Review Of Statutes Research Articles

Presidential Constraints on Supreme Court Decision-Making

Separation-of-powers studies of judicial decision-making largely focus on congressional influences. Less attention is given to the role of presidents, which is surprising given their vast policy-making powers. Accordingly, we develop a new theory of how presidents influence the Supreme Court’s review of statutes through potential legislative and administrative action. Using a data set of all federal laws passed between 1948 and 2015, we find, like others, that judicial review is less likely to occur when the court faces an ideologically hostile Congress. Unlike previous work, we reveal that such constraint is only effective when Congress is aligned with the president, who is less inclined to veto court-curbing legislation. We also find that the court’s distance to the president is constraining given threats of nonenforcement, but only when the law is salient, the president and public align, and the president exerts more control over implementation.

Judicial Change to the Law-in-Action of Constitutional Review of Statutes in Poland

Judicial Change to the Law-in-Action of Constitutional Review of Statutes in Poland

Abstract TMP35: Prehospital Bypass Policies Increase The Proportion Of Stroke Patients Transported To Primary Stroke Centers - A Quasi-experimental Study In A National Sample Of Medicare Beneficiaries.

Objective: Prehospital bypass policies were designed to encourage transport of eligible stroke patients to stroke centers in order to receive rapid assessment and treatment. In a national dataset we examined the relationship between implementation of bypass policies and the proportion of patients transported to stroke centers. Methods: We included EMS transported ischemic stroke patients aged 66+ from a 20% sample of Medicare claims (2007 - 2014). We excluded patients not admitted through the ED, and those not continuously enrolled in parts A/B in the prior year. The outcome measure was transport to PSC. Stroke certification status was validated by multiple stroke certification databases; policy implementation details were obtained from review of statutes and regulations. We employed difference-in-differences (DID) analyses with a state-level random intercept. Results: A total of 20,345 patients were included in the study with 7,239 from policy states and counties and 13,106 from non-policy states and counties. The proportion of patients arriving at PSCs increased from 28% to 43% in non-policy areas and 33% to 57% in policy areas. The DID analysis revealed a net effect of 11% (p<.001): policy areashad 17% higher probability of transporting stroke patients to PSCs after policy implementation (p<.001) while non-policy areas demonstrated a 6% increase (p<.001). Patients from rural areas had 49% lower odds of transport to PSC (OR 0.51, p<.001). Discussion: In pre-thrombectomy era, statewide prehospital bypass policies were related to significant increases in proportion of stroke patients transported to stroke centers. Future analyses will assess if these effects occur in the thrombectomy era, and if these policies influence delivery of stroke treatments.

A Critical Assessment of the Enforcement Regime for Combatting Money Laundering in Nigeria

The menace of corruption in public sector governance has remained an intractable challenge in most African countries. Since the reintroduction of civilian democracy in 1999 in Nigeria, the state has strived to entrench openness and transparency, which are indispensable to the attainment of rapid socio-economic development. The government has pursued the policy of eliminating corruption in the public and private sectors through the enactment or review of statutes aimed at the prevention of financial crimes, especially money laundering. This article assesses the effectiveness of the statutory instruments in realising the desired objectives of curbing money laundering and institutionalising transparency in Nigeria.

A Review of Statutes and the Role of the Forensic Psychiatrist in Cyberstalking Involving Youth.

Adolescents are increasingly exposed to Internet-facilitated crime as they spend more time online. The mental health risks and legal consequences for youth involved in cyberstalking are growing areas of concern. The nature of online stalking presents several challenges regarding investigation, fair adjudication, fact-finding, and legislation. Laws governing online stalking behaviors inconsistently reference the age of a victim or perpetrator as a factor for consideration in case disposition. During adjudication, the forensic psychiatrist may be asked to evaluate the victim or perpetrator involved in cyberstalking. This article focuses on the current legal landscape governing cyberstalking behavior involving adolescents, the roles a forensic psychiatrist may assume in this context, and the opportunity to bring a developmental perspective to these cases.

Research on Teacher Evaluation: A Review of Statute, Regulation and Litigation in the Region

Limited research has been done to examine teacher evaluation in rural schools. This article presents an analysis of legislation and regulation of teacher evaluation in selected rural states, highlights their commonalities and differences, reports their litigation, and speculates on potential problems that can result in rural schools. It ends with recommendations for states to consider now that the Every Student Succeeds Act (formerly No Child Left Behind) has passed, and states have the option to reconsider their teacher evaluation plans.

Constitutional Review of Statutes in Germany and the United States Compared

In Germany as well as the United States courts are engaging in the controversial and extremely political practice of constitutional review of statutes passed by the elected legislature. Under the German Constitution (Grundgesetz) this practice was placed in the hands of the specialized Federal Constitutional Court (Bundesverfasungsgericht). Its power to conduct such review is laid out in the German Constitution as well as in a separate federal statute. Provisions therein govern the means of constitutional review and stipulate that the Constitutional Court ought to declare a law to be null and void if it violates the German Constitution. However, bearing in mind the political consequences of invalidating a law, the Constitutional Court has in some cases not been reluctant to take alternative approaches in order to avoid declaring a law to be null and void. This is usually the case, if a declaration of invalidity worsens or fails to remedy the violation of the Constitution or if there are different political options about how to overcome a breach of the constitution (e.g. in a case of a breach of the principle of equality). In the United States, courts are also conducting constitutional review of statutes. However, the origins, scope and means of judicial constitutional review of statutes are different. Moreover, the U.S. judges find less guidance in the U.S. Constitution or other statutes on how to conduct constitutional review or how to address unconstitutional statutes. Despite the absence of explicit constitutional or statutory rules on how unconstitutionality should be dealt with, courts in the United States generally also default to declaring a statute void if it conflicts with the Constitution of the United States. However, just like in Germany, the U.S. courts deviate from the default remedy of nullity to adequately address unconstitutionality. In this article, we analyze and compare the techniques developed by the German Constitutional Court and the U.S. Supreme Court to avoid a declaration of nullity where it would be counterproductive. The article begins with a brief overview of the constitutional and statutory regimes for constitutional judicial review in Germany and the United States in Part I and then examines the origins and history of constitutional review in Part II. Part III of the article outlines the different means of constitutional review within the United States and Germany, which essentially stem from the different origins of judicial review in both jurisdictions. Part IV defines the concept of unconstitutionality under the Constitution of the United States and the German Constitution. Part V outlines the reasoning of the courts over questions of unconstitutionality. In Part VI. the legal effects of a declaration of unconstitutionality by the courts are examined and similarities are drawn. By doing so the article deals with the courts' default remedy of nullity and critically examines what other techniques are applied in both jurisdictions (e.g., partially invalidating laws, declaring laws to be incompatible with the respective constitution without invalidating them, giving admonitory decisions and interpreting laws in conformity with the constitution). Part VII finishes off by concluding that despite the different origins, scope and means of constitutional review within the United States and Germany, courts in both countries have a similar understanding of the meaning of unconstitutionality and apply similar techniques when deciding on the constitutionality of a law.

Regulation of Controlled Substance Prescribing: An Overview for Certified Nurse-Midwives and Certified Midwives.

In addition to the regulation of prescriptive authority and prescribing practices conducted by individual states, the prescription of controlled substances is also regulated at the federal level by the US Drug Enforcement Administration (DEA). While there are variations in state laws relative to controlled substance prescribing, federal law is uniform across states as established by the Controlled Substances Act (21 United States Code § 801-890) and the DEA Regulations (Title 21, Code of Federal Regulations). The only controlled substance for which states have authorized use that is outside the regulations set forth in the Controlled Substances Act is marijuana for the treatment of certain medical conditions. A review of statutes and administrative rules for all 50 states and the District of Columbia revealed that certified midwives (CMs) are authorized to prescribe controlled substances only in the state of New York, and there are variations across states in the regulation of controlled substance prescribing by certified nurse-midwives (CNMs). The purpose of this article is to examine the federal regulation of controlled substance prescribing by the US DEA and common variations in state regulations relative to controlled substance prescribing.

Proportionality and 'Deference' in Contemporary Constitutional Thought

This chapter proposes that proportionality as a mode of legal reasoning is implicated in no fewer than three phases of the decision of ‘hard cases’ of judicial review of statutes. First, at the level of legal ‘substance,’ the jurist faces the situation of contemporary legal thought characterized by the rise of proportionality, institutional competence arguments, and the ‘hermeneutic of suspicion’ that ideology corrupts legal judgment. Second, it is arguably appropriate for the judge to decide whether or not to uphold a statute, in spite of his good faith opinion against it, on the basis of a proportional weighing of the counter-majoritarian difficulty against the bad consequences of deference. Third, the judge may have to decide proportionally whether to present his reasons for striking a statute in their true proportional form or rather to violate his duty of candor by presenting himself as a legal formalist. The judge, inescapably a political actor, is subject to the decisionist ethical calculus of Max Weber’s Politics as a Vocation.

Guidelines for Medico Legal Certification with Review of Statutes

Guidelines for Medico Legal Certification with Review of Statutes

Dimensions of Sales Tax Exemption Policy: The Arizona Model

AbstractState exemption of qualified nonprofit organizations from paying sales taxes on certain purchases is one tool by which government encourages private development and delivery of public goods. We review Arizona’s “transaction privilege” exemption for health nonprofits through review of statutes, interviews with state officials, interviews with nonprofits that seek and make use of the exemption, and secret shopping with Arizona businesses to see how they react to requests for tax-exempt purchases. We conclude that public data is inadequate for a full policy evaluation and that current exemption procedures include imprecision regarding which nonprofits qualify for the benefit. Nonetheless, given the policy goal of advancing public goods, we suggest that the exemption might fruitfully be extended to other categories of qualified nonprofits.

Enforcement of fundamental rights by lower courts: Towards a coherent system of constitutional review in Mexico

This article reviews the evolution of constitutional judicial review in Mexico. It claims that while the Mexican legal system has fluctuated between two fairly consolidated constitutional review models —the American and the continental European— it has so far disregarded at least one major factor strongly embedded within the rules of both. Stated differently, most constitutional scrutiny regarding fundamental rights —the essential prerogatives and freedoms to which every person as such is entitled under the constitution— should be fulfilled by lower courts empowered for such purpose within ordinary adjudication procedures. For this reason, constitutional jurisdiction should play only a guiding role —even when solving a specific controversy on its merits— in the enforcement of these rights. While the rules of these two models leave the vast majority of legal controversies regarding fundamental rights outside constitutional jurisdiction, they guarantee that the interpretation of the few leading cases that are formally reviewed impact the rest of the legal system. Instead, the Mexican rules of constitutional scrutiny have fostered excessive dependence on specialized constitutional courts. Simultaneously, they have weakened — through artificial differentiations regarding the review of statutes— the guiding role of constitutional interpretation in the legal realm. This results in a complex system that is neither effective in making constitutional rules guide conduct nor in wholly enforcing fundamental rights.

Constitutional Review in Chile Revisited: A Revolution in the Making

The purpose of this article is to present the main developments of Chilean constitutional law during recent times, specifically regarding the historical evolution of the constitutional review of statutes. This article advances the thesis that the latest trajectory of constitutional review in Chile shows that the Chilean constitutionality control system has advanced far from peacefully, from a diffuse review system pivoting around the Supreme Court of Justice toward a concentrated constitutional review scheme characterized by the primacy of the Constitutional Tribunal. Accordingly, the paper will review: (i) the main differences between civil and common law systems concerning judicial review; (ii) the historical evolution of the constitutionality control in that country before and after the creation of the Constitutional Tribunal in 1970; (iii) the main changes introduced by the constitutional amendment of 2005 to the functions and prerogatives of the Chilean Constitutional Tribunal; (iv) the juridical conundrums arising from writs of inapplicability, specifically the application of an “abstract control” instead of “a concrete control”; and (v) to illustrate the provocative title of this article, this paper will examine the ongoing conflicting situations that have arisen between the Supreme Court of Justice and the Constitutional Tribunal focusing on the most important cases dealing with pressing constitutional issues in that country.

Judicial Review and the Athenian 'Constitution'

This paper examines the judicial procedures for reviewing legislation in classical Athens and argues that we can discern from these sources a coherent theory of the Athenian “Constitution.” I argue that prosecutors consistently attempted to depict the challenged statute as a threat to the basic democratic legislative or adjudicative process. This suggests that the legal review of statutes was understood as a means of preserving popular decision making structures rather than enforcing substantive values. From a modern perspective, classical Athens offers an interesting alternative model of a highly democratic form of “judicial review” in which constitutional precommitments were limited and constitutional challenges were adjudicated by large juries of ordinary citizens. Far from taking issues out of the realm of popular decision making, judicial review in Athens was quite limited in scope and focused on preserving the key democratic political values: the citizenry’s lawmaking power, and the jury’s wide power to adjudicate disputes.

Are legislatures good at morality? Or better at it than the courts?

This essay criticizes Jeremy Waldron’s assumption that debate about judicial review of statutes requires us to suppose, when it comes to moral reasoning about the law, that either judges or legislatures are good at it and, based on that supposition, to choose which institution should be assigned the task. Waldron does not hold fast to his own assumption — his claim turns out to be that legislatures should have fi nal authority in moral matters, since they are better at moral reasoning than judges. He thus abandons a central tenet of political positivism — namely, its hostility to judges having any role at all in moral reasoning about the law. Thus, Waldron is engaged, not in an argument against judges playing such a role but, rather, in a debate about how to best to design legal institutions, given that judges will, in fact, have an important role in that moral deliberation. In “ Judges as Moral Reasoners, ” Jeremy Waldron seeks to narrow the scope of his wide-ranging critique of judicial review to one issue: the claim that judicial review is justifi ed because judges are good at morality, or “ JGM ” for short. More precisely, he argues against the claim that judges are better at morality than legislatures, which, in his view, is an important strand in any justifi cation of the place of judges as the fi nal authority when it comes to the great questions of constitutional law — the interpretation of the moral standards entrenched in bills of rights. Waldron’s understanding of this claim is appropriately complex. First, judicial reasoning is not understood in a compartmentalized, positivistic way, according to which legal reasoning and moral reasoning are two different tasks in which judges — in what we may describe as bill-of-rights legal orders — have to engage. Rather, following Ronald Dworkin, Waldron takes judicial reasoning to be inextricably both moral and legal. Second, again following Dworkin, he recognizes that one should see that there are moral reasons to support the fact that JGM has to give pride of place to positive legal materials, with the result that judicial moral reasoning is not the unalloyed moral reasoning in which academic philosophers engage but, rather, reasoning about the best moral interpretation of the law. Third, and consequently, he emphasizes that

Validity of consent - A review of statutes

In recent years there have been a number of malpractice suits based on lack of consent or inadequate consent from the patient for the procedure used in treatment. This is a particularly dangerous suit for the doctor since the burden of proof lies on the doctor. Furthermore since the suit is based on intentional assault, some insurance policies do not cover the doctor for his liability. The common meaning of consent is permission, whereas the law perceives it as a contract i.e. an agreement enforceable by law. So a doctor needs to understand the legal basis of consent rather than the common meaning of it. The present article aims to discuss the various legal aspects of consent as viewed in the Indian law.

A Comprehensive Snapshot of States' Small Group Market Reforms on Insurer Pricing and Rating Practices, 1999

This paper presents a qualitative analysis of states' small group health insurance reforms that impact small group premiums, mostly enacted by the states during 1996-99, following the federal Health Insurance Portability and Accountability Act in 1996. It draws from an intensive review of statutes of 48 states and the District of Columbia as of 1999. It analyses regulations related to insurer pricing and rating practices concerning rating criteria and rating bands, pricing incentives, premium stability from year to year, minimum loss rations, reinsurance and carve-out coverage for the medically uninsurable. It also covers regulations targeting employer purchasing and coverage practices such as pooled purchasing and adverse selection. This is the second of a two-part series analyzing states' small group market reforms, the first being devoted to state reforms to promote access and improving the value of health plans offered in this market (Xirasagar et al. 2004). The variety in pricing and rating reforms illustrate the differences in the depth of reforms across states, and represent a far wider range of potential actuarial combinations than the sample of reforms documented in past literature.

Problems and Prospects in Local Environmental Assessment: Lessons from the United States

Local environmental assessment (EA), mandated by five US states, has introduced complex management issues for practitioners and policy makers. Based on a review of statutes, case law, and prior EA evaluations,this paper outlines three key issue areas for local EA: linking comprehensive planning and EA; making the threshold determination process more certain; and balancing mitigation with public participation. The paper argues that all the issues reflect a central tension in environmentalassessment between procedural consistency and the need for contingent responses to conditions that differ among the projects to be reviewed.

Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. (Judicial is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to challenge the Countermajoritarian Difficulty, by arguing that legislature-centered arguments do not (simply) extend to cover most of the practice of judicial review. Judicial review includes not merely the review of statutes, but also the review of administrative rules, orders and actions, and the statutory pedigree of these rules, orders and actions does not suffice to translate legislature-centered arguments into the administrative state. In particular, there is no reason to think that the most important kind of restraintist argument, for constitutional reviewing courts in an administrative state, should be a democratic argument such as the Countermajoritarian Difficulty. Rather, epistemic arguments -- arguments that point to judicial deficits in determining what morality requires -- are at least as promising.

Basic Laws, Constituent Power and Judicial Review of Statutes in Israel: Bank Hamizrahi United v. Kfar Chitufi Migdal and Others

Basic Laws, Constituent Power and Judicial Review of Statutes in Israel: <i>Bank Hamizrahi United v. Kfar Chitufi Migdal and Others</i>