I
apologize if this question is old hat to many of you. Does anyone know
off the top of his or her head if Marbury sought a writ of mandamus in a lower
court after losing in the Supreme Court? Thank you in advance for any
help on this issue.
Mike
Allen
Michael P. Allen
Assistant
He did not. As is true of everything else about Marbury, there's a
debate between legal realists--i.e., he didn't because it would have
disserved the interests of the Federalist Party--and legalists--he didn't
because in fact there was no lower court that had jurisdiction.
sandy
At 04:04 PM 8/19
on to hold
exclusive.
Best,
Louise
At 05:05 PM 8/19/03, you wrote:
He did not. As is true of
everything else about Marbury, there's a debate between legal
realists--i.e., he didn't because it would have disserved the interests
of the Federalist Party--and legalists--he didn't because in fact
How interesting! So does this lend support to the
realist as to why Marbury didn't seek the justice
that Marshall's own opinion said he was entitled to (though not from the
SC)?
sandy
At 05:41 PM 8/19/2003, you wrote:
August 19, 2003
Dear Sandy,
The
Circuit Court in Washington, D.C. had
Dear Sandy,
It is a
mystery. Bloch suggests that Marbury might well have been a
Federalist plot, and Marshall might well have been in on it.
Mission accomplished, further action would have been unnecessary.
Another line of argument notices that the state courts were open.
Shugerman has argued
created by the Act of Feb. 13, 1801. And even in 1838, Kendall was
decided over three dissents.
There is considerable reason to doubt that Kendall would have come out the
same way in 1803 if Marbury had brought suit in the Circuit Court for the
District of Columbia -- bearing in mind that that court
initiated judicial review, namely, Marbury v. Madison. Does this approach seem promising or will I be making a big mistake in beginning my course in this manner? I have tried different approaches before and have often been disappointed. If you think I'm asking for trouble, please try to save me from
First, much thanks to Sandy for the
free publicity.
Second, may I also recommend both to
Sandy and to others, the Congressional debate on the removal power (some of
which is excerpted in Graber and Perhac, MARBURY V. MADISON--a too expensive
collection on the background of Marbury). What
I appreciate all the conversation about the teaching question that I asked. I think I
will stick to my old fashioned ways and start with Marbury as usual. First, I think it
is a great way of exposing students to critical thinking in a case that doesn't raise
moral questions. Second
Eric writes:
Finally, Marbury exposes students to the special function and private
rights views of federal jurisdiction which come in handy during the
justiciability part of the course.
I remain totally unconvinced that one must (or even should) teach issues
like justiciability in an introductory
Sandy writes, One has a choice, I
believe: To teach a course on whether one can really take the enterprise
of constitutional interpretation seriously or a course on the institutional
role (and behavior) of the United States Supreme Court. The latter is not
without value, but I think the former
Tom Grey wrote, personally, I think I quit teaching the subject because I never found
a comfortable classroom balance of its (con law) sacred and profane aspects. Exactly.
I don't want to quit teaching con law (and even more so fed courts), but it is getting
increasingly difficult to teach
Before Marbury
Eric writes:
I believe the Supreme Court's constitutional cases depend little on
doctrine and mostly on the political judgments of nine relatively bright
people (like a council of elders). Assuming Sandy, and others agree, I
think it is a difficult question how that view
By judicial exclusivism, I mean the cast of mind revealed in a number of
recent decisions (Boerne, Garrett) that only the Supreme Court is
authorized to proffer constitutional interpretations. This is not
judicial supremacy per se, because js could be the conclusion of a
genuine dialogue between
Eric writes:
I believe the Supreme Court's constitutional cases depend little on
doctrine and mostly on the political judgments of nine relatively bright
people (like a council of elders). Assuming Sandy, and others agree, I
think it is a difficult question how that view, if at all, should be
Did Madison ever publicly express his views specifically on the (il)legitimacy of Marbury or Marshallian judicial review? If so, are his views recorded? If yes, where? Thank you.
Bobby Lipkin
Widener University School of Law
Delaware
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