chap2 - JUDICIAL REVIEW Judicial Review: The process by...

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JUDICIAL REVIEW Judicial Review: The process by which a court decides the constitutionality of legislative enactments and actions by the executive branch. While the U.S. Constitution makes no mention of the power of judicial review, Alexander Hamilton and James Madison (two of the three authors of the influential Federalist Papers ) both advocated the concept of judicial review as a necessary part of the checks and balances that characterize our federal government. In Marbury v. Madison (1803) , arguably the most significant case in American constitutional law, the U.S. Supreme Court opined: It is emphatically the province and duty of the [courts] to say what the law is…. So if the law be in opposition to the Constitution … [t]he Court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. Ch. 2: Courts and Alternative Dispute Resolution – Page 1
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JURISDICTION Jurisdiction: The authority of a court to hear and decide a specific action. Jurisdiction has many dimensions, including: Personal Jurisdiction: The authority of a court to hear and decide a dispute involving the particular parties before it. Subject Matter Jurisdiction: The authority of a court to hear and decide the particular dispute before it. Original Jurisdiction: The authority of a court to hear and decide a dispute in the first instance. Generally speaking, trial courts are courts of original jurisdiction, although the Supreme Court of the United States and the highest courts of many of the states have original jurisdiction over a few types of disputes. Appellate Jurisdiction: The authority of a court to review a prior decision in the same case made by another court. Ch. 2: Courts and Alternative Dispute Resolution – Page 2
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Personal jurisdiction is generally a geographic concept. In Personam Jurisdiction: Courts have jurisdiction over persons or entities residing or doing business within a particular county, district, state, or in some cases, anywhere within the United States. All states, as well as the United States, have one or more long-arm statute(s) which dictate under what terms a nonresident person or entity, who would otherwise not be subject to the court’s jurisdiction, may nonetheless be required to appear before the court. The key to whether a nonresident will be subject to a court’s jurisdiction is the quantity and nature of the nonresident’s contacts with the state within which the court sits. In Rem Jurisdiction : Courts also have personal jurisdiction over disputed property located within the county, district, or state. Ch. 2: Courts and Alternative Dispute Resolution – Page 3
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chap2 - JUDICIAL REVIEW Judicial Review: The process by...

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