Under the Constitution, the legislative branch checks the power of the executive branch in four fundamental ways: advise and consent relative to presidential nominations; control of the federal budget (U.S. Const. art. I § 7-8); the ability to pass legislation and override the President’s veto (U.S. Const. art. I § 7); and power to remove the President from office through impeachment proceedings (U.S. Const. art. I § 3). In the case of the judicial branch, the Constitution allows the court to determine the constitutionality of the executive branch’s actions. (U.S. Const. art. III § 2).
How does the doctrine of stare decisis contribute to the interpretation of common law?
Consistent with the common law tradition, stare decisis, as it relates to the development of common law jurisprudence consists of two guiding legal principles. The first principle asserts that prior superior court decisions with a similar nucleus of facts should create binding precedent on future decisions by the same court and all lower courts. Secondly, superior courts should not overturn prior precedent absent strong, persuasive reasons to do so. (see, generally, Kmiec, 2004; Sinclair, 2007).
How did the powers given in the Articles of Confederation contrast with those given in the Constitution?
Unlike the Constitution, the Articles of Confederation established a national government that did not even have the power to levy taxes. Whereas under the Articles, Congress could only exercise specific, enumerated powers, the Constitution expanded Congress’s powers to also include implied powers. Most notably, the Articles emphasized decentralized powers shared between sovereign, independent states, as opposed to centralized authority in a strong national government created by the Constitution. (see, generally, Morris, 1988).
Discuss the weaknesses of the Articles of Confederation and how those weaknesses were addressed in the Constitution
Scholars speak of three primary weaknesses of the Articles of Confederation: the establishment of a weak federal government relative to the states, no federal court system, and no system for resolving disputes between states. In response, the Constitution established a strong central government, allocating power among three branches (legislative, executive, and judicial) of government. Most notably, the Constitution established a robust federal court system to resolve disputes between citizens and states, replacing the complex system of arbitration that existed under the Articles. (see, generally, Rakove, 1988; and Amar, 2012).
Legal opinions can be discussed in popular, professional, and scholarly literature. What are some examples of each and the strengths and weaknesses of each type of source?
What is the difference between primary and secondary sources? What are the benefits and advantages of each?
Primary legal sources (court decisions, statutes, U.S. Code, to name a few) provide an official statement of law from a government entity (court, legislature, etc) with the authority to make or interpret law. Secondary sources, on the other hand, explain and analyze primary sources. Because secondary sources are broad in scope and contain numerous cross-references to primary sources, they are a good place to start before reading primary sources.
Describe the difference between the Supreme Court’s original and appellate jurisdiction. Explain which area of jurisdiction is more significant and why.
Unlike appellate jurisdiction, when the Supreme Court has original jurisdiction over a case, it can render decision before the case is heard by a lower court. Arguably, the Court’s appellate jurisdiction is more significant for two reasons. First, cases that fall under the Courts original jurisdiction are rare and narrow in scope. Secondly, appellate jurisdiction cases are more important for the simple fact that decisions in these cases often involve the court resolving constitutional questions that have far-reaching impacts.
Describe how one might efficiently and effectively research an area of law
Begin by identifying the operative facts of a given legal matter. From there, conduct a search of all written or case law specific to the legal question that needs an answer. Retrieve legal opinions involving court cases, prioritizing Supreme Court decisions over lower courts. Additionally, law journals and bar publications are also a good sources of review for current, and relevant information for the status of the law.
References
U.S. Const. art. I, § 7-8.
U.S. Const. art III § 3.
Rakove, J. N. (1988). The collapse of the articles of confederation. In Barlow, J. Jackson,
Levy, Leonard W. & Masugi, Ken. The American Founding: Essays on the Formation of the Constitution, 225-45.
Amar, Akhil. America's constitution: a biography, p. 517 (Random House 2012).
Kmiec, K. D. (2004) The origin and current meanings of judicial activism, 92 Cal. L. Rev.
1441 Available at: http://scholarship.law.berkeley.edu/californialawreview/vol92/iss5/4
Morris, R. (1988). The forging of the union, 1782–1789. HarperCollins Publishers. pp. 245–66.
