Which Method of Statutory Construction Makes the Most Sense in Today's World - Assignment Example

Introduction to American law 1. According to Article III of the US Constitution, which was ratified 222 years ago, federal judges can only be removed from office by the impeachment procedure. Is this provision out of date? Discuss. The federal courts are provided for in Article III of the Constitution. It would be a more correct statement if one was to state that the Supreme Court is provided for. The first sentence of Article III states that,   “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”.     As provided in the Constitution all federal; Article III judges “hold their Offices during good Behavior and shall at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. This means in essence that the federal judges’ salaries cannot be reduced, and federal judges cannot be forced to retire or leave office. The only avenue available to removing them by impeachment as is the case with the President, but whereas no president has been removed by the impeachment process, five judges have been. impeachment by the House of representatives for high crimes and misdemeanors (majority vote) and conviction in the Senate (two-thirds’ vote) seven judges removed by impeachment in the history of the US. Two of the better known impeachments in history were those of John Pickering, Judge, 1804, impeached on grounds of mental instability and intoxication on the bench and the case of Samuel Chase, Justice, 1805, freed of the charges of arbitrary and oppressive conduct of trials. One would have to remember in the context of impeachment procedure needs and processes, that it is in essence a manifestation of the principle of checks on balances, which the basic governing principle of American constitutional governance. The power of impeachment provides the Congress with the power to exercise control power the judges of the Supreme Court judges, along with other high ranking officials. It is extraordinarily intimidating to federal judges given the fact that they have been the targets of its exercise a lot more than other ranks of impeachable officials and they do not even have any powers that are comparable to the powers of the members of the Congress. Moreover, they lack the means available to the President (or his subordinates he chooses to defend) to ward off impeachment, such as bully pulpit or the granting of political favors. One can understand the intricacies of the issue at hand by relating the nature of judicial tenure requires reconciling the impeachment clauses with the constitutional provisions that federal judges shall hold office during good behavior. This would automatically lead to the basic question on whether one is supposed to read the Article III formula as the one that sets a substantive standard of conduct on which judicial tenure is contingent or as one that employs an eighteenth century term of art to signal that federal judges shall hold tenure for life unless impeached and thus that the good behavior clause itself does not establish a separate or independent basis for the removal other than those specified in impeachment clauses. The second reading essentially takes the position that the impeachment and good behavior clauses together mean that the life tenure of a federal judge may be prematurely interrupted only by an impeachment for the commission of an impeachable offense, not just misbehavior of any kind. The major problem with the latter reading of the good behavior and the impeachment clauses is that it is less consistent than the former with the relevant constitutional structure, given the fact that it has been generally accepted that during and after the constitutional conventions federal judges were supposed to have life tenure and that such status was crucial to the independence of the federal judiciary. The basic philosophy behind ensuring that the tenure of the judges was protected and that it was free of the politics and blackmail from the other two arms of the government in keeping with the philosophy of making the judiciary the watchdog of democracy in US. The framers envisioned the federal courts as a safe haven for people trying to protect civil and personal liberties against action by both the Congress and the President. The judiciary’s role power the years have been to protect the people from the excesses of the other two branches. The original understanding o the framers and ratifiers regarding the good behavior and impeachment clauses reflects the founder’s common perception that impeachment is the only mechanism with which the elected branches could be empowered enough to remove the judges. The basic concept behind the introduction of the impeachment clause was that the framers sought to protect the people from judges who might behave with violence and oppression. The obvious potential for subjugation of the judiciary that would result from placing disciplinary power over judges in the hands of the executive alone would manifest an abuse of power which the founders were explicitly concerned about. If one was to argue about the validity of the impeachment rules that have been framed 222 years ago, one would have to measure the validity in the context of it being able to fulfill the purposes for which the rule was first framed. There were two basic reasons, first so that the principle of checks and balances could be upheld and second, that the public was saved from arbitrary judges and that the standard of quality of the judiciary was maintained in terms of them not being allowed to continue in office in case they were guilty of misconduct. One could argue here that there is no relevance to the rule of impeachment given the fact that in 222 years a to0tal of 7 federal judges have been impeached and in this day and age where a judge found guilty would be tried and tested by7 the media before anyone else, a long drawn process of impeachment would provide scope for lobbying and an ultimate politicization of the judicial office. One would however have to remember the fact that whatever said and done, the process of impeachment still sands as a check on the judicial powers and provides the Congress and the President with some ammunition where the overarching powers of the judiciary are concerned especially in the light of the growing effectiveness with which the judiciary has utilized the process of judicial review. In this light, there is still the need of a basic power of removal in cases, there is a proven instance of the judge acting out and conducting himself in a manner not fit to his office. One would also have to remember the fact that the process of impeachment has at times resulted in the judge voluntarily resigning instead of going through the impeachment mark. This, one could count as an indirect method of effective control where the impeachment process is concerned. One would conclude the argument by stating that it is correct to assume to a certain extent that there is a requirement to check judicial power growth and its consequent disabuse in the light of the evolution of the judicial review, but calling the process of impeachment would be underestimating an idea that has proven its effectiveness over a long period of time. 2. Most US law schools only admit students who have already completed a bachelor's degree of four years' duration. Do you agree with this requirement? Why or why not? The present system of the American legal training is a product of the changes that were brought about in the two decades between 1922 and 1945, where there was an express emphasis on following a training program that would be increasingly based on the system of excellence pursuance over and above everything else. The changes outside the elite centers of education reflected the economic and social pressures being exerted at the national level. The intellectual ferment of the Realists may have left the bulk of these schools unaffected but the ever rising standards which did not. During the decade of the 1920s, the legal profession grew by 38,000 and the number of law schools, rose from 142 in 1921 to 173 in 1928. The decade also saw an increasing harmonization of law schools basically because of an effort that was pushed by the joint efforts of ABA and AALS. This was fine except for a rising fear within the educated and literary circles that conceived the idea as being one where the increased requirements of prelegal training would force the smaller law schools into the mold of the elite that would eventually lead to the applicationof the same standards to all law schools The wisdom, if not the necessity, of that action has ... the other law schools of this state conferred the bachelor's degree ..... assumes that a proper division of this time is to assign four years. The law school postgraduate program in the United States in one that would typically have a three year duration.  A student following the law degree program would get a Juris Doctor (J.D.) degree. There are a number of schools in Louisiana that also award a Graduate Diploma in Civil Law (D.C.L.). if a student is to be admitted into a law program that has been approved by the American Bar Association (ABA) he/she must take the test- Law School Admissions Test (LSAT). They also need to have a minimum four-year undergraduate (bachelor's) degree with any given major. At present there are 199 American bar Association approved law schools in America.   Where the issue of justification for a four year degree program with respect to the American Law colleges arises, there are discerning voices that raise valid points against the practice of the four year bachelor-degree prerequisite where the law school program is concerned. The first major point is that for most law colleges in Europe, the law degree is in itself a program and does not require a person to have to go through the grind of four years of college work pursuing a program that they have no intention of following in the future. The context is here simple, why allow future lawyers to occupy seats in liberal arts colleges where other more deserving candidates are unable to get admission. Moreover, it would have to be remembered that the kind of college degrees that most students get have no sway in ensuring that they get into law school. The reason is simple, most law schools give weightege to extra-curricular activity along with the LSAT scores in deciding whether or not they would be willing to admit a certain student. In most other cases, the marks that the student scores in the last two years of the graduate program are the ones that are considered over and above the  marks he cores overall. This would therefore then signify that the four year study that the student puts in is almost pointless.     The issue one has to place under consideration here however is just not that of feasibility and reliance but of merit and maturity given the fact that law as a subject needs a certain level of understanding within a given student-this would have to come equipped with reasonable [process of thought and mature weight of action. This a student fresh our of high school would in most cases not have, moreover, most law schools expect their students to have a knowledge of the basics of law and ethics which again is a difficult task to inculcate within a student not 18 years of age. The four years that a student spends in a graduate program enables him to get focus and figure out once and for all the expectations they have from the career of their choice. The time they spend preparing for law matures the mind and prepares them for the future. It is in this context that the four year mandatory undergraduate prerequisite for law become absolutely essential in the context of American law colleges. 3. Should there be a national bar association in the United States, rather than the system of state bar associations, so that lawyers might practice nationally? Discuss. The practice of law in the country of the US is based on the principle of rule of law, which is prominent in most of the democratic structures around the globe. But there are certain startling differences in the law practices of the nation and the other nation states. For example, there exist in the nation two sets of constitutions, one at the national level and the other at the state level. Thus, all 50 states have separate constitutions and there fore there can be seen significant differences in some of the law practices followed in the states of the nation. In keeping with this form of constitutional set up, there has been set up the system of the state bar association, in which the lawyers are recruited to the state level. This is seen that this is different from the English practice of law where the lawyers, once having cleared the examination for law that has been set up by the state are allowed to practice at the national level and there is no division. In the recent times there has been seen that there is emerging a demand in the nation that calls for a reform of the existing system. There has emerged interest among the legal community in a potential uniform national examination. Of the 50 states that exist in the nation almost 32 are seemingly looking into changing their existing system to a uniform national examination. If such a system of legal examination for the nation emerges then there will be a number of alterations that will be experienced in the legal sphere of the nation. The positive impact of such a change would include: It would help create a uniform approach to the practice of law due to which there can take place better mobilization of lawyers. It would also help in overcoming the various disparities that exist in weighing and marking of various state law sections. This is easily displayed in the example where in the case of California Bar exam most of the applicants are unable to perform well, even if some have already been practicing law in other states successfully for years. If the new form of examination is implemented then this can be overcome. It is believed that in the case of market turbulences this form would allow fir greater mobility to attorneys and lawyers as they would have to their disposal a wider geographical region for practicing. It is also believed that with the nationalization of the bar examination, then the prospectus followed by law schools would standardize and there would be a decrease in the stress laid on nuances in the classrooms. Lesser jurisdictions also find the prospective of a national uniform exam efficiently appealing where funds limit their capacity to manage separate examinations for the state portion of their respective exams. Finally there has to be realized that it would prove easier for the lawyers to take up cases of their clients without having to prepare for separate state bar examinations. On the other hand there has to be realized that there are two sides to every story just as there are two sides to every coin. This holds true in the case of this argument also. Although the potential of such a change cannot be denied, there also exist certain problems that can come up with the development of the national bar examination system. These include the following hurdles: Firstly and perhaps the most important factor that needs to be considered while implementing the system of a national bar examination is that it would compromise in effect the nuances of the individual state laws which are different in each case. Also there is concern that has been expressed by many that even though there should be certain pars of the examination that can be made uniform; the complete doing away of the state specific subjects is not viable or advisable. A completely national bar examination without any emphasis on state subjects could lead to a compromise in the federal nature of the nation. Also it is believed by many critics of the national bar examination system, which it would compromise on the integrity of the law as well as the client’s interest, if an attorney is allowed to work on a case in a state in which he does not usually practice law. This would be mainly due to the fact that the attorney at law would not be completely comfortable with the state laws. 4. Should morbidly obese people be recognized as a "quasi-suspect class" (deserving intermediate scrutiny) for purposes of equal protection analysis? Why or why not?  It has been stated in the Equal Protection Clause, which is a prt of the 14th Amendment to the American Constitution that “No State shall...deny to any person within its jurisdiction the equal protection of the laws”.   The basic idea behind the determination of factors in the equal protection principle is works with respect to public policy which works along the lines of people classification. The idea in essence is to curtail “prejudice against discrete and insular minorities”. The prejudice being spoken about is one that would tend to limit the process of those political methods that would usually be used for the protection of minorities (U.S. v. Carolene Products Co, 1938). The concept of equal protection also works along the lines of the “anti-subjugation principle”. The idea here is that in case there is a factor that works to the diadvanatge of a certain group, the group would be liable to protection. The two basic evolutionary analysis facts would therefore be identified as admiration and pity.   A variety of legislations make use of numerous classifications that are available in the context of governmental rule-making, enforcement, and other governmental action. One of the foremost aspects of the modern equal protection principle states that a scenario devoid of classification and divisions can exist only when one would be assured of a system with no violation of equal protection. The division in question could be as wide as an entire race or as slender as a few persons.   A suspect Class Status is “presumptively unconstitutional distinction made between individuals based on race, national beginning, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy.  Members of suspect classes are in a minority having a common quality that would set them apart from the usual crowd. In most cases, again this minority is characterized by an inability on its part top defend itself. The primary issue before a Court of Law in such cases would remain arriving on decisions on whether or not the classification would function to the drawback of a given suspect class or even impose upon a fundamental right. in such cases it would be the duty of the court to scrutinize the governmental conduct and removing the submission of the customary assumption of strength. This means that the government would then be required to provide justification for the decision.   Historically speaking, the judicial system of the US in general and the Supreme Court in particular has been at loathe to bestow “suspect class” status to groups beside the already accepted suspect classes i.e. the racial minorities and religious groups. One can use the judgment in the case of City of Cleburne v. Cleburne Living Center, Inc. (1985), as proof quantifying the statement given the fact that the Courts have traditionally decided against naming the physically handicapped as being members of the suspect class. Obesity has, similarly been dismissed by virtue of the fact that it is manifestation of personal failing. Victims of morbid obesity have been stigmatized and discriminated against. No strategies based on the better scientific knowledge have been put forward by the feds which has meant that governments and nonprofit associations have had to march in with their own plans of action. Much the case is with gays, most obese people are focus of bigotry, derision and even prejudice in many areas of everyday life-when it should be illegal to discriminate on this basis at all.  In framing this argument one would work under the basic and justified assumption that the ones suffering from extreme and morbid obesity are victims to fate that is in many instances similar to those who are homosexual or are inflicted with AIDS. The justification for this would lie in the fact that for all traditional intents and purposes, society has found it easier to put blame on the victims themselves for their own health disparities by pointing to failings of personal responsibility as the source of their health problems. Like the health problems of the people suffering from AIDS or the homosexual community, there are those that argue that obesity is the result of a person failing in the completion of his responsibility to his own self. This particular argument states that obesity is in essence the fault of the obese person himself. The thing that is sad to note is that most biases have their origin in weight have become matters of common factor and have therefore assumed a semblance of acceptability even. The bias that has its source in weight and related issues is often used by the society as an excuse for avoiding the need to deal with the issue of the health and economic disparities associated with obesity. The result of this disparity is that there is the absence of sufficient help for health measures in the public domain that address and help deal with obesity to the degree and the extent to which it needs to be dealt with. In line with history, interventions that are based on education have been the primary response by many government entities (Lee, Rosenbloom and O’Leary, 2005). Nevertheless, as opposed to African Americans and gays, obese people have mostly not been the focus of inequitable laws that have their aims rooted in depriving them of their civil rights. even so, obese people have been subjected to social and institutionalized biases that would have to be addressed in their own individual distinctions. As such, antidiscrimination legislation may be necessary. It is legal to discriminate against people based on their weight under the Constitution or federal law. One could identify many opportunities in the fight to addressing the issue of discrimination of distinct groups, but those that have made attempts at these avenues for bringing claims of weight discrimination have by and ;large been rendered unsuccessful. If there is a law enacted for the purpose of depriving obese individuals’ equal protection of the law, there would be a viable legal challenge to its constitutionality. What can be states in conclusion therefore is the fact that of the many communities in the country that could be counted as being suspect, those that suffer from morbid obesity would absolutely be members of the group and it is therefore the duty of the state that these people are helped so that the group could be protected against discrimination of every kind. 5. Which method of statutory construction, if any, makes the most sense in today's world? Should Congress and the legislatures of the states pass a law mandating that the courts apply one particular method of statutory construction? Why or why not? The fundamental rule of statutory construction is that first and foremost the connotation and meaning of the legislature are to be looked for. These two in alliance are to be seeked first and foremost in the definition of the meaning of a given statute, in the very words of the legislatures when the statute had been enacted. If the words are able to convey a definite sensible and clear meaning, then that has to be accepted as the meaning of the legislature. It is not permissible for the courts to change or alter this meaning in the ultimate reflection of their final decision given the fact that any consideration found outside the statute or based on mere conjecture. Most such cases therefore leave little to no room for statutory construction. However in cases where the words of the law are unintelligible, if there arises substantial doubt as to their meaning or application, or if there is ambiguity on the face of the statute then the endeavor must be made to ascertain the true meaning and intent of the legislature, and to this end, first of all the intrinsic aids for the interpretations of the statute would need to be resorted to. In these cases, therefore the statute is not just read, it is constructed as a whole-the situation therefore necessitates that the various parts of the statutes be compared. This also then means that each doubtful word needs to be read and interpreted then applied to a given context. Moreover, the interpretation clause need to be examined so that the definitions and explanations on the ambiguous parts are well understood. It has to be remembered however that in case, the intrinsic aides are used without success, and there remains a substantial doubt or ambiguity then recourse would automatically have to be taken on extraneous facts, considerations and means of explanations always with the same objective-to find out the real meaning of the legislative statute. This does not however mean that all such extrinsic circumstances are entitled to equal weight in the determination of the statute construction. There is an unspoken rule on this point that states that the extrinsic fact or circumstance which is permissible to consider in the construction of statutes must be either logically connected with the act in question as a statute in pari material or it must be authentic such as a legislative declaration of the meaning of law. A statute in its most elementary sense of the term in the first place has to be required in the words in which the act is structured, and in case the meaning of the law stated is simple, clear and precise the sole power and responsibility of the court gets restricted to ensuring that the writ of the legislature is put into effect according to its terms. It also has to be understood that in case the wording of the statute is simple and comprehensible, the Courts stands warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion." Caminetti v. U.S., 242 U.S. 470 (1917) The second case that one would have to keep in mind while arriving at a conclusion with respect to the interpretation of statutes in the process of the statutory construction is the fact that in the interpretation of a statute a court should always turn to one cardinal canon before all others.. “[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there” (Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149, 1992). It has in fact been stated that in cases where the words of a statute are clear and precise, then the first canon is also supposed to be the last and that the work of the judiciary is complete in simply applying this cannon. A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332 (1929). In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996). If one was to therefore identify from the many methods of statutory construction, the one method that should be applicable to all cases irrespective of its value and context, trhe idea would be the application of the laws as they have been provided by the legislative assembly over and above any other method of statute interpretation, given the fact that it is the word of the law, in its most clear and direct manner that would have the greatest bearing on the legality of the system in the longest term given the fact that it is the law by the legislative assembly that would have the ,ost validity given the democratic nature of its origin in the first place. Reference: Farnsworth, E., A., (!983). The Legal System of the U.S. Oxford University Press Lundmark, T., (2008). Power & Rights in US Constitutional Law. Oxford Books Global Business Law - current/future subjects (units), PPTs, accessed February 28, 2010, < http://www.latrobe.edu.au/lawman/currentstudents/schools/sol/courses/gbl-units.html> Read More