Models of judicial administration and the independence of the judiciary: a comparison of Romanian self‐management and the Czech executive model

The Rule of Law is a necessary condition for economic, social and political development in countries undergoing transition from authoritarianism to democracy. The Rule of Law requires an independent judiciary, one that is impartial and insular. In Eastern Europe democratic transition has produced two models of judicial administration: judicial self‐management and the executive model. Romania is a case of the former, the Czech Republic an instance of the latter. Comparison of the two cases suggests that while political developments are important to the preservation of judicial independence, the consolidation of democracy and the organisation of the judiciary are in a reciprocal relationship. The organisation of the judiciary is necessary for the legislative transparency and oversight of the executive branch which in turn guards against the politicisation of judicial management, with its adverse consequences for the independence of the judiciary and ultimately the Rule of Law. Copyright © 2008 John Wiley & Sons, Ltd.     

THE ROLE OF THE JUDICIARY IN RELATION TO PUBLIC ADMINISTRATION*

The relationship between the judiciary and public administration is founded in the constitutional principles which lie at the basis of our system of government. The three branches or arms of government, as they are known to constitutional law, are the legislative, the executive and the judicial. They are said to be equal and coordinate. There is a complex constitutional relationship between the three arms of government which does not always follow a consistent pattern. It is marked somewhat paradoxically both by mutual independence and interdependence. Public administration is carried on by the executive branch.     

Medicaid Managed Care for Children with Special Health Care Needs: Examining Legislative and Judicial Constraints on Privatization

Over the past decade, much has been written about the results of reinventing government. Most research has examined the effects of executive or managerial perspectives. Using David Rosenbloom's competing perspectives model, we examine Medicaid managed care programs for children with special health care needs to illustrate the influence of legislative and judicial institutional perspectives on the reinvention movement. Legislative and judicial responses to the reinvention of Medicaid managed care reveal the outer limits of what managed care and related executive reforms can accomplish in a Constitutional system that is based on checks and balances among competing institutional perspectives. Furthermore, relative to Medicaid managed care, legislative and judicial responses conserve public responsibility to society's most vulnerable populations. In the long run, the balance of institutional perspectives and values—not managerial innovation per se—will influence public administration.     

Constitutional courts as veto players: Divorce and decrees in Italy

Abstract. This article argues that constitutional courts in Western European parliamentary systems should be integrated into discussions of how public policies are changed, rather than being viewed as an external veto point. It attempts to bridge a gap between a judicial politics literature that focuses on the micro–level of individual judges' votes and comparative scholarship that operates at the macro–level. A model for viewing constitutional courts as veto players, as a third institutional actor, is proposed and is then illustrated using the cases of legalizing divorce and blocking the executive reissuing decree laws in Italy. The model considers both the indirect and direct influences that constitutional courts can exert on the policy–making process. It also facilitates understanding and explaining the role of courts, as well as legislatures and executives, in conducting the interactions and bargaining that result in policy change.     

Looking Back to Move Forward: Quantifying Policy Predictions in Political Decision Making

Policy makers constantly face uncertainty, which makes achieving their goals problematic. To overcome this uncertainty, they employ tools to drive down uncertainty and make probabilistic decisions. We provide a method for scholars to assess empirically how actors make probabilistic predictions. We focus on the interactions between the executive and judicial branches, analyzing the conditions under which justices force the United States to provide them with information. Our approach generates substantive knowledge about interbranch behavior as well as a methodological innovation available to scholars who study political decision making under conditions of limited information.     

Checks, Balances, and Appointments in the Public Service: Israeli Experience in Comparative Perspective

This article explores the process of appointing government ministers and senior executive officials in Israel. It provides several case studies of the appointment process in the 1990s, a period of hyperfragmentation in the Israeli parliament. These studies reveal evidence of gross irresponsibility in the appointment process, as well as a lack of a meaningful oversight and checks in the process. One consequence is that the Israeli High Court was asked to intervene and review and reject a number of these appointments. The article argues that although well meaning, this intervention represents a dangerous new trend; this new role for the Courts is both inappropriate and counterproductive. It is inappropriate because judicial intervention imposes a legal solution when a political solution is called for, and it is counterproductive because frequent judicial intervention weakens both the judiciary and the political process. The article concludes with a proposal for an alternative approach to cope with the lack of meaningful oversight in the political-appointment process.     

The Elusive Search for Presidential Power

Unilateral presidential actions, such as executive orders, are widely cited as a key strategic tool for presidential power. However, is unilateral action evidence of unilateralism or might it represent executive acquiescence? We answer this by (1) specifying three competing models, each with a different presidential discretion assumption and generating alternative hypotheses; (2) extending the canonical item‐response model to best measure executive‐order significance; and (3) comparing competing theoretical models to data for 1947–2002. Theoretically, we show that legislative preferences may impact unilateral actions differently than previously thought and indicate how parties may be influential. Empirically, a model where the president is responsive to the chamber's majority‐party median fits the data better than models assuming responsiveness to the chamber median or no presidential acquiescence. Unilateral action appears not tantamount to presidential power, as evidence implies that legislative parties, or the judicial actors enforcing their will, are key conditioning factors.     

The Referendum, the Courts and Representative Democracy in Ireland

This article examines the four referendums held in Ireland between 1983 and 1987. Special emphasis is placed on the constitutional framework. It is argued that the 1937 Irish Constitution created a tension between representative democracy and judicial review. as well as between parliamentary supremacy and sovereignty of the people. This is encapsulated in Article 6.which states that all executive, judicial and legislative authority is derived from the people under God. This article was used by the Supreme Court to strikedown legislation which precipitated the 1984and 1987 referendums and to refuse injunctions in the 1983 and 1986 referendums. Finally, the four referendums were called in response to interest group pressure and Supreme Court decisions, which indicates shifts in Ireland away from the traditional Westminister model that has operated in practice in Ireland since 1922.     

服务型政府建设过程中的互动关系探讨

服务型政府建设是一项比经济体制改革更为艰巨的系统工程，政府在这项工程中无可争议地处于“主角”地位，但“主角”绝非“独角”。服务型政府建设只有在党和政府、中央政府和地方政府、行政机关和立法机关、行政机关和司法机关、政府和社会的双向互动中，通过循序渐进的方式得以实现。     

论违法之法的实体判断标准

依合法之法行政是依法行政的重要组成部分，因而，发现违法之法，适用合法之法不仅仅是立法机关的权力，行政机关的依法行政对此也不能置若罔闻。司法机关的司法审查制度与行政行为具有同样的要求，虽然他们都无权撤销相应立法，但他们必须正确适用法律，因而就必须掌握判断技术。由于司法审查的不足，这些技术在当今的研究中并未受到重视。     

Parliament without Government: The Belgian Parliament and the Government Formation Processes of 2007–2011

Parliamentary systems are characterised by strong links between the executive and the legislature. While the importance of executive–legislative relationships is well-known, the extent to which executive dominance affects parliamentary behaviour is hard to grasp. This study uses the recent institutional crises in Belgium to study parliamentary behaviour in the absence of a government with full powers. Cabinet formation in Belgium has proved to be protracted in recent years, leading to long periods of government formation in both 2007–2008 and 2010–2011. Such circumstances provide a unique comparison between normal situations of parliament in the presence of government, and exceptional situations of prolonged periods of caretaker government. In particular the article looks at three aspects of parliamentary behaviour that are usually linked to executive–legislative relations: legislative initiatives, voting behaviour and party unity. The general hypothesis is that prolonged periods of government formation gave parliamentarians more opportunities to influence the legislative process and more (ideological) freedom. The results show a nuanced picture: parliament became more pro-active, the salience of the government–opposition divide declined, while party unity remained as strong as ever. It is concluded that government formation processes did not lead to drastic changes in the legislative–executive relationship, but rather permitted a modest correction to the extremely weak position of parliament.     

Judicial politics in Britain: Patrolling the boundaries

This study considers judicial policy‐making in Great Britain by noting the peculiarly British institutional restraints on judicial action of parliamentary sovereignty, the resulting subordination of all courts to the legislative branch and the absence of a codified charter of rights or constitution. Though there is no judicial power to annul legislative or executive actions, British courts and judges still play a small, but significant, role in policy‐making through the common law and, in particular, through judicial review of adminstrative actions. A written bill of rights would likely draw courts further into the the political arena and politicise the appointment of judges.     

Government Selection and Executive Powers: Constitutional Design in Parliamentary Democracies

Provisions for a parliamentary investiture vote have become increasingly common in parliamentary democracies. This article shows that investiture provisions were largely introduced when new constitutions were written or old ones fundamentally redesigned. It also shows that the constitutions that endowed executives with strong legislative agenda powers also endowed parliaments with strong mechanisms to select the executive. It is argued that constitution makers’ decisions can be seen in principal–agent terms: strong investiture rules constitute an ex ante mechanism of parliamentary control – that is, a mechanism to minimise adverse selection and reduce the risk of agency loss by parliament. The findings have two broad implications: from a constitutional point of view, parliamentary systems do not rely exclusively on ex post control mechanisms such as the no confidence vote to minimise agency loss; parliamentarism, at least today and as much as presidentialism, is the product of conscious constitutional design and not evolutionary adaptation.     

REMEDIES WITHOUT RIGHTS? THE LEGAL BASIS OF BROAD-GAUGE DECREES IN PRISON CONDITIONS CASES

This paper examines the legal basis for "broad-gauge" or "administrative intervention" decrees in the sort of lawsuits which have come to be known as extended impact cases, polycentric disputes, or public law litigation. It concludes that equity provides an adequate basis for such decrees and that the Supreme Court's recent use of a narrower view of judicial equity powers, sometimes called the tailoring principle, is not compelled by precedent. The paper further argues that the Supreme Court appears headed in the direction of using the tailoring principle in prison conditions cases (e.g., Bell v. Wolfish ), although some support for a broader view of judicial equity power is found in Hutto v. Finney .     

The Politics of Court Budgeting in the States: Is Judicial Independence Threatened by the Budgetary Process?

Judicial independence in American politics has been hailed as a means of preserving individual liberty and minority rights against the actions of the majoritarian branches of government. Recently, however, legal professionals and scholars of the courts have begun to question the magnitude of judicial independence, suggesting that budgeting and finance issues pose a threat to judicial independence. This article explores whether state judiciaries are being threatened on this front by soliciting the perceptions of key state officials. Using surveys of court administrators, executive budget officers, and legislative budget officers in the states, we examine three aspects of the politics of judicial budgeting: competing for scarce resources, interbranch competition, and pressure to raise revenues. The survey responses suggest that, in a substantial number of states, judicial independence has, at times, been threatened by interbranch competition and pressures to raise revenues.     

关于公安机关“追缴赃款赃物及退赃“措施的法律分析

赃款赃物的性质只能够由国家授权的特定司法机关或者行政执法机关通过法定程序作出的生效裁决来确定,这是认定赃款赃物在程序上的决定性要件。公安机关在侦查阶段不能够称其扣押或者调取的物品为赃款赃物,追缴赃款赃物更是荒谬,因为其本身没有法律依据。针对“赃款赃物”及其追缴措施,应当通过完善刑事诉讼法、制订有关司法解释来解决和完善。     

State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement

Most state constitutions contain detailed restrictions on thelegislative process. Violations of some of these restrictions(e.g., single-subject requirements) are reflected on the faceof a final enactment. Other violations (e.g., alteration ofa bill to change its original purpose) are not evident in thefinal enactment, but require investigation of the legislativeprocess. State courts have developed a variety of approachesto these second types of violations, from excluding all evidencebeyond the enactment to permitting any evidence of constitutionalviolations. The Pennsylvania Abortion Control Act was passedin apparent violation of both types of constitutional restrictions.The legislative debates reflected legislators' attitudes aboutsuch restrictions, but the Pennsylvania courts refuse to enforcethem. After surveying other judicial approaches, the articlediscusses the legislative and executive obligation to followconstitutional restrictions, regardless of judicial enforcement.The article then advocates increased judicial enforcement, whilemaintaining proper deference to the legislature.     

Refusing to be Sidelined: The Engagement of the Finnish Eduskunta in Foreign Affairs

It is often argued that foreign and security policy is dominated by the executive, with parliaments wielding marginal influence. However, as legislative‐executive relations in the realm of foreign and security policy have attracted remarkably little scholarly attention, there is a demand for subjecting the alleged executive drift in foreign affairs to careful empirical scrutiny. There is also a need to examine whether and how parliamentary politics in foreign affairs differs from domestic or European matters, both regarding control mechanisms and party competition. The notions of ‘executive dominance’ and ‘politics stopping at the water's edge’ certainly point in the direction of less active control and casting aside public partisan differences in favour of providing domestic support for the government. A case study of the Finnish Eduskunta forces us to reconsider such arguments. This article examines the multiple instruments members of parliament (MPs) have for becoming involved in foreign affairs, from participating in the formulation of the national ‘grand strategy’ document to ministerial hearings in the committees. It also provides strong evidence of the Europeanization of national foreign policies, with matters relating to the foreign policy and external relations of the European Union (EU) in a central role in the Foreign Affairs Committee. Parliamentary culture is consensual, especially in security policy, but there is nonetheless greater room and willingness for party‐political contestation in foreign affairs.     

Executive Orders and Administrative Control

One of the key recommendations of the Winter Commission was the empowerment of governors over the executive branch. However, key institutions have not evolved in this direction; the long ballot still exists in most states, and the formal powers of governors have strengthened to their probable capacity. The authors suggest that a quasi‐formal power—the gubernatorial use of executive orders—may be a significant tool for empowering the governor in the state administrative realm. Analyzing all executive orders in 49 states for 2004 and 2005, they find variation in the aggregate use of and functions performed through these orders. Many executive orders do allow the government more direction and control of state bureaucracy. Finally, the authors suggest that the study of executive orders may be necessary to understand gubernatorial power in the executive arena and beyond.     

Court pedagogies and the construction of passive ordinary citizens in the French banlieue

ABSTRACT

This article contributes to conceptualizations of the pedagogical state by analyzing judicial spaces, beyond the courtroom, as key sites of citizenship formation. I explore pedagogical sessions organized by a judicial structure in France, whose geographical proximity to seemingly non-integrated populations in the banlieue allows it to teach them the laws, rules, and institutions that support citizenship. I argue that the pedagogical court seeks to construct governable ‘passive ordinary citizens’ whose main duty is to embody and practice the basic rules of socialization – respect for others and the rule of law – in their ordinary lives as a strategy of crime prevention. In that sense, courts are able to redefine not only the procedural but the substantive elements of citizenship as well.