Judicial review in the contemporary world—Retrospective and prospective

Lustig, Doreen; Weiler, Joseph H. H.

doi:10.1093/icon/moy057

Cited by 52 publications

(16 citation statements)

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“…In contemporary judicial review-centered constitutionalism (Lustig and Weiler, 2018) characterized by the existence within states of judicial mechanisms safeguarding constitutional review of state action, including democratically approved legislation, any political assault upon judicial autonomy undermines the rule of law. In other words, the main functions of the judiciary in maintaining liberal democracy, namely: the exercise of checks on the executive power and protection of individual human rights, may not be properly fulfilled if the judiciary does not enjoy sufficient independence from the legislative and executive powers.…”

Section: From Uncontrolled Externalities To the Undermined Rule Of Lawmentioning

confidence: 99%

Economic Actors and the Problem of Externalities: Could Financial Markets Play a Role in Democratic Backsliding?

Jędrzejowska-Schiffauer¹,

Schiffauer²,

Gratiela³

2020

ERSJ

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Purpose: Economic actors tend to exert powerful impact on socio-economic and political developments around the globe, including yielding financial and political crises in developed democracies. Approach/Methodology/Design: While a number of studies discuss the impact of finance on political and societal reality, research on the interlink between finance and democratic processes is very limited. Drawing on secondary literature and a case study of two young Central-European democracies, this paper contends a relationship between financial economy and democratic backsliding. Findings: The findings challenge the existing conventional accounts of the reversal to authoritarian politics in Poland and Hungary. Practical Implications: They also identify a mismatch between the constitutional foundations for embedding the market within the society and its institutions on the one hand, and the political-institutional reality in contemporary democracies. Originality/Value: The research provides theoretical assumptions encouraging further study on unwelcome externalities produced by financial markets.

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Section: From Uncontrolled Externalities To the Undermined Rule Of Lawmentioning

confidence: 99%

Economic Actors and the Problem of Externalities: Could Financial Markets Play a Role in Democratic Backsliding?

Jędrzejowska-Schiffauer¹,

Schiffauer²,

Gratiela³

2020

ERSJ

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“…These are powerful institutions. Often the constitutional co-equals of the executive and legislature, they can make law through precedent (although the legitimacy of this practice is not unchallenged; Lawson 2007) and have powers of judicial review of administrative action and often of the constitutionality of statutes (Chandrachud 2015, Lustig andWeiler 2018). In both common and civil law, as we look up the judicial tiers, we find more prestigious and powerful judgeships; more experienced and better regarded appointees and better paid and more independent judges (European Commission for the Efficiency of Justice - CEPEJ -2018, pp.…”

Section: Introductionmentioning

confidence: 99%

A hard look at common law administrative tribunals

Seidman¹

2021

Oñati Socio-Legal Series

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This paper looks at common law administrative tribunals. For legal-historical reasons, these bodies are located at the bottom of the judicial hierarchy or outside of it; its adjudicators often have less training, formal protections and resources than judges of the general court system, yet are required to handle a huge caseload. One difficulty is that administrative tribunals are often not part of the litigation data, skewing statistics. Another difficulty is more substantive: it makes sense for “lower courts” to be assigned cases traditionally considered less legally complicated and overall “less important”; yet common law administrative tribunals often deal with highly complex, socially sensitive legal issues with major potential consequences for litigants’ rights such as bankruptcy, immigration or welfare. Not only should common law administrative tribunals be fully counted in court data, but they should also receive more resources and sufficient judicial oversight to ensure their good operation and litigants’ rights. Este artículo se centra en los tribunales administrativos de derecho consuetudinario. Por razones jurídico-históricas, estas instituciones se ubican en lo más bajo de la jerarquía judicial, o fuera de ella; los jueces suelen tener menos preparación, protecciones formales y recursos que los jueces del sistema general de tribunales, pero se les exige gestionar un enorme número de casos. Una de las dificultades es que los tribunales administrativos no suelen ser parte de los datos de litigio, provocando unas estadísticas distorsionadas. Otra dificultad es más substantiva: es lógico que a los "tribunales inferiores" se les asignen casos tradicionalmente considerados menos complicados y, en general, “menos importantes”; sin embargo, los tribunales administrativos de derecho consuetudinario suelen tener que ocuparse de casos jurídicos altamente complejos y sobre temas socialmente sensibles, con consecuencias potenciales muy importantes para los derechos de los litigantes, como por ejemplo la bancarrota, la inmigración o el bienestar. Los tribunales administrativos de derecho consuetudinario no sólo deberían ser considerados íntegramente en los datos judiciales, sino que también deberían recibir más recursos y una supervisión judicial suficiente para asegurar su buen funcionamiento y los derechos de los litigantes.

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“…They have described the third wave as a response to emergence of domestic constitutional jurisprudence, which had incorporated international standards as the source of higher law. According to these authors, the third wave is in dialectical relation with the other two in that it either reaffirms primacy of the domestic constitutional order over the international and emphasizes the discourse of national identity, or altogether exits the first and second waves (Lustig, Weiler 2018). This perspective has also been challenged connecting the emergence of constitutional identity discourse to broader social change brought by populist turn of politics (Versteeg, 2019).…”

Section: Introductionmentioning

confidence: 99%

Judicial Agency and Legal Means in Judicialization of Politics

Begadze

2021

Eudaimonia

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Law’s autonomy from politics has been in decline. Theories have been formulated to provide explanations for the development. However, these debates have overlooked the role of judicial agency in the construction of the Court’s own fate. Judicial agency has a lot to determine when courts embark on their mission of embracing political circumstances surrounding them. The present paper argues that insistence on neutral principles by Legal Process School can be guiding for courts to devise judicial techniques that enable warranted appearance of neutrality. Two cases decided by the Israeli Supreme Court will be discussed to elaborate on the argument defended in the paper. In these cases, the Israeli Supreme Court constructs its institutional security by engaging in a principled line of reasoning across its evolving jurisprudence on the same political issue, namely by first exhausting more solid legal arguments and imposing conclusive constitutional resolutions once these less controversial decisions are implemented.

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Judicial review in the contemporary world—Retrospective and prospective

Cited by 52 publications

References 0 publications

Economic Actors and the Problem of Externalities: Could Financial Markets Play a Role in Democratic Backsliding?

Economic Actors and the Problem of Externalities: Could Financial Markets Play a Role in Democratic Backsliding?

A hard look at common law administrative tribunals

Judicial Agency and Legal Means in Judicialization of Politics

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