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58 Cards in this Set
- Front
- Back
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what is common law?
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judge made law
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what is civil law?
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"specifice code"
Interlocking regulations that attempt to lay down in general principle, the rules for settling all disputes among human beings |
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what is jurispudence?
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study of law
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what is natural law?
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a putative law's validity depends not only on lawmakers' having followed correct procedures but also on the inherent justice of that law
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what is legal positivism?
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laws are legitimate if they have been enacted according to the rules
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what is judicial review?
Three meanings: |
ultra vires
policing vertical distribution of powers assessing the constitutionality of legislative or executive action |
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what is ultra vires?
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beyond power/transcending authority; judges review actions of govt officials to determine if those officials are acting under the auth of the statute or exceeding auth under the statute
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policing vertical distribution of powers
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the court determines if one level of govt oversteps its bounds
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The paradox of Judicial Review:
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allows unelected judges to declare unconstitutional and therefore invalid, actions taken by elected officials
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what do we mean by politics?
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who gets what they get, when and how
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Normative arguments
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what should be
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Empirical arguments
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what is
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Are judges political actors?
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If the law doesn't provide a ready answer, the judge has room to evaluate. His decision has political effects.
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In a common law system do judges follow precedent closely?
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Yes! Common law is erased once a statute is passed.
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In a civil law system do judges follow precedent closely?
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No. Judges are more constrained in a civil law system as well.
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what functions/roles do we expect courts to perform?
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resolve conflicts
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why did English judges begin wearing wigs and robes?
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In 1685 the bar went into mourning at the death of King Charles II
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According to Hamilton, is JR democratic?
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Yes
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writ of randamus
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ask the court to order an official to do something
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what view of the USSC is Dahl empirically evaluating?
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Judicial Review
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Normative arguments
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what should be
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Empirical arguments
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what is
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Are judges political actors?
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If the law doesn't provide a ready answer, the judge has room to evaluate. His decision has political effects.
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In a common law system do judges follow precedent closely?
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Yes! Common law is erased once a statute is passed.
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In a civil law system do judges follow precedent closely?
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No. Judges are more constrained in a civil law system as well.
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what functions/roles do we expect courts to perform?
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resolve conflicts
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why did English judges begin wearing wigs and robes?
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In 1685 the bar went into mourning at the death of King Charles II
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According to Hamilton, is JR democratic?
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Yes
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writ of randamus
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ask the court to order an official to do something
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what view of the USSC is Dahl empirically evaluating?
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Judicial Review
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how many cases has the USSC struck down a provision of federal law as unconstitutional?
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86
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How does Dahl evaluate his claim?
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looks at lawmaking majority
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what does Dahl find?
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1/2 of decisions were rendered more than 4 years after law had been passed
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what is Dahl's main conclusion?
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FDR had to wait 4 years for his first appointment
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why does this conclusion make sense?
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FDR wasn't able to appoint a justice so his avility to pass laws by a current body wasn't possible
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what is Casper's critique of Dahl's study?
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they are limited b/c they didn't look at state & local laws; he missed a lot of happenings in the 60's; he should've included the court's interpretation of statutes
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Does he reach a different conclusion than Dahl?
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Yes
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Appellate jurisdiction
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the court reviews the legal issues of lower courts
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The Scotus's Jurisdiction:
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Appeals as a matter of right
Certification Writ of Certiorari |
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Appeals as a matter of right
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Congress determines a case to be so important that the USSC has to rule on it
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Certification
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any court of appeal can file a writ of certification asking the court for advice (very rare)advice
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writ of certiorari
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"to be made certain"
most common method |
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Rule of Four
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four justices must agree to hear case
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Amicus Curiae Brief
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"friend of the court" brief
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writ of habeas corpus
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"produce the body" - requires the govt to say why someone is being detained
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Why is Ex Parte McCardle significant?
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This case shows us the way Congress can use constitutional power to control the courts appellate jurisdiction
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What determines Justiciability?
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a. Advisory Opinions
b. Collusive suits C. Standing D. Mootness E. Ripeness F. Political Question |
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Advisory Opinions
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gives general advice about a legal dispute without controversy; court doesn't issue advisory opinions
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Collusive suits
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two litigants want the same outcome
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Ripeness
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bars access to court until the threat of adverse govt action is immediate and highly probable
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Mootness
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judicial action is no longer needed or will not provide relief requested
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What is the verdict in Roe v Wade?
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the case is found not moot on the grounds that a woman often gets pregnant more than once
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What is the significance of Defunis?
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The case is found moot in terms of Defunis because he will graduate
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Standing
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the person who brought the lawsuit was personally affected by the controversy
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Political Question
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is the case nonjusticiable based on a political question?
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Significance of Baker v. Carr?
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Liberalizes the P.Q. doctrine - the court can now decide if malapportionment is const.
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What is the first recorded idea of Judicial Review?
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Dr. Bonham's Case
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What is the ruling in the case of Marbury v. Madison?
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Section 13 is invalid in this case (issuing a writ of mandamus)
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