mid term- First three weeks 353+354

Question 1

Incorporation

Answer 1

To incorporate is to apply the first 10 amendments to the states.
due process from the fourteenth amendment

Question 2

Barron v. Baltimore (1833)

Answer 2

The court refuses to incorporate the Bill of Rights into the states.
Deeming the first ten amendments only applicable to the Federal Government.
(33 years before the 14th Amendment was ratified)

Question 3

Marshall’s five points in Marbury v. Madison

Answer 3

1. the constitution established a government of limited power
2. The constitution is the supreme law of the land- it is superior to legislative enactments- otherwise, the constitution would be useless/futile
3. The court cannot close its eyes to an unconstitutional act. Marshall states: “It is emphatically the province and duty of the judicial department to say what the law is.”

Question 5

Jurisdiction

Answer 5

Authority given by law to court to try cases and rule on legal matters w/in a particular geographical area

Question 6

Original Jurisdiction

Answer 6

First instance and give judgment according to the facts and evidence

Question 7

Appellate Jurisdiction

Answer 7

the authority of a court to review and sustain or reverse the decision of a lower court

Question 8

U.S. district court (trial courts)

Answer 8

• Original jurisdiction
• 1 judge hears each case or three-judge panel w/ impartial jury
  ~ 300,000 cases filed

Question 9

US court of appellate

Answer 9

• Appellate Jurisdiction
• Three judges per case for total population
• 13 courts
  ~ 60,000 cases filed

Question 10

Supreme court

Answer 10

• Constitutionally established
• 9 justices since 1896
• 2(3) types jurisdiction

Question 11

Supreme court jurisdiction
2 (3 counting lysle doctrine)

Answer 11

1. Article III- OG jurisdiction
2. Congressional legislation- hearing appeals of lower court decisions on appellate jurisdiction
3. own interpretation of 1 and 2 together w/ its own rules for accepting

Question 12

What if you don’t like the Supreme Court decision?

What is the problem with #3?

Answer 12

1. Amend the Constitution
2. Legislation- rewrite statute
3. Present a similar case and overturn the previous ruling
   - undermines the court

Question 13

Judicial review

Answer 13

• The high court reviews the case and decides if it is constitutional or unconstitutional
• Confers or revokes legitimacy on legislative executive action
• Perpetuates the idea of limited gov and constitutional gov facilitates the functions of the federal system the “umpire” between the federal government and the states
• allows people excluded from full participation of having more of a voice in making public policy

Question 14

Statutory interpretation

Answer 14

Congress passes a law and court interprets it

Question 15

Legislative intent

Answer 15

motives of legislators when enacting legislation

Question 16

Internal checks on the supreme court

Answer 16

1. must be adverse parties opposite interest
2. actual dispute, not theoretical argument
3. must be able to provide a remedy/ final election
4. Will not consider a moot question- hypothetical question
5. The political question doctrine
6. The federal question doctrine
7. Supreme Court does not give advisory opinions
8. Judicial precedent: judicial decision regarded as controlling in future cases
9. Stare decisis: [Latin: let the decision stand] follow judicial precedent

Question 17

External checks/ limits

Answer 17

1. Jurisdiction (og and appellate)
2. Congress determines when and how often the Court meets
3. Congress establishes the # of Justices
4. Congress can pass detailed legislation(thus, limits statutory interpretation)
5. Senate confirms the president’s nominees(simple majority)
6. Congress can impeach SC justice
7. The court relies on the congress and the executive branch to enforce its decision

Question 18

Judicial selection (theoretical, what it is supposed to be!)

Answer 18

1. Competence legal scholar
2. Ethics
3. Judicial temperament
4. Neutrality

Question 19

Judicial selection(practical approach, what are the actual qualifiers the president looks for?)

Answer 19

1. Similar personnel policy preference and party alliance
2. Competence and ethical behavior
3. A chance to reward friends or associates
4. Coalition

Question 20

Robert Doha’s judicial behavior view

Answer 20

• rare a transient when the court protects minorities
• Usually goes along with Congress and the president
• Supreme Court main function is to confer legitimacy on policies 6t the major coalition in power

Question 21

Martin Shapiro view on judicial behavior

Answer 21

• The court’s special function is the representation of potential or unorganized interests or values which are unlikely to be represented elsewhere in government
• the court defends the underrepresented
• role in court might serve as protecter of minorities against majority tyranny

Question 22

Mechanical jurisprudence (Judicial behavior) (How does the court determine ruling?)

Answer 22

• Facts, precedent, and C.L. and status
• what you hope for if law is on your side
• Social science has no place in court
• Does not explain differences in ruling for the same case

Question 23

Behavioral jurisprudence (judicial behavior)

Answer 23

• Facts, precedent, and C.L., and status, but also other legal factors
• race (judges, litigant)
• gender (judge, defendent)
• legal training? (lib v consv)
• party association
• location
• appointee president

Question 24

Henry Kalvin

Answer 24

In general, the law has a great capacity to tolerate inconsistencies; perhaps the most thing for law students to grasp is the sense of tolerable inconsistencies.

Question 25

Compelling state interest

Answer 25

• tool of constitutional interpretation
• places burden of proof on the state to prove that the deprivation of a fundamental right or discrimination of a certain classes of people is necessary for the public good
• deny an individual his/ her right if in the best interest of all the people

Question 26

Example of compelling state interest

Answer 26

8-year-olds should not have the right to drive. It is discriminatory, but it is in the best interest of all people.

Question 27

Our class model

Answer 27

Indeed, judges are not above or outside the interest conflict but are in fact participants in it.
A judge i sthe political process and his/her activity is interest activity not as a matter of choice but of function
- Jack Peterson 1955 Federal Courts in the political process

Question 28

Fundamental right

Answer 28

Things that are so rooted in traditions and collective conscience of our people as to be ranked as fundamental

Question 29

Dejure

Answer 29

mandated by law

Question 30

De facto

Answer 30

Existence of something in practice but not as a result of government action.
Common societal practice, not law.