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.     

Contractualism, Democracy and Ethics

Contractualism, as concept and practice, may be defined in different ways (Yeatman 1995, 1998). In this article I am concerned with contracting out or outsourcing as it is otherwise known. That is, I focus upon the process whereby functions undertaken formerly by government are now performed by private or voluntary organisations in a contractual relationship with public service departments and agencies. Whereas departments and agencies once provided a full panoply of services directly, government purchasers now select providers by tendering competitively for an expanding range of employment, education, health, social welfare and local government services. Contractualism, then, involves the recon-figuation of public service provision to favour quasi-commercial rather than bureaucratic forms.     

Federal Constitutional Power Over the Economy

This article examines the non-fiscal powers of the federal Parliamentof Australia to make laws to control the economy. Although thecommerce power in Australia was inspired by that in the U.S.Constitution, the High Court of Australia has not followed theliberal interpretation of the commerce power adopted by theU.S. Supreme Court since 1937. However, other express federalpowers, particularly those relating to corporations and externalaffairs, have been used for purposes that in the United Stateswould be encompassed by the commerce power. While the AustralianParliament does not have the degree of power possessed by Congress,the judicial trend is toward broader interpretations of federalpowers. Also discussed is Section 92 of the Australian Constitution,which declares that "trade, commerce and intercourse among theStates shall be absolutely free." This provision, which limitsboth federal and state power, was interpreted for many decadesas embodying the principle oflaissezfaire. In 1988 the HighCourt of Australia held that its scope is limited to prohibitinglaws that discriminate against interstate commerce with a protectionistpurpose or effect.     

Potentials and limitations of executive leadership: the Austrian cabinet since 1945

Abstract. This article analyzes the Austrian cabinet along the representation-efficiency and the leadership-collective decision-making dimensions. After outlining the respective traditions of the Austrian cabinet some information about the personal styles of Austrian chancellors and their respective ability for leadership is provided. Some aspects of pre-ministerial careers are analyzed in terms of the representation-efficiency dimension, while a discussion of cabinet life tries to detect indicators for the systematic analysis of the leadership-collective decision-making dimension. The final section links the two dimensions: in the Austrian case high leadership efficiency on the one hand and collective decision-making representation on the other appear to be positively correlated.     

Institutional Legitimacy Building in a Context of Transition: The South African Land Claims Court

The success of societal transformation often depends on the legitimacy of the government institutions developed to mediate the transition. This article examines one case of institutional development and legitimacy building, the South African Land Claims Court. Formed in 1996 to help South Africa resolve land-claim concerns that surfaced as the nation transitioned to a postapartheid society, the court demonstrates the challenges of developing an institution in the context of large-scale societal transformation, reconciliation, and governmental legitimacy building. By tracing the evolution of the court and analyzing its first five years of activities, the article presents the challenges and opportunities of legitimacy building for entities working in transitional political and administrative settings.     

State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term

During its 1988 term, the U.S. Supreme Court addressed two importantaspects of the Eleventh Amendment, which generally protectsstates from being sued in federal courts. First, the Court heldthat the Congress has power to abrogate states' immunity fromsuit—to subject states to suits in federal courts fordamages—under Congress' expansive commerce-clause power.Second, the Court made clear that such abrogation would be foundonly where the text of the statute itself, as distinct fromits legislative history, clearly and specifically so provided.This article describes these decisions, and analyzes some oftheir implications for judicial federalism.     

Institutional Mismatch and the Inevitably Failed Operation of Section 46 of the Trade Practices Act

Following a series of narrow interpretations by the High Court of Australia, s 46 of the Trade Practices Act 1974 (Cth), has been rendered inoperable. The legislative provision seeks to prevent corporations from ‘misusing their market power,’ and is concerned with one of the long standing questions in political economy: the role of the government in the market. This article establishes that s 46 has inevitably failed as a consequence of institutional mismatch between the interpretive expectations that parliament has of the courts, and the limits of discretion in judicial interpretation.     

The Fragility of the EU as a ‘Community of Values’: Lessons from the Haider Affair

Unprecedented in the history of European integration, the sanctions against an Austrian government that included the far right Austrian Freedom Party in January 2000 clearly exposed the necessity to guarantee a minimum level of normative homogeneity in the European Union. However, as the hasty lifting of the sanctions a few months later showed, EU leaders proved both unable and unwilling to defend a durable, common and coherent position on this issue. Classic intergovernmental theories, which predict that the unification process cannot go beyond a certain threshold of politically acceptable integration without coming up against deep national divisions and sharpening tensions between the Union and domestic societies, only partly explain this rapid erosion of the European consensus against the FPÖ. The article argues that the breakdown of this ‘cordon sanitaire’ is also largely due to the reluctance of domestic political elites to institutionalise a principle which might backfire against their own countries and ultimately implies a far-reaching Europeanisation of domestic politics and party strategies.     

Competitive Tendering and Contracting, and Auditing: The Implications of the High Court Judgment in Esanda Finance

This article argues that the High Court has provided a timely warning of the legal dangers facing managers in their commercial dealings when engaged in competitive tendering and contracting (CTC). The Esanda case illustrates the increasingly close relationship between public administration and aspects of corporate governance.     

Democracy and Education Spending in Africa

While it is widely believed that electoral competition influences public spending decisions, there has been relatively little effort to examine how recent democratization in the developing world has resulted in changes in basic service provision. There have been even fewer attempts to investigate whether democracy matters for public spending in the poorest developing countries, where "weak institutions" may mean that the formal adoption of electoral competition has little effect on policy. In this article I confront these questions directly, asking whether the shift to multiparty competition in African countries has resulted in increased spending on primary education. I develop an argument, illustrated with a game-theoretic model, which suggests that the need to obtain an electoral majority may have prompted African governments to spend more on education and to prioritize primary schools over universities within the education budget. I test three propositions from the model using panel data on electoral competition and education spending in African countries. I find clear evidence that democratically elected African governments have spent more on primary education, while spending on universities appears unaffected by democratization .     

Australian Federalism: Developments and Prospects

This article discusses the principal recent developments in,and future prospects for, constitutional change, judicial review,fiscal arrangements, local government, public policy, and intergovernmentalrelations since the 1977 Publius issue on Australian federalism,taking into account the arguments presented in the other contributionsto this volume. It highlights the continuing vertical imbalanceof Australian fiscal federalism, and the Hawke Labor government'srecent initiative for a closer working partnership with thestates for reforming intergovernmental arrangements. It arguesthat while there is scope for the latter, there is greater needfor the former. Nevertheless, the 1980s was significant as adecade of predominantly Labor governments working with the federalConstitution, while the 1990s promises to be a decade of celebratingthe centenary of the Australian Constitution and working towardimproving the functioning of its federal system.     

Coping with economic integration: Corporatist strategies in Germany and Austria in the 1990s

While Germany is facing the wholesale disorganisation of sectoral collective bargaining, the Austrian social partnership has gained new strength in the 1990s. Comparatively, Austro‐corporatism proved able to undergo a process of skilful adaptation. This divergence in performance poses a puzzle, given Germany's commanding presence both in international markets and in the European Union, and given Austria's traditional hostility to modernisation. This article explains German—Austrian differences in the performance and resilience of corporatist governance in the face of modernisation and market integration in terms of (i) the organisational differences between German and Austrian corporatism (sectoral concentration versus vertical centralisation and little horizontal formalisation); (ii) the long term policy strategies employed by labour unions in either system (co‐determination versus macro‐level policy influence); and (Hi) by the different responses to modernisation chosen by German and Austrian corporatist actors (internal organisational reforms verus becoming modernisation brokers).     

State First,Then Democracy: Using Cadastral Records to Explain Governmental Performance in Public Goods Provision

This article presents a theoretical argument of how and why democratization at different levels of state capacity matters for public goods provision and subjects the argument to empirical tests. Building on rational choice theories of public goods production, we argue that credible enforcement before credible commitment—democratizing after the state has acquired high levels of state capacity—leads to a more efficient social order than the opposite sequence. Using a theoretically grounded and novel indicator of historical state capacity—the extent and quality of cadastral records—the analysis shows that those countries where the state developed extensive enforcement capacities before democratization exhibit, on average, better provision of essential public goods and are less corrupt.     

Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR??s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court??s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR??s judgments. Using case studies from the UK and Russia, this article identifies two factors that are critical for the domestic implementation of the Court??s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR??s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR??s rulings.     

Backlash and Legitimation: Macro Political Responses to Supreme Court Decisions

This article is a first attempt to develop and assess the competing predictions of the thermostatic model of public opinion and legitimation theory for the responses of public mood to Supreme Court decisions. While the thermostatic model predicts a negative relationship between the ideological direction of Supreme Court decisions and changes in public mood, legitimation theory predicts that changes in mood should be positively associated with the ideological content of the Court's actions. I assess these rival expectations by modeling the dynamic relationship between mood and cumulative judicial liberalism. The model estimates indicate a complex interaction between the Court and the mass public characterized by short‐term backlash against Supreme Court decisions in mood followed by long‐run movement toward the ideological positions taken by the Court. The results emphasize the legitimacy of the Court in American politics and point to a unique role for the Court in shaping public opinion.     

Gender,intersectionality, and religious manifestation before the European Court of Human Rights

Decisions on Article 9(2) of the European Convention on Human Rights—the right to religious manifestation—evidence the importance of intersectional considerations of gender, religion, and even nationality. This article uses qualitative comparative analysis in order to find patterns of litigation victory and defeat by intersectional groups in their claims of violation of this provision. Our analyses show that intersectionalization, operating through a methodology particularly well suited to do so, was essential to render visible important patterns in the judicial arena. These patterns show the different outcomes of litigation by intersectional groups. In particular, Muslim women, whose cases frequently had a clear dimension of “claim intersectionality” related to religious clothing, systematically were defeated before the European Court of Human Rights. This contrasts with cases brought by male Muslims, a successful category of litigants, therefore emphasizing the importance of gender dimension when understanding cases on religious manifestation.     

Regional Matters: An Inter-agency Approach to Understanding Regional Issues

Whole-of-government approaches to policy development are increasingly seen as critical in developing comprehensive understanding of issues and development of policies. This article argues that cooperative approaches to using and understanding information are as important as cooperative approaches to policy development and implementation. In August 2002 the Victorian government released Regional Matters: An Atlas of Regional Victoria which was the result of whole-of-government collaboration. The publication provided a review of regional issues across a wide range of topics. This article highlights both the opportunities and challenges of a whole-of-government approach using the experience of this Regional Atlas project. This article also puts forward some lessons that may be used to enhance whole-of-government approaches to research and information provision.     

New rôles of government in supporting manufacturing: the capabilities of support agencies in Ghana and Zimbabwe

This study examines the roles and capabilities of executive agencies in providing support services to manufacturing in Ghana and Zimbabwe. It asserts that the new roles of government during and after adjustment have not been clearly defined and are in fact more complex than running state‐owned productive enterprises. The basic shift is said to be from direct provision of goods and services to the provision of an enabling environment through support in areas such as training, information, finance, export and investment promotion and technology. Economic development is stimulated when there is a harmonious relationship between entrepreneurs and their institutional environment, much of which is provided by the state. This article concentrates upon the role of meso‐level agencies in changing incentives faced by entrepreneurs and shifting them out of unproductive activity and into productive entrepreneurship, and outlines some of the preliminary results from related research. There are several factors which influence the capabilities of agencies providing these services. Essentially they may be divided into internal and external factors. This allows the analysis to consider not only budgeting and incentive systems but also the impact of external pressures experienced by any given agency. Copyright © 1999 John Wiley & Sons, Ltd.     

Measuring Attitudes toward the United States Supreme Court

It is conventional in research on the legitimacy of the U.S. Supreme Court to rely on a survey question asking about confidence in the leaders of the Court to indicate something about the esteem with which that institution is regarded by the American people. The purpose of this article is to investigate the validity of this measure. Based on a nationally representative survey conducted in 2001, we compare confidence with several different measures of Court legitimacy. Our findings indicate that the confidence replies seem to reflect both short-term and long-term judgments about the Court, with the greater influence coming from satisfaction with how the Court is performing at the moment. We suggest a new set of indicators for measuring the legitimacy of the Court and offer some evidence on the structure of the variance in these items.