Courts Commons^™

Appropriations

Touro Law Review

No abstract provided.

The Fifth Amendment And The Retained Sovereignty Doctrine: A Study Of The Endangered Species Act And The Central Valley Project Improvement Act As Applied To Central Valley Project Water Service Contracts, Brian E. Gray

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

12 pages.

Initiative Enigmas, Richard Collins

Publications

No abstract provided.

The Federalist Papers: The Framers Construct An Orrery, Harold H. Bruff

Publications

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

Pragmatism Without Politics -- A Half Measure Of Authority For Jurisdictional Common Law, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

Specialized Courts In Administrative Law, Harold H. Bruff

Publications

No abstract provided.

Separation Of Powers Under The Texas Constitution, Harold H. Bruff

Publications

No abstract provided.

A ‘Non-Power’ Looks At Separation Of Powers, Alan B. Morrison, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On April 6, 1989, Dean, Alan B. Morrison of George Washington Law, delivered the Georgetown Law Center’s ninth Annual Philip A. Hart Memorial Lecture: "A ‘Non-Power’ Looks at Separation of Powers."

Dean Morrison is the Lerner Family Associate Dean for Public Interest & Public Service at GW Law. He is responsible for creating pro bono opportunities for students, bringing a wide range of public interest programs to the law school, encouraging students to seek positions in the non-profit and government sectors, and assisting students find ways to fund their legal education to make it possible for them to pursue careers …

Isolationism Or Deference? The Alien Tort Claims Act And The Separation Of Powers, Victor A. Pappalardo

Michigan Journal of International Law

This Note examines the rationales behind Filartiga and other cases which have had the opportunity to pass upon its holding, notably the holdings in Tel-Oren v. Libyan Arab Republic and Forti v. Suarez- Mason. It then focuses on the validity of these rationales with respect to the constitutional separation of powers scheme. In so doing, it analyzes Filartiga's conclusions in light of the act of state and political question doctrines, two closely interrelated doctrines which have been at the forefront of the separation of powers criticisms of Filartiga. This Note concludes by suggesting that a clear case exists …

"Bad" Judicial Activism And Liberal Federal-Courts Doctrine: A Comment On Professor Doernberg And Professor Redish, Jack M. Beermann

Faculty Scholarship

JUDUCIAL ACTIVISM IS often portrayed as a liberal vice. This perception is wrong both historically and, as Professor Redish argues, ³ currently as well. The federal judiciary has been and still is an activist institution, working with both substantive law and jurisdictional rules to achieve its own policy goals. It has done this in statutory, constitutional, and common-law matters. Specifically, the Supreme Court of the United States has actively-shaped the jurisdiction of the federal courts in a restrictive and generally conservative manner.

Professors Doernberg⁴ and Redish attack this last form of activism by the federal courts, activism in shaping …

Public Programs, Private Deciders: The Constitutionality Of Arbitration In Federal Programs, Harold H. Bruff

Publications

No abstract provided.

The Process Of Decision-Making In Tribal Courts, Tom Tso

Natural Resource Development in Indian Country (Summer Conference, June 8-10)

11 pages.

Terrorism And The Constitution, Christopher L. Blakesley

Scholarly Works

How do terrorism and the Iran-Contra hearings relate to the Constitution? My thesis is that there is a tendency for the executive of this or any nation to eschew even constitutionally mandated avenues of problem solving considered to be cumbersome, inefficient, or inimical to the executive’s vision of the national interest in foreign affairs. There is also a tendency to consider one’s own conduct and the conduct of one’s allies and friends to be justified when it is directed at goals deemed by the executive branch to be good. Constitutional provisions based on the checks and balances and separation of …

Government Nonacquiescence Case In Point: Social Security Litigation

Touro Law Review

No abstract provided.

The Legislative Veto, The Constitution, And The Courts, Robert F. Nagel

Publications

No abstract provided.

The Common Law Powers Of Federal Courts, Thomas W. Merrill

Faculty Scholarship

Lawmaking by federal courts has been a matter of controversy since the early days of the Republic. In the last forty years, the debate has fallen into roughly two periods, with Roe v. Wade marking the dividing line. During what might be called the "legal process" era of the 1950's and 1960's, scholarly energy was focused on Erie Railroad v. Tompkins and what was then called the "new federal common law." To be sure, important work on judicial review was also done in those years, particularly in the wake of the Supreme Court's dramatic decision in Brown v. Board of …

Controlling The Structural Injunction, Robert F. Nagel

Publications

No abstract provided.

The Place Of Agencies In Government: Separation Of Powers And The Fourth Branch, Peter L. Strauss

Faculty Scholarship

For the past few years the Supreme Court has been struggling with issues of government structure so fundamental that they might have been thought textbook simple, yet with results that seem to imperil the everyday exercise of law-administration. Under what circumstances can Congress assign the adjudication of contested issues in the first instance to tribunals that are not article III courts? The past century has witnessed the profuse growth of legislation assigning to special adjudicative tribunals – administrative agencies and other article I courts – the power to hold trial-type hearings that might otherwise have been placed in the article …

Judicial V. Legislative Power In Kentucky: A "Comity" Of Errors, Douglas L. Mcswain

Kentucky Law Journal

No abstract provided.

Separation Of Powers And The Scope Of Federal Equitable Remedies, Robert F. Nagel

Publications

No abstract provided.

The Congressional Veto: A Contemporary Response To Executive Encroachment On Legislative Prerogatives, James Abourezk

Indiana Law Journal

Symposium: Separation of Powers

Congressional Control Of Administrative Regulation: A Study Of Legislative Vetoes, Harold H. Bruff, Ernest Gellhorn

Publications

Several administrative programs contain provisions allowing Congress to veto agency rules, and there is now a bill before Congress to extend this veto power to all agency rulemaking. In this Article, Professor Bruff and Dean Gellhorn analyze the histories of five federal programs subject to the legislative veto to determine the effect of the veto on the rulemaking process and on the relationships between the branches of government. Extrapolating from this practical experience, they suggest that a general legislative veto is unlikely to increase the overall efficiency of the administrative process, may impede the achievement of reasoned decisionmaking based on …

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 …

Judicial Power, The “Political Question Doctrine,” And Foreign Relations, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Compulsory Disclosure And The First Amendment - The Scope Of Judicial Review, Robert B. Kent

Cornell Law Faculty Publications

Involvement of the Supreme Court of the United States with highly charged public issues understandably occasions fresh debate concerning the proper role of the Court in determining questions of ultimate governmental power, in short, debate over the doctrine of judicial review.

As it is sometimes difficult for the judge to distinguish between what is unconstitutional and what is merely unwise, so it is difficult for the critic to disassociate his reaction to the results reached in a given case from his evaluation of the competence of the particular judicial performance. For some the failure to draw such a line robs …

Political Questions In The Federal Judiciary -- A Comparative Study, Wencelas J. Wagner

Articles by Maurer Faculty

No abstract provided.

The Original And Exclusive Jurisdiction Of The United States Supreme Court, Wencelas J. Wagner

Articles by Maurer Faculty

No abstract provided.

Administrative Agencies And The Court, Frank E. Cooper

Michigan Legal Studies Series

The limits which courts place on the powers of administrative tribunals have particular significance to practicing attorneys and law students. It is largely to the extent that such limits are imposed, that our government remains a government of laws and not a government of men.

The following pages have been written to describe the standards which the courts impose upon administrative agencies, thereby controlling and limiting their powers. More particularly, the writer has sought: (1) to bring together the leading cases in which the courts have laid down the principles that govern frequently litigated questions in contests between the agencies …

Constitutional Law--Separation Of Powers--Issuance Of Municipal Charter By Circuit Court, W. E. P.

West Virginia Law Review

No abstract provided.