Law Commons^™

The Role Of The Courts In Guarding Against Privatization Of Important Public Environmental Resources, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

Drinking water, beaches, a livable climate, clean air, forests, fisheries, and parks are all commons, shared by many users with diffuse and overlapping interests. These public natural resources are susceptible to depletion, overuse, erosion, and extinction; and they are under increasing pressures to become privatized. The Public Trust Doctrine provides a legal basis to guard against privatizing important public resources or commons. As such, it is a critical doctrine to counter the ever-increasing enclosure and privatization of the commons as well as ensure government trustees protect current and future generations. This Article considers separation of powers and statutory interpretation in …

Targeting The Targeted Killings Case - International Lawmaking In Domestic Contexts, Yahli Shereshevsky

Michigan Journal of International Law

The targeting of non-state armed groups members is perhaps the most debated legal issue in the law of contemporary armed conflicts between states and non-state actors. The 2006 Targeted Killings case of the Israeli Supreme Court (ISC) is a key reference point in this debate. Recently, without much scholarly or public attention, the government of Israel, in its report on the summer 2014 conflict in Gaza (the 2014 Gaza Conflict Report), dramatically diverged from the Targeted Killings case’s definition of legitimate targets in asymmetric conflicts. The Targeted Killings case held a conduct or functional membership-based approach to targeting. This approach …

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.

Transparency And Comparative Executive Clemency: Global Lessons For Pardon Reform In The United States, Andrew Novak

University of Michigan Journal of Law Reform

This Article argues for transparency in the clemency process and contends that the concept of clemency as a benign sovereign’s “act of grace” is no longer appropriate in the modern world where executive action is subordinate to principles of constitutional due process and administrative equity. Despite calls for federal clemency reform in the United States, little comparative research examines clemency elsewhere in the common law world. This Article compares common law countries’ constitutional clemency mechanisms designed to promote openness, public and victim participation, and rational decision-making. In addition, this Article proposes four reforms to the U.S. pardon system that other …

Constitutional Avoidance As Interpretation And As Remedy, Eric S. Fish

Michigan Law Review

In a number of recent landmark decisions, the Supreme Court has used the canon of constitutional avoidance to essentially rewrite laws. Formally, the avoidance canon is understood as a method for resolving interpretive ambiguities: if there are two equally plausible readings of a statute, and one of them raises constitutional concerns, judges are instructed to choose the other one. Yet in challenges to the Affordable Care Act, the Voting Rights Act, the Chemical Weapons Convention, and other major statutes, the Supreme Court has used this canon to adopt interpretations that are not plausible. Jurists, scholars, and legal commentators have criticized …

The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum

Michigan Law Review

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …

Checks And Balances In Wartime: American British And Israeli Experiences, Stephen J. Schulhofer

Michigan Law Review

Three years after an attack that traumatized the nation and prompted massive military and law-enforcement counter-measures, we continue to wrestle with the central dilemma of the rule of law. Which is more to be feared - the danger of unchecked executive and military power, or the danger of terrorist attacks that only an unconstrained executive could prevent? Posed in varying configurations, the question has already generated extensive litigation since September 11, 2001, and a dozen major appellate rulings. Last Term's Supreme Court trilogy - Rasul v. Bush, Hamdi v. Rumsfeld and Rumsfeld v. Padilla - clarified several important points …

Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet

Michigan Law Review

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …

Translating & Interpreting Foreign Statutes, Andrew N. Adler

Michigan Journal of International Law

This article aspires to address academics and anyone who must translate or interpret foreign statutes without previous in-depth education in the alien language and law. To make matters more interesting, the author concentrates on the plight of the minority of judges who want to arrive at independently reasoned interpretations of foreign law when given the opportunity. Most judges strive mightily to avoid even having to glance at foreign laws. And, when it becomes absolutely necessary to read a foreign code, most judges and litigators retain the centuries-old habit of relying too slavishly on tendentious expert testimony. Furthermore, while most states …

Judicial Review Of The Compensation Law In Hungary, Peter Paczolay

Michigan Journal of International Law

This article analyzes the Hungarian Constitutional Court's decisions regarding a specific problem of property rights, namely the Compensation Law. It does not attempt to examine the details of broad subjects such as property rights or privatization.

The Italian Constitutional Court And The Relationship Between The Italian Legal System And The European Community, Mart Cartabia

Michigan Journal of International Law

This article will address how it has been possible that the same Court, interpreting the same Constitution and facing the same problems, has come to such contradictory conclusions, and will assess the impact of such conclusions on the institutional relationship between the EC and Italy.

Some Issues Of Immigration Law In A Developing State, Miriam Defensor Santiago

Michigan Journal of International Law

This article outlines some basic issues of immigration law that will be discussed during this process of reform. These issues, each of which constitutes a separate section, include the legal basis for deportation under Philippine jurisprudence; the power to issue a warrant of arrest against an alien; the power to grant bail to an alien under detention; and the power of judicial review over deportation cases.

Cappellitti: Judicial Review In The Contemporary World, Paul G. Kauper

Michigan Law Review

A Review of Judicial Review in the Contemporary World by Mauro Cappellitti

Procedural Due Process In Administrative Law: Some Thoughts From The French Experience, Richard L. Herrmann

University of Michigan Journal of Law Reform

As administrative law has grown so have the suggestions for change and reform. During the last thirty years a recurrent proposal has been that Congress create a federal administrative court. The first such bill was introduced in 1933 by Senator George Norris. In the same year the American Bar Association also championed the creation of such a court. Bills advocating an administrative court were again introduced in the Seventy-Fourth, Seventy-Fifth, and Seventy-Sixth Congress. The most recent proposal came in 1949. None were ever passed.

Citizens' Grievances Against Administrative Agencies--The Yugoslav Approach, Walter Gellhorn

Michigan Law Review

Yugoslavia, with a population of nearly twenty million, occupies a territory slightly larger than the United Kingdom. Professedly "communist" in philosophy, increasingly "democratic" in practice, it recognizes that the supposed interests of the State do not preclude attention to individual rights as well. In recent years Yugoslavia, like the United States, has earnestly sought efficient means of examining complaints about public administration. The present article sketches some of the measures that protect citizens against official abuse or mistake.

Judicial Review In Europe, Gottfried Dietze

Michigan Law Review

The years following the Second World War witnessed a wave of constitution making in Europe. In East and West alike, popular government was instituted through new basic laws. But whereas the constitutions of Eastern Europe established a Rousseauistic form. of democracy through the creation of an omnipotent legislature, those of the West, while reflecting a belief in parliamentary government, to a larger or smaller degree limited the power of the legislature through the introduction of judicial review. This acceptance of judicial review can be attributed mainly to two factors. It sprung from a distrust of a parliamentarism under which, during …

A Decade Of Administrative Law: 1942-1951, Bernard Schwartz

Michigan Law Review

The past ten years have been particularly momentous ones in the development of American administrative law. It is, indeed, not too much to say that there are few, if any, aspects of that field which have not witnessed important changes during that time. It is for this reason that an analysis of administrative law developments during the past decade should prove useful. However valuable an annual survey of the law may be, it suffers from the shortness of the period which it covers. An analysis of developments during a decade enables a broader perspective to be obtained.

It will be …

Civil Justice In Germany, Burke Shartel, Hans Julius Wolff

Michigan Law Review

Our aim in preparing this paper is to develop for American lawyers a picture of the functioning of German civil justice. This aim, as well as the paper itself, is an outgrowth of a series of lectures on the German legal system delivered by the authors as background in the law of military occupation for the Judge Advocate General's School of the United States Army in Ann Arbor. That part of these lectures which concerns the operation of German civil justice seems to us of sufficient intrinsic interest to warrant publication.

Italian Administrative Courts Under Fascism, Paul B. Rava

Michigan Law Review

Observers not wholly familiar with the administration of the present government of Italy are generally surprised by the fact that the Council of State, the supreme administrative court, is still an operating body after more than eighteen years of blackshirt revolution and domination. It seems strange that a dictator should have preserved this agency, which was established in order to bring justice into public administration, and which rapidly became the principal guardian of individual rights against administrative arbitrariness. One asks how the Council of State can, in a totalitarian state, continue to exercise its functions of administrative court and of …

Civil Pleading In Scotland, Robert Wyness Millar

Michigan Law Review

Said Lord Chancellor Loreburn, in his answers to the questions addressed to him by Mr. Justice Lurton, preparatory to the drafting of the Federal Equity Rules of 1912: "It may be worth while for Mr. Justice Lurton and his coadjutors to consider the Scottish method of pleading which, in my opinion, is the best." This can only mean that the Lord Chancellor regarded the method in question as superior to that obtaining under the English Rules - certainly a high testimonial coming from such a quarter. Whether the opinion is justified or not is a question which may be left …