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The New Judicial Federalism

Robert F. Williams

in The Law of American State Constitutions

This chapter discusses the evolution of the New Judicial Federalism, reflecting the realization that state constitutional rights provisions can provide, or be interpreted to provide, more rights than ... More

This chapter discusses the evolution of the New Judicial Federalism, reflecting the realization that state constitutional rights provisions can provide, or be interpreted to provide, more rights than the federal Constitution's national minimum standards. It describes the wide variety of state constitutional rights provisions, together with the various stages of the New Judicial Federalism beginning in the 1970s. These developments consisted of state high court decisions, law review literature, including influential articles written by state judges as well as Justice William Brennan, Jr., and conferences. Also, the chapter describes the backlash against the New Judicial Federalism and the awareness that expansive judicial interpretations of state constitutions could be overturned by amendments to the texts of state constitutions. The chapter concludes with the suggestion that a true dialogue between state and federal courts concerning constitutional rights might be possible.Less

Judicial Activism and New Zealand's Appellate Courts

Bruce Harris

in Judicial Activism in Common Law Supreme Courts

This chapter examines ‘judicial creativity’ in New Zealand's appellate courts. It argues that judicial creativity is a natural and vital part of how the three branches of government work together to ... More

This chapter examines ‘judicial creativity’ in New Zealand's appellate courts. It argues that judicial creativity is a natural and vital part of how the three branches of government work together to provide a single comprehensive system. The selection of appellate decisions discussed in this chapter displays the range of judicial creativity and restraint in the New Zealand jurisdiction. Both an appreciation of the degree of creativity which the system of government expects of the courts and the ongoing confidence the community maintains in the courts, suggest that the New Zealand appellate courts — notwithstanding the strident concerns of a small group of business and academic commentators — are perceived to be maintaining an appropriate balance between creativity and restraint.Less

Access to Justice in European Comparative Law

EVA STORSKRUBB and JACQUES ZILLER

in Access to Justice as a Human Right

This chapter reviews the constitutional provisions of the European Union (EU) Member States. Then, some of the most pressing issues with regard to implementation and enforcement of the access to ... More

This chapter reviews the constitutional provisions of the European Union (EU) Member States. Then, some of the most pressing issues with regard to implementation and enforcement of the access to justice ideal are analysed. In addition, it assumes a European comparative approach and deals with access to justice on two levels: the national level of the Member States and the supranational level of the EU. It directly unveils the reality behind the proclamations and considers the complexities involved in the implementation of the access to justice ideal. Furthermore, it covers the decentralized level of the national legal system.Less

Procedural Safeguards in Cases of Arrest and Detention

B. Uma Devi

in Arrest, Detention, and Criminal Justice System: A Study in the Context of the Constitution of India

This chapter discusses the constitutional provisions in cases of arrest and detention; Article 22 in the light of the ‘composite code’ approach; judicial prescriptions of procedural safeguards; ... More

This chapter discusses the constitutional provisions in cases of arrest and detention; Article 22 in the light of the ‘composite code’ approach; judicial prescriptions of procedural safeguards; internal safeguards in the procedure of arrest; transparency and accountability in adhering to the law; and the revamp of the police system. The discussion suggests that Article 22(1) and (2), though they were copied from the then existing CrPC, 1898, encompass a wide gamut of procedural rights when viewed in the perspective of the Indian Constitution as a composite whole. Most of these rights have received due exposition either as judicial pronouncements or as recommendations of the Law Commission and these have been now incorporated in the CrPC by The Code of Criminal Procedure (Amendment) Act, 2008.Less

The Constitutional Entrenchment of Federalism

Jacob T. Levy

in Federalism and Subsidiarity: NOMOS LV

This chapter examines the institutional arrangements surrounding federalism. It begins with an overview of the concept of “constitutional entrenchment,” with particular emphasis on one potentially ... More

This chapter examines the institutional arrangements surrounding federalism. It begins with an overview of the concept of “constitutional entrenchment,” with particular emphasis on one potentially important distinction concerning entrenchment: between the entrenchment of a constitutional provision and its enforceability by means of judicial review. The chapter assumes that entrenchment and judicial enforcement go together—whether the enforcement is by a regular court or a specialized constitutional one, and whether the judiciary has the last word (prior to constitutional amendment) or it may be overridden by other actors. It discusses key critiques of and complaints against constitutional entrenchment as well as federalism and argues that the core of constitutional entrenchment is the defense of procedural, rule of law rights against executive action.Less

Constitutional Developments in a Himalayan Kingdom: The Experience of Nepal

Sunil Khilnani, Vikram Raghavan, and Arun K. Thiruvengadam

in Comparative Constitutionalism in South Asia

This chapter offers an account of Nepal's constitutional developments over the years in light of the ‘interaction between indigenous law and transplanted law’. The author reflects upon the modalities ... More

This chapter offers an account of Nepal's constitutional developments over the years in light of the ‘interaction between indigenous law and transplanted law’. The author reflects upon the modalities of the political transformations that have occurred in Nepal over the past 250 years, with particular reference to the influence of external legal and political concepts. After tracing the constitutional history of Nepal, the author examines the 1990 Constitution and its demise, and what it tells us about political processes in Nepal between 1990 and early 2007, and about democratic politics in the country more generally. It argues that it was a flawed constitution that failed to adequately accommodate the aspirations of the people. The promulgation of the 2007 Interim Constitution has endeavoured to ignite a process of state restructuring and the creation of a ‘New Nepal’. A new document recognizing Nepal's inner plurality, rooted in social hybridity and fostering a civic sense of belonging, with an emphasis on citizenship and rights rather than constitutional arrangements based on a polarized essentializing identity lines, is the need of the hour. The long-term success of the political process currently underway to establish lasting peace in Nepal will depend ultimately upon whether the present constitution-making endeavours achieve consensus and stability.Less

Into the Catacombs: Crisis and Persecution, 1926–9

Matthew Butler

in Popular Piety and Political Identity in Mexico's Cristero Rebellion: Michoacán, 1927-29

This chapter examines the religious crisis in Michoacán, Mexico during the period from 1926 to 1929. It explains that Church-state hostilities in Michoacán intensified in 1926 when Bishop José Mora y ... More

This chapter examines the religious crisis in Michoacán, Mexico during the period from 1926 to 1929. It explains that Church-state hostilities in Michoacán intensified in 1926 when Bishop José Mora y del Río publicly reiterated the Church's opposition to constitutional provisions which prohibited the clergy from giving primary education, outlawed ecclesiastical property, and denied the Church of any judicial personality. It outlines the Church's official response to persecution during the cristero revolt and describes the experiences of persecution of Christians at the parish level.Less

The Formalist Crusade of Antonin Scalia

in Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations

This chapter describes Antonin Scalia's orginalism, which is distinctive in several respects and is more concerned with restricting judicial lawmaking than with the value of popular sovereignty. It ... More

This chapter describes Antonin Scalia's orginalism, which is distinctive in several respects and is more concerned with restricting judicial lawmaking than with the value of popular sovereignty. It is not believed that Scalia has successfully resolved the internal tensions in his thinking. His recent theoretical writings seem to have reverted to a more simplistic version of originalism. His best-known opinion on the separation of powers is his dissent in a case concerning the constitutional status of the independent counsel. Originalism plays a limited role in some of Justice Scalia's most notable opinions despite its centrality in his thinking about judicial review. Hence, despite his views on originalism, he has tended in practice to invoke entrenched interpretations of constitutional provisions by either the Court itself or by long-standing public consensus.Less

Transforming Fiscal Governance

Tania Ajam and Janine Aron

in South African Economic Policy under Democracy

This chapter reviews the policies and outcomes of South Africa's fiscal reform since 1994, and explores the main challenges it has raised. Section 2 discusses the improved governance of fiscal policy ... More

This chapter reviews the policies and outcomes of South Africa's fiscal reform since 1994, and explores the main challenges it has raised. Section 2 discusses the improved governance of fiscal policy with its base in constitutional provisions. Section 3 summarizes the key fiscal reforms since 1994. Section 4 examines the performance of national fiscal policy by means of the trends of the main budget indicators, measures of the cyclically adjusted fiscal stance, a comparison of budget projections and actual outcomes, the management and sustainability of debt, and, finally, the contribution of fiscal policy to South Africa's improved macroeconomic stability. Section 5 explores the implications of the vertical fiscal imbalance created by a combination of highly centralized revenue raising powers and increased decentralization of expenditure responsibility to sub-national governments. Section 6 concludes.Less

Criminal Procedure

Michael S. Pardo and Dennis Patterson

in Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience

This chapter examines the three primary constitutional provisions that limit the gathering and use of neuroscientific evidence by the government: the Fourth Amendment, the Fifth Amendment privilege ... More

This chapter examines the three primary constitutional provisions that limit the gathering and use of neuroscientific evidence by the government: the Fourth Amendment, the Fifth Amendment privilege against self-incrimination, and Due Process. It argues that the way in which the evidence is conceptualized matters a great deal to the amount of constitutional protection it is likely to receive. Uncertainty about how to characterize evidence produced by new technology is an enduring problem in law, and neuroscientific evidence is no exception.Less

Free Speech in Congress

Josh Chafetz

in Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions

This chapter considers how the constitutional provision for free speech reacts to its English predecessor, and the ways in which it interacts with other American constitutional provisions. It ... More

This chapter considers how the constitutional provision for free speech reacts to its English predecessor, and the ways in which it interacts with other American constitutional provisions. It discusses the text and history of the Speech or Debate Clause; the functions served by Congressional freedom of speech; and cases on the free-speech privilege.Less

Changing Conditions and Conflicts with Values

Kent Greenawalt

in Realms of Legal Interpretation: Core Elements and Critical Variations

This chapter focuses on two kinds of situations that go beyond discerning original meaning. One is when significant circumstances have changed since a legal standard was formulated; the other ... More

This chapter focuses on two kinds of situations that go beyond discerning original meaning. One is when significant circumstances have changed since a legal standard was formulated; the other concerns certain basic conflicts or tensions between articulated standards and basic values, such as fairness between contracting parties and, more generally, fundamental concepts of justice and social welfare. Although changes in ordinary conditions can make the application of a standard much less fair than it was when originally formulated, much more troublesome for some statutes and many constitutional provisions are basic changes in social values. These can be perceived in terms of general cultural norms or what judges understand as a correct evaluation. For example, at the time of the Bill of Rights, capital punishment was an authorized penalty for all sorts of crimes. It is now viewed as constitutionally foreclosed except for very serious crimes and for especially threatening offenses.Less

The Determinants of Privatization: Empirical Findings

Herbert Obinger, Carina Schmitt, and Stefan Traub

in The Political Economy of Privatization in Rich Democracies

Using multivariate regression analysis and spatial econometrics, this chapter examines the determinants of privatization in twenty advanced democracies between 1980 and 2007. Particular emphasis is ... More

Using multivariate regression analysis and spatial econometrics, this chapter examines the determinants of privatization in twenty advanced democracies between 1980 and 2007. Particular emphasis is devoted to the impact of political parties and the role played by political and legal institutions. Moreover, the chapter examines whether and to what extent privatization was shaped by policy diffusion. The chapter proceeds in five steps. In a first section, it investigates whether privatization activities in advanced democracies led to policy convergence over time. Next, it studies how different constitutional settings have influenced the scope and timing of privatization. The following section investigates the impact of political parties on privatizing state-owned enterprises, while the next section examines whether privatization can be attributed to policy diffusion. The final section provides a summary of the major empirical findings.Less

Leveraging Legal Protection for Religious Liberty

Angela Wu Howard

in The Future of Religious Freedom: Global Challenges

This chapter explores the lever of law in protecting and advancing religious freedom around the world, as a way illuminate the value, status, and challenges of international legal advocacy. Because ... More

This chapter explores the lever of law in protecting and advancing religious freedom around the world, as a way illuminate the value, status, and challenges of international legal advocacy. Because law embodies a world view, the legal advocate must operate with a clear understanding of first principles, along with specific knowledge of local cultural and political contexts. The chapter draws upon case studies from the United Nations, Indonesia, India, Europe, and Malaysia to chart the status of legal protections for vulnerable religious minorities. It presents common postural errors committed by states that undercut religious freedom and concludes with a series of lessons for understanding and responding to these challenges.Less