Note about this outline: This is a sample law school outline for a Professional
Responsibility course at a top law school. Use this outline as a guide to learning
Professional Responsibility or as a study aid for your law school exams.
I. The Doctrine of Judicial Review
A. The Legitimacy of Judicial Review
ï‚· Original Jurisdiction of the Supreme Court: Under Article III, Â§2, the
Supreme Ct. has original jurisdiction in all cases;
1. affecting ambassadors and other public ministers and consuls in which a
state shall be a party; AND
2. in Which the state is a party a/g another state.
ï‚· Appellate Jurisdiction of the Supreme Court: Art. III, Â§2 further states that in
â€œall other cases before mentioned, the supreme ct. shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and under such
regulations as congress shall make.â€
1. Regulation by Congress of Courtâ€™s jurisdiction: congress has the ability to
limit the Courtâ€™s jurisdiction. Congress has done this by requiring
diversity jurisdiction, or minimum amounts in controversy, etc.
2. Judiciary act of 1798: mentioned below.
ï‚· Marbury v. Madison (1803): One branch is being asked to usurp authority
over another branch.
(1) There is an issue between political discretion (political questions) and
(a) political questions are not reviewable judicially, but are reviewable
(1) i.e., some acts of the president are not reviewable by the courts.
for example, the president issues pardons w/o judicial interference
(they are reviewable only through the political process where
there is power to vote politically to review the decision. (only
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reviewable by the electorate when they vote out a certain
(2) If the Constitution commits discretion only to the president,
no review is allowed. However, if committed to other
branches as well, review is allowed.
ï‚· Courts have implicit power to review acts of Congress. Courts have
power to order executive branch around.
ï‚· Where there is no discretion given by the Const., acts by the Executive and
Legislative Branches are Judicially Reviewable
1. For ex: Pres. issues pardons w/o judicial interference (politically - you cd.
vote to review the decision); Pwr. to Veto is another i.e.
2. For Ex: Legisl. - Congress has exclusive authority to decide certain
issues; i.e. try impeachments (Congr. can decide how to try it; flip coin)
ï‚· Does the Supreme Court have the Authority to issue the Writ of mandamus
for commission of Marbury? Held: yes the writ of mandamus was correct for
government ministerial fxns. (note that it wd be improper writ for a
1. Â§13 of Jud. Act of 1789: auth. Sup. Ct. to issue Writs of Mandamus to
anyone holding office in U.S. (this act extended the supreme courts
original jurisdiction to cover a case like Marbury. It is one example of
statutory regulation (or in this case, extension) by Congressional act.
2. U.S. Const. creates a Sup. Ct. w/ smaller Ct. under; Sup. Ct. protects the
ï‚· Art III: Fed. Jud. Pwr. vested in one Sup. Ct. and in such inferior cts. as
Congress shall determine (Jud. Act of 1789 determined)
1. Congress has the power to limit the Supreme Courtâ€™s jurisdiction (but
Congress cannot expand the Sup. Ct.â€™s juris); Art. III: Fed. Crts. limited
to certain subjects:
--- Federal Question;
--- Jurisdiction affecting ambassadors, repres. from foreign countries;
state is a party w/ a foreign representative
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--- State v. State
--- amount in controversy requirement.
2. Appellate Juris. - all other cases within Fed. Juris. w/ such exceptions as
Congress shall determine
--- SC has no juris. over certain fed. cts. (w/ diversity cases) and are ltd. to
Fed. Q. Juris.
3. Congress has complete discretion in deciding the jurisdiction of any lower
4. Old 2 juris of S.C.: (1) Review by appeal, and (2) Writ of Certiorari
(discretion to decide), and today all decisions are under discretionary writ
of certiorari (w/ few exceptions, like review of a 3-judge panel)
ï‚· Retroactive Application of the Law: new decisions by SC are fully retroactive
to all cases that are not final yet (e.g., appellate review pending)
1. the Sup. Ctâ€™s. decisions only affect the parties before it. If the Court
decides one way in a certain case, that does not stop executive branch from
arresting a person under the same â€œunconstitutionalâ€ statute. Of course, once
in court, defendant will win. But executive branch may be hoping that the
Sup. Ct. is ready to change its stance.
1. No application to Habeaus Corpus Cases
ï‚· control over Fed. Crt. Jurisdiction: if the SC rules that prosecution of people
who burn the flag is unconstitutional, it really only applies to that sole
individual before the