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2. Precedent-Based Constitutional Adjudication, Acceptance, and the Rule of Recognition

RICHARD H. FALLON

in The Rule of Recognition and the U.S. Constitution

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195343298
eISBN:
9780199867806
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195343298.003.0002
Subject:
Law, Constitutional and Administrative Law

This chapter responds to claims that the Supreme Court behaves lawlessly whenever it follows erroneous past decisions, by invoking and applying H. L. A. Hart's famous assertions that the ultimate ... More


Constitutional Rights

Martin Loughlin

in Foundations of Public Law

Published in print:
2010
Published Online:
September 2010
ISBN:
9780199256853
eISBN:
9780191594267
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199256853.003.0013
Subject:
Law, Public International Law

This chapter examines the influence of the idea that the modern system of government exists to protect the interests of the rights-bearing individual. It considers in particular the various claims ... More


The German Federal Constitutional Court: Present State, Future Challenges

Rainer Nickel

in Building the UK's New Supreme Court: National and Comparative Perspectives

Published in print:
2004
Published Online:
March 2012
ISBN:
9780199264629
eISBN:
9780191698965
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199264629.003.0008
Subject:
Law, Legal Profession and Ethics

This chapter discusses the ways in which the Federal Republic of Germany and its constitutional court managed the difficult problem of organizing human rights and civil rights adjudication and ... More


Constitutional Conscience: The Moral Dimension of Judicial Decision

H. Jefferson Powell

Published in print:
2008
Published Online:
March 2013
ISBN:
9780226677255
eISBN:
9780226677309
Item type:
book
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226677309.001.0001
Subject:
Law, Constitutional and Administrative Law

While many recent observers have accused American judges—especially Supreme Court justices—of being too driven by politics and ideology, others have argued that judges are justified in using their ... More


Originalism and the Living American Constitution

Robert W. Bennett

in Constitutional Originalism: A Debate

Published in print:
2011
Published Online:
August 2016
ISBN:
9780801447938
eISBN:
9780801460630
Item type:
chapter
Publisher:
Cornell University Press
DOI:
10.7591/cornell/9780801447938.003.0002
Subject:
Law, Constitutional and Administrative Law

This chapter discusses the clash between originalism and living constitutionalism. It considers variants of originalism, with particular emphasis on unsolved problems and continuing disagreement. It ... More


Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts

Marsha S. Berzon

in The Embattled Constitution

Published in print:
2013
Published Online:
March 2016
ISBN:
9780814770122
eISBN:
9780814762806
Item type:
chapter
Publisher:
NYU Press
DOI:
10.18574/nyu/9780814770122.003.0009
Subject:
Law, Constitutional and Administrative Law

This chapter focuses on “Bivens actions,” or private suits for damages against federal officials who violate an individual's constitutional rights. Such actions are not mentioned in the U.S. ... More


Who Guards the Guardians?: Constitutional Adjudication

András Sajó and Renáta Uitz

in The Constitution of Freedom: An Introduction to Legal Constitutionalism

Published in print:
2017
Published Online:
December 2017
ISBN:
9780198732174
eISBN:
9780191796524
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198732174.003.0010
Subject:
Law, Constitutional and Administrative Law, Human Rights and Immigration

This chapter examines constitutional adjudication as a mechanism designed to ensure that the constitution is properly observed. It begins with an overview of the development of constitutional review ... More


The Political Circumstances of Constitutional Scrutiny

Conrado Hübner Mendes

in Constitutional Courts and Deliberative Democracy

Published in print:
2013
Published Online:
April 2014
ISBN:
9780199670451
eISBN:
9780191749636
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199670451.003.0009
Subject:
Law, Constitutional and Administrative Law

This chapter examines the political constraints of constitutional adjudication. It first discusses the five main political choices facing constitutional courts. These are tensions involved in the ... More


Reclaiming copyright: Constitutional Review And Statutory Interpretation

Christina Bohannan and Herbert Hovenkamp

in Creation without Restraint: Promoting Liberty and Rivalry in Innovation

Published in print:
2012
Published Online:
May 2012
ISBN:
9780199738830
eISBN:
9780199932702
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199738830.003.0009
Subject:
Law, Competition Law, Intellectual Property, IT, and Media Law

The Copyright Act serves a combination of public and private interests. Where possible, conflicts between the two should be resolved in favor of the public interest. This approach would sort out some ... More


Getting Normative: The Role of Natural Rights in Constitutional Adjudication

Randy E. Barnett

in Natural Law, Liberalism, and Morality: Contemporary Essays

Published in print:
2001
Published Online:
March 2012
ISBN:
9780199243006
eISBN:
9780191697203
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199243006.003.0008
Subject:
Law, Philosophy of Law

This chapter discusses the two questions that were posed by Suzanna Sherry, which can be viewed as posing two distinct challenges. The first question is ‘can we take natural rights into account ... More


Constitutional Adjudication and Democracy

Dieter Grimm

in Constitutionalism: Past, Present, and Future

Published in print:
2016
Published Online:
October 2016
ISBN:
9780198766124
eISBN:
9780191829277
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198766124.003.0010
Subject:
Law, Constitutional and Administrative Law

This chapter addresses the question of compatibility of judicial review with democracy. It considers how the relationship of democracy and constitutional adjudication has remained precarious and ... More


Factors Influencing the Use of Comparative Arguments by Courts

Michal Bobek

in Comparative Reasoning in European Supreme Courts

Published in print:
2013
Published Online:
September 2013
ISBN:
9780199680382
eISBN:
9780191760280
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199680382.003.0004
Subject:
Law, Constitutional and Administrative Law, Comparative Law

Whether or not judges use comparative arguments is determined by a complex interplay of a number of legal and extra-legal factors within each legal system. The chapter introduces and discusses a ... More


The Free Flow of Commercial Information

Roger A. Shiner

in Freedom of Commercial Expression

Published in print:
2003
Published Online:
March 2012
ISBN:
9780198262619
eISBN:
9780191682353
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198262619.003.0024
Subject:
Law, Human Rights and Immigration

By far, the most frequent argument given by courts and commentators for the constitutional protection of freedom of expression embodies a reference to the ‘free flow of commercial information’. The ... More


The assumption of intellectual-moral superiority

Cristina E. Parau

in Transnational Networking and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond

Published in print:
2018
Published Online:
May 2019
ISBN:
9780197266403
eISBN:
9780191879593
Item type:
chapter
Publisher:
British Academy
DOI:
10.5871/bacad/9780197266403.003.0006
Subject:
Law, Legal Profession and Ethics

This chapter evidences that the Network Community assume judges (viz., themselves) to be morally superior to all other actors in a political context because of their sole reliance on intellect. The ... More


Constitutional Identity

Bosko Tripkovic

in The Metaethics of Constitutional Adjudication

Published in print:
2017
Published Online:
February 2018
ISBN:
9780198808084
eISBN:
9780191845833
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198808084.003.0002
Subject:
Law, Constitutional and Administrative Law

The chapter examines the metaethical foundations of the argument from constitutional identity. This argument locates the source of value in a set of deep and self-identifying evaluative commitments ... More


Models of Institutional Control: The Experience of Islamic Countries

Rainer Grote

in Constitutionalism in Islamic Countries: Between Upheaval and Continuity

Published in print:
2012
Published Online:
April 2015
ISBN:
9780199759880
eISBN:
9780190259921
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:osobl/9780199759880.003.0013
Subject:
Law, Constitutional and Administrative Law

This chapter discusses constitutional review in Islamic countries. It covers the basic models of constitutional review; composition of constitutional courts; powers of constitutional courts; and ... More


The Metaethics of Constitutional Adjudication

Bosko Tripkovic

Published in print:
2017
Published Online:
February 2018
ISBN:
9780198808084
eISBN:
9780191845833
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198808084.001.0001
Subject:
Law, Constitutional and Administrative Law

The book explores the metaethical foundations of value-based arguments in constitutional adjudication. The argument develops in four steps. First, the book identifies three dominant types of ... More


Judges and the idea of ‘principle’ in constitutional adjudication

Tom Hickey

in Judges, politics and the Irish Constitution

Published in print:
2017
Published Online:
September 2017
ISBN:
9781526114556
eISBN:
9781526124241
Item type:
chapter
Publisher:
Manchester University Press
DOI:
10.7228/manchester/9781526114556.003.0005
Subject:
Law, Legal History

Tom Hickey’s chapter seeks to reconcile the principles-oriented contribution that constitutional adjudication (or judicial review) can make to overall public deliberation with the fact of reasonable ... More


Introduction

Bosko Tripkovic

in The Metaethics of Constitutional Adjudication

Published in print:
2017
Published Online:
February 2018
ISBN:
9780198808084
eISBN:
9780191845833
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198808084.003.0001
Subject:
Law, Constitutional and Administrative Law

The chapter explains the relevance, subject matter, structure, and method of the book. The book aims to challenge and explain the metaethical foundations of value-based arguments in constitutional ... More


Constitutions, Constitutional Courts, and Constitutional Interpretation at the Interface of Law and Politics

Dieter Grimm

in Constitutionalism: Past, Present, and Future

Published in print:
2016
Published Online:
October 2016
ISBN:
9780198766124
eISBN:
9780191829277
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198766124.003.0009
Subject:
Law, Constitutional and Administrative Law

This chapter examines the relationship between constitutionalism and politics. The essence of constitutionalism is the submission of politics to law. However, constitutional law is characterized by a ... More


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