In comparison to parallel economically advanced democracies, the United States in particular is prone to uniquely adversarial and legalistic means of policy formulation and implementation, constructed by the process of judicial review. With the ratification of the U.S. Constitution in 1787, common law, or using precedent as the basis of judicial policy making, has been a staple for American society. This British adaptation to U.S. lawmaking has evolved into an interest-driven persuasion tactic as opposed to statutory interpretation and democratic mechanisms. Americans frequently rely on legal threats and lawsuits, in which the laws that pertain, generally, are more complicated and prescriptive. In idealistic democratic models, the relative institutional relationships among the legislature, the executive state, and the courts. Yet, it is a false truth of the current U.S. governing system, in which author Robert Kagan theorizes is due to the American way of law known as adversarial legalism. Although a thesis in this form is hardly a new discussion, Kagan’s treatment of it ranges throughout the political spectrum, targeting both the atmosphere surrounding policy making as well as its political actors within. Kagan provides a chief explanation for adversarial legalism as a mode of policy making, implementation, and dispute resolution characterized by frequent resort to highly adversarial legal interests, that conclusively infiltrate American democracy and ironically isolate branches of government, discrediting its merit of freedom and equality. Through this examination of politics, it is apparent that the system is at fault, perhaps inevitably, to the continuously growing problem of fragmented government that align with various other...
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... and reform. Yet, it is in my opinion that his article is of such significance because of its logistic explanation of such frequent and high volume Court case reforms. Author Mark Graber in The Lessons of Dred Scott, claimed that decision rendered by Supreme Court Chief Justice Taney in 1865 was unavoidable, simply because the decision was consistent with the times of the era (Graber, p.7). This conditionality of politics concerning political environments is evident in Kagan as well, providing both political scientists and students alike with the knowledge that Courts do and often will act not only for the majority, but also more explicitly towards the persuasion tactics of every outlet of both private and public political participation, which provides a necessary and comprehensive evaluation of the American way of law unknown to many, including myself until today.
The court case of Marbury v. Madison (1803) is credited and widely believed to be the creator of the “unprecedented” concept of Judicial Review. John Marshall, the Supreme Court Justice at the time, is lionized as a pioneer of Constitutional justice, but, in the past, was never really recognized as so. What needs to be clarified is that nothing in history is truly unprecedented, and Marbury v. Madison’s modern glorification is merely a product of years of disagreements on the validity of judicial review, fueled by court cases like Eakin v. Raub; John Marshall was also never really recognized in the past as the creator of judicial review, as shown in the case of Dred Scott v. Sanford.
In Supreme Court cases, it is difficult to determine which side the judges will rule because the cases are often very controversial. The Constitution and one’s rights need to be protected, and if it goes against the Constitution, the consequences will not be agreed upon. As a result, in Holmes’ analysis, it ultimately brings to light the importance of results often being black and white, but they truly aren’t. The public still has a long way to go in not only understanding the law, but also the reasons why judges make these different decisions. But the most important thing is that the U.S. Constitution is always followed.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
In America’s time there have been many great men who have spent their lives creating this great country. Men such as George Washington, John Adams, and Thomas Jefferson fit these roles. They are deemed America’s “founding fathers” and laid the support for the most powerful country in history. However, one more man deserves his name to be etched into this list. His name was John Marshall, who decided case after case during his role as Chief Justice that has left an everlasting mark on today’s judiciary, and even society itself. Through Cases such as Marbury v. Madison (1803) and McCulloch v. Maryland (1819) he established the Judicial Branch as an independent power. One case in particular, named Gibbons v. Ogden (1824), displayed his intuitive ability to maintain a balance of power, suppress rising sectionalism, and unite the states under the Federal Government.
The purpose of this paper is to discuss how Chief Justice John Marshall affected the American Judicial System. The reader will therefore first find a brief biography of John Marshall. Then the paper will explain in detail the origins of the Judicial Power to subsequently...
Based on the pronouncements of the court on May 17, 1954, everyone in the courtroom was shocked after it became clear that Marshall was right in his claim about the unconstitutionality of legal segregation in American public schools. Essentially, this court’s decision became a most important turning point in U.S. history because the desegregation case had been won by an African American attorney. Additionally, this became a landmark decision in the sense that it played a big role in the crumbling of the discriminatory laws against African Americans and people of color in major socioeconomic areas, such as employment, education, and housing (Stinson, 2008). Ultimately, Marshall’s legal achievements contributed significantly to the criminal justice field.
The United States of America is one of the most powerful nation-states in the world today. The framers of the American Constitution spent a great deal of time and effort into making sure this power wasn’t too centralized in one aspect of the government. They created three branches of government to help maintain a checks and balance system. In this paper I will discuss these three branches, the legislative, the executive, and the judicial, for both the state and federal level.
Columbia Law Review, 104, 1-20. doi:10.2307/4099343. Reynolds, S. (2009). The 'Standard'. An interview with Justice Ruth Bader Ginsburg.
Dahl conducted his study on the decision making of the Supreme Court and whether the Court exercised its power of judicial review to counter majority will and protect minority rights or if it used the power to ratify the further preferences of the dominant “national law making majority.” From the results of Dahl’s study he builds numerous arguments throughout his article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker”. In what follows, I will thoroughly point out and explain each of the arguments that Dahl constructs in his article.
The evolution of power gained by the Federal government can be seen in the McCuloch versus Maryland (1819) case. This case des...
The Supreme Court was known for some of the most notorious decisions made in history, many in which included the cases, Marbury v. Madison, Scott v. Sandford, and United States v. Cruikshank. Despite these cases, the court did turn around and change their perspective and helped minorities achieve their civil rights. In 1915, the case of Guinn and Beal v. United States helped African Americans reassure their right to vote. In this case the Supreme Court considered the grandfather clause to be unconstitutional. The grandfather clause was a mechanism t...
The political culture that defines American politics shows that despite this compromise, America is still very much a democratic society. The very history of the country, a major contributor to the evolution of its political culture, shows a legacy of democracy that reaches from the Declaration of Independence through over two hundred years to today’s society. The formation of the country as a reaction to the tyrannical rule of a monarchy marks the first unique feature of America’s democratic political culture. It was this reactionary mindset that greatly affected many of the decisions over how to set up the new governmental system. A fear of simply creating a new, but just as tyrannic... ...
Kimble for reason’s that can only be speculated (Nation, R. F. 2004, pg.216 &217). The defense that George W. Kimble, and his lawyer brought to the court was the Supreme Court decision of Dred Scott, which said that African-American’s were not citizens of the United States, and because of this could not bring a lawsuit to the federal courts (Nation, R. F. 2004, pg.222). The use of the Dred Scott decision by George W. Kimble, and the willingness of the Supreme Courts to approve such as law, shows the bias that the courts in America had when dealing with a case brought by a African-American against a Caucasian, and the inequality that existed during the mid to late 1800’s in the criminal justice system (Nation, R. F. 2004,
Robert N. Clinton, ‘Judges Must Make Law: A Realistic Appraisal of the Judicial Function in a Democratic Society’ [1981-1982] 67 Iowa L. Rev. 711 http://heinonline.org/HOL/Page?handle=hein.journals/ilr67&div=38&g_sent=1&collection=journals accessed 12 February 2012
Legal realism defines legal rights and duties as whatever the court says they are. Out of all the legal theories we have examined in class, I personally believe that this is the one that best exemplifies the purpose of law and would best suit and benefit society. The Dimensions of Law textbook defines legal realism as “the school of legal philosophy that examines law in a realistic rather than theoretical fashion; the belief that law is determined by what actually happens in court as judges interpret and apply law.”