so it can get really complicated really quickly. 

The federal selection procedure though, that’s very different and we all know about that because it’s in the Constitution. The President nominates an individual who then must be confirmed by the Senate, and that’s true for judges to the district courts, to the circuit courts of appeals, and to the United States Supreme Court. There are lots of other considerations that go into that. So for example, there are all kinds of informal procedures that allow states – that allow senators to block the nomination of judges to the district court, more complicated for the appeals court, not allowed at the Supreme Court level. The Senate has changed its rules around the filibuster to make it impossible to filibuster Supreme Court nominees, but I think you can still filibuster district judges, although actually I can’t remember that. Somebody who’s a real law professor should double-check that one. 

But none of that is in the Constitution, right? Those are all just norms about how the Senate rules operate. Same thing with the blue slip process. So that’s like a whole separate thing to talk about. But as a general – oh, and then the last thing is that federal judges have life tenure. So once they’re on the bench, they are in that position as long as they’re not impeached until they decide to resign or until they die. Their salary cannot be diminished while they’re in office, and no mandatory retirement. Whereas state systems each do their own thing. Many state judges have term limits. So if you’re on the New York Court of Appeals, you’re there for a 14-year term, not for the rest of your life. If you’re on New York Supreme Court, I think it’s a 10-year term. Meanwhile, many states have mandatory retirement. So in New York, when you hit 70 years old, regardless of how many years you have left in your term, you have to retire, although you can ask for a special dispensation. 

So very different, very different in the kinds of personnel that end up operating those systems, right? If you’re – if you’ve got life tenure and if you want to entrench your ideology in the judiciary, you nominate really young judges with the expectation that they will be there for many decades. And indeed, it’s routine in the federal system to see people serve for 20 years, 30 years. Whereas in the state system, if you’ve got mandatory retirement at 70 and you serve a 10- or 14-year term, yeah, sure you can nominate somebody who’s 60 years old. You don’t get any – if you’re trying to entrench your political party in charge, there’s no benefit to nominating a 30-year-old. They’ll still do the same 10-year term. So big differences there. 

There’s a sociological difference too, but I’ve already gone on too long on that question, so I want to say something brief about the other two points. So is there overlap? Some, but not as much as you might think. And that’s a bit about the sociological point. In general, state judiciaries are perceived to be less prestigious than the federal judiciary. So in general, national legal elites in the United States tend to be nominated to federal positions, and in general, you see fewer national legal elites within the state system. That’s not universally true. So the chief judge of the New York Court of Appeals Rowan Wilson is by any description a national legal elite. He graduated I think from Harvard Law School, he was a partner at Cravath, which is one of the most storied firms in American legal history, and he clerked for federal judges, which makes him look very much like the kinds of judges that you would see in the federal system. Similarly, the judge that I was a law clerk for, Judge Rivera, was a law clerk to Sonia Sotomayor, who is now a Justice on the United States Supreme Court. So very much like the federal system. 

But historically – and again, in people’s perception, I think this is bad. I’m not endorsing this. I’m just describing it. And I’ll just reiterate that I’m not an employee and I certainly don’t represent the position of the United States on this one. You’re just getting Professor Noah Rosenblum’s hot takes. But I think the – and like I said before, I think this is terrible. I think our state judiciaries are critical and they don’t get the respect that they deserve. But there’s a perception that they are less prestigious than the federal judiciary. 

So there are lots of cases of state judges who are then nominated by the President to the federal judiciary and leave the state court system to become federal judges. Judge Ed* Wesley was a judge on the New York Court of Appeals, the highest state court judge, and he was picked I think by President George H.W. Bush, although maybe it was W. Bush, to become a judge on the Second Circuit. I think President Donald Trump similarly nominated a judge from the Texas Supreme Court to become a Fifth Circuit federal judge. So that happens. 

The reverse happens less frequently – that a federal judge leaves the federal bench to become a state court judge, although there are some interesting examples. So Judge Caitlin Halligan, who is now a judge on the New York Court of Appeals, had been nominated to be a D.C. Circuit judge, was not confirmed, and then became a judge on the New York Court of Appeals. Similarly, I think in California, Judge Goodwin Liu had been nominated to a federal judgeship, was not confirmed, and then became a judge on the California Supreme Court. 

Last thing I just want to say is on the election of judges because I have strong feelings about this. We have an incredibly powerful and partisan judiciary in the United States at the federal level even though our judges are not elected. So you said to me, Noah, hey, doesn’t the election of judges contribute to creating a partisan judiciary? And I push back and say, actually, when you have nomination by president and confirmation by senate, you can have an incredibly partisan judiciary. So it’s not obvious that election is the reason why the United States judiciary is so different from judiciaries in other countries. 

I think a better explanation is in most other countries the way you become a judge – and I’m speaking to foreign journalists so you guys know this better than me – is through a separate professionalized training process. So I think in Germany, for example, the way that you become a lawyer is different from the way you become a judge. But in the United States we have a single, unified bar. So the way you become a judge is the same way you become a regular lawyer. And then in order to become a judge having been a lawyer, you have to participate in this partisan political process, right – nomination by president, confirmation by senate. And there’s a whole informal process that has been around since the 19th century in which state – in which senators, who are often connected to their political parties within their home states, vet and select the nominees for those offices. So whether you have election or nomination, if the selection of judges happens through a political process, and if you give a lot of political power to judges, you’ll have a really partisan judiciary. 

Last point on this and then I’ll stop. In the 19th century, the judiciary was if anything even more partisan than it is today. So federal judges routinely weren’t just members of political parties; they actually ran presidential campaigns. So Judge David Davis, who became a Supreme Court justice, he got there because he was Lincoln’s campaign manager when President Lincoln was running for office, right? Where else in the world do you become a Supreme Court justice having been a campaign manager? Similarly, there was a prominent 19th century district judge who had been Stephen Douglas, the Democratic candidate’s right-hand guy, and he did that while he was also a federal judge. And there was nothing wrong about that. People were very open about how once they become judges, they would remain in partisan political activity. 

So I think you’re – the question is a great question because it cuts to something really unusual about the American judiciary in comparative context, but I don’t think that the right answer for it is it’s about elections. Okay. I’m sorry about that. That was a very long answer, but these are things I love talking about. 

QUESTION: You could say the same thing about district attorneys too?  

MR. ROSENBLUM: District attorneys are separate because they are elected, right? And they are elected as part, in most states, of a political process.  But again, you have to go state by state.  So district attorneys are often elected, but in some states the attorney general is elected, and in other states the attorney general is appointed. 

In the federal system, the U.S. attorneys are appointed, and there’s much – there’s a much longer tradition there of nonpartisanship. So the federal Department of Justice, probably since the very beginning but certainly since the late 19th century, has been very professionalized along administrative lines in a way that’s very different from many of the state systems. In general – there are exceptions obviously – but it is not uncommon in the United States for people to run for district attorney as part of their political rise to then want to become governor, right, or do some other partisan political position. That’s much less frequent in the Department of Justice and especially for the lawyers right below the United States attorney, the career civil servants in the DOJ.  Thanks for letting me monologue. 

MODERATOR: So I appreciate you being here. I can’t say enough. If we can include some of our virtual participants. Ralph Gore, thank you for your patience. Please take yourself off mute, turn on your camera, if you’d like, state your full name, your media organization, and country where it’s based. 

QUESTION: Yes, thank you so much. Good afternoon, professor. Actually, good morning. Ralph Gore from Free Eurasia Media. My question is about cases about genocide. Is it possible to adjudicate cases of genocide in U.S. courts according to section 1091 of Title 18 U.S. – United States Code, even if the genocide occurred outside the United States, given the profusions of federal extraterritorial jurisdictions as a nationality of offender outlined in the statute? If yes, can cases involving allegations of genocide in Israel and/or Palestine be brought before U.S. courts? What are limitations in terms of jurisdictional limits, statute of limitations, procedural rules, and sovereign immunity or enforceability? Thank you so much. 

MR. ROSENBLUM: Man, I’m sorry to disappoint, but that question is regrettably above my pay grade for some of the reasons that you just identified, which is that extraterritorial reach of U.S. law is a complicated, specialized legal matter that, unfortunately, I don’t have expertise in. But if you would like me to refer you to somebody who could answer that question, just send me an email. I think I’m – my email is publicly available, and I’m happy to refer you to some law professors who specialize in international law and extraterritorial application of U.S. law. But unfortunately it’s beyond my expertise. 

QUESTION: Including genocide, am I correct? Including genocide, right? 

MR. ROSENBLUM: Yeah. So again, this is – unfortunately, this isn’t the area of law that I study. But genocide is complicated because it’s a – I think it’s – I mean, there’s the international convention and then there’s U.S. law. But like I said, I just – unfortunately, this is not the area of law that I study, so I can’t give you useful guidance. But if you send me an email, I’m happy to connect you with some professors who do work on that area of law. 

QUESTION: Thank you. 

MODERATOR: Thank you, Professor. Ralph Gore, we’re happy to follow up with you offline after this briefing to support your research. 

If we can move over to Joe Miller. Please take yourself off mute, state your full name, media organization, and country where you’re based. 

QUESTION: Hi, yes. Good morning. Joe Miller from The Financial Times, which is based in London. I just wanted to know if I can I get some clarity on something that’s vexed me for a while – on how much discretion judges have to seal either filings or even court proceedings in various cases. And does this differ at state and federal and appellate level, et cetera? And do especially judges have any – are they mandated to explain themselves on why they’ve sealed something if challenged by, say, a member of the public or a member of the press? 

MR. ROSENBLUM: That’s another great question. So I’ll give you a quick answer, but again, it’s sort of beyond my area of competency. So I’ll just – Joe, I’ll invite you to email me too, and I’m happy to connect you with people who are real First Amendment specialists. I can say that – oh, sorry, and it wouldn’t just be First Amendment. First Amendment is one of the things that’s implicated. 

State law and federal law – and this is going to be different – my understanding – and again, caveat, this is not my area of specialization, so I’m going to try to give you some guidance, but email me and I’ll connect you with somebody who’s more expert on this. My understanding is that the background assumption in the United States is that courts are open and court proceedings are open, and so – and that’s an important consideration of justice. Felix Frankfurter I think cribbing something from a British law lord, whose name I probably should know, but this is my provincialism, has in a 1952 opinion, I think, a line that I quote all the time that “justice requires the appearance of justice.” And that has consequences for the openness of court proceedings. So court proceedings are presumed to be open, and then there are statutes, both federal and state, that require the openness of official records and court proceedings. So the default presumption is open, and so you need a reason to close. 

And the closing is going to be a combo of statutory reasons – so these open records acts will have conditions under which a judge can seal the record or close the courtroom. There will also be other laws, especially those about protecting privacy, that will enable a judge to seal a record or close a courtroom. And then judges do have inherent powers over running their court. Those powers are the least well-defined and it’s the greatest place where discretion would come in. And I assume that under those inherent powers a judge would have some discretion over closing a courtroom, kicking people out of a courtroom, or sealing a record. 

But that takes me to your second question, which is would a judge have to explain himself? And because the background presumption is going to be open, then I think that when you bring a challenge you can force a judge to explain themselves, although the amount of explanation that they’re going to give is going to be different, I think, based on the kind of challenge you’re bringing. 

The last thing I can say is I assume that, as with everything else, the state and federal rules here are going to be different because they’re two different systems, bound by two different laws, and those laws are going to be most different where it has to do with procedure. So this being a sort of semi-procedural matter is probably going to implicate differences in state and federal law. 

But that’s my – that framework is about the extent of my – even my – oh dear, my generous BS knowledge, so trying to speculate based on what I know and understand and the way these systems work. So, it wouldn’t surprise me if some of what I’ve told you turns out to be wrong, although I don’t think it would be too wrong. But if you send me an email, I’ll follow up by connecting you with someone who knows more about these questions. 

QUESTION: All right. Thanks very much. 

MODERATOR: Thank you, Professor. Are there any more questions either here in the physical room or online in the virtual room? No. Okay. So thank you, Professor Noah Rosenblum, for spending your morning with us. We are truly grateful for this opportunity to have this conversation. If you have any final remarks, you are most welcome. And if not, I’ll close out. 

MR. ROSENBLUM: Just two thoughts I’ll say. First, thank you so much for trying to cover the United States court system. It’s archaic, it’s strange, so the fact that you’re putting in the time to learn more about it really gratifies me. And second, if you have other questions now or in the future don’t hesitate to email me if you – if I can be useful. I probably won’t know the answer, but law professors in the United States, as a general matter, we understand that one of our responsibilities is trying to explain the law to broader audiences, and so I have a bunch of colleagues at NYU and throughout the American legal academy who genuinely understand part of their job is speaking to the press, and foreign press in particular. So never hesitate to reach out to American law professors, and if I can be useful in connecting you with law professors on technical matters, I’m happy to do so. 

MODERATOR: Thank you, Professor Noah Rosenblum. Thank you to all of our members online and here in the room. This concludes the briefing at the New York Foreign Press Center. Thank you all. 

*Richard C. Wesley