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The Orthodox Deferential Approach

Jaime Arancibia

in Judicial Review of Commercial Regulation

Published in print:
2011
Published Online:
May 2011
ISBN:
9780199609079
eISBN:
9780191725289
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199609079.003.0002
Subject:
Law, Constitutional and Administrative Law, Company and Commercial Law

This chapter examines the deferential approach, regarded as orthodox. It is divided into two sections. The first explains the main arguments upon which this cautious approach, based on the Wednesbury ... More


Saying What Foreign Affairs Law Is

Martin S. Flaherty

in Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs

Published in print:
2019
Published Online:
May 2020
ISBN:
9780691179124
eISBN:
9780691186122
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691179124.003.0010
Subject:
Political Science, International Relations and Politics

This chapter undertakes much the same task regarding foreign affairs matters that arise once a case has been accepted for review. Here, easily the most threatening potential wrong turn has concerned ... More


Judicial Review and Judicial Restraint

T. R. S. Allan

in The Sovereignty of Law: Freedom, Constitution and Common Law

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199685066
eISBN:
9780191765353
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199685066.003.0007
Subject:
Law, Constitutional and Administrative Law, Philosophy of Law

This chapter examines and rejects demands for a special doctrine of judicial deference to safeguard the legitimacy of judicial review. It contends that considerations of legitimacy and expertise are ... More


The Aspiration of Institutional Competence

Conor Gearty

in Principles of Human Rights Adjudication

Published in print:
2005
Published Online:
March 2012
ISBN:
9780199287222
eISBN:
9780191700422
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199287222.003.0006
Subject:
Law, Human Rights and Immigration

This chapter is concerned with the approach that should be adopted when the case before the courts is one in which a Convention right is ... More


The Procedural Tools of Interpretive Balancing

Erin Ryan

in Federalism and the Tug of War Within

Published in print:
2011
Published Online:
January 2012
ISBN:
9780199737987
eISBN:
9780199918652
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199737987.003.0010
Subject:
Law, Constitutional and Administrative Law

The preceding positive account provides foundation for Chapter Ten’s critical normative claim: that federalism bargaining is not only a pragmatic solution to a problem of doctrinal uncertainty, but ... More


Applying Basic Structure Review: The Limits of State Action and the Standard of Review

Sudhir Krishnaswamy

in Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine

Published in print:
2011
Published Online:
September 2012
ISBN:
9780198071617
eISBN:
9780199081455
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198071617.003.0003
Subject:
Law, Constitutional and Administrative Law

After the conception of the basic structure doctrine in Kesavananda Bharati v. State of Kerala, a clear type of basic structure review of constitutional amendments emerges in Indira Gandhi v. Raj ... More


Discretion and Deference

Matthias Klatt and Moritz Meister

in The Constitutional Structure of Proportionality

Published in print:
2012
Published Online:
September 2012
ISBN:
9780199662463
eISBN:
9780191743405
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199662463.003.0005
Subject:
Law, Constitutional and Administrative Law, Philosophy of Law

Judicial deference and different types of discretion are the focus of this chapter. This issue has a strong connection to the separation of powers within a state and the risk of a judicial usurpation ... More


Terrorist Threats and Judicial Deference

Jens Elo Rytter

in The Long Decade: How 9/11 Changed the Law

Published in print:
2014
Published Online:
April 2014
ISBN:
9780199368327
eISBN:
9780199368358
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199368327.003.0013
Subject:
Law, Human Rights and Immigration, Public International Law

The chapter seeks to qualify the general claim that courts do and must display judicial deference in cases concerning terrorism. On closer analysis, there are grounds for special deference in ... More


Legislative Balancing through Intergovernmental Bargaining

Erin Ryan

in Federalism and the Tug of War Within

Published in print:
2011
Published Online:
January 2012
ISBN:
9780199737987
eISBN:
9780199918652
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199737987.003.0007
Subject:
Law, Constitutional and Administrative Law

Chapter Seven proposes a more modest modification to the anti-commandeering rule, requiring judicial deference to consensual state-federal legislative bargaining over federalism entitlements. ... More


The Principal Questions of Constitutional Interpretation

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

Published in print:
2007
Published Online:
January 2009
ISBN:
9780195328578
eISBN:
9780199855339
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195328578.003.0002
Subject:
Law, Constitutional and Administrative Law

This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's ... More


Frankfurters Failure: The Rise and Decline of Judicial Self-Restraint 1949–1962

in The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

Published in print:
2004
Published Online:
March 2013
ISBN:
9780226428840
eISBN:
9780226428864
Item type:
chapter
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226428864.003.0003
Subject:
Political Science, American Politics

There were continued signs that the modern Court might follow the lead of Stone and Black in adopting a distinctive new activist role, even as Frankfurter's doctrine of restraint became dominant. The ... More


The Kelo Decision

Ilya Somin

in The Grasping Hand: 'Kelo v. City of New London' and the Limits of Eminent Domain

Published in print:
2016
Published Online:
September 2017
ISBN:
9780226422169
eISBN:
9780226456829
Item type:
chapter
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226456829.003.0005
Subject:
Law, Constitutional and Administrative Law

This chapter assesses the Supreme Court’s opinion in the Kelo case. The majority opinion, written Justice John Paul Stevens, has numerous flaws. These include excessive deference to a flawed ... More


The Kelo Decision

Ilya Somin

in The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain

Published in print:
2015
Published Online:
May 2016
ISBN:
9780226256603
eISBN:
9780226256740
Item type:
chapter
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226256740.003.0004
Subject:
Law, Constitutional and Administrative Law

This chapter assesses the Supreme Court’s opinion in the Kelo case. The majority opinion, written Justice John Paul Stevens, has numerous flaws. These include excessive deference to a flawed ... More


Judgment Days

William W. Buzbee

in Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City

Published in print:
2014
Published Online:
August 2016
ISBN:
9780801451904
eISBN:
9780801470301
Item type:
chapter
Publisher:
Cornell University Press
DOI:
10.7591/cornell/9780801451904.003.0014
Subject:
Law, Environmental and Energy Law

This chapter considers the aftermath of the trial examined in previous chapters by analyzing some legal close calls on Westway's side. Because the Army Corps had granted the Westway permit and the ... More


Judicial Deference

Robert H. Wagstaff

in Terror Detentions and the Rule of Law: US and UK Perspectives

Published in print:
2013
Published Online:
April 2014
ISBN:
9780199301553
eISBN:
9780199344895
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199301553.003.0010
Subject:
Law, Public International Law, Comparative Law

Parliamentary sovereignty addresses jurisdictional matters: does the court have the authority to speak? Judicial deference is a subset: the court has the authority to speak but sometimes it chooses ... More


Introduction

Jan Zglinski

in Europe's Passive Virtues: Deference to National Authorities in EU Free Movement Law

Published in print:
2020
Published Online:
June 2020
ISBN:
9780198844792
eISBN:
9780191880247
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198844792.003.0001
Subject:
Law, EU Law

This introductory chapter sets out the themes of the book. Doctrines of judicial deference have begun to appear with growing regularity in the European Court of Justice’s free movement case law, ... More


Balancing Security and Liberty

Yvonne Tew

in Constitutional Statecraft in Asian Courts

Published in print:
2020
Published Online:
August 2020
ISBN:
9780198716839
eISBN:
9780191785535
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198716839.003.0009
Subject:
Law, Constitutional and Administrative Law

Emergency powers and national security laws have long been features of a powerful state in Malaysia and Singapore. In addition to extensive emergency regimes, these states have employed security laws ... More


Europe's Passive Virtues: Deference to National Authorities in EU Free Movement Law

Jan Zglinski

Published in print:
2020
Published Online:
June 2020
ISBN:
9780198844792
eISBN:
9780191880247
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198844792.001.0001
Subject:
Law, EU Law

This book investigates the phenomenon of deference to Member State authorities in EU free movement law. It enquires into the decision-making latitude which the European Court of Justice grants ... More


13 Judgment Days

William W. Buzbee

in Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City

Published in print:
2014
Published Online:
August 2016
ISBN:
9780801451904
eISBN:
9780801470301
Item type:
chapter
Publisher:
Cornell University Press
DOI:
10.7591/cornell/9780801451904.003.0014
Subject:
Law, Environmental and Energy Law

This chapter considers the aftermath of the trial examined in previous chapters by analyzing some legal close calls on Westway's side. Because the Army Corps had granted the Westway permit and the ... More


Conclusion

Martin S. Flaherty

in Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs

Published in print:
2019
Published Online:
May 2020
ISBN:
9780691179124
eISBN:
9780691186122
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691179124.003.0012
Subject:
Political Science, International Relations and Politics

This concluding chapter concedes that, in many of the areas considered, on certain issues the federal judiciary has already proceeded perilously far in the wrong direction. Justice Jackson's opinion ... More


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