The Death of the Tunney Act at the Hands of an Activist D.C. Circuit

2018 ◽  
Vol 63 (1) ◽  
pp. 113-136
Author(s):  
Darren Bush
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Case Law ◽  
District Courts ◽  
Prosecutorial Discretion ◽  
Legislative History ◽  
Original Intent ◽  
The Public ◽  
Consent Decrees ◽  
History Of

The Tunney Act and its 2004 Amendment have sought to eliminate judicial rubber-stamping of antitrust consent decrees. Congress sought to assure meaningful judicial review of consent decrees to assure they were in the public interest. The caselaw in the D.C. Circuit undermines the purpose, intent, and plain meaning of the Tunney Act by arguing that such review would present separation of powers issues, an argument at best disingenuous in light of other settlements readily rejected within the Circuit. The Article commences with a review of the legislative history of the original Tunney Act. The article next examines the D.C. Circuit cases against that the drafters of the Amendment to the Tunney Act are rebelling. This legislative history is highlighted and extended in the legislative history of the 2004 TunneyAct Amendment. The article next describes how D.C. district courts uniformly ignore and dismiss the Congressional intent behind the 2004 Amendment under the auspices of prosecutorial discretion. Finally, the Article tackles the (false) problem of separation of powers the D.C. Circuit case law presents and proposes a solution to this deadlock that is true to the original intent of the Tunney Act.

scholarly journals Sądowa kontrola decyzji organów podatkowych w sprawach ulg w spłacie zobowiązań podatkowych opartych na uznaniu administracyjnym

2021 ◽  
Vol 30 (4) ◽  
pp. 441
Author(s):  
Andrzej Niezgoda
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
Point Of View ◽  
Administrative Discretion ◽  
The Public ◽  
Procedural Law ◽  
Tax Relief ◽  
The Law ◽  
Administrative Courts

<p>The article is of a scientific-research nature. The author discusses the problem of limits of judicial review of discretionary decisions made by taxation authorities, which aim at applying relief in payments of tax liabilities under Polish regulations and case-law of administrative courts. It may be noted that despite the issue of administrative discretion being discussed in the academic literature, the question of limits of judicial review in the practice of administrative courts still raises doubts. It is therefore reasonable to undertake the analysis of the main views formulated in the literature and the case-law of administrative courts addressing this problem, from the point of view of the limits of judicial review of discretionary decisions. The thesis of the article is that the nature of discretionary decisions on relief in payment of tax liabilities, determined by the function of administrative discretion, and, at the same time, the criteria set out in the law for judicial review of public administration, limit the role of the administrative court in examining the compliance with procedural law of the tax proceedings preceding the issuance of such a decision and the respecting by tax authorities of the fundamental values of the system of law expressed in the Polish Constitution. This is because they define the limits of administrative discretion, within which the choice of one of the possible solutions remains beyond the judicial review of the public administration. For the law, as it stands (<em>de lege lata</em>) there are no grounds for administrative courts, provided that the tax authorities respect the basic values of the legal system expressed in the Polish Constitution, to formulate assessments as to the circumstances and reasons justifying the granting or refusal to grant a tax relief, or its scope. The concept of internal and external limits of administrative discretion may therefore be useful for administrative court rulings.</p>

10. Judicial review: access to review and remedies

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
Legal Basis ◽  
Legal Requirements ◽  
The Public ◽  
Meaning And Purpose

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

scholarly journals Abolish Anonymous Reporting to Child Abuse Hotlines

2017 ◽  
Author(s):  
Dale Margolin Cecka
Keyword(s):  
Child Abuse ◽  
Current Practice ◽  
Case Law ◽  
Constitutional Rights ◽  
Abuse Reporting ◽  
Child Abuse Reporting ◽  
The Public ◽  
Anonymous Reporting ◽  
History Of ◽  
Federal Case

Part I of this Article traces the history of child abuse reporting hotlines. Part II describes the current law and practice behind child abuse reporting hotlines. Part III examines why anonymous reporting by the public is unnecessary and highly susceptible to abuse. Part IV analyzes the constitutional rights at stake in anonymous reporting, citing federal case law that contradicts current practice. Part V concludes with a proposal to abolish anonymous reporting and require all public reporting hotlines to adhere to published, written policies.

16. Illegality

2021 ◽  
pp. 517-564
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Public Sector ◽  
Judicial Review ◽  
Case Law ◽  
Public Authorities ◽  
The Public ◽  
Wide Range ◽  
Complete Series ◽  
Explanatory Text ◽  
Primary Materials ◽  
Discretionary Powers

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines ‘illegality’ as a ground for judicial review. Central to judicial review is the idea of ultra vires, which is the principle that public authorities have to act within their legal powers and that if they act or fail to act consistently with their legal powers, they will be acting unlawfully. Case law on the exercise of discretionary powers by public authorities is discussed in depth. In addition, the public-sector equality duty in section 149 of the Equality Act 2010 is explained. The concept of jurisdiction and the distinction between error of law and error of fact are also included under this ground of review.

8. Parliamentary Privilege

2021 ◽  
pp. 197-220
Author(s):  
Ian Loveland
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Case Law ◽  
Ethical Standards ◽  
Bill Of Rights ◽  
House Of Commons ◽  
The Rule Of Law ◽  
Article 9 ◽  
House Of Lords ◽  
History Of

This chapter, which examines the so-called parliamentary privileges of the House of Commons and the House of Lords, begins by discussing Article 9 of the Bill of Rights 1689. It then explores over three hundred years of the history of parliamentary privilege in five general areas: (i) the houses’ power to regulate their own composition through the admission, retention, and expulsion of their members; (ii) the publication of details of house business; (iii) the admissibility before the courts of such published material; (iv) the concept of ‘contempt of the house’; and (v) the regulation of MPs’ ethical standards. The chapter also analyses several seminal cases in which the courts have adjudicated on both the nature and extent of parliamentary privilege and considers how case law in relation to this area of the constitution balances the sometimes competing concepts of the sovereignty of Parliament, the rule of law, and the separation of powers.

10. Judicial review: access to review and remedies

Public Law ◽  
2020 ◽  
pp. 409-444
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
Legal Basis ◽  
Legal Requirements ◽  
The Public ◽  
Meaning And Purpose

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

Part IV Independent Constitutional Institutions, 15 The Public Prosecutor and the Rule of Law in Anglophone Africa

2016 ◽  
Author(s):  
Jowell Jeffrey
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Public Prosecutor ◽  
The Rule Of Law ◽  
The Public ◽  
The Law ◽  
Individual Decisions

This chapter examines the role of the public prosecutor in Anglophone Africa, in the light of two constitutional principles: the separation of powers and the rule of law. It considers the extent to which the prosecutor’s role, and his individual decisions, ought to be separated from ‘policy’ or ‘party-political’, or otherwise ‘partisan’ considerations. How ‘objective’ should (or can) he be? The chapter also considers to what extent the prosecutor’s constitutional role and institutional functions require him to be insulated from judicial review. In the context of government lawyers acting as guardians of the rule of law, the chapter looks at the extent of the prosecutor’s discretion to enforce and not to enforce the law. Finally, it asks whether there may be ways to structure his discretion in the interest of the rule of law.

scholarly journals In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law

2009 ◽  
Vol 22 (1) ◽  
pp. 187-203 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Public Reason ◽  
Separation Of Powers ◽  
Political Judgment ◽  
The Rule Of Law ◽  
The Public ◽  
The Common ◽  
Fundamental Law

Alan Brudner’s closely-argued, richly-textured and wide-ranging work, Constitutional Goods, provides a striking and original account of the rule of law and its implications for legitimate government. Since the rule of law includes the enforcement of substantive principles ofjustice, it requires a clear separation of powers between court and legislature. The role of the court is chiefly confined to pure practical reason, determining what the public reason of the liberal consti-tution requires. It is the role of the legislative assembly to give its assent to governmental measures that apply the principles ofjustice to empirical circumstances, where the scope for reasonable disagreement provokes a transition from natural law to political judgment. Judicial review carries no anti-democratic implications because it defends the conceptual boundaries of popular decision-making: ‘Democracy is not defeated but protected if the court invalidates a law no free person could impose on himself, for the majority has no more authority to pass such a law than an autocrat nor any jurisdiction to decide by fiat a question to which there is a correct legal answer.’

The Ban on “Off-Label” Pharmaceutical Promotion: Constitutionally Permissible Prophylaxis against False or Misleading Commercial Speech?

2011 ◽  
Vol 37 (2-3) ◽  
pp. 278-298 ◽  
Author(s):  
Kate Greenwood
Keyword(s):  
First Amendment ◽  
Legislative History ◽  
The Public ◽  
Off Label ◽  
Commercial Speech ◽  
Pharmaceutical Manufacturers ◽  
Drug Promotion ◽  
Pharmaceutical Promotion ◽  
History Of ◽  
The Government

Critics of the Food & Drug Administration's ban on off-label promotion often claim that it violates the First Amendment because it suppresses pharmaceutical manufacturers' truthful speech about their legal—and beneficial—products. Characterizing the ban on off-label promotion in this way has more than rhetorical significance. Bans on truthful, non-misleading speech elicit special skepticism because of the belief that they “usually rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.” The legislative history of the provisions of the Food Drug and Cosmetic Act that underlie the ban on off-label promotion, however, reveals that Congress was concerned that physicians were responding rationally to false and misleading promotional claims. In this Article, I explore the doctrinal questions raised by conceiving of the ban on off-label promotion not as a ban on “truthful speech to physicians” but instead as a prophylaxis against false and misleading pharmaceutical promotion. I review the evidence that false and misleading claims were commonplace before the ban's adoption and persist today, along with the enforcement challenges the FDA confronted at that time and would confront were the ban lifted, and conclude the government likely could develop the factual record necessary to establish that Congress' rejection of an after-the-fact case-by-case approach to combating false and misleading prescription drug promotion is constitutional.

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