The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system. The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.
This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all.
All contents posted on line may be accessed here:
Summary book organization and the first of the three chapters of Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy, Chapter 16 Summary follows.
Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy
The Doctrine of Judicial Review: Judicial Authority to “Say What the Law Is”
B. Problem 16.1: On Saying What the Law Is
C. The Doctrine of Judicial Review―Judicial Authority to “Say What the Law Is”--Marbury v. MadisonD. Problem 16.2
--Cooper v. Aaron
--Edwin Meese III, The Law of the Constitution
--Sanford Levinson, Could Meese be Right This Time?
--Glassroth v. MooreE. Learning Objectives
With this Part V the student arrives back in the heart of the materials first introduced in Part II. The preceding materials have suggested the central role of the judiciary within the U.S. legal and governmental system. If that is the case, then an understanding of the way in which judges approach their tasks, and the institutional boundaries of that task, are critical elements of the study of the U.S. legal and political system. On an operational level, and for most students of law in the United States, the study of the practices and approaches of judges is important for another reason. Because we are lawyers, and we will spend a great deal of time defending the rights of our clients before tribunals set up for that purpose, it is critical to consider the role of courts and their relationship to law. Indeed, the law-courts relationship is at the heart of our common law system, though the power of that direct relationship has been softened in recent years. It follows that a lawyer ought to be intimately acquainted with the role of courts in law and its relationship to the legislative and executive power.
The section starts with the idea of judicial review and its limits, that is, the nature of the judicial authority to “say what the law is.” The focus is on institutional legitimacy and the evolution of principles of governance that have become the foundation of the American Republic. It also suggests the extent of the uniqueness of the premises that mark the boundaries of judicial power and their role in government and with law. To that end the student is introduced to the germinal decisions that set out the political theory on which the power of the American courts to serve not merely to interpret statutes (and apply them) but also to determine the scope of the authority of the actions of the other political branches of government, and to craft their legal effect. But that authority to legalize the enterprise of the application of the rules through which popular government is ordered, and empowered, by the people, remains a contentious issue.
This Part considers in substantially more detail the specifics of the mediating role of the judiciary within American legal theory. To that end the student will be engaging in synthesis of the materials considered in the first three parts of the course, and in particular the application of the sensibilities of common law as they have emerged to produce the modern court as a nexus point for the production of customary law, the interpretation of statutory law and of regulations produced thereunder, and the enforcement under some circumstances, of the techniques of monitoring and assessment in their regulatory aspects.
The student will consider as well the techniques embedded in the notion of “the judicial” through which courts ground law in the state even as they seek to preserve law’s autonomy from the state. Special attention will be paid to the way in which the courts have developed techniques to advance their role in the legalization of political organization the student has come to understand as an important aspect of Western constitutional law, something considered in detail in Part IV. The focus of these materials, then, is on the character of the judicial institution and its role within Western constitutional states. More importantly (at least with respect to its transposability to other law courses in which the student will enroll) the materials consider the techniques developed by courts to serve in the various role of common law producer, statutory interpreter, and referee for the structural division of authority among the institutions of the state. Mastery of an understanding of these techniques, of reading them, understanding their implicit meaning, and deploying them in the service of clients’ interests that will distinguish a great from a mediocre lawyer (and jurist).
(1) The student should be familiar with the idea of judicial review and its limits, as well as the nature of judicial authority to say “what the law is.”
(2) The student will be introduced to the political theory on the power of the American courts to serve not merely to interpret statutes (and apply them) but also to determine the scope of the authority of the actions of the other political branches of government, and to craft their legal effect through a reading the germinal decisions and law review articles set out in this chapter.
(3) The student will be introduced to the doctrine of judicial review through a reading and analysis of Marbury v. Madison.
(4) The student will apply the materials from the chapter by working through a problem and relying on Glassroth v. Moore.