Legal History Commons^™

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender

SJD Dissertations

In response to what he perceived as the challenges associated with republican governance in the later portions of the nineteenth century, Michigan’s Thomas McIntyre Cooley penned his treatise concerning constitutional limitations on legislative power. In it, Cooley offered a vision of government where courts would check government power and would raise constitutional barriers against the impact of improper influences on legislators. As a student of history, Cooley grounded his beliefs and doctrines in experience, not philosophical reflections. Believing that “the fruits of speculative genius in government are of little value,” Cooley submitted that governing structures and law “must be the …

Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger

Michigan Journal of Race and Law

The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take …

The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller

Michigan Law Review

The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with …

Establishing New Legal Doctrine In Managed Care: A Model Of Judicial Response To Industrial Change, Peter D. Jacobson, Scott D. Pomfret

University of Michigan Journal of Law Reform

Courts are struggling with how to develop legal doctrine in challenges to the new managed care environment. In this Article, we examine how courts have responded in the past to new industries or radical transformations of existing industries. We analyze two historical antecedents, the emergence of railroads in the nineteenth century and mass production in the twentieth century, to explore how courts might react to the current transformation of the health care industry.

In doing so, we offer a model of how courts confront issues of developing legal doctrine, especially regarding liability, associated with nascent or dramatically transformed industries. Our …

Judicial Review And American Democracy, Stanley S. Sokul

Michigan Law Review

A Review of Judicial Review and American Democracy by Albert P. Melone and George Mace

The Distrust Of Politics, Terrance Sandalow

Articles

In this Article, Dean Sandalow considers the justifications advanced by those who favor the removal of certain political issues from the political process by extending the reach of judicial review. He begins by examining the distrust of politics in a different context, discussing the proposals made by the Progressives for reforming municipal government, as a vehicle to expose the assumptions underlying the current debate. His comparison of the two historical settings reveals many similarities between the Progressives' reform proposals and the contemporary justiflcations.[or the displacement of politics with constitutional law. Dean Sandalow concludes that the distrust of politics rests not …

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 …

Circuit Courts And The Nisi Prius System: The Making Of An Appellate Court, William Wirt Blume

Michigan Law Review

Judicial systems organized under the influence of the English tradition have exhibited a tendency to pass through four stages of development. (1) In the first stage the highest court (not taking into consideration legislative bodies) has final appellate jurisdiction and a superior original jurisdiction, civil and criminal. The court is composed of three or more judges who sit in bank for the trial of cases. The judges may sit at a central place or go on circuit throughout the territory. (2) In the second stage the highest court has both original and appellate jurisdiction but does not undertake to try …

Extension Of Judicial Review In New York, Edward S. Corwin

Michigan Law Review

There are several reasons why it should be worth while to investigate the operation of the most unique of American governmental institutions in the most important state of the Union. For one thing, in the person of Chancellor KZN" New York furnished one of the founders of American Constitutional Law, while at the same time it was KzNT's fame that early gave New York decisions the importance they still retain in great part in the field of citation and precedent. Again it was YNT'S influence that inclined the fresh shoot of constitutional jurisprudence in New York in a conservative direction, …