Intro, Legal Interp. Tools, & Judicial Review Test Outline


  1. Structure of Const
    1. Justiciability
      1. Ct resolve issues
      2. If political quest's, then not justiciable
      3. Quest's of insulation
    2. Pwrs
      1. Entity of govt w/pwr / auth. 2 act
      2. Sep. of Pwr (S/P) issues
    3. Limitations
      1. Set by the Const
      2. Limit ct's ability 2 create / find rts not in Const.
    4. Approaches of Analysis
      1. Interpretist v. Non interpretivist approaches, etc.

Legal Interp. Tools

  1. Need Tools 4 Predictability & Practicality
    1. Doc of Sources (Internat. Approach)
      1. Means of est'ing candidate 4 a rule it's a rule & more sources 4 support, better
      2. Meta Rules
        1. Rule about rules 2 how 2 id. rules
        2. Rule derived from the text is the rule
        3. Prob's b/c unreliable concl. in terms
      3. Neutral Princ's
        1. Princ's applied neutrally so follow even if dislike result 2 safeguard against polit. judging & limit naked pwr
  2. Formalism v. Realism
    1. Formalism: law predictable by text & indicia of intent b/c apply law 2 facts & get ans.
    2. Leg. Realism: law unpredictable b/c other factors affect judges & law
    3. Textualism / Interpretivism
      1. Subst. Const. law legit only by ref. 2 the text
      2. Judge's discretion limited 2 the text
      3. Plain meaning rule: If Const. text dispositive & no interp. req'ed no extrinsic ref.
      4. Open Text Const. then interp.
      5. But not tell where 2 look & still need 2 dec. what's clear & unclear 4 interp.
    4. Originalism / Intent of the Framers (Part of Formalism)
      1. Look 2 framers' intent 2 i.d. meaning of text if ambiguous
      2. Prob's b/c Const. can mean whatever they want & need 2 ref. 2 intent
      3. Custom when framers gov'ed, then high wt. b/c reflect framers' views & govt. structure
    5. Legal Realism (LR)
      1. Analyze law as behav. scientist not as participants
      2. Other factors influence judges & law so focus not on words but identity of judges (actors), polit. soc. context, conseq's of dec's, etc.
      3. Human behav. unpredictable so law unpredictable
      4. Factual Indeterminacy where can gen. / narrow the facts 2 predet. outcome
      5. Normative Indeterminacy where limit alt. tools & law
    6. Critical Legal Studies (CLS)
      1. Similar 2 LR b/c of indet'cy theories
    7. Basic Concept of Both LR & CLS
      1. Law not the only factor in jgmt
      2. However judges' discretion not unlimited so not compl'ly ignore text / intent b/c of checks w/in the sys

Judicial Review

Fed. Govt'al Acts

  1. Marbury v. Madison
    1. Rt. 2 Commission in the Case
      1. Textualist approach not dispositive
        1. Art. 2 2: not about commission but req that Pres. nominate & Sen. consent
        2. Act of 1789 13: proced.
    2. Not Every Rt. Lends 2 Remedy / Enforceability
      1. Rts of K but no remedy like gambling debts b/c of pub. policy or S/L
      2. Polit. quest.'s R nonjusticiable so no nec. remedy
    3. Litigant Not Entitled 2 Remedy / Writ of Mandamus
      1. Writ of mandamus dir's pub. official 2 do something
      2. Nat. of the writ det's the entitlement not the identity of office
      3. Imply S/P doc where fed. govt div'ed 2 3 branches by stating if nondiscretionary & simply enforcing the statute, then justiciable & no S/P prob. but if discretionary then nonjusticiable b/c polit. quest.
    4. Limited & Exhaustive Orig. Jxn of Sup. Ct. by Art 3
      1. Ambassadors, other pub. ministers & consuls, admiralty & mariX jxn, US party
      2. Orig. jxn in ambassador b/c of for. rel. & similarly 4 admiralty b/c conflict of int. among states
      3. Can expand only by Amend. not by statutes
    5. Exceptions & Appellate Jxn: Art 3 2
      1. Applicable only 2 appellate jxn
    6. Act of 1789 13 UnConst.
      1. Marshall construed as expanding orig. jxn
      2. Can't expand orig. jxn of Art 3 b/c expressio unius
      3. Surplussage if interp'ed otherwise so elevate substance over form here
      4. Hence law repug. 2 Const. so void
      5. Law o.k. if interp. Const. only guiding not binding but Marshall said binding
    7. Jud. Pwr 2 Rev.
      1. Const. text most imp. but not always dispositive
      2. Can arg. Jud. got auth. b/c of oath but so does Pres. & leg.
      3. Arising under cases arg. but jxnal pwr not same as invalidating pwr
    8. Big Issues
      1. Sup Ct's jxn 2 grant the request / mandamus
      2. Final arbiter of the meaning of Const.
    9. Application of Textualism
      1. Article 3 2: grants Sup. Ct. jxn 2 resolve cases arising under the Const. but grant of jxn not same as being final arbiter so can interp. either way
      2. Article 6, Sup. Clause: Const. trumps other laws but not say Sup. Ct. final arbiter
      3. Prob's w/Textualism
        1. No hierarchy of sup. among treaties, statutes, & Const. in the text
        2. No explicit grant of final arbiter 2 Sup. Ct.
    10. Application of Orig.
      1. Pre-Phil.:Coke in Dr. Bonham's Case where C/L superior 2 Parliament v. trad. Eng. judges not strike down statutes 4 intent of framers
      2. Phil: Luther Martin @ Convention of jud. rev. but
        1. Not know what context he stated of people oppose/support / who hear him
        2. Verification prob. b/c no official minutes, secret mtng, & Madison notes & diary discrepancy
        3. Dec. who the real framers R b/c states ratified so consid. state conventions
      3. Post-Phil: Papers & Case
        1. Fed. papers read widely but Madison, Hamilton, & Jay had specif. views so prob. of intent
        2. Eakin v. Raub PA Case of 1825 not accepted Marbury Case
      4. Framers' Axns
        1. Jefferson not present @ conventions so his intent may B dif.
      5. Act of 1789 13
        1. Lots of people from Phil. Convention drafted the act so invalidating seems 2 odds esp'ly when Marshall wasn't @ the Convention
    11. Application of Leg. Realism (See lec. 5 & 6)
      1. Real Actors: Thomas Jefferson & John Marshall, Dem & Fed. so ideological dispute
      2. Jefferson
        1. Philosopher of masses, decentralized govt & 4 states but lived like aristocrat
        2. Believer of 1st Amend.
        3. Influenced Wash. 2 est. trad. of Pres. recog'ing for. govt w/o Sen. consent
        4. Feared Marshall
      3. Marshall
        1. Ideological elitist but lived like a slob
        2. Hero from XYZ affair
        3. Valley Forge influenced him 4 philos. of strong fed. govt
        4. Intro'ed writing single opinions, debated well, & greatest influence in Sup. Ct.
        5. Regarded Jefferson as coward
      4. Soc. & Polit. Background
        1. Peaceful transfer 2 another party & Fed. dec'ed 2 survive by appt'ing into Jud.
        2. Pinkney impeached & 1802 Sup Ct term abolished so Fed. saw impeachment of Sup Ct as real threat
        3. Sen not coop'ed w/Marbury & est'ed precedence so had proof prob. of est'ing as recipients of Pres. appt'ments but Marshall's bro called in so o.k.
        4. Atty Gen Levi Lincoln est'ed pleading 5th Amend.
      5. Conseq's of Dec.
        1. Seemed as if only 2 choices that petitioners had no rt. / had rt. so Jeff. must deliv. but Jeff. would disobey so either way Jeff. wins
        2. Marshall soln of lec. Jeff., est. Jud. superiority, & polit. win by doing it so can't B ans'ed / overturned: est. statute giving orig. jxn invalid b/c repug. 2 Const. & Sup Ct's job 2 declare what's repug. although Pres. should've deliv'ed
      6. Factual Indeterminacy
        1. No explicit holding of the case but started w/pertinent facts & textualism & ended w/Sup Ct as final arbiter & contextualism so infer 4 possible holdings
        2. Narrowest that Cong. Act expanding Sup Ct's orig. jxn unConst.
        3. Statute in Cong. Act in violation of Const. void & Sup Ct can say so
        4. Any govt act violating Const. invalid
        5. Broadest that any act of any govt incl'ing exec, leg., jud., & state violating Const. is invalid
  2. Cooper v. Aaron
    1. Facts
      1. Ark. arg'ed Brown Case in dif. state so not binding on Ark. leg. & govt by reinterp'ing Marbury
    2. Marbury & Fed Jud Sup.
      1. Reaff'ed Marbury & fed jud supreme
      2. Arg's that leg'or also took oath 2 uphold Const.
      3. But can't say Sup Ct. wrong so leg. b/c Const. intended 2 change w/X
      4. Print dec's so bind on more than just the parties
      5. Pres. can't disobey law 4 rsns of unConst. b/c had opp. 2 veto

State Govt'al Acts

  1. State Interposition
    1. Doc. & Background
      1. Belief by Madison & Jeff. who thought that state govts can interpose btwn fed & indiv's
      2. KY & Virg. Resolutions drafted 4 this purpose
      3. Civil War resolved the issue & states can't interpose
    2. Fed. Supremacy
      1. Fed trumps state if contradiction b/c of Sup. Clause
  2. Martin v. Hunter's Lessee (Martin got land by Eng. lord & Hunter by Virg. Act)
    1. Virg's Arg's: Judge Roane
      1. Quest. of state law b/c of prop. so no fed. law
      2. US Sup Ct's appellate jxn over state ct by Jud Act 1789 25 unConst. b/c Sup Ct can't B last resort of state law
      3. Inhere state sov.
      4. Fed pwr may B abused 2 abolish state cts
    2. Sup Ct Response: Justice Story
      1. Gov'ed by fed law not state so Jay Treaty trumps Virg. statute b/c fed. sup.
      2. Jud Act 1789 25 Const.
      3. Lwr fed cts R creatures of Cong. but if Cong. didn't est. them, then Const. says appellate jxn must extend over state cts by Sup Cts
      4. State sov. inconsistent w/Const. b/c Const. has lots of limitations on state sov.
      5. Pwr may B abused no arg. against its existence
      6. Can't rest Const. interp. in indiv. state b/c need uniformity not anarchy
      7. Can't escape fed. rev. by calling it state quest
  3. Adeq. & Indep. State Grounds
    1. Doc. that State Not Subj. 2 Fed. Rev.
      1. If adeq. & indep. state grounds 4 a dec. in state ct. then not subj. 2 rev. by fed
      2. State dec. rests solely on state law w/o any fed. quest.
  4. Michigan v. Long
    1. Two Prong Test (O'Connor)
      1. Explicitly state indep. state grounds
      2. Not rely on fed. cases
    2. Rsns 4 Test
      1. Michigan relied on fed. cases so if Sup Ct doesn't correct, then might stand 4 something it's not
    3. Rsns 4 Using Fed Cases by States
      1. State B/R's similar 2 Fed B/R in evolution of state B/R's
      2. But state may have more expansive B/R's like abortion

Congressional Control

  1. Exception Clause: Cong'al Pwr 2 Narrow Sup Ct's Jxn (Art 3 2)
    1. Structure Not Permit Cong. 2 Destroy Another Branch (Charles Black)
      1. Cong. can't abolish Sup Ct's appellate jxn / cut into Sup Ct's fns
      2. Although must draw lines, Const. not say where
    2. Internal Limitation
      1. Limited by Const. & B/R 2 apply consistently
      2. US v. Klein & Ex Parte Garland, Ct said Cong. can't impose what cert. facts mean / view accepting Pres. pardon as disloyalty b/c Pres. pwr 2 pardon excl. (Art 2)
      3. Cong. can't escape applications inherent in Const. by calling appellate jxn as exception
    3. External Limitation
      1. Const not grant lwr fed cts so Cong. can abolish all so can deny jxns
      2. Movement 2 limit jxns in 1980's fizzled out b/c of political inertia
    4. Common Theme of Exception Clause Cases
      1. Cong. try 2 restrain ct from dec'ing cases b/c Cong. can abolish lwr cts altogether
  2. Ex Parte McCardle (US govt held him so sought writ of habea corpus)
    1. Reconstruction Acts
      1. McCardle arg'ed 5,6, & 1 amend. rts violated by them but Cong. repealed statute of appellate jxn so Sup Ct can't strike Reconstruction Acts down
    2. Avoid Striking Reconstruction Acts Down
      1. Rsn'ed that Cong. limited jxn by Exception Clause / S/P Doc.
      2. Not choose 1 over other
      3. Pract'ly, didn't want 2 B impeached
  3. Ex Parte Yerger
    1. McCardle Not Exception Clause Case
      1. No jxn'al auth. contested in McCardle & Cong. victory only apparent

Justiciability: Political Quest. Doc

  1. Justiciability
    1. Concept that ct. use 2 justify not hearing cert. cases
    2. Hard 2 id & dif. manifestations b/c dep. on which judges (LR)
  2. Sources & Concepts of Polit. Quest. Doc.
    1. Const. Preclusion / Mandate: Art 3
      1. Implied in Art 3 that Ct can't dec. polit. quests such as impeachment clause involving S/P / plenary pwrs
    2. Prudential Strand
      1. Not in Const. but not want 2 hear cases b/c imprudent 2 hear
  3. Origin in Marbury Dicta
    1. S/P Doc Breached if Dec. Polit. Quest
      1. Cert. polit. quest. assigned by Const. 2 other branched so Ct's can't substitute their jgmt
      2. Stand. is that other branch's dec's R discretionary so judges can't substitute but if nondiscretionary, that's carrying out adm. fn's so subj. 2 rev.
  4. Baker v. Carr (1962: apportionment case w/urban v. rural controversy; Ff'er & Harlan)
    1. Stand. w/6 Factors 4 Det'ing Nonjusticiability
      1. Const. commitment 2 another branch
      2. Lack of jud'ly discernable & manageable stand's
      3. Nonjud. discretion if dec.
      4. Lack of respect 4 other branches if dec. (Vietnam War)
      5. Unusual need 2 adhere 2 polit. dec.
      6. Potential embarrassment (for. policy)
    2. Nonjusticiability as Poor Soln of Political Process Breakdown
      1. Prob. w/polit. process so not solve prob. by not jud'ly intervening
      2. Process breakdown gen'ly justification 4 jud. resolution
    3. Rsns 4 Nonjusticiability
      1. Mathematical quamire not unConst'al (Ff'er) which has some validity
      2. Jud. restraint b/c want people 2 dec. by pub. conscience (Ff'er) but sys. is malfn'ing so need another sys
      3. Dec'ing would undermine pub. confidence & leg. of jud. (Harlan) but not 2 dec. is 2 dec. (avoiding Vietnam War dec's)
  5. Luther v. Borden
    1. Rt 2 Rep. Govt
      1. Not know how 2 flesh that out
  6. Powell v. McCormack (House Rep. did bad things but Sup Ct said can't excl)
    1. Justiciable Issue Here
      1. Const. text not confer either House 2 go beyond reqt
      2. But text says each house judge qulification of own members & this dec. embarrassing so not always adhere 2 6 factors of Baker
  7. Goldwater v. Carter (Carter's recog. of China & Cong. silence)
    1. Polit. Quest.
      1. Four said it was & implied Ct shouldn't intervene when disputes btwn branches
    2. Powell's Concurrence
      1. Case not ripe 4 resolution b/c Cong. said nothing & Goldwater didn't get maj.
    3. Brennan's Dissent
      1. Jud. discretion 2 phrase the antecedent quest. as narrow / broad so polit. quest. by formulating quest's that way
    4. Rehnquist's Summary of 6 Criteria into 3
  8. Cong'al Limitation in Designating Justiciable Cases
    1. Prudential v. Const'al Limit
      1. Cong. can only tell Ct. 2 dec. cases when prudential but can't tell Ct. 2 dec. cases if Const. limits Ct.
  9. Factors 2 Consid. 4 Justiciability
    1. Polit. Quest. Inversely Rel'ed on Views of Jud. Activism
      1. If like jud. activism then dislike polit. quest. but if like jud. restraint then like polit. quest.
    2. Judges v. Elected Officials
      1. Dec. on which quest's 2 B dec'ed by elected people / judges
  10. Arg. Against Nonjusticiability
    1. Not 2 Dec. Is 2 Dec.
      1. Jud. law making & judges affect policy making process by not being involved
    2. Reflector v. Creator of Cultural Norm of Judges
      1. Although say not dec. b/c judges not elected so reflect culture, Ct has dec'ed cases like Brown v. Board of Ed. on morally high ground
    3. LR's Position that No Basis 4 Polit. Quest. Doc.
      1. Not follow Const. preclusion strand
      2. Baker's 6 criteria 2 vague & real rsn not given (Larry v. Reagon ex.)
      3. Hence, all discretionary & no textual basis
    4. Prof. Glennon's Concl.
      1. Princ. rsn 2 not have polit. quest. is structural rsn of giving stability 2 sys & gov'al actors will know the rules
      2. Favor striking statutes down except 4 minority rt. & Const. rt.

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