‘Playing the Judicial Card’: Litigation Strategies during the Process of Ratification of the Lisbon Treaty

During the process of ratification of the Lisbon Treaty, a number of constitutional jurisdictions were activated by political actors. In playing ‘the judicial card’, opponents of ratification decided to seek political goals through judicial means, and thus they were obliged to develop litigation strategies. This article explores such strategies and the responses that courts gave them. It shows that constitutional proceedings with regards to the Lisbon Treaty became a political battleground governed by legal logics, in which the interpretation of European clauses, the democratic deficit of the Union and the tensions underlying the European judicial dialogue were privileged objects of discussion between claimants and courts in which law and politics intertwined.     

Movement Litigation and Unilateral Disarmament: Abortion and the Right to Die

Detractors have long criticized the use of courts to achieve social change because judicial victories tend to provoke counterproductive political backlashes. Backlash arguments typically assert or imply that if movement litigators had relied on democratic rather than judicial politics, their policy victories would have been better insulated from opposition. We argue that these accounts wrongly assume that the unilateral decision by a group of movement advocates to eschew litigation will lead to a reduced role for courts in resolving the relevant policy and political conflicts. To the contrary, such decisions will often result in a policy field with judges every bit as active, but with the legal challenges initiated and framed by the advocates' opponents. We document this claim and explore its implications for constitutional politics via a counterfactual thought experiment rooted in historical case studies of litigation involving abortion and the right to die.     

Law and American Political Development

This essay reviews the recent volume edited by Ronald Kahn and Ken I. Kersch, The Supreme Court and American Political Development (2006), as well as the broader literature by law scholars interested in American Political Development (APD). The Law and APD literature has advanced our knowledge about courts by placing attention on the importance of executive and legislative actors, and by providing political context to our understanding of judicial decision making. But this knowledge would be more powerful if it would embrace the broader APD field's orientation toward the importance of state and institutional autonomy for understanding politics and political change. Law and APD scholars could go further in examining the ways in which courts and judges act institutionally, and how the legal branch as an institution impacts American politics and state-building. In doing so, Law and APD scholars would contribute not only to our understanding of judicial decision making but also to our understanding of the place and importance of courts in American politics.     

Activism and Popular Constitutionalism in Contemporary Vietnam

Based on Chinese constitutional analysis, political science, and law and society studies, we argue that work extending the application of popular constitutionalism to authoritarian states applies in Vietnam, as popular constitutionalism targets sites relevant to constitutional reform. We contend that popular constitutionalism located in authoritarian states requires three factors: a tradition of activism, space for reformist and pragmatic dialogue targeting constitutional change, and the political need for legitimacy. This article analyses activism in Vietnam, focusing on the lodging of Petition 72 with the Constitutional Amendment Drafting Commission in 2013, and the resulting responses. We conclude that this activism was pivotal in advocating for new constitutional norms, evidencing popular constitutionalism in Vietnam. The long history of Vietnamese scholar activism, the relative space for governance debates, and the political need for legitimacy made this possible. We also note that popular constitutionalism faces constraints in authoritarian states, which may shape its trajectory.     

Congressional Constitutional Interpretation and the Courts: A Preliminary Inquiry into Legislative Attitudes, 1959–2001

Through theoretically informed inquiry into congressional attitudes toward the Constitution and the courts as well as survey research of two modem Congresses, this study considers the prospects and implications of a more salient legislative role in constitutional affairs. By analyzing survey responses from the 86th (1959–61) and 106th (1999–2001) Congresses, and the political context in which these views were formed, this essay explores the legislature's evolving conception of its role and capacities as a constitutional interpreter. Among other findings, Congress demonstrates a persistent and somewhat surprising interest in asserting an independent, distinctive constitutional voice, although it has somewhat conflicted and underdeveloped views about how to achieve this objective. While this essay points to significant barriers to fostering a coherent and forceful congressional presence in constitutional decision making, it also suggests institutional organizations and strategies that may be promising bases for promoting this goal.     

How Bureaucracies Listen to Courts: Bureaucratized Calculations and European Law

The European Court of Justice, and courts in general, were key actors in the creation of the European Union (EU). However, they cannot change major policy without political supporters to lobby and litigate for implementation. We argue that part of the resolution of this apparent paradox comes from complementing existing work on the activities of EU courts and litigants with a focus on a third actor: implementing bureaucracies, whose effect on law and politics has not been a focus of studies of EU legal development. Their calculations about whether to pay attention, lobby, and comply shape the impact of the law. Those calculations are variable and patterned; when and how bureaucracies listen to courts varies in predictable ways. We find evidence for this proposition in the case of EU health care services law, both in the secondary literature and in empirical studies of France and Spain.     

The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions

Drawing upon an analysis of the political vectors behind constitutional reform in Israel (1992), Canada (1982) New Zealand (1990), and South Africa (1993), the article suggests that the trend toward constitutionalization in culturally divided polities has not been adequately delineated by extant theories of constitutional transformation. An examination of the political origins of these four constitutional revolutions suggests that judicial empowerment is in many cases the consequence of a conscious strategy undertaken by threatened political and economic elites seeking to preserve their hegemony vis-a-vis the growing influence of "peripheral" groups in crucial majoritarian policymaking arenas. In response to perceived threats by peripheral groups, elites who possess disproportionate access to and influence upon the legal arena often initiate a constitutional entrenchment of rights in order to insulate policymaking from popular political pressure. Power is transferred from majoritarian decision-making arenas to national high courts, where they assume their policy preferences will find greater support. This process of conscious judicial empowerment is likely to occur (a) when the judiciary's public reputation for political impartiality and rectitude is relatively high and (b) when the courts are likely to rule, by and large, in accordance with the cultural propensities and policy preferences of the traditionally hegemonic elites.     

Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation

What role do litigation and trial court decisions play in shaping policy? This article explores that question by examining recent litigation against tobacco manufacturers filed by state attorneys general, plaintiff lawyers in class actions, lawyers for cities, unions, health plans, individual smokers, and others. I suggest how this litigation contributed to agenda setting, new ways of defining the problem, of tobacco and the policy alternatives, political mobilization, new legal norms, and new political and legal resources for opponents of tobacco. Addressing theoretical debates about the power of the courts to effect change, I distinguish between causal and constitutive arguments and suggest how both can be incorporated in social analysis.     

The European Court of Human Rights,Amicus Curiae,and Violence against Women

Are international courts and advocacy group legal mobilization shaping human rights politics? This question poses a theoretical and empirical challenge to state dominated understandings of international litigation. This article theorizes the interaction between advocacy groups and the European Court of Human Rights and the role this participation plays in the enforcement and development of human rights. The analyses examine institutional factors shaping broad trends in mobilization complemented by two in depth studies examining a single mode of participation, amicus curiae and a single area of law, violence against women. The data identify the critical role standing rules, court review powers and group expertise play in transnational rights mobilization and development. The findings bring into question dominant understandings of international law and contribute to a more complex understanding of law in a global age where international courts and societal actors are shaping the direction of rights protection.     

美国司法政治变迁的内在逻辑——从“罗伊案”说开去

美国的司法政治是司法与政治交互作用的产物。随着司法权的扩张,联邦最高法院突破"政治问题不审查"之传统,主动或被动地介入政治争议;随着政党对峙的尖锐,政治力量乐于将棘手的政治争议交由司法裁断;藉此,司法政治演变为常态政治,司法判例成为经久不衰的政治争点。自上个世纪70年代以来,围绕罗伊案半个多世纪的争议,不仅客观地暴露了美国司法政治发展的内在逻辑,而且也充分地展示出司法政治在美国的作用方式和涵摄空间。     

From Marx to Market: Lawyers,European Law,and the Contentious Transformation of the Port of Genoa

What happens when international courts are asked to tackle local political controversies and their judgments subsequently spark contentious resistance? In the European Union (EU), scholars have posited that the politicization of the often‐liberalizing rulings of the European Court of Justice (ECJ) provokes Euroscepticism and noncompliance. In contrast, I argue that contentious politics may also produce permissive conditions for activist “Eurolawyers” to promote awareness of EU law and mobilize support for liberalization. To unpack this claim, I conduct an intensive case study of perhaps the most explosive controversy in Italy to generate litigation before the ECJ: The 1991 “Port of Genoa” case, where the public monopoly rights of a centuries‐old dockworkers' union were challenged. Leveraging interviews, court and newspaper records, public opinion data, and litigation statistics, I trace how—despite dockworkers' vigorous resistance—a pair of entrepreneurial lawyers liberalized Italy's largest port by combining strategic litigation with a public relations campaign to mobilize a compliance constituency. I conclude with insights the case study offers into the contemporary politics of transnational governance.     

National Constitutional Courts in supranational litigation: A contextual analysis

The article examines the role of national constitutional courts in supranational litigation. It firstly illustrates their value and situates well‐known judicial doctrines affecting their jurisdiction in the context of the normative claims, policy agenda and institutional framework promoted by the European Union. Against this background, it gauges the potential of national constitutional courts in countering the process of intergovernmental and technocratic encroachment of national constitutional democracies characterising the most recent evolutionary stages of the European integration process. It is claimed that constitutional courts are in the position of reinforcing, resisting or correcting Union measures with a detrimental impact on national constitutional principles. After having identified in correction the approach more coherent with their constitutional mandate, the article highlights a disturbing paradox: in remaining faithful to their constitutional role, constitutional courts contribute to the sustainability of a comprehensive institutional setting corroding the idea of constitutional democracy on which they are premised.     

Collective Litigation and the Constitutional Challenges to Decriminalizing Homosexuality in Singapore

This article examines collective legal mobilization through the courts, or collective litigation, in a non‐liberal regime. It analyses the emergence and development of collective litigation to challenge the constitutionality of section 377A of the Penal Code, the law that criminalizes same‐sex sexual conduct in Singapore. The analysis focuses on the relational dynamics of collective litigation and legal subjectivities of the social actors involved, highlighting how social positions and strategic interests shaped their interactions and decisions on litigation. While gay rights activists emphasized their movement's collective interests when choosing the appropriate case and lawyers, a movement outsider pursued individual interests on behalf of a client. Due to their divergent social positions and strategic interests, the two teams competed with each other as they initiated two separate constitutional challenges. Tension between the teams led to conflict with constituents of the gay rights movement and influenced their relational dynamics with other parties.     

'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.     

In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place

I aim to shed theoretical light on the meaning of judicial dialogue by comparing its practice in different jurisdictions. I first examine the practice of dialogic judicial review in Westminster democracies and constitutional departmentalism in American constitutional theory, showing the tendency toward judicial supremacy in both cases. Turning finally to continental Europe, I argue that the practice of constitutional dialogue there is reconciled with its postwar tradition of judicial supremacy through the deployment of proportionality analysis‐framed judicial admonition. I conclude that constitutional dialogue may take place amid the judicialization of constitutional politics, albeit in the shadow of judicial supremacy.     

Public Law and Popular Justice

Group litigation is becoming commonplace. Rules of standing have been relaxed to allow groups to bring representative actions on behalf of their members or to act 'in the public interest'. Groups increasingly intervene in actions between third parties, presenting amicus briefs. This article traces the origins of group action in courts and speculates on the possible effects of changes which blur traditional distinctions between legal and political process, concluding that the legal process must be kept broadly within traditional boundaries, if the qualities of independence, rationality and finality for which it is valued are to be maintained.     

论违宪审查在东欧国家转型中的作用

东欧转型在法制方面的一项重要内容是普遍建立以宪法法院为审判机构的集中违宪审查制度。宪法法院通过对宪法文本中法治原则的阐释以实现国家转型的法治目标。宪法法院阐释的法治原则内容具体包括法的安定原则、分权原则、合比例原则、司法独立原则和基本权利司法救济保障原则等五项原则。     

我国建立纳税人诉讼的几个问题

纳税人诉讼是指以纳税人身份对政府的违法公共支出行为等向法院提起的诉讼。人民主权、保障人权、税收价格论为纳税人诉讼提供了理论基础,我国宪法赋予公民监督权的规定则是其法律依据。法治发达国家普遍建立了纳税人诉讼,并开展了丰富的诉讼实践。我国建立纳税人诉讼是保护公民私有财产权、建设公共财政和法治政府、推进宪政国家建设的重要保障,具有现实迫切性和深远意义。应当在行政诉讼法的修改和税法通则的制定中,对纳税人诉讼的受案范围、原告资格、举证责任等作出特别规定。     

Ladders and Bushes: The Problem of Caseloads and

The "litigation explosion" has been a frequent topic of concern in both academic circles and the popular press. This idea draws its polemical power from the assumption that litigation rates were lower in the past. But we presently know little about long-term trends in court activity. This article is a critical review of the existing literature on long-term litigation trends and the social development model which scholars have posited to explain changes in litigation patterns. Whether courts are indeed facing imminent crisis because of an explosion is still very much an open question; the extant literature offers no proof of an explosion. The available data do suggest, however, that previous studies may have been overly optimistic in expecting litigation trends to follow any single pattern. The questions about litigation rates will remain open until we are able to gain a fuller understanding of the trends in court activity over time.     

Democracy,social capital and school governing bodies in South Africa

Critics of school governing bodies (SGBs) – both on the left and on the right – tend to rely upon arguments that ignore significant portions of the act that created SGBs – the South African Schools Act (SASA) – the exact nature of the changes to SGBs wrought by amendments to the act and the manner in which the courts, in interpreting the act, have both reinforced the autonomy of SGBs at the same time as they have set limits on those powers. The authors’ reading takes seriously all of the provisions of SASA, its amendments and various court constructions of SASA's provisions. This close reading of the South African Constitution, SASA, SASA's amendments and the case law reveals the lineaments of a fourth level of democratic government. Even with their uneven success as a fourth tier of democratic government, SGBs reflect, in many respects, the most important interactions that citizens have with the state. The authors contend that SGBs provide a vehicle for popular political participation that is quite real, and that participation is made no less real by the strictures imposed upon them by South Africa's constitutional and regulatory order. Despite concerns about their lack of capacity, SGBs enjoy popular acceptance and participation across class and language divides. The legal status of SGBs does not merely enhance various forms of local democracy, SGBs also maintain and create effective social networks that generate new stores of social capital. The ability to provide new forms of democratic participation and to create new stores of social capital suggests that SGBs have the makings of a great, new and rather unique ‘South African’ political institution.