The document provides an acknowledgment, statement by the candidate, and certificate for a research paper submitted by Swapna Shil to Amity Law School for an LLM degree. It acknowledges the support received from faculty members, friends, and various writers whose work helped complete the dissertation. The statement declares that the paper is Swapna Shil's original work and does not infringe on any copyrights. The certificate verifies that the paper titled "Judicial Review" is Swapna Shil's independent and original research worthy of an LLM degree from Amity Law School.
The document provides an overview of the US judiciary system. It describes the structure of the federal court system including district courts, courts of appeal, and the Supreme Court. It discusses the concept of judicial review established in Marbury v Madison and debates around judicial activism. It also examines ways the courts have influenced politics and been checked by other branches of government.
This document summarizes a book titled "The Politics of Judicial Independence" which examines fundamental questions about the independence of the judiciary and the legitimate political influences on courts. It discusses several essays in the book that address issues related to judicial independence such as conflicts between courts and other branches of government, criticism of judicial actions from political actors, and how to properly define and understand judicial independence. The document analyzes three essays in particular that focus on congressional checks on the Supreme Court, the inherent political connections of courts despite their independence, and how the quality of legal reasoning in court decisions influences political reactions.
Revisiting the interaction of the trilogy of sources of international lawAlexander Decker
This document discusses the interaction between the three primary sources of international law: treaties, customary international law, and general principles of law. It begins by defining sources of international law and distinguishing between formal and material sources. It then examines treaties, noting that they are binding agreements between states that create international legal obligations. However, it acknowledges that customary rules reflected in treaties can also become binding as customary international law on states not party to the treaty. The document also discusses customary international law and general principles, highlighting consent as a connecting factor between the three sources.
The document discusses different models for understanding Supreme Court decision-making: the attitudinal model, legal model, and societal model. The attitudinal model suggests personal preferences and values drive decisions, while the legal model emphasizes legal procedures and precedent. The societal model views justices as influenced by the broader culture. The document also examines concepts like judicial review, collective action problems in opinion-writing, and factors that constrain the Court like other branches of government.
LIMITS OF JUDICIAL LAWMAKING AND PROSPECTIVE OVERRULING Dhruv Tripathi
This document provides a review of an article on the limits of judicial lawmaking and prospective overruling. It discusses how courts increasingly take on a lawmaking role, as the Blackstonian view of courts merely declaring existing law has diminished. It analyzes several cases where courts established new legal principles or overturned prior doctrines. While courts are not suited to implement institutional reforms, they do initiate basic legal changes through reinterpreting constitutions or innovative rulings that pave the way for later legislative action. The conclusion examines whether courts should intrude to change unjust principles or remain passive, noting there is no simple answer.
1. The document discusses key concepts of the US constitutional system including judicial review, federalism, and the relationship between national and state governments.
2. It analyzes landmark Supreme Court cases like Marbury v. Madison and McCulloch v. Maryland that established the power of judicial review and evolved understandings of federalism.
3. The document also examines how the Court addressed issues of slavery through cases involving the Fugitive Slave Clause and states' personal liberty laws.
The document summarizes key concepts about the evolution and types of law. It describes how law has evolved from individuals seeking revenge to organized court systems. It distinguishes between common law based on customs and positive law dictated from above. It also outlines the three levels of government in the US and how power is allocated between the federal and state governments and among the three branches of government. Additionally, it defines the different sources of law including constitutional, statutory, case, and administrative law and how conflicts between these different laws are resolved.
The document provides an acknowledgment, statement by the candidate, and certificate for a research paper submitted by Swapna Shil to Amity Law School for an LLM degree. It acknowledges the support received from faculty members, friends, and various writers whose work helped complete the dissertation. The statement declares that the paper is Swapna Shil's original work and does not infringe on any copyrights. The certificate verifies that the paper titled "Judicial Review" is Swapna Shil's independent and original research worthy of an LLM degree from Amity Law School.
The document provides an overview of the US judiciary system. It describes the structure of the federal court system including district courts, courts of appeal, and the Supreme Court. It discusses the concept of judicial review established in Marbury v Madison and debates around judicial activism. It also examines ways the courts have influenced politics and been checked by other branches of government.
This document summarizes a book titled "The Politics of Judicial Independence" which examines fundamental questions about the independence of the judiciary and the legitimate political influences on courts. It discusses several essays in the book that address issues related to judicial independence such as conflicts between courts and other branches of government, criticism of judicial actions from political actors, and how to properly define and understand judicial independence. The document analyzes three essays in particular that focus on congressional checks on the Supreme Court, the inherent political connections of courts despite their independence, and how the quality of legal reasoning in court decisions influences political reactions.
Revisiting the interaction of the trilogy of sources of international lawAlexander Decker
This document discusses the interaction between the three primary sources of international law: treaties, customary international law, and general principles of law. It begins by defining sources of international law and distinguishing between formal and material sources. It then examines treaties, noting that they are binding agreements between states that create international legal obligations. However, it acknowledges that customary rules reflected in treaties can also become binding as customary international law on states not party to the treaty. The document also discusses customary international law and general principles, highlighting consent as a connecting factor between the three sources.
The document discusses different models for understanding Supreme Court decision-making: the attitudinal model, legal model, and societal model. The attitudinal model suggests personal preferences and values drive decisions, while the legal model emphasizes legal procedures and precedent. The societal model views justices as influenced by the broader culture. The document also examines concepts like judicial review, collective action problems in opinion-writing, and factors that constrain the Court like other branches of government.
LIMITS OF JUDICIAL LAWMAKING AND PROSPECTIVE OVERRULING Dhruv Tripathi
This document provides a review of an article on the limits of judicial lawmaking and prospective overruling. It discusses how courts increasingly take on a lawmaking role, as the Blackstonian view of courts merely declaring existing law has diminished. It analyzes several cases where courts established new legal principles or overturned prior doctrines. While courts are not suited to implement institutional reforms, they do initiate basic legal changes through reinterpreting constitutions or innovative rulings that pave the way for later legislative action. The conclusion examines whether courts should intrude to change unjust principles or remain passive, noting there is no simple answer.
1. The document discusses key concepts of the US constitutional system including judicial review, federalism, and the relationship between national and state governments.
2. It analyzes landmark Supreme Court cases like Marbury v. Madison and McCulloch v. Maryland that established the power of judicial review and evolved understandings of federalism.
3. The document also examines how the Court addressed issues of slavery through cases involving the Fugitive Slave Clause and states' personal liberty laws.
The document summarizes key concepts about the evolution and types of law. It describes how law has evolved from individuals seeking revenge to organized court systems. It distinguishes between common law based on customs and positive law dictated from above. It also outlines the three levels of government in the US and how power is allocated between the federal and state governments and among the three branches of government. Additionally, it defines the different sources of law including constitutional, statutory, case, and administrative law and how conflicts between these different laws are resolved.
The document discusses several key aspects of the American judicial system, including the importance of judicial independence, the common law tradition, and sources of American law such as statutes, administrative law, and case law. It also provides an overview of the federal court system, describing the different types of federal courts and their roles. The Supreme Court's process for deciding cases and issuing opinions is outlined. The selection of federal judges and debates around judicial activism vs. restraint are also summarized.
This document discusses Dworkin's theory of adjudication and precedent. It makes three key points:
1) Dworkin argues that in hard cases, judges should weigh competing rights and principles to determine the uniquely correct decision, rather than exercising discretion. However, this view struggles to explain the doctrine of precedent, which sometimes requires following prior incorrect decisions.
2) For precedent to have a role in Dworkin's theory, past judicial decisions must themselves create new legal rights or entitlements. However, this undermines Dworkin's argument that judges do not make law in an undemocratic way.
3) Even if past decisions create new entitlements, this only explains why they should be considered
This document discusses different schools of legal thought and approaches to jurisprudence, including natural law, positivism, historical, and legal realism. It also outlines the common law tradition and legal system in the United States, including the roles of courts of law and equity, precedents, and methods of legal reasoning such as deductive, linear, and reasoning by analogy. Additionally, it defines key classifications of law such as civil vs. criminal and substantive vs. procedural, and how to find primary sources of law including statutes, regulations, and cases.
The document discusses the British and American legal systems, including constitutional law and common law. It provides definitions and comparisons of civil law versus common law legal traditions. It also outlines some key aspects of the British constitution, such as it being an unwritten constitution based on statutes, case law, customs and conventions. Parliament is supreme in Britain and it upholds the principles of the rule of law and parliamentary supremacy.
The document discusses the American Realism movement in legal theory. Some key points:
- American Realism studies law as it exists in practice and its real-world effects, rejecting traditional legal concepts. It views law as judges decide cases rather than enacted laws.
- Major figures were John Chipman Gray and Oliver Wendell Holmes. Holmes defined law as "predictions of what courts will do" and emphasized extra-legal factors in decisions.
- American Realism shares the view with legal positivism that law is separate from moral ideals. Unlike sociological approaches, it focuses on scientific observation of law's functioning rather than its ends. It also rejects the natural law view that laws come from inherent principles.
The document analyzes approaches to constitutional interpretation, specifically originalism versus a living document approach. It summarizes the key tenets of each view, including that originalists believe the constitution should be interpreted based on its original public meaning, while living document theorists argue it can evolve with changing times. The document also notes criticisms of both views, such as originalists making exceptions not supported by the original text, and living document views potentially undermining founding principles of liberty. Overall it argues the originalist approach grounded in the constitution's text and history best protects individual liberties.
Judge Posner provides a concise primer on the interpretation of legislation. He discusses Aristotle's view of "imaginative reconstruction" as the method of interpreting statutes in a way that achieves justice rather than literal meaning. Posner also explains how the separation of powers model in the US constitution, which aims to prevent any branch from becoming dominant, influenced the role of courts in interpreting statutes. Finally, he presents his model of the legislative process, which assumes rational behavior from political actors, and differentiates between direct and representative democracies.
Edgar Bodenheimer identifies 5 situations that judges may face when adjudicating cases: 1) Applying clear precedent or statute, 2) Reasoning by analogy where no precedent exists, 3) Considering public policy and social factors, 4) Weighing competing interests at the border of discovery and creation, 5) Filling gaps where no guidance exists. In each situation, the judge's discretion varies from none to creating new law. Bodenheimer argues adjudication involves both discovering and creating law depending on the circumstances. In modern times, legislation and regulation have left judges with less scope to make new law.
Precedents are previous court cases that are used to guide future legal decisions. There are four types of precedents: 1) Authoritative precedents that judges must follow, including absolute precedents they must always follow and conditional precedents they can disregard in special cases; 2) Convincing precedents that judges can choose to follow as they see fit; 3) Original precedents that establish new legal rules; and 4) Declaratory precedents that simply apply existing rules. Precedents provide consistency, efficiency, and help adapt laws to changing social conditions.
Proclem and cencern in comparision of constitution gagan deep
Comparative constitutional law analyzes the differences between countries' constitutions. However, there are several challenges. First, it is difficult to identify "best practices" since concepts like freedom can have different meanings in different legal systems. Second, constitutions change over time through amendments or new interpretations of public opinion, making static comparisons incomplete. Third, precisely defining the subject is complex given the many diverse constitutions and levels of success.
Difference between legal logic and legal rhetoricgagan deep
This document discusses the difference between legal logic and legal rhetoric. It states that while legal argumentation can be modeled with logic, logic alone is not enough, and a rhetorical component is also needed. Legal logic refers to using syllogistic logic and analogy to derive conclusions from premises. However, legal reasoning involves more than just logic - it is a process of balancing claims and exercising judgment. Legal rhetoric refers to using persuasive language aimed at influencing or impressing others, as is needed in many legal activities like rulemaking, decision-making, and negotiations. Both logical and rhetorical aspects are important components of legal argumentation and reasoning.
In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."[1] Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and Delegated legislation (in U.K. parlance) or regulatory law (in U.S. parlance) (regulations promulgated by executive branch agencies).
Doctrine of Precedent - India, U.S and U.KIshaan Dang
The document discusses the doctrine of precedent, or stare decisis, in the Indian legal system and how it is similar to the British common law system. It outlines some key principles:
a) Lower courts are bound by decisions of higher courts in their jurisdiction, but decisions of other higher courts are only persuasive.
b) In cases of conflict between decisions of equal benches of the same high court, the later decision should be followed, though the rationale is also considered.
c) Larger benches of a high court are binding on smaller benches and coordinate benches.
The Supreme Court has the power and duty to interpret laws and decide what the law means. If two laws conflict, the Supreme Court must determine how each should be applied. The Supreme Court is the highest court and its rulings are final. It has the power to declare laws and acts unconstitutional.
The document discusses the concept of justiciability and the limits of judicial power. It provides examples from Philippine Supreme Court cases where the court had to determine if certain issues fell within its power to rule on (justiciability) or not. The court found that it has the authority to determine its own scope of power and whether the other branches of government are acting within constitutional limits. For an issue to be justiciable, it must involve constitutional standards that are subject to judicial scrutiny rather than purely matters of policy.
God and the rule of law From a biblical prospectiveDan Wooldridge
The foundation of our rule of law, biblical perspective. How are enjoyment of the rule of law comes from Christianity and the King James Bible. Civil government is grounded in the scriptures. The state must recognise that it is under God's law. Our rule of law establishes the rights and freedoms of every member of the nation.
HLA Hart's concept of law views law as a social phenomenon that can only be understood by examining the social practices of a community. He distinguishes between primary rules that impose obligations and secondary rules that confer powers like adjudication and legislation. For primary rules to become a legal system, they must be unified with secondary rules. Hart's key insight is that for a rule to be a legal rule, it must have an "internal aspect" where members of society view it as a standard to follow and use normative language to criticize deviations from it. This addresses shortcomings in Austin's concept of law based merely on habits of obedience.
Legal Realism was a reaction against a formalistic view of law that saw judges as simply applying precise rules to facts. Legal Realists argued that law is what courts actually do rather than predefined rules. They pointed to cases like Bailey v. Bailey in Ohio where the court ignored the plain meaning of a statute to count spousal support as income. While aiming to take a pragmatic view, Legal Realism was criticized for giving a distorted view of judicial reasoning and failing to distinguish between a judge's role and other influences on decisions.
Racial Diversity--High School students did research, prepared a report, and summarized their work at the Salina Public Library's Community Learning Center. Their talk is entitled "The Eisenhower Roots of Judicial Diversity: Race and Gender," sponsored by the Salina League of Women Voters.
This document summarizes diversity in the judiciaries of the US, UK, and Canada based on a student paper. It finds that while all three countries advocate for diversity, it has not been fully achieved. The US and UK judiciaries remain predominantly white and male. Canada has better regional representation but lacks diversity in other areas. Barriers to diversity include a lack of confidence from women and minorities that they could be appointed, as well as potential hostility from interview panels. The document concludes that achieving diversity through the appointment of women and minorities leads to greater equality and improved decision making.
The Constitutional Reform Act of 2005 established several changes to the process of appointing judges in the UK:
- It transferred the responsibility for selecting judges from the Lord Chancellor to the independent Judicial Appointments Commission (JAC).
- The JAC aims to select candidates based solely on merit through fair and open competition from a diverse range of eligible candidates.
- The current Lord Chancellor, Jack Straw, is unique in that he is the first non-peer to hold the position. However, his role in judicial appointments is now limited to either accepting or rejecting candidates recommended by the JAC.
The document discusses several key aspects of the American judicial system, including the importance of judicial independence, the common law tradition, and sources of American law such as statutes, administrative law, and case law. It also provides an overview of the federal court system, describing the different types of federal courts and their roles. The Supreme Court's process for deciding cases and issuing opinions is outlined. The selection of federal judges and debates around judicial activism vs. restraint are also summarized.
This document discusses Dworkin's theory of adjudication and precedent. It makes three key points:
1) Dworkin argues that in hard cases, judges should weigh competing rights and principles to determine the uniquely correct decision, rather than exercising discretion. However, this view struggles to explain the doctrine of precedent, which sometimes requires following prior incorrect decisions.
2) For precedent to have a role in Dworkin's theory, past judicial decisions must themselves create new legal rights or entitlements. However, this undermines Dworkin's argument that judges do not make law in an undemocratic way.
3) Even if past decisions create new entitlements, this only explains why they should be considered
This document discusses different schools of legal thought and approaches to jurisprudence, including natural law, positivism, historical, and legal realism. It also outlines the common law tradition and legal system in the United States, including the roles of courts of law and equity, precedents, and methods of legal reasoning such as deductive, linear, and reasoning by analogy. Additionally, it defines key classifications of law such as civil vs. criminal and substantive vs. procedural, and how to find primary sources of law including statutes, regulations, and cases.
The document discusses the British and American legal systems, including constitutional law and common law. It provides definitions and comparisons of civil law versus common law legal traditions. It also outlines some key aspects of the British constitution, such as it being an unwritten constitution based on statutes, case law, customs and conventions. Parliament is supreme in Britain and it upholds the principles of the rule of law and parliamentary supremacy.
The document discusses the American Realism movement in legal theory. Some key points:
- American Realism studies law as it exists in practice and its real-world effects, rejecting traditional legal concepts. It views law as judges decide cases rather than enacted laws.
- Major figures were John Chipman Gray and Oliver Wendell Holmes. Holmes defined law as "predictions of what courts will do" and emphasized extra-legal factors in decisions.
- American Realism shares the view with legal positivism that law is separate from moral ideals. Unlike sociological approaches, it focuses on scientific observation of law's functioning rather than its ends. It also rejects the natural law view that laws come from inherent principles.
The document analyzes approaches to constitutional interpretation, specifically originalism versus a living document approach. It summarizes the key tenets of each view, including that originalists believe the constitution should be interpreted based on its original public meaning, while living document theorists argue it can evolve with changing times. The document also notes criticisms of both views, such as originalists making exceptions not supported by the original text, and living document views potentially undermining founding principles of liberty. Overall it argues the originalist approach grounded in the constitution's text and history best protects individual liberties.
Judge Posner provides a concise primer on the interpretation of legislation. He discusses Aristotle's view of "imaginative reconstruction" as the method of interpreting statutes in a way that achieves justice rather than literal meaning. Posner also explains how the separation of powers model in the US constitution, which aims to prevent any branch from becoming dominant, influenced the role of courts in interpreting statutes. Finally, he presents his model of the legislative process, which assumes rational behavior from political actors, and differentiates between direct and representative democracies.
Edgar Bodenheimer identifies 5 situations that judges may face when adjudicating cases: 1) Applying clear precedent or statute, 2) Reasoning by analogy where no precedent exists, 3) Considering public policy and social factors, 4) Weighing competing interests at the border of discovery and creation, 5) Filling gaps where no guidance exists. In each situation, the judge's discretion varies from none to creating new law. Bodenheimer argues adjudication involves both discovering and creating law depending on the circumstances. In modern times, legislation and regulation have left judges with less scope to make new law.
Precedents are previous court cases that are used to guide future legal decisions. There are four types of precedents: 1) Authoritative precedents that judges must follow, including absolute precedents they must always follow and conditional precedents they can disregard in special cases; 2) Convincing precedents that judges can choose to follow as they see fit; 3) Original precedents that establish new legal rules; and 4) Declaratory precedents that simply apply existing rules. Precedents provide consistency, efficiency, and help adapt laws to changing social conditions.
Proclem and cencern in comparision of constitution gagan deep
Comparative constitutional law analyzes the differences between countries' constitutions. However, there are several challenges. First, it is difficult to identify "best practices" since concepts like freedom can have different meanings in different legal systems. Second, constitutions change over time through amendments or new interpretations of public opinion, making static comparisons incomplete. Third, precisely defining the subject is complex given the many diverse constitutions and levels of success.
Difference between legal logic and legal rhetoricgagan deep
This document discusses the difference between legal logic and legal rhetoric. It states that while legal argumentation can be modeled with logic, logic alone is not enough, and a rhetorical component is also needed. Legal logic refers to using syllogistic logic and analogy to derive conclusions from premises. However, legal reasoning involves more than just logic - it is a process of balancing claims and exercising judgment. Legal rhetoric refers to using persuasive language aimed at influencing or impressing others, as is needed in many legal activities like rulemaking, decision-making, and negotiations. Both logical and rhetorical aspects are important components of legal argumentation and reasoning.
In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."[1] Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and Delegated legislation (in U.K. parlance) or regulatory law (in U.S. parlance) (regulations promulgated by executive branch agencies).
Doctrine of Precedent - India, U.S and U.KIshaan Dang
The document discusses the doctrine of precedent, or stare decisis, in the Indian legal system and how it is similar to the British common law system. It outlines some key principles:
a) Lower courts are bound by decisions of higher courts in their jurisdiction, but decisions of other higher courts are only persuasive.
b) In cases of conflict between decisions of equal benches of the same high court, the later decision should be followed, though the rationale is also considered.
c) Larger benches of a high court are binding on smaller benches and coordinate benches.
The Supreme Court has the power and duty to interpret laws and decide what the law means. If two laws conflict, the Supreme Court must determine how each should be applied. The Supreme Court is the highest court and its rulings are final. It has the power to declare laws and acts unconstitutional.
The document discusses the concept of justiciability and the limits of judicial power. It provides examples from Philippine Supreme Court cases where the court had to determine if certain issues fell within its power to rule on (justiciability) or not. The court found that it has the authority to determine its own scope of power and whether the other branches of government are acting within constitutional limits. For an issue to be justiciable, it must involve constitutional standards that are subject to judicial scrutiny rather than purely matters of policy.
God and the rule of law From a biblical prospectiveDan Wooldridge
The foundation of our rule of law, biblical perspective. How are enjoyment of the rule of law comes from Christianity and the King James Bible. Civil government is grounded in the scriptures. The state must recognise that it is under God's law. Our rule of law establishes the rights and freedoms of every member of the nation.
HLA Hart's concept of law views law as a social phenomenon that can only be understood by examining the social practices of a community. He distinguishes between primary rules that impose obligations and secondary rules that confer powers like adjudication and legislation. For primary rules to become a legal system, they must be unified with secondary rules. Hart's key insight is that for a rule to be a legal rule, it must have an "internal aspect" where members of society view it as a standard to follow and use normative language to criticize deviations from it. This addresses shortcomings in Austin's concept of law based merely on habits of obedience.
Legal Realism was a reaction against a formalistic view of law that saw judges as simply applying precise rules to facts. Legal Realists argued that law is what courts actually do rather than predefined rules. They pointed to cases like Bailey v. Bailey in Ohio where the court ignored the plain meaning of a statute to count spousal support as income. While aiming to take a pragmatic view, Legal Realism was criticized for giving a distorted view of judicial reasoning and failing to distinguish between a judge's role and other influences on decisions.
Racial Diversity--High School students did research, prepared a report, and summarized their work at the Salina Public Library's Community Learning Center. Their talk is entitled "The Eisenhower Roots of Judicial Diversity: Race and Gender," sponsored by the Salina League of Women Voters.
This document summarizes diversity in the judiciaries of the US, UK, and Canada based on a student paper. It finds that while all three countries advocate for diversity, it has not been fully achieved. The US and UK judiciaries remain predominantly white and male. Canada has better regional representation but lacks diversity in other areas. Barriers to diversity include a lack of confidence from women and minorities that they could be appointed, as well as potential hostility from interview panels. The document concludes that achieving diversity through the appointment of women and minorities leads to greater equality and improved decision making.
The Constitutional Reform Act of 2005 established several changes to the process of appointing judges in the UK:
- It transferred the responsibility for selecting judges from the Lord Chancellor to the independent Judicial Appointments Commission (JAC).
- The JAC aims to select candidates based solely on merit through fair and open competition from a diverse range of eligible candidates.
- The current Lord Chancellor, Jack Straw, is unique in that he is the first non-peer to hold the position. However, his role in judicial appointments is now limited to either accepting or rejecting candidates recommended by the JAC.
The document summarizes the key details and outcome of the 1893 Harvey v Facey case regarding whether a contract for the sale of property was formed through an exchange of telegrams. It discusses the questions posed in the initial telegram, the responses provided, and the various courts' interpretations. Ultimately, the UK Judicial Committee of the Privy Council, led by Lord Morris, determined that no valid contract existed because the response telegram only addressed the question of price, not an agreement to sell.
The document also summarizes a hypothetical case between Moira and Mr. Biggs regarding the construction of a conservancy. It analyzes whether their exchange of letters formed a valid contract in light of the 1952 Mathieson Gee v Qu
This document defines and discusses hypotheses. It begins by explaining that a hypothesis is an assumption or proposed explanation made on limited information to guide an investigation. The document then provides several definitions of a hypothesis from different authors. It outlines the key characteristics of a good hypothesis, including being clear, precise, testable, and relating to the research problem. The document also differentiates between different types of hypotheses, such as universal, existential, null, alternate, directional, and non-directional hypotheses. It concludes by discussing how research hypotheses are derived from existing theories or observations.
Dinobandhu Ghosh is seeking a challenging position that provides professional growth. He has over 5 years of experience in medical transcription and sales. He holds a B.A. in Bengali, Political Science and History from B.U. Ghosh has also completed courses in homeopathy pharmacy, computer skills, and healthcare information technology to supplement his educational qualifications.
La Unión Europea ha propuesto un nuevo paquete de sanciones contra Rusia que incluye un embargo al petróleo. El embargo prohibiría la importación de petróleo ruso a la UE y también prohibiría a los buques europeos transportar petróleo ruso a otros lugares. Sin embargo, Hungría se opone al embargo al petróleo, lo que podría retrasar la aprobación del paquete de sanciones de la UE.
Europe Iconography - Laboratorio del cittadinoSimone Petrucci
Europa is a figure from Greek mythology who gave her name to the continent of Europe. She was abducted by Zeus, who took the form of a bull to seduce her. The myth of Europa and the bull has been depicted in ancient art and literature and continues to be a symbol of the movement of civilization from East to West.
Cost efficient Quality Management in Microbreweries can be achieved with basic, inexpensive instruments and measurements.
Many microbrewers face challenges with lack of time, money, and technical/QA knowledge. Quality is important to meet customer needs and expectations. Basic but useful measurements include original gravity, pH, alcohol content, color, bitterness, microbiology, raw materials, packaging quality, and customer satisfaction.
Simple logs of raw materials, mashing, fermentation and samples can provide quality control. Basic instruments under €2000 like refractometers, saccharometers, pH meters and microscopes can measure key parameters. Taste testing is also a powerful diagnostic tool. With limited investment, microbrewers can manage quality and consistency.
Gridtech Constructions Pvt. Ltd. is a contracting firm that provides civil, interior, and industrial contracting solutions. It was incorporated in 1997 and has over 30 years of experience in construction. The company specializes in hospitality, commercial, retail, residential, industrial, and renovation projects. It prides itself on quality, cost and time management. The corporate profile document provides information on Gridtech's vision, board of directors, infrastructure, statutory compliances, banking partners, contracting services, credentials and experience in various projects.
Trong hình vuông ABCD và nữa đường tròn đường kính AD và vẽ cung AC mà tâm là D. Nối D với điểm P bất kỳ trên cung AC, DP cắt nữa đường tròn đường kính AD ở K. Chứng minh PK bằng khoảng cách từ P đến AB.
Bài tập trắc nghiệm chương 7: Hạt nhân nguyên tử, do gia sư vật lý sư tầm gồm các chủ đề về cấu tạo nguyên tử, sự phóng xạ, phản ứng hạt nhân, năng lượng hạt nhân, sự phân hạch, phản ứng nhiệt hạch.
Tìm gia sư vật lý, liên hệ: 0936 128 126
There are many types of judges in the UK court system, each with different roles and levels of authority. Judges preside over civil, criminal, and family court cases. The qualifications and training required varies by position, from legal qualifications for higher court judges to no legal background needed for magistrates. In 2005, the Constitutional Reform Act established an independent Supreme Court and made the judiciary independent from the government. It created a more open and transparent process for appointing judges. However, the judiciary remains predominantly older, white, upper-class males and efforts are being made to increase diversity.
This document is a thesis analyzing the effect of state judicial selection systems on the ethnic, racial, and gender diversity of state court judges. It utilizes 2010 data on state judges and lawyers to examine diversity at the trial, appellate, and supreme court levels. Regression models are used to analyze the relationship between selection system and diversity while controlling for the presence of female and minority lawyers. The results do not find clear or consistent relationships between selection system and diversity. Previous literature on this topic has also produced inconsistent results. The unclear findings of this and prior studies suggest a need for longitudinal analysis of how selection systems affect diversity over time as judicial systems evolve.
The document discusses the key roles and processes within the criminal justice system. It describes the role of police as the initial investigators who respond to crime scenes and make arrests. It then discusses the roles of public prosecutors who bring charges against suspects and work with judges in court. Defense lawyers work to minimize consequences for clients or prove their innocence. Judges impartially oversee legal proceedings, interpret the law, and make decisions in trials and sentencing. The document also outlines protections for arrested individuals under the Indian Constitution and DK Basu guidelines for proper arrest procedures.
Model essay: Should the UK adopt a codified constitutionmattbentley34
The document discusses the arguments for and against the UK adopting a codified constitution. It explains that a codified constitution would make rules clearer and protect individual rights through a bill of rights, but could also lead to judicial tyranny and undermine parliamentary sovereignty. The key arguments against are that codified constitutions are rigid and inflexible, which is problematic in a rapidly changing society. Overall, the document concludes that the UK should not adopt a codified constitution due to the importance of flexibility to amend laws through acts of parliament rather than constitutional changes.
The relationship between the separation of powersRatnesh Dwivedi
The document discusses the relationship between the separation of powers, rule of law, and parliamentary sovereignty in the British constitution. It outlines how the executive, legislative, and judicial branches are meant to be separated but checks on one another. While parliament has sovereignty, in practice the executive holds influence through party control of parliament. The rule of law requires all are equal before the law. However, recent developments like human rights laws and EU regulations have limited parliament's historic supremacy.
This summary provides an overview of the key points about jurisdiction from the document:
1. Jurisdiction refers to the power and authority of courts. There are two main types: subject matter jurisdiction, which is a court's power over certain types of cases, and personal jurisdiction, which is a court's power over individuals or property.
2. Personal jurisdiction can be established through residency, presence, or consent. States can also assert jurisdiction over out-of-state entities through minimum contacts.
3. Subject matter jurisdiction determines what kinds of cases a court can hear. Courts can have plenary or limited subject matter jurisdiction.
4. In the federal system, personal jurisdiction follows state rules, while
Page 55 BUSINESS AND THE CONSTITUTIONA federal statute and.docxalfred4lewis58146
Page 55
BUSINESS AND THE CONSTITUTION
A federal statute and related regulations prohibited producers of beer from listing, on a product label, the alcohol content of the beer in the container on which the label appeared. The regulation existed because the U.S. government believed that if alcohol content could be disclosed on labels, certain producers of beer might begin marketing their brand as having a higher alcohol content than competing beers. The government was concerned that “strength wars” among producers could then develop, that consumers would seek out beers with higher alcohol content, and that adverse public health consequences would follow. Because it wished to include alcohol content information on container labels for its beers, Coors Brewing Co. filed suit against the United States government and asked the court to rule that the statute and regulations violated Coors's constitutional right to freedom of speech.
Consider the following questions as you read Chapter 3:
On which provision in the U.S. Constitution was Coors relying in its challenge of the statute and regulations?
Does a corporation such as Coors possess the same constitutional right to freedom of speech possessed by an individual human being, or does the government have greater latitude to restrict the content of a corporation's speech?
The alcohol content disclosures that Coors wished to make with regard to its product would be classified as commercial speech. Does commercial speech receive the same degree of constitutional protection that political or other noncommercial speech receives?
Which party—Coors or the federal government—won the case, and why?
Do producers and other sellers of alcoholic beverages have, in connection with the sale of their products, special ethical obligations that sellers of other products might not have? If so, what are those obligations and why do they exist?
LEARNING OBJECTIVES
After studying this chapter, you should be able to:
1 Describe the role of courts in interpreting constitutions and in determining whether statutes or other government actions are constitutional.
2 Explain the key role of the U.S. Constitution's Commerce Clause in authorizing action by Congress.
3 Describe the incorporation doctrine's role in making most guarantees of the Bill of Rights operate to protect persons not only against certain federal government actions but also against certain state and local government actions.
4 Explain the differences among the means-ends tests used by courts when the constitutionality of government action is being determined (strict scrutiny, intermediate scrutiny, and rational basis).
5 Describe the differences between noncommercial speech and commercial speech and the respective levels of First Amendment protection they receive.
Page 56 6 Explain the difference between procedural due process and substantive due process.
7 Identify the instances when an Equal Protection Clause–based challenge to government a.
Business Law I Introduction to LawHello class and welcome to t.docxRAHUL126667
Business Law I
Introduction to Law
Hello class and welcome to the week one lecture for Business Law I. We will begin with an introduction to the law and the American Legal system. Law is a grouping of rules governing relationships among individuals and between individuals and their society. The function of the law is to maintain stability while allowing for change when necessary. As we will discuss, this law originates from many sources.
To start, America has a rich common law tradition. Common law dates back to the English Court system. This common law developed through the slow accumulation of decisions over many hundreds of years. At bottom, judges generally apply the principle of Stare Decisis or the application of principles applied in earlier cases with similar facts. These earlier cases are known as precedent. This principle is important because it allows for a modicum of stability in the law as the idea is that similar cases will be decided in similar ways. However, this system allows gives the common law some flexibility. Judges may decide that old precedent is no longer applicable, for example, due to changes in society’s attitudes or in technology. When this situation occurs, the judge can create a new precedent.
The constitution provides another source of law. The federal constitution creates the rules for governing the country. It specifies which powers each branch of government may wield, and any state or federal law found to be in conflict with the constitution by the courts will be found to be invalid. A third source of law is statutory law. This source of law includes the statutes and ordinances of Congress and state legislatures. This is a very important source of law, and much of the work of the courts is consumed by interpreting these statutes.
The final source of law to discuss is the administrative law. The development of this law has become increasingly important. As the economy began to grow more complex, Congress devolved some of its powers to administrative agencies (generally under the supervision of the executive branch) to regulate the economy. For example, the Clean Air Act requires the Environmental Protection Agency (EPA) to keep the air safe. This mandate empowers the EPA to pass and enforce regulation protecting society from airborne pollutants. Although this area of law gets less coverage from the press, it can be critically important as these regulations have a monumental impact on the economy. Judges are frequently called upon to determine if the agencies have exceeded the scope of their mandate.
Another important distinction involves the relationship between the federal and state courts. Each state and the federal government has its own court system. And each of these entities will often have different statues, common law, administrative law, and constitutions. States are generally required to follow the decisions of other court’s due to the full faith and credit clause ...
15INTRODUCTION TO AMERICAN LEGAL SYSTEMINTRODUCTION.docxdrennanmicah
The document provides an introduction to the American legal system. It discusses that there are two basic court systems: federal and state. Each has its own set of laws and courts. When advising a client, a lawyer must determine which system's laws apply. The three primary sources of law are the constitution, statutes, and common law. Statutes are enacted by legislatures while common law develops from judicial decisions. The branches of government work together, with courts interpreting statutes and constitutional provisions. Prior court decisions (precedent) guide judicial interpretation through the principle of stare decisis. The document uses hypothetical scenarios on a fictional island to illustrate issues around defining law and interpreting statutes.
Assignment 2 Social Structure and Social Interacti.docxbraycarissa250
Assignment 2 Social Structure and Social Interaction
(Your name)
Introduction to Sociology
(Your professor’s name)
(Date)
Status Set
· List 5 statuses that you currently have.
· Label each status as either ascribed, achieved, or master. Remember that a master status is not a status that you have mastered. It refers to a status that is so important that it overrides all other statuses.
·
Status
Label (Ascribed, Achieved, or Master)
1.
2.
3.
4.
5.
Roles (Write a paragraph of at least 5 to 7 sentences answering the following questions.)
· Choose 1 status from your list.
· Describe the role that is associated with the status.
· Describe how you learned that role.
Role Conflict (Write 1 to 2 paragraphs of at least 5 to 7 sentences each answering the following questions.)
· Describe a time when you experienced a conflict because of the demands of two different roles associated with any of your statuses.
· How did you resolve the conflict? (Discuss any conversations or social interactions that you had.)
· List any active listening skills you used to resolve the conflict. If you didn’t use active listening skills, then list the skills you could have used to resolve the conflict.
Chapter 2The Court SystemLEARNING OBJECTIVES
After reading this chapter, you should have a thorough understanding of the U.S. court system and how it affects the conduct of businesses and individuals. Specifically, you should be able to answer the following questions:
1. What role does each of the three branches of government play?
2. How do the other two branches of government balance the judiciary?
3. How are the state and federal courts structured?
4. What are the primary differences between trial and appellate courts?
5. How does the Supreme Court do its work?
As you now know, laws are meaningless if they are not enforced. Companies have to make a barrage of decisions daily, from product development to marketing to strategies to maintain growth, but most of these are based on sound business acumen rather than legal requirements. If a company does violate a law, however, it must be held accountable. Typically, that accountability comes in the form of a lawsuit heard in court. Whether a suit is brought by a supplier, customer, employee, shareholder, or other stakeholder, litigation is a fact of life for companies. As future business professionals, being familiar with our court system will lay the foundation for your understanding of the litigation process.
2.1 The Third Branch
LEARNING OBJECTIVES
1. Understand the constitutional basis for the judicial branch.
2. Explore the differences among the three branches of government.
3. Learn about the chief justice’s role in judicial administration.
4. Explore the concept of judicial review.
5. Become familiar with how the other two branches check and control the judiciary.
Under the federal Constitution, power is separated among three branches of government. Article I of the Constitution allocates t ...
1. Judge Posner explores conceiving of the US Constitution as an economic document by applying techniques of economic analysis and thinking. This provides an alternative perspective to viewing it mainly as a political or legal document.
2. Some key economic aspects of the Constitution that Posner discusses include the difficulties of amending it, the role of courts in supplementing it over time, and the costs and benefits of features like separation of powers and federalism.
3. While some constitutional doctrines like rights against self-incrimination may not be best analyzed through an efficiency lens, considering the economic implications of legal rules and institutions can provide useful insights without replacing other important values like justice.
Chapter 22 THE LAW AND TALENT MANAGEMENTWayne F. Cascio, HEstelaJeffery653
Chapter 2
2 THE LAW AND TALENT MANAGEMENT
Wayne F. Cascio, Herman Aguinis
Learning Goals
By the end of this chapter, you will be able to do the following:
· 2.1 Describe the framework of the U.S. legal system
· 2.2 Describe alternative legal routes for complaints against an employer’s employment practices
· 2.3 Explain the two major legal theories of unfair employment discrimination
· 2.4 Understand the major legal principles that define key civil rights laws
· 2.5 Identify the six exemptions to Title VII coverage
· 2.6 Define sexual harassment and identify preventive steps employers should take
· 2.7 Know when you can and cannot justify “English-only” rules in the workplace
· 2.8 Understand how to prevent age-discrimination claims when downsizing or terminating workers for cause
Comprehensive employment-related legislation, combined with increased motivation on the part of individuals to rectify unfair employment practices, makes the legal aspects of employment among the most dominant issues in human resource management today. All three branches of the federal government have been actively involved in ongoing efforts to guarantee equal employment opportunity (EEO) as a fundamental individual right, regardless of race, color, age, gender, religion, national origin, or disability.
All aspects of the employment relationship, including initial screening, recruitment, selection, placement, compensation, training, promotion, and performance management, have been addressed by legislative and executive pronouncements and by legal interpretations from the courts. With growing regularity, I/O psychologists and HR professionals are being called on to work with attorneys, the courts, and federal regulatory agencies. It is imperative, therefore, to understand thoroughly the rights as well as obligations of individuals and employers under the law and to ensure that these are translated into everyday practice in accordance with legal guidelines promulgated by federal regulatory agencies. Affirmative action involves a proactive examination of whether equality of opportunity exists. If it does not, a plan is implemented for taking concrete measures to eliminate the barriers and to establish true equality (Society for Human Resource Management, 2016b). Affirmative action has become a fact of modern organizational life. To ignore it is to risk serious economic, human, and social costs.
Every public opinion poll based on representative national samples drawn between 1950 and the present shows that a majority of Americans—black, brown, and white—support EEO and reject differential treatment based on race, regardless of its alleged purposes or results. There is agreement about the ends to be achieved, but there is disagreement about the means to be used (Von Drehle, 2003). EEO has been, and is still, an emotionally charged issue. Congress has provided sound legal bases for effecting changes in EEO through sweeping civil rights legislation. Subsequently, thousan ...
1Chapter 2 LEGAL RIGHTS AND RESPONSIBILITIES(Laws Governi.docxhyacinthshackley2629
1
Chapter 2: LEGAL RIGHTS AND RESPONSIBILITIES
(Laws Governing the Workplace)
2
Paradoxes about working for the public sector and legal rights
· How and when do we give up personal rights in public employment?
· Must balance three elements
· Employee rights
· Employer needs
· Policy dictates (governmental needs)
In this chapter on Legal Rights and Responsibilities, we are essentially covering laws governing the workplace, of course focusing on the public sector arena. The introduction points out the particularly important paradoxes of living in a democracy in which we value our personal rights, and yet we must yield up or narrow many of those rights in employment situations. This paradox is founded on the underlying principle that public law is trying to balance three elements: the needs of employers, the needs of employees, and the interests of government in pursuing public policy. The entire chapter looks at how these three elements—employees, employers, and policy dictates—are balanced in a wide variety of areas. On one hand, the balancing that is achieved is a magnificent monument to rationality at its best, because the legal system does an extraordinary job of ensuring fairness for employees, employers, and the implementation of policy. It also allows for varying the balance to suit different issues, to evolve over time, and to consider fact-specific situations. Yet on the other hand, public law can be frustrating too, because the balancing act does vary from area to area, does vary constantly over time, and predictability in fact-specific situations is sometimes in doubt until situations are legally challenged and litigated. Thus, public law can be very challenging and frustrating for public managers. As the book points out, managers must embrace the law to avoid the law. This chapter is the primary means that the MPA program uses to ensure that managers are both informed and relatively comfortable dealing with this challenging aspect of management.
3
Not all employment requirements stem directly from laws…
Many issues are not covered by laws, but rather by collective bargaining rules and agency guidelines which are nearly as firm
An interesting note is that much of what constrains employers is not in the law itself, but in civil service rules and tenure systems. Such rules are considered to be freely adopted by governments or individual agencies, and in most cases either have the weight of law, or at least a very strong legal weight in litigation and provide a weapon that can be used when individuals and unions seek protection of employee rights. Thus many of the generalizations in the chapter are based on common practices articulated in rules, rather than specific laws themselves. A prime example of this is in discipline, where civil service systems constrain agencies to act through specific procedures which must be followed scrupulously. Governments set up the legal framework, it is further articulated in collective barg.
The document discusses the power of the federal courts in the United States. It notes that courts can make policy decisions by reinterpreting laws and the Constitution in significant ways. More than 160 laws have been declared unconstitutional by courts using the principle of stare decisis. The kinds of remedies imposed by courts, such as judicial orders, have expanded the reach of courts' power beyond individual cases. Views on judicial activism both support and oppose courts correcting injustices or becoming unelected legislators. Limits on judicial power and activism include stare decisis, constitutional and statutory law, actions by other branches of government, and public opinion.
# 151053 Cust Cengage Au Hall Pg. No. iii Title Cri.docxAASTHA76
The document discusses the structure of the American legal system, specifically focusing on federalism and the division of power between federal and state governments. It explains that the US has a dual sovereignty system with both federal and state governments having authority over citizens. While most crimes fall under state jurisdiction, some areas like counterfeiting are exclusively under federal control. The expansion of federal power, especially through the Commerce Clause, has increased concurrent jurisdiction between federal and state governments. However, the Supreme Court has also reaffirmed the important role of states in regulating health, safety, and welfare through their police powers.
El Puerto de Algeciras continúa un año más como el más eficiente del continente europeo y vuelve a situarse en el “top ten” mundial, según el informe The Container Port Performance Index 2023 (CPPI), elaborado por el Banco Mundial y la consultora S&P Global.
El informe CPPI utiliza dos enfoques metodológicos diferentes para calcular la clasificación del índice: uno administrativo o técnico y otro estadístico, basado en análisis factorial (FA). Según los autores, esta dualidad pretende asegurar una clasificación que refleje con precisión el rendimiento real del puerto, a la vez que sea estadísticamente sólida. En esta edición del informe CPPI 2023, se han empleado los mismos enfoques metodológicos y se ha aplicado un método de agregación de clasificaciones para combinar los resultados de ambos enfoques y obtener una clasificación agregada.
Here is Gabe Whitley's response to my defamation lawsuit for him calling me a rapist and perjurer in court documents.
You have to read it to believe it, but after you read it, you won't believe it. And I included eight examples of defamatory statements/
An astonishing, first-of-its-kind, report by the NYT assessing damage in Ukraine. Even if the war ends tomorrow, in many places there will be nothing to go back to.
Acolyte Episodes review (TV series) The Acolyte. Learn about the influence of the program on the Star Wars world, as well as new characters and story twists.
Essential Tools for Modern PR Business .pptxPragencyuk
Discover the essential tools and strategies for modern PR business success. Learn how to craft compelling news releases, leverage press release sites and news wires, stay updated with PR news, and integrate effective PR practices to enhance your brand's visibility and credibility. Elevate your PR efforts with our comprehensive guide.
1. Judicial Legitimacy
Creating a constitution is an imposing task. There are many components to consider, and even
then, a constitution cannot fully account for the stability of a nation. The constitution can only set the
fundamental groundwork. That is why in some countries, like the US, components may exist completely
outside the mainstream understanding of what works today. Nonetheless, it is worth attempting to
improve these elements as they are fundamental to the existence of the state. The US judicial branch is
one of these components. As Jacobs indicates, “many students remain unaware that the American legal
system is an exception to what prevails in most of the rest of the world” (vii). Although the US
constitution has stood the test of time, its ideals with regards to the judiciary are in no way a model for the
modern world. This paper will comparatively analyze the US judicial system with various nations such as
Russia, Germany, and South Africa to create a normative design of the American judicial branch. This
normative model will address the inherit flaws that exist within the American judicial branch, which make
a constitutional nation less sustainable. In order to address these issues, one must first understand why the
judicial branch exists; then how it can best fulfill these ends; and lastly what cultural, structural, and
appointment mechanisms in a normative US model would look like.
A Brief Introduction to the US Model
Th4e American Paradox
The American model is paradoxical in many ways; although its conception made it seem as
though it was the weakest of the three branches, time has proven it to be a major part of the American
polity. The constitution itself, the establishment of judicial review, and the Federalist Papers led to this
initial perception of weakness. In the US constitution, articles I, II, and III outline the three branches.
The legislative and executive branch are the topic of the first two articles; both have more sections, clearly
enumerated powers/responsibilities, and specific outlines of who can occupy the position(s). The judiciary
!1
2. on the other hand is the last of the three articles, has the least sections, is written vaguely, and does not
even outline who is able to be a justice. It seems that the judicial was simply thrown on as an afterthought.
Even the concept of judicial review, an underpinning of how we understand courts today, was established
by the court itself (not the constitution). This further highlights the vagueness and weakness of the judicial
branch as written in the constitution. Moreover, in the famous Federalist 78 , Hamilton outlined that the
court is the weakest of the three branches, because it does not have the power of “the sword or the
purse” (“Federalist no. 78”). How then does this court’s decision have “power” in the checks and balances
system? Through legitimacy. Legitimacy will be defined more extensively later in the paper — however, it
is achieved both from the branch’s conception and its behavior as an actor in the constitutional system.
Common Law Conundrum
As one looks to the US model, it is hard to avoid the elephant in the room: the comparatively rare
common law system. Although an entirely different paper could be written on the various merits of the
common law and Kelsenian system in structuring of the courts, both methods are sustainable. Regardless
of these disputes, even if the US changed to a civil law system, the institutional and structural costs would
outweigh the net benefits from the new system. Therefore, this paper will assume efficacy of the common
law system. Furthermore, another detail to consider is the simple principle that constitutional courts,
judges, and decisions occupy a ‘constitutional space’ that is neither ‘judicial’ nor ‘political’ (Sweet,
“Constitutional Courts and Parliamentary Democracy” 80; “Constitutional Courts” 818). This framing of
a somewhat ambiguous nature of a judicial branch will be an important theme to note throughout this
paper and will be, in part, justification for use of the common law system. For these reasons, this paper
will aim to solve the problems of the judicial branch in the lens of US common law system. If these issues
are going to be addressed, let us start by simply understanding why courts exist.
!2
3. Why Do Courts Exist?
At their very core, courts exist to interpret the law and issue judgements. Since WWII, in judicial
models around the world, courts interpret the law by checking it against the constitution — the document
which underpins all legal texts. It is through this interpretation of the law that they can then check the
powers of the other two branches. This is because of the way balance of powers is conceptualized with
the constitution. Because the polity “agreed” on the constitution, they created two agents: the executive
and legislative, both with positive lawmaking capabilities of whom “the people” are the principals. The
courts in a way keep those agents honest to the principles of their creation enumerated in the constitution
— behaving as a trustee. Their nature as overseers of the system leads to a simultaneous responsibility for
protecting citizen’s rights. There are two flawed assumptions to note with this traditional model. First,
because the courts adjudicate based off the constitution, their decisions are assumed to be bound by the
breadth of the constitution. Second, courts are assumed to have the final say in preventing the abuse of
power by keeping the branches of government horizontally accountable and hence protecting the citizens’
rights. These assumptions and their errors will help us understand what makes a court fall short of issuing
a good judgement so we can work to ameliorate it.
Constitutional Limitations & Judgement
Let’s look at the first piece: the idea that judges are bound by the text of the constitution. Because
a court’s decision relies on well reasoned arguments, polities desire that a court references some sort of
legal base for their decisions — the constitution. However, because constitutional drafting has high costs
of agreement for a final, enumerated decision, the final document tends to be too ambiguous and
inadequate to handle all constitutional disputes. Sweet observes how “difficulties associated with
negotiating rules for all possible contingencies, and given that, as time passes, conditions will change and
the interests of the parties to the agreement will evolve, all contracts [constitutions] are incomplete in
some significant way” (“Constitutional Courts and Parliamentary Democracy” 86). Because judges are
!3
4. reliant on an incomplete document for the basis of their decisions, they must to some extent rely on their
judgement and interpretation of law or fall victim to the inherit limitations of a constitutional text. This
judgement leads to a gray-area where cases are no longer strictly law-based. There is now another salient
variable to consider: “constitutional courts are understood as institutions whose function is fundamentally
political” (Hilbink 230). In order to best handle this variable, courts must build legitimacy by being
independent, professional, and impartial. These variables will be defined in the “How Can Judiciary
Legitimacy Be Enhanced” section ahead. However, the underlying understanding is that even though
judges’ decisions can no longer be grounded in strictly legal terms, by bolstering the legitimacy of the
court the decision can still be considered credible.
Now Let the Court Enforce It
Another issue with the currently pervading understanding of the judiciary is the errant
assumption that a court’s decision is binding. This assumption is incorrect because the courts generally
have no way of enforcing their decision. Hamilton indicated that “the judiciary, […] has no influence over
either the sword or the purse; no direction either of the strength or of the wealth of the society; and can
take no active resolution whatever. “It may truly be said to have neither force nor will, but merely
judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its
judgments” (Hamilton). In fact, in the current model, if congress wanted to, they could overturn the
decisions of the court by amenfding the rigid constitution. This may not be very evident because in many
nations, and especially western nations, courts’ opinions seem binding. This is because the judiciary is
viewed as a legitimate institution across the polity. As stated before, courts can be designed to build
legitimacy by being independent, professional, and impartial; moreover, their behavior as an actor can
also serve to enhance their legitimacy. As is the case for the US judiciary. Another reason, specific to the
US, for perceived bindingness of the decision is that “rigidity of the constitution enhances judicial
supremacy” (Hilbink 234).
!4
5. Conclusion
This overview determined that a court exists in order to issue judgements. These judgements
prevent the abuse of power from other branches of government, as well as simultaneously protecting the
rights of the citizen. The more likely the parties involved in a decision are to follow along, the “better” the
decision. Following this, two issues arose damaging the quality of a decision — what makes these
judgements valuable, and how can the court’s decisions be enforced? Because these two issues are
interrelated, so is their solution. By building legitimacy in its institution, the court can issue “legitimate
judgements” that secure compliance and respect from the parties involved.
How Can Judiciary Legitimacy Be Enhanced?
The court’s main end is to issue legitimate judgements, which will secure compliance and respect
from the parties involved. How this end of a legitimate judgement can be persevered is through ensuring
the court is a legitimate institution. A legitimate court will lead to all actors in the polity accepting these
legitimate judgements, regardless of how much they disagree. A less legitimate court can lead to situations
like Andrew Jackson saying “John Marshall has made his decision, now let him enforce it,” the Russian
Constitutional Court getting initially dissolved, or simply a decision getting ignored. Legitimacy for the
court exists across a spectrum — upon which I would argue it is difficult to predetermine a point where a
court starts to be considered “legitimate.” Therefore, this section will look at how legitimacy is assessed and
maximized. The courts, and in turn their decisions, gain legitimacy in two ways. First, through the
conception and design of a society’s institutions; and second, through its behavior as an institutional actor.
Institutional Design
Smilov provides a good model to start understanding legitimacy, arguing that “in contemporary
constitutional regimes, courts and the judiciary draw their legitimacy and their normative power from at
least four different sources” (862). These “four sources, [he argues], form a universally valid (for
!5
6. constitutional regimes) set of values, which models—institutionally very different from each other—try to
optimize, although they may balance the basic values in different ways. Societies have specific—sometimes
unique—histories and experiences, which explain the stronger emphasis on one value or another” (Smilov
862). To better understand what Smilov is saying, know that he holds a very loose “interpretive” point of
view which rejects the premise of “pluralists” who claim “there is no overall best solution” (862). He
loosely believes “all legal systems follow basically the same (or very similar) sets of normative principles or
values” (862). So, his loose interpretive model creates four fundamental and interrelated variables which
can vary in importance across polities: “separation of powers; the rule of law; adjudication as a mark of
sovereignty; and the need for independent arbiters in disputes between two parties” (862). In order to
maximizes these variables, we must first seek to understand them.
Let us begin by looking at the separation of powers. Smilov argues that “it prevents the
concentration of powers in the hands of one holder, and ensures a minimum degree of pluralism at the
highest level of government” (864). The primary ancillary for ensuring separation of powers is judicial
independence, which “guarantees that there is at least one other branch of power, different from the other
(political) holders of power” that “check[s] the political branches of power through some sort of judicial
review” (Smilov 864). Not only do judicial independence and review enhance the separation of powers,
but through a quantitative analysis, La Porta demonstrates that these principles succeed in achieving both
political and economic freedom across the polity through their guarantees of various rights (La Porta 1-3).
Because judicial review depends on judicial independence, let us take a closer look at judicial
independence. As Macdonald and Kong outline, “because empirical evidence demonstrates that judges do
not make decisions based exclusively on existing formal legal considerations, the notion of judicial
independence is a myth” (Macdonald and Kong 837). In a way, absolute judicial independence is not
possible. However, Macdonald and Kong make sure to note that “one can accept the empirical claim and
still have productive discussions about judicial independence” (837). Even though judicial independence is
!6
7. ultimately unattainable, society can decrease external influences in many ways, enhancing independence
and thereby judicial review and separation of powers. The three mechanisms which improve legitimacy
through independence by decreasing external influence are appointment procedures that decrease bias
towards any party/group, an age limit introduced to judicial tenure, and incentives to improve culture.
The second variable for enhancing legitimacy is the rule of law. The rule of law is an important
value to uphold in a society because it is “important to guarantee law-governed and rule-bound behavior
in society” (Smilov 866). Because judges are “professional experts on rules and following the law,” they are
the ultimate gate keepers of stability in a rule of law system (Smilov 866). The assumption made in
Smilov’s argument is that judges are regarded as professionals. Therefore the appearance of
professionalism is the route to maximize legitimacy through rule of law. This appearance can be cultivated
in two ways: the independence of judges and the right to judicial review..
The first component, independence, is so fundamental that Epstein et. al argues “without judicial
independence, there is no rule of law, and without rule of law the conditions are not in place for the
efficient operation of an open economy” (Epstein et al. 119). Judicial independence is significant because,
as seen in the last paragraph, it also guarantees separation of powers and gives way to judicial review —
the second component of professionalism. Macdonold and Kong’s analysis highlights this interconnection
between judicial independence and review, also showing their contribution to the rule of law. They argue
that a “judge makes appropriate use of her independence when she properly fulfills her role as a judge
[…] One might say that judges most fully occupy their institutional role when they engage in principled
reasoning” (Macdonald and Kong 837). When thinking about review, remember that courts occupy a
unique ‘constitutional space,’ which means “those governed must accept that constitutional meaning is (at
least partly) constructed through judge’s interoperation and rule making” (Sweet 825). Because decision
making power lies with these individuals and their judgments, the legitimacy of their decision must be
!7
8. enhanced. This can be done by modifying appointment procedures to get judges whose decisions we
respect, adjusting structure to improve professionalism, and lastly incentivizing cultural improvements.
Now let us turn to another piece of legitimacy: the need for impartial arbiters in disputes between
two parties. There is no way to absolutely measure or prevent bias; in a way a court can only work to
improve the degree to which it is considered impartial. A court that is impartial will generate trust and
thereby compliance. This legitimacy claim is the closest to the understanding of why courts exists — to
issue respected and complied judgements. Smilov acknowledges the court fulfills this end as he indicates
“courts generate trust when they become instrumental to broad sections of society in series of concrete
disputes between two parties,” or in other words is impartial (Smilov 870). He says impartiality has three
grounds of legitimation. First, “attempt to limit the exposure of the judiciary to partisanship and open
politicization in order to make it attractive as a neutral arbiter,” or in other words, make the judicial
branch independent. Second, because courts are “handicapped as endorsers of comprehensive political
programs and doctrines,” they must rely on the rule of law. Third, courts must “correctly balance the
competing values of accessible justice and manageable caseload,” both of which enhance legitimacy in
different respects (870). Because impartiality is so reliant on the other two principles, improving their
instruments of legitimacy through appointment, structure, and culture will improve this one as well.
Moreover, balancing accessibility and caseload is a structural issue that can be addressed through an
analysis of review procedures, and a change in appointment with regards to diversity as well.
Lastly, we explore adjudication as a mark of sovereignty. Sovereignty is an odd concept because
“historically, the claim of resolution of disputes through adjudication has been the mark of
sovereignty” (Smilov 869). On this simple understanding, “courts normally claim exclusive and final
authority over the resolution of legal disputes” (Smilov 869). This principle is a circular argument that
essentially says the court is sovereign because it is sovereign — it also stands separate from the
interconnection between all the previous concepts. Furthermore, this principle is very weak because its
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9. only possible argument for existence is historical context — which the same author warns about when he
claims that history makes a standard normative design difficult. Lastly, Smilov’s length of this section in
comparison to its counterparts showed the lack of care and justification that was put into this principle.
Earlier this paper it was determined that sovereignty actually does not even exist insofar that a court’s
decision can be ignored and not implemented, or that legislature can pass an amendment nullifying the
decision of a judiciary. So for this last principle, we will instead seek to understand what the court’s place
in the balance of powers should be. Should it be reliant on this old model of assumed supremacy? Or
should we look to a more modern system, one that creates an open dialogue of constitutionalism between
the judiciary and the legislature? Rather than see adjudication as a mark of sovereignty, we can see it as an
important, and in many ways, essential members of a cooperative discussion of constitutional issues. This
claim is legitimized through structural changes.
Institutional Design — The Takeaways
In this segment of the paper we looked at Smilov’s arguments of how a court system draws its
legitimacy and normative power from at least four different sources: the separation of powers, the rule of
law, impartiality of the court, and a cooperative discussion of constitutional issues (a rejection of Smilov’s
argument of judicial sovereignty). The exploration of these four variables identified an interrelation of
many of the concepts and variables, so influencing one area can impact many; this helps standardize
mechanisms for improving legitimacy into categories of appointment, structure, and culture. What we will
do to execute upon these mechanisms is outlined more extensively in the final section but an overview is
given now.
We will begin with the hardest to encapsulate, yet in many ways the most broadly influential of
the three mechanisms: culture. Culture is the most can be enhanced if we focus on the importance of
values like judicial independence, judicial impartiality, and rule of law in the dialogue across all
institutions related with the judicial branch, both internally and externally. This isn’t something that can
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10. be directly influenced, but can be incentivized. As for structural changes, we will seek to redefine the
traditional notion of judicial sovereignty into one of open discussion, meaning compliance with the courts
is only as strong as their general legitimacy — because the change acknowledges this reality, it will force
courts to focus on building it. The remaining structural changes are then: enhancing judicial tenure to
improve impartiality and independence; and professionalizing the court by specializing the appellate
jurisdiction. In terms of appointment, an independent commission with various stakeholders from the
political, judicial, professional, and academic fields will be utilized to increase consensus for for the
supreme court judges, enhancing all sources of legitimacy. Furthermore, appointment should ensure
judges should in some way be demographically representative of the nation to build impartiality.
Behavior as an Actor
The institutional mechanisms that have so far been discussed are only one piece of the puzzle —
they give courts an initial step of legitimacy. The final impact of a court, to some extent, is determined by
its behavior after creation. Building legitimacy through behavior is done over time and to some extent it is
done so well that modern jurists cannot even conceive of a model where their decisions would be ignored.
This can be seen “when members of the Russian Constitutional Court asked their U.S. counterparts
about how they ensured compliance with their decisions, they were taken aback with the American
Justices' response: ‘They simply did not understand us,’ the Russians bemoaned. ‘It simply had not entered
their heads that the decisions of the Court would not be implemented’” (Epstein et. al 126). However, the
US model was not always like this. Through his leadership, Marshall’s court established the principle of
judicial review overturning law. He further worked in many ways to enhance the court’s legitimacy though
behavior: unanimity, enumerating decisions that wouldn’t upset the parties involved, etc. Behavior can be
improved by enhancing culture. Ultimately, this section will explore behavior because it is a key part of
our constitutional history as well as an important factor to consider in many emerging nations.
!10
11. Generally, courts are understood to have binding decisions (sovereignty). However, in reality, they
are “constrained actors,” meaning they consider other actors to “lend force to their decisions” (Epstein et.
al 125). The more effectively they make these considerations and limit their decisions within the scope of
other actors per decision, the further they broaden their scope of acceptable decisions in the future,
ultimately becoming “unconstrained actors” (125). This scope of decision is otherwise known as the area
where tolerance intervals of institutional actors overlap. A “tolerance interval” is an interval that exists for
every actor (branch of government) and is the extent,
ideologically, of decisions upon which the respective actor
would not challenge the court. This is modeled to the right.
“Those intervals […] represent the elected actors' ex ante
assessment of the relative costs and benefits of attempting an ‘attack’ on the Court”, for which “these
actors take into account four factors” (129). Case salience, the extent to which this issue involves or is
relevant to the actor. Case authoritativeness, which is simply the weight of the precedent (have there been
multiple decisions, has the court been unanimous, etc.). Policy-specific public support, what the general
public thinks about the issue at hand. Lastly, diffuse public support, the legitimacy the court has built up
across society (129).
The Russian court demonstrates this model perfectly. The only notable drawback is that the
analysis utilizes mainly qualitative data. However, I would argue that for this model qualitative analysis is
in a way beneficial because it is most similar to the ways actors would make their assessment. During
Russia’s tumultuous start as a nation its court was suspended, the constitution rewritten, and a new court
took its place. These two courts behaved very differently, resulting in different levels of legitimacy and
permanence. The Russian court had three large categories of decisions: separation of powers, federalism,
and individual rights. On cases of separation of powers and federalism, tolerance intervals of the actors
rarely coincided; however, they were almost always in agreement on the individual rights of the branches.
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Pres.
Senate
House
Scope
12. In its first court era, over 62% of decisions were not considered “safe.” BY issuing unsafe decisions they
opened themselves to conflict from the other branches and also increased the chance this conflict would
occur in the future by decreasing tolerance intervals. In its second era, the court seemed to learn from its
mistakes as judges claimed they sought to avoid “acute political questions” (Epstein et. al 153). In this
period we saw that 90% of the court’s decisions were in the safe area of overlap in tolerance intervals.
Judges ruled mainly on topics of individual rights, broadening all tolerance intervals and creating an area
of overlap in federalism decisions, which the court then ruled on. Ultimately the court was able to increase
its legitimacy across the polity.
Conclusion
This section outlined two complex, interrelated models for achieving judiciary legitimacy. The
“basic framework for the democratic system is initially established by the enactment of a constitution,”
which through consideration of cultural, structural, and appointment factors can be institutionally
designed to enhance legitimacy. Second, “the fine-grained institutional structure evolves over time as the
product of the legal and political interactions among various political actors" — being aware of this can
impact the court’s role in those interactions (Epstein et. al 155). Although establishing a stable, effective,
democratic state is a complex process that takes a long time, the judiciary is a very important piece of this
establishment. In summary, the purpose of the judiciary is to produce complied and respected
judgements, and it can do this by maximizing legitimacy through various design changes and behaviors.
Let us now look to what exactly these changes will be.
What Will Changes to US Normative Model Look Like?
In the previous section, we conclusively indicated the three areas for improving legitimacy:
culture, structure, and appointment. In this section we will investigate what changes will cause these
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13. mechanisms to generate more judicial legitimacy. Let us begin by looking more specifically at culture, in
many ways the most crucial of the three but also the hardest to capture.
Culture
Culture is a unique mechanism as many scholars seem to mention the need for changes in culture,
but usually as part of a broader set of suggestions. It tends to be under-defined; however, it can be roughly
understood as “virtue” or “good understanding.” Culture relates to how the judiciary and related
institutions understand the nature of the judicial branch. Macdonald and Kong really give the best
understanding of culture when they outline that ideas like judicial independence should be a judicial
virtue. A virtue is something we strive towards, an ideal, a final understanding. Throughout the paper they
explain it as something that justices, society, and other institutions should acknowledge. For instance, they
argue “whether the rule of law thrives is dependent on a range of factors, including a culture of public
commitment to the institutions that support the rule of law and a system of separation of
powers” (Macdonald and Kong 845). This same thought applies to all the various ideals and members
involved. However, only incentives can improve culture. How can we incentivize thinking about these
ideals? By structuring the institutions in such a way that judges consider these virtues, as we will see in
some of the changes in the section. By bringing these issues to the forefront for judges, they can diffuse
into other areas of society like academia, public discussion, and other branches. Thereby further
enhancing the understanding and quality of these virtues, again strengthening the judiciary and its
legitimacy — creating a self-enforcing feedback loop. In the end, culture is an important part of ensuring
courts have longevity and behave properly.
Structure
To make changes in structure, we must start with its core. This means replacing the traditional
notion of judicial sovereignty with one of open discussion. Because courts will no longer have this circular
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14. sovereignty claim to legitimacy, and instead are a part of an open discussion between the legislature and
judiciary, judges are consciously and constantly reminded that their opinions are only as strong as their
legitimacy. This structural change not only reflects the reality of the system, as we had seen earlier judges
have no way of enforcing their decisions; it also bolsters culture in the most direct way. Because the society
is now consistently and consciously aware that judiciary power stems from the institution’s legitimacy,
culture improves. They will have to keep in mind the goals of enhancing impartiality, independence, and
the rule of law when structuring the branch. With this frame of mind the following structural changes will
be with implemented: reworking judicial tenure, and specializing the appellate jurisdiction. Judges more
specifically will be culturally aware of behavior, as it is their most direct way of increasing legitimacy. Let
us understand this structural change by looking at the debates around it.
The debates for structuring of power among institutions have two extremes — legislative and
judicial supremacy, argued by Waldron and Dworkin respectively. Dworkin argues that courts have
sovereignty because they can guarantee rights protection impartially “with equal concern and
respect" (Dworkin 17). As we saw earlier in the paper, this claim is false. We can strive for these virtues;
however, when it comes to meeting them and building a model off it, this is somewhat unrealistic. We then
look to Waldron, who says the opposite. Essentially because judges will never be impartial, it is
“unpleasantly condescending” that these unelected officials are then given sovereignty. Waldron instead
proposes a model of legislative supremacy (Waldron 303). The main flaw with this model is that it relies
heavily on society understanding debates that of a constitutional nature, such as rights, are inherently
different from simple discussions of what law to pass. They should be discussions grounded in a “political
culture of mutual respect” (310). He essentially makes the same mistake as Dworkin here, assuming that
his proposed justification will be inherently true and that the society will instantly and holistically adjust
political culture to one that Waldron describes.
!14
15. Gardbaum on the other hand provides an alternative to either model of supremacy, solving the
issues with both and curing “the over-legalization or judicialization of principled public discourse” and
preventing “the legislative and popular debilitation that has long been identified as a major institutional
cost of constitutionalization” (Gardbaum 173). This model gives the legislature power to overturn a
court’s constitutional decision, in effect opening and enhancing a culture and dialogue of rights and
constitutional issues. Hilbink outlines that this model rejects “a strict distinction between law and politics,
[which] grants supreme authority to the judiciary in constitutional decision making and sets up the
relationship between the judiciary and legislature in binary and oppositional terms” (Hilbink 233). If the
courts are restructured this way, we can more consciously think about mechanisms of achieving legitimacy.
Especially with instruments that are based on merit and theory rather than based off a circular
assumption.
The next structural implement we will explore is judicial tenure. Judicial tenure is an important
factor to achieve independence and, in turn, impartiality. If a justice is tenured they don’t have to worry
about political pressures to those who appointed them, and they also don’t have to worry about losing a
position because of a ruling. Furthermore, “commitment theorists predict an inverse relationship between
legislative tenure and judicial tenure” (Macdonald and Kong 845). However, tenure can’t be indefinite like
it is currently in the US model — this can lead to a judge’s opinions being “grossly out-of-step with the
rest of the political system,” in other words, unprofessional (Hilbink 231). Instead, judges should be
tenured until age 75, as in the Canadian and UK models, ensuring a wholly legitimate term. This allows
them to behave freely, professionally, and in accordance to the principles reinforced by their surrounding
culture.
Now we’ll look to change the structure of the appellate courts to enhance the rule of law and
impartiality. The appellate court’s judges should be specialized in a model similar to that of Germany’s
constitutional court. The German model of specialization splits the supreme court into two “senates” that
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16. pick issues from various legal subjects at the start of the session based on caseload (Damle 1297).
Furthermore, based on the issues their senate selects, each judge becomes a “rapporteur,” with an
expertise in a specific area of law (1298). These judges are then responsible for creating “votum[s]” for
cases in their legal area — a votum is essentially a “major research report. [The judge] describes the
background and facts of the dispute, surveys the court’s own precedent and the legal literature, presents
fully documented arguments advanced on both sides of the question, and concludes with the personal
view of how the case should be decided” (1299). The reason we look to the German constitutional court’s
specialization is that in the Kelsenian legal system, the constitutional court most closely resembles a court
in the US jurisdiction. Also, since the US supreme court hears at most 1% of cases appealed to it, we seek
to apply the specialization at an appellate level to have a more immediate impact on the law. Moreover,
the precedent and values of this more precise decision making will simply diffuse upwards.
Fusing this model into the US system is very straightforward — at the start of a legal term justices
can pick a few topics based off caseload. Then when an issue comes to the court and a panel of three is
chosen to adjudicate, it can be formed based on the issues involved and then justices randomly chosen
from other, non-related, topics; the most relevant justice(s) will be tasked with preparing a votum for the
panel which will ultimately adjudicate. This approach is interesting because it capitalizes upon the benefits
of both a generalist and specialized court. The more specialized justice(s) get to voice their opinion and
expertise, while the ultimate decision is more generalist because there are multiple judges involved.
Additionally, because the way topics are chosen helps manage caseload, this model also improves the
perception of impartiality because it allows the courts to remain efficient and low-cost, hearing every case.
Ultimately through this model, decision making will be more legitimate because law is more uniform and
professional across the polity, caseload is managed effectively, and the final opinions tend to be more
unanimous.
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17. Appointment
Appointment is specifically covered last because it enhances all claims of legitimacy, and in many
ways draws upon the impacts of the mechanisms proposed in this section. Akkas argues the
“appointment system has a direct bearing on the impartiality, integrity and independence of
judges” (Akkas 200). This “direct bearing” is because as much as a society structures institutions and
enhances culture — if they pick the wrong people, decisions will suffer. Judicial appointment can be
improved if judges are selected by an independent commission that accounts for the various stakeholders
we have discussed so far. A pluralist approach similar to South Africa’s will be taken, their commission
“consists of judges, the Minister of Justice, practicing and academic lawyers, members of the National
Assembly including a substantial number of opposition members, members of the Provincial parliaments,
persons nominated by the President of South Africa after consulting leaders of all political parties
represented in the National Assembly and in some cases the Premier of the Province or the Premier’s
nominee” (Akkas 209). The independent commission increases the number and background of
stakeholders. The political, judicial, professional, and academic fields will be utilized to increase consensus
for for the supreme court judges: enhancing independence and in turn impartiality, and the rule of law. It
is important to keep in mind that culture will in many ways influence the decisions this commission makes.
For instance, if the commission wants to strive towards creating an impartial court and is much more
culturally aware of the value, they would try to make the court roughly representative of the
demographics in the nation. In the end, similarly to the South African model, the commission would slate
three more appointees than are needed. Following the idea that judiciary is inherently political, and
constitutional courts will represent a back-and-forth dialogue between the judicial and the political, the
appointees are ultimately proposed by the executive and voted in by the legislature. This political portion
of appointment will further enhance legitimacy of the courts by giving them more credibility in the open
dialogue system.
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18. Conclusion
To finish off this section, we went through three areas to improve — culture, structure, and
appointment. Through these we were able to create a final normative model that captured the reality of
the judicial branch by replacing sovereignty with a model of open discussion. This underlying framework
enhances culture by making the judiciary and society more aware of how to improve judicial legitimacy.
Judicial tenure, which enhances independence and impartiality, was reformed to include a retirement age
of 75 to also ensure professionalism and thereby rule of law. Legitimacy through rule of law and
impartiality were further built upon by specializing the US appellate jurisdiction, making it more
professional and efficient. Lastly, appointment was redesigned to enhance all the scores of legitimacy. By
increasing the stakeholders, justices become more independent and impartial, and more professional. The
changes proposed to institutions in this section only capture one portion of our normative model — to
fully enhance legitimacy in the judicial system we must understand and advance the culture in recognition
of these values.
Conclusion
A normative model was designed that started with understanding that the purpose of a court is to
create complied and respected decisions. This can be done by increasing legitimacy. Legitimacy was
understood to be built institutionally, and behaviorally. Through investigating legitimacy, three areas of
improvement were determined: culture, structure, and appointment. By focusing on these areas of
improvement, a comprehensive normative model grounded in the US system that enhanced legitimacy
was created.
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