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Judicial review

2010

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Articles 1 - 30 of 37

Full-Text Articles in Law

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf Dec 2010

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

Cornell Law Faculty Publications

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 ...


"On Certiorari To The Ninth Circuit Court Of Appeals": The Supreme Court's Review Of Ninth Circuit Cases During The October 2006 Term, Jessica L. Hannah, Kevan P. Mclaughlin Oct 2010

"On Certiorari To The Ninth Circuit Court Of Appeals": The Supreme Court's Review Of Ninth Circuit Cases During The October 2006 Term, Jessica L. Hannah, Kevan P. Mclaughlin

Golden Gate University Law Review

Whether reversed, affirmed, vacated, or remanded, a review of the interaction between the two courts over twenty-two cases reveals several fundamental differences between the two courts on key issues. This Comment examines these differences by exploring twenty of those decisions and how they illustrate the relationship between the Ninth Circuit and Supreme Court. Part I examines the decisions that arose from the Supreme Court's review of Ninth Circuit decisions. Part II ties these decisions and conclusions into a larger motif emerging between the Ninth Circuit and Supreme Court, and Part III ultimately concludes that the future is likely to ...


Nepa In The Hot Seat: A Proposal For An Office Of Environmental Analysis, Aliza M. Cohen Oct 2010

Nepa In The Hot Seat: A Proposal For An Office Of Environmental Analysis, Aliza M. Cohen

University of Michigan Journal of Law Reform

Judicial deference under the National Environmental Policy Act (NEPA) can be problematic. It is a well-established rule of administrative law that courts will grant a high degree of deference to agency decisions. They do this out of respect for agency expertise and policy judgment. This deference is applied to NEPA lawsuits without acknowledging the special pressures that agencies face while assessing the environmental impacts of their own projects. Though there is a strong argument that these pressures undermine the reasons for deferential review, neither the statute nor the courts have provided plaintiffs with adequate means to remedy this problem. Agency ...


The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake Sep 2010

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily ...


Oregon Natural Resources Council V. Thomas; Another "Meritorious" Timber Lawsuit Fails: Do Substantive Riders Warrant An Exception To The Plain Language Rule?, Julie A. Coldicott Sep 2010

Oregon Natural Resources Council V. Thomas; Another "Meritorious" Timber Lawsuit Fails: Do Substantive Riders Warrant An Exception To The Plain Language Rule?, Julie A. Coldicott

Golden Gate University Law Review

This note provides a brief background to the Rescissions Act, outlines the Act's provisions and examines the Ninth Circuit Court's decisions interpreting these provisions prior to Oregon Natural Resources Council v. Thomas. Section III sets forth the facts and procedural history of ONRC II, the most recent meritorious lawsuit to fall victim to the provisions of the Rescissions Act. Section IV examines the Ninth Circuit Court's analysis and holding in ONRC II. Section V argues that although the Ninth Circuit's decision in ONRC II was correct under current standards, the result was fundamentally wrong. Section V ...


Adminsitrative Law, Lynne Avakian Sep 2010

Adminsitrative Law, Lynne Avakian

Golden Gate University Law Review

No abstract provided.


Panel: Judicial Review And Constitutional Limitations Sep 2010

Panel: Judicial Review And Constitutional Limitations

Golden Gate University Law Review

The Constitutional Law Panel of the NAWJ brought together distinguished theoreticians and practitioners of judicial review. Deans Choper and Ely presented abbreviated versions of their recently published theories on the legitimacy of judicial review in a democratic society. Justice Abrahamson and Judge Wald responded with observations on the practical applications of state and federal constitutional principles to the cases they must adjudicate daily.


Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder Sep 2010

Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder

Boston College Law School Faculty Papers

Written as a comment on Philip Hamburger's book, Law and Judicial Duty, this essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant to the constitution. The essay suggests that the source of this duty, as well as the meaning of both the constitution and laws of the land, changed over time. The essay proposes that scholars perceived American judicial review as problematic only when this tradition conflicted with an increasingly rigid belief in separation of powers. The essay concludes ...


Acontextual Judicial Review, Louis Michael Seidman Aug 2010

Acontextual Judicial Review, Louis Michael Seidman

Louis Michael Seidman

Is constitutional judicial review a necessary component of a just polity? A striking feature of the current debate is its tendency to proceed as if the question could be answered in the same way always and everywhere. Defenders of constitutional review argue that is a conceptually necessary feature of constitutionalism, the rule of law, and the effective protection of individual rights. Critics claim that it is necessarily inconsistent with progressive politics and democratic engagement. Largely missing from the debate is a fairly obvious point: Like any other institution, constitutional review must be evaluated within a particular temporal, cultural, and political ...


Inferiorizing Judicial Review: Popular Constitutionalism In Trial Courts, Ori Aronson Jul 2010

Inferiorizing Judicial Review: Popular Constitutionalism In Trial Courts, Ori Aronson

University of Michigan Journal of Law Reform

The ongoing debates over the legitimacy of judicial review-the power of courts to strike down unconstitutional statutes-as well as the evolving school of thought called "popular constitutionalism, " are characterized by a preoccupation with the Supreme Court as the embodiment of judicial power This is a striking shortcoming in prevailing constitutional theory, given the fact that in the United States, inferior courts engage in constitutional adjudication and in acts of judicial review on a daily basis, in ways that are importantly different from the familiar practices of the Supreme Court. The Article breaks down this monolithic concept of "the courts" by ...


Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin Apr 2010

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review ...


Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe Mar 2010

Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe

Alan W Moe Jr

Censorship has always been a polemical area of constitutional law. The controversy is further amplified when administrative agencies deal with sensitive areas of constitutional liberties. In FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1807 (2009), the U.S. Supreme Court dealt with an important issue of constitutional law and its intersection with the standard of judicial review for administrative agencies’ actions. In this case, the Court upheld the Federal Communications Commission’s about-face on its relatively conservative approach to the censorship of broadcasts for reasons of indecency in 2004. The FCC applied against Fox Television Stations its ...


Institutional Virtues And Constitutional Theory: Bracketing Disagreements About Justice, Kenneth D. Ward Mar 2010

Institutional Virtues And Constitutional Theory: Bracketing Disagreements About Justice, Kenneth D. Ward

Kenneth Ward

Recent arguments in constitutional theory have tended to focus on the institutional arrangements that respond to disagreements about justice. This essay distinguishes two forms these arguments take: claims of institutional virtue and structural claims. Claims of institutional virtue, in contrast to structural claims, do not depend on contested assumptions about justice and therefore address problems that follow from disagreements about justice without favoring one view over another. Moreover, claims of institutional virtue gain significance in conditions in which people continue to fight about what the Constitution means even after governmental institutions claim to settle them, conditions that seem to characterize ...


Constitutionalism: A Skeptical View, Jeremy Waldron Mar 2010

Constitutionalism: A Skeptical View, Jeremy Waldron

Philip A. Hart Memorial Lecture

On March 17, 2010, Professor Waldron, University Professor and Professor of Law at New York University, Chichele Chair of Social and Political Theory at All Souls College, Oxford delivered the Georgetown Law Center’s thirtith annual Philip A. Hart Lecture: “ Constitutionalism: A Skeptical View.”

Professor Waldron teaches legal and political philosophy at New York University School of Law. He was previously University Professor in the School of Law at Columbia University. He holds his NYU position conjointly with his position as Chichele Professor of Social and Political Theory at the University of Oxford (All Souls College). For 2011-2013, he is ...


End The Failed Chevron Experiment Now: How Chevron Has Failed And Why It Can And Should Be Overruled, Jack Beermann Feb 2010

End The Failed Chevron Experiment Now: How Chevron Has Failed And Why It Can And Should Be Overruled, Jack Beermann

Faculty Scholarship

In Chevron U.S.A., Inc. v. NRDC, decided in 1984, the Supreme Court announced a startling new approach to judicial review of statutory interpretation by administrative agencies, which requires courts to defer to agency interpretations of ambiguous statutes. Although it was perhaps hoped that Chevron would simplify judicial review and increase deference to agency interpretation, the opposite has occurred. Chevron has complicated judicial review and at best it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled. Further ...


R (On The Application Of E) (Respondent) V Governing Body Of Jfs And The Admissions Appeal Panel Of Jfs (Appellants) And Others (Case Note) [2009] Uksc 15, Reuven (Ruvi) Ziegler Jan 2010

R (On The Application Of E) (Respondent) V Governing Body Of Jfs And The Admissions Appeal Panel Of Jfs (Appellants) And Others (Case Note) [2009] Uksc 15, Reuven (Ruvi) Ziegler

Dr. Reuven (Ruvi) Ziegler

This case-note offers comparative perspectives on the UK Supreme Court’s judgment in the JFS case (alleged racially discriminatory school admissions policy) and the Israeli Supreme Court’s judgment in the Emanuel Haredi school case (alleged Ashkenazi/Sephardi segregation arrangements).


Not So Technical: An Analysis Of Federal Circuit Patent Decisions Appealed From The Itc, Holly Lance Jan 2010

Not So Technical: An Analysis Of Federal Circuit Patent Decisions Appealed From The Itc, Holly Lance

Michigan Telecommunications & Technology Law Review

A widespread perception among the patent law community is that the patent system would be more effective if judges with technical backgrounds and patent law experience decided patent disputes. Proponents believe that if judges all had similar baseline knowledge of technological analysis, there would be more consistency in decision-making, leading to more predictability for parties. Some district courts have unofficially become semi-specialized in patent law disputes, and Congress is debating whether to institute a more formalized Patent Pilot Program in which district court judges specialize in patent law cases. This Note joins the debate and examines patent law cases at ...


Bric In The International Merger Review Edifice, Terry Calvani, Karen Alderman Jan 2010

Bric In The International Merger Review Edifice, Terry Calvani, Karen Alderman

Cornell International Law Journal

No abstract provided.


Delegation And Judicial Review, Thomas W. Merrill Jan 2010

Delegation And Judicial Review, Thomas W. Merrill

Faculty Scholarship Series

One of the subthemes in the delegation debate concerns the
importance of judicial review. The Supreme Court has often
upheld broad delegations to administrative actors and in so
doing has pointed out that judicial review is available to safeguard
citizens from the abuse of unconstrained government
power. Broad delegations of power to executive actors are
constitutionally permissible, the Court has suggested, in significant
part because courts stand ready to assure citizens that
the executive will discharge its discretion in a manner consistent
with Congress's mandate and in a fashion that otherwise
satisfies the requirements of reasoned decision making.


Before The Jurisprudential Turn: Corbin And The Mid-Century Opposition To Erie, Steven Walt Jan 2010

Before The Jurisprudential Turn: Corbin And The Mid-Century Opposition To Erie, Steven Walt

Washington University Jurisprudence Review

This Article is structured as follows. Part I documents the jurisprudential turn in understanding Erie by analyzing some of Holmes’s famous dissents invoked in the opinion. It argues that Holmes’s epigrams about the nature of law in these dissents are deceptive: they either wrongly attribute to the majority jurisprudential views it need not hold or take a jurisprudential position unnecessary to the dissent’s view. Either way, Holmes’s legal positivism is irrelevant to his own dissents. Parts II-V together make the historical case for viewing Corbin as a legal positivist who objected to Erie’s result constitutional ...


Irreconcilable Deferences - The Troubled Marriage Of Judicial Review Standards Under The Steelworkers Trilogy And The Federal Arbitration Act, Michael H. Leroy Jan 2010

Irreconcilable Deferences - The Troubled Marriage Of Judicial Review Standards Under The Steelworkers Trilogy And The Federal Arbitration Act, Michael H. Leroy

Journal of Dispute Resolution

To explore the ramifications of this hybrid, labor-employment discrimination award, I ask what standards would a court apply to review an arbitrator's ruling. The Steelworker's Trilogy-three Supreme Court decisions that explain to courts how to review awards under section 301 of the Labor-Management Relations Act-pronounce deferential standards. But until now, individual employment awards have typically been reviewed under section 10 of the Federal Arbitration Act (FAA) or state law equivalents. My research on labor awards and individual employment awards show that courts do not behave the same under these different regimes. They enforce about seventy-two percent of labor ...


Countering The Majoritarian Difficulty, Amanda Frost Jan 2010

Countering The Majoritarian Difficulty, Amanda Frost

Articles in Law Reviews & Other Academic Journals

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape. This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are ...


Arbitration Nation: While Arbitration Grows, Judicial Review Of Arbitral Awards May Be Shrinking, F. Shabnam Nouraie Jan 2010

Arbitration Nation: While Arbitration Grows, Judicial Review Of Arbitral Awards May Be Shrinking, F. Shabnam Nouraie

Journal of Dispute Resolution

In Sands v. Menard, Inc., the Court of Appeals of Wisconsin upheld an arbitration award reinstating a discharged attorney to her position as in-house counsel. On appeal, the court refused to vacate the reinstatement order, notwithstanding the fact that reinstatement was not requested or desired by either party, the effect of reinstatement was likely to violate the ethical rules that bind attorneys, and other remedies were available to compensate the aggrieved party. This note explores the limited but important role that judicial review plays, and will continue to play, in arbitration and how this role affected the outcome of Sands ...


Judicial Decision-Making And Judicial Review: The State Of The Debate, Circa 2009, Charles D. Kelso, R. Randall Kelso Jan 2010

Judicial Decision-Making And Judicial Review: The State Of The Debate, Circa 2009, Charles D. Kelso, R. Randall Kelso

West Virginia Law Review

No abstract provided.


Refocusing Away From Rules Reform And Devoting More Attention To The Deciders, Jeffrey W. Stempel Jan 2010

Refocusing Away From Rules Reform And Devoting More Attention To The Deciders, Jeffrey W. Stempel

Scholarly Works

The issue of judicial competence and integrity is particularly troubling in the wake of Caperton v. A.T. Massey Coal Co., where the U.S. Supreme Court vacated a state supreme court decision in which a justice—who had received at least $3 million in campaign support from a litigant—cast the deciding vote to relieve the litigant of a liability award of $50 million ($82 million with interest). The Court reached this result, one I view as compelled by common sense, through a 5-4 vote. The dissenters, led by Chief Justice Roberts and Justice Scalia, minimized the danger of ...


Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless Jan 2010

Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless

Articles

No abstract provided.


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 ...


Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, Michael R. Huston Jan 2010

Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, Michael R. Huston

Michigan Law Review

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court changed the rhetoric of the federal pleading system. Those decisions have been decried by members of the bar, scholars, and legislators as judicial activism and a rewriting of the Federal Rules of Civil Procedure. Such criticism has led members of both houses of Congress to introduce legislation to overrule the decisions and return to some variation of the "notice pleading" regime that existed before Twombly. This Note argues that both of the current proposals to overrule Twombly and Iqbal should be rejected. Although the bills take different ...


The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer Jan 2010

The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying to ...


The Right To Bear Arms: A Uniquely American Entitlement, Lawrence O. Gostin Jan 2010

The Right To Bear Arms: A Uniquely American Entitlement, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In District of Columbia v. Heller the Supreme Court held that individuals have a constitutional right to own firearms, notably to keep a loaded handgun at home for self-protection. The historic shift announced by Heller was the recognition of a personal right, rather than a collective right tied to state militias. In McDonald v. Chicago, the Supreme Court – in a familiar 5-4 ideological split – held that the 2nd Amendment applies not only to the federal government, but also to state and local gun control laws. In his dissent, Justice Stevens predicted that “the consequences could prove far more destructive to ...