Courts Commons^™

Making Noninterpretivism Respectable: Michael J. Perry's Contributions To Constitutional Theory, Richard B. Saphire

Michigan Law Review

A Review of The Constitution, The Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary by Michael J. Perry

Majoritarian Constraints On Judicial Review: Congressional Control Of Supreme Court Jurisdiction, Leonard G. Ratner

Villanova Law Review (1956 - )

No abstract provided.

Justice, Bureaucracy, And Legal Method, Jospeh Vining

Articles

In the real world justice denied is not justice. Talking from the beginning about access to justice, rather than simply justice, emphasizes in a salutary way this commonplace of citizen and client. Justice that is inaccessible, delayed, refused does not just sit there glowing like a grail, which those separated from it may contemplate and yearn for. It is only in imagining that justice is available to someone, and in imagining what it would be like to be that someone, that one can see the thing as justice at all. To put it in economic terms, justice is not a …

A Judge's View On Justice, Bureaucracy, And Legal Method, Harry T. Edwards

Michigan Law Review

At the recent Inaugural Lecture of the University of Windsor's Distinguished Scholars Program on Access to Justice, my former law teaching colleague, Professor Joseph Vining, delivered a speech entitled Justice, Bureaucracy, and Legal Method. Because, in my view, Professor Vining's address raised some disturbing questions, and some seriously misguided suggestions, about the growth of bureaucracy in the courts and the delivery of justice, I believe that a response is appropriate.

The Distrust Of Politics, Terrance Sandalow

Articles

In this Article, Dean Sandalow considers the justifications advanced by those who favor the removal of certain political issues from the political process by extending the reach of judicial review. He begins by examining the distrust of politics in a different context, discussing the proposals made by the Progressives for reforming municipal government, as a vehicle to expose the assumptions underlying the current debate. His comparison of the two historical settings reveals many similarities between the Progressives' reform proposals and the contemporary justiflcations.[or the displacement of politics with constitutional law. Dean Sandalow concludes that the distrust of politics rests not …

The Role Of The Supreme Court, Raoul Berger

University of Arkansas at Little Rock Law Review

No abstract provided.

Judicial Review Of Regulations Promulgated Under The Surface Mining Control And Reclamation Act Of 1977--In Re Surface Mining Regulation Litigation, Joyce Fleming Ofsa, David E. Godwin

West Virginia Law Review

No abstract provided.

Ashbacker Rites In Administrative Practice: A Case Study Of Broadcast Regulation., Jacob W. Mayer, Michael Botein

Articles & Chapters

No abstract provided.

Hospital Medical Staff: When Are Privilege Denials Judicially Reviewable?, David Hejna

University of Michigan Journal of Law Reform

The relationship between a hospital and its medical staff is unique. Most physicians serving as hospital staff are not salaried employees . Rather, they use hospital facilities to care for their patients pursuant to "staff privileges" granted by the hospital's board of governors. Staff privileges at one area hospital are practically indispensable for the modern physician, and privileges at a conveniently located hospital are considered important. By extending staff privileges the hospital benefits from having a staff large enough to ensure maximum use of its facilities. The public benefits when an adequate number of qualified physicians have access to hospital …

Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine

Articles

Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …

Judicial Review Of Private Hospital Activities, Michigan Law Review

Michigan Law Review

This Note will examine the judicial review of hospitals under state law and the fourteenth amendment and will suggest that unless certain clear requirements for "publicness" are met, judicial restraint based on the failure of legislative institutions to mandate judicial interference is the better course.

Judicial Law Making And Administration, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Citizen Access To Judicial Review Of Administrative Action In A Transnational And Federal Context, Eric Stein, Joseph Vining

Articles

In an international legal order dominated by states, the individual citizen is generally viewed as lacking international legal personality. It is true with little exception that an individual cannot appear in an international forum, political or judicial, to press his rights. Despite the dramatically increased emphasis upon international protection of basic human rights, individuals have been given access to international dispute-settlement machinery in only a few isolated instances within the United Nations system, and on a regional level pursuant to the European Convention on Human Rights. The Paris Treaty establishing the European Coal and Steel Community (ECSC) and the Rome …

Judicial Review: Its Influence Abroad, Donald P. Kommers

Journal Articles

The doctrine of judicial review, having been nourished in a legal culture and socio-political environment favorable to its growth, is America’s most distinctive contribution to constitutional government. Judicial review as historically practiced in the United States was duly recorded abroad, with varying degrees of influence and acceptability. During the nineteenth and early twentieth centuries, the influence of judicial review was most conspicuous in Latin America, where it was adopted as an articulate principle of numerous national constitutions, while most European nations consciously rejected it as incompatible with the prevailing theory of separation of powers. Germany, Austria, and Switzerland, although marginally …

Comparative Judicial Review And Constitutional Politics, Donald P. Kommers

Journal Articles

Donald P. Kommers reviews Richard D. Baker's Judicial Review in Mexico: A Study of the Amparo Suit (Austin and London: University of Texas Press, 1971); B. L. Strayer's Judicial Review of Legislation in Canada (Toronto: University of Toronto Press, 1968); Heinz Laufer's Verfassungsgerichtsbarkeit und politischer Prozess (Tiibingen: J.C.B. Mohr [Paul Siebeck ], 1968); Mauro Cappelletti's Judicial Review in the Contemporary World (Indianapolis: The Bobbs-Merrill Company, Inc., 1971); Edward McWhinney's Judicial Review (4th ed.) (Toronto: University of Toronto Press, 1969); Richard E. Johnston's The Effect of Judicial Review on Federal-State Relations in Australia, Canada, and the United States (Baton Rouge: Louisiana …

Security Council Resolutions In United States Courts, Janis P. Bianchi

Indiana Law Journal

No abstract provided.

A Political And Constitutional Review Of United States V. Nixon, William W. Van Alstyne

Faculty Scholarship

This comparison of United States v. Nixon and the Pentagon Papers case finds the greatest similarity and significance shared by the two cases was the anti-climactic nature of their conclusions. While both cases concerned constitutional questions of the highest order, centered around the scope of the executive power, both cases were drawn on such narrow grounds that there was hardly any effect on constitutional law doctrine.

Hart And Wechsler's The Federal Courts And Federal System, Henry Paul Monaghan

Faculty Scholarship

The first edition of Hart & Wechsler's The Federal Courts and the Federal System, published in i953, has deservedly achieved a reputation that is extraordinary among casebooks and, indeed, rare even among learned treatises. Hart & Wechsler I is more than a stimulating collection of cases and basic source material, and its scope is not confined to the operation and functioning of the federal courts in the federal system. Through its extensive notes and its inimitable leading questions, the book constantly raised questions which have "prodded … students and [teachers] to think over their heads about the deepest problems …

Substance And Procedure In The Construction Of The National Environmental Policy Act, Lloyd A. Fox

University of Michigan Journal of Law Reform

In 1969 Congress enacted the National Environmental Policy Act (NEPA or Act) in an effort to deal with the many environmental problems facing the United States. In the three years that the Act has been in force, a large number of suits has been filed by environmental organizations seeking to enforce the standards enunciated in NEPA. The courts hearing these cases generally agree that NEPA imposes only procedural duties on administrative agencies. This implies that the courts will merely determine whether the agency in question has complied with the procedural requirements contained in Section 102 of the Act. This further …

The North Slope Borough, Oil, And The Future Of Local Government In Alaska, David H. Getches

Publications

No abstract provided.

Cappellitti: Judicial Review In The Contemporary World, Paul G. Kauper

Michigan Law Review

A Review of Judicial Review in the Contemporary World by Mauro Cappellitti

Legislative Purpose, Rationality, And Equal Protection, Robert F. Nagel

Publications

No abstract provided.

Direct Judicial Review And The Doctrine Of Ripeness In Administrative Law, Joseph Vining

Articles

There has been recent interest in rationalizing and codifying the opportunities for judicial review of federal administrative determinations outside an enforcement context or special proceedings designated by statute. Abbott Laboratories v. Gardner culminated the development of a strong judicial presumption in favor of such review, founded in general considerations and justified by the broad language of the Administrative Procedure Act (AP A or Act). Since the petitioners in Abbott had theoretical rights to later review of the agency position in enforcement proceedings, the Court called the procedure "pre-enforcement" review. But similar opportunities for immediate and direct review of agency positions …

Judicial Review Of Agency Action: The Unsettled Law Of Standing, Michigan Law Review

Michigan Law Review

Traditionally, the doctrine of standing has existed as the major obstacle frustrating the attempts of numerous plaintiffs to obtain relief for the injuries they have suffered as a result of allegedly illegal action by federal administrative agencies. Frequently, the rigid standards effectively have prevented any feasible plaintiff from challenging the actions of an administrative agency. The ultimate consequence of this problem has been practically to insulate a wide range of administrative activity from judicial review.

In recent years the courts have been under increasing pressure to liberalize the law of standing and to provide a judicial forum where administrative agencies …

Direct Judicial Review Of The Actions Of The Selective Service System, Bruce J. Winick

Michigan Law Review

A registrant may obtain judicial review of Selective Service action in any of three possible ways. If he submits to induction into the Armed Forces, the registrant may challenge the validity of his induction order by petitioning for habeas corpus. If the registrant refuses to submit to induction, and is subsequently indicted for that refusal, he may defend the criminal prosecution on the ground that the order for his induction was unlawful. In addition to these two well-settled methods of obtaining postinduction judicial review, the registrant may have a third alternative. In certain circumstances, he may be able to secure …

Judicial Review--Professional Association--Inquiry Into Exclusion From Membership, Charles Blaine Myers Jr.

West Virginia Law Review

No abstract provided.

Sovereign Immunity And Nonstatutory Review Of Federal Administrative Action: Some Conclusions From The Public-Lands Cases, Antonin Scalia

Michigan Law Review

The purpose of the present Article is not to propose yet another route toward logical reconciliation of the sovereign-immunity cases; but, on the contrary, to urge general acceptance of the fact that such reconciliation is, and will probably remain, unattainable; to explain why this is so; and to suggest why it is not so bad. This modest goal will be attempted through a detailed examination of two recent Supreme Court cases and their most pertinent antecedents.

Nonstatutory Review Of Federal Administrative Action: The Need For Statutory Reform Of Sovereign Immunity, Subject Matter Jurisdiction, And Parties Defendant, Roger C. Cramton

Michigan Law Review

The purpose of this Article is to generate support for three legislative proposals that will rectify the problems exemplified by the Gnotta case and hosts of other cases: (1) The elimination of the doctrine of sovereign immunity as a barrier to judicial review of federal administrative action; (2) a modest expansion of the subject matter jurisdiction of United States district courts to accommodate such review and, in addition, to provide a remedy against the United States for the resolution of property disputes; and (3) the total elimination of the remaining technicalities concerning the identification, naming, capacity, and joinder of parties …

Cafeteria Workers Revisited: Does The Commander Have Plenary Power To Control Access To His Base?, Jethro K. Lieberman

Articles & Chapters

The Supreme Court's decision in Cafeteria Workers v. McElroy (1961) has often been cited by military commanders to support claimed plenary power over access to the installation commanded. Observing that plenary power is a rarity in contemporary society, Lieutenant Lieberman questions the prof erred interpretation of Cafeteria Workers particularly in light of more recent decisions. He concludes that while commanders do possess broad powers over access, the power is not plenary but must be weighed in each instance against the individual's rights of freedom of speech and association.

Review Of Labor And The Legal Process, By H. H. Wellington, Theodore J. St. Antoine

Reviews

If there is a more acute intellect than that of Harry Wellington at work today in labor law, I am unaware of it. This makes his new book all the more troubling, for it reveals the limitations, or perhaps I should even say the deficiencies, of a highly rational approach to the regulation of industrial relations. Professor Wellington has two stated objectives (he disclaims any attempt at a comprehensive text on labor law). First, he wishes to appraise "the role of the legal process in moving collective bargaining to its present position at the center of national labor policy." Second, …