Umpiring and Gerrymandering

2021 ◽  
pp. 15-30
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
United States ◽  
State Legislatures ◽  
The United States ◽  
Executive Branch ◽  
Federal Courts ◽  
The Other ◽  
Constitutional Rights ◽  
Constitutional Review ◽  
Federal Level ◽  
Civil Laws

In the United States, the growth of judicial power started as a way to curb over-reaching, sometimes corrupt, state legislatures and manifested itself in allowing the judicial branch, as opposed to the other branches, to resolve more disputes over contracts, property, debts, and other distinctly nineteenth-century problems. For the last seventy-five years or so, however, something else has propelled its influence: the growth of constitutional review at the federal level, the power to invalidate state and federal civil laws and executive branch actions as well as state and federal criminal prosecutions. This chapter discusses what has become an acutely American dilemma, a fear that the courts will do too little in enforcing constitutional rights and a fear they will do too much. It considers the problems posed in each direction and the risks of politicizing the federal courts if they become the exclusive source of identifying constitutional individual and structural rights.

28 USC § 1782—looking for consensus

2019 ◽  
Vol 35 (3) ◽  
pp. 331-345
Author(s):  
David J Stute
Keyword(s):  
United States ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
The Other ◽  
Court Decisions ◽  
Arbitral Tribunal ◽  
Civil Proceedings ◽  
The Subject ◽  
Definition Of

Abstract Since the 1948 enactment of 28 USC § 1782 in the United States, no consensus has emerged as to the availability of federal court discovery to parties in private foreign or international arbitral proceedings. This year, within months of one another, six federal courts have issued rulings that are widely inconsistent on the availability of section 1782 discovery. The courts have ruled that a proceeding before a private international arbitral tribunal is eligible for section 1782 discovery; that, categorically, no such discovery is available; that the definition of private arbitral tribunal applies to CIETAC; and that discovery is available by virtue of a party’s parallel pursuit of discovery through foreign civil proceedings. As these cases demonstrate, recent US court decisions have brought no predictability, let alone certainty, to the subject. Congress, on the other hand, could and should amend the statute so as to include private tribunals in the scope of section 1782. This article discusses the case law’s state of disarray; proposes a legislative solution; considers the proposed amendment’s merits; and advocates for Congress to act.

scholarly journals Use of Executive Orders in Nigeria by the Executive Branch of Government in Time of Emergency

2020 ◽  
Vol 2 (3) ◽  
pp. 669-678
Author(s):  
Oluwapelumi Odunayo Osadola ◽  
Phebe Oluwatoni Ojo
Keyword(s):  
United States ◽  
United States Of America ◽  
Separation Of Powers ◽  
The United States ◽  
Executive Branch ◽  
The Other ◽  
Executive Order ◽  
Legal Regime ◽  
Executive Orders ◽  
Fourth Republic

Executive Orders are not invoked as a matter of course by the President or Governors heading the Executive Cabinet. These orders are exercisable when heads of the executive branch of government see for their needfulness and for smooth running of their governmental programmes or policies. Every Executive order must carry the force of law for it to be valid or to be duly recognised by the other branches of government which if not, the latter may question its constitutionality. The advantages of executive orders are very innumerable to mention however it has been said that the use of executive orders have assaulted the concept of separation of powers which is embedded in the 1999 Nigerian Constitution (as amended)as adopted from the United States of America. This paper focuses on the meaning and historical antecedent of executive orders in Nigeria, legal regime or statutory provisions of executive orders in Nigeria, executive orders versus doctrine of separation of power, challenges of executive orders under the 1999 constitution (as amended), praxis of executive orders under the Nigeria fourth republic and lastly is the conclusion and recommendations made thereto. To achieve these, the writers will make use of relevant materials at their disposal.

The United States: Creation, Reconstruction, the Progressives, and the Modern Era

2021 ◽  
pp. 97-182
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Judicial Review ◽  
Separation Of Powers ◽  
State Legislatures ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
American People ◽  
State Governments ◽  
State Laws

This chapter focuses on the origins and growth of judicial review of the constitutionality of federal and state legislation in the United States. American judicial review emerged from the vertical federalism umpiring of the King-in-Council, which reined in errant colonies; and from the open political space created by bicameralism, the separation of powers, and federalism, which gave the federal courts the political leeway to engage in judicial review of the constitutionality of federal and state laws. American judicial review took its present form of allowing horizontal separation of powers and enumerated powers vertical judicial review during the critical years between 1776 and 1803 when the faith of the American people shifted away from state legislatures and state governments and toward stronger executives and courts and a much stronger national government. This theory is set forth correctly by Professor Gordon S. Wood in both articles he has shared with me and in conversation. The addition of the three Reconstruction Amendments, and the enormous statutory expansions of federal court jurisdiction and of the number of lower federal court judges after the Civil War, occurred for rights from wrongs reasons. They led, after the incorporation of the Bill of Rights against the states between 1940 and 1970, to a situation where the Supreme Court now reins in errant state legislatures in much the same way the King-in-Council used to rein in errant colonial legislatures.

scholarly journals Unlocking the Courthouse Door: Removing the Barrier of the PLRA's Physical Injury Requirement to Permit Meaningful Judicial Oversight of Abuses in Supermax Prisons and Isolation Units

2012 ◽  
Vol 24 (4) ◽  
pp. 268-275 ◽  
Author(s):  
Michael B. Mushlin
Keyword(s):  
United States ◽  
The United States ◽  
Federal Courts ◽  
United States Constitution ◽  
Physical Injury ◽  
Constitutional Rights ◽  
Supermax Prisons

In recent years the number of inmates held in isolation in American prisons has increased dramatically. At the same serious abuses have occurred in these isolation units. These abuses, which include subjecting inmates to degrading, humiliating and unnecessary suffering, often do not cause physical injury. Even though constitutional rights are violated by these acts, federal courts have often failed to provide relief to victims of these abuses. The reason is that the Prison Litigation Reform Act (PLRA) deprives federal courts of the ability to provide relief from degrading and even torturous behavior if there is not physical injury. This article calls for the repeal or reform of the physical injury requirement of the PLRA so that the ability of federal courts to provide meaningful remedies for violations of the United States Constitution can be restored.

The U.S. Assistance to the MENA Arab Countries under the Trump Administration: The Logic of a Diff erentiated Approach

2020 ◽  
Vol 12 (4) ◽  
pp. 131-170
Author(s):  
V. I. Bartenev
Keyword(s):  
United States ◽  
The United States ◽  
Executive Branch ◽  
Arab Countries ◽  
The Other ◽  
Unexpected Result ◽  
Donald Trump ◽  
Mena Region ◽  
The U.S ◽  
Trump Administration

This paper identifi es and explains key changes in the U.S. aid policies towards Arab countries of the Middle East and North Africa (MENA) under Donald Trump. It seeks to validate two widespread arguments — the one about the current administration’s revision of pivotal principles of providing foreign assistance, and the other one — about an accelerated disengagement of the United States from the MENA region since 2017. The paper consists of four sections. The fi rst section explores the transformation of the U.S. strategic thinking and regional context under the Trump administration and then posits fi ve hypotheses about possible changes in the volume and composition of the U.S. assistance to the MENA region (in comparison with the fi nal two years of the Obama administration), as well as the diff erences in the executive branch and the Congress’s positions. The second section explains particularities of the statistical data and the methods of its exploration, the third section presents the results of hypothesis testing using aggregated data on aid fl ows to the region, and the fi nal section explains these results, sometimes unexpected, using the data disaggregated by country. Three of fi ve hypotheses proved wrong based on the aggregate data. First, the Trump administration did not cut assistance to the MENA more substantially than to other regions of the globe. Second, it did not ringfence aid accounts which helped yield direct dividends to the U.S. businesses. Third, the Republican Congress was clearly less willing to support the executive’s aid chocies under a new Republican President than during the last years of a Democrat Barack Obama’s second term. Only two hypotheses proved correct — one about a prioritization of security and military assistance under Donald Trump and the other one — about disproportionate cuts of democracy promotion assistance. Such an unexpected result calls for refi ning both aforementioned arguments and taking into account the dissimilarities in the dynamics of assistance to diff erent countries. The United States tends to practice a diff erentiated approach in dealing with two largest Arab aid recipients (Egypt and Jordan) and with other Arab countries. The assistance to Cairo and Amman is ringfenced and protected, while aid to other recipients, including security assistance and FMF grants, is prone to quite drastic cuts. This diff erentiation is explained by the fact that cooperation with Egypt and Jordan rests not only on more solid strategic foundations but also on a strong support within the United States — both from the defense contractors interested in large export contracts and from an infl uential pro-Israel lobby. The U.S. will not abandon this highly diff erentiated approach after the 2020 elections but the structure of assistance to the MENA region might undergo quite a dramatic transformation.

Forensic DNA Analysis and the United States Government

1996 ◽  
Vol 36 (1) ◽  
pp. 43-51 ◽  
Author(s):  
E Donald Shapiro ◽  
Stewart Reifler
Keyword(s):  
United States ◽  
Dna Analysis ◽  
The United States ◽  
Executive Branch ◽  
Federal Courts ◽  
United States Government ◽  
Forensic Dna ◽  
Forensic Dna Analysis ◽  
The Us ◽  
States Government

All three branches of the United States Government are, directly or indirectly, promoting the use and judicial acceptance of forensic DNA analysis. In addition, the establishment of a US national DNA databank has been authorized. The US Congress has passed the ‘DNA Identification Act of 1994’, which provides, inter alia, funding to the states for developing and/or improving forensic laboratories capable of conducting DNA analysis, and also creates a framework for federal supervision of forensic DNA technology. Specifically, the Executive Branch, through the Department of Justice and particularly its Federal Bureau of Investigation, has been directed to develop standards and practices in order to speed the admissibility of forensic DNA analysis as scientifically acceptable evidence in US courts. Finally, the federal judiciary has been ordered by the US Supreme Court to abandon or modify the 70-year-old Frye standard, which the Federal courts previously used to determine whether scientific evidence is deemed admissible, a move that will directly impact the judicial acceptance of forensic DNA analysis in all federal courts and undoubtedly will affect the admissibility of DNA evidence in many American state courts.

Erie v. Tompkins and the Relationship Between Federal and State Courts

1942 ◽  
Vol 36 (5) ◽  
pp. 885-895
Author(s):  
Kenneth C. Cole
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Federal Courts ◽  
The Other ◽  
State Courts ◽  
Federal System ◽  
The Relationship

Erie v. Tompkins evidences decentralizing trends in our federal system in two different ways—one fairly obvious and relatively orthodox; the other neither obvious nor orthodox, but probably the more significant. The first aspect may be touched upon very briefly and the ramifications of the second explored more fully.The obvious side of Erie v. Tompkins lies in its rejection of a common law of the United States available for application by the federal courts in diversity cases. This conception was given expression by Story in Swift v. Tyson, and has been followed in many, if not most, of the succeeding cases building upon and expanding Story's doctrine.

scholarly journals Law and Policy Resource Guide: A Survey of Eminent Domain Law in Texas and the Nation

2017 ◽  
Author(s):  
Caitlyn Ashley ◽  
Elizabeth Spencer Berthiaume ◽  
Philip Berzin ◽  
Rikki Blassingame ◽  
Stephanie Bradley Fryer ◽  
...  
Keyword(s):  
United States ◽  
Property Rights ◽  
Private Property ◽  
State Legislatures ◽  
The United States ◽  
Eminent Domain ◽  
The Other ◽  
Private Property Rights ◽  
Just Compensation ◽  
The Government

Eminent Domain is the power of the government or quasi-government entities to take private or public property interests through condemnation. Eminent Domain has been a significant issue since 1879 when, in the case of Boom Company v. Patterson, the Supreme Court first acknowledged that the power of eminent domain may be delegated by state legislatures to agencies and non-governmental entities. Thus, the era of legal takings began. Though an important legal dispute then, more recently eminent domain has blossomed into an enduring contentious social and political problem throughout the United States. The Fifth Amendment to the United States Constitution states, “nor shall private property be taken for public use, without just compensation.” Thus, in the wake of the now infamous decision in Kelo v. City of New London, where the Court upheld the taking of private property for purely economic benefit as a “public use,” the requirement of “just compensation” stands as the primary defender of constitutionally protected liberty under the federal constitution. In response to Kelo, many state legislatures passed a variety of eminent domain reforms specifically tailoring what qualifies as a public use and how just compensation should be calculated. Texas landowners recognize that the state’s population is growing at a rapid pace. There is an increasing need for more land and resources such as energy and transportation. But, private property rights are equally important, especially in Texas, and must be protected as well. Eminent domain and the condemnation process is not a willing buyer and willing seller transition; it is a legally forced sale. Therefore, it is necessary to consider further improvements to the laws that govern the use of eminent domain so Texas landowners can have more assurance that this process is fair and respectful of their private property rights when they are forced to relinquish their land. This report compiles statutes and information from the other forty-nine states to illustrate how they address key eminent domain issues. Further, this report endeavors to provide a neutral third voice in Texas to strike a more appropriate balance between individual’s property rights and the need for increased economic development. This report breaks down eminent domain into seven major topics that, in addition to Texas, seemed to be similar in many of the other states. These categories are: (1) Awarding of Attorneys’ Fee; (2) Compensation and Valuation; (3) Procedure Prior to Suit; (4) Condemnation Procedure; (5) What Cannot be Condemned; (6) Public Use & Authority to Condemn; and (7) Abandonment. In analyzing these seven categories, this report does not seek to advance a particular interest but only to provide information on how Texas law differs from other states. This report lays out trends seen across other states that are either similar or dissimilar to Texas, and additionally, discusses interesting and unique laws employed by other states that may be of interest to Texas policy makers. Our research found three dominant categories which tend to be major issues across the country: (1) the awarding of attorneys’ fees; (2) the valuation and measurement of just compensation; and (3) procedure prior to suit.

scholarly journals THE CONCEPT AND THE CONTENT OF THE INTERROGATION OF THE SUSPECT IN CUSTODY IN CRIMINAL PROCEDURE IN THE UNITED STATES

2019 ◽  
Vol 1 (40) ◽  
Author(s):  
Miodrag N. Simović ◽  
Vladimir M. Simović
Keyword(s):  
United States ◽  
Supreme Court ◽  
Criminal Procedure ◽  
The United States ◽  
Federal Courts ◽  
The State ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
The Right ◽  
The U.S

The paper analyses some relevant issues related to the treatment oflaw enforcement officers in the United States after a person has been taken intocustody or otherwise deprived of liberty, which requires informing that personof his/her constitutional rights. In the landmark decision Miranda v. Arizona(1966), the Supreme Court of the United States set standards for law enforcementofficers to follow when interrogating suspects held in custody.Suspects who are subject to custodial interrogation must be warned of theirright to remain silent; that any statements they make may be used as evidenceagainst them; that they have a right to an attorney; and if they cannot afford anattorney, the State will assign them one prior to any questioning, if they so wish.According to Miranda, unless those rights are not read, any evidence obtainedduring the interrogation may not be used against the defendant.Ever since Miranda was decided, state and federal courts have struggled witha number of issues with regard to its application, including the suspect’s beingin custody, which entitles the suspect to being readMiranda rights, the suspect’swaiving the right to have an attorney present during questioning. Some decisionsby the U.S. Supreme Court have attempted to answer these difficult questions.

Working With Interpreters to Support Students Who Are English Language Learners

2016 ◽  
Vol 1 (16) ◽  
pp. 15-27 ◽  
Author(s):  
Henriette W. Langdon ◽  
Terry Irvine Saenz
Keyword(s):  
United States ◽  
English Language Learners ◽  
Language Learners ◽  
English Language ◽  
First Language ◽  
The United States ◽  
The Other ◽  
Primary Language ◽  
Second Best ◽  
Support Students

The number of English Language Learners (ELL) is increasing in all regions of the United States. Although the majority (71%) speak Spanish as their first language, the other 29% may speak one of as many as 100 or more different languages. In spite of an increasing number of speech-language pathologists (SLPs) who can provide bilingual services, the likelihood of a match between a given student's primary language and an SLP's is rather minimal. The second best option is to work with a trained language interpreter in the student's language. However, very frequently, this interpreter may be bilingual but not trained to do the job.

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