미국연방대법원의 사건이송명령에 관한 연구

Abstract

In General the Supreme Court's power to grant or deny certiorari, which means an order to a lower court to send up the records in a case, is fully discretionary. But the Court's choice of cases is not random. This leads one to question whether, as is sometimes claimed, the Court is a passive body waiting until somebody brings a ‘case or controversy’ for decision. A discretionary jurisdiction court like the Supreme Court is active. The ability to pick and choose cases makes it like fisherman of cases. The Court can't place fish in the stream: that is, it can't create a lawsuit where none exists, but it may stimulate others to stock the stream when the Court's pattern of granting review or the justices' statements prompt litigation to resolve previously undecided or currently unsettled issues. By custom, the Supreme Court's certiorari is granted by a vote of at least four justices. This is called the Rule of Four that had been also applicable to decisions to note probable jurisdiction in an appeal. After all the granting of certiorari is discretionary but not random. In the sense of protecting wide suing for constitutional matter, the Supreme Court's certiorari is so well accepted. So I would like to suggest the Korean Constitutional Court should adopt not certiorari's style but it's value.