Doctrine of judicial review Discussion

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While you should already have a good understanding of judicial review, let’s have a brief review. We know that the concept of judicial review is not explicitly mentioned in the Constitution. Rather, it arose from Marbury v. Madison, 5 U.S. 137 (1803), in which the U.S. Supreme Court declared one part of a federal law (Section 13 of the Judiciary Act of 1789) to be unconstitutional.

In Marbury, Chief Justice Marshall concluded: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”

1. Read Article III and Article VI of the U.S. Constitution: Article III and VI

2. Summarize the scope of the checks and balances that the Executive and/or Legislative Branches of government have available to them relative to the Judicial Branch of government.

3. In light of the Supreme Court’s role in federal government, do you think that it is correctly deemed activistwhen people disagree with its decisions and restrained when the Court does not take any action to disturb a prior decision or declare a law unconstitutional? Historically, how long has the judicial activism concept existed within the United States? Could judicial activism, if it exists, be a form of checks or balances on either/both the Executive and/or Legislative branches? What does literature in other fields (e.g., political science, public policy, history, etc.) indicate about this question? Either way, if you believe that such activism is a problem, what solutions do you recommend to fix it? How do your proposed solutions fit within the scope of Checks and Balances, if at all?

4. Using Nexis Uni, research U.S. Supreme Court cases and locate one case (from within the past ten years) that you believe exemplifies the concept of judicial activism.

5. Explain in your own words what the case is about, the Court’s decision (majority, concurring and dissenting), and your argument as to why that case displays the Court’s activism. What did the dissent assert and if the dissent discusses precedent and/or stare decisis, explain this point.

6. Do you think that, given the activism, the case’s holding is still aligned with our Constitution? Do you think such activism can erode the doctrine of stare decisis? Why or why not? What is the difference between horizontal stare decisis and vertical stare decisis? Provide your own example(s).

7. Given precedent, how would you have decided the case that you chose to summarize? Explain.

a. How is your proposed decision hampered or supported by the existing law or practices in the legal field, or political / social climate, etc.? What recommendations do you have to bridge the gap (if any) between what you would like to do in your proposed decision and the existing law, legal practices, and/or climate, etc.?

b. Could technology [including, but not limited to the use of electronic legal (research or other kinds of) tools and/or social media] help facilitate, or interfere with, the change that you are seeking? How? If you view technology as a problem, then what recommendations do you have for overcoming the challenges that you see, relative to your proposed decision?

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