Law Commons^™

Deference Lotteries, Jud Mathews

Jud Mathews

When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive? Administrative law recognizes two main deference doctrines — the generous Chevron standard and the stingier Skidmore standard — but Supreme Court case law has not offered a bright-line rule for when each standard applies.Many observers have concluded that courts’ deference practice is an unpredictable muddle. This Article argues that it is really a lottery, in the sense the term is used in expected utility theory. Agencies cannot predict which deference standard a court will apply or with what effect, but they have a …

Judicial Review Of Icann Domain Name Dispute Decisions, David E. Sorkin

David E. Sorkin

No abstract provided.

Law And Public Administration In Ireland, Fiona Donson, Darren O'Donovan

Darren O'Donovan

Extract: It is often said that administrative law is notoriously difficult to study and to teach because its doctrines are abstract and nuanced, moving across a wide array of statutes and aspects of legal practice. This book is an attempt to defend administrative law as an exciting and dynamic subject which is central to meeting the future challenges facing Irish public governance. Law and Public Administration in Ireland inevitably focuses heavily upon judicial review, as the central aspect of the legal regulation of governance, providing a firm backstop against government abuse of power. In our account of the grounds of …

Appellate Review Of Trial Court Decisions, J. Smithburn

J. Eric Smithburn

Understanding the different standards of review is necessary to the lawyer's informed reading of the appellate opinion. Further, the lawyer should use standard of review to discuss with the client the nature of the trial court's decision and the likelihood of success on review. If the client understands the difference between questions of law, which are reviewed de novo, and discretionary decisions, which are generally deferred to unless unreasonable, he or she will form realistic expectations about the trial and whether to consider an appeal. This casebook discusses the role of appellate courts and the history of appellate review and …

Reconciling With The Past: John Willis And The Question Of Judicial Review In Interwar And Postwar England, Peter L. Lindseth

Peter L. Lindseth

This contribution was prepared for a conference at the University of Toronto Faculty of Law in honor of John Willis, the late Anglo-Canadian administrative law theorist who died in 1997. It will appear in a forthcoming issue of the University of Toronto Law Journal. Throughout his career, John Willis puzzled over the way in which both popular and elite opinion in England (not to mention throughout the Commonwealth and in the United States) persistently, and in his view uncritically, equated the "Rule of Law" in important respects with judicial review in the administrative state. Willis believed this attachment to judicial …

The Coherentism Of Democracy And Distrust, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Constitutional Existence Conditions And Judicial Review, Michael Dorf, Matthew Adler

Michael C. Dorf

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Michael C. Dorf

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler

Laura S. Underkuffler

No abstract provided.

Proportionality And The Relevance Of Rights, Jud Mathews

Jud Mathews

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Jud Mathews

Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan

Donald J. Kochan

Ecj Review Of Member State Measures For Compliance With Fundamental Rights, John J. Barceló Iii

John J. Barceló III

This essay explores the avenues through which a European-level system of fundamental rights might be effectively enforced against EU Member State measures. The parallel concept in the U.S. occurred when, starting in 1938, the U.S. Supreme Court began ruling that different distinct guarantees in the Federal Bill of Rights of the U.S. Constitution controlled State government measures. In the EU, the European Court of Justice (ECJ) could conceivably follow a similar line of development within the EU system, or, on the other hand, the European Court for Human Rights (ECtHR) could play that role. This essay explores these options and …

Juristocracy In The Trenches: Problem-Solving Judges And Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard Boldt, Jana Singer

Richard C. Boldt

No abstract provided.

The Confident Court, Jennifer Mason Mcaward

Jennifer Mason McAward

Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court. This piece discusses …

Mcculloch And The Thirteenth Amendment, Jennifer Mason Mcaward

Jennifer Mason McAward

Section 2 of the Thirteenth Amendment gives Congress the “power to enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” The conventional view of Section 2 regards this language as an allusion to McCulloch v. Maryland’s explication of Congress’s executory powers, and holds that Congress has substantial, and largely unreviewable, power to determine both the ends and the means of Section 2 legislation. This Essay argues that the conventional view departs from the original meaning of Section 2. It demonstrates that McCulloch preserved a role for judicial review with respect to both the ends and means of federal …

Judicial Enforcement Of The Establishment Clause, Richard W. Garnett

Richard W Garnett

This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Richard W Garnett

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

The Singapore Court of Appeal’s judgment in Vellama d/o Marie Muthu v Attorney-General [2013] SGCA 39 – popularly known as the Hougang by-election case – shows that the Court sees its role as policing the margins rather than involving itself in the heart of politics. The Court held that the Government was incorrect in asserting the Constitution confers on it the discretion not to hold a by-election at all after a parliamentary seat falls vacant. The judgment came as a surprise to those used to a judicial stance fairly deferential towards the Government, but on balance the Court did accord …

Majoritarian Judicial Review: The Case Of Taiwan, Chien-Chih Lin

Chien-Chih Lin

Whether, and to what extent, the practice of judicial review in the United States is counter-majoritarian has been contentiously debated since its inception. Yet, whether judicial review in nascent democracies functions in the same way has not been lucidly articulated. Based on docket records, agenda setting, and case studies of the Constitutional Court in Taiwan, this paper suggests that judicial review in Taiwan is majoritarian, rather than counter-majoritarian. Specifically, the Constitutional Court is more majoritarian in the field of fundamental rights than it is in separation-of-powers cases. This finding is contradictory to conventional wisdom since high courts in new democracies …

Constitutional Standing In Singapore: A Comment On Tan Eng Fong V Attorney General, Shubhankar Dam

Shubhankar Dam

No abstract provided.

American Law Of Zoning, Patricia Salkin

Patricia E. Salkin

No abstract provided.

Toward Adequacy, Sarah L. Brinton

Sarah L Brinton

Each year, hundreds of people, companies, organizations, and associations sue the federal government for injuries they have suffered at the hands of federal agencies. Such suits are often brought under the judicial review provisions of the Administrative Procedure Act (“APA”), which Congress enacted expressly to allow broad access to courts in an age of increasing administrative agency action. By the terms of the APA itself, all final agency action for which there is no other adequate remedy in a court is reviewable under the APA.

But the very language meant to welcome such suits into court also acts as a …

Lords Of Democracy: The Judicialization Of "Pure Politics" In The United States And Germany, Russell A. Miller

Russell A. Miller

No abstract provided.

The Role Of Courts In Health Care Rationing: The German Model, Timothy Stoltzfus Jost

Timothy S. Jost

Virtually every country in the world is currently attempting to find ways to ration health care services in order to control exploding health care costs. In some countries the courts play a role in overseeing the rationing of health care. This article examines the role that the courts play in the United States in health care rationing in various contexts and programs. It then goes on to present the German social courts as an alternative model for judicial oversight of health care rationing that is both responsive to the rights of health care consumers and professionals and sensitive to the …

Reforming Surveillance Law: The Swiss Model., Susan Freiwald, Sylvain Méille

Susan Freiwald

As implemented over the past twenty-seven years, the Electronic Communications Privacy Act (“ECPA”), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law, CrimPC, regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This Article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, Swiss CrimPC presents a model for more fundamental reform of U.S. law.

This Article is the first to analyze the Swiss law with international eyes and demonstrate its advantages over the U.S. …

Time And Judicial Review: Tempering The Temporal Effects Of Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article deals with a predicament inherent in judicial review: Under the traditional view, judicial declarations of unconstitutionality apply retrospectively, meaning that the law is treated as void from its inception — as if it was never enacted. This, however, means nullifying all the legal arrangements, rights, interests, and obligations that were established under its authority, which can have far-reaching ramifications for both public and private interests. The Article explores the Israeli Supreme Court's approach for dealing with potential negative consequences of retrospective voidance of statutes. It focuses on three main remedial strategies for tempering the temporal effects of invalidating …

Chevron Without The Courts? The Supreme Court's Recent Chevron Jurisprudence Through An Immigration Lens, Shruti Rana

Shruti Rana

The limits of administrative law are undergoing a seismic shift in the immigration arena. Chevron divides interpretive and decision-making authority between the federal courts and agencies in each of two steps. The Supreme Court may now be transforming this division in largely unrecognized ways. These shifts, currently playing out in the immigration context, may threaten to reshape deference jurisprudence by handing more power to the immigration agency just when the agency may be least able to handle that power effectively. An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling …

The Lawlessness Of 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 as a valid enactment under the Taxing Clause. Numerous commentators have lauded the Chief Justice for his courage and pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. He contends that the opinion is, in two senses, fundamentally lawless. First, the …