Constitutional Law Commons^™

Marbury V. Madison As The First Great Administrative Law Decision, Thomas W. Merrill

Faculty Scholarship

Marbury v. Madison is our foremost symbol of judicial power. Not only is the decision regarded as the root of judicial authority to strike down statutes as violating the Constitution; it is also taken to mean that "the federal judiciary is supreme in the exposition of the Constitution." In other words, Marbury has come to stand for the proposition that courts should enforce their own understanding of the meaning of the Constitution, without deferring or even paying much attention to the views of the other branches.

I will not in this essay engage in yet another analysis of Marbury's …

The Battle For Separation Of Powers In Rhode Island, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Constitutional And Statutory Interpretation, Kent Greenawalt

Faculty Scholarship

This article discusses relatively established theories with respect to statutory and constitutional interpretation. Written constitutions and statutes provide authoritative directions for officials and citizens within liberal democracies. The article mentions that descriptive and normative theories connect with each other in critical respects. Statutory interpretation involves the construction and application of provisions adopted by legislatures. The theoretical questions about interpreting statutes and constitutions suggest more general questions about the meaning of human communications; and scholars of philosophy of language, linguistics, literary theory, and religious hermeneutics discuss analogous issues. This article discusses an important issue in statutory interpretation that is the nature …

Say Cheese: The Constitutionality Of State-Mandated Airtime On Public Broadcasting Stations In Wisconsin, Andrew D. Cotlar

Federal Communications Law Journal

Last year, the State of Wisconsin passed legislation which would require statechartered public broadcasting television networks to carry political advertising for candidates free of charge. In this article, Andrew Cotlar raises many concerns about the wisdom of such legislation and the impact this trend may have on public broadcasters throughout the nation. The author begins by analyzing the current position of the law on political access requirements, at both federal and state levels, and then argues that the public television stations should continue to be free to exercise substantial editorial discretion. The Article proceeds to critique the Wisconsin statute as …

Legislative Supremacy: Myth Or Reality?, James Oakes

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Telric Vs. Universal Service: A Takings Violation?, Stuart Buck

Federal Communications Law Journal

While the Telecommunications Act of 1996 has had a profound positive impact on many sectors of the communications industry in the United States, local phone companies have recently faced a serious dilemma under a provision of the Act known as TELRIC. In this article, Stuart Buck presents a current analysis of the position of the telephone company and its struggle to meet costs under the TELRIC structure. The author argues that by forcing regional phone operators to grant wholesale pricing to competitors under TELRIC, while simultaneously maintaining Universal Service requirements of reduced-rate phone access to remote customers, the local phone …

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock

ExpressO

In the past two years there have been serious calls for a national identity system whose centerpiece would be some form of national identity card. Such a system is seen mainly as a tool against terrorists, but also as a useful response to illegal immigration, identity theft, and electoral fraud. Both proponents and opponents have noted the potential constitutional problems of such an identity system, but as yet there has been no published legal analysis of these questions. This article aims to fill that gap by analyzing the Fourth and Fifth Amendment issues in two major features of any likely …

The Movement For Quality Government In Israel V. The Prime Minister, Mr. Ariel Sharon, Eliezer Rivlin, Eliahu Mazza, Jacob Turkel, Dalia Dorner, Theodor Or, Dorit Beinisch, Mishael Cheshin

Translated Opinions

Facts: The Prime Minister appointed respondent 3 to the position of Minister of Public Security. Petitioner asks that the High Court of Justice order the Prime Minister to refrain from making the appointment.

Held: The Court, by majority vote, held that it would not intervene in the Prime Minister’s decision to appoint respondent 3 to the position of Minister of Public Security.

In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Salama V. Idf Commander In Judea And Samaria, Aharon Barak, Jacob Turkel, Eliezer Rivlin

Translated Opinions

Facts: Based on classified evidence tying them to terror organizations, detention orders were issued against the three petitioners. The orders were extended by respondent, and these extensions were confirmed by the Military Appeals Court. Petitioners claim that the extensions are not legal. They argue that respondents should corroborate the suspicions against them with further investigation. This would allow the detention orders to be replaced by a criminal proceeding.

Held: The Court noted that the basic premise of administrative detention is the need to prevent future danger to the security of the state of public safety. Administrative detention is not meant …

Legislating Chevron, Elizabeth Garrett

Michigan Law Review

One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, lnc., is routinely referred to as the "counter-Marbury." The reference suggests that Chevron's command to courts to defer to certain reasonable agency interpretations of statutes is superficially an uneasy fit with the declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language or filling …

Federal Maritime Commission V. South Carolina State Ports Authority: Small Iceberg Or Just The Tip?, Gordon G. Young

Faculty Scholarship

No abstract provided.

Memorandum Of Argument, Supreme Court Of Canada, In Re James R. Demers, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Role Of The Federal Communications Commission On The Path From The Vast Wasteland To The Fertile Plain, Kathleen Q. Abernathy

Federal Communications Law Journal

No abstract provided.

Beyond Accountability: Arbitrariness And Legitimacy In The Administrative State, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation-the President. This Article contends that the "presidential control" model cannot legitimate agencies because the model rests on a mistaken assumption about the …

The Canon That Tax Penalties Should Be Strictly Construed, Steve R. Johnson

Scholarly Publications

No abstract provided.

Avoiding Slim Reasoning And Shady Results: A Proposal For Indecency And Obscenity Regulation In Radio And Broadcast Television, Jacob T. Rigney

Federal Communications Law Journal

This Note explores the relevant law regarding the issue of indecency and obscenity in broadcast, with particular focus on a 2001 Policy Statement released by the FCC. The Author examines the major problems with the regulatory scheme as it now exists, and offers an alternative. The Author concludes by arguing that leaving the subjective decisions regarding indecency to market forces, leaving parents to determine what should or should not be indecent, and leaving the FCC free to pursue obscenity with greater zeal is the most appropriate course of action for the future.

Drug Regulations And The Constitution After Western States, Margaret Gilhooley

University of Richmond Law Review

No abstract provided.

Thinking Like A Lawyer, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Herut--The National Jewish Movement V. Cheshin, Eliahu Mazza, Tova Strasberg-Cohen, Aharon Barak

Translated Opinions

Facts: Petitioner attacked the decision of the respondent to disqualify an election commercial it had prepared for broadcast over both radio and television. The jingle included praise for Yasir Arafat and a call for the expulsion of Jews from Jaffa and Ramle. In addition, the television version of the commercial depicted an Israeli flag, flying over the Knesset, as it changed into a Palestinian flag. The Chairman of the Elections Committee disqualified this commercial, reasoning that the jingle caused severe injury to the dignity of the flag and the national anthem. In the context of the petition, respondent also asserted …

Negev Coexistence Forum V. Ministry Of Infrastructure, Eliahu Mazza, Edmond E. Levy, Dalia Dorner

Translated Opinions

Facts: This petition concerns an urgent petition for an interim order. Petitioners request that the State build a bridge over Wadi Hebron in order to enable children to reach the regional public school. The State recognizes the urgent need for erecting a bridge, but claims that it is not possible within the framework of current regional planning laws.

Held: The Supreme Court held that the Basic Law: the Judiciary has a constitutional status superior to ordinary legislation. This superior status is not limited to the Basic Law’s grant of jurisdiction but also applies to its conferral of power to grant …

Faiglin V. Cheshin, Shlomo Levin, Izhak Englard, Edmond E. Levy, Tova Strasberg-Cohen, Ayala Procaccia, Aharon Barak, Eliahu Mazza, Jacob Turkel, Dorit Beinisch, Dalia Dorner, Eliezer Rivlin

Translated Opinions

Facts: Petitioner wished to be a candidate in the elections for the sixteenth Knesset. Petitioner included, with his candidacy application, a “Statement of Agreement” pursuant to section 57(i) of the Knesset Elections Law. Petitioner did not add any additional materials to note that he had been convicted of the criminal offense of incitement and sentenced to six months imprisonment, to be served as community service. Additionally, petitioner did not subject a request “to expunge the disgrace” of his conviction to the Chairman of the Central Elections Committee. In light of these circumstances, petitioners asked the Court to hold that petitioner …

Are Title Vi's Disparate Impact Regulations Valid?, Bradford Mank

Faculty Articles and Other Publications

This Essay, however, contends that section 602 disparate impact regulations in Tide VI are valid because Congress has implicitly sanctioned their creation, and explicitly approved them in subsequent related statutes.

Part II of this Essay discusses the legislative history of Tide VI, which suggests that Congress intended to give administrative agencies discretion to define "discrimination" in their Tide VI regulations as prohibiting either intentional conduct or actions having disparate impacts against racial minorities as long as the President approved such rules.

Part III illustrates that five different Congresses have enacted four subsequent related statutes that explicitly incorporate Tide VI disparate …

The Freedom Of Information Act Post-9/11: Balancing The Public's Right To Know, Critical Infrastructure Protection, And Homeland Security, Kristen Elizabeth Uhl

American University Law Review

No abstract provided.

Contracts Of Convenience: Preventing Employers From Unilaterally Modifying Promises Made In Employee Handbooks, Brian T. Kohn

Cardozo Law Review

No abstract provided.

Yassin V. Ben-David, Aharon Barak, Dorit Beinisch, Izhak Englard

Translated Opinions

Facts: In the context of IDF operations against the terrorist infrastructure in areas of the Palestinian Authority (“Operation Defensive Wall”), thousands of suspects were detained. Due to overcrowding, some of these petitioners were transferred to the Kziot detention facility in the Negev region. Most of the detainees were detained pursuant to administrative detention orders. This petition concerns the detention conditions of these detainees.

Held: The Supreme Court held that the presumption of innocence should be applied to the detainees, as they are being held under administrative detention orders, and have neither been tried nor convicted. The Court further held that …

Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The Supreme Court's recent reversal of the D.C. Circuit's decision in "Whitman v. American Trucking Ass'ns" brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that "Ashwander v. TVA" provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional …

Blackletter Statement Of Federal Administrative Law: Standing, Cynthia R. Farina

Cornell Law Faculty Publications

No abstract provided.

The Third Circuit's Approach To The Private Enforcement Of Administrative Agency Regulations Under Section 1983, Lisa M. Lamb

Villanova Law Review (1956 - )

No abstract provided.