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Unformatted text preview: While rulings are viewed as important political events in their own right, we focus on them here in order to organize a discussion of the following two questions. In the Unite dStates, do courts exercise abstract constitutional review of statutes and other rules? The answer: an emphatic “yes”. Given the case of controlversy rule, a rule established by the US constitution, how concreteis American abstract review ? The answer is not much. Abstract Review of Statutes In the jargon of European Constitutional Law,” abstract review of legislation refers to the control of the constitutionality of statutes, by a court or other jurisdiction, prior to their application or enforcement by public authorities. In American parlance, abstract review is review in the absence of a concrete case or controlversy, the pure form of which is pre enforcement review. In the US, abstract review occurs most often in one of the following two situations. 1. Under certain circumstances, plaintiffs may seek declaratory or injunctive reflief by a judge which, if granted, suspends the application of the law in question pending a judicial determination of its constitutionality. Plaintiffs commonly file such request immediately after the statute has been signed into law by the appropriate authority. 2. Second, under judicial doctrines developed by the U.S Supreme Court pursuant to litigation of First Amendment freedoms, plaintiffs may attack a law on its face, called a ficial challenge, and pled the rights of third parties. Although there is often over lap between these two situations- a plaintiff mounting a facial challenge to a law will typically ask for preliminary relief- each deserve to by analyze on its own. Preliminary Injunctions and Declaratory Judgments: In the past 50 years or so, these techniques have penetrated into the constitutional law, becoming instruments of rights adjudication. Preliminary injunctions are court orders taken to preserve the status quo ante litem pending a judicial resolution of the dispute on the merits. Declaratory judgments are used to judges to clarify the rights of one of the parties to a dispute, prior to that dispute’s resolution. The criteria that govern the granting of preliminary injuctions also apply to the rendering of declaratory judgements. Judges will give relief where a plaintiff’s constitutional rights are at issue, where the plaintiff is likely to prevail on the merits, and where the plaintiff may suffer irreparable injury if relief is not granted. Facial Overbreadth and Vagueness: The US Supreme Court has since, Thornhill, consistently held that a statute that extends government authority to activities protected by the First Amendment is presumptively overbroad, and therefore unconstitutional on its face, regardless of whether, or how, the statute has been applied in concrete situations....
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This note was uploaded on 05/29/2008 for the course LEGALST 179 taught by Professor Shapiro during the Spring '08 term at Berkeley.
- Spring '08