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A Distinct Judicial Power

A Distinct Judicial Power
Author: Scott Douglas Gerber
Publisher: Oxford University Press
Total Pages: 440
Release: 2011-01-10
Genre: Law
ISBN: 019978096X

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A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787, by Scott Douglas Gerber, provides the first comprehensive critical analysis of the origins of judicial independence in the United States. Part I examines the political theory of an independent judiciary. Gerber begins chapter 1 by tracing the intellectual origins of a distinct judicial power from Aristotle's theory of a mixed constitution to John Adams's modifications of Montesquieu. Chapter 2 describes the debates during the framing and ratification of the federal Constitution regarding the independence of the federal judiciary. Part II, the bulk of the book, chronicles how each of the original thirteen states and their colonial antecedents treated their respective judiciaries. This portion, presented in thirteen separate chapters, brings together a wealth of information (charters, instructions, statutes, etc.) about the judicial power between 1606 and 1787, and sometimes beyond. Part III, the concluding segment, explores the influence the colonial and early state experiences had on the federal model that followed and on the nature of the regime itself. It explains how the political theory of an independent judiciary examined in Part I, and the various experiences of the original thirteen states and their colonial antecedents chronicled in Part II, culminated in Article III of the U.S. Constitution. It also explains how the principle of judicial independence embodied by Article III made the doctrine of judicial review possible, and committed that doctrine to the protection of individual rights.


American Judicial Power

American Judicial Power
Author: Michael Buenger
Publisher: Edward Elgar Publishing
Total Pages: 331
Release: 2015-11-27
Genre: Law
ISBN: 1783477903

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American Judicial Power: The State Court Perspective is a welcome addition to the breadth of studies on the American legal system and provides an accessible and highly illuminating overview of the state courts and their functions. The study of America’s courts is overwhelmingly skewed toward the federal government, and therefore often overlooks state courts and their importance. Michael Buenger and Paul De Muniz fill this gap in the study of American constitutionalism, as they examine the wide and distinctive powers these courts exercise, and their role in administering the bulk of the nation’s justice system. This groundbreaking work covers many critical topics pertaining to the state courts, including: a comparison of the role of state and federal courts, the history of America’s state courts, the judicial selection processes utilized in the states, the unique roles assigned to state courts and the varying structure of those courts, the relationship between state judicial power and state legislative power, and the opportunities and challenges that are and will be facing the state courts. With an insightful foreword from Sanford Levinson, this revolutionary book will be of interest to students, educators, and researchers in the fields of law, political science, and government. Constitutional law experts will also benefit from an analysis of the state courts and their powers.


Law and Judicial Duty

Law and Judicial Duty
Author: Philip HAMBURGER
Publisher: Harvard University Press
Total Pages: 705
Release: 2009-06-30
Genre: Law
ISBN: 0674038193

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Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called "judicial review." The book sheds new light on a host of misunderstood problems, including intent, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent. The book is essential reading for anyone concerned about the proper role of the judiciary.


Law and Judicial Duty

Law and Judicial Duty
Author: Philip Hamburger
Publisher: Harvard University Press
Total Pages: 705
Release: 2008-11-01
Genre: Law
ISBN: 0674264231

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Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called “judicial review.” Working from previously unexplored evidence, Hamburger questions the very concept of judicial review. Although decisions holding statutes unconstitutional are these days considered instances of a distinct judicial power of review, Hamburger shows that they were once understood merely as instances of a broader judicial duty. The book’s focus on judicial duty overturns the familiar debate about judicial power. The book is therefore essential reading for anyone concerned about the proper role of the judiciary. Hamburger lays the foundation for his argument by explaining the common law ideals of law and judicial duty. He shows that the law of the land was understood to rest on the authority of the lawmaker and that what could not be discerned within the law of the land was not considered legally binding. He then shows that judges had a duty to decide in accord with the law of the land. These two ideals—law and judicial duty—together established and limited what judges could do. By reviving an understanding of these common law ideals, Law and Judicial Duty calls into question the modern assumption that judicial review is a power within the judges’ control. Indeed, the book shows that what is currently considered a distinct power of review was once understood as a matter of duty—the duty of judges to decide in accord with the law of the land. The book thereby challenges the very notion of judicial review. It shows that judges had authority to hold government acts unconstitutional, but that they enjoyed this power only to the extent it was required by their duty.In laying out the common law ideals, and in explaining judicial review as an aspect of judicial duty, Law and Judicial Duty reveals a very different paradigm of law and of judging than prevails today. The book, moreover, sheds new light on a host of misunderstood problems, including intent, manifest contradiction, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent.


A Distinct Judicial Power

A Distinct Judicial Power
Author: Scott Douglas Gerber
Publisher: Oxford University Press, USA
Total Pages: 436
Release: 2011-05-05
Genre: History
ISBN: 0199765871

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This title provides a comprehensive critical analysis of the origins of judicial independence in the United States. The book examines the political theory of an independent judiciary and chronicles how each of the original 13 states and their colonial antecedents treated their respective judiciaries.


Extending Rights' Reach

Extending Rights' Reach
Author: Jud Mathews
Publisher: Oxford University Press
Total Pages: 248
Release: 2018-03-13
Genre: Law
ISBN: 0190682930

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Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. Rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court-not in isolation, but as a central feature of a broader account of that country's constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.


Power of Federal Judiciary Over Legislation

Power of Federal Judiciary Over Legislation
Author: J. Hampden Dougherty
Publisher:
Total Pages: 0
Release: 2010-07
Genre: Judicial power
ISBN: 9781616190811

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A Historically Grounded Analysis and Defense of the Judiciary's Power to Override Legislation "The modern assailants of judicial power will find little comfort in this volume. It consists mainly in a clear and able presentation of convincing evidence that the power of the courts to override laws repugnant to the spirit of the Constitution was directly contemplated by the framers of that instrument. (...) He does not rest his case here, but proceeds with a discussion of other evidence in support of his position. (...) It is to be hoped that this volume will find a large audience and thereby perform a great public service in tending to limit the effect of many ill-considered statements bearing upon the power given to the judiciary by the Constitution of the United States." P.R.B., Yale Law Journal 22 (1912-13) 67-68 J. Hampden Dougherty was a prominent New York City lawyer whose practice focused on tax issues and land and water use. He graduated from Columbia Law School in 1874 and was the author of numerous titles including Electoral System of the United States (1906) and Constitutional History of New York State (2nd ed. 1915).


Elements of Judicial Strategy

Elements of Judicial Strategy
Author: Walter F. Murphy
Publisher: Quid Pro Books
Total Pages: 400
Release: 2016-06-01
Genre: Law
ISBN: 1610273540

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Guide to the U.S. Supreme Court: Origins of judicial power

Guide to the U.S. Supreme Court: Origins of judicial power
Author: David G. Savage
Publisher:
Total Pages: 0
Release: 2004
Genre:
ISBN:

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This classic reference explains everything readers need to know about the Supreme Court, from its origins and how it functions, to the people who have shaped it and the impact of its decisions on American life. The new fourth edition (revised and updated through 2003) includes recent events, cases and controversies that have molded a distinct legacy for the Rehnquist Court: from the firestorm over Bush v. Gore, the landmark gay-rights decision in Lawrence v. Texas, and the recent University of Michigan affirmative action decisions, to the rejuvenation of states rights, the Rehnquist Court has rewritten Supreme Court history. Guide to the U.S. Supreme Court covers the Court's entire history; its operations; its power in relation to other branches of government; major decisions affecting the other branches, the states, individual rights and liberties; and biographies of the justices. Appendixes provide additional information on the Court such as the Judiciary Acts of 1789 and 1925 and a list of Acts of Congress found by the Court to be unconstitutional. New cases include: McConnell v. Federal Election Commission (2003), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), United States v. American Library Association Inc. (2003), Bush v. Gore (2000), Boy Scouts of America v. Dale (2000), Clinton v. City of New York (1998), Clinton v. Jones (1997), City of Boerne V. Flores (1997). The Guide also covers changes in Supreme Court's approach to religious freedom, the Rehnquist Court's legacy and the rejuvenation of federalism and state sovereignty. The power to investigate -- The power over internal affairs -- 5. The Court and the powers of the president : Article II -- The Commander in Chief -- The architect of foreign policy -- The president as executive -- The power to veto and to pardon -- Privilege and immunity -- The president versus the Court -- 6. The Court and judicial power : Article III -- Federal jurisdiction -- Federal judicial power -- Judicial restraint -- 7. The Court and the states -- Judicial review and the states -- The states and the economy -- The states and the individual -- The state as sovereign -- Interstate relations -- pt. III. The Court and the individual -- 8. The Court and the individual -- A narrow base, 1789-1865 -- The Civil War Amendments -- Freedom for ideas -- Political rights -- Equality before the law -- Fundamental fairness -- 9. Freedom for ideas : the First Amendment and the right to believe, to speak, to assemble, to petition, and to publish -- Freedom of speech -- Freedom of the press -- Freedom of religion -- 10. The rights of political participation -- Fair elections and the right to vote -- The right to an equal vote -- Freedom of political association -- 11. Crime and punishment -- A fair trial -- Search and seizure -- Self-incrimination -- The aid of legal counsel -- Double jeopard -- Cruel and unusual punishment -- 12. Equal rights and personal liberties -- Racial equality -- Equal protection : the alien and the poor -- Sex discrimination -- Liberty and privacy.


The Cambridge Companion to the Federalist Papers

The Cambridge Companion to the Federalist Papers
Author: Jack N. Rakove
Publisher: Cambridge University Press
Total Pages: 623
Release: 2020-03-12
Genre: History
ISBN: 1107136393

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A multifaceted approach to The Federalist that covers both its historical value and its continuing political relevance.