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Law Outlines Constitutional Law (Duke Adler) Outlines

Judicial Review Outline

Updated Judicial Review Notes

Constitutional Law (Duke Adler) Outlines

Constitutional Law (Duke Adler)

Approximately 50 pages

Professor Adler's Constitutional Law outline...

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Judicial Review

Review Legislation

  1. Under Marbury v. Madison, SC has the power to review the constitutionality of federal executive actions and federal statutes.

  2. Veto power and appointment of an office are entirely within the president’s discretion and cannot be judicially reviewed.

  3. Where the executive has a specific legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus

    1. specific, particular duty(“Safe Product Act” probably not a specific duty)

  4. Issue: Two readings of Judicial Act

    1. Marshall’s reading: SC has OJ in any case where P seeks writ of mandamus

    2. SC has power to issue mandamus in cases otherwise within its Jurisdiction. Under this reading JA would not be unconstitutional

  5. Constitutional Issue 1: Under Marshall’s reading, is JA, which gives OJ to SC to hear this case, consistent with the Constitution?

    1. Art. III § 2 Cl. 2 SC OJ and AJ:

      1. OJ: Trio Cases= Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party

      2. AJ: all other cases

      3. Two reading of Cl. 2

        1. Floor and Ceiling, Marshall’s reading: SC has OJ only over Trio Cases

        2. Floor only: SC has OJ over Trio Cases, can also have OJ over other cases

In all cases… the SC “shall” have OJ Reading Art. III as a whole Public policy: Role of SC to interpret Constitution
Floor and Ceiling Marshall’s view: affirmative words are negative of other objects other than those affirmed. Yes, Marshall’s view: If OJ can be supplemented, not necessary to enumerate OJ. Yes, prevent SC from having too many unmeaningful cases
Floor only Yes, the Constitution not does not say that SC cannot have OJ over other cases. Art. III specifies that Congress can change SC’s AJ. As for OJ it’s not clear
  1. Constitutional Issue 2: If not, does the court have the power of judicial review? Argument for judicial review:

    1. Constitutional theory argument

      1. constitution is supreme vis a vis statutes

        1. Written constitution: Power of the legislation is limited and defined by the written constitution. These limits are meaningless unless subject to judicial review....

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