Persuasive precedent is a decision of a lower court which may influence the higher court, where the legal facts are similar or slightly different. It may also be made by the Judicial Committee of the Privy Council, another jurisdiction or things said obiter. The Supreme Court binds all lower courts and generally binds itself due to London Tramways Co v London County Council 1898. The Practice Statement 1966 says that following precedent is a good thing as it enables us to know exactly what the law is and we can behave accordingly. Despite this, it is stated that following precedent too rigidly may cause an injustice.
In this essay, first the arguments of the Federalist Paper and the Supreme ruling of Marbury v. Madison will be discussed. Then these two sources will be compared and the similarity and difference will be clarified. Finally, the necessity of judicial review in the checks and balance system and its importance will be proved. One of the most important features of the jurisdiction, Hamilton stated, was the complete independence of the branch from the other two branches. The tenure in which the judges hold during good behavior is their biggest protection and creates the separation from other branches.
The power of the Supreme Court to declare laws unconstitutional leads some people to assume that the judicial branch will be superior to the legislative branch. Hamilton examines this argument, starting with the fact that only the constitution is fundamental law. To argue that the constitution is not superior to the laws suggest that the representative of the people are superior to the people and that the constitution is inferior to the government it gave birth to. The courts are the arbiters between the legislative branch and the people; the courts are to interpret the laws and prevent the legislative branch from exceeding the powers granted to it. The courts must not only place the constitution higher than the laws passed by congress, they must also place the intentions of the people ahead of the intentions of their representatives.
For example, the ever-changing law on how discrimination went from sanctioning segregation to dissolving segregation illustrates how adaptable common law is. This law also derives its basis from these court proceedings called precedents to guide cases based on past rulings. The one disadvantage of common law is how cases will surmise. As Rogers (2012) attests, “even the best judicial minds often disagree, based at least in part on their judicial philosophy and political ideology” (Section 1.1). Depending on each of the judge’s beliefs, cases can go in any direction from their analysis.
Judicial review is the right, or duty, the court has to review the constitutionality of legislation and/or actions taken by the executive branch. The court has the right to choose its cases, but these are brought before them not sought after by the court. What is the separation of powers? This is a form of checks and balances between the executive, legislative, and judicial branches of government. They are in place so as to contain the power of any one branch attempting to overstep its authority and act in a tyrannical matter.
Other source of America law is administrative law it consist of rules, regulations, orders and decisions of administrative agency or governmental organization. This law performs a specific functions and rules issued by administrative agencies, since they make their own regulations it is not usually found in the statutes, with stringent procedures individuals must follow to obtain assistance from the agency and this is how administrative law is impacted. In addition, the sources that amount to mandatory authority is primary sources it refers to cases, statutes, or regulations that the court must follow because it is binding on the court. Even though, lower courts are required to follow decisions from higher courts in the same jurisdiction. Example: You are in Federal District Court for the Southern District of Florida.
* What is an order issued by the Supreme Court to a lower court requiring a case for review? A writ of certiorari. Exercises: 1. Explain constitutional law and states powers using Chapter 1, Section 3 as a basis for your answer. Constitutional law is a group of laws made to keep a good foundation and it gives an idea of the outcome of business.
Checks and balances are put into place so that no one area of the government can have full control or become too powerful. In the three branches checks and balances vary and are essential. The Legislative branch given the power to make laws and is there to check the Executive and Judicial branch. The Executive branch is given the power to carry out the laws and is there to check the Legislative and Judicial branch. The Judicial branch is given power to interpret the laws and is there to check the Legislative and Executive branch.
(Levin-Waldman, O.M., 2012, p.48) He also can do whatever he feels is needed to “protect and defend the Constitution”. (Levin-Waldman, O.M., 2012, p.48) However, for most parts he must pass things by Congress. Congress is the authority when it comes to things such as suspending habeas corpus. If the Constitution is not protected by the previous then hopefully the Supreme Court will hold the President or Congress accountable like in Boumediene versus
As mentioned earlier, the Right of Self-Representation is this right to represent oneself as Pro Sea. Presently, courts at all levels of the Criminal Justice system require that the defendant be aware and understand the disadvantages of representing one’s self as most people not practicing law, will not be aware of certain defenses that can facilitate their case. A person going Pro Sea will have to sign a waiver or