...Judicial activism is a concept that raises a lot of concerns over the judges’ competence in law interpretation and application in certain cases that require more than the mere application of existing laws. The critics of judicial activism fault it for violation of application of available or pre-existing laws but rather the judge decides cases based on his own emotional persuasion and views on a case. Judges constitute members of the society whose actions should impact it positively (Harten, 2013). The architects of the Constitution anticipated a judiciary that can effectively tackle various issues like injustices and address discontentment even in the absence of applicable law. For instance, the Canadian ruling on the status of Métis and non-status...
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...In the process of judicial review, the willingness of the Supreme Court to use its powers to significantly change public policy is judicial activism, contrarily, the willingness of the Court to limit the extent of its power in the process of judicial review and avoid making significant changes to public policy is judicial restraint. Certain actions of the Supreme Court demonstrate the use of judicial activism. A looser and more adaptable interpretation of the Constitution is applied in this type of judicial review and the Constitution’s text is not taken literally. Additionally, the Court’s ruling may not align with prior decisions of similar cases, thus stare decisis is not applied. Lastly, judicial activism results in Justices’ enacting change...
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...federal judges and justices, particularly at the Supreme Court level, and discuss the impact that appointments can have on long-term judicial policy. Appointing judges and justices is strictly political. Appointing a justice on the U.S. Supreme court could sway the way the Court thinks or break the tie in a history changing...
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...Judicial activism can have both positive and negative impacts on American society either as a whole or as individuals depending on which side of the particular subject that is taken or the interpretation of it. As judicial analyst and former Judge Andrew Napolitano once said, “There is no such thing as an activist judge. An activist judge is one whose ruling you disagree with. And if you agree with what the judge has done, you call them heroic and honest” (Wojdacz, 2009). Usually a judge is called an activist when they make a ruling that is based on their interpretations of the Constitution or laws. After all, the job of the Supreme Court is to interpret the law where it is unclear or in question and when laws or rulings of lower courts are challenged, it is the Supreme Court justices that must examine the law and determine if the intention of the law has...
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...Discuss the view that the power of the Supreme Court cannot be justified in a democracy. The Supreme Court: Functions of judiciaries; judicial independence. Membership, appointment process and issues of judicial review; accountability and democratic control. Theories of judicial activism and restraint. The supreme Court is the head of the judicial part of Government in the USA, it acts as an appellant court which can also on occasion deal with ambassadorial and diplomat cases. It is separate from the other 2 branches of government in order to remain independent and provides a powerful check on those branches. However it has been criticised by being called democratically lacking. The members have a significant amount of power however are unelected and unable to be dismissed. The most significant issue with the Supreme Court’s power is its (lack of) accountability, this is largely caused by the appointment process. The Supreme court has had significant influence over public legislation since the Marbury vs Madison case of 1803 and increasingly so since Chief Justice Warren’s court who made controversial decisions regarding segregation (Brown vs Topeka) and Abortion (Roe vs Wade). This has continued to more recent court cases such as the 2012 Windsor vs USA which recognised gay marriage striking down DOMA (the 1996 Defence of Marriage Act) which stated that only heterosexual marriage would be federally recognised. This has led to the appointment process of Supreme...
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...The judiciary is a government branch responsible for interpreting the constitution. Strict constructionists and judicial activism are two sides of the same body that guide a judge in the decision making of court cases. Strict construction is defined as the interpretation of the law while basing the argument on the narrow and literal meaning of the law. It does not make exceptions for the difference in times of writing the constitution and conditions experienced today, changes in the society and innovations. Judicial activism, on the other hand, considers what the language of the policy maker intended to capture from an extended point of view to consider the societal complexity and current standards of conduct for humans (Pandey, 2012). The strict constructionist limits the judicial discretion, restricting judges in determining legal cases and especially those outlined in the Constitution. Their discretion is only allowed when the decision is necessary for resolving a substantial dispute between antagonizing parties. It expects judges faced with constitutional questions to allow substantive deference to ideas argued by elected branches and restrain their actions only when there are clear violations of the constitutional limits (Mark, 2012). The concept controls the court to interpret laws and take part in policy-making. Judges are expected to pass...
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...American Samoa Government Final Research Paper May 11, 2012 Doctor Si’ulagi Solomona Judicial Branch Page 1 of 10 Where the Executive and Legislature branches are elected by the people, members of the Judicial Branch are appointed by the President and confirmed by the Senate. Article III of the Constitution, which establishes the Judicial Branch, leaves Congress significant discretion to determine the shape and structure of the federal judiciary. Even the number of Supreme Court Justices is left to Congress – at times there have been as few as six, while the current number (nine, with one Chief Justice and eight Associate Justices) has only been in place since 1869. The Constitution also grants Congress the power to establish courts inferior to the Supreme Court, and to that end Congress has established the United States district courts, which try most federal cases, and 13 United States courts of appeals, which review appealed district court cases. [ https://www.whitehouse.gov/our-government/judicial-branch ] The Judiciary explains and applies the laws. This branch does this by hearing and eventually making decisions on various legal cases. The Judicial Branch is in charge of the court system. There are three different kinds of courts found in the federal court system. The lowest level is the district courts. The 2nd level is the court of appeals. The top level is the Supreme Court. Did you know: 1. The Supreme Court was set up by the Constitution. 2. The Supreme...
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...last part is dedicated to the relations between Member States and the Court. It should be noted that in each part of the paper we will bring arguments and various examples to develop a structured and complete answer. 2- The Court of Justice through time The European Court of Justice (Court of Justice under the Treaty of Lisbon ) was created in 1951 as the judicial body of the European Coal and Steel Community. It is based in Luxembourg and is composed of 27 judges, one from each Member State. They are appointed by their Member States for a renewable period of 6 years. The judges are assisted by eight Advocates-General whose main task is to deliver legal opinions. At the beginning the Court of Justice had only three limited functions: • To ensure the administrative compliance of the Member States with the rules of the treaties, • To resolve the disputes in case the EU laws are vague, • To keep the Commission and the Council of Ministers from exceeding their authority. Yet, across time it has managed to become from a marginal political actor one of the strongest and influential political and judicial institutions in Europe. According to the Treaty of Lisbon, the Court of Justice “shall ensure that in the interpretation and application of the Treaties the law is observed”. The functions of the Court are as follows: 1. Infringement proceedings...
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...EQUAL RIGHTS IN LAWS RELATING TO DIVORCE: A COMPARATIVE STUDY OF DIFFERENT PERSONAL LAWS IN BANGLADESH A Research Monograph Submitted as Partial Fulfillment of Master of Laws (LLM) Degree Submitted By: Examination Roll No. 08239085 Registration NO.3347 Examination: 2012 Session: 2007-2008 DEPATMENT OF LAW UNIVERSITY OF RAJSHAHI BANGLADESH DECEMBER 2012 DECLARATION The researcher, as a candidate for the degree of Master of Laws (LLM), is fully aware of the rules and regulations of the University of Rajshahi relating to the preparation, submission, retention and use of a research monograph. She acknowledges that the University requires the research monograph to be retained in the library for record purposes and that within Copyright privileges of the author it should be accessible for consultation and copying at the discretion of the library authority and in accordance with the Copyright Act 2000. I authorise the University of Rajshahi to publish an abstract of this research. The researcher also declares that this research monograph entitled ‘Equal Rights in Laws relating to Divorce: A Comparative Study of Different Personal Laws of Bangladesh’ is solely the outcome of her own efforts and research for the partial fulfillment of the degree of LLM. No part of this research monograph in any form has been submitted to any other department or institution for the award of any degree or diploma or to any journal for the purposes of publication. Researcher ...
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...PS1010: Study Guide for Exam 3 Winter 2015 1. Which of the following thinkers is often credited with first coming up with ideas about the modern bureaucracy? a. Thomas Hobbes b. John Locke c. Max Weber d. Alexander Hamilton e. Benjamin Franklin 2. Bureaucracy is characterized by all of the following EXCEPT: a. Merit-based advancement b. Hierarchy c. Worker specialization d. Explicit rules e. Flexible goals 3. The value of explicit rules in bureaucratic institutions is that they: a. Facilitate individually tailored treatment of citizens b. Allow for flexibility c. Encourage creativity d. Create standardization and predictability e. Reduce uniformity of behavior 4. A clear chain of command with all employees knowing who their supervisors are as well as whom they are responsible for is an example of a(n): a. Issue network b. Merit system c. Hierarchy d. Spoils system e. Iron triangle 5. Bureaucracy is useful for all of the following EXCEPT tasks that: a. Require a great deal of coordination b. Require a great deal of planning c. Require a great deal of expertise d. Can be handled on an ad hoc basis e. Require a great deal of routine work 6. The practice in which successful party candidates reward political supporters with jobs or favors is known as: a. Patronage b. Pandering c. Pay-for-play d. Lobbying e. Nepotism 7. The civil service replaced the _________ as a method of choosing government workers. a. Merit system b. Hereditary...
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...runs the program. Even worse from the state’s point of view is mandatory partial preemption, in which the national government requires states to act on peril of losing other funds but provides no funds to support state action. An unfunded mandate is a statute or regulation that requires a state or local government, or private individuals or organizations, to perform certain actions, yet provides no money for fulfilling the requirements. When a federal government imposes a law or regulation without necessary funding, for example, it becomes the responsibility of the state or local government to pay for the implementation of the law. In the end, it is local taxpayers who end up footing the bill. Judicial activism refers to court decisions that arguably go beyond applying and interpreting the law and extend into the realm of changing or creating laws, or going against legal precedents. Arguably these decisions are...
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...Constitutional Law- Supremacy Clause- “This Constitution, and the laws of the United States which shall be made in pursuance thereof…… shall be the Supreme law of the Land; and the Judges in every state shall be bound thereby …..” Article VI Judicial Review- U.S. Constitution doesn’t provide that federal courts can declare a statute unconstitutional and void, but they can./Marbury v. Madison, 1803 introduced judicial review Activism v. Restraint- Over time, not a liberal vs. conservative issue.In the early days of the New Deal, judicial activism was responsible for striking down progressive measures. Originalism v. Living- When interpreting the Constitution, ask what the people who wrote it – or wrote the amendments – understood the provisions to mean. VS. To interpret the Constitution look to the language in the document and the understanding of the framers, but do so in light of the long history of common law which preceded and followed it. That gives you a mechanism for applying the document to situations which could never have been envisioned when the Constitution was written. Public v. Private Action- Companies and individuals can’t deprive you of your Constitutional rights, only a govt can. Commerce Clause- “The Congress shall have Power ……… To regulate Commerce with foreign Nations, and among the several States …….”Article 1, Section 8 Affordable Healthcare Act- Nat. Fed. of Independent Businesses v. Sibelius (2012)/Focus: The individual mandate – a requirement...
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...Whether assumption of federal criminal jurisdiction will make the tribal community safer, whether or not granting the request will increase the law enforcement, judicial and/or corrections resources available to the tribe. Information from federal agencies, state/local law enforcement and tribal consultation. Who requests retrocession of Public Law 280 and who requests assumption of federal criminal jurisdiction under TLOA? Why is a request for assumption of federal criminal jurisdiction beneficial to a tribe in a Public Law 280 state where the state does not want to give up any jurisdiction? Only the state can request retrocession and the tribe can ask for assumption of federal jurisdiction – beneficial because the tribe can have it granted whether the state agrees with it or not. Indian Civil Rights Act 1968 was amended in 1986 to increase the sentencing and fine limits on tribal courts. What were...
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...STUDIES, FACULTY OF LAW SEMINAR PAPER ON COMPARATIVE CONSTITUTIONAL LAW COURSE TITLE: A COMPARATIVE ANALYSIS OF THE PROVISIONS OF FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY (CHAPTER 2) 1999 CONSTITUTION OF NIGERIA AND THE 1992 CONSTITUTION OF GHANA. PRESENTED BY: IWEBAFA GIFT ODIBO MAY 2014 I. Introduction Chapter two of the Nigerian Constitution of 1999 (as Amended) and Chapter Six of the Ghanian Constitution of 1992, both made provisions for the Fundamental Objectives and Directive Principles of State Policy, which are intended to guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties, and other bodies and persons in applying or interpreting the Constitution or any other laws.[1] The directive principles cover political objectives, economic objectives, social objectives, educational objectives, cultural objectives, international relations, and duties of citizens. The main issue that relates to the directive principles is their constitutional status; whether they are justiciable or not justiciable and this is applicable to both Ghana and Nigeria. A policy is a guide to the achievement of an objective. By constitutional policy, we mean the principles and objectives set out in the Constitution of the Federal Republic of Nigeria of 1999 (CFRN 1999) which act as a guide to achieving governmental objectives. A government without a guide is like an aircraft without a compass...
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...2424A STATUTORY INTERPRETATION: THE MEANING OF MEANING RMIT University, Melbourne School of Accounting and Law, Symposium on Statutory Interpretation Chapter House, St. Paul‟s Cathedral 13 August 2009. The Hon. Michael Kirby AC CMG RMIT UNIVERSITY, MELBOURNE SCHOOL OF ACCOUNTING AND LAW SYMPOSIUM ON STATUTORY INTERPRETATION CHAPTER HOUSE, ST. PAUL’S CATHEDRAL 13 AUGUST 2009 STATUTORY INTERPRETATION: THE MEANING OF MEANING The Hon. Michael Kirby AC CMG THE MAIN TASK OF MODERN LAWYERS Although we still describe ours as a common law system (to distinguish it from the countries of the civil law tradition), the label is now looking somewhat dubious. The distinctive feature of contemporary Australian law derives from the overwhelming importance of the laws made by or under parliament. I refer to statutes, regulations, by-laws, executive instruments, rules of court and all the other ways in which the written law now manifests itself. In my youth, the statutory law of the State of New South Wales was collected in twelve manageable volumes, supplemented by a threevolume index1. These books included many important statutes commencing in the colonial period, some of which, like the Crimes Act 1900 (NSW), still apply today. Past Justice of the High Court of Australia (1996-2009). President of the Institute of Arbitrators & Mediators Australia 1 R.J. McKay (ed.), The Public Acts of New South Wales 1924-1957, Vols.1-15, Law Book Co. Sydney 1958. 1 The volumes...
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