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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

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

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

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

Constitutional Principles and Judicial Remedies in Switzerland

Thierry Tanquerel

in Tort Liability of Public Authorities in European Laws

In Switzerland, the law concerning the liability in tort of public authorities is complex, due to the federal structure of government, and it is still evolving. Until twenty years or so ago, the ... More

In Switzerland, the law concerning the liability in tort of public authorities is complex, due to the federal structure of government, and it is still evolving. Until twenty years or so ago, the Federal Constitution had no such thing as a general principle of damages liability, but such liability has been governed by statute since 1958. Now Article 146 of the Federal Constitution of 1999 provides that the ‘Confederation shall be liable for damage or loss unlawfully caused by its organs in the exercise of official activities.’ This provision solidifies the liability of all bodies discharging public functions and powers on behalf of the Confederation, but it is cantonal law that governs the liability of cantons and municipalities. There is thus a potentiality for differentiation, though actually all cantons regulate public liability along the lines of Article 146. There is, however, a mixture of commonality and diversity concerning administrative procedure. There is still another element of differentiation concerning judicial review, because in some cantons (and on the federal level) the claim for damages must be brought to an administrative authority, while in others it must be brought to an administrative or to a civil court.Less

The Principles Governing Public Authority Liability in Poland

Marek Wierzbowski, Marek Grzywacz, Joanna Róg Dyrda, and Katarzyna Ziółkowska

in Tort Liability of Public Authorities in European Laws

Before 1989, Polish courts in some cases affirmed the liability of the State on the basis of existing legislative provisions. After 1989, the Constitution admits administrative liability in very ... More

Before 1989, Polish courts in some cases affirmed the liability of the State on the basis of existing legislative provisions. After 1989, the Constitution admits administrative liability in very general terms, because everyone shall have the right to be awarded damages for any harm done by administrative action contrary to the law. The more detailed provisions of the Civil Code implement such general principle. More generally, the liability of administrative authorities is regarded as being subject to private law standards. However, in some cases illegality per se will not suffice for liability. This is the case, in particular, for administrative acts that are characterized by real discretion. Moreover, administrative procedures are regulated by parliamentary legislation. Another particular feature of Polish law is that, to prove the unlawfulness of the action taken by administrative authorities, on both procedural and substantive grounds, claimants must bring an action before administrative courts.Less

Public Authority Liability in Romania

Roxana Vornicu

in Tort Liability of Public Authorities in European Laws

The Romanian regime for administrative liability has much in common with other systems of continental Europe. There is no immunity for public authorities. This is excluded by the Constitution, by way ... More

The Romanian regime for administrative liability has much in common with other systems of continental Europe. There is no immunity for public authorities. This is excluded by the Constitution, by way of what can be regarded as a general principle of damages liability, for both subjective rights and legitimate interests. Judicial review is guaranteed to all, with few exceptions, and concerns illegality on both procedural and substantive grounds. However, various conditions must be met for a claim for damages to be successful. An administrative appeal must be carried out. Moreover, and more importantly, the contested administrative act or measure must be annulled by the administrative jurisdiction, although in Romania this is a specialized branch of ordinary courts.Less

Austria, Germany, and Switzerland

Angela Ferrari Zumbini and Otto Pfersmann

in Tort Liability of Public Authorities in European Laws

This chapter intends to shed light on commonalities and distinctive features of public authority liability in Austria, Germany, and Switzerland. In the first part, background commonalities and ... More

This chapter intends to shed light on commonalities and distinctive features of public authority liability in Austria, Germany, and Switzerland. In the first part, background commonalities and background distinctive traits are illustrated, together with the relevant Constitutional provisions. In the second part, a comparative analysis is carried out considering the answers given in the three countries. In particular, the chapter is focused on three kind of administrative action that can cause damages, ie authoritative decisions such as sanctions; the withdrawal of a former benefit; and a physical act. In the third part, the comparative analysis is carried out on cross-cut issues, considering institutional choices. The analysis shows that the outcome may well differ, considering not only the conditions for recognizing damages and their amount, but also for the primacy of alternative remedies, ie annulment.Less

Constitutional Foundations of Government Liability in Spain

Eva Maria Nieto Garrido

in Tort Liability of Public Authorities in European Laws

In Spain, the Civil Code has long been the basis of the liability of administrative authorities, and the Constitution has reaffirmed it by way of a general principle of damages liability. The ... More

In Spain, the Civil Code has long been the basis of the liability of administrative authorities, and the Constitution has reaffirmed it by way of a general principle of damages liability. The Constitution has also confirmed the importance attached to the legislative regulation of administrative procedure, especially after the Act of 1958, subsequently amended in 1992 and 2015. A claim may, therefore, more easily than elsewhere, be based on the lack of procedural fairness. Coherently with traditional views of administrative liability, the constitutional provision admits it whenever harm is a consequence of actions taken in the discharge of public functions or services. Another fundamental feature of the Spanish legal system is that there is an ‘objective’ conception of liability, in the sense that it is not only based on misconduct. Procedurally, a specific administrative procedure must be carried out. After its conclusion, a claim can be brought before the specialized judicial branch, the jurisdiction ‘contencioso-administrativa’.Less

Hungary, Poland, and Romania

Giacinto della Cananea

in Tort Liability of Public Authorities in European Laws

This chapter compares the respective answers of the Hungarian, Polish, and Romanian systems of administrative liability. It begins by noting that after 1989, all such countries modified their ... More

This chapter compares the respective answers of the Hungarian, Polish, and Romanian systems of administrative liability. It begins by noting that after 1989, all such countries modified their constitutions, which now regulate government liability in tort differently from the past. Not only do they admit government liability, but they also lay down general principles about it, although they variably construct the right to compensation. There are, instead, some relevant differences in their rules concerning administrative procedure. In particular, unlike Hungary and Poland, Romania has no such thing as a procedural code. However, the crucial empirical question is whether the same, or similar solutions are given to the issues raised by the hypothetical cases. Despite the fact that the European Convention on Human Rights influences the three legal systems, not always is the disregard of procedural constraints, such as prior notice and hearing, in itself sufficient to make administrative action unlawful and, thus, to give rise to liability. Sometimes, claimants fail to get redress for wrongful failures to grant licences or exercise a discretion in the issuing of general or individual orders. The reason is not only that administrative authorities enjoy discretionary powers, but also that sometimes the courts seem reluctant to abandon the idea that those who govern cannot be held liable.Less