H9-10 : CM : THE JUDICIARY IN THE U.S.A.

INTRODUCTION

-Among the judicial systems of the world, the American judiciary is perhaps the most controversial: - the Founders never clearly defined its precise nature, and its role has been heatedly debated since their time. - The question whether the judiciary clarifies or makes policy, or both has never been fully resolved.
-The judiciary has had to render a decision on almost every major controversy in American history.
Ex: the rights of African-Americans and other minorities, the war powers of the president.
Alexis de Tocqueville wrote that “scarcely any political question arises in the U.S. that is not resolved, sooner or later, into a judicial question.”
-American lawyers are frequently disdained bec. they seem to be everywhere, whether or not they are needed.
-America is the world’s leader in many types of torts (=suits in which an injured person attempts to recover money for damages: -economic, such as medical expenses and lost wages -noneconomic, such as “pain and suffering”
-The American sys. of justice is based on the adversory process, with 2 sides opposing each other on a specific point of law.
-Until the 20th century, law in the US was based on the idea of natural law (or divine law). This concept held that humanity possesses absolute rights (divinely ordained) on which a king or gvt couldn’t trample.
Best illustration of natural law: the Declaration of Independence which reads that “all men are endowed by their Creator with certain inalienable rights.”
-Now: modern conception of law: inherited legal codes and traditions need to be adjusted to contemporary social conditions. This new philosophy inspired for Franklin Roosevelt’s New Deal programmes.
-Some critics have been advocating a return to absolutes with fixed principles rather than fluctuating law.
Ex: Abortion would be settled not by contemporary norms of sty but by fixed principles of natural law.

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