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The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick
The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick
Vanderbilt Law School Faculty Publications
Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent with …
Alj Final Orders On Appeal: Balancing Independence With Accountability, Jim Rossi
Alj Final Orders On Appeal: Balancing Independence With Accountability, Jim Rossi
Vanderbilt Law School Faculty Publications
This essay addresses how ALJ final order authority in many state systems of administrative governance (among them Florida, Louisiana, Missouri, and South Carolina) poses a tension between independence and accountability. It is argued that political accountability is sacrificed where reviewing courts defer to ALJ final orders on issues of law and policy. Standards of review provide state courts with a way of restoring the balance between independence and accountability, but reviewing courts should heighten the deference they give to the agency's legal and policy positions -- giving little or no deference to the ALJ on these issues -- even where …