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POLI 101- October 26.docx

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University of British Columbia
Political Science
POLI 101

THE JUDICIARY Wednesday, October 26, 2011 NOTE: If you were in your tutorial this week, and your TA didn‟t have your assignment, Dr. Baier will bring it to lecture on Friday (Grade will be released on vista today) NOTE: Essays are due November 30 (not November 25 as is listed on the syllabus) Judicial Review - To solve a dispute, you might need to interpret the relevant law or give clearer meaning to the constitution - Hold law up to standards of the constitution - Effectively a change in law - Constitution is the Supreme Law - Any law not inline with the this supreme law will be found to be “unconstitutional” - Review process allows laws to be found unconstitutional - Bulk of the court‟s work 95% is the adjudication of disputes - Rest consists of judicial review: Occurs when a party wishes to dispute the finding of a lower court - The greater the number of appeals, the more likely judicial review will be needed to settle a dispute - Judicical review sometimes consists of court‟s giving greater clarity to the division of power between provinces and the federal government - This redefines the power relationship/relative power found in federalism * In Marbury v. Madison (landmark case of the US supreme Court) - Chief justice Marshall clarifies the job of the court/judicial power in the federal system, specifically the aim of judicial review Judicial Characteristics (Offices) - Principles of the judiciary are implied in the statement in the Preamble, that Canada shall have a constitution “similar in principle to the UK‟ - Already following these principles prior to confederation (1) Impartiality Principles - Longstanding principle of judicial power, Implicit in adjudicative model - Must be removed „third-party‟ from the dispute it is adjudicating (and possible outcomes) - Free from prejudice - Justice is blind Structure of judicial system reflects the principle of impartiality - Courts must be isolated removed from the law profession and colleagues - Appeal: Judges have an incentive to be fair - Judgments have the possibility of being appealed (affects the judges‟ reputation, etc.) - Appeal is not unlimited: Resources are required limiting opportunities - Adversarial Character: Ensure lawyers bring best arguments (theoretically) to the court - Judges act as referees between sides (arguments) - Political Neutrality: Judges stay out of politics once appointed to a court - Judges are not elected in any form at any level, and do not engage in political activities - Judges who fail neutrality test: held in lesser regard by peers - Unwritten rules of law profession discipline the actions of judges (2) Independence - Enforced through structure of how judges work, and through law (1) Independence refers to independence form the Executive - Actions of governments are being challenged in courts, and therefore it is important that judges are independent of their power (2) Once appointed, judges have security of office (security of Tenure) - Cannot be removed if politician finds their actions - Protects from whims of political branch - Judges serve on „good behavior‟ until 75 - Law fixes
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