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Constitutional Law

Selected Works

Judicial review

2015

Articles 1 - 8 of 8

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The Role Of Courts In Improving The Legislative Process, Ittai Bar-Siman-Tov Nov 2015

The Role Of Courts In Improving The Legislative Process, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

In recent years, there has been growing and widespread discontent with the state of the legislative process in many legislatures. At the same time, there is an emerging trend of courts exercising judicial review of the legislative process. Against this backdrop, this article explores the question of what can be the role of courts in efforts to improve the legislative process. The article offers a fresh perspective on the problems in the legislative process and their causes. It then develops a novel argument – that does not rest upon a cynical view of legislatures, nor on a rosy picture of …

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ג'ון הארט גרוניס?: פסיקתו של הנשיא גרוניס לאור התיאוריה החוקתית של אילי (John Hart Grunis?: The Jurisprudence Of Chief Justice Grunis In Light Of Ely's Constitutional Theory), Ittai Bar-Siman-Tov Nov 2015

ג'ון הארט גרוניס?: פסיקתו של הנשיא גרוניס לאור התיאוריה החוקתית של אילי (John Hart Grunis?: The Jurisprudence Of Chief Justice Grunis In Light Of Ely's Constitutional Theory), Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article analyzes the jurisprudence of CJ Grunis, the President of the Supreme Court of Israel, in light of John Hart Ely's constitutional theory. In an earlier case, during CJ Barak's Presidency, Justice Grunis publicly endorsed Ely's constitutional theory—which has put him at odds with the previous two Presidents of the Court, CJs Barak and Beinisch. Against this backdrop, this Article examines whether (or to what extent) Ely's theory can explain Justice Grunis's decisions as President of the Court. The Article argues that Ely's theory provides a more promising focal-point for evaluating President Grunis's public-law decisions than simplistic characterization such …

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Section 1983 Cases In The October 2004 Term, Martin A. Schwartz Oct 2015

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

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Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin Oct 2015

Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin

Richard Haigh

In "Charter Dialogue Revisited-Or 'Much Ado About Metaphors,"' it is noted that the original idea behind the dialogue metaphor was simply to describe Canada's constitutional structure. Despite this, the metaphor has been criticized for having normative content and influencing courts and legislatures. In this commentary, the authors analyze all Supreme Court of Canada and lower court uses of the dialogue metaphor and conclude that, with some exceptions, the courts have employed the metaphor properly, i.e., descriptively. Since, however, the metaphor can be misapplied-used other than to describe or explain the relationship between the courts and legislatures in Canada-the authors recommend …

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The Coherentism Of Democracy And Distrust, Michael C. Dorf Feb 2015

The Coherentism Of Democracy And Distrust, Michael C. Dorf

Michael C. Dorf

No abstract provided.

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Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf Feb 2015

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Michael C. Dorf

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

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Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler Feb 2015

Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler

Laura S. Underkuffler

No abstract provided.

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Proportionality And The Relevance Of Rights, Jud Mathews Dec 2014

Proportionality And The Relevance Of Rights, Jud Mathews

Jud Mathews

It is now well known that proportionality-based balancing has become the dominant approach to the judicial review of legislation that limits constitutional rights. But has proportionality outgrown rights? In other words, are specific constitutional rights — as opposed to, say, a general right to proportional treatment — necessary, or desirable, once courts have adopted proportionality analysis? This issue animates the debate between Professors Luc Tremblay and Matthias Klatt in the International Journal of Constitutional Law. In this comment, I weigh in on the Tremblay/Klatt debate, and make a case for the continued relevance of rights in proportionality balancing.

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