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Emphasize:
The language of Marbury v. Madison which has led to a great concentration of power in
the Supreme Court and judicial system. Call attention to the marginalia noting that judicial
review is the ultimate power to invalidate actions by the president and the Congress.
Call attention to the marginalia that many jurists believe in judicial restraint to some degree
and many are activists in some situations. Many judges share aspects of both in their
judicial philosophy.
A. Judicial Restraint
Emphasize:
That the followers of judicial restraint are sometimes referred to as strict
constructionists who believe the Constitution should be interpreted in light of what the
Founding Fathers intended. Cases also should be decided on the facts, if possible, and
on the narrowest possible grounds.
That believers in judicial restraint feel that social, political, and economic change in
B. Judicial Activism
Emphasize:
That judicial activists favor a more expansive role for the courts and want the courts to
play a major role in correcting the wrongs in the society
That activists tend to be innovative and less dependent on precedent for their decisions.
Additional Matters for Discussion:
Determine which justices favor the philosophy of judicial activism and what Presidents
selected them for the Supreme Court.
Note that the Obama administration is likely to favor the appointment of more activist
judges.
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C. A Sample U.S. Supreme Court Case
Emphasize:
The sample case is an example of how the Supreme Court influences critically
important areas of the law. Controversial cases often are decided by a split of 5-4 among
the nine justices.
That the decision has resulted in many more Americans covered by health care
insurance.
Case 3-1: National Federation of Independent Business v. Sebelius, 567 U.S. __, 132 S.
Ct. 2566 (2012).
D. The Nature of the Judicial Process
Emphasize:
Justice Benjamin Cardozo’s five forces that shape a judge’s work are logic, history,
custom, utility, and accepted standards of right conduct.
Cardozo’s language that “in the main there shall be adherence to precedent.” Present
logic as a force in shaping the law as well.
Additional Matter for Discussion:
Discuss whether modern-day judges still follow Cardozo’s approach.
Review the most serious challenges to an effective court system today. Student opinions
will vary but should lead to spirited discussions.
Answers to Review Questions and Problems
Personnel
1. Judges and Justices
The trial judge is responsible for providing litigants with procedures to handle all pretrial-
and trial-related matters. During the trial itself, the judge must apply legal principles that
will enable the jurors to find the facts of the case.
2. Jurors
The move away from unanimous jury verdicts prevents one or two jurors from creating a
mistrial through a hung jury. Research reveals that foregoing unanimous verdicts have not
harmed the credibility of the litigation process.
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3. Lawyers
Lawyers serve their clients and the public in at least these roles—as a counselor, as an
advocate, and as a public servant.
In recent years, lawyers and business clients have clashed over the increased volume of
cases and costs related to handling the litigation.
Organization of the Court System
4. Subject Matter Jurisdiction
The state court of Georgia would have jurisdiction over this matter. Since the matter is not a
5. State Courts
The reviewing or appellate courts evaluate questions of law and tend to defer to factual
6. Federal Courts
7. Decisions by the U.S. Supreme Court
Susan has very little chance of getting the Supreme Court to review her case unless she can
demonstrate a substantial federal issue in what appears to be a simple state contract dispute.
The Power of Judicial Review
8. Judicial Restraint
Judicial review provides courts with the authority to review actions taken by the other two
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branches of government and to declare them unconstitutional. Advocates of judicial restraint
are reluctant to exercise this authority and give great deference to the actions of the political
branches of government.
9. Judicial Activism
Judicial activists are more willing to review actions of the other two branches of
10. A Sample U.S. Supreme Court Case
Dissenting opinions are important because they allow the minority view of the court on a
11. The Nature of the Judicial Process
Justice Cardozo’s five forces that shape a judge’s work are logic, history, custom, utility,
and accepted standards of right conduct. Justice Cardozo compares a judge’s job to that of a
legislator, and the end served by law must dictate the administration of justice. Students’
answers regarding the last part of the question will vary.
Business Discussion #1
1. Where does your duty lie in serving on a jury?
2. Are you protected against adverse employment action by your firm for missing work to serve
on a jury?
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3. How do you reconcile the woman’s prior heart palpitations from years ago with her recent
attack? Was her heart already compromised before she began taking the painkiller Oxxy-1?
While serving on a jury, one must weigh the evidence and try to render a decision based
4. Why didn’t the pharmaceutical company withdraw the painkiller from the market at the first
sign of a problem?
The facts don’t provide a definitive answer. Perhaps the evidence was not clear showing a
Business Discussion #2
1. Who should you turn to for advice?
One should arrange to meet with the general counsel and executive staff. A meeting with the
2. Should you destroy the report?
this problem or reduce liability. It is also a morally indefensible action.
3. In which court can a lawsuit be filed?
A product liability lawsuit, such as this one, normally would be filed in state court.
4. If you lose the lawsuit at trial, can you appeal?