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Judicial Review Outline

Law Outlines > Constitutional Law (Duke Adler) Outlines

This is an extract of our Judicial Review document, which we sell as part of our Constitutional Law (Duke Adler) Outlines collection written by the top tier of Duke University School Of Law students.

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Judicial Review

1.1 Review Legislation I.


IV. V.

Floor and Ceiling

Under Marbury v. Madison, SC has the power to review the constitutionality of federal executive actions and federal statutes. Veto power and appointment of an office are entirely within the president's discretion and cannot be judicially reviewed. 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 a. specific, particular duty("Safe Product Act" probably not a specific duty) Issue: Two readings of Judicial Act a. Marshall's reading: SC has OJ in any case where P seeks writ of mandamus b. SC has power to issue mandamus in cases otherwise within its Jurisdiction. Under this reading JA would not be unconstitutional Constitutional Issue 1: Under Marshall's reading, is JA, which gives OJ to SC to hear this case, consistent with the Constitution?
a. Art. III SS 2 Cl. 2 SC OJ and AJ: i. OJ: Trio Cases= Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party ii. AJ: all other cases iii. 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 Reading Art. III as a Public policy: "shall" have OJ whole Role of SC to interpret Constitution 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

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