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Articles 1 - 20 of 20
Full-Text Articles in Law
The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller
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 …
Marbury V. Madison And Its Impact On Israeli Constitutional Law, Yoram Rabin, Arnon Gutfel
Marbury V. Madison And Its Impact On Israeli Constitutional Law, Yoram Rabin, Arnon Gutfel
University of Miami International and Comparative Law Review
No abstract provided.
Revising The Faa To Permit Expanded Judicial Review Of Arbitration Awards, Sarah Rudolph Cole
Revising The Faa To Permit Expanded Judicial Review Of Arbitration Awards, Sarah Rudolph Cole
Nevada Law Journal
No abstract provided.
Significant Developments In Veterans Law (2004-2006) And What They Reveal About The U.S. Court Of Appeals For Veterans Claims And The U.S. Court Of Appeals For The Federal Circuit, Michael P. Allen
University of Michigan Journal of Law Reform
Nearly twenty years ago, Congress for the first time created a system for judicial review of decisions denying veterans benefits. Specifically, Congress created an Article I Court: the United States Court of Appeals for Veterans Claims. Veterans dissatisfied with actions of the Department of Veterans Affairs regarding benefits could appeal to the Veterans Court. The United States Court of Appeals for the Federal Circuit provided appellate oversight of the Veterans Court. There simply is nothing like the Veterans Court elsewhere in American law. Yet, despite its uniqueness, there has been little scholarly attention to this institution.
This Article begins to …
Lopez V. Gonzales: A Window On The Shortcomings Of The Federal Appellate Process, Brent E. Newton
Lopez V. Gonzales: A Window On The Shortcomings Of The Federal Appellate Process, Brent E. Newton
The Journal of Appellate Practice and Process
No abstract provided.
"Quotidian" Judges Vs. Al-Qaeda, Mark S. Davies
"Quotidian" Judges Vs. Al-Qaeda, Mark S. Davies
Michigan Law Review
In Terror in the Balance: Security, Liberty, and the Courts, University of Chicago law professors Eric A. Posner and Adrian Vermeule invite those of us worried about the American response to al-Qaeda to consider the proper role of judges. Judges, of course, are not being dispatched to the hills of Pakistan nor are they securing our borders or buildings. But as the executive seeks to implement a range of new policies in the name of protecting us from al-Qaeda, the judicial treatment of these policies shapes the American response. Posner and Vermeule suggest a kind of Hippocratic view of …
Another Hurdle To Habeas: The Streamlined Procedures Act, Michelle Hertz
Another Hurdle To Habeas: The Streamlined Procedures Act, Michelle Hertz
Duke Law Journal
No abstract provided.
Advisory Counterparts To Constitutional Courts, Christopher S. Elmendorf
Advisory Counterparts To Constitutional Courts, Christopher S. Elmendorf
Duke Law Journal
In recent years, legal scholars have paid a great deal of attention to the emergence of constitutional courts and judicial review in democracies worldwide, yet an intriguing parallel development in democratic constitutionalism has gone largely unnoticed: the establishment of independent bodies which, like constitutional courts, are concerned with foundational commitments of liberal democracy, but which advance these commitments mainly through investigations and advice-giving. Lacking de jure authority to block the implementation of unconstitutional laws and policies, the new advice givers instead make their contributions ex ante, identifying problems that warrant legislative attention and helping to craft laws and regulations that …
Scrutinizing The Second Amendment, Adam Winkler
Scrutinizing The Second Amendment, Adam Winkler
Michigan Law Review
One overlooked issue in the voluminous literature on the Second Amendment is what standard of review should apply to gun control if the Amendment is read to protect an individual right to bear arms. This lack of attention may be due to the assumption that strict scrutiny would necessarily apply because the right would be "fundamental" or because the right is located in the Bill of Rights. In this Article, Professor Winkler challenges that assumption and considers the arguments for a contrary conclusion: that the Second Amendment's individual right to bear arms is appropriately governed by a deferential, reasonableness review …
Not Just Doctrine: The True Motivation For Federal Incorporation And International Human Rights Litigation, Daniel Abebe
Not Just Doctrine: The True Motivation For Federal Incorporation And International Human Rights Litigation, Daniel Abebe
Michigan Journal of International Law
This Article challenges the universalist theory of international law upon which federal incorporation of CIL and international human rights litigation rely. It unpacks the international relations (IR) theory paradigms that support the universalist theory, and discusses a competing theory that views state compliance with international law as a function of national self-interest. Working from this perspective, it proposes a framework to evaluate the wisdom of federal incorporation of CIL and the wisdom of international human rights litigation. The framework suggests that federal incorporation of CIL generates sovereignty costs for the United States, and that international human rights litigation complicates the …
Public Health Law As Administrative Law: Example Lessons, Edward P. Richards
Public Health Law As Administrative Law: Example Lessons, Edward P. Richards
Journal of Health Care Law and Policy
No abstract provided.
Charter Dialogue Revisited: Or "Much Ado About Metaphors", Peter W. Hogg, Allison A. Bushell Thornton, Wade K. Wright
Charter Dialogue Revisited: Or "Much Ado About Metaphors", Peter W. Hogg, Allison A. Bushell Thornton, Wade K. Wright
Osgoode Hall Law Journal
This article is a sequel to the 1997 article "The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn't Such A Bad Thing After All)." In the present article, the authors review various academic critiques of their "dialogue" theory, which postulates that Charter decisions striking down laws are not the last word, but rather the beginning of a "dialogue," because legislative bodies are generally able to (and generally do) enact sequel legislation that accomplishes the main objective of the unconstitutional law. The authors also examine the Supreme Court of Canada's dicta on the "dialogue" phenomenon, and …
Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach
Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach
Osgoode Hall Law Journal
The first part of this commentary examines the roles of coordinate construction in which legislatures act on their own interpretation of the constitution, second look cases in which the courts judge the constitutionality of a legislative reply to a judicial decision, and various constitutional remedies. The second part examines some differences in emphasis between the author's approach to dialogue and that taken by Hogg and his co-authors with respect to the justification of the judicial role in the dialogue, the relation between Charter dialogue and common law constitutionalism, and the proper interpretive approach to section 7 of the Charter. Three …
Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil
Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil
St. Mary's Law Journal
In the wake of a defeat in arbitration, trial lawyers seek appellate counsel looking for some method to escape the arbitrator’s decision. Most leave such offices disappointed after having been informed arbitration awards will be set aside by the courts “only in very unusual circumstances.” The Federal Arbitration Act (FAA) fully endorses arbitration and liberally encourages its use as an alternative to traditional litigation. Consistent with Congress’ focus on speed, efficiency, and cost reduction, a critical goal of arbitration is to establish “finality” at the earliest possible point. Unfortunately, early finality is antithetical to robust appellate proceedings. Yet, the FAA …
Taking Dialogue Theory Much Too Seriously (Or Perhaps Charter Dialogue Isn't Such A Good Thing After All), Andrew Petter
Taking Dialogue Theory Much Too Seriously (Or Perhaps Charter Dialogue Isn't Such A Good Thing After All), Andrew Petter
Osgoode Hall Law Journal
This article challenges the thesis of Peter W. Hogg, Allison A. Bushell Thornton, and Wade K. Wright (put forth earlier in this issue) that the frequency of legislative responses to Charter decisions striking down laws, which they refer to as "Charter dialogue," provides evidence that Canada has a weaker form of. judicial review than is thought to exist in the United States. This article also critiques their claim that judicial review is justified by the idea that individuals have rights that cannot be taken away by an appeal to the general welfare'. The author maintains that this claim not only …
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Osgoode Hall Law Journal
In "Charter Dialogue Revisited-Or 'Much Ado About Metaphors,"' it is noted that the original idea behind the dialogue metaphor was simply to describe Canada's constitutional structure. Despite this, the metaphor has been criticized for having normative content and influencing courts and legislatures. In this commentary, the authors analyze all Supreme Court of Canada and lower court uses of the dialogue metaphor and conclude that, with some exceptions, the courts have employed the metaphor properly, i.e., descriptively. Since, however, the metaphor can be misapplied-used other than to describe or explain the relationship between the courts and legislatures in Canada-the authors recommend …
Constitutionalism From The Top Down, Grant Huscroft
Constitutionalism From The Top Down, Grant Huscroft
Osgoode Hall Law Journal
Dialogue theory regards judicial interpretation of the Charter as authoritative, and, as a result, denies that continuing disagreement with the courts is legitimate. There is little scope, in other words, for dialogue with the courts in any meaningful sense. The Charter is best understood as establishing strong-form judicial review rather than weak, and legislatures have only as much room to respond to judicial decisions as the courts are prepared to allow.
The Day The Dialogue Died: A Comment On Sauve V. Canada, Christopher P. Manfredi
The Day The Dialogue Died: A Comment On Sauve V. Canada, Christopher P. Manfredi
Osgoode Hall Law Journal
In Sauvé v. Canada (2002) a sharply divided Supreme Court of Canada nullified the inmate disenfranchisement provision of the Canada Elections Act. One of the more important aspects of the majority decision by Chief Justice McLachlin is her refusal to let the concept of dialogue take her down the path of judicial deference. This commentary examines the chief justice's reasons for not taking this path and explores how these reasons reveal the limitations of the dialogue metaphor as originally articulated by Peter Hogg and Allison Bushell. The commentary concludes that any meaningful concept of legislative-judicial dialogue must recognize a coordinate …
Dialogue Theory, Judicial Review, And Judicial Supremacy: A Comment On "Charter Dialogue Revisted", Carissima Mathen
Dialogue Theory, Judicial Review, And Judicial Supremacy: A Comment On "Charter Dialogue Revisted", Carissima Mathen
Osgoode Hall Law Journal
By suggesting that we view the judicial-legislative relationship as a dialogue, the authors of "Charter Dialogue" have greatly influenced constitutional debate in Canada. This commentary offers three observations about the authors' latest contribution. First, it queries the continued usefulness of the term "dialogue." Second, it raises concerns with the idea that section 1 of the Charter promotes dialogue, as the term is now explained by the authors. Finally, it queries the authors' perspective on judicial review and their accompanying terminology.
Militating Democracy: Comparative Constitutional Perspectives, Ruti Teitel
Militating Democracy: Comparative Constitutional Perspectives, Ruti Teitel
Michigan Journal of International Law
Can constitutional review by judges save democracy? This Article identifies and discusses the rise of "militant constitutional democracy" by exploring diverse approaches to the role of constitutional and transnational judicial review in rights protection and the challenges that these approaches present to the workings of democracy, the possibilities of compromise, consensus, and conciliation in political life, and the challenge to other constitutional values as well. "Militant constitutional democracy" ought to be understood as belonging to transitional constitutionalism, associated with periods of political transformation that often demand closer judicial vigilance in the presence of fledgling and often fragile democratic institutions; it …