Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication
- File Type
Articles 1 - 19 of 19
Full-Text Articles in Law
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
Tara L. Grove
No abstract provided.
Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl
Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman
Ice Skating Up Hill: Constitutional Challenges To Sec Administrative Proceedings, Thomas Glassman
Thomas S Glassman
Since the inception of the Dodd-Frank Act the Securities and Exchange Commission has come under fire for its increased use of administrative proceedings in adjudicating the agency’s enforcement actions. That criticism has come to several suits in federal court claiming constitutional challenges to the system generally and most recently, the Administrative Law Judges themselves. Until June of 2015, when Hill v. the SEC took place in federal court, the Government was unbeaten in when arguing against these constitutional challenges. Hill, however found that it was likely the SEC had hired their Administrative Law Judges unconstitutionally. The SEC Administrative Law Judges …
The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele
The Not So Great Writ: Constitution Lite For State Prisoners, Ursula Bentele
Ursula Bentele
Examination of the universe of cases in which the Supreme Court has recently reversed grants of federal habeas relief by circuit courts by issuing summary, per curiam opinions reveals some disturbing patterns. Substantively, the opinions continue the Court’s narrow interpretation of what law has been so clearly established that state courts must abide by its constitutional principles. Moreover, any rejection of a constitutional claim must be upheld unless there is no possibility that fairminded jurists could disagree with that determination. In terms of process, the summary reversals are issued in response to petitions for review by wardens, when the petitioners …
Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay
Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay
Richard Kay
In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect—that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing exclusively or …
Justices Could Do Well To Heed A Father’S Example, Alan E. Garfield
Justices Could Do Well To Heed A Father’S Example, Alan E. Garfield
Alan E Garfield
No abstract provided.
Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles Baron
Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles Baron
Charles H. Baron
In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the …
The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, And The Direction Of Judicial Decision Making, Mark A. Graber
The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, And The Direction Of Judicial Decision Making, Mark A. Graber
Mark Graber
This Article offers a more sophisticated account of elite theory that incorporates the crucial insights underlying claims that Justices with life tenure will protect minority rights and claims that the Supreme Court follows the election returns. Put simply, the direction of judicial decision making at a given time reflects the views of the most affluent and highly educated members of the dominant national coalition. The values that animate the elite members of the dominant national coalition help explain the direction of judicial decision making for the last eighty years. During the mid-twentieth century, most Republican and Democratic elites held more …
The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger
The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger
Allen E Shoenberger
No abstract provided.
Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian
Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian
Gregory P. Magarian
After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …
The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom
The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom
Daniel Kanstroom
This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …
Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds
Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds
William L. Reynolds
No abstract provided.
Thurgood Marshall: The Writer, Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, Ann E. Fruth
Thurgood Marshall: The Writer, Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, Ann E. Fruth
Anna P. Hemingway
Judicial Disqualification In The Aftermath Of Caperton V. A.T. Massey Coal Co., Ronald D. Rotunda
Judicial Disqualification In The Aftermath Of Caperton V. A.T. Massey Coal Co., Ronald D. Rotunda
Ronald D. Rotunda
Does Due Process require a judge to disqualify himself if an individual spent independent funds to buy ads that criticized the judge's opponent in a judicial election? The Supreme Court said yes (5 to 4) in the Caperton decision, and thus has created more uncertainty in the law. Does it matter if the person who paid for the independent ads was not a lawyer or a party but was only an employee of the party? And, does it matter if that employee's financial interest in the law suit (if one were to pierce the corporate veil) is minor – substantially …
Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan
Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan
Donald J. Kochan
The Worst Way Of Selecting Judges—Except All The Others That Have Been Tried, Michael R. Dimino
The Worst Way Of Selecting Judges—Except All The Others That Have Been Tried, Michael R. Dimino
Michael R Dimino
The Non-Political Branch (Reviewing Lee Epstein & Jeffrey A. Segal, Advice And Consent: The Politics Of Judicial Appointments (2005)), Michael R. Dimino
The Non-Political Branch (Reviewing Lee Epstein & Jeffrey A. Segal, Advice And Consent: The Politics Of Judicial Appointments (2005)), Michael R. Dimino
Michael R Dimino
The Futile Quest For A System Of Judicial “Merit” Selection, Michael R. Dimino
The Futile Quest For A System Of Judicial “Merit” Selection, Michael R. Dimino
Michael R Dimino
Pay No Attention To That Man Behind The Robe: Judicial Elections, The First Amendment, And Judges As Politicians, Michael R. Dimino
Pay No Attention To That Man Behind The Robe: Judicial Elections, The First Amendment, And Judges As Politicians, Michael R. Dimino
Michael R Dimino