the nature of the judicial process summary

Virginia Law Review 42: 23–39. Impeachment, involving legislative accusation and trial, has proved to be a cumbersome and generally ineffective method of getting rid of unfit judges and, consequently, has in some states been replaced or supplemented by removal machinery operated and controlled by the highest judicial officers of the state. The realist “ferment” of the 1920s and 1930s had important political consequences, especially in the United States. For under the doctrine of separation of powers it became improper for legislatures to engage in the judicial process—issuance of bills of attainder, for example—or for judges to assume functions that are thought to be within the scope of the legislative process. The purpose of the statute requiring husbands to return was to strengthen marriages: therefore, the court interpreted “return home” as meaning “start for home.” The court also objected to what it considered the wife’s father’s “unjust enrichment.” These decisions exemplify what Cardozo called the method of sociology. Since judges are expected to approach each case with an open mind, in all nations they lack authority to initiate proceedings for if permitted to do so, it is felt, they would be compelled to pre-judge the case. Refresh and try again. As to the distinction between the administrative and judicial, some writers—such as Hans Kelsen and Otto Kirchheimer—insist that these processes cannot be distinguished functionally and that it is more or less a historical accident whether some disputes are assigned to what are known as courts whereas others are assigned to what are known as administrative agencies. 2d ed. HOWELL, PAUL P. 1954 A Manual of Nuer Law. Busey, James L. 1964 Latin America: Political Institutions and Processes. This practice, however, does not constitute a subset of judicial review as defined above. 1939 Criminal Appeals in America. Even if it is unwise to use this particular concept, the problems thus raised are crucial, since the dispute is often over degree of conformity; and some means of handling these problems must be devised. 31–48). Nowadays the legal profession has much to say as to who among them shall be selected as a judge, even if the actual selection process vests the final choice in political authorities. Underlying much of the work of the realists is the view that since judges must inevitably choose between competing values, awareness of the fact that they are making such choices, some knowledge on which to base these choices, and concern for the social consequences of the choice are desirable. Cardozo's thesis is dedicated to the hard case. 295- 314 . Your PowerPoint presentation must be at least 10 slides in length, not counting the title and reference slides. Ultimately the judicial institution must yield. Hash File : 795324466ea50ad1726fdced10b781b6.pdf. . Unit IV discussed technology, alternatives, history, and the future. Nothing could be farther from the truth. Abraham, Henry J. Man. On the other side conservatives not surprisingly used the orthodox explanations of the judicial process to defend the restrictive judicial rulings, to urge judicial control of legislative and administrative agencies, and to stress the desirability of judicial checks on popularly elected and politically accountable decision makers. Disagreement will increase as a society becomes more heterogeneous. Whether judges do permit factors of personal bias, prejudice, or subconscious predispositions to influence their rulings is an empirical question, but that they will not do so is the working assumption of all established judicial systems in the free nations. Sorauf, Frank J. Press. Rating: Jacob, Herbert 1965 Justice in America. Furthermore, often the judge is not asked which rule should be applied but what happened, that is, to determine who did what to whom. Similar plans are now in operation in Kansas, Alaska, California, Alabama, and Iowa; and movements are under way for the adoption of the idea in still other states. For centuries hundreds of writers in thousands of articles and books have tried to determine what is the essence of the judicial or adjudicatory process, what distinguishes it from the legislative and administrative processes. This kind of impartiality is easy to achieve. Boston: Little. New York University, Law Center. Chicago: Scott, Foresman. Do remember this book is essentially a collection of. American Bar Association 1938 Minimum Standards of Judicial Administration. If it does not do so gracefully by abandoning its earlier position, then the written constitution will be formally amended, or the composition or the powers of the judicial body itself will be altered. More important than the formal constitutional and institutional arrangements in disconnecting the judicial from the rest of the political system are the factors growing from the judicial role. Their decisions must be justified as the single right answer, required by precedent or statutory command, and consistent with the whole corpus of the law. American Journal of Comparative Law 3:186–198. Then, copy and paste the text into your bibliography or works cited list. The choice that ap-pears on the ballot is simply whether Judge X shall, or shall not, be retained in office. Nature of the Judicial Process.. [Benjamin N Cardozo] -- A distinguished jurist provides insights into the judicial role by asking and answering the question, "What is it that I do when I decide a case?" The man could bring the phone book to life. The Nature of the Judicial Process. Among the contributors are Justices Rupp, Leibholz, Hopker-Aschoff, and Wintrich. Since judges are recruited from among the educated members of the community and are likely to be from among the dominant social classes, and since they ordinarily are not directly accountable to the electorate, the impact of the class structure upon the judicial system cannot be ignored. University of California Publications in American Archaeology and Ethnology, Vol. The striking implications of Marshall’s third proposition become more apparent on analysis of the governmental functions which courts ordinarily perform (Almond & Coleman 1960, pp. Switzer-land, as noted above, is something of an exception, for its Federal Tribunal is empowered to evaluate only the constitutionality of cantonal statutes.

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