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With A Little Help From The Courts: Mark Tushnet On Judicial Review Of Social And Economic Rights, Adam Shinar
With A Little Help From The Courts: Mark Tushnet On Judicial Review Of Social And Economic Rights, Adam Shinar
Adam Shinar
This is a review of Mark Tushnet's "Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law". The review outlines the main arguments in the book and then moves to elaborate on two preconditions, which, I think, are necessary for Tushnet's project to succeed – the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet's broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet's "Taking the Constitution Away from the Courts", a work …
Constitutions In Crisis: A Comparative Approach To Judicial Reasoning And Separation Of Powers, Adam Shinar
Constitutions In Crisis: A Comparative Approach To Judicial Reasoning And Separation Of Powers, Adam Shinar
Adam Shinar
In the ever growing literature on emergencies, writers mostly focus on normative questions. Yet the structural aspect, investigating the interactions between institutions, is often overlooked. This article seeks to add to the institutional discourse by looking at emergencies through an institutional lens, situating the resolution of legal questions within the separation of powers framework. By looking at judicial decisions in emergencies, I argue that most of them can be explained not according to constitutional considerations of substantive individual rights, but by the position the courts assume within the broader governmental framework. In a presidential system, such as the one in …