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Consent Decrees, The Enlightenment, And The "Modern" Social Contract: A Case Study From Bates, Olmstead, And Maine's Separation Of Powers Doctrine, Dana E. Prescott

Maine Law Review

On December 17, 2004, the Maine Supreme Judicial Court, sitting as the Law Court, issued its decision in Bates v. Department of Behavioral & Developmental Services, which affirmed in part, and vacated in part, the decision of Superior Court Chief Justice Nancy Mills, and remanded for further proceedings in the so-called Augusta Mental Health Institute (AMHI) Consent Decree case. In the underlying litigation, patients at the mental health hospital filed motions for sanctions and findings of contempt alleging the State of Maine failed to comply with the 1990 Consent Decree and incorporated settlement agreement. After a seventeen-day trial on whether …

A "Delicate Balance": How Agency Nonacquiescence And The Epa's Water Transfer Rule Dilute The Clean Water Act After Catskill Mountains Chapter Of Trout Unlimited, Inc. V. City Of New York, Kevin J. Haskins

Maine Law Review

Congress enacted the Clean Water Act (CWA) in 1972 with the express objective of restoring and maintaining the health of the nation’s waters. To achieve this objective, Congress declared that discharges of pollutants into the nation’s waters are prohibited unless they comply with permit requirements. The CWA’s primary vehicle for regulating discharge permits is the National Pollutant Discharge Elimination System, or NPDES. The CWA defines the phrase “discharge of a pollutant” as the “addition of any pollutant to navigable waters from any point source.” Although the CWA further defines the terms “pollutant,” “navigable waters,” and “point source,” it fails to …

The Intelligible Principle: How It Briefly Lived, Why It Died, And Why It Desperately Needs Revival In Today's Administrative State, Meaghan Dunigan

St. John's Law Review

(Excerpt)

This Note addresses the flaws in the current intelligible principle standard and proposes a new three-part standard that would better revitalize the intelligible principle as it was first articulated almost a century ago. This Note concedes that while legislative delegation in any form is a violation of the original meaning of the nondelegation doctrine, our society and the growth of administrative agencies removed any chance of having our laws created solely by Congress. What can happen, and what this Note proposes, is for the Supreme Court to adopt a new intelligible principle standard that scales back the amount of …

Executive Enforcement Discretion And The Separation Of Powers: A Case Study On The Constitutionality Of Daca And Dapa, Louis W. Fisher

West Virginia Law Review

No abstract provided.

Dialogue: Clarified And Reconsidered, Rainer Knopff, Rhonda Evans, Dennis Baker, Dave Snow

Osgoode Hall Law Journal

Controversies about constitutional “dialogue” often stem from disagreement over the concept itself. The metaphor’s meaning and attendant consequences differ depending on whether it reflects the assumptions of judicial interpretive supremacy or coordinate interpretation. By combining that distinction with the contrast between weak-form and strong-form rights review, this article creates an integrated framework for clarifying dialogic variation across such jurisdictions as the United States, Canada, the United Kingdom, New Zealand, and Australia. We apply this framework most intensely to the Canadian case and bring differences between several dialogic forms—especially the difference between “clarification dialogue” and “reconsideration dialogue”—into sharper relief than is …

Immigration Exceptionalism, David S. Rubenstein, Pratheepan Gulasekaram

Northwestern University Law Review

The Supreme Court’s jurisprudence is littered with special immigration doctrines that depart from mainstream constitutional norms. This Article reconciles these doctrines of “immigration exceptionalism” across constitutional dimensions. Historically, courts and commentators have considered whether immigration warrants exceptional treatment as pertains to rights, federalism, or separation of powers—as if developments in each doctrinal setting can be siloed. This Article rejects that approach, beginning with its underlying premise. Using contemporary examples, we demonstrate how the Court’s immigration doctrines dynamically interact with each other, and with politics, in ways that affect the whole system. This intervention provides a far more accurate rendering of …

The New Fisa Court Amicus Should Be Able To Ignore Its Congressionally Imposed Duty, Ben Cook

American University Law Review

No abstract provided.