Binding of a precedent is called a mandatory precedent in some of the court structures. A binding precedent wants all the lower courts to trail the ratio decendi of the higher courts, as the evidences of a case are the same other alike. Precedents can only be binding in the same authority, such as State court hierarchies. Precedents recognized in the Federal Court, for example, are not binding on court hierarchies in any of the States. The binding precedents are of the Highest Court, the County Court, and the several specialized courts.
What is a model? “A model is a simplified representation of reality it does not constitute reality itself. Models purposely ignore certain aspects of reality and focus on selected and related sets of crucial factors” (Segal and Spaeth 2002). In this paper, I will be discussing the three models and which model explains how justices behave the best: the legal model, the attitudinal model, and the rational model. The legal model justices vote on their preference but when given the opportunity they would vote to overturn the precedent because it does not fit their personal opinions. The attitudinal model justices are provided with the best prediction on a given case to determine how to vote. The rational model is the last model that feeds off the other models. The justices for this model vote on their preferences and not on sides. I will describe how each model links into each other.
Marbury v. Madison, which established the power of judicial review for the Supreme Court, changed the course of American history. This power to review legislation that congress has passed and possibly deem it unconstitutional has had a profound impact on American society. This power provides a check on the Legislative branch, but it also lends itself to an important debate over when the Court can and should use this power. Should the court use this power to increase the power of the national government, something many call judicial activism? Or should this power be used to curtail national legislative power and increase the liberties given to individuals? During the period around the Great Depression, the court dealt with many economic cases regarding these questions, and at first glance, it appears that they did not seem to favor either the government or the individual. Looking closer, however, one sees that the cases that side with the individual struck down legislation that interfered with the commerce clause or police power. When legislation invoking either of the aforementioned clauses was provided, the Supreme Court tended to side with the Government over the individual, as seen in the cases Munn v. Illinois, National Relations Board v. Jones, and Wickard v. Filburn. When the legislation provided had no business with the commerce clause or police power, such as in Adkins v. Children’s Hospital, the court had no choice but to side with the individual.
Types of influencing factors on legal traditions include: cultural, economic, political and social contexts (Different Legal Traditions, 2012). For example, think of Paul’s scenario when he was being tried for causing unrest among Jewish people in Roman court, but the Jewish people did not want Felix to try Paul court, and instead, wanted Paul handed over to them for a trial in Jerusalem. Paul is allowed to be sent to appear before the emperor and he attests that there are “hidden charges or motives” for his political prosecution. Paul is exposing an “unmentioned sub-story” (certain Jews in particular who plan on killing Paul during his location transfer) that relates to his issues and imprisonment. Paul asked the court to hear all sides of the issues before making a decision on Paul’s case. Paul was grateful to stand trial before Felix because Felix was familiar with these Jewish people and the issues which were really at stake. Paul could easily state his complicated case before Felix, with Felix’s ability to follow along with all the moving pieces like culture, religion, and politics, and how they were influencing this particular
Our founders recognized the plausible abuse of power by an out of control Judiciary and a fractious Congress. Despite our founders intentions the United States government doesn’t consist of three coequal branches; ergo, Americans are subjugated by a judicial tyranny. When the states were drafting the Constitution, the power of Judicial Review was not delegated to the Supreme Court (SCOTUS) or any other branch of the government. Our founders knew that placing too much power in any one branch of government would be a significant threat to liberty which could result in despotism. This thread will examine the brief history of Marbury v. Madison and how SCOTUS hijacked the power of
The Supreme Court, which sees almost 150 petitions per week, called cert petitions, must carefully select the cases that they want to spend their time and effort on (Savage 981). If they didn’t select them carefully, the nine justices would quickly be overrun, so they have put in place a program to weed through the court cases to pick out the small number they will discuss. There are a few criteria that are used to judge whether or not a case will be tried. The first is whether or not the lower courts decided the case based on another one of the Supreme Court’s decisions for they will investigate these in order to withhold or draw back their conclusion that they made in their court case. Another is the case’s party alignment: sometimes the justices will pick cases that will align with their party beliefs, like trying to get a death row inmate off of his death sentence. They also make claims about the “life” of the case- the Supreme Court only hears “live” cases- they do not try to go back in time and re-mark a case that has long since been decided (Savage 981). Lastly, they like to take cases where the lower courts did not decide with one another -these cases can have t o do with interpretations of the law that have been left up to the lower courts and should be specifically defined by the Supreme Court (Savage 982).
In the video engager, Dr. Kristina Mitchell explains the three different models of judicial decision making; these models include the legal model, the attitudinal model, and the strategic model. The legal model is when the Supreme Court Justices make their decisions based off of fact of case, laws, and precedents. A precedent is a previous case that deals with the an issue that had been discussed before by the Supreme Court. Essentially, the justices would use the information from previous cases to help them to decide on the case at hand. The weakness of the legal model is that basing the decisions off of previous cases would mean even though the world is moving forward, and times and opinions are changing, we are using things from the past to aid in decision making. However, a strength of using this model is using the past to help see how people will react to the decision made and determining if the precedent’s ruling was positive or negative. The Attitudinal model is based off of the fact that the Justices serve for life, unless they are impeached or convicted so the justices have no constraint on their decision making. This model explains that Justices make decisions
Throughout the years there have been limitless legal cases presented to the court systems. All cases are not the same. Some cases vary from decisions that are made by a single judge, while other cases decisions are made by a jury. As cases are presented, they typically start off as disputes, misunderstandings, or failure to comply, among other things. It is possible to settle some cases outside of the courts, but that does require understanding and cooperation by all parties involved.
In the case of Marbury v. Madison the power of judicial review was granted to the Supreme Court in 1801. The Constitution does not give power of judicial review. On Adams last day in office, several government officials upheld the case. Judicial review does not exist in countries that have a centralized or unitary form of government. The elected parliament declares it is the law of the land. Halsema Proposal to Netherlands has taken the initiative to start the process of judicial review.
An important point to keep in mind is that all binding decisions are initiated at the highest court at either the federal or state level. These decisions are precedent only in the jurisdiction where the court presides. Stare decisis refers to the practice of the courts adhering to previously rendered decisions. This is especially true involving United States Supreme Court decisions that have binding authority on both the federal and the state courts. Remember that court decisions in the same jurisdiction only have persuasive authority which is not binding.
a member of the judiciary such as a judge, the authority is not in the
Judicial restraint is loosely defined as decisions or judgements that take a narrow interpretation of the constitution. It reflects a respect for the law as it has been enacted by the Legislature. Rather than creating new laws from broad interpretations. For myself, it is somewhat harder to distinguish what judicial restraint is. An example of judicial restraint would be the 1996 case of Bowers v. Hardwick. Hardwick was charged with violating the Georgia statute of sodomy by committing a sexual act with another male in the bedroom of his home.
“Congress passed the Judiciary Act of 1789, which laid the foundation for the current U.S. national judicial system by creating a complex three-tier system of federal courts,” (Neubauer 53). U.S. Supreme Court is at the top, consisting of a chief justice and five associate justices, 13 district courts at the base, each presided over by a district judge (Neubauer 53). In the middle was a circuit court in every district, each composed of two Supreme Court justices, who rode the circuit, and one district court judge (Neubauer 53). It is known that, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,” (Neubauer 52). It is stated in Marbury v. Madison that, “The power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States,” (Marbury v. Madison). Ultimately, Marbury v. Madison declares that “the power of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written,” (Marbury v.
“A Binding Precedent is a decided case which a court must follow even though it is considered to have been wrongly decided…” (Terence Ingman, 2002, Page 420). “A Persuasive Precedent is one which is not absolutely binding on a court but which may be applied” (Terence Ingman, 2002, Page 420) Bromley London Borough Council V Greater London Council (1982), Searose Ltd V Seatrain (UK) Ltd (1981). There are certain elements that Judicial Precedent is dependant upon, they are that the material facts of the case must be the same, the principle must be a proposition of law, it must form part of the Ratio (see below) and that there has to be sufficient and accurate reports of earlier decisions.
Since there is a premise on which the judgment will be made, a proper benchmark, the judicial procedure occurs much quicker. For this reason, it is much more efficient in its process in relation to the codified system which does not follow this process of a precedent based system. As the decisions made are premised on antecedents, they have a firmer basis. This is an obvious advantage over the common law as the codified system of law has to rely on the creation of rules and legislation rather using case laws to create future laws.
A key factor of judicial precedents usually refers to decisions of a higher court being binding upon a lower court in the hierarchical structure of the courts. This is best illustrated in Donoghue v Stevenson . However, if the previous decision was made by a court of equal or higher status to the court deciding the new case, then the Judge should follow the rule of law set in the earlier case. These are known as Binding precedents.