For the legal professionals only, please

[Don Corleone]

Calling Pindar, Aurelian, and Dhepee (you've graduated & passed the bar, right?) and any other members of the bar that I may have overlooked. I have yet another abortion question to ask. I'm not trying to start another fighting thread or anything like that. I actually have a serious, non-motivated question about the American legal system, that just happens to deal with abortion. In reality, it's really more about jurisdiction....

Okay, here goes. Roe v. Wade is the case established a right to privacy and decided that the federal governments couldn't restrict access to abortion (though it could be decided on a state by state basis). Yet, several Federal Courts of Appeal have struck down various pieces of legislation at the state and federal level on the grounds that they violate the US Constitution. ???? ~:confused:

Okay, so the Supreme Court decided that only states can decide abortion legislation, and then lower federal courts turn around and frequently decide that states DON'T have a right to institute parental notification for minors and other sideline issues because it violates the US constitution, which the highest court just said says that only the states can regulate it. What gives? Can anybody, anywhere pass any laws, even requirements for medical certification or hygiene?

Like I said, my question is about the particular application of abortion, but it's really more about what sort of power do the federal appeals courts (in this particular case) really have. Can they trump the Supreme Court, which it looks to me like they have. Can they order states to change their state constitution? At what point, if any, does a legislature have more power than a court? Does a traffic court in Pascagoola, Mississipi have the right to declare Federal legislature that hasn't yet been blessed by a higher court, unconstitutional? If the courts are the only ones that can decide if a law itself is valid in the first place, wouldn't it make sense to have the legislature send all bills to the relevant court systems as a 'quality control' measure and save us all a lot of headache?

I guess in a nutshell, what I'm looking for is how does the heirarchy of the court system compare to the various legislative branches?

[English assassin]

Pending the arrvial of m'learned American friends, and as a *bump*, can an English lawyer have a go?


Does a traffic court in Pascagoola, Mississipi have the right to declare Federal legislature that hasn't yet been blessed by a higher court, unconstitutional

Any court has the duty to apply the relevant law to the facts of the case before it. In practice a magistrates court here (low monkey) would almost certainly not rule on an argument that some statute was, say, incompatible with overriding EU law. If you took that argument you would be told it was very interesting and why don't you go and see if the High Court likes it on appeal? And if the argument was very fancy the High Court would tell you that yes indeed, that IS very interesting, why don't you go and see if the Court of Appeal/House of Lords/European Court of Justice agrees with you?

But that is a practical approach taken by the courts, in principle if it was a blatantly illegal law even the mags court could refuse to uphold it. It has happened, eg we had some rather silly cases about speed cameras and the Human Rights Act for a while, until the Court of Appeal got hold of them and sorted it out.


If the courts are the only ones that can decide if a law itself is valid in the first place, wouldn't it make sense to have the legislature send all bills to the relevant court systems as a 'quality control' measure and save us all a lot of headache?

Think of the work this would make for lawyers. hang on a minute....THINK of the work this would make for lawyers ~:cheers:

Seriously, seperation of powers. And yes I know that is going to yank your chain given your concerns about the Supreme Court...

[GodsPetMonkey]

My learned friend here has already given a pretty good answer, but my understanding is that the UK does not have a Judicial Review process, so I will try to help where I can, but remember that one of the US lawyers will be able to give more accurate information (naturally).


I'm not trying to start another fighting thread or anything like that. I actually have a serious, non-motivated question about the American legal system, that just happens to deal with abortion. In reality, it's really more about jurisdiction....

Well, I wish you luck... Good intentions and all.


Okay, here goes. Roe v. Wade is the case established a right to privacy and decided that the federal governments couldn't restrict access to abortion (though it could be decided on a state by state basis). Yet, several Federal Courts of Appeal have struck down various pieces of legislation at the state and federal level on the grounds that they violate the US Constitution. ???? ~:confused:

I'm taking a guess here, but the Supreme Court... errr, gave itself the power of judicial review, it was in respect of federal legislation, and it alone retains this power. I would hazard a guess that the lower federal courts have jurisdiction to conduct judicial review on state legislation. In my own country, the state Supreme Courts have original jurisdiction on such matters, but then it can be passed to the federal courts. I don't know what court would have original jurisdiction for judicial review on state legislation, but it is not surprising that the lower federal courts would have jurisdiction over such matters.


Okay, so the Supreme Court decided that only states can decide abortion legislation, and then lower federal courts turn around and frequently decide that states DON'T have a right to institute parental notification for minors and other sideline issues because it violates the US constitution, which the highest court just said says that only the states can regulate it. What gives? Can anybody, anywhere pass any laws, even requirements for medical certification or hygiene?

I get the feeling that the Supreme Court said that the federal government CAN'T legislate on such matters, by default that right passes to the state's, but I highly doubt that the Supreme Court declared that the states could legislate as they saw fit (even if such a thing had any weight).
Anyway, by the sounds of it your states are bound by the federal constitution (or at least the parts of it that don't specifically deal with the federal government). The constitution sets out the heads of power granted to the federal government. The federal government can then legislate within these heads of power, and anything outside of these heads of power is the domain of the states (one of the ideas behind Judicial Review is it gives the courts the power to strike down a piece of legislation that is not in one of these heads of power... this is quite useful to the states as well as private citizens). The states would still be unable to make legislation offensive to things like the Bill of Rights and their own state constitutions (or similar).


Like I said, my question is about the particular application of abortion, but it's really more about what sort of power do the federal appeals courts (in this particular case) really have. Can they trump the Supreme Court, which it looks to me like they have.

In theory no (a lower court is bound by the decision of a higher court), but you would be surprised how dodgy it can be. Mind you, the Supreme Court would take extreme offence to this, and is sure to strike down the decision on appeal.


Can they order states to change their state constitution?

Can't say for sure... but it may be possible if the state constitution offends something in the federal constitution that is binding on the states. But there may be other processes in place for such a situation.


At what point, if any, does a legislature have more power than a court?

Err, this is a head spinner... but at all times, except when the legislation in question is offensive to something that the legislator is bound by. I can make it more complex then that, and it really depends on if you view an unconstitutional piece of legislation that as been passed by the legislature as having been truly passed by the legislature as it did not have the power to pass it in the first place (it's like a legal chicken and egg, only 1 egg and many chickens!)


Does a traffic court in Pascagoola, Mississipi have the right to declare Federal legislature that hasn't yet been blessed by a higher court, unconstitutional?

I highly doubt it... I also highly doubt that the Supreme Court would allow any courts below it the power of federal judicial review (remember the binding thing).


If the courts are the only ones that can decide if a law itself is valid in the first place, wouldn't it make sense to have the legislature send all bills to the relevant court systems as a 'quality control' measure and save us all a lot of headache?

*Shrug* The best reason for why not I can give is that it would be impractical... the costs and amount of time involved in a single case where legislation's validity is being assessed is astronomical.


I guess in a nutshell, what I'm looking for is how does the heirarchy of the court system compare to the various legislative branches?

It's like a game of rock-paper-scissors that is so complex, you need someone with years of training and who is being paid princely sums by the hour to play it for you.

[English assassin]

It's like a game of rock-paper-scissors that is so complex, you need someone with years of training and who is being paid princely sums by the hour to play it for you.

Chi-ching. :evilgrin:


my understanding is that the UK does not have a Judicial Review process

Yes we do, its how I make my living. (Well, strictly, I make my living trying to avoid judicial review. Or avoid losing in a judicial review, anyway). Its just a bit different because we think its cute not to write any of the rules down. (see, "years of training" and "princely sums", above)

[GodsPetMonkey]

Yes we do, its how I make my living. (Well, strictly, I make my living trying to avoid judicial review. Or avoid losing in a judicial review, anyway). Its just a bit different because we think its cute not to write any of the rules down. (see, "years of training" and "princely sums", above)

I meant in respect of a constitution (which you don't have, unless I really haven't been paying attention...). Constitutional law is an art form like no other.

Even so, I would like to know what it is reviewed against? I guess common law rights (and there is a truck load of them) but is not the British parliament superior to the common law in all regards? Or is it against EU laws and such?
It's been a while since I really paid any attention to the UK in a legal regard... It's just not that important to us anymore, apart from the occasional precedent that may be useful.

[English assassin]

Well, we do have a constitution, its just "unwritten". And of course it is in fact written (otherwise how would people like me be able to read it?) its just not all written down in one place with "Constitution" on the top.

Although this is often held up as an example of the British sense of humour in truth the situation is not so very different from the States or anywhere else with a written constitution that has generated a fair bit of case law. I don't suppose a US lawyer can advise on a constitutional question simply by looking at the constitution, presumably he also has to consider the case law around it, which is more or less what we do, without the constitution bit.


Even so, I would like to know what it is reviewed against? I guess common law rights (and there is a truck load of them) but is not the British parliament superior to the common law in all regards? Or is it against EU laws and such?

yes, yes, and yes :-)

If we are talking about whether an Act of Parliament will be upheld at all, then really you are looking only at review against EU law. Otherwise the rule is that Parliament is sovereign and can do what it likes. I can only think of one case where the courts have simply refused of their own power to give any meaning to a word in an Act of Parliament, and that was when they ignored the word "unlawful" in "unlawful sexual intercourse" in the (old) definition of rape. The effect was to remove the rule that a husband could not rape his wife, so they were hardly pushing the boundaries of social activism there. But in principle it is the one modern case where the courts have asserted an inherent jurisdiction to ignore a bit of an act, and no doubt many long winded academic articles were launched as a result, to the total indifference of the practising profession.

But when it comes to the meaning of the Act, that is where the fun begins. Obviously Parliament always intends to include all these lovely procedures, safeguards and so on that the judges have "discovered" in the common law? They were SO obvious that they just didn't get mentioned at all, right? ~;) (I can hear DC's teeth grinding all the way across the Atlantic) Naturally Parliament can't have intended to have legislated in a way that is incompatible with our international obligatiions, can it? Better choose an interpretation that is consistent with our treaties then. And with the Human Rights Act, of course. And come to think of it lets make almost all the ruels of interpretation common law rules too... and so on.

If they inserted a clause that suggests they really DID mean to do all these naughty things we'd probably have to let them get away with it, but we'd soon find a way to bring things back under control. (They tried this with so called "Henry VIII" clauses which purport to give ministers very wide powers, but, obviously those powers can only be used for the purpose for which they were intended and we'll decide what that was thank you very much.)


It's just not that important to us anymore, apart from the occasional precedent that may be useful

If you've got a tricky case in a new area its always worth looking at whether anything similar has already come up in Oz and Canada in my experience, but not day to day, obviously. Oz lead the way in constructive trusts for a while and Canada is usually pretty good on admin law. (NZ too but they don't generate enough cases for there to be much chance of finding anything.)

[Don Corleone]

Learned gentlemen, thank you very much for your answers. The only thing I have to add is that in fact, lower federal courts DO have the right of judicial review. It is derived from the supreme court's right to judicial review, ala Marbury v. Madison. How exactly it was derived is anyone's guess, but a low ranking federal court does have the right to strike down acts of Congress.

I'm not trying to focus on abortion specifically, but I happen to understand the case law here. Roe v. Wade was the defining Supreme Court case where the Supreme Court decided that the Federal government does not have the jursidiction to restrict states from providing access to abortion (and since they didn't define their decision, this has been interpreted to be an absolute right). This is why federal appeals courts can and do strike down 3rd trimester abortion bans at the federal level.

BUT... as far as I know, nowhere did the Supreme Court limit the ability of states to regulate themselves. Had they intended that, I'm sure Justice Blackman would have worked that into the final wording of the majority decision. Now, one of two things is going on... either 1) a later Supreme Court decision that I am currently unaware of found just that (that states themselves may not restrict access to abortion) or 2) lower federal courts decided to extrapolate this restriction on their own.

This is the crux of my problem. I am trying to understand at what point is the state government beholden to the federal court system, even when the supreme court has not ruled in favor or against a state's right to act.

Now, it gets even more complicated and confusing when you consider that state courts can and have ruled that federal legislation is unconstitutional. In affect, this places Congress and the President under the jurisdiction of the state court.

When you guys talk about the mountain of legal work required to get a court to review and approve or revoke the legal authority of any law that is passed, all you'd be doing is formalizing the process. In practice, this already happens.

Finally, I want to leave you with this thought. I appreciate the two of you being honest and frank. I do not mean this as a slam, but an honest and frank assessment. Can we say that we DO live in a representational republic here in the United States? As I do not have the power of judicial review, all I can do is pay for access to it, am I not a lesser citizen than somebody who does indeed hold a law degree and the privelege to present before the court? If the branch of government that represents my interests, the Congress, is subservient to the Judicial branch, at all levels, are not my interests always secondary to the interests of members of the bar, at all levels? I'm talking about access to power here.... do you agree?

[English assassin]

As I do not have the power of judicial review, all I can do is pay for access to it, am I not a lesser citizen than somebody who does indeed hold a law degree and the privelege to present before the court? If the branch of government that represents my interests, the Congress, is subservient to the Judicial branch, at all levels, are not my interests always secondary to the interests of members of the bar, at all levels? I'm talking about access to power here.... do you agree?

Yes and no. (Incidentally before I forget you do need a US attorney to answer your original qu, its clear to me that your judicial review has wrinkles that we don't have in the UK)

Yes, if you find your life being affected by whether or not you can argue a good case on the meaning of a law, you are disadvantaged by not being/affording a lawyer. I guess if you are interested in politics you are so affected. I don't think you are in practice much worse off than me, since I can only take the cases my clients have brought against them and want to fight. And as I hate litigation as a waste of time we usually try to dodge the cases anyway. Neither you nor I really have what was once neatly summed up to me as "agenda control". Plaintiff lawyers have a bit more agenda control but still, not a lot.

Anyway as someone else said in a different thread, if you want to extend your house you are disadvantaged by not being an architect or a builder. There have been times when it would have been handy to have been a mechanic. and so on.

Now, where are all these attorneys we hear the US is crawling with...?

[Don Corleone]

Yes, but EA, if I want to expand my house, I need an architect/builder AND a lawyer. If I get into a motor vehicle accident, I need a mechnic AND a lawyer. To perform any action within American society you need X AND a lawyer. You cannot even understand your health insurance agreement and expect decent coverage without a lawyer.

My point is that the laws of this country are portrayed as being by the people, for the people. I don't mean to sound like some starry-eyed kid that's getting a rude awakening, but the fact is, our civics classes are a bunch of lies. We live in an platocracy. How else can you describe it? I'm just amazed how much power even the lowest of low courts has over the will of the people realized by the legislature.

[English assassin]

To perform any action within American society you need X AND a lawyer.

Well that's just terrible. Now, about these "green cards"...


We live in an platocracy

You wish ;-)

(Sorry, I know its naff pointing out a typo, but that was was quite good)

[Don Corleone]

Hehehe. Good answer, mate. What exactly would a 'platocracy' be? For those following along at home, I meant to say 'plutocracy', an aristocracy not by birth, but by those passing some certain hurdle of merit (usually wealth, but in America's case, a membership in the local bar association).

[English assassin]

Well the great man himself wrote a book saying what a Platocracy would be like. http://www.amazon.com/exec/obidos/tg/detail/-/0140440488/102-3501005-8952949?v=glance and IIRC a very odd place it was too.

(LOOK ITS NOT OT IF HE JOINS IN TOO, OK????)

[Don Corleone]

I thought he was the one that advocated for a government by only those who had proven themselves to be 'successful'. He had envisioned a panel of philosophers, not lawyers, but hey, not that far off his original vision. Meanwhile, all us doctors, engineers, financiers are the cave dwellers, staring at images...

[Kanamori]

May I have your firstborn?

I don't know about the lawyers, but my interest in law is not control. There are many, classier, things to do with my education. I study it because I like it(s power ~;)).

[GodsPetMonkey]

If we are talking about whether an Act of Parliament will be upheld at all, then really you are looking only at review against EU law.

Well that's what Judicial Review, as set out in Australia's constitution, entails (the power to strike down legislation that is not allowed on constitution grounds). In typical tunnel vision, this is what I was talking about! Silly me.


Otherwise the rule is that Parliament is sovereign and can do what it likes. I can only think of one case where the courts have simply refused of their own power to give any meaning to a word in an Act of Parliament, and that was when they ignored the word "unlawful" in "unlawful sexual intercourse" in the (old) definition of rape. The effect was to remove the rule that a husband could not rape his wife, so they were hardly pushing the boundaries of social activism there.

Statutory interpretation... oh the fun that can be had. It's amazing what you can objectively find when searching for the intention of the legislation.


If you've got a tricky case in a new area its always worth looking at whether anything similar has already come up in Oz and Canada in my experience, but not day to day, obviously. Oz lead the way in constructive trusts for a while and Canada is usually pretty good on admin law. (NZ too but they don't generate enough cases for there to be much chance of finding anything.)

Of course, but they are so rare... and in some fields we are really splitting apart (mmmm, equitable estoppel).


BUT... as far as I know, nowhere did the Supreme Court limit the ability of states to regulate themselves. Had they intended that, I'm sure Justice Blackman would have worked that into the final wording of the majority decision. Now, one of two things is going on... either 1) a later Supreme Court decision that I am currently unaware of found just that (that states themselves may not restrict access to abortion) or 2) lower federal courts decided to extrapolate this restriction on their own.

Unless the states were a party to the case, I would think any statement by the court in Roe v Wade about what the states could do would be obiter dictum (but very persuasive obiter dictum).

Personally I would be surprised if any such decision in the lower courts would not have been appealed all the way up to the Supreme Court (and thus, they would have endorsed it in a round-about way).



This is the crux of my problem. I am trying to understand at what point is the state government beholden to the federal court system, even when the supreme court has not ruled in favour or against a state's right to act.

Well, if the lower federal courts has the power of judicial review of federal legislation, it comes as no surprise that they have it for the states too (see my above post).

But, in truth, judicial review does not mean the legislature is bound by the courts, rather, they are bound by some other document (state constitution, bill of rights, etc) and it's the courts that assess and enforce these documents. With out some concept like judicial review, the constitution would be powerless, after all, no-one can enforce it with respect to the government. Seeing how terrible your one civil war was, I don't think it would be a wise idea to suggest that the people should take up arms to protect what is conferred by the constitution. In truth the whole system is pulling itself up by it's own bootstraps, but what use is a constitution that is all good intentions and no action?


Now, it gets even more complicated and confusing when you consider that state courts can and have ruled that federal legislation is unconstitutional. In affect, this places Congress and the President under the jurisdiction of the state court.

How this works I have no idea... seriously, do state courts even have any jurisdiction over anything outside their state? I don't see how any judicial review by a state court in California could be seen to have any power in New York. I guess it may be possible that the federal law in question is no longer valid in the state, but what a mess! I guess everyone wants a piece of the action.


When you guys talk about the mountain of legal work required to get a court to review and approve or revoke the legal authority of any law that is passed, all you'd be doing is formalizing the process. In practice, this already happens.

Elements inherit in the adversarial system make the idea of a judicial tribunal reviewing every piece of legislation passed impractical. But seriously, it's not just the song and dance in the court room, constitutional law is a highly pedantic area, and normally it takes a very long time to come to a decision. I just don't think it makes much sense, just adding another layer really (which I guess is what you already see it as).


Finally, I want to leave you with this thought. I appreciate the two of you being honest and frank. I do not mean this as a slam, but an honest and frank assessment. Can we say that we DO live in a representational republic here in the United States? As I do not have the power of judicial review, all I can do is pay for access to it, am I not a lesser citizen than somebody who does indeed hold a law degree and the privelege to present before the court? If the branch of government that represents my interests, the Congress, is subservient to the Judicial branch, at all levels, are not my interests always secondary to the interests of members of the bar, at all levels? I'm talking about access to power here.... do you agree?

Well, it's a good question. I do believe it is a representative republic system. We have judicial review enshrined in our constitution, and while not perfect, it has by and large been to our benefit. The problem is people tend to remember the bad with out paying to much attention to the good.

I personally think that a lot of people just don't know how the system works. In fact, people just trust the media's assessment of an outcome of a case despite the media normally turning it into a beat up (sells more papers!). So an implied right to privacy (as questionable as it may be) that prevents the federal government from legislating on abortion turns into the SCOTUS Free Abortion Clinic, 2 doors on the left from Court Room 3. The practical outcome of a court case is rarely what is stated in the decision (which tend to be highly legalistic and normally ignore the context, history and outcomes of a case). While I have not read Roe v Wade in full, I think you would be hard pressed to find the passage where the majority say it's alright to kill your unborn children by the dozen. By the by, I find it ironic that people who are against the court inferring things from the constitution in turn infer such things from the courts judgements.

Now, I am not saying that people should get a law degree before the comment on cases, far from it, it's important that the public are involved in all branches of the government, but they should get all the facts, and if they wish to pass absolute judgements of their own on the courts they should gain an education on the system (that is, read a book! Broadsheets and cable TV news are trying to sell to you, increasingly they are only talking about the parts which sells the best, I guess the truth is sometimes dull).

For access to power, that's tricky too. Sadly, it's the reality that the law is so complex that it takes an expert to do it for you. English Assassin gave the example of the architect, and there are many others that could be used (though your point about lawyers being needed so often is equally valid). But it is not the government or courts which set the cost of having a lawyer appear on your behalf, it's the lawyer themself. Regardless, do you think you would stand much of a chance representing yourself in such a case?
My final point on this matter... while you have never been able to exercise judicial review, have you ever been able to vote IN congress on a piece of legislation?