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Articles 1 - 3 of 3
Full-Text Articles in Law
The Return Of Constitutional Federalism, Logan E. Sawyer Iii
The Return Of Constitutional Federalism, Logan E. Sawyer Iii
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This article comments on National League of Cities v. Usery, 426 U.S. 833 (1976) and the role played by Justice Lewis F. Powell, Jr. It argues that the decision did not constitute any “return” to “constitutional federalism” and that, despite claims to the contrary, its inspiration came from the political goals of the Court’s conservative Justices. More specifically it argues that Justice Powell’s role was not influenced simply by contemporary critiques that undermined the “political safeguards of federalism” theory but, rather, that Justice Powell’s political views likely shaped both his understanding of the “political safeguards” thesis and his rejection of …
Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge
Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge
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Faced with the emerging phenomenon of complex litigation—from school desegregation to mass torts—the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand …
To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett
To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett
Scholarly Works
The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural …