DOCSLIB.ORG

Federal Court Abstention and State Administration Law from Burford to Ankenbrandt: Fifty Years of Judicial Federalism Under Burford V

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Federal Court Abstention and State Administration Law from Burford to Ankenbrandt: Fifty Years of Judicial Federalism Under Burford V DePaul Law Review Volume 42 Issue 3 Spring 1993 Article 2 Federal Court Abstention and State Administration Law from Burford to Ankenbrandt: Fifty Years of Judicial Federalism under Burford v. Sun Oil Co. and Kindred Doctrines Gordon G. Young Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Gordon G. Young, Federal Court Abstention and State Administration Law from Burford to Ankenbrandt: Fifty Years of Judicial Federalism under Burford v. Sun Oil Co. and Kindred Doctrines, 42 DePaul L. Rev. 859 (1993) Available at: https://via.library.depaul.edu/law-review/vol42/iss3/2 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. FEDERAL COURT ABSTENTION AND STATE ADMINISTRATIVE LAW FROM BURFORD TO ANKENBRANDT: FIFTY YEARS OF JUDICIAL FEDERALISM UNDER BURFORD v. SUN OIL CO. AND KINDRED DOCTRINES Gordon G. Young* TABLE OF CONTENTS INTRODUCTION ...................................... 862 I. A SHORT INTRODUCTION TO THE ABSTENTION D O CTRIN ES .................................... 868 A. The Pullman Doctrine (1941) ............... 868 B. The Burford Doctrine (1943) ................ 870 C. 'The Younger Doctrine (1971) ............... 871 D. The Colorado River Doctrine (1974) ......... 873 E. The Thibodaux Doctrine (1959) ............. 873 II. BURFORD V. SUN OIL CO. AND ITS BACKGROUND .. 875 Ill. BURFORD'S APPARENT INCONSISTENCY WITH THE CONTEMPORARY LAW OF JUDICIAL FEDERALISM .... 879 A. How Equitable Discretion Overrode the Usual Rule That Federal Courts Must Exercise Jurisdiction Conferred by Statute .... ........ 880 B. Burford as an Exception to Entrenched Principles of Judicial Federalism Exemplified by Erie v. Tom pkins ....................... 881 C. Burford's Origins in the Developing Body of Federal Administrative Law ................ 886 1. Federal Review of Federal Agency Determinations ........................ 889 * Professor of Law, University of Maryland School of Law. For help of various sorts, I am grateful to the following friends and colleagues, both at the School of Law and elsewhere: Richard Boldt, Ruth Fleischer, William Richman, and Palma Strand. I am particularly indebted to Dave Bogen and Bill Reynolds for help with this Article and for being such good colleagues over the years. Linda Jennings and William Heaphy, School of Law classes of 1992 and 1993 respectively, provided some of the best research assistance I have ever had. DEPA UL LA W RE VIE W [Vol. 42:859 2. Transposing Federal Administrative Review Jurisprudenceonto the Domain of Federal! State R elations ........................ 893 a. Prentis v. Atlantic Coast Line Railway and state/federal claim preclusion ... 894 b. Uncertainty about which state institutions are "courts" protected from federal court "review" by claim preclusion ........................ 896 IV. THE BURFORD DOCTRINE TODAY ................... 899 A. Burford's Shape in the Lower Federal Courts . 900 B. An Initial Look at the Supreme Court Cases, ParticularlyNew Orleans Public Service, Inc. v. Council of New Orleans .................... 906 V. How NEW ORLEANS NARROWS THE PRACTICAL SCOPE OF THE BURFORD DOCTRINE FROM THE INSIDE WHILE OTHER DOCTRINES NARROW IT FROM THE O U TSID E ...................................... 9 13 A. Some Basic Distinctions Among Cases in Which Burford Abstention Might Operate: Review Pattern Cases Versus Primary Jurisdiction Ca ses . 9 13 B. How Other Doctrines of Judicial Federalism Reduce Burford's Significance in Federal Cases in Which the Validity of State Agency Action Is R eview ed ................................. 9 15 1. Alternatives to Burford Abstention Which Are Common to Federal Question and Diversity Cases ........................ 915 2. A Particular Focus on Alternatives to Burford Abstention in Cases Grounded on Federal Question Jurisdiction ........... 922 a. Pendent state law claims under supplemental jurisdiction ........... 923 b. Federal law attacks on state administrative action ............... 923 c. State law incorporated in federal law. 927 3. A Particular Focus on Alternatives to Burford Abstention in Review Cases Grounded on Diversity Jurisdiction....... 928 1993] FEDERAL ABSTENTION AND STATE LAW C. How Other Doctrines of Judicial Federalism Reduce Burford's Significance in Primary JurisdictionPattern Cases .................. 929 D. Summary of the Effect of Other Doctrines on Burford Abstention ........................ 934 VI. THE ADMINISTRATIVE/NONADMINISTRATIVE DISTINCTION UNDER THE MICROSCOPE ............ 934 A. What Is Meant by "Administrative Agencies" in the New Orleans Formulation?............... 935 B. Is Limiting Burford to Administrative Law Cases Justifiable? ......................... 937 1. The Limitation as Seen from a Modern Perspective Stressing the Similarities of Courts' and Agencies' Powers to Make Law 937 2. A Conventional Perspective in Which Judicial Law-Making in Statutory Interpretation Is Denied or Downplayed... 946 a. Federal court interpretations of state agency action not challenged as unlawful: primary jurisdiction ....... 947 b. Federal court "review" of state agency a ctio n ........................... 947 i. Review of administrative action ingeneral .................. 948 ii. Pure issues of law ........... 949 iii. Mixed questions of law and fact 952 iv. Factual review .............. 954 v. Arbitrary and capricious review 954 3. S um m ary ............................. 956 VII. FURTHER DIFFICULTIES WITH BURFORD: THE Two PROBLEMATIC NEW ORLEANS CATEGORIES ......... 956 A. Category One: "Difficult Questions of State Law Bearing on Policy Problems of Substantial Public Import Whose Importance Transcends the Result in the Case Then at Bar....... 957 B. Category Two. "FederalReview of the Question in a Case and in Similar Cases Would Be Disruptive of State Efforts to Establish a Coherent Policy with Respect to a Matter of Substantial Public Concern.'". .............. 962 862 DEPAUL LAW REVIEW [Vol. 42:859 VIII. SOME GENERAL THOUGHTS ON BURFORD AND FEDERALISM: SHOULD BURFORD BE RETAINED, MODIFIED, OR ABANDONED? ..................... 968 A. Federal Question Cases .................... 969 B. Diversity Cases ........................... 978 C ONCLUSION ... ....................................... 979 The very essence of the Erie doctrine is that the bases of state law are pre- sumed to be communicable by the parties to a federal judge no less than to a state judge.' INTRODUCTION Within the limits of the federal judicial power defined by Article III of the Constitution, Congress has nearly complete control over the jurisdiction of the Supreme Court and the lower federal courts.2 Despite the breadth of these potential powers, Congress largely has allowed the Supreme Court a free hand in designing the features of judicial federalism, the system of rules and policies which divides power between the state and federal courts. From the early days under the Constitution, the jurisdiction which Congress has chosen to confer on the federal courts generally I. Salve Regina College v. Russell, Ill S. Ct. 1217, 1225 (1991). 2. Congress may not expand the jurisdiction of the lower federal courts beyond the judicial power as defined in Article Ill, § 2. See National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 607, 645, 655 (1949) (view of six concurring and dissenting justices; Justices Jackson, Black, and Burton disagreed); Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809). See gener- ally PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 473-78 (3d ed. 1988) (discussing the prohibition on Congress's expanding federal judicial jurisdiction beyond Article IlI's limits). Within the federal judicial power as defined in Article Ill, the vast powers of Congress to limit the jurisdiction of the lower federal courts are well established. See id. at 362-424. It is arguable that Congress has complete power to limit the jurisdiction of the lower federal courts to any subset of the maximum jurisdiction allowed under Article Ill of the United States Constitution. Many cases suggest that Congress can specify which constitutionally founded causes of action cannot be heard by a federal court. See Lockerty v. Phillips, 319 U.S. 182, 187 (1943) (stating that Congress's authority to create lower federal courts includes the power of "withholding juris- diction from them in the exact degrees and character which to Congress may seem proper for the public good"); Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938) (upholding a federal statu- tory restriction on a federal trial court's jurisdiction); Sheldon v. Sill, 49 U.S. (8 How.) 441, 448- 49 (1850) (stating that Congress controls the existence of inferior courts and, thus, also controls the scope of their jurisdiction). But see Johnson v. Robison, 415 U.S. 361, 366-67 (1974) (expres- sing serious doubts regarding the constitutionality of any statute which included a provision bar- ring federal courts from reviewing the constitutionality of the statute's substantive provisions); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.) (suggesting that Congress must not exercise its power over the jurisdiction of lower courts in a manner that deprives citizens of their constitutional rights), cert. denied, 335 U.S. 887 (1948). 19931 FEDERAL ABSTENTION AND STATE LAW 863 has been regarded as mandatory.3
Load more

Recommended publications
  • Abstention and Primary Jurisdiction: Two Chips Off the Same Block?
    Cornell Law Review Volume 60 Article 3 Issue 1 November 1974 Abstention and Primary Jurisdiction Two Chips Off the aS me Block-a Comparative Analysis Sidney A. Shapiro Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Sidney A. Shapiro, Abstention and Primary Jurisdiction Two Chips Off ht e Same Block-a Comparative Analysis, 60 Cornell L. Rev. 75 (1974) Available at: http://scholarship.law.cornell.edu/clr/vol60/iss1/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. ABSTENTION AND PRIMARY JURISDIC- TION: TWO CHIPS OFF THE SAME BLOCK?-A COMPARATIVE ANALYSIS* Sidney A. Shapirot I INTRODUCTION A plaintiff who properly qualifies for federal jurisdiction may not always receive a hearing in federal court. Although the right of the plaintiff to be in federal court is to be respected,1 other concerns of administering justice sometimes result in the federal courts sending the plaintiff to litigate his claims elsewhere. Two of the most frequently espoused reasons for sending plaintiffs to another decision-maker are the doctrines of abstention and pri- mary jurisdiction.2 * The views herein expressed are those of the author and do not necessarily reflect the views of the Federal Trade Commission. t Member of the Pennsylvania Bar. Staff Attorney for the Federal Trade Commission.
    [Show full text]
  • A Functional Theory of Congressional Standing
    Michigan Law Review Volume 114 Issue 3 2015 A Functional Theory of Congressional Standing Jonathan Remy Nash Emory University School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Courts Commons, and the President/Executive Department Commons Recommended Citation Jonathan R. Nash, A Functional Theory of Congressional Standing, 114 MICH. L. REV. 339 (2015). Available at: https://repository.law.umich.edu/mlr/vol114/iss3/1 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. A FUNCTIONAL THEORY OF CONGRESSIONAL STANDING Jonathan Remy Nash* The Supreme Court has offered scarce and inconsistent guidance on congres- sional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of- powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks stand- ing to enforce subpoenas against executive branch actors. Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering
    [Show full text]
  • The Political Question Doctrine: Suggested Criteria
    012306 03_CHOPER .DOC 2/6/2006 10:19 AM THE POLITICAL QUESTION DOCTRINE: SUGGESTED CRITERIA JESSE H. CHOPER† ABSTRACT Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed—textual commitment—is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these—structural issues: federalism and separation of powers—has been advanced and developed at length in my earlier work. It is based on a comparative advantage of the political process over the Court in sound constitutional decisionmaking respecting the relevant issues, as well as the trustworthiness respecting fundamental values of the national legislative/executive branches in doing so. The remaining two criteria involve removing questions of individual rights from the judiciary's realm, something that would (and should) occur very infrequently. The manageable standards test recognizes that there may be constitutional provisions for which the Court lacks the capacity to develop clear and coherent principles. The generalized grievance guide is similar in many ways to structural issues in that it is also grounded in matters of comparative advantage and trustworthiness of results. Copyright © 2005 Jesse H. Choper. † Earl Warren Professor of Public Law, University of California, Berkeley (Boalt Hall). I wish to express appreciation to Katherine Florey, Boalt ‘04, for her exceptionally able assistance in preparing this Article , to my colleagues Daniel A.
    [Show full text]
  • Supreme Court Round-Up (July 2019)
    July 2, 2019 Vol. 11, No. 4 Overview The Supreme Court Round-Up previews upcoming cases, summarizes opinions, and tracks the actions of the Office of the Solicitor General. Each entry contains a description of the case, as well as a substantive analysis of the Court’s actions. October Term 2018 Argued Cases 1. Rucho v. Common Cause, No. 18-422 (M.D.N.C., 318 F. Supp. 3d 777, consolidated with Lamone v. Benisek, No. 18-726 (D. Md., 348 F. Supp. 3d 493); jurisdiction postponed Jan. 4, 2019; argued Mar. 26, 2019). The Questions Presented are: (1) Whether plaintiffs have standing to press their partisan gerrymandering claims. (2) Whether plaintiffs’ partisan gerrymandering claims are justiciable. (3) Whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander. Decided June 27, 2019 (588 U.S. __). M.D.N.C. and D. Md./Vacated and remanded. Chief Justice Roberts for a 5-4 Court (Kagan, J., dissenting, joined by Ginsburg, Breyer, and Sotomayor, J.J.). The Court held that partisan gerrymandering claims present a nonjusticiable political question because no “judicially discoverable and manageable standards” exist for resolving them. Baker v. Carr, 369 U.S. 186, 217 (1962). The Framers were aware of electoral districting problems, including partisan gerrymandering, when they chose to assign the task of districting to state legislatures. Specifically, the Elections Clause of the U.S. Constitution empowers States to decide the “Times, Places and Manner of holding Elections” for members of Congress, and grants Congress the authority to “make or alter” any such rules.
    [Show full text]
  • Abstention and the Constitutional Limits of the Judicial Power of the United States Calvin R
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1991 Abstention and the Constitutional Limits of the Judicial Power of the United States Calvin R. Massey UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Recommended Citation Calvin R. Massey, Abstention and the Constitutional Limits of the Judicial Power of the United States, 1991 Brigham Young University Law Review 811 (1991). Available at: http://repository.uchastings.edu/faculty_scholarship/1128 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Abstention and the Constitutional Limits of the Judicial Power of the United States Calvin R. Massey* I. INTRODUCTION The federal courts have by now firmly established a variety of doctrines by which they decline to exercise jurisdiction vested in them by Congress. The constitutional validity of these "ab- stention" doctrines has been challenged in recent years by Pro- fessor Martin Redish, who contends that "[j]udge-made absten- tion constitutes judicial lawmaking of the most sweeping nature."1 He characterizes the abstention doctrines "as a judicial usurpation of legislative authority, in violation of the principle of separation of powers."'2 To Professor Redish, judicial con- struction of "a jurisdictional statute that somehow vests a power in the federal courts to adjudicate the relevant claims without a corresponding duty to do so is unacceptable." 3 Redish's intellec- tual cohort, Professor Donald Doernberg, establishes the same point by invoking more directly the familiar admonition of Chief Justice Marshall in Cohens v.
    [Show full text]
  • The Common Law Jurisdiction of the United States Courts
    YALE LAW JOURNAL VOL. XVII NOVEMBER, 1907 No. i THE COMMON LAW JURISDICTION OF THE UNITED STATES COURTS To me it seems clear, beyond question, that neither in the Constitution, nor in the statutes enacted by Congress, nor in the judgments of the Supreme Court of the United States can there be found any substantial support for the proposition that, since the adoption of the Constitution, the principles of the Common Law have been wholly abrogated touching such matters as are by that instrument placed within the exclusive control of the National Goverment. (Judge Shiras in Murray v. Chicago & N. W. Rly. Co., 62 Fed. 24.) To whatever has required for its upbuilding the prolonged activity of countless men, in one generation after another, whether expressed in unconfined exertion of physical labor which produces for our astonishment a pyramid, a cathedral, or in endless mental effort which evolves for our wonder a science, an art, a system of law, men have always paid respect. As conferred upon a system of law, that respect has always, in English-speaking countries, been acorded to the Common Law. Law exists for justice, and Webster said: "The Common Law is a fcuntain of justice, perennial and per- petual." Rightly did he as a representative American pay this tribute, for to the founders ot this government there never had been another system of law. They were, in large measure, descendants of those Englishmen who, centuries back, had ceaselessly petitioned for YALE LAW JOURNAL recognition of their rights of person and property; had finally obtained them, and from that foundation had ever thereafter through their courts received justice as their due.
    [Show full text]
  • Abstention by Federal Courts in Suits Challenging State Administrative Decisions: the Scope of the Burford Doctrine
    Abstention by Federal Courts in Suits Challenging State Administrative Decisions: The Scope of the Burford Doctrine Since the early 1940s, the Supreme Court has developed sev- eral doctrines under which a federal court may abstain from exer- cising its jurisdiction, leaving the parties to proceed in state court.' The abstention doctrines thus provide judicial exceptions to the federal jurisdictional statutes in order to prevent federal courts from intruding unnecessarily into matters of importance to the states.2 The "administrative abstention" doctrine, created by the Supreme Court in Burford v. Sun Oil Co.,' allows federal courts to abstain from reviewing certain decisions of state administrative agencies or from otherwise assuming the functions of state courts in the development and implementation of a state's public policies. Despite thirty-six years of case law, the contours of Burford ab- stention remain unclear. This comment examines the rationale and development of the Burford doctrine and suggests ways in which that doctrine should I Three major categories of abstention are Burford abstention, on which this comment focuses; Pullman abstention, discussed in text and notes at notes 11-16, 111-112, 121-122 infra; and Thibodaux abstention, discussed in note 43 and text and notes at notes 113, 121- 122 infra. Another important form of abstention, not discussed in this comment, is the doctrine of equitable restraint in cases seeking injunctions against criminal prosecution for violations of allegedly unconstitutional state laws. See Younger v. Harris, 401 U.S. 37 (1971); Dombrowski v. Pfister, 380 U.S. 479 (1965); Douglas v. City of Jeannette, 319 U.S.
    [Show full text]
  • The Federal Equity Power
    Florida State University College of Law Scholarship Repository Scholarly Publications 1-2018 The Federal Equity Power Michael T. Morley Follow this and additional works at: https://ir.law.fsu.edu/articles Part of the Courts Commons, and the Jurisdiction Commons THE FEDERAL EQUITY POWER MICHAEL T. MORLEY INTRODUCTION ............................................................................................................................ 219 I. THE ORIGIN AND DEVELOPMENT OF EQUITY............................................................................. 224 II. AMERICAN EQUITY PRIOR TO ERIE .......................................................................................... 230 A. Equity Jurisdiction .............................................................................................................. 232 B. Equity Procedure ................................................................................................................ 236 C. Equitable Remedies............................................................................................................. 238 D. Equity and Substantive Rights ............................................................................................. 241 III. EQUITY IN THE POST-ERIE WORLD ......................................................................................... 244 A. Erie and General Law ......................................................................................................... 244 B. Guaranty Trust and Equity .................................................................................................
    [Show full text]
  • Federal Courts
    Federal Courts Prof. Greve Law 226-001 Spring Semester 2020 Tues/Thurs 6:05 – 7:30pm Introduction and Overview Federal Courts is the most difficult course you will encounter in law school. It requires a reasonably accurate recollection of CivPro; and if you have not yet taken ConLaw I and, ideally, Administrative Law and perhaps Conflicts (and done tolerably well in those courses), none of this will make much sense to you. However: depending on your envisioned career, FedCourts may also be the most useful course. If you want to practice law in federal courts, in any capacity, you have to know this stuff (ideally, better than your opponents know it). We will use the standard textbook: RICHARD H. FALLON, JOHN F. MANNING, DANIEL J. MELTZER, & DAVID L. SHAPIRO, HART & WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (7th Ed. 2015); 2019 Supplement. I strongly suggest you buy the book and the Supplement, mark up both in pencil and with tabs, and keep the book. I realize it’s expensive but it’s a worthwhile investment in your career. All other materials will be posted on TWEN. Attendance; Electronics; Course Participation I’ll take attendance, mostly to ensure that no one falls through the cracks. There’s no penalty for missing a class and no need for you to excuse any absence in advance. However, if you miss class too often, you’ll fall behind very quickly. And you are of course aware of the general attendance requirements. I very, very, very strongly discourage the use of laptops or any comparable device in class.
    [Show full text]
  • Chapter 17 CLIMATE CHANGE in the COURTS: JURISDICTION and COMMON LAW LITIGATION
    Chapter 17 CLIMATE CHANGE IN THE COURTS: JURISDICTION AND COMMON LAW LITIGATION SYNOPSIS I. The Uncertain Future of Climate Change Litigation II. Article III Standing A. Standing in Early Climate Change Cases B. Massachusetts v. EPA C. Post-Massachusetts Standing Analysis III. Is Climate Change a Nonjusticiable Political Question? IV. Are Claims Displaced or Preempted by the Clean Air Act? A. Federal Common Law Displacement B. Are State Law Claims Preempted? V. Could Common Law Doctrines Apply to Climate Change? A. Public Nuisance and Other Tort Claims 1. Breach of Duty: The Reasonableness of Defendants’ Actions 2. Causation 3. Damages B. The Atmospheric Trust 1. The Atmospheric Trust Theory 2. Atmospheric Trust Litigation I. THE UNCERTAIN FUTURE OF CLIMATE CHANGE LITIGATION In the 1990s, states and environmental groups began using litigation as a strategy to compel agency action to reduce greenhouse gas emissions or to force large greenhouse gas emitters to reduce their emissions or pay damages for the harm they caused. Suits against agencies typically arose under federal environmental statutes, most importantly the Clean Air Act. Suits against emitters typically proceeded under tort law and primarily alleged that the emitters had caused or contributed to a public nuisance. Despite the prevalence of environmental litigation in modern society and the long history of using the common law to remedy environmental harms, courts have struggled to fit climate change into statutory frameworks and common law doctrines. In particular, courts have displayed a reticence to accept jurisdiction over cases involving climate change. As this chapter explores, this reticence seems to have increased even after the Supreme Court found climate change claims justiciable in Massachusetts v.
    [Show full text]
  • Congress' Encroachment on the President's Power in Indian Law
    Seattle Journal for Social Justice Volume 11 Issue 3 Article 13 11-2013 Congress' Encroachment on the President's Power in Indian Law and its Effect on Executive-Order Reservations Follow this and additional works at: https://digitalcommons.law.seattleu.edu/sjsj Mark Par R.t of Car theter Administr JD, PhDativ e Law Commons, Agriculture Law Commons, Arts and Humanities Commons, Banking and Finance Law Commons, Civil Rights and Discrimination Commons, Commercial Law Commons, Comparative and Foreign Law Commons, Constitutional Law Commons, Consumer Protection Law Commons, Criminal Law Commons, Criminal Procedure Commons, Disability and Equity in Education Commons, Disability Law Commons, Educational Leadership Commons, Educational Methods Commons, Energy and Utilities Law Commons, Family Law Commons, Fourteenth Amendment Commons, Health Law and Policy Commons, Housing Law Commons, Human Rights Law Commons, Immigration Law Commons, Indian and Aboriginal Law Commons, Insurance Law Commons, Intellectual Property Law Commons, International Trade Law Commons, Juvenile Law Commons, Labor and Employment Law Commons, Land Use Law Commons, Law and Gender Commons, Law and Psychology Commons, Legal Ethics and Professional Responsibility Commons, Legal History Commons, Legal Remedies Commons, Legislation Commons, Marketing Law Commons, National Security Law Commons, Natural Resources Law Commons, Other Education Commons, Other Law Commons, Privacy Law Commons, Property Law and Real Estate Commons, Secured Transactions Commons, Securities Law Commons, Sexuality and the Law Commons, Social and Behavioral Sciences Commons, Social and Philosophical Foundations of Education Commons, Social Welfare Law Commons, Transnational Law Commons, and the Water Law Commons Recommended Citation Carter, Mark R. JD, PhD (2013) "Congress' Encroachment on the President's Power in Indian Law and its Effect on Executive-Order Reservations," Seattle Journal for Social Justice: Vol.
    [Show full text]
  • Federalism, Human Rights, and the Realpolitik of Footnote Four
    The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 2003 Federalism, Human Rights, and the Realpolitik of Footnote Four Robert A. Destro The Catholic University of America, Columbus School of Law Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Constitutional Law Commons Recommended Citation Robert A. Destro, Federalism, Human Rights, and the Realpolitik of Footnote Four, 12 WIDENER L. J. 373 (2003). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. WIDENER LAW JOURNAL Copyright © 2003 by the Widener University School of Law VOLUME 12 2003 NUMBER 3 FEDERALISM, HUMAN RIGHTS, AND THE REALPOLITIK OF FOOTNOTE FOUR Robert A. Destro* In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself Second It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society againstthe injustice of the other part. Different interests necessarily exist in different classes of citizens.
    [Show full text]