NOTE: Free essay sample provided on this page should be used for references or sample purposes only. The sample essay is available to anyone, so any direct quoting without mentioning the source will be considered plagiarism by schools, colleges and universities that use plagiarism detection software. To get a completely brand-new, plagiarism-free essay, please use our essay writing service.
One click instant price quote
The Constitution does not expressly provide for judicial review. What should be made of this fact? Does it suggest that the framers did not intend to give the courts such a power? Not necessarily, although that is one explanation for its absence. It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated. A third possibility is that the framers didn't think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers (Ackerman, 43).
Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review. Of those that did so, nine generally supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation. It may also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review (Stretton, 64). Applications for judicial review are made under sections 18 to 18. 5 and section 28 of the Act and, except in cases where the Trial Division directs that the application should be proceeded with as an action, Part 5 of the Federal Court Rules is applicable. Both divisions of the Court can offer the same remedies (Colebatch, 46).
The definition of a federal board, commission or other tribunal is found in section 2 of the Federal Court Act. The particular boards, commissions and tribunals in regard to which judicial review may be sought in the Court of Appeal are listed in section 28. As of this writing, they are the following (Ackerman, 49): An application for judicial review in either division must be made in accordance with the provisions of section 18. 1. (1) An application for judicial review is an originating application and must be brought by petition. (2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one or more of the proceedings for: (a) relief in the nature of mandamus, prohibition or certiorari; (b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported exercise, of a statutory power (War hurst, 160). In general terms, administrative law is the law governing the administration of government business.
It governs both central and local government and public bodies in their exercise of statutory or other public powers, or when performing public duties. In both civil and common law countries in Europe, these types of functions are sometimes called public law functions to distinguish them from the private law functions, which govern the relationships between individual citizens and some forms of relationships with the state. For example, if a citizen works in a state-owned factory and is injured, he or she would sue as a private law function. It should also be note that if residents of the surrounding community were concerned about a decision to enlarge the state-owned factory because of environmental pollution, the legality of the decision may be reviewed by the courts as being a public law function (Stretton, 66). In terms of administrative review, the basic and the most important question asked is not whether a particular decision is right, or whether the judge, had he been the minister or the official, would have come to a different decision.
The questions are: what the power or discretion which the law has conferred on the official is? And has that power has been exceeded, or otherwise unlawfully exercised? For example, in England, a local authority was given the statutory power to provide wash houses where people could come and do their own laundry. It should also be noted that a court decided that this power was not sufficiently broad to permit a local authority to open a full laundry service which was trading for profit (Colebatch, 42).
Free research essays on topics related to: state owned, local authority, private law, power of judicial review, federal court
Research essay sample on Power Of Judicial Review Federal Court
