Law Commons^™

A Constitutional Court In The Absence Of A Formal Constitution? On The Ramifications Of Appointing The Israeli Supreme Court As The Only Tribunal For Judicial Review, Guy E. Carmi

Guy E Carmi

This manuscript reviews an emerging debate in Israel regarding the appointment of the Supreme Court as a Constitutional Court. Specifically, it offers a critical analysis of the most recent proposed model, which is now in the initial legislative stages (The “Neeman Committee”), to appoint the Supreme Court as the sole constitutional arbiter.

First, the article offers an overview of the main processes that have occurred in the arena of Israeli constitutional law in the last decade, generally known as the “Constitutional Revolution.” Next, the article shows the nexus between this process and the revival of the constitutional court debate. Readers …

A Standards-Based Theory Of Judicial Review And The Rule Of Law, Sidney A. Shapiro

ExpressO

The constitutionality of legislative preclusion of judicial review has received considerable attention from constitutional and administrative law scholars. We join this debate by proposing a new approach: a standards-based theory of judicial review based on two fundamental principles. First, whenever government officials make decisions involving the application of legal standards, the rule of law – and hence the rule of law safeguards of due process and judicial review – attach. Second, with the exception of those cases in which the Constitution itself contemplates standardless official discretion, legislative delegations of authority to government actors must contain legal standards that guide and …

Congress Moves To Suspend Judicial Review To Protect The Unconstitutional Defense Of Marriage Act, Christina Okon

Student Thesis Honors (1996-2008)

Striving to preserve the institution of marriage for heterosexual couples, Congress passed the Defense of Marriage Act (DOMA) in 1996. DOMA was billed as promoting state autonomy by letting the states decide whether same-sex couples might legally wed, and whether or not to validate one another's decisions regarding same-sex marriage. Not convinced that the states could correctly decide so vital an issue, Congress launched the Federal Marriage Amendment in May 2003, defining marriage as restricted to a legal union between one man and one woman across the nation. However, fearing the light of scrutiny by what they call the activist …

Should State Courts Be Required To Follow The Decisions Of Lower Federal Courts When Interpreting Questions Of Federal Law?, Quinn Bumgarner-Kirby

Student Thesis Honors (1996-2008)

At first glance, the rule that state courts are not bound by decisions of the lower federal courts in interpreting questions of federal law seems uncontroversial. Yet the roots of that rule are far from clear. The United States Supreme Court has not definitively stated the rule. While the majority of courts seem to adhere to the rule, a few courts have held that state courts are bound by decisions of the lower federal courts under certain circumstances. Should state courts be bound by lower federal court decisional law? If not, should they nonetheless follow precedent from the circuit in …

The Dual Model Of Balancing: A Model For The Proper Scope Of Balancing In Constitutional Law, Iddo Porat

ExpressO

One of the most pressing problems of current constitutional law in the aftermath of September 11 is how to balance constitutional rights and national security interests. No one however seems to pause and ask should we balance individual rights and national security interests and if so when. One of the reasons for this is the widespread acceptance of what I shall term in this Article, the balancing consciousness: the view that every problem can and should be solved through balancing conflicting considerations. This Article demonstrates that the balancing consciousness is misleading. Not every problem can and should be solved through …

Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler

William & Mary Law Review

No abstract provided.

Judicial Review Without Judicial Supremacy: Taking The Constitution Seriously Outside The Courts, James E. Fleming

Fordham Law Review

No abstract provided.

Law, Politics, And Impeachment: The Impeachment Of Roh Moo-Hyun From A Comparative Constitutional Perspective , Youngjae Lee

Faculty Scholarship

In March 2004, the National Assembly of South Korea impeached President Roh Moo-hyun and brought about an immediate suspension of Roh's presidency. Two months later, the Constitutional Court of Korea restored the status quo by dismissing the impeachment and reinstating the President. This episode marks the first time in the history of modern constitutionalism that a president impeached by a legislative body has been reinstated by a judicial body. This Article focuses on one slice of this remarkable turn of events: its constitutional dimension from the perspective of comparative constitutional law. After explaining the Constitutional Court's decision, this Article discusses …

Voluntary Departure: Stopping The Clock For Judicial Review, Chelsea Walsh

Fordham Law Review

No abstract provided.

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Faculty Publications

No abstract provided.

The Mosaic Theory, National Security, And The Freedom Of Information Act, David E. Pozen

Faculty Scholarship

This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began asserting the theory more aggressively after 9/11, thereby testing the limits of executive secrecy and of judicial deference. Though essentially valid, the mosaic theory has been applied in ways that are unfalsifiable, in tension with the text and purpose of FOIA, and susceptible to abuse and overbreadth. This Note therefore argues, against precedent, for greater judicial scrutiny of mosaic theory …

Polluting Environment, Polluted Constitution: Is A 'Polluted' Constitution Worse Than A Polluted Environment?, Shubhankar Dam (Co-Author)

Shubhankar Dam

The Indian Supreme Court has been praised as one of the most socially active courts in the world, especially so in the environmental field. Yet it is arguable that many of the benefits claimed for judicial involvement are far from real. Three phases of acti­vism are identified. In the 1970s, the Court developed the concept of environmental rights based on ensuring that the directive principles of state policy and the funda­mental right to life contained the Constitution worked in mutual support. This was followed by a period when the Court extended liability principles. The most recent and most controversial phase …

Vineet Narain V Union Of India: A Court Of Law And Not Justice: Is The Indian Supreme Court Bound By The Indian Constitution, Shubhankar Dam

Shubhankar Dam

The last twenty five years are an “impressive” chronicle of the Indian Supreme Court in action. Its novel functioning has changed the internal dynamics of Indian polity in a manner unknown to constitutional democracies. From an institution entrusted with the task of adjudicating disputes between parties, the Indian Supreme Court has transformed itself into an institution enjoined to promote the ideals of a socio-economic and political justice. Its prior role as an “adjudicator” has undergone a reappraisal. The judges therein are no more adjudicators but activists, energetically contributing to the accomplishment of India's constitutional vision. In this new creation, they …

Lawmaking Beyond Lawmakers: The Little Right And The Great Wrong, Shubhankar Dam

Shubhankar Dam

No abstract provided.