Federal Courts - Friedman - Fall 2007

Federal Courts - Friedman - Fall 2007 - FEDERAL COURTS...

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F EDERAL C OURTS O UTLINE - 1 -
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I. T HE J UDICIAL F UNCTION A. Marbury and the Judicial Role - Marbury v. Madison (1803) – Federalist’s pack courts prior to Jefferson assuming power. One of commissions failed to be delivered (though signed and sealed). Madison refuses to deliver the commission and seat the judge, who sues. o reasoning: 1) does Marbury have a right? yes. Right created once commission fixed with seal. 2) does Marbury have a remedy at law? yes. “essence of liberty” entails that when there is a right, there is a remedy. therefore, executive within the power of the courts to order around where he has caused a private injury , though not for activities vested in his discretion o origins of political question doctrine. 3) is the remedy of a writ of mandamus from this Court? No. Court lacks jurisdiction. statutory: Section 13 of Judiciary Act appears to grant jur. Const: lists cases where Supreme Court has original jurisdiction, with appellate jurisdiction “in all other cases” o Marshall concludes the original jurisdiction list is exclusive. o “Exceptions clause” does not allow moving jur from appellate to original (as might be thought) [Rmk: rejecting this reading of Exceptions means it must mean something, and will come to allow jurisdiction stripping] Then: What’s a court to do when a law conflicts with the Constitution? o Court has no choice, must decide the case one way or the other, and so must declare which law is supreme must strike down laws that are unconstitutional relies on Supremacy of written Constitution. the necessity/ private injury model of judicial review o Follows with rhetoric about Supremacy of Constitution, and power to “say what the law is.” Actions don’t nearly follow necessity model, since Marshall goes out of his way to make proclamations about the law in dicta. the expository model of judicial review Ducks central issue. No one argued constitution wasn’t supreme, just whether the judiciary has the final word. o critiques: 1) Marshall should have recused himself, as he as the one who failed to deliver the commission. 2) Parts 1 and 2 are technically dicta. 3) reading of constitution to void statute is strained. Exceptions clause might allow this. 4) reading of statute to give jurisdiction in first place strained - 2 -
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statute only appears to give appellate, so could have just found no jur on statutory grounds. o holdings: 1) “essence of liberty” = no right without a remedy cf. Hart’s “fundamental postulate, infra IX. 2) Executive amenable to judicial process when actions cause private injuries, though not for his discretionary acts discretionary v. violations of established legal duty. political question doctrine.
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Federal Courts - Friedman - Fall 2007 - FEDERAL COURTS...

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