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Full-Text Articles in Jurisprudence
Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh
Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh
Faculty Scholarship
Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …
A Constitution For Judicial Lawmaking, Adam N. Steinman
A Constitution For Judicial Lawmaking, Adam N. Steinman
Faculty Scholarship
When courts decide cases, the decisions make law because they become precedent that binds future courts under the doctrine of stare decisis. This article argues that some principles governing judicial lawmaking are functionally constitutional principles because they go to the validity of a particular attempt at judicial lawmaking (just as the constitutional principles governing legislative lawmaking determine the validity of lawmaking by legislatures). Because even poorly reasoned judicial decisions can still be effective lawmaking acts, it is important to distinguish between constitutional and non-constitutional principles and arguments. While a non-constitutional principle can be a basis for examining the wisdom or …