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Articles 1 - 11 of 11

Full-Text Articles in Law

The French Prosecutor As Judge. The Carpenter’S Mistake?, Mathilde Cohen Dec 2016

The French Prosecutor As Judge. The Carpenter’S Mistake?, Mathilde Cohen

Mathilde Cohen

In France as elsewhere, prosecutors and their offices are seldom seen as agents of democracy. A distinct theoretical framework is itself missing to conceptualize the prosecutorial function in democratic states committed to the rule of law. What makes prosecutors democratically legitimate? Can they be made accountable to the public? Combining democratic theory with original qualitative empirical data, my hypothesis is that in the French context, prosecutors’ professional status and identity as judges determines to a great extent whether and how they can be considered democratic figures.
 
The French judicial function is defined more broadly than in the United States, …

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China's Judicial System And Judicial Reform, Nicholas Howson Dec 2015

China's Judicial System And Judicial Reform, Nicholas Howson

Nicholas Howson

The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …

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Impartiality And Independence: Misunderstood Cousins, James E. Moliterno Feb 2015

Impartiality And Independence: Misunderstood Cousins, James E. Moliterno

James E. Moliterno

No abstract provided.

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The Rise Of Judicial Governance In The Supreme Court Of India, Manoj Mate Jan 2015

The Rise Of Judicial Governance In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

This article analyzes how the Supreme Court of India, through its activism and assertiveness, has emerged as arguably the most powerful court among democratic polities. Over the past four and a half decades, the Court dramatically expanded its role in the realm of rights and governance, asserting the power to invalidate constitutional amendments under the basic structure doctrine, control judicial appointments, and govern in the areas of environmental policy, monitoring and investigating government corruption, and promoting electoral transparency and accountability. In this article, I argue that the Court’s shift toward greater, yet selective, assertiveness in India’s governance can most adequately …

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When Judges Have Reasons Not To Give Reasons: A Comparative Law Approach, Mathilde Cohen Dec 2014

When Judges Have Reasons Not To Give Reasons: A Comparative Law Approach, Mathilde Cohen

Mathilde Cohen

Influential theories of law have celebrated judicial reason- giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason- giving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between …

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Elite Institutionalism And Judicial Assertiveness In The Supreme Court Of India, Manoj Mate Dec 2014

Elite Institutionalism And Judicial Assertiveness In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions. During this era, the Court was selectively assertive in challenging the central government in fundamental rights cases. This article provides an explanatory account of the motives and factors that drove the Supreme Court of India‘s selective activism and assertiveness in politically significant fundamental rights decisions. It argues that …

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High Courts And Election Law Reform In The United States And India, Manoj Mate Dec 2013

High Courts And Election Law Reform In The United States And India, Manoj Mate

Manoj S. Mate

Over the past decade, the push for electoral reform in India and the United States – the world’s two largest democracies – has been promi- nent in the politics and governance of both nations. The supreme courts in each country have played important, but distinct, roles in recent electoral reform efforts, responding to different facets and regimes of political corruption. In the 1990s, the Indian Supreme Court became increasingly assertive in requiring greater levels of dis- closure and transparency for political parties in India. In a series of decisions in 2002 and 2003, the Indian Supreme Court challenged the Central …

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Time And Judicial Review: Tempering The Temporal Effects Of Judicial Review, Ittai Bar-Siman-Tov Dec 2012

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 …

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Semiprocedural Judicial Review, Ittai Bar-Siman-Tov Dec 2011

Semiprocedural Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The Article explicates this emerging model, which it terms 'semiprocedural review,' and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The Article pursues these goals through the unique perspective of juxtaposing semiprocedural review with 'pure procedural judicial review' …

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The Hollowness Of The Harm Principle, Steven D. Smith Dec 2011

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

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Two Paths To Judicial Power: The Basic Structure Doctrine And Public Interest Litigation In Comparative Perspective, Manoj Mate Dec 2009

Two Paths To Judicial Power: The Basic Structure Doctrine And Public Interest Litigation In Comparative Perspective, Manoj Mate

Manoj S. Mate

This article examines two critical "moments" in the expansion of judicial power in India: the assertion of the basic structure doctrine and the development of the PIL regime in the post-Emergency Indian Court. The Indian Supreme Court asserted two key functional roles in these moments: (1) the role of a constitutional guardian in asserting its role in preserving the basic structure of the Constitution, and (2) as a champion of the rule of law and responsible governance in developing PIL. Though both moments were significant in the empowerment of the Indian Supreme Court, I argue that development of PIL was …

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