The Proportionality Principle and the Kable Doctrine: A New Test of Constitutional Invalidity?

2012 ◽  
Vol 1 (2) ◽  
pp. 163-193
Author(s):  
Roshan Chaile
Keyword(s):  
Separation Of Powers ◽  
State Level ◽  
State Legislature ◽  
Prima Facie ◽  
State Courts ◽  
State Court ◽  
Institutional Integrity ◽  
Principle Of Proportionality ◽  
High Court Of Australia ◽  
State Legislative

In Kable v Director of Public Prosecutions (NSW) the High Court of Australia declared that the requirements of Chapter III of the Australian Constitution prohibited a State legislature from conferring powers on a State court that were repugnant or incompatible with their status as repositories of federal judicial power. This was a significant constitutional watershed; it had never previously been suggested that the protections contained in Chapter III applied to State courts. Recent applications of Kable, however, have given rise to concerns that the principles to be derived from that case are unclear. This is a serious deficiency given that State legislatures, not bound by a separation of powers doctrine at a State level, may choose to confer important decision-making functions on non-judicial bodies. This article explores whether a bipartite inquiry, such as that employed in the rights jurisprudence in both England and Strasbourg, may clarify the meaning and scope of the principle enunciated in Kable. It commences by formulating a mode of inquiry which is intended to assist courts in determining whether a legislative act impairs the institutional integrity of a State court. It then argues that the principle of proportionality should be employed to determine whether a prima facie impairment may nonetheless be excusable. Such a conclusion would be reached where it can established that the legislative act is necessary in a democratic society, in the sense that it addresses a pressing social need. The introduction of this limited ground of justification promotes greater clarity and ensures that an appropriate balance is maintained between State legislative autonomy and the institutional integrity of State courts.

scholarly journals Bill Content, Legislative Outcomes, and State-Level Resistance to National Policies

2021 ◽  
pp. 1-23
Author(s):  
Timothy Callaghan ◽  
Andrew Karch
Keyword(s):  
Intergovernmental Relations ◽  
State Level ◽  
Legal Framework ◽  
State Legislature ◽  
Specific Domain ◽  
Original Dataset ◽  
Party Control ◽  
Legislative Outcomes ◽  
Contemporary United States ◽  
Level Resistance

Abstract Recently, scholars of the lawmaking process have urged their colleagues to devote more attention to the potential impact of bill content on legislative outcomes. Heeding their call, this paper builds an original dataset of over 5,000 pieces of state-level legislation addressing issues that span the ideological spectrum. It compares proposals that challenge the authority of the national government in a specific domain to proposals that lack federalism-related implications and finds that the former, all else being equal, make less legislative progress toward enactment. In addition, it categorizes the measures that resist national laws based on the specific nature of the challenge they pose. Its analysis finds that measures that are inconsistent with existing national law but work within the law’s legal framework make more legislative progress than measures that seek to nullify the national law or that vow not to cooperate with it. It also confirms that sponsor characteristics such as majority status, the number of cosponsors, institutional rules such as hearing requirements, and state-level factors like party control of the state legislature affect how much progress proposals make toward enactment. Thus, the paper demonstrates the importance of legislative content as an explanatory factor and sheds light on the nature of intergovernmental relations in the contemporary United States.

An Update to the Squire State Court of Last Resort Professionalization Index

2021 ◽  
pp. 1-8
Author(s):  
Peverill Squire ◽  
Jordan Butcher
Keyword(s):  
Relative Stability ◽  
State Courts ◽  
State Court ◽  
Reform Movements ◽  
Current Version ◽  
The Future ◽  
Relative Standing

Abstract The current version of the Squire state court of last resort professionalization index is regularly used in studies of state courts. We have updated the index for 2019, producing a second and more recent index. Given the relative stability between this index and its predecessor, it is unlikely that many findings will change. During the 15 years that lapsed between the first index and the more recent one, little changed in most states, while reforms in a few places substantially shifted the relative standing of their court of last resort. It seems unlikely that the nation will experience any sweeping reform movements impacting state courts of last resort across the board. The more likely scenario is the sort of idiosyncratic changes impacting a few courts that were witnessed over the last decade and a half. Thus, looking to the future, it may be prudent to update the index every 5–10 years to capture any notable alterations.

The Other Muslim Bans

2020 ◽  
Vol 1 (1) ◽  
pp. 2-38
Author(s):  
Will Smiley
Keyword(s):  
Security Policy ◽  
Islamic Law ◽  
State Level ◽  
The State ◽  
The Other ◽  
State Court ◽  
Court Cases ◽  
State Laws ◽  
Foreign Law ◽  
Muslim Majority

This Article addresses and critiques the case for state-level legislative bans on courts citing “Islamic law” or the law of Muslim-majority countries. In particular, the Article reviews the most substantive evidence adduced by the bans’ supporters, in the form of a set of state court cases published by the Center for Security Policy (CSP). Very few of these cases, in fact, show courts actually applying Islamic or foreign law, and in none of these cases would the various forms of proposed legislation have been likely to alter the result. Thus even this report does not suggest a need for the state laws purporting to ban sharīʿa. The Article thus argues that even if these bans are not unconstitutionally discriminatory in their effect, they are ineffective at achieving their claimed purpose. This Article was originally published as an Occasional Paper in the Harvard Papers in Islamic Law series in 2018.

Humanitarian Law Compliance

2021 ◽  
Vol 12 (2) ◽  
pp. 169-197
Author(s):  
Roderic Alley
Keyword(s):  
Rule Of Law ◽  
Armed Conflict ◽  
Due Process ◽  
State Level ◽  
Humanitarian Law ◽  
Individual State ◽  
Mixed Effect ◽  
Administrative Capacity ◽  
Marked Variability ◽  
State Legislative

Abstract Ensuring humanitarian law compliance and repression of its violations receives constant reiteration but to mixed effect. While international judicial, jurisprudential and investigatory modalities have advanced, requisite State level competencies exhibit marked variability. This paper devotes most attention to disadvantaged States – those that, for whatever reason, lack the judicial, institutional or administrative capacity to ensure humanitarian law compliance and repression of its violations. Here a profile of 46 States is selected for review, 20 of which are identified as impacted by previous or continuing forms of armed conflict. Data from the World Justice Project’s 2020 Rule of Law Index is utilised. Chosen indicators assess individual State legislative, judicial, due process, and criminal investigatory capacities as perceived and recorded by local publics and individual experts. A comparative evaluation of this data reveals differences within profiles of disadvantaged States. They are investigated to better comprehend humanitarian law compliance challenges facing such States. They include international cooperation, utilisation of amnesties, and the conduct of armed non-state actors. The paper’s central thesis is that humanitarian law compliance, and repression of its violations, remains inadequate without remediation of the capacity impediments evident in disadvantaged States.

Prosecutors and their Legislatures, Legislatures and their Prosecutors

2021 ◽  
pp. 326-350
Author(s):  
Russell M. Gold
Keyword(s):  
Criminal Law ◽  
Separation Of Powers ◽  
State Level ◽  
Criminal Procedure ◽  
The State ◽  
Institutional Incentives ◽  
Fiscal Pressure ◽  
Meaningful Data ◽  
The Way

This chapter explores the often-pathological relationship between prosecutors and legislatures and considers fiscal pressure as an important antidote to the pathology. Institutional incentives between prosecutors and legislatures align in a way quite different than the classic separation of powers story. Rather, legislatures are well served to empower prosecutors as much as possible by making criminal law broad and deep. And with respect to substantive criminal law, prosecutors have been enormously empowered. Prosecutors are not merely passive recipients of such power but indeed actively lobby for it—often quite successfully. But fiscal pressures can provide a cross-cutting pressure for legislatures, particularly at the state level where many governments must balance their budgets. Thus, sentencing law sometimes finds legislatures refusing prosecutors’ requests for ever longer or mandatory minimum sentences because longer sentences are expensive; this is especially true where sentencing commissions provide legislatures with meaningful data on costs of particular proposals. Criminal procedure has recently found progressive prosecutors leading the way toward defendant-friendly reforms such as using unaffordable money bail less frequently and providing defendants with more discovery than is required by law. In these spaces, county prosecutors have provided laboratories of experimentation that led the way toward broader statewide reforms.

scholarly journals The Principle of Proportionality in Comparative Perspective

2007 ◽  
Vol 8 (9) ◽  
pp. 835-869 ◽  
Author(s):  
Margherita Poto
Keyword(s):  
Member State ◽  
Political Institutions ◽  
Separation Of Powers ◽  
Administrative Law ◽  
Legal Order ◽  
Comparative Perspective ◽  
European Identity ◽  
Law System ◽  
Principle Of Proportionality ◽  
The Eu

This contribution will contain an analysis of important European dynamics, particularly at this moment when it seems to be necessary to restart the process of a unified European identity, which was, in a way, compromised after the failure of the EU Constitution and the difficulty of giving effectiveness to democracy:the EC professes democracy without being democratic. Thus the fragility of its political institutions, inherently perilous, necessarily reflects on the legitimacy of its legal order, while the constitutional balance intrinsic to the separation of powers ideal is dangerously absent. In other words, while in every Member State, the administrative law system forms part of a working system, this is not the case in the Community.

The Reasonableness of Proportionality in the Australian Administrative Law Context

2015 ◽  
Vol 43 (1) ◽  
pp. 59-90
Author(s):  
Janina Boughey
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Administrative Law ◽  
High Court ◽  
Administrative Action ◽  
Principle Of Proportionality ◽  
Prevailing View

Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

An Alternative Route to Voting Reform: the Right to Vote, Voter Registration, Redistricting and U.S. State Constitutions

2019 ◽  
Vol 49 (3) ◽  
pp. 465-489 ◽  
Author(s):  
Nancy Martorano Miller ◽  
Keith E Hamm ◽  
Maria Aroca ◽  
Ronald D Hedlund
Keyword(s):  
State Level ◽  
Voter Registration ◽  
State Court ◽  
Voting Rights Act ◽  
Constitutional Amendments ◽  
State Constitutions ◽  
The Supreme Court ◽  
Right To Vote ◽  
The Right ◽  
Election Laws

Abstract The U.S. Constitution reserves to states the responsibility for regulating most aspects of elections. Recently, the Supreme Court has weakened the tools for federal officials to challenge state elections practices under the Voting Rights Act and signaled a great deal of deference to state authority over election law. As a result, state legislatures’ latitude to regulate elections is constrained primarily by state constitutions. With voter ID laws and partisan gerrymandering commanding considerable attention in recent years, it is important to investigate the importance of state constitutions in this area. In this article, we discuss recent efforts by voting and election reformers to utilize state constitutions to challenge restrictive voting laws and partisan gerrymandering, whether by enacting state constitutional amendments or relying on state constitutional provisions in state court litigation. We also highlight the diverse and often underappreciated landscape of voting and election laws in the states and the resources available to reformers at the state level by analyzing state constitutional provisions bearing on the right to vote, voter registration, and redistricting.

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