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Judicial Power:
An Introduction
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"There is hardly a political question in the United States which does not sooner or later turn into a judicial one."
Alexis de Tocqueville
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Nature of Judicial Power• What Makes Judicial Power Unique?• Dispute resolution
– Deciding application of law in cases– The “Power of the Scale”
• Supremacy clause – Interpretation of constitutional and statutory law– Judicial review
• Marbury v. Madison• Judicial activism v. Judicial restraint
• Weakest branch, according to Federalist– “the least dangerous to the political rights of the Constitution– It will be least in a capacity to annoy or injure them”– Contributes to “good behavior” argument
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Sources of Law and Judicial Power
• Common Law– Connected to prevailing custom– English Legal tradition
• Norman conquest and the curia regis• Precedent• Stare decisis
– Spanish Legal tradition generally similar• Source of common law in Texas
– Not all states recognize a common law tradition• Louisiana • Kentucky
• Constitutional law– US Constitution– State Constitutions
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Sources of Law and Judicial Power
• Statutory and Administrative Law– Public Policy Cycle at Federal and State
levels– Adoption and implementation– Statutes– Regulations
• Case law– Law that arises from judicial decisions– Result of precedent and stare decisis