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Judicial Independence in China: Lessons for Global Rule of Law Promotion
by Randall PeerenboomThis volume challenges the conventional wisdom about judicial independence in China and its relationship to economic growth, rule of law, human rights protection, and democracy. The volume adopts an interdisciplinary approach that places China's judicial reforms and the struggle to enhance the professionalism, authority, and independence of the judiciary within a broader comparative and developmental framework. Contributors debate the merits of international best practices and their applicability to China; provide new theoretical perspectives and empirical studies; and discuss civil, criminal, and administrative cases in urban and rural courts. This volume contributes to several fields, including law and development and the promotion of rule of law and good governance, globalization studies, neo-institutionalism and studies of the judiciary, the emerging literature on judicial reforms in authoritarian regimes, Asian legal studies, and comparative law more generally.
Judicial Independence in Transitional Democracies
by Rhona K. M. Smith Nauman Reayat Moohyung ChoThis book presents interdisciplinary and comparative analyses of judicial independence in transitional democracies across Asia, Latin America, Eastern Europe, the Middle East, and Africa. Although judicial empowerment and independence in transitional democracies have gained both academic and real-world prominence in recent decades, an ongoing debate persists regarding the nature, scope, and determinants of judicial independence in transitional settings. Some transitional democracies successfully develop democracy and the rule of law with the sustained growth of judicial independence, whereas others grapple with substantial challenges and move more towards authoritarianism. This book examines factors that drive de jure and de facto judicial independence in transitional democracies and evaluates their relationship. In doing so, it identifies challenges and opportunities associated with developing judicial independence in transitional democracies. At the intersection of political science and law, the work will be a valuable resource for academics, researchers, and policymakers in constitutional law, constitutional politics, and human rights law.
Judicial Independence: Memoirs of a European Judge (Springer Biographies)
by Carl BaudenbacherThis book is about law, but it is not a law book. It is aimed at all interested contemporaries, lawyers and non-lawyers alike. Richly seasoned with personal memories and anecdotes, it offers unique insights into how European courts actually work. It is generally assumed that independence is part and parcel of the role and function of a judge. Nevertheless, European judges sometimes face difficulties in this regard. Owing to their being nominated by a government, their limited term of appointment, and the possibility of being reappointed or not, their judicial independence can be jeopardized. Certain governments have a track record of choosing candidates who they believe they can keep on a leash. When this happens, private parties are at risk of losing out. The EFTA Court is under even more pressure, since the EEA/EFTA states Iceland, Liechtenstein and Norway essentially constitute a pond with one big fish (Norway) and two minnows. For quite some time now, certain Norwegian protagonists have sought to effectively transform the EEA into a bilateral agreement with the EU. This attitude has led to political implications that have affected the author himself. The independence of the EFTA Court is also endangered by the fact that it operates alongside a large sister court, the Court of Justice of the European Union. And yet the EFTA Court has established its own line of jurisprudence and its own judicial style. It has remained faithful to specific EFTA values, such as the belief in free trade and open markets, efficiency, and a modern view of mankind. During the first 24 years of its existence, it has even had an over-proportionate influence on ECJ case law. Since EEA Single Market law is economic law, the importance of economics, an often-overlooked aspect, is also addressed. In closing, the book explores Switzerland’s complicated relationship with, and Britain’s impending departure from, the EU. In this regard, it argues that the EFTA pillar should be expanded into a second European structure under British leadership and with Swiss participation.
Judicial Law-Making in European Constitutional Courts (Comparative Constitutional Change)
by Monika Florczak-WątorThis book analyses the specificity of the law-making activity of European constitutional courts. The main hypothesis is that currently constitutional courts are positive legislators whose position in the system of State organs needs to be redefined. The book covers the analysis of the law-making activity of four constitutional courts in Western countries: Germany, Italy, Spain, and France; and six constitutional courts in Central–East European countries: Poland, Hungary, the Czech Republic, Slovak Republic, Latvia, and Bulgaria; as well as two international courts: the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The work thus identifies the mutual interactions between national constitutional courts and international tribunals in terms of their law-making activity. The chosen countries include constitutional courts which have been recently captured by populist governments and subordinated to political powers. Therefore, one of the purposes of the book is to identify the change in the law-making activity of those courts and to compare it with the activity of constitutional courts from countries in which democracy is not viewed as being under threat. Written by national experts, each chapter addresses a series of set questions allowing accessible and meaningful comparison. The book will be a valuable resource for students, academics, and policy-makers working in the areas of constitutional law and politics.
Judicial Law-Making in European Constitutional Courts (ISSN)
by Monika Florczak-WThis book analyses the specificity of the law-making activity of European constitutional courts. The main hypothesis is that currently constitutional courts are positive legislators whose position in the system of State organs needs to be redefined.The book covers the analysis of the law-making activity of four constitutional courts in Western countries: Germany, Italy, Spain, and France; and six constitutional courts in Central–East European countries: Poland, Hungary, the Czech Republic, Slovak Republic, Latvia, and Bulgaria; as well as two international courts: the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The work thus identifies the mutual interactions between national constitutional courts and international tribunals in terms of their law-making activity. The chosen countries include constitutional courts which have been recently captured by populist governments and subordinated to political powers. Therefore, one of the purposes of the book is to identify the change in the law-making activity of those courts and to compare it with the activity of constitutional courts from countries in which democracy is not viewed as being under threat. Written by national experts, each chapter addresses a series of set questions allowing accessible and meaningful comparison.The book will be a valuable resource for students, academics, and policy-makers working in the areas of constitutional law and politics.
Judicial Law-Making in Post-Soviet Russia
by Alexander VereshchaginA novel and incisive investigation of the role of judicial precedents and customs in Russian law, this book examines the trends in the development of judge-made law in Russian civil law since the demise of the Soviet Union. Exploring the interrelated propositions that a certain creative element is intrinsic to the judicial function in modern legal systems, which are normally shaped by both legislators and judges and that the Russian legal system is not an exception to this rule, the author argues that the rejection or acceptance of judge-made law can no longer be sufficient grounds for distinguishing between common law and civil law systems for the purposes of comparative analysis. Divided into six chapters, it covers: the principles applied by judges when interpreting legal acts; analyzing a number of academic writings on this subject the boundaries of the realm of judge-made law and the problem of 'hard cases' and the factors, which make them 'hard' a taxonomy of forms in which Russian courts effectuate their law-creation functions current policies of courts in legal and socio-political matters joint-stock societies and arbitrazh courts. Estimating the degree of creativity within different branches of the Russian judiciary and explaining the difference in the approaches of various courts as well as setting-out proposals as to how the discrepancies in judicial practice can be avoided, Judicial Law-Making in Post-Soviet Russia is invaluable reading for all students of international law, comparative law, legal skills, method and systems and jurisprudence and philosophy of law.
Judicial Nominations (Federal Abortion Politics Ser. #Vol. 3)
by Neal Devins Wendy L. WatsonOn January 22, 1973, the Supreme Court issued its decision in Roe v. Wade. Holding that a woman’s substantive due process right to terminate her pregnancy in the early months outweighed state interests in maternal health and fetal protection, the Court struck down a Texas law permitting abortions only to save the life of the mother. This series is divided into three volumes, with each part containing multiple case studies. Volume One (two books) considers legislative initiatives; Volume Two (two books) reviews executive initiatives; and Volume Three (one book) examines judicial nominations. Abortion funding, clinic access legislation, freedom of choice and human life legislative proposals, and proposed constitutional amendments are considered in Part One. Presidential positions, federal family planning regulation (domestic and international), fetal tissue research, and governmental briefs and arguments in abortion-related Supreme Court litigation are the subject of Part Two.First published in 1995. Routledge is an imprint of Taylor & Francis, an informa company.
Judicial Oppression of Child Rights in Democratic States and by International Human Rights Bodies: A Comparative Perspective
by Sonja GroverThe book analyzes in depth selected contemporary U.S., Canadian and European landmark and other cases illustrating the nature and impact of the legal regime that undermines child human rights empowerment in many Westerm democracies. The objectives in writing this book are to (i) encourage a re-evaluation of the legal regime that fosters the erosion of the notion of children as autonomous holders of fundamental human rights and not but subjects with weak derivative rights stemming from parental or family rights; (ii) highlight the courts‘ proper role in a democracy of protecting child and youth human rights empowerment and to (iii) contribute to fostering an evolution in the historical notion of the court’s patris patriae doctrine as including the protection and strengthening of child autonomous fundamental human rights and child empowerment. Ultimately then the book highlights through the child rights domain the significant role the courts must and should play in strengthening democratic values and principles.
Judicial Politics in Polarized Times
by Thomas M. KeckWhen the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court's Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court's Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA's fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to--rather than challenge--the democratic will? Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges' claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges "tyrants in robes," undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
Judicial Politics in the United States
by Mark C. MillerJudicial Politics in the United States examines the role of courts as policymaking institution, and their interactions with the other branches of government and other political actors in the American political system, helping students understand how and why courts are such important legal and political institutions in the United States. Not only does this book cover the nuts and bolts of our judicial system, from the functions, structures and processes of courts to the details of the legal profession, it goes well beyond other judicial process books by examining how the courts interact with executives, legislatures, and state and federal bureaucracies. It also includes a chapter devoted to how the courts interact with interest groups, the media, and general public opinion, and a chapter examining how U. S. courts and the judges who serve on those courts interact with other judiciaries around the world, exposing students to issues beyond our borders. Judicial Politics in the United States balances coverage on the courts and judicial processes with discussions of broader issues of the courts’ interactions with our larger political universe and with courts abroad, making it the quintessential text for all students of judicial processes and politics.
Judicial Politics in the United States
by Mark C. MillerJudicial Politics in the United States examines the role of courts as policymaking institution, and their interactions with the other branches of government and other political actors in the American political system, helping students understand how and why courts are such important legal and political institutions in the United States. Not only does this book cover the nuts and bolts of our judicial system, from the functions, structures and processes of courts to the details of the legal profession, it goes well beyond other judicial process books by examining how the courts interact with executives, legislatures, and state and federal bureaucracies. It also includes a chapter devoted to how the courts interact with interest groups, the media, and general public opinion, and a chapter examining how U. S. courts and the judges who serve on those courts interact with other judiciaries around the world, exposing students to issues beyond our borders. Judicial Politics in the United States balances coverage on the courts and judicial processes with discussions of broader issues of the courts’ interactions with our larger political universe and with courts abroad, making it the quintessential text for all students of judicial processes and politics.
Judicial Power in a Globalized World: Liber Amicorum Vincent De Gaetano
by Paulo Pinto de Albuquerque Krzysztof WojtyczekThis book explores fundamental topics concerning the functioning of the judiciary. The authors – class scholars, international judges and jurists from a diverse range of countries – address general theoretical issues in connection with judicial power, the role and functioning of international courts, international standards concerning the organization of national judiciaries, and the role of domestic courts in international relations, as well as alternative means of settling disputes. The book contributes a novel and valuable global perspective on burning issues, especially on judicial power and independence in a time in which illiberal and authoritarian regimes are constantly seeking to diminish the role of the judiciary.
Judicial Power, Democracy and Legal Positivism (Applied Legal Philosophy)
by Jeffrey Goldsworthy Tom CampbellIn this book, a distinguished international group of legal theorists re-examine legal positivism as a prescriptive political theory and consider its implications for the constitutionally defined roles of legislatures and courts. The issues are illustrated with recent developments in Australian constitutional law.
Judicial Power: How Constitutional Courts Affect Political Transformations
by Christine LandfriedThe power of national and transnational constitutional courts to issue binding rulings in interpreting the constitution or an international treaty has been endlessly discussed. What does it mean for democratic governance that non-elected judges influence politics and policies? The authors of Judicial Power - legal scholars, political scientists, and judges - take a fresh look at this problem. To date, research has concentrated on the legitimacy, or the effectiveness, or specific decision-making methods of constitutional courts. By contrast, the authors here explore the relationship among these three factors. This book presents the hypothesis that judicial review allows for a method of reflecting on social integration that differs from political methods, and, precisely because of the difference between judicial and political decision-making, strengthens democratic governance. This hypothesis is tested in case studies on the role of constitutional courts in political transformations, on the methods of these courts, and on transnational judicial interactions.
Judicial Process
by Prof. Dr. G.P. Tripathi G.G. Padmakar TripathiThe book Judicial Process by Prof. G.P. Tripathi and G.G. Padmakar Tripathi provides a comprehensive analysis of the workings of the judiciary, its structure, and its role in shaping law and governance. Covering key aspects such as judicial activism, constitutional adjudication, statutory interpretation, and the impact of legal precedents, the book examines both the theoretical and practical dimensions of judicial decision-making. It highlights challenges like case backlog, judicial accountability, and the influence of politics on the legal system. The authors explore comparative judicial structures across various countries, discuss theories of justice and punishment, and analyze the intersection of law with society. Special attention is given to evolving legal doctrines, the role of tribunals, and alternative dispute resolution mechanisms. The book serves as an essential resource for law students, legal professionals, and policymakers seeking a deeper understanding of how the judiciary functions as a pillar of democracy and an agent of social change.
Judicial Process In America
by Robert A. Carp Kenneth L. Manning Lisa M. Holmes Ronald StidhamThe book considers judges, lawyers, and litigants, as well as the variables at play in judicial decision making. In this Tenth Edition, the authors examine the recent Supreme Court rulings on same-sex marriage and health care subsidies, the effect of three women justices on the Court's patterns of decision, and the policy-making role of state tribunals. Original data on the decision-making behaviour of the Obama trial judges--which are unavailable anywhere else--ensure this text's position as a standard bearer in the field. New to This Edition Comprehensive analysis of court dynamics, including the impact of three women on the U. S. Supreme Court; Chief Justice John G. Roberts' leadership on the Supreme Court; the new Attorney General of the United States, Loretta Lynch; the voting patterns of Democrats and Republicans on the trial court bench; and the decisional patterns of the Obama appointees. New coverage of current topics: Gay and lesbian rights, including analysis of Obergefell v. Hodges The Hobby Lobby case and judicial lobbying The trial of the Boston Marathon bomber The legality of the use of drones at home and abroad The legal implications of disclosures by Edward Snowden via WikiLeaks The Supreme Court decisions on the Affordable Care Act The legal ramifications of the use of the Confederate battle flag by government entities Issues of immigration and deportations, including the so-called Dreamers.
Judicial Process and Judicial Policymaking
by G. Alan TarrAn excellent introduction to judicial politics as a method of analysis, the eighth edition of Judicial Process and Judicial Policymaking focuses on policy in the judicial process. Rather than limiting the text to coverage of the U.S. Supreme Court, G. Alan Tarr examines the judiciary as the third branch of government, and weaves four major premises throughout the text: (1) Courts in the United States have always played an important role in governing and their role has increased in recent decades; (2) Judicial policymaking is a distinctive activity; (3) Courts make policy in a variety of ways; and (4) Courts may be the objects of public policy, as well as creators.New to the Eighth Edition Discusses appointments by Presidents Donald Trump and Joseph Biden to the federal courts, including the confirmations of Gorsuch, Kavanaugh, Coney Barrett, and Jackson to the Supreme Court Introduces the controversy of the Supreme Court’s “shadow docket” Analyzes the legal and political aftermath of the Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade Examines other key state and federal rulings on non-unanimous verdicts in criminal cases, gerrymandering, climate change, and separation between church and state
Judicial Protection in Transnational Criminal Proceedings (Legal Studies in International, European and Comparative Criminal Law #5)
by Martin Böse Maria Bröcker Anne SchneiderThis book proposes and outlines a comprehensive framework for judicial protection in transnational criminal proceedings that ensures the right to judicial review without hampering the effective functioning of international cooperation in criminal matters. It examines a broad range of potential approaches in the context of selected national criminal justice systems, and offers a comparative analysis of EU Member States and non-Member States alike. The book particularly focuses on the differences between cooperation within the EU on the one hand and cooperation with third states on the other, and on the consequences of this distinction for the scope of judicial review.
Judicial Recourse to Foreign Law: A New Source of Inspiration? (UT Austin Studies in Foreign and Transnational Law)
by Basil Markesinis Jorg FedtkeAccessible and clearly structured, this is the first book to include examinations of public and private law in the discussion about access to foreign laws. With commentaries by an international collection of leading judges in the field, it looks at the practice in a range of countries spread across the globe. In jurisprudence an exchange of ideas is essential, as there is no monopoly of wisdom. Legal convergence is particularly beneficial to both public law, as constitution building is done in so many parts of the world, and to commercial law, where enhanced communication, trade and information mean that people have to work more closely together. This book: examines the theme of judicial mentality and how it helps or hinders recourse to foreign ideas raises and addresses the dangers that accompany comparative law and judicial creativity looks at the practice in America, Canada, England, France, Germany, Italy, Israel, South Africa and at the European Court of Justice. Ideal for practitioners and academics, it is an essential read for those working in or studying jurisprudence at undergraduate or postgraduate level.
Judicial Reputation: A Comparative Theory
by Tom Ginsburg Nuno GaroupaJudges are society’s elders and experts, our masters and mediators. We depend on them to dispense justice with integrity, deliberation, and efficiency. Yet judges, as Alexander Hamilton famously noted, lack the power of the purse or the sword. They must rely almost entirely on their reputations to secure compliance with their decisions, obtain resources, and maintain their political influence. In Judicial Reputation, Nuno Garoupa and Tom Ginsburg explain how reputation is not only an essential quality of the judiciary as a whole, but also of individual judges. Perceptions of judicial systems around the world range from widespread admiration to utter contempt, and as judges participate within these institutions some earn respect, while others are scorned. Judicial Reputation explores how judges respond to the reputational incentives provided by the different audiences they interact with—lawyers, politicians, the media, and the public itself—and how institutional structures mediate these interactions. The judicial structure is best understood not through the lens of legal culture or tradition, but through the economics of information and reputation. Transcending those conventional lenses, Garoupa and Ginsburg employ their long-standing research on the latter to examine the fascinating effects that governmental interactions, multicourt systems, extrajudicial work, and the international rule-of-law movement have had on the reputations of judges in this era.
Judicial Responses to Climate Change in the Global South: A Jurisdictional and Thematic Review (Living Signs of Law #2)
by Shuma Talukdar Valéria Emília de AquinoThis book explores how judiciaries in different parts of the world are responding to climate change and how climate change intersects with the law. It offers feminist approaches to the judicial responses to climate change in the Global South, providing both jurisdictional and thematic reviews. Climate change is one of the most pressing global issues facing humankind, and is currently reshaping geopolitics, governance, law, and international relations around the world.The book’s originality lies in its endeavour to highlight judicial perspectives on climate change from prominent female researchers who have been working on this subject professionally and/or academically, bringing both regional and international views to the subject. The main objective is to give a new meaning to the study of climate change by bringing together the most recent aspects, including climate litigation, eco-constitutionalism and the environmental rule of law, climate and environmental justice, climate geopolitics and climate governance.The book will be of interest to students, academics, and scholars of climate law and environmental law around the world.
Judicial Responsibility and Coups d’État: Judging Against Unconstitutional Usurpation of Power
by Kriangsak KittichaisareeThis book examines the responsibility of judges of domestic courts following unconstitutional usurpation of power of government (coups d’état). It explores judges’ liability for failing to discharge their judicial duty independently and impartially, and the criminality of usurpers and their accomplices and collaborators for their violation of fundamental rights and freedoms or commission of crimes of international concern. Written by a highly regarded non-Western author, the book is coherent and meticulously researched, covering an approach to coups in an insightful and fascinating fashion. It includes a sophisticated and thorough analysis of the relevant comparative jurisprudence of domestic and international courts, with concrete examples of the best practices among decisions of domestic courts in countries that have experienced coups d’état. With an increasing global interest in the phenomenon of coups, democratic backsliding and the place and role of the judiciary as the only hope to rein in acts of unconstitutional usurpation of power, the book will be essential reading for members of the legal profession, those cherishing democracy as well as students and researchers in constitutional law, law and political science, public international law, international human rights law, international criminal law, regime changes, transitional justice and international organizations.
Judicial Review & the Human Rights Act
by Richard Gordon Tim WardThe Human Rights Act 1998 had a profound effect on the law of the United Kingdom,and in no area more so than judicial review. This book gives practical guidance on the interplay between the Act and domestic public law.
Judicial Review and Contemporary Democratic Theory: Power, Domination, and the Courts (Law, Courts and Politics)
by Scott E. Lemieux David J. WatkinsFor decades, the question of judicial review’s status in a democratic political system has been adjudicated through the framework of what Alexander Bickel labeled "the counter-majoritarian difficulty." That is, the idea that judicial review is particularly problematic for democracy because it opposes the will of the majority. Judicial Review and Contemporary Democratic Theory begins with an assessment of the empirical and theoretical flaws of this framework, and an account of the ways in which this framework has hindered meaningful investigation into judicial review’s value within a democratic political system. To replace the counter-majoritarian difficulty framework, Scott E. Lemieux and David J. Watkins draw on recent work in democratic theory emphasizing democracy’s opposition to domination and analyses of constitutional court cases in the United States, Canada, and elsewhere to examine judicial review in its institutional and political context. Developing democratic criteria for veto points in a democratic system and comparing them to each other against these criteria, Lemieux and Watkins yield fresh insights into judicial review’s democratic value. This book is essential reading for students of law and courts, judicial politics, legal theory and constitutional law.
Judicial Review and Judicial Power in the Supreme Court: The Supreme Court in American Society (The\supreme Court In American Society Ser. #Vol. 4)
by Kermit L. HallAvailable as a single volume or as part of the 10 volume set Supreme Court in American Society