Chapter 16 (Chapter Summaries) "The Doctrine of Judicial Review: Judicial Authority to “Say What the Law Is” in Elements of Law and the United States Legal System

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

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:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

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.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems (Chapters 3-7), then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structures of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nature of judicial opinion, especially the legal effect of judicial decisions interpreting statute.

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Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy

Chapter 16. 
The Doctrine of Judicial Review: Judicial Authority to “Say What the Law Is”

A. Introduction

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. Madison
--Cooper v. Aaron
--Edwin Meese III, The Law of the Constitution
--Sanford Levinson, Could Meese be Right This Time?

D. Problem 16.2

--Glassroth v. Moore

E. Learning Objectives

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A. Introduction

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. 

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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). 

 

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(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.