A Congressional Right to Education

2019 ◽  
pp. 186-207
Author(s):  
Kimberly Jenkins Robinson
Keyword(s):  
Federal Courts ◽  
Equal Access ◽  
Federal Law ◽  
Right To Education ◽  
Political Will ◽  
Incremental Approach ◽  
Near Future

In this chapter, Kimberly Jenkins Robinson identifies the challenges and benefits of Congress adopting a federal right to education. She notes that the current backlash against the federal role in education and the lack of political will for greater federal involvement in education will forestall calls for a congressional right to education in the near future. Nevertheless, Congress possesses numerous strengths to recognizing a federal right to education over the federal courts that make it a forum worthy of serious consideration in the decades ahead. Robinson contends that Congress should adopt an incremental approach to recognizing a federal right to education that begins with incentives that set the stage for a federal right and that culminate with a federal law that requires states to provide equal access to an excellent education.

Unresolved Business: Federal Corporate Governance Enhancements

2018 ◽  
Author(s):  
Marc I. Steinberg
Keyword(s):  
Corporate Governance ◽  
Insider Trading ◽  
Securities And Exchange Commission ◽  
Federal Courts ◽  
Professional Conduct ◽  
State Law ◽  
Federal Law ◽  
Tender Offers ◽  
Federal Level ◽  
Federal Statute

This chapter analyzes and recommends federal corporate governance enhancements that should be implemented. These enhancements, which should be adopted in a measured and directed manner, are necessary to remediate certain deficiencies that currently exist. Consistent therewith, this chapter focuses on several important matters that merit attention, including the undue deference by federal courts to state law, the appropriate application of federal law to tactics undertaken in tender offers, the need for a federal statute encompassing insider trading, and the propriety of more vigorous oversight by the Securities and Exchange Commission (such as with respect to the “current” disclosure regime, the SEC’s Standards of Professional Conduct for Attorneys, and the Commission’s neglecting at times to invoke its statutory resources). Thus, the analysis set forth in this chapter identifies significant deficiencies that currently exist and recommends measures that should be implemented on the federal level to enhance corporate governance standards.

CONSTITUTIONAL AND LEGAL CHALLENGES IN THE ADMINISTRATIVE STATE

2021 ◽  
Vol 38 (1) ◽  
pp. 6-24
Author(s):  
Ronald J. Pestritto
Keyword(s):  
New Deal ◽  
Executive Branch ◽  
Federal Courts ◽  
Central Feature ◽  
Administrative State ◽  
American Government ◽  
Judicial Practice ◽  
Legal Challenges ◽  
Judicial Scrutiny ◽  
Near Future

AbstractFollowing the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles.

NATIVE PEOPLE AND VIOLENT CRIME

2018 ◽  
Vol 15 (1) ◽  
pp. 89-106 ◽  
Author(s):  
Sarah Deer
Keyword(s):  
National Level ◽  
Federal Courts ◽  
Native People ◽  
Law And Order ◽  
Federal Law ◽  
Order Model ◽  
Native Women ◽  
Indian Country ◽  
Tribal Nations ◽  
Anglo American

AbstractExciting changes are happening in criminal jurisdiction in Indian country at the national level. Due in large part to activism on the part of Native women, Congress has attempted to improve criminal justice on tribal lands. The reforms do not go far enough, however, and many of the recent legal changes have not yet been challenged in the federal courts. This article will preview many of the legal issues likely to ignite a firestorm of litigation and lobbying around issues of crime in Indian country. This article will also wrestle with the difficult question of whether tribal nations should adopt or sustain the typical carceral law and order model used by Anglo-American governments. In an effort to take advantage of the changes in federal law, tribal nations are explicitly required to comply with certain Anglo-American norms. The risks and rewards of such adherence will also be explored.

Religion, Extracurricular Activities, and Access to Public School Facilities

2018 ◽  
Author(s):  
Charles J. Russo
Keyword(s):  
High School Students ◽  
Extracurricular Activities ◽  
School Facilities ◽  
Community Schools ◽  
Equal Access ◽  
Federal Law ◽  
School Students ◽  
The Supreme Court ◽  
Religious Speech ◽  
Equal Access Act

The Equal Access Act (EAA) is a federal law enacted to permit organized groups of high school students to meet in schools during noninstructional time, periods when classes are not scheduled so that non-curriculum-related clubs can gather. The EAA was designed to remedy situations in which religious speech had been excluded from schools as a form of impermissible viewpoint discrimination. In Board of Education of Westside Community Schools v. Mergens, the Supreme Court upheld the EAA. This chapter covers the situation that existed before the EAA was enacted; the EAA itself; Mergens and later judicial developments; and the meaning of Mergens and its progeny. To date, it appears that the EAA has achieved its goal of granting equal access to religious speech even as it has been applied in ways beyond what its authors likely intended by including LGBT groups and others.

The Equal Access to Justice Act in the Federal Courts

1984 ◽  
Vol 84 (4) ◽  
pp. 1089
Author(s):  
John J. Sullivan
Keyword(s):  
Federal Courts ◽  
Equal Access ◽  
Access To Justice

scholarly journals The Ghost that Slayed the Mandate

2018 ◽  
Author(s):  
Kevin C. Walsh
Keyword(s):  
Health Insurance ◽  
Subject Matter ◽  
Federal Courts ◽  
Federal Law ◽  
Injunctive Relief ◽  
State Statutes ◽  
Individual Mandate ◽  
Federal Jurisdiction ◽  
Preemptive Effect ◽  
Sea Wall

Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed to its political salience also require its dismissal for lack of statutory subject matter jurisdiction. The Supreme Court has placed limits on statutory subject matter jurisdiction over declaratory judgment actions in which a state seeks a declaration that a state statute is not preempted by federal law-precisely the relief sought in Virginia v. Sebelius. These statutory limits are a sea wall; they keep out, on statutory grounds, some suits that should otherwise be kept out on Article III grounds. The statutory and constitutional limits on federal jurisdiction over suits like Virginia v. Sebelius insulate federal courts from the strong political forces surrounding lawsuits that follow from state statutes designed to create federal jurisdiction over constitutional challenges by states to federal law. This Article identifies previously neglected jurisdictional limits, shows why they demand dismissal of Virginia v. Sebelius, and explains why it is appropriate for federal courts to be closed to suits of this type.

Frederick L.: A Review of the Litigation in Context

1986 ◽  
Vol 52 (4) ◽  
pp. 367-375
Author(s):  
Win L. Tillery ◽  
Joseph C. Carfioli
Keyword(s):  
Special Education ◽  
Vocational Training ◽  
Learning Disabled ◽  
Federal Court ◽  
Federal Courts ◽  
Class Action ◽  
School Entry ◽  
Equal Access ◽  
Disabled Students ◽  
Grade 5

Frederick L. was identified as a learning disabled person in need of special education. Because the school district did not operate appropriate programs for students at or above grade 5, he was deprived of a program to meet his needs. The parents initiated a class action suit in the federal courts seeking an appropriate remedy. Throughout the course of litigation, the federal court has served a key role as mediator in effecting sweeping changes in programs for learning disabled students. These changes have provided for special education of the learning disabled from school entry to age 21 and include provisions for equal access to vocational training for exceptional persons.

Doctrine, Politics, and the Limits of a Federal Right to Education

2019 ◽  
pp. 84-108
Author(s):  
Eloise Pasachoff
Keyword(s):  
Common Ground ◽  
Federal Courts ◽  
Constitutional Amendment ◽  
Constitutional Interpretation ◽  
Right To Education ◽  
Federal Constitutional ◽  
Constitutional Right

In this chapter, Eloise Pasachoff offers an array of arguments against a federal right to education. She argues that a federal constitutional right to education is both unnecessary and insufficient, regardless of whether that right is developed through constitutional amendment by Congress and the states or through constitutional interpretation by federal courts. She contends that it is unnecessary because the goals that advocates have for a constitutional right to education can already be accomplished through ordinary legislation using Congress’s powers under the Constitution’s Spending Clause. She argues that it is insufficient because having a constitutional right to education would not remove practical limits on Congress and federal courts in ensuring its implementation. While there is an argument that building a movement for a constitutional right to education would itself create change, Pasachoff highlights the downsides to that work, from breeding cynicism about government (if the constitutional right is declared but fails to achieve its goals in practice) to furthering destructive politics (if, as is more likely, the movement to achieve a constitutional right fails while creating conflict and reducing the possibility of finding common ground on smaller reform projects). She concludes that advocates instead should focus their energy on reforms that have a greater likelihood of success.

Cases Without Controversies

2021 ◽  
Author(s):  
James E. Pfander
Keyword(s):  
United States ◽  
The United States ◽  
Federal Courts ◽  
Judicial Power ◽  
Habeas Corpus ◽  
Federal Law ◽  
Antebellum America ◽  
Article Iii Courts ◽  
The U.S ◽  
Over Time

Cases Without Controversies: Uncontested Adjudication in Article III Courts offers a new account of the power of federal courts in the United States to hear and determine uncontested applications to assert or register a claim of right. Familiar to lawyers in civil law countries as forms of voluntary or non-contentious jurisdiction, these uncontested applications fit uneasily with the commitment to adversary legalism in the United States. Indeed, modern accounts of federal judicial power often urge that the language of Article III of the U.S. Constitution limits federal courts to the adjudication of concrete disputes between adverse parties and rules out all forms of non-contentious jurisdiction. Said to rest on the so-called “case-or-controversy” requirement of Article III, this requirement of party contestation threatens the power of federal courts to conduct a range of familiar proceedings, such as the oversight of bankruptcy proceedings, the issuance of warrants, and the adjudication of applications for mandamus and habeas corpus relief. By recounting the tradition of naturalization and other uncontested litigation in antebellum America and coupling that tradition with an account of the important difference between cases and controversies, this book challenges the prevailing understanding of Article III. In addition to defending the power of federal courts to hear uncontested matters of federal law, this book examines the way the Constitution’s meaning has changed over time and suggests an interpretive methodology that would allow the U.S. Supreme Court to take account of the old and the new in defining the contours of federal judicial power.

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