Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 16 of 16

Full-Text Articles in Law

A Commentary: Presidents Adams And Jefferson, With A Few Others, Discuss Health Reform With A Disabled Lawyer, Gary C. Norman Jan 2012

A Commentary: Presidents Adams And Jefferson, With A Few Others, Discuss Health Reform With A Disabled Lawyer, Gary C. Norman

Journal of Law and Health

Washington lawyers constitute strategic actors within executive, legislative, and judicial forums. This Article discusses the interaction of Washington lawyers in these branches of government regarding healthcare law and policy. The Article discusses how access to technology inhibits a disabled lawyer from equal involvement in the governmental process. The Article also thematically presents the position Presidents Adam and Jefferson would likely harbor on healthcare reform. Public discourse must be more intellectual like that of the founding generation, and it should be improved in its civility.


End Of An Error: Replacing Manifest Disregard With A New Framework For Reviewing Arbitration Awards, The, Kenneth R. Davis Jan 2012

End Of An Error: Replacing Manifest Disregard With A New Framework For Reviewing Arbitration Awards, The, Kenneth R. Davis

Cleveland State Law Review

Guided by the purposes of the FAA, its legislative history, and the role of commercial arbitration in modern society, this Article proposes a new framework for the judicial review of arbitration awards. Awards deciding federal statutory rights such as those conferred by securities law and civil rights law should be reviewed for errors of law. As recognized in Wilko and McMahon, federal rights deserve protection, even in arbitration. There is one other type of award that requires judicial correction. Despite the statements in Hall Street and Concepcion that the FAA provides the exclusive grounds for vacatur, the courts must correct ...


Is The United States Tax Court Exempt From Administrative Law Jurisprudence When Acting As A Reviewing Court , Diane L. Fahey Jan 2010

Is The United States Tax Court Exempt From Administrative Law Jurisprudence When Acting As A Reviewing Court , Diane L. Fahey

Cleveland State Law Review

Commentators have argued that the Tax Court should fill in the gaps in its statutory authority for collection due process appeals by turning to traditional administrative law jurisprudence, including the APA, which suggestion the Tax Court has resisted despite the fact that the federal district court did so. The majority of the Tax Court insists that it has never been subject to administrative law jurisprudence or the APA, nor could it be. Most of the courts of appeals that have considered the issue have held that the Tax Court is bound by the APA and traditional administrative law jurisprudence when ...


Policentrism, Political Moblization, And The Promise Of Socioeconomic Rights, Brian E. Ray Jan 2009

Policentrism, Political Moblization, And The Promise Of Socioeconomic Rights, Brian E. Ray

Law Faculty Articles and Essays

There is an active and heated debate over whether socioeconomic rights should be included in modern constitutions because of their supposed "positive" character and the difficult separation-of-powers and institutional-competence concerns such rights raise. The controversy over the nature of socioeconomic rights and whether constitutions should include them is connected to the issue of how to enforce these rights when they are included. The South African Constitutional Court is the leading example of a court dealing with these enforcement issues, and its early decisions have been hailed by many, including Mark Tushnet and Cass Sunstein, as developing a uniquely effective approach ...


Does Congress Find Facts Or Construct Them - The Ascendance Of Politics Over Reliability, Perfected In Gonzales V. Carhart, Elizabeth De Coux Jan 2008

Does Congress Find Facts Or Construct Them - The Ascendance Of Politics Over Reliability, Perfected In Gonzales V. Carhart, Elizabeth De Coux

Cleveland State Law Review

The disparity between the rules of courts and the rules of Congress gives rise to this question: is the rigor-or lack of it-with which Congress evaluates the reliability of evidence an appropriate factor for courts to consider in deciding whether to defer to a congressional finding? In this Article, I consider whether Congress should adopt rules to fill the void. In Part I, I give a brief summary of the development and use of Congressional Committees. In Part II, I analyze several modern-day congressional hearings in an effort to examine the degree to which Congress and its committees require that ...


A Critical Linguistic Analysis Of Equal Protection Doctrine: Are Whites A Suspect Class, Reginald Oh Apr 2004

A Critical Linguistic Analysis Of Equal Protection Doctrine: Are Whites A Suspect Class, Reginald Oh

Law Faculty Articles and Essays

This Article contends that the linguistic structure of equal protection doctrine has played a major role in shaping and influencing its evolution and development. To show how linguistic structure shapes substantive legal discourse, this Article will examine a fundamental question that deals with equal protection law: when should the Court subject a law to heightened judicial scrutiny? Typically, when dealing with equal protection challenges to governmental action, the Court will generally defer to legislative judgment, presume the constitutionality of the legislation, and uphold the statute. However, under some circumstances, the Court will remove the presumption of constitutionality and subject certain ...


Who Was William Marbury?, David F. Forte Jan 2003

Who Was William Marbury?, David F. Forte

Law Faculty Articles and Essays

Of all the disappointed office seekers in American history, only William Marbury has been so honored as to have his portrait hung in the chambers of the United States Supreme Court alongside that of James Madison. The two titular protagonists to the Marbury v. Madison dispute had no idea that their original contretemps would ever find its way to litigation, let alone eventual mythic significance as the foundation stone of judicial review.


The True Story Of Marbury V. Madison, David F. Forte Jan 2003

The True Story Of Marbury V. Madison, David F. Forte

Law Faculty Articles and Essays

Though normally not friends of original intent or legal tradition, today's judicial "activists" like to trace their lineage back to the (purported) original judicial activist, to the great Chief Justice who was the first to persuade the Supreme Court to strike down a law of Congress.

According to this conceit, which is now the standard interpretation enshrined in countless histories and hornbooks, Marbury v. Madison was the breakthrough that demonstrated how truly powerful the judiciary could be. In this famous case, decided 200 years ago, Marshall supposedly showed that the Constitution is an elastic document or at least could ...


Lincoln, Marshall And The Judicial Role, David F. Forte Jan 2002

Lincoln, Marshall And The Judicial Role, David F. Forte

Law Faculty Articles and Essays

Abraham Lincoln understood judicial activism. For Lincoln, the paradigm of the unrestrained Supreme Court was the decision in Dred Scott v. Sandford. Lincoln saw the "illegitimacy" of Dred Scott not in that the Supreme Court had overturned an act of Congress. It was, rather, that the Supreme Court, in the guise of making a legal decision, instead made a political decision. Even worse, it was a political decision that sought to redefine the polity in fundamental, constitutional terms. Lincoln's position echoed the most eloquent articulation of judicial review ever made by the Court: in Marbury vs. Madison, Chief Justice ...


Noam Chomsky And Judicial Review, James G. Wilson Jan 1996

Noam Chomsky And Judicial Review, James G. Wilson

Cleveland State Law Review

This Commentary will consider four authorities who are hardly considered standard-bearers of the Left: Aristotle, Edmund Burke, James Madison, and Justice Oliver Wendell Holmes. Insights from Aristotle, Burke, Madison, Holmes, and Chomsky will be combined into following set of propositions: (1) the Supreme Court has a constitutional and historical obligation to resist tyranny and other forms of constitutional perversion and factionalism; (2) the Supreme Court has a unique duty and capacity to combat abuses of private power; (3) private corporations and the well-to-do have gained so much power that they have become a dangerous faction that is turning our government ...


Commentary: Noam Chomsky And Judicial Review, James G. Wilson Jan 1996

Commentary: Noam Chomsky And Judicial Review, James G. Wilson

Law Faculty Articles and Essays

Although Chomsky has never discussed judicial review in any detail, he recently made several interesting observations. He believes America's governmental structure remains acceptable, even desirable, even though all three federal branches have not just failed to protect us from private power's excesses but instead have devoted far too much of their energy and power to enhancing private power. The constitutional text creates a unique relationship between the Supreme Court and private power. Because the Court is staffed by unelected Justices who need not pander for money to be reelected, it is more independent of the rich and powerful ...


Natural Law And The Limits To Judicial Review, David F. Forte Jan 1996

Natural Law And The Limits To Judicial Review, David F. Forte

Law Faculty Articles and Essays

The very premise of judicial review in America is rooted in the structure of natural law. Judges have no authority to make any kind of law. They can only enforce and apply authoritatively passed positive law. But if the positive law has not been enacted, either in form or substance, without proper authority, then if the judge should enforce such a law, he would in fact be making new positive law, and would be acting outside of his authority.


John Marshall And The Moral Basis For Judicial Review, David F. Forte Jun 1994

John Marshall And The Moral Basis For Judicial Review, David F. Forte

Law Faculty Articles and Essays

During the last two decades, many observers have been disappointed in some of the appointments to the federal bench and in the judicial philosophies some judges have brought with them. But if we turn to the source of our constitutional order, we would find in the example of John Marshall the moral basis for the judicial craft.


Due Process, Judicial Review, And The Rights Of The Individual, Edward D. Re Jan 1991

Due Process, Judicial Review, And The Rights Of The Individual, Edward D. Re

Cleveland State Law Review

As a federal judge I fully appreciate the role of the judiciary in reviewing the actions of administrative agencies. Hence, I am pleased to discuss the concepts of due process, judicial review, and the rights of the individual. Since it cannot be questioned that public officers and administrative agencies vitally affect the lives and interests of all persons, it is important to know the legal controls and remedies that are available to assure that public officials act lawfully. This, of course, implies that all administrators and officers of government must act within the bounds of their delegated authority and comply ...


Adjusting The Equities In Franchise Termination: A Sui Generis Approach, Richard A. Greco Jr. Jan 1981

Adjusting The Equities In Franchise Termination: A Sui Generis Approach, Richard A. Greco Jr.

Cleveland State Law Review

The scope of troubled areas in the franchising industry is nearly as broad as the variety of goods and services available through franchised systems. This Note cannot attempt even an overview of all the problems that confront the industry; instead the discussion will focus on one recurring problem within the industry: the rights of the parties engaged in a franchise relation following the termination of that relationship.


Judicial Review Of Zoning Adminstration, Richard A. Pelletier Jan 1973

Judicial Review Of Zoning Adminstration, Richard A. Pelletier

Cleveland State Law Review

This discussion will focus on the role of the courts in zoning administration judicial review. More specifically, the limitations of that role, as it is now employed, will be examined with a suggested alternative. However, beforye a meaningful explanation of that topic can be undertaken it is necessary to provide a brief description of the zoning procedure before judicial review is summoned into the fray. For this reason, the initial portion of this comment is devoted to a general discussion of the source of the municipality's authority to promulgate zoning ordinances, and the makeup and function of the local ...