Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 7 of 7
Full-Text Articles in Entire DC Network
Judicial Enforcement Of The Establishment Clause, Richard W. Garnett
Judicial Enforcement Of The Establishment Clause, Richard W. Garnett
Richard W Garnett
This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Richard W Garnett
At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
David Ingram
It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …
Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee
Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee
Jack Tsen-Ta LEE
The Singapore Court of Appeal’s judgment in Vellama d/o Marie Muthu v Attorney-General [2013] SGCA 39 – popularly known as the Hougang by-election case – shows that the Court sees its role as policing the margins rather than involving itself in the heart of politics. The Court held that the Government was incorrect in asserting the Constitution confers on it the discretion not to hold a by-election at all after a parliamentary seat falls vacant. The judgment came as a surprise to those used to a judicial stance fairly deferential towards the Government, but on balance the Court did accord …
Majoritarian Judicial Review: The Case Of Taiwan, Chien-Chih Lin
Majoritarian Judicial Review: The Case Of Taiwan, Chien-Chih Lin
Chien-Chih Lin
Whether, and to what extent, the practice of judicial review in the United States is counter-majoritarian has been contentiously debated since its inception. Yet, whether judicial review in nascent democracies functions in the same way has not been lucidly articulated. Based on docket records, agenda setting, and case studies of the Constitutional Court in Taiwan, this paper suggests that judicial review in Taiwan is majoritarian, rather than counter-majoritarian. Specifically, the Constitutional Court is more majoritarian in the field of fundamental rights than it is in separation-of-powers cases. This finding is contradictory to conventional wisdom since high courts in new democracies …
Lords Of Democracy: The Judicialization Of "Pure Politics" In The United States And Germany, Russell A. Miller
Lords Of Democracy: The Judicialization Of "Pure Politics" In The United States And Germany, Russell A. Miller
Russell A. Miller
No abstract provided.
Time And Judicial Review: Tempering The Temporal Effects Of Judicial Review, Ittai Bar-Siman-Tov
Time And Judicial Review: Tempering The Temporal Effects Of Judicial Review, Ittai Bar-Siman-Tov
Dr. Ittai Bar-Siman-Tov
This Article deals with a predicament inherent in judicial review: Under the traditional view, judicial declarations of unconstitutionality apply retrospectively, meaning that the law is treated as void from its inception — as if it was never enacted. This, however, means nullifying all the legal arrangements, rights, interests, and obligations that were established under its authority, which can have far-reaching ramifications for both public and private interests. The Article explores the Israeli Supreme Court's approach for dealing with potential negative consequences of retrospective voidance of statutes. It focuses on three main remedial strategies for tempering the temporal effects of invalidating …