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Articles 1 - 18 of 18

Full-Text Articles in Law

Erisa Preemption: Judicial Flexibility And Statutory Rigidity, Leon E. Irish, Harrison J. Cohen Oct 1985

Erisa Preemption: Judicial Flexibility And Statutory Rigidity, Leon E. Irish, Harrison J. Cohen

University of Michigan Journal of Law Reform

This Article attempts to describe the ways in which, and the reasons why section 514(a) has caused the courts and Congress so much difficulty. Part I reviews the legislative history of section 514(a), with emphasis on the ambivalence Congress has shown toward its 1974 draftsmanship. Part II attempts to provide a coherent description of the case law that has developed under section 514(a). Part III completes the legislative history by examining the two instances in which experience compelled Congress to revise section 514. Finally, Part IV discusses examples of problems courts have faced when crafting a federal common law of …


The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs Oct 1985

The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs

University of Michigan Journal of Law Reform

This Note argues that Congress should amend the APPA to require a judicial public interest determination prior to the entry of a voluntary dismissal in government-initiated civil antitrust actions. Part I of this Note briefly describes the APPA and Federal Rule of Civil Procedure 41(a)(1). Part II asserts that APPA procedures do not currently apply to voluntary dismissals under Rule 41(a)(1). Part III concludes that the purposes underlying the APPA and general policy considerations support the legislative extension of the Act to dismissals. Part IV responds to objections to this proposal. Finally, Part V presents a specific amendment to the …


A Nondeferential Standard For Appellate Review Of State Law Decisions By Federal District Courts Sep 1985

A Nondeferential Standard For Appellate Review Of State Law Decisions By Federal District Courts

Washington and Lee Law Review

No abstract provided.


Private Hospital Application Review Process: The Right To Counsel And The Scope Of Judicial Review, Patrick H. Agnew May 1985

Private Hospital Application Review Process: The Right To Counsel And The Scope Of Judicial Review, Patrick H. Agnew

Northern Illinois University Law Review

An examination of the scope of judicial review afforded physicians who are denied membership to private Illinois hospital medical staffs, and a discussion of the physician's right to be represented by legal counsel during this application review process.


Anti-Formalism In Recent Constitutional Theory, Mark V. Tushnet May 1985

Anti-Formalism In Recent Constitutional Theory, Mark V. Tushnet

Michigan Law Review

The focus in constitutional theory on judicial review rests on a much deeper political theory than the phrase "countermajoritarian difficulty" standing alone suggests. Majoritarian or democratic decision making is itself a solution to a set of problems that arise from a particular view of human nature and political action. In this Article, I identify, explicate, and criticize some recent developments in constitutional theory which are of interest to the extent that they reject that view of human nature and politics. I take as my focus important articles by Robert Burt, Robert Cover, Owen Fiss, Frank Michelman, and Cass Sunstein. I …


The Delegation Doctrine: Could The Court Give It Substance?, David Schoenbrod Apr 1985

The Delegation Doctrine: Could The Court Give It Substance?, David Schoenbrod

Michigan Law Review

Part I of this Article demonstrates the need for a new approach to the delegation doctrine. It shows that the Court has failed to articulate a coherent test of improper delegation and that the alternative tests offered by commentators are not sufficient. Part II then sets forth a proposed test of improper delegation. The basic principles of an approach prohibiting delegations of legislative power are outlined and illustrated. This Article does not, however, attempt anything so grand as to suggest a final definition of the doctrine or to pass broadly on the validity of statutes. Such an encompassing analysis is …


Book Review, Pierre Schlag Jan 1985

Book Review, Pierre Schlag

Publications

No abstract provided.


Political Question Doctrine And Allocation Of The Foreign Affairs Power, Linda Champlin, Alan Schwarz Jan 1985

Political Question Doctrine And Allocation Of The Foreign Affairs Power, Linda Champlin, Alan Schwarz

Hofstra Law Review

No abstract provided.


Judicial Review Of Osha Standards: The Effect Of The Right To Pre-Enforcement Review Of Osha Standards On Subsequent Challenges, Thomas J. Ryan Jan 1985

Judicial Review Of Osha Standards: The Effect Of The Right To Pre-Enforcement Review Of Osha Standards On Subsequent Challenges, Thomas J. Ryan

Fordham Law Review

No abstract provided.


Squelching Vox Populi: Judicial Review Of The Initiative In California, Howard Eastman Jan 1985

Squelching Vox Populi: Judicial Review Of The Initiative In California, Howard Eastman

Santa Clara Law Review

No abstract provided.


Case Selection In The Burger Court: A Preliminary Inquiry, Arthur D. Hellman Jan 1985

Case Selection In The Burger Court: A Preliminary Inquiry, Arthur D. Hellman

Notre Dame Law Review

No abstract provided.


The Judiciary And Popular Democracy: Should Courts Review Ballot Measures Prior To Elections?, Michael J. Farrell Jan 1985

The Judiciary And Popular Democracy: Should Courts Review Ballot Measures Prior To Elections?, Michael J. Farrell

Fordham Law Review

No abstract provided.


National League Of Cities Again - R.I.P. Or A Ghost That Still Walks?, Bernard Schwartz Jan 1985

National League Of Cities Again - R.I.P. Or A Ghost That Still Walks?, Bernard Schwartz

Fordham Law Review

No abstract provided.


The Refugee Act Of 1980--What Burden Of Proof: Controversy Lives On After "Stevic", Jeffrey S. Bivins Jan 1985

The Refugee Act Of 1980--What Burden Of Proof: Controversy Lives On After "Stevic", Jeffrey S. Bivins

Vanderbilt Journal of Transnational Law

This Article explores the burden of proof debate. First, it delves into the historical developments leading up to the Refugee Act then focuses on the Refugee Act's legislative history and on case law prior to the Supreme Court's decision in Stevic. Second, the Article discusses the Stevic opinion and the interpretation of Stevic in subsequent circuit court decisions. Third, it analyzes Stevic and the subsequent cases. The Article concludes with a look at what the future holds for the Refugee Act.


Framers Intent: The Illegitimate Uses Of History, Pierre Schlag Jan 1985

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Publications

No abstract provided.


The Legitimacy Of Judicial Review In Individual Rights Cases: Michael Perry's Constitutional Theory And Beyond, Daniel O. Conkle Jan 1985

The Legitimacy Of Judicial Review In Individual Rights Cases: Michael Perry's Constitutional Theory And Beyond, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.


Nonoriginalist Constitutional Rights And The Problem Of Judicial Finality, Daniel O. Conkle Jan 1985

Nonoriginalist Constitutional Rights And The Problem Of Judicial Finality, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.


The Supreme Court And The Constitution: The Continuing Debate On Judicial Review, Donald P. Kommers Jan 1985

The Supreme Court And The Constitution: The Continuing Debate On Judicial Review, Donald P. Kommers

Journal Articles

The three books reviewed in this essay are recent contributions to the growing literature of constitutional theory (Michael J. Perry, The Constitution, the Courts, and Human Rights (New Ha- ven: Yale University Press, 1982); Sotirios A. Barber, On What the Constitution Means (Baltimore and London: The Johns Hopkins University Press, 1984); and John Agresto, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984). They explore important questions about the role of the Supreme Court and the meaning of the Constitution.