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Author: John C. Hughes
ISBN13: 978-0065016529
Title: The Federal Courts, Politics, and the Rule of Law
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ePUB size: 1920 kb
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Language: English
Category: Administrative Law
Publisher: Harpercollins College Div (January 1, 1995)
Pages: 210

The Federal Courts, Politics, and the Rule of Law by John C. Hughes

This text integrates the legal scholar's concern for jurisprudence and interpretive theory with the political scientist's concern for the behavior of judges and other actors in the judicial system  .

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Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. John Jay, the first Chief Justice, clarified this restraint early in the Court’s history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. Politics and the Supreme Court. Few would deny that the political values of justices, as well as theories of constitutional interpretation, play a role in their decisions in specific cases.

Overview - Rule of Law. More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers.

Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Federalism as a Commitment to Preserving Market Incentives (with Yingyi Qian), Journal of Economic Perspectives (Fall 1997) 11: 83-92.

Implementing the Rule of Law: The Role of Citizen-Plaintiffs. The Good Society 13: 36–44. McCann, Michael and Haltom, William. Distorting the Law: Politics, Media, and the Litigation Crisis. Chicago, IL: University of Chicago Press. The Federal Courts: Challenge and Reform. Cambridge, MA: Harvard University Press. President’s Task Force on 21st Century Policing.

But these are much more controversial (see section 1 below). And indeed as we shall see there is a great deal of controversy about what the Rule of Law requires. 1. One Ideal among Others. The fact that the Rule of Law is a controversial idea does not stop various organizations from trying to measure its application in different societies. Groups like the World Justice Project concoct criteria and indexes of the Rule of Law, ranking the nations of the earth in this regard. He contrasted this with rule by extemporary Arbitrary Decrees (Locke 1689: §§135–7).

Generally, the rule of law is the principle that no one is above the law2 and treated equally among citizens. In England, Professor . Dicey developed a concept on rule of law from Edward Coke’s concept in a classic book ‘The Law Of The Constitution’ published in the year 1885. 3 Dicey’s theory of law formed from three concepts of principles

Clearly, federal authorities did not think through this action, and as recreational marijuana has unfolded, the legal landscape surrounding marijuana production, sales, and use has become a jumble of ad hoc guidance, as shifts in one area of the law create problems in adjacent areas. The Obama Administration began making it up as they went along. Notwithstanding the fact that the Supreme Court has found for the supremacy of the federal law (in the case of Gonzales v. Raich in 2005), the Obama Administration has declined to pursue federal preemption over various state marijuana initiatives. First, there is the question of federal income taxes on profits. While state courts have upheld the state tax on marijuana sales, to pay the federal tax constitutes self-incrimination, as the underlying activity remains a violation of federal law.

Frankly, this book was much more useful than that class. The articles provide both a theoretical framework for how courts operate in such environments and a selection of case studies from all over the world. The overarching theme is that authoritarian regimes in many cases actually provide an illiberal form of rule of law for their courts, rather than simply treating them as a facade