Ely criticizes the two prevailing legal approaches to the Constitution and sets forth a proposal for determining the role of the Supreme Court today based on the view that the Court should assure majority governance while protecting minority rights
Release on 2014-10-09 | by Lukasz Gruszczynski,Wouter Werner
Standard of Review and Margin of Appreciation
Author: Lukasz Gruszczynski,Wouter Werner
Pubpsher: OUP Oxford
International courts and tribunals are often asked to review decisions originally made by domestic decision-makers. This can often be a source of tension, as the international courts and tribunals need to judge how far to defer to the original decisions of the national bodies. As international courts and tribunals have proliferated, different courts have applied differing levels of deference to those originial decisions, which can lead to a fragmentation in international law. International courts in such positions rely on two key doctrines: the standard of review and the margin of appreciation. The standard of review establishes the extent to which national decisions relating to factual, legal, or political issues arising in the case are re-examined in the international court. The margin of appreciation is the extent to which national legislative, executive, and judicial decision-makers are allowed to reflect diversity in their interpretation of human rights obligations. The book begins by providing an overview of the margin of appreciation and standard of review, recognising that while the margin of appreciation explicitly acknowledges the existence of such deference, the standard of review does not: it is rather a procedural mechanism. It looks in-depth at how the public policy exception has been assessed by the European Court of Justice and the WTO dispute settlement bodies. It examines how the European Court of Human Rights has taken an evidence-based approach towards the margin of appreciation, as well as how it has addressed issues of hate speech. The Inter-American system is also investigated, and it is established how far deference is possible within that legal organisation. Finally, the book studies how a range of other international courts, such as the International Criminal Court, and the Law of the Sea Tribunal, have approached these two core doctrines.
It is a view commonly acknowledged that the mass media have a crucial role to play in the development and maintenance of democracy. It is a matter of greater controversy as to whether the media’s influence upon democracy is as constructive as it might be. This collection explores the various impacts upon democratic structures and processes of different media forms in different parts of the world. It examines the very different influences of the press in democratic Nigeria and post-Leveson Britain; it looks at how social media are used by politicians, voters and revolutionaries in the UK, Poland and the Arab Region; it investigates the political impact of media ownership in Britain, Italy and Argentina; and it asks whether we can ever hope to develop from being passive consumers of the mass media to active participants in modes of democratic citizenship underpinned by those media.
Release on 2008-11-20 | by Pierre Rosanvallon,Arthur Goldhammer
Politics in an Age of Distrust
Author: Pierre Rosanvallon,Arthur Goldhammer
Pubpsher: Cambridge University Press
Category: Political Science
Democracy is established as a generally uncontested ideal, while regimes inspired by this form of government fall under constant criticism. Hence, the steady erosion of confidence in representatives that has become one of the major political issues of our time. Amidst these challenges, the paradox remains that while citizens are less likely to make the trip to the ballot box, the world is far from entering a phase of general political apathy. Demonstrations and activism abound in the streets, in cities across the globe and on the internet. Pierre Rosanvallon analyses the mechanisms used to register a citizen's expression of confidence or distrust, and then focuses on the role that distrust plays in democracy from both a historical and theoretical perspective. This radical shift in perspective uncovers a series of practices - surveillance, prevention, and judgement - through which society corrects and exerts pressure.
For more than 200 years no institution has been more important to the development of the American democratic polity than the state legislature, yet no political institution has been so neglected by historians. Although more lawmaking takes place in the state capitals than in Washington D.C., scholars have lavished their attention on Congress, producing only a handful of histories of state legislatures. Most of those histories have focused on discrete legislative acts rather than on legislative process, and all have slighted key aspects of the legislative environment: the parliamentary rules of play, the employees who make the game possible, the physical setting—the arena—in which the people’s representatives engage in conflict and compromise to create public policy. This book relates in fascinating detail the history of the Ohio General Assembly from its eighteenth-century origins in the Northwest Territory to its twenty-first-century incarnation as a full-time professional legislature. Democracy in Session explains the constitutional context within which the General Assembly functions, examines the evolution of legislative committees, and explores the impact of technology on political contests and legislative procedure. It sheds new light on the operations of the House and Senate clerks’ offices and on such legislative rituals as seat selection, opening prayers, and the Pledge of Allegiance. Partisan issues and public policy receive their due, but so do ethics and decorum, the election of African American and female legislators, the statehouse, and the social life of the members. Democracy in Session is, in short, the most comprehensive history of a state legislature written to date and an important contribution to the story of American democracy.
In this engaging and provocative work, Walter F. Murphy combines a lifetime's study of constitutions and democracy with traditional storytelling to answer fundamental questions about constitutional democracy: How is it created? How is it maintained? How can it be adapted to changing circumstances?
The Four Freedoms vs National Administrative Discretion
Author: Christoffer C. Eriksen
This book explores how the right to the free movement of goods, persons, services and capital in the European Union legal order affects welfare states. These "four freedoms", as they are known, are vital instruments for the protection of a European market unencumbered by internal frontiers. The European Constitution, Welfare States and Democracy explore the relationships and conflicts that have emerged between the European constitution and the legal regulation of mixed economies and markets within welfare-states. In particular, it examines the threat posed to the discretionary powers enjoyed by national governments and administrative authorities. Christoffer C. Eriksen has undertaken a comprehensive analysis of a series of judgments in which the European Court of Justice has clearly indicated the ways in which the four freedoms may be incompatible with the current practice of entrusting national administrative authorities with discretionary powers and thus highlights how the four freedoms are provoking democratic dilemmas, previously neglected in the academic literature. The book is written in a style which communicates beyond an audience of specialized legal scholars and although it includes analysis of black letter law, its methodology also draws from the disciplines of philosophy, political science, and sociology.
Release on 2006-10-02 | by James E. Fleming,Professor of Law and the Honorable Frank R Kenison Distinguished Scholar in Law James E Fleming
The Case of Autonomy
Author: James E. Fleming,Professor of Law and the Honorable Frank R Kenison Distinguished Scholar in Law James E Fleming
Pubpsher: University of Chicago Press
Famously described by Louis Brandeis as "the most comprehensive of rights" and 'the right most valued by civilized men," the right of privacy or autonomy is more embattled during modern times than any other. Debate over its meaning, scope, and constitutional status is so widespread that it all but defines the post-1960s era of constitutional interpretation. Conservative Robert Bork called it "a loose canon in the law," while feminist Catharine MacKinnon attacked it as the “right of men to be left alone to oppress women.” Can a right with such prominent critics from across the political spectrum be grounded in constitutional law? In this book, James Fleming responds to these controversies by arguing that the right to privacy or autonomy should be grounded in a theory of securing constitutional democracy. His framework seeks to secure the basic liberties that are preconditions for deliberative democracy—to allow citizens to deliberate about the institutions and policies of their government—as well as deliberative autonomy—to enable citizens to deliberate about the conduct of their own lives. Together, Fleming shows, these two preconditions can afford everyone the status of free and equal citizenship in our morally pluralistic constitutional democracy.
Privatization is occurring throughout the public justice system, including courts, tribunals, and state-sanctioned private dispute resolution regimes. Driven by a widespread ethos of efficiency-based civil justice reform, privatization claims to decrease costs, increase speed, and improve access to the tools of justice. But it may also lead to procedural unfairness, power imbalances, and the breakdown of our systems of democratic governance. Civil Justice, Privatization, and Democracy demonstrates the urgent need to publicize, politicize, debate, and ultimately temper these moves towards privatized justice. Written by Trevor C.W. Farrow, a former litigation lawyer and current Chair of the Canadian Forum on Civil Justice, Civil Justice, Privatization, and Democracy does more than just bear witness to the privatization initiatives that define how we think about and resolve almost all non-criminal disputes. It articulates the costs and benefits of these privatizing initiatives, particularly their potential negative impacts on the way we regulate ourselves in modern democracies, and it makes recommendations for future civil justice practice and reform.