Law Commons^™

On The Nexus Between The Strength Of The Separation Of Powers And The Power Of The Judiciary, Rivka Weill

William & Mary Bill of Rights Journal

This Article makes four novel arguments: (1) There is an inverse relationship between the strength of a separation of powers structure and the strength of the judiciary. In a strong separation of powers structure, one should expect a weaker judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines—including standing, justiciability, deference, and judicial …

Human Rights And Climate Change For Climate Litigation In Brazil And Beyond: An Analysis Of The Climate Fund Decision, Maria Antonia Tigre, Joana Setzer

Sabin Center for Climate Change Law

In 2022, the Brazilian Supreme Court announced a groundbreaking decision in the Climate Fund case. The decision, rendered amidst a challenging political climate, acknowledges the significance of the Paris Agreement within the country’s legal framework. The Court’s ruling established that the executive branch has a constitutional obligation to allocate funds from the Climate Fund for climate change mitigation and adaptation, grounded in the constitutional right to a healthy environment, international rights and commitments, and the principle of separation of powers.

Notably, the Court recognized the Paris Agreement as a human rights treaty, granting it “supranational” status. The implications of the …

Comments On Executive Ruilemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Brexit Bt Susan Rose-Ackerman, Nicholas Almendares

Chicago-Kent Law Review

No abstract provided.

Executive Rulemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Route To Brexit, Susan Rose-Ackerman

Chicago-Kent Law Review

Established public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the …

Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss

Faculty Scholarship

This chapter discusses the separation of powers. The point about traditions, or shared social norms, is a central one for this chapter. At a time of growing pessimism about the fate of democracy worldwide, adherence to norms of political behaviour may have an importance transcending formal provisions for the allocation of governmental power. As such, this chapter first presents a brief account of ‘separation of powers’ under American presidentialism; then the contrasting system of Westminster parliamentarianism; third, the increasingly prevalent mixed regimes, often semi-presidential, that can be described as ‘constrained parliamentarism’; and, finally, international institutions. As the chapter shows, in …

The Role Of The Courts In Guarding Against Privatization Of Important Public Environmental Resources, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

Drinking water, beaches, a livable climate, clean air, forests, fisheries, and parks are all commons, shared by many users with diffuse and overlapping interests. These public natural resources are susceptible to depletion, overuse, erosion, and extinction; and they are under increasing pressures to become privatized. The Public Trust Doctrine provides a legal basis to guard against privatizing important public resources or commons. As such, it is a critical doctrine to counter the ever-increasing enclosure and privatization of the commons as well as ensure government trustees protect current and future generations. This Article considers separation of powers and statutory interpretation in …

African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga

Joseph Isanga

Achieving political stability in a transitional democracy is a fundamental goal, the resoluteness of which is in part maintained by courts of judicial review that are independent from political bias and devoid of deference to traditionally more powerful branches of government. The recent democratic transitions occurring in the African nations of South Africa and Uganda provide a unique, contemporary insight into the formation of a constitutional jurisprudence. This study is an examination of pivotal cases decided by the Constitutional Courts of South Africa and Uganda, the roles that these decisions play in political stability, and the potential for political bias …

French Constitutionalism, Elisabeth Zoller

Articles by Maurer Faculty

From the Foreword:

We are particularly pleased that this first special issue gives the opportunity to celebrate the sixtieth anniversary of the Fifth Republic’s Constitution. Readers will find an enlightened vision of French constitutionalism, so patiently depicted by our colleague Elisabeth Zoller through a life of teachings and research, both in France and in the United States. Defined as “a political doctrine that aims to guarantee political freedom, i.e. the freedom we enjoy in respect of political power, as opposed to civil liberty, which we enjoy in respect of our peers”, constitutionalism has, in France, a profoundly unique character according …

International Law - Justiciability - Appellants Have Standing To Seek Injunction Against United States Trade With Southern Rhodesia, But Their Suit States A Claim Incapable Of Judicial Resolution, George Shingler

Georgia Journal of International & Comparative Law

No abstract provided.

Separation Of Powers Crisis: The Case Of Argentina, Manuel José J. García-Mansilla

Georgia Journal of International & Comparative Law

No abstract provided.

The President And Congress: Separation Of Powers In The United States Of America, Harold H. Bruff

Publications

Although the framers of the Australian Constitution adopted many features of the United States Constitution, they rejected the separation of legislative and executive power in favour of responsible government in a parliamentary system like that of the United Kingdom. In doing so, Australians depended on existing conventions about the nature of responsible government instead of specification of its attributes in constitutional text. The United States Constitution contains detailed provisions about separation of powers, but unwritten conventions have produced some central features of American government. This article reviews conventions developed by Congress that constrain Presidents in the domestic sphere with regard …

The Separation Of Powers, Constitutionalism And Governance In Africa: The Case Of Modern Cameroon, John Mukum Mbaku

JOHN MUKUM MBAKU

The Separation of Powers, Constitutionalism and Governance in Africa: The Case of Modern Cameroon

John Mukum Mbaku, Esq.

Abstract

Countries incorporate the principle of the separation of powers in their constitutions in an effort to meet several goals, the most important of which is to minimize government-induced tyranny. Specifically, countries that make this principle part of their constitutional practice intend to limit public servants by national laws and institutions, enhance government accountability, minimize opportunistic behaviors by civil servants and politicians, provide for checks and balances, and generally improve government efficiency. Cameroon, like many other African countries that transitioned to democratic …

A Convenient Path For The Brazilian Branches Of Government: Executive Supremacy, Carlos Bolonha

Schmooze 'tickets'

No abstract provided.

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores

Georgetown Law Faculty Publications and Other Works

The aim of this Essay is threefold. First, this Essay will focus on the main characteristics of both the great transformation, experienced in the Mexican institutional economic framework during the last thirty-five years, in general, and within the past twenty years, in particular, that were made through constitutional reforms. In addition, the greater expectation that such structural reforms generated in the process of re-enacting the constitution in the political context, should be along the lines of human rights and separation of powers. Second, this Essay will attempt to bring into play the role of treaties in this transformational process, by …

Separation Of Powers In Brazil, Keith S. Rosenn

Articles

No abstract provided.

Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand

Articles

This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to …

The “Institutional Turn” In Jurisprudence: Critique And Reconstruction., Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a inquiry into the roles that courts play within the legal system, given that judges are interdependent interpreters of legal rules that are boundedly rational and, arguably, politically biased. Contemporary authors claim that, although these two conditions play an important role in interpretation, contemporary theories in jurisprudence have not addressed them properly. Their assessments raise legal issues that are very significant; given the fact that judges are boundedly rational and tend to display political biases, how should they interpret legal rules? Is it best for them to interpret these rules in a formalist fashion, without resorting …

The United States Federal Judiciary May Not Be A Third, Co-Equal Branch Of Government - What Are The Implications For The Irish Debate On Judicial Activism, Lawrence Donnelly

San Diego International Law Journal

In support of this argument, this essay first examines the language of Article III of the United States Constitution and then briefly reviews the origins of the widely held perception that the federal judiciary is a "co-equal" branch of government. It next considers Borkian constitutionalism, opining that if one is to read the Constitution as Bork urges, this essay's tentative proposition can't be far off the mark. The focus then shifts to the express language of the Irish Constitution, which accords a far greater responsibility to the judiciary than its American counterpart. In this context, it reviews some pronouncements in …

Can Appropriation Riders Speed Our Exit From Iraq?, Charles Tiefer

All Faculty Scholarship

To explore the implications of riders - provisions added to appropriation bills that "ride" on the underlying bill - on the United States' continued military force in Iraq, the author draws three hypotheticals, each focusing on the debate surrounding the policy and political disputes raised by the use of such riders. A "withdrawal" rider, which would authorize funding only if there exists a plan to withdraw American ground troops by a set deadline, remains the most important - and controversial - rider. Riders may also significantly affect wartime policies, like those that limit the President's use of reservists in combat …

New Forms Of Judicial Review And The Persistence Of Rights - And Democracy-Based Worries, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Recent developments in judicial review have raised the possibility that the debate over judicial supremacy versus legislative supremacy might be transformed into one about differing institutions to implement judicial review. Rather than posing judicial review against legislative supremacy, the terms of the debate might be over having institutions designed to exercise forms of judicial review that accommodate both legislative supremacy and judicial implementation of constitutional limits. After examining some of these institutional developments in Canada, South Africa, and Great Britain, this Article asks whether these accommodations, which attempt to pursue a middle course, have characteristic instabilities that will in the …

The "Enabling Law": The Demise Of The Separation Of Powers In Hugo Chavez's Venezuela, Mario J. Garcia-Sierra

University of Miami Inter-American Law Review

No abstract provided.

Divergent Models Of Public Law In Latin America: A Historical And Prescriptive Analysis, Nicholas D.S. Brumm

University of Miami Inter-American Law Review

No abstract provided.

Altered States: A Comparison Of Separation Of Powers In The United States And In The United Kingdom, James G. Wilson

Law Faculty Articles and Essays

This Article initially will compare the United States Constitution and the British constitution both to evaluate Young, Morrison, and Misretta, and to develop a sounder approach to all structural issues. Comparative constitutional law provides some of the "experience" needed to decide abstract structural cases. Predicting the reverberations of a proposed change within a system will be easier if one has studied how similar alterations have affected similar organizations. The British constitution is particularly germane because it was a model for the American Constitution. The two countries have a shared legal tradition and frequently generate similar positive law. The British constitution …

Judicial Review: Its Influence Abroad, Donald P. Kommers

Journal Articles

The doctrine of judicial review, having been nourished in a legal culture and socio-political environment favorable to its growth, is America’s most distinctive contribution to constitutional government. Judicial review as historically practiced in the United States was duly recorded abroad, with varying degrees of influence and acceptability. During the nineteenth and early twentieth centuries, the influence of judicial review was most conspicuous in Latin America, where it was adopted as an articulate principle of numerous national constitutions, while most European nations consciously rejected it as incompatible with the prevailing theory of separation of powers. Germany, Austria, and Switzerland, although marginally …

Judicial Power, The “Political Question Doctrine,” And Foreign Relations, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Constitutions Of West Germany And The United States: A Comparative Study, Paul G. Kauper

Michigan Law Review

The purpose of this article is to present a descriptive overall picture of the fundamental features of the system established by the Basic Law and at the same time point up significant comparisons and contrasts by reference to the Constitution. Eleven years have now elapsed since the Basic Law went into effect, and significant decisions of the Federal Constitutional Court (Bundesverfassungsgericht ) noted at the appropriate points, serve to illuminate the working of the system established by it.

The Cy Pres Doctrine And Changing Philosophies, Edith L. Fisch

Michigan Law Review

The cy pres doctrine arose so far back in antiquity that its origins are obscure. Apparently it was known and used in Roman law, for an application of the cy pres doctrine is reported in the Digest of Justinian. In the early part of the third century a city received a legacy bequeathed for the purpose of commemorating the memory of the donor by using the income of the legacy to hold yearly games. As such games were illegal at that time a problem arose concerning the disposition of the legacy. Modestinus, a well known jurist, found the solution.