Governors and “Their” Deputies: New Legislative Principals in Mexico

Many studies on legislatures around the world have not detected a regional voting dimension. Yet governors are often important political figures and can exert strong influence on state politicians. From an analysis of the Mexican legislature, I determine that governors hold important resources that ambitious politicians need in a system with no consecutive reelection. Mexican governors use their power over federal deputies to prod their agents, the caucus leaders, into working for their states' interests on fiscally relevant issues, especially the annual budget. On all other issues, the governors delegate their deputies' votes to the party's legislative leadership.     

Constitutional judicial review and political insurance

Considering constitutional judicial review of policy, the power of courts to annul legislation, as a political insurance mechanism to protect against losses from adverse election outcomes, the paper analyzes three questions: First, under what circumstances a political ruler, who wins an election and the right to propose measures of policy, subjects those measures to the checking powers of an independent judiciary. Second, the net expected gains of a political ruler from granting binary choice to the reviewing judiciary rather than open choice. Third, the equilibrium degree of policy review power granted to the judiciary. Differences in the policy preferences of competing politicians, the judiciary and the status quo, the probability of winning an election and the probability that the judiciary confirms legislation passed by the incumbent emerge as the main determinants of judicial review and its political independence.     

Judicial Review Without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review

This article addresses an issue overlooked in most of the literatureon judicial review: the legitimacy of judicial review of a constitution'sfederal and structural provisions. Debates about the legitimacyof judicial review—at least as conducted throughout theCommonwealth—are usually focussed on rights. These debatesappear to assume that the power of courts like the AustralianHigh Court and the Canadian Supreme Court to interpret and enforcefederal and structural provisions is unproblematic. This articletests that assumption and concludes that those who hold democracy-basedobjections to constitutional rights should seriously reconsider,and perhaps oppose, federal and structural judicial review aswell.     

Constitutional Judicial Review in the Russian Federation

The institution of constitutional judicial review has acquired a new legal foundation for its application: the Constitution of the Russian Federation (RF), adopted on 12 December 1993; the federal constitutional Law on the Constitutional Court of the Russian Federation of 21 June 1994; and other acts. However, the opportunities for full implementation of this new legislation on constitutional judicial review in the Russian Federation are constrained by problems from the past: first of all, by the problem of depoliticization, which has assumed exaggerated proportions as a result of the lack of practical success that marked the first stage of the Constitutional Court's operation in Russia. The resolution of this problem has become a condition for the viability of specialized constitutional judicial review in the RF. The difficulty of understanding and mastering this problem is further aggravated by the ambiguous nature of the institution of constitutional judicial review, not only in the Russian model but also in the classical model of its organization. For it is indisputable that constitutional judicial review is a component of the mechanism of judicial authority, regardless of where it is situated in the constitutional structure of power. However, constitutional judicial review cannot be wholly equated with traditional judicial functions since it is at the same time also a political activity undertaken through a jurisdictional form.     

Legal Reasoning and the Separation of Powers: A State-Level Analysis of Disputes Involving Federal Funds Appropriations*

This article investigates the influence of judicial decisions on state legislative oversight of federal funds. A systematic analysis of judicial decisions is undertaken in an effort to reveal (a) the extent to which such activity on the part of legislatures is permitted or denied by courts, and (b) the nature of legal reasoning that determines differential outcomes. The analysis reveals, among other things, that there are two divergent paths of law: one upholding the legislative prerogative to exercise the power of the purse, and the other upholding the executive function of governors to act as custodians and executors of federal funds and programs. The delegation of legislative powers to interim committees is likewise investigated.     

‘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.     

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.     

美国宪法诉讼制度的权力制衡功能

宪法诉讼作为违宪审查的一种主要形式,以权力分立制衡原则为政治理论基础,其直接功能就是实现政府权力的制约与平衡.美国的宪法诉讼制度实现了权力制衡的宪政理念,并通过法院尤其是联邦最高法院在宪法诉讼过程中采取司法能动主义或司法节制的立场实现了权力的动态制衡,使宪法诉讼成为权力制衡的一种有效和有力的手段.     

Administrative "health courts" for medical injury claims: the federal constitutional issues

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals to replace traditional medical malpractice litigation in state courts with a federal system of administrative "health courts." In doing so, we address the following constitutional issues: 1. Is there federal authority to preempt state law (the commerce clause and spending clause issues)? 2. May jurisdiction be created in non-article 3 tribunals, and may claims be decided without trial by jury (the separation of powers and Seventh Amendment issues)? 3. Would pilot programs that require some claims to be pursued in a federal administrative forum while other claimants are left to pursue traditional state tort law remedies be constitutional (the equal protection issue)? The article concludes that a federal compensation system through administrative health courts should be constitutional provided the statute is appropriately drafted and that appropriate factual findings are made concerning the benefits to patients and the public as well as to doctors and their insurers.     

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.     

Taking the Constitution Out of the Common Law: Political Libels and Freedom of Communication in Australia

This paper argues that English courts should adopt a recent Australian innitiative in the area of political libels. It is suggested that English law is at present too accommodating to defamed politicians and insufficiently sensitive to the need to foster freedom of political expression. The paper contends that Australian law, unlike similar rules found in American constitutional law, offer our courts an unproblematic way to re-order this aspect of our common law in a fashion that better serves the political values of transparency and accountability within the government process.     

Informal Institutions and Judicial Independence in Paraguay, 1954–2011

This article explains how informal institutions have prevented the emergence of autonomous judges in Paraguay between 1954 and 2011. The central argument is that co‐optation, clientelism, and judicial corruption considered as informal institutions, rooted during the dictatorship, have impeded the appearance of an independent judicial branch in the democratic regime. To test this hypothesis, the article relies on historical narratives, surveys, and semistructured interviews. The conclusions suggest that in countries that have experienced the consolidation of informal institutions oriented toward maintaining the ties of subordination of judges to politicians, constitutional reforms and fragmentation of political power are necessary but not sufficient conditions for improving judicial independence.     

Constitutional Limitations on State Tax Exportation

The notion that there are constitutional limitations on the power of the states to export their tax burdens to residents of other states has been the predicate of recent court challenges to state taxing schemes. The concept of state tax exportation and its implications for constitutional analysis have not, however, been systematically explored by the courts. The economics of state tax exportation suggest that a judicial inquiry into the extent of state tax exportation would be a formidable if not an insuperable task. And the Supreme Court, when recently confronted with an opportunity to constitutionalize a principle of excessive state tax exportation, flatly declined to do so. It is nevertheless possible that the concept of state tax exportation may have a role to play in constitutional analysis as a vague admonition to the states not to transgress some yet to be defined norms of fiscal balance in our federal system.     

Adjudicating Executive Privilege: Federal Administrative Agencies and Deliberative Process Privilege Claims in U.S. District Courts

Government transparency is a key component of democratic accountability. The U.S. Congress and the president have created multiple legislative avenues to facilitate executive branch transparency with the public. However, when the executive branch withholds requested information from the public, the federal judiciary has the power to determine whether agencies must release documents and information to requestors. When enforcing standards of executive branch transparency, judges must balance concerns of executive autonomy and judicial intrusion into administrative decisionmaking. While much judicial scholarship focuses on the decisionmaking on high courts, in the U.S. context, federal district courts play a key role in adjudicating transparency disputes. In this article, I examine case outcomes in disputes involving agency claims of deliberative process privilege over internal agency documents litigated between 1994 and 2004. I find that U.S. federal district courts largely defer to administrative agencies in transparency disputes. However, factors such as agency structure and the congruence between judicial and administrative agency policy preferences influence whether federal judges require executive branch officials to release requested information.     

Constitutional Directives: Morally‐Committed Political Constitutionalism

About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with the legitimacy of judicial review and hostility to constitutionalising thick moral commitments other than basic rights. This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation—through increasingly sophisticated mechanisms designed to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state's constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.     

The Year 2015

Russian politics in 2015 was characterized by a continuation and strengthening of the lines of development first announced in the previous year. The chief trends in political development included a growing personalism and progressive deinstitutionalization of the Russian political system, the degradation of elections and of the judicial system, and the de facto dismantling of local self-government. The political elite underwent a radical shift in power, changing its overall configuration and enhancing the role of heads of the security forces. This coincided with the activation and strengthening of the apparatus of repression and an increase in pressure on regional elites, with continuing replacement of governors and of managers of state corporations.     

Judicial Activism in Perilous Times: The Turkish Case

Under what circumstances do courts act in ways that challenge the political hegemony of the military in countries with weak democratic institutions? This article addresses this question by focusing on a critical case of judicial activism in Turkey. It argues that lower courts unexpectedly can be centers of judicial activism that contributes to expansion of civil liberties and restrictions on arbitrary state power when the high judiciary supports the political status quo. This is because lower courts provide greater access to legal mobilization pursued by civil society actors. At the same time, judicial activism in lower courts is sustainable only when political power is distributed among elites with conflicting interests, and the civilian government offers support and protection to activist members of the judiciary.     

Social Network Analysis and the Diffusion of the Strict Liability Rule for Manufacturing Defects, 1963–87

This article reports the results of a study that uses social network analysis to compare the persuasiveness of legal precedents in the diffusion of the strict liability rule for manufacturing defects. This new study tests which legal precedents were most influential and also whether certain state judicial variables influenced the diffusion process. The results are striking. The federal circuit regions appear to define an important reference group in the diffusion process, and social network effects dominate economic and political variables. In addition, the de facto separation of powers in the enactment of new state legislation appears to influence courts' propensities to adopt the strict liability rule. When the executive and legislative branches were controlled by the same political party, regardless of whether it was Republican or Democratic, state courts were more inclined to adopt the strict liability rule.     

"Constrained" Constitutional Courts as Conduits for Democratic Consolidation

Many constitutional courts, particularly in Central and Eastern Europe, have more power than the "constrained court" model of judicial decisionmaking suggests because they operate in an increasingly international environment. By analyzing the Estonian Supreme Court's adjudication of minority linguistic rights, we show how even a new court can act as a "conduit" for democratic reform by identifying for legislators national constitutional paths along which domestically disliked but internationally defined democratic reforms can be pursued, preserving national integrity while acknowledging international reality. International pressures, while constraining courts, thus can free them from national constraints while allowing them to imprint their own vision.     

The Effects of National and Local Funding on Judicial Performance: Perceptions of Russia's Lawyers

Courts that perform well are the cornerstone of the rule of law and democratic development. When courts are perceived as legalistic, fair, impartial, and independent of the influence of extrajudicial actors, aggrieved individuals are more likely to pursue litigation over other, potentially unlawful, alternatives. Using original data from surveys of more than 1,800 randomly sampled lawyers in 12 Russian cities, we investigate the effects of perceived government funding and power diversification on a variety of indicators of perceived judicial performance. We find that, according to lawyers, financial dependence on the national government has no independent effect on judicial performance, but financial dependence on local governments has consistently significant negative effects. We also find that diversified political power has consistently significant positive effects on perceived judicial performance, probably because the diversification makes courts seem less vulnerable to unified pressure from political actors.