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Chapter2Edition14.docx - Chapter 2 Courts and Alternative...

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Chapter 2 Courts and Alternative Dispute Resolution I NTRODUCTION Among important points to remind students of during the discussion of this chapter are that most cases in the textbook are appellate cases (except for federal district court decisions, few trial court opinions are even published), and that most disputes brought to court are settled before trial. Of those that go through trial to a final verdict, less than 4 percent are reversed on appeal. Also, it might be emphasized again that in a common law system, such as the United States’, cases are the law. Most of the principles set out in the text of the chapters represent judgments in decided cases that involved real people in real controversies. C HAPTER O UTLINE I. The Judiciary’s Role in American Government The essential role of the judiciary is to interpret and apply the law to specific situations. A. J UDICIAL R EVIEW The judiciary can decide, among other things, whether the laws or actions of the other two branches are constitutional. The process for making such a determination is known as judicial review. B. T HE O RIGINS OF J UDICIAL R EVIEW IN THE U NITED S TATES Judicial review was a new concept at the time of the adoption of the Constitution, but it is not mentioned in the document. Its application by the United State Supreme Court came soon after the United States began, notably in the case of Marbury v. Madison. E NHANCING Y OUR L EARNING  M ARBURY V . M ADISON (1803)  In the edifice of American law, the Marbury v. Madison a decision in 1803 can be viewed as the keystone of the constitutional arch. The facts of the case were as follows. John Adams, who had lost his bid for reelection to the presidency to Thomas Jefferson in 1800, feared the Jeffersonians’ antipathy toward business and toward a strong central government. Adams thus worked feverishly to “pack” the judiciary with loyal Federalists (those who believed in a strong national government) by appointing what came to be called “midnight judges” just before Jefferson took office. All of the fifty-nine judicial appointment letters had to be certified and delivered, but Adams’s secretary of state (John Marshall) had succeeded in delivering only forty- two of them by the time Jefferson took over as president. Jefferson, of course, refused to order his secretary of state, James Madison, to deliver the remaining commissions. 1
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2 M ARSHALL S D ILEMMA William Marbury and three others to whom the commissions had not been delivered sought a writ of mandamus (an order directing a government official to fulfill a duty) from the United States Supreme Court, as authorized by Section 13 of the Judiciary Act of 1789. As fate would have it, John Marshall had stepped down as Adams’s secretary of state only to become chief justice of the Supreme Court. Marshall faced a dilemma: If he ordered the commissions delivered, the new secretary of state (Madison) could simply refuse to deliver them—and the Court had no way to compel action, because it had no police force. At the same time, if
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