Constitutional substantial-evidence review? Lessons from the Supreme Court's Turner Broadcasting decisions

Article Abstract:

The US Supreme Court's confused attempts at resolving the First Amendment issues implicated by the must-carry rules imposed on cable television broadcasters have failed to articulate a clear intermediate scrutiny standard. In both the 1994 and 1997 versions of Turner Broadcasting System v. FCC, the Court departed from precedent and explored the possibility of using the substantial evidence standard of judicial review borrowed from administrative law. While the Court did not call for Congress to improve the record supporting must-carry rules, Congress may want to provide additional findings.

Cases, Freedom of speech, Cable television, Administrative law, Must carry rules (Broadcasting)

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Putting precedent in its place: stare decisis and federal predictions of state law

Article Abstract:

The inconsistent application of Erie Railroad v. Tompkins in the interpretation of state laws by federal courts suggests that a new rule should be developed to guide federal courts faced with state law issues where there are no state court decisions on point. Federal courts should only consider federal determinations of state law issues provisional. If a party presents evidence that the federal decision appears to be at odds with what a state court would rule, a duty to exercise independent judgment, and not be bound by predictive precedent, should be triggered.

Law, Federal courts, states

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Stare decisis and the Constitution: an essay on constitutional methodology

Article Abstract:

The author analyzes issues related to the constitutional status of stare decisis. Topics include constitutional methodology and judicial legitimacy. The argument of Michael Stokes Paulsen that Congress has the power to enact laws denying precedential effect to certain Supreme Court decisions is countered.

United States, Criticism and interpretation, Paulsen, Michael Stokes

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