Constitutional Law Commons^™

Massachusetts V. Epa Heats Up Climate Policy No Less Than Administrative Law: A Comment On Professors Watts And Wildermuth, Jonathan H. Adler

Faculty Publications

In their essay Breaking New Ground on Issues Other than Global Warming, Professors Kathryn A. Watts and Amy J. Wildermuth have presented a thoughtful preliminary analysis of the Supreme Court's handiwork in Massachusetts v. EPA. They are correct that the decision potentially paves new ground in administrative law, particularly with regard to state standing. The Court's approach to review of agency decisions to decline rulemaking petitions is also potentially significant, but perhaps less ground-breaking than they suggest. In the context of climate change policy their assessment of the Court's decision is too modest, however, for Massachusetts virtually ensures federal regulation …

What Process Is Due In The Adjudication Of Erisa Claims?, 40 J. Marshall L. Rev. 811 (2007), Mark D. Debofsky

UIC Law Review

No abstract provided.

I Can See Clearly Now: Videoconference Hearings And The Legal Limit On How Tribunals Allocate Resources, Lorne Sossin, Zimra Yetnikoff

Articles & Book Chapters

Videoconferencing has generated ambivalence in the legal community. Some have heralded its promise of unprecedented access to justice, expecialy for geographicaly remote communities. Others, however, have questioned whether videoconferencing undermines fairness. The authors explore the impl'cations of videoconferencing through the case study of the Ontario Landlord and Tenant Tribunal, which is one of the busiest adjudicative bodies in Canada. This anaysis hig hghts concerns both with videoconferendng in princp4 and in practice. While such concerns traditionally have been the province of public administration, the authors argue that a tribunals allocation of resources and the suffidengy of its budget are also …

Privacy Wars: Eu Versus Us: Scattered Skirmishes, Storm Clouds Ahead., Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Winning The Battle, But Perhaps Losing The War: Endorsing Deregulation Of Emergency Contraception At The Expense Of Derogating Abortion, Melissa Bond

Cardozo Journal of International and Comparative Law

No abstract provided.

Broadening Narrow Perspectives And Nuisance Law: Protecting Ecosystem Services In The Acf Basin, Robert Haskell Abrams

Journal Publications

The political stalemate among the neighboring states of Georgia, Alabama, and Florida over the cooperative management of the Apalachicola-Chattahoochee-Flint (ACF) River Basin has been chronicled in numerous articles in the past. This Article will canvas parallel ground in relation to the ACF Basin. In addition, this Article will consider the usual mantra about why the legal deck appears to be stacked against the bottom of the basin where the principal benefits of the water are derived from the ecological systems that are supported by a more natural flow regime. After that, however, the Article will explain how the greatly expanded …

Environmental Law In The "New" Supreme Court, Robert Abrams

Journal Publications

In the 2006 term the United States Supreme Court issued plenary decisions in four environmental cases. As is usually the case, all four environmental cases that reached the Supreme Court presented nuanced questions of statutory interpretation, most of which were intertwined with administrative law issues. The decisions this term are of unusual importance, as all have significant aspects, either practical, precedential, or attitudinal. Additionally, two of the cases exhibit the 5-4 cleavage, so common in this term's decisions, in which Justice Kennedy is the outcome-determinative swing voter. On unusual occasions there are environmental cases decided by the Supreme Court that …

Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart

Publications

No abstract provided.

Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo

Faculty Scholarship

One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member …

Majority Camp V. Israel Police, Aharon Barak, Miriam Naor, Elyakim Rubinstein

Translated Opinions

Facts: The petitioners applied to the first respondent to hold a demonstration in Tel-Aviv supporting the government’s disengagement plan. The first respondent imposed various conditions upon the holding of the demonstration, including demands that the petitioners should arrange to have security, first aid and fire extinguishing services present at the demonstration. The second and third respondents demanded payment from the petitioners for providing the first aid and fire extinguishing services. The petitioners challenged the legality of the demands made by the first, second and third respondents, arguing, inter, alia, that the fourth respondent should be liable to pay the …

You Said What? The Perils Of Content-Based Regulation Of Public Broadcast Underwriting Acknowledgments, Andrew D. Cotlar

Federal Communications Law Journal

Public broadcast stations in the United States are forbidden to air promotional announcements in exchange for payment from commercial entities. However, these stations must acknowledge any financial contribution from donors that support particular programs without promoting the goods and services offered by those donors. While the FCC has attempted to maintain the conceptual distinction between promotional and nonpromotional information, it has struggled to apply this distinction within the context of an evolution in advertising practice.

As a result, many noncommercial educational licensees find it difficult to apply the FCC's rules. A careful analysis of how the FCC underwriting determinations yields …

Broadcast Technology As Diversity Opportunity: Exchanging Market Power For Multiplexed Signal Set- Asides, Michael M. Epstein

Federal Communications Law Journal

This Article proposes an access system based on a theory of quid pro quo: a bargained.for-exchange in which broadcasters would trade media access for market power. Under this quid pro quo approach, the FCC would administer a scaled metric whereby the greater a media company's audience reach, the more access that company must provide to citizens with diverse and local content. Since digital technology permits broadcasters to "multiplex" their television signal bandwidth into multiple signal programming streams, an opportunity exists for the government to require public access to one or more of these programming streams in return for relaxing caps …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

State Executive Lawmaking In Crisis, Jim Rossi

Vanderbilt Law School Faculty Publications

Courts and scholars have largely overlooked the constitutional source and scope of a state executive's powers to avert and respond to crises. This Article addresses how actual and perceived legal barriers to executive authority under state constitutions can have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature-a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional …

How To Sue Without Standing: The Constitutionality Of Citizen Suits In Non-Article Iii Tribunals, David Krinsky

ExpressO

In recent years, the “injury-in-fact” standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court.

This article proposes a way in which “citizen suits”—lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole—can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose.

After discussing the constitutionality of citizen suits in Article I tribunals, the article then turns …

A New Clean Water Act, Paul Boudreaux

ExpressO

The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. This summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover “navigable waters,” but its practical definition has never …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems, …

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

ExpressO

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual’s property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation’s validity and the means by which the regulation attempts to meet the government’s objective. Lingle’s explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), …

The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt

ExpressO

This article examines the problems of benefit-cost (or cost-benefit) analysis in our regulatory system and posits that a more nuanced version of the “non-delegation” doctrine (made famous in Schechter Poultry) could improve many of the problems associated with the use of benefit-cost analysis. In particular this article notes that many of the problems with benefit-cost analysis are its use by agencies to make large policy decisions, which could be characterized as legislative. The article also notes that though the “non-delegation” doctrine may appear to be dead or dormant, that a form of it, in separation of powers doctrine, exists in …

Sherman's March (In)To The Sea, Andrew S. Oldham

ExpressO

This Article argues that the Sherman Act is unconstitutional. At the very least, scholars and jurists must not take for granted Congress's ability to statutorily deputize the federal courts with common-lawmaking powers. The federal antitrust statute—which has been described as the Magna Carta of free enterprise—raises serious constitutional questions that have heretofore gone unexplored and unanswered. Specifically, it is difficult (if not impossible) to reconcile the Sherman Act with the separation of powers, the nondelegation doctrine, and the Supremacy Clause.

Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Beilin V. Prime Minister, Dorit Beinisch, Edna Arbel, Ayala Procaccia

Translated Opinions

Facts: On 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight Israel Defence Forces (IDF) soldiers were killed and two other soldiers were kidnapped and taken over the border into Lebanon. In response, the IDF began military operations in Lebanon, and the State of Israel was attacked at the same time with thousands of missiles and Katyusha rockets, which caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property.

The petitioners argued that the government was …

Morar V. Idf Commander In Judaea And Samaria, Dorit Beinisch, Eliezer Rivlin, Salim Joubran

Translated Opinions

Facts: The petitioners, who represent five Arab villages in the territory of Judaea and Samaria, claimed that the respondents unlawfully deny Palestinian farmers in those villages access to their agricultural land. The petitioners also claimed that the respondents do not act to prevent attacks and harassment perpetrated by Israeli inhabitants of the territory of Judaea and Samaria against Palestinian farmers and do not enforce the law against the Israeli inhabitants. In reply, the respondents explained that the agricultural land was closed only when it was necessary to protect the Palestinian farmers from harassment by Israeli inhabitants. The respondents also notified …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Dobrin V. Israel Prison Service, Ayala Procaccia, Esther Hayut, Salim Joubran

Translated Opinions

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request.

The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to …

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.

Private Eyes Are Watching You: With The Implementation Of The E-911 Mandate, Who Will Watch Every Move You Make?, Geoffrey D. Smith

Federal Communications Law Journal

The FCC's E-911 mandate, which will ensure that emergency operators automatically receive a caller's location information, should help save lives. However, privacy advocates have expressed concern over the potential for wireless carriers, the government, and third parties to collect and store personal information. Congress has addressed these concerns with legislation, but privacy advocates still worry that consumers are not adequately protected. This Note addresses this concern and argues that in order to ensure consumer protection, additions are needed to section 222 of the Telecommunications Act of 1996. The Note discusses the importance of individual privacy and balances it against the …

Foundations Of Federalism: An Exchange, Randall P. Bezanson, Steven Moeller

ExpressO

Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that …

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …