Role Of Judicial Review Research Articles

Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism

Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism

Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information

In late September of 1999 two committees of the House of Representatives reported to the House two radically different bills for protecting database providers. One bill, H.R. 354, is unconstitutional. The other, H.R. 1858, probably is constitutional. The paper analyzes the differences between the two bills as a test case for the constitutional bounds within which Congress is empowered to regulate the production and exchange of information by creating private rights. It suggests that the intellectual property clause and the first amendment create two layers of judicial review over such acts of Congress, which rely on judges to protect the public domain from political processes where its value to future generations and to users is systematically underrepresented.

Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information

In late September of 1999 two committees of the House of Representatives reported to the House two radically different bills for protecting database providers. One bill, H.R. 354, is unconstitutional. The other, H.R. 1858, probably is constitutional. The paper analyzes the differences between the two bills as a test case for the constitutional bounds within which Congress is empowered to regulate the production and exchange of information by creating private rights. It suggests that the intellectual property clause and the first amendment create two layers of judicial review over such acts of Congress, which rely on judges to protect the public domain from political processes where its value to future generations and to users is systematically underrepresented.

Local Government, Contracts and Judicial Review

The purpose of this article is to examine briefly the role of judicial review in contracting and tendering decisions of local authorities. While there may be a possibility of seeking private law remedies based on estoppel where there has been detrimental reliance, negligent misrepresentation, or under s.38 of t h e i w Trading Act 1989 (Qld), there are a number of limitations on bringing such actions, particularly when dealing with government bodies. In addition, it is unlikely that Australian courts will find that a pre-award contract exists during the tendering process, so as to found an action in damages for breach of contract. Thus, a consideration of public law remedies as an alternative is appropriate, given that local authorities are government bodies operating under statutory powers and are, therefore, potentially amenable to judicial review. It is necessary to examine the possible difficulties that confront an applicant seeking judicial review of local authorities' contracting and tendering decisions. Recent pronouncements of the Federal Court indicate strongly that most contractual decisions made by federal statutory bodies are not amenable to judicial review and are to be considered by reference to the law of contract. The implications for local authorities, whose constituting enactments also empower them to enter into contracts, will be discussed in light of certain provisions in the Judicial Review Act 1991(Qld).

Judicial Review and the Uncertain Appeal of Certainty on Appeal

In their Article Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions,' Sidney A. Shapiro and Richard E. Levy have raised in an intriguing way some panoramic questions about the role of judicial review in administrative law. They offer both an ambitious theory of judicial behavior and a proposed rewrite of section 706 of the Administrative Procedure Act (APA),2 the scope of review section. Tying these themes together is the authors' effort to understand how the legal system can promote determinacy in judicial review of agency actions. They argue that norms of craft (i.e., doctrinal rules) are always in tension with judges' desires to promote their preferred substantive outcomes, but that courts are particularly inclined to pursue the latter at the expense of the former in administrative law. Because, in their view, courts are incapable of establishing any consistent analytical framework for resolving administrative law cases, Shapiro and Levy turn to Congress as the best hope for instilling order in judicial review doctrine. Despite my appreciation of their endeavor, however, I neither favor the specific statute they offer3 nor believe that Congress should be asked to consider any revision of section 706. The merit of Shapiro and Levy's analysis, at least for me, is that it highlights some lingering problems in scope of review doctrine and, just as importantly, raises worthwhile questions about how much we really want doctrine to control the outcome of appeals from administrative decisions.

The Constitution‐Making Process in Poland*

The process of constitution making in Poland since 1989, and the content of the two draft constitutions prepared separately by the Sejm and the Senate are described in this paper. The relatively weak sense of constitutionalism in Poland's tradition is commented on and compared with the role of judicial review by the courts and constitutional tribunals in the United States and Europe. The latter part of the article discusses the role of the Church, the civil society, the unions and voluntary associations in constitution making and in the post‐Communist society in general.

The Role of Judicial Review in a Democracy

The Role of Judicial Review in a Democracy

Notes on the Role of Judicial Review, the Expansion of Federal Power, and the Structure of Constitutional Rights

Notes on the Role of Judicial Review, the Expansion of Federal Power, and the Structure of Constitutional Rights

Foundations of Australian Federalism and the Role of Judicial Review

Foundations of Australian Federalism and the Role of Judicial Review

Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions

In recent years, the requirement that administrative agencies provide adequate reasons for their decisions has come to play a central role in judicial review of agency decisions. While the increasing importance of this requirement has been recognized, no systematic study of its history and doctrinal basis has been undertaken. Grounded in a survey of court of appeals decisions reviewing agency action, and a careful review of Supreme Court decisions, this article proposes that the requirement is best understood as a form of heightened scrutiny of the rationale of agency decisions and that the doctrine of separation of powers requires such scrutiny because of the unique position of administrative agencies in terms of the constitutional structure of government. The separation of powers conception of the reasons requirement derives from an analysis of political values underlying administrative law, the evolution of various models of judicial review, and the history of the reasons requirement itself.The article begins by considering the political values underlying our governmental structure and describes the apparent conflict between two competing sets of values. ‘Liberal’ values restrict government action in order to preserve individual freedoms and are reflected in the Constitution through principles such as representative government, separation of powers, and due process. ‘Progressive’ values promote government action in order to relieve social problems, and are implemented through delegation of legislative and judicial powers to unelected administrators functioning outside of the political and constitutional limitations originally established for the exercise of those powers. Thus, administrative law jurisprudence is faced with the difficult task of accommodating two sets of conflicting values.The article then examines the Supreme Court’s efforts to accommodate liberal and progressive values through its articulation of the scope of judicial review of agency decisions. This examination identifies three distinct models of review reflecting the Court’s evolving jurisprudence—a ‘structuralist,’ a ‘proceduralist’ and a ‘rationalist’ model. We argue that the structuralist and proceduralist models have failed to accommodate progressive and liberal values both as a theoretical and practical matter. These models could not explain how liberal values had been preserved in the face of acceptance of progressive programs; nor could they provide meaningful protection for affected parties without unduly impairing the administrative process. We suggest that as a result the Court is turning to the rationalist model of judicial review, which has as its central feature the requirement that agencies articulate adequate reasons for their decisions. However, the Court has not fully explained the significance of this requirement, or the doctrinal basis of the rationalist model.The article locates that doctrinal basis by tracing the heretofore unexplored origin and development of the adequate reasons requirement. This history reveals that the requirement originally had a separation of powers dimension which was later obscured by the influence of the proceduralist model. This separation of powers dimension provides the basis for a more complete articulation of the rationalist model of judicial review under which the requirement of adequate reasons is best understood as a product of the separation of powers doctrine. This understanding not only reflects the history of the requirement, but also enables the rationalist model to accommodate liberal and progressive values. At the theoretical level, the rationalist model explains how structural safeguards are preserved so as to protect liberal values. At the practical level, the rationalist model provides a meaningful check on administrative action without unduly impairing the implementation of progressive programs by administrative agencies.

The legal system's response to scientific uncertainty: The role of judicial review

I do not intend to say much about food safety. Rather, I wish to talk about the legal system and its relationship to science. In particular, I will consider the role of courts in reviewing risk management decisions by health regulatory agencies. Perhaps during the question and answer session that follows we will have an opportunity to explore the implications of my remarks for regulation of risks posed by food. ’

The Legal System's Response to Scientific Uncertainty: The Role of Judicial Review

The Legal System's Response to Scientific Uncertainty: The Role of Judicial Review

The Role of Judicial Review in the Administrative Process

The Role of Judicial Review in the Administrative Process

Discussion: The Role of Judicial Review in the Administrative Process

Discussion: The Role of Judicial Review in the Administrative Process