scholarly journals Judicial Institutionalization and Judicial Activism of the Post-Communist Constitutional Courts

2017 ◽  
Vol 10 (2) ◽  
pp. 54 ◽  
Author(s):  
Kirill M. Bumin
Keyword(s):  
Executive Power ◽  
Contextual Influences ◽  
Constitutional Courts ◽  
Political Issues ◽  
Constitutional Review ◽  
Political Actors ◽  
Policy Choices ◽  
Policy Goals ◽  
Accession Process ◽  
Decision Making Behavior

In applying constitutional review, post-communist constitutional courts are affected by the existing political and institutional environments, as well as by their own institutional capabilities. However, our understanding of the activity of the post-communist constitutional courts remains incomplete because the existing research fails to consider how the institutional changes on these courts affect their decision-making behavior. In this study, I examine the activity of nineteen post-communist constitutional courts during the 1992-2006 period. I use an aggregate, time-series measure of judicial institutionalization to show that higher levels of institutionalization enhance these constitutional courts’ ability to pursue their policy goals and influence the degree to which they invalidate policy choices of other major political actors, while lower levels of institutionalization limit the courts’ impact on legal and political issues. The findings of this analysis thus provide the first empirical confirmation of the importance of judicial institutionalization to the policy outputs of the post-communist constitutional courts. I also illustrate how various institutional and contextual influences, such as executive power, legislative fragmentation, economic conditions, EU accession process, the identity of the litigants, and the nature of the litigated issues, influence the activity of post-communist constitutional courts. 

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals Ex Post Review and Expert Policymaking: When Does Oversight Reduce Accountability?

2021 ◽  
Author(s):  
John Patty ◽  
Ian R Turner
Keyword(s):  
Institutional Design ◽  
Policy Decision ◽  
Policy Choice ◽  
Policy Recommendations ◽  
Policy Recommendation ◽  
Policy Choices ◽  
Policy Goals ◽  
Ex Post

Ex post review is a common feature of policymaking institutions. We consider an environment in which an expert agent makes a policy recommendation, which can then be accepted or rejected by an overseer whose policy goals differ from those of the agent. The theory suggests that both behavior and optimal institutional design are sensitive to several factors, including actors' preference alignment, the importance of the policy decision, and the uncertainty about the correct policy choice. We characterize the types of situations in which ex post review creates incentives for the agent to make pathological policy choices. In these situations, ex post review can reduce accountability of the agent to overseer wishes and ultimately provide incentives to set aside review entirely. The theory also offers testable predictions about policy recommendations and the overseer's acceptance or rejection of these recommendations.

Biden is keeping his promise to support unions

2021 ◽  
Keyword(s):  
Fast Food ◽  
Executive Power ◽  
Modern History ◽  
Food Sector ◽  
Content Type ◽  
Union Movement ◽  
Right To Work ◽  
Policy Goals ◽  
The Us

Significance President Joe Biden has promised the most pro-union administration in modern history, with an aggressive use of executive power to support union organisation efforts and policy goals. The union movement is hoping that Biden’s support will strengthen its role. Impacts Major companies in the fast food sector may be classed as joint employers alongside franchise owners, making unionisation easier. Courts are likely to bring the whole of the US workforce under right-to-work provisions, dealing a blow to union finances. Employers are more likely to be fined for breaching existing regulations that prevent activities intended to hamper unions.

17. Failed Democratization

2009 ◽  
Author(s):  
M. Steven Fish ◽  
Jason Wittenberg
Keyword(s):  
Oil And Gas ◽  
Chief Executive ◽  
Executive Power ◽  
Structural Factors ◽  
Key Factors ◽  
Muslim Population ◽  
Political Actors ◽  
History Of ◽  
And Gender ◽  
Established Democracies

This chapter examines key factors that lead to failed democratization. It first describes five categories of countries: established democracies, established autocracies, robust democratizers, tenuous democratizers, and failed democratizers. Using the Freedom House Index, it explains why some democratizers slid backwards while others did not. In particular, it looks at the conditions that undermine democracy and political actors, such as the chief executive, that contribute to democratization’s derailment. The chapter identifies several major structural factors that influence whether democratization succeeds fully, succeeds partially, or fails. These include poverty, a late history of national independence, a large Muslim population, economic reliance on oil and gas, and gender inequality. The chapter concludes by considering ways of reducing the hazards of democratic reversal and preventing relapses into authoritarianism, such as strengthening legislatures and curtailing executive power.

18. A Decade of Democratic Decline and Stagnation

2018 ◽  
pp. 267-282
Author(s):  
M. Steven Fish ◽  
Jason Wittenberg ◽  
Laura Jakli
Keyword(s):  
Oil And Gas ◽  
Chief Executive ◽  
Executive Power ◽  
Structural Factors ◽  
Key Factors ◽  
Muslim Population ◽  
Political Actors ◽  
History Of ◽  
And Gender ◽  
Established Democracies

This chapter examines key factors that lead to failed democratization. It first describes five categories of countries: established democracies, established autocracies, robust democratizers, tenuous democratizers, and failed democratizers. Using the Freedom House Index, it explains why some democratizers slid backwards while others did not. In particular, it looks at the conditions that undermine democracy and political actors, such as the chief executive, that contribute to democratization’s derailment. The chapter identifies several major structural factors that influence whether democratization succeeds fully, succeeds partially, or fails. These include poverty, a late history of national independence, a large Muslim population, economic reliance on oil and gas, and gender inequality. The chapter concludes by considering ways of reducing the hazards of democratic reversal and preventing relapses into authoritarianism, such as strengthening legislatures and curtailing executive power.

10. Constitutions and Courts

2020 ◽  
pp. 205-226
Author(s):  
Nuno Garoupa ◽  
Pedro C. Magalhães
Keyword(s):  
Empirical Evidence ◽  
European Countries ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Current Trends ◽  
Political Impact

This chapter focuses on the constitutions of European countries as well as on the mechanisms in place to interpret and enforce them. It starts by defining ‘constitution’. It then proceeds to a discussion about the role of courts and constitutional review of legislation. Focusing in particular on centralized constitutional review, it describes the variety of powers enjoyed by contemporary constitutional courts. Existing mechanisms for litigation and judicial appointment are also considered. Finally, it addresses the existing empirical evidence about both judicial behaviour in such courts and their political impact. The chapter concludes with an examination of current trends in the direction of supranational constitutionalism and constitutional review.

scholarly journals Partisan Disagreements Arising from Rationalization of Common Information

2015 ◽  
Vol 4 (3) ◽  
pp. 477-492 ◽  
Author(s):  
Benjamin E. Lauderdale
Keyword(s):  
The Political ◽  
Survey Experiment ◽  
Experimental Demonstration ◽  
Cross Sectional ◽  
Political Issue ◽  
Political Issues ◽  
Quantitative Evidence ◽  
Political Actors ◽  
Common Information ◽  
Political World

Why do opposing partisans sometimes disagree about the facts and processes that are relevant to understanding political issues? One explanation is that citizens may have a psychological tendency toward adopting beliefs about the political world that rationalize their partisan preferences. Previous quantitative evidence for rationalization playing a role in explaining partisan factual disagreement has come from cross-sectional covariation and from correction experiments. In this paper, I argue that these rationalizations can occur as side effects when citizens change their attitudes in response to partisan cues and substantively relevant facts about a political issue. Following this logic, I motivate and report the results of a survey experiment that provides US Republicans and Democrats with information that they will be inclined to rationalize in different ways, because they have different beliefs about which political actors they should agree with. The results are a novel experimental demonstration that partisan disagreements about the political world can arise from rationalization.

Dimensions of Variation in Electoral Systems

2017 ◽  
pp. 22-40
Author(s):  
Michael Gallagher ◽  
Paul Mitchell
Keyword(s):  
Real World ◽  
Electoral Systems ◽  
Electoral System ◽  
Political Actors ◽  
Political Consequences ◽  
Policy Choices ◽  
District Magnitude ◽  
Essential Components ◽  
Seat Allocation ◽  
Dimensions Of Variation

Electoral systems matter. They are a crucial link in the chain connecting the preferences of citizens to the policy choices made by governments. They are chosen by political actors and, once in existence, have political consequences for those actors. This chapter argues that electoral system choice is a highly consequential matter for democratic states and offers a comparative overview of the principal means by which electoral systems vary. What are the essential components of real-world electoral systems? The chapter emphasizes the importance of district magnitude, ballot structure (with three main types: categorical, dividual, and ordinal), “levels” of seat allocation, methods of selecting candidates within parties, and devices for limiting proportionality.

Sign in / Sign up

Export Citation Format

Share Document