Judicial Review Cases Research Articles

Standing Space Only in the CJEU: Comment on <I>Inuit TapiriitKanatami v European Parliament and Council</I>

This article examines the Government’s proposal to reform the test of sufficient interest in judicial review cases. It argues: that the current, wide approach helps to ensure lawful, accountable government; that in some cases it may save judicial and other public resources; and that it might additionally mean that those affected by unlawful governmental action, but who do not have the means to bring a claim themselves, may still have their cases heard.

Domestic Violence in Brazil: Social Problems and Legislative Interventions

Recent statistical data confirms that domestic violence is a structural problem of exceptional gravity. We analyze the frequent legislative changes in Brazil since 2000 as a result of social pressure for protection of abused women. Only the Law 11.340 of 2006 was well received by lawyers, judges and the public opinion. We present the innovations and peculiarities of this statute and the allegations on unconstitutionality. We discuss cases of judicial review of this law and reject the arguments of unconstitutionality. That notwithstanding, we argue that penalization decisions is the wrong way from a criminological point of view because they do not take into consideration the desires and needs of the victims.

Coda: Kafka, Kadi, Kant

While Yusuf only knocked at the judicial gates of the European Court of Justice, another case managed to get passed the door of Europe’s highest court. This second judicial review case was – not without sublime irony – called Kadi; and it is that case that has become the modern point of reference for the relationship between international and European law. Presumed to be a Taliban terrorist, the plaintiff’s financial assets had also been frozen as a result of European legislation reproducing a United Nations Security Council Resolution. Kadi (“K”) tried to challenge the “arrest”, but the General Court rejected – on the same day and with the same reasons as in Yusuf – the request for judicial review; yet “K” appealed to the European Court of Justice by insisting that his (European) rights of due process (among other things) had been violated. When the European Court delivered its judgment, Kadi I instantly became a constitutional cause celebre, which has caused barrels of academic ink to be spilt. How has the Court decided Kadi II; and what are the broader philosophical questions involved in this story? This Coda explores the milestones of this Kafkaesque saga, in which “K” ultimately walked free after a decade of judicial battles.

The Proceduralist Case for Judicial Review

This essay explores majority decisions to give up majority power. In particular, it analyzes a majority’s decision to institute judicial review as a method of final decision-making on questions of constitutional rights and contrasts that decision with the majority’s election of a dictator. Both decisions involve a majority’s voluntary transfer of power for certain matters in irreversible ways. Adopting the proceduralist viewpoint, the essay argues that these types of decisions - involving majoritarian renunciation of power - require a greater justification than decisions that do not alter future decision-procedures. That greater justification requires these types of decisions, decisions this essay terms “delegation decisions,” to satisfy three legitimacy conditions. First, the majority can only legitimately give up power over issues that can be decided by procedures other than majority vote. Second, the procedural mechanism the majority gives power to must be a fair procedure. Finally, the procedural mechanism must also be appropriate for the decisions it is supposed to make. The essay argues that majoritarian imposition of judicial review satisfies these three conditions. Majoritarian election of a dictator does not. First, the imposition of judicial review hands over only one set of issues to the constitutional court - bill of rights questions - that is capable of resolution by a nonmajoritarian procedure. Second, judicial review as practiced by an ideal constitutional court is a fair procedure for rights questions because it exemplifies qualities such as anonymity and neutrality that are central to procedural fairness. Finally, a constitutional court is appropriate for deciding constitutional rights questions because its virtues - particularly its transparency, deliberative capacity, principled reasoning, and impartiality - are relevant for these questions and mitigate distortions in the decision-making process concerning rights. On the other hand, an elected despot makes decisions on questions that the majority cannot legitimately relinquish power over, fails to instantiate values of procedural fairness, and is inappropriate for any number of the infinite questions that it has authority to decide. Proceduralists can thus resist the majority’s election of a dictator without also having to resist its imposition of judicial review. And they need not abandon proceduralism in order to do so.

Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care

Fifteen years after the Israeli Supreme Court decided in Mizrahi that Israel's Basic Laws amount to Israel's formal Constitution and it enjoys the power of judicial review, the debate about Israel's constitutional development is far from over. This essay makes the following four propositions: First, the Israeli political branches have been debating the wrong question. Rather than lingering on the threshold question of whether or not Israel has a formal Constitution at all, they should be discussing what kind of Constitution is developing in Israel. Second, the consensus among scholars who recognize Israel’s formal Constitution is that its existence is best explained by the Constituent Authority theory. But they have adopted a myopic understanding of Israel’s constitutional development. Like so many other aspects of Israel’s national evolution, a single theory cannot adequately explain the existence of its formal constitution. Rather, this national rite of passage occurred incrementally, supported by four different, and at times conflicting, constitutional theories, each with its own strengths and weaknesses as suitable analytical frameworks. Third, depending on the theory one ascribes to Israel's constitutional development, present and future constitutional debates may be resolved differently. As examples, I illustrate how the theories diverge when applied to two contemporary constitutional matters: (1) whether referenda can be used to decide territorial concessions; and (2) whether Ultra-Orthodox Yeshiva students may be singled out for special financial treatment. Broader questions of judicial power are even more pressing, and I further explore how the various theories may affect the use of the legislative override power to overcome judicial review. Last, underlying my discussion is the assertion that there is a strong nexus between the process of enactment of a constitution and the kind of judicial review - whether strong or weak - that may emerge. This thesis deviates from the conventional view that the nature of judicial review is solely dependent on the mechanisms adopted in the constitutional document itself, rather than on the processes by which the constitution was adopted. I pursue this scheme in discussing the ramifications of the Israeli case study for Commonwealth constitutionalism in particular and comparative purposes more broadly.

Considering Political Alternatives to "Hard Look" Review

That is absolutely right. I am sufficiently confused by the facts that are already on the table-two of them in particular. One (the dog that I thought was barking in that interesting first chart Don Elliott put up, on which he did not remark), is that the first two periods of judicial review he showed us had 337 and 294 cases of judicial review each; for the third period, for the same length of time, the figure is about 800.1 Something is going on there. The other is just a square conflict that our moderator is much better positioned than I am to tell us about. He recently published a fascinating study in the Duke Law Journal that purports to show that the affirmance rate for administrative agencies in the D.C. Circuit, which gets about 60% of administrative appeals these days, is only 30%.2 His figures are from 1987, not 1984 or 1985, but I doubt court performance has changed so sharply in such a very short period of time. These facts warrant some further exploration. Cass Sunstein and Don Elliott each, in his way, was talking about the results of individual cases and the implications for individual cases of litigation or litigation outcomes. I might describe this as the micro-perspective on judicial review and its impact. I will be speaking at a different level of abstraction-without facts, of course-but at a level that seems an important one. My remarks are generally addressed to the macro-perspective, to examining the overall, systemic impact of judicial review of a certain intensity on the way agencies go about their business. This is rather like the Mashaw-Harfst study to which you have already heard Cass Sunstein refer, a good portion of which appeared over a year ago in the Yale Journal on Regulation,3 and that will eventually appear as a book from Harvard University Press. It is a wonderful study. Rather like Shep Melnick's study4 and some others, it tells a cautionary

Judicial Review and Political Bias: Moving from Consensual to Majoritarian Democracy

Due to the collapse of the party system during the mid-nineties, Italy represents an interesting case study to test the effects of a transition from a consensual to a majoritarian model of democracy on judicial behavior at the level of the Constitutional Court. Using a dataset of 972 cases of substantive judicial review (ricorsi in via principale} from 1985 to 2005, and proposing new measures of political alignment within constitutional review, we analyze the effect of a change in the political party system on judicial behavior. Our results show that political alignment is a stronger predictor of judicial decision making under majoritarian than consensual model of democracy.

Human Rights adjudication in contemporary democracies: Courts’ specific moral insight as a decisive advantage over legislatures (a modest and partial response to Jeremy Waldron’s core case against judicial review)

The paper confronts some of the arguments presented by Jeremy Waldron against the mechanism of judicial review and tries to provide a modest contribution for supporting the legitimacy of Courts as an adequate institutional setting to adjudicate human rights within contemporary democratic systems. It is divided in three parts. The first one presents the twofold framework of my position, i.e. the particular open structure and expansive scope that human rights have acquired in the international field, and Rainer Forst’s theory about the foundations of this kind of rights. The second part describes a limited piece of Jeremy Waldron’s core against judicial review, focusing on the reasons he provides to discard the specific moral insight of courts in this area of rights’ adjudication as an outcome-related advantage that can support the mechanism of judicial review. Finally, the paper develops a critique of Waldron’s position regarding that advantage. Without contesting his four demanding assumptions about how democratic institutions work in an ideal context, I argue that the specific moral insight that Courts have as a consequence of how individual cases are presented before them is a strong advantage over legislatures and can be dispositive in the case for judicial review in this field of law if we think about it from within the empirical and theoretical framework described in the first part of the work.

Extended Standing — Enhanced Accountability? Judicial Review of Commonwealth Environmental Decisions

Environmental groups have difficulties being granted standing according to common law tests. However, environmental legislation in Australia often includes extended standing provisions that facilitate access to the courts for environmental groups. This article examines judicial review cases involving challenges by environmental groups to Commonwealth environmental decisions. The conclusion that is drawn from the cases is that while environmental groups may have gained access to the courts their challenges often fail on the grounds of judicial review. The cases indicate that the Federal Court has applied the grounds of review in an orthodox, restrained, manner which tends to inhibit the effectiveness of judicial review as an accountability mechanism for environmental groups.

Public Law and The Executive

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

On the evidence for viruses in social work systems: law, ethics and practice

The purpose of this paper is to explore an apparent disjunction between espoused professional ethics and ethics in practice, and between law in statute and law in action. Social work in England is used as the main case study, however, research from other jurisdictions is drawn upon to demonstrate wider concern about departures from moral and legal rules. The evidence of the disjunction is presented, drawing principally from judicial review cases, investigations by the Commissioner for Local Administration (Ombudsman), inquiry evidence and government reports. The article critiques the current regulatory apparatus in England and the mechanisms by which staff and service users can hold public organisations, particularly councils with social services responsibilities, accountable. The interface between law and ethics is reviewed. The paper concludes with observations about strengthening legal and ethical literacy in practice.

The Case for Judicial Review: Judges as Agents and Judges as Trustees

Lawyers, constitutional theorists and political philosophers continue to disagree over the merits and legitimacy of judicial review. Borrowing insights from delegation theory, industrial organization as well as empirical accounts of judicial behaviour, this paper assesses two approaches to the justification of judicial review: (1) Following the PrincipalAgent Model, judges are given the authority to review and invalidate legislation to enforce the choices of the constitutional framers over recalcitrant legislative majorities. (2) By contrast, under the Trustee Model, judges are given the power of judicial review to act as trustees of the political system: their task is to ensure that the legislative process produces the “best” outcomes or, at least, policies that are Pareto-optimal. While showing how the two models relate to traditional understandings of the role of judges, the paper assesses the extent to which the organizational setting of courts and the judges’ incentive structure ensure that judicial review works as each model prescribes. It is argued that, from an empirical standpoint, justifying judicial review is easier – albeit by no means unproblematic – under the Trustee than under the Principal-Agent Model.

How Different are Waldron's and Fallon's Core Cases For and Against Judicial Review?

Recently Jeremy Waldron offered the ‘core of the case against judicial review’. Richard Fallon responded with the ‘core of an uneasy case for judicial review.’ The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar once we take the conditions and qualifications into account. At its heart Professor Fallon's case rests on the proposition that ‘[l]egislative action is more likely to violate fundamental rights than legislative inaction’. I call this the libertarian presupposition in Professor Fallon's case. This article examines the libertarian presupposition, raising questions about its implication that private violations of fundamental rights are less serious or pervasive than violations of fundamental rights pursuant to legislation. It then discusses Professor Waldron's argument that an important part of the core case against judicial review is the existence of reasonable disagreement about the proper specification of fundamental rights. I argue that, while Professor Fallon provides a plausible psychological account of why the existence of such disagreement is unlikely to do much work in persuading people to accept the core case against judicial review, that psychological account offers a path toward understanding the different dispositions that lead Professors Waldron and Fallon to characterize their quite similar positions in the more dramatic ‘against-for’ manner.

The Easy Core Case for Judicial Review

This paper defends judicial review on the ground that judicial review is necessary for protecting “a right to a hearing.” Judicial review is praised by its advocates on the basis of instrumentalist reasons; i.e., because of its desirable contingent consequences such as protecting rights, promoting democracy, maintaining stability, etc. We argue that instrumentalist justifications for judicial review are bound to fail and that an adequate defense of judicial review requires justifying it on non-instrumentalist grounds. A non-instrumentalist justification grounds judicial review in essential attributes of the judicial process. In searching for a non-instrumental justification, we establish that judicial review is designed to protect the right to a hearing. The right to a hearing consists of three components: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision that impinges (or may have impinged) on one's rights, and the duty to reconsider the initial decision giving rise to the grievance. The right to a hearing is valued independently of the merits of the decisions generated by the judicial process.

Democracy and Judicial Review: Are They Really Incompatible?

This article shows that judicial review has a democratic justification, although it is not necessary for democratic government and its virtues are controversial and often speculative. Against critics like Waldron and Bellamy, it shows that judges, no less than legislators, can embody democratic forms of representation, accountability and participation. Hence, judicial review is not undemocratic simply because it enables unelected judges to over-rule elected legislators when people disagree about rights. Against recent defenders of judicial review, such as Eisgruber and Brettschneider, it shows that democratic arguments for judicial review do not require judges to be better at protecting rights than legislators. Hence a democratic justification for judicial review does not depend on complex and inevitably controversial interpretations and evaluations of judicial as opposed to legislative judgments. Democratic government does not demand special virtue, competence or wisdom in its citizens or their leaders. From a democratic perspective, therefore, the case for judicial review is that it enables individuals to vindicate their rights against government in ways that parallel those they commonly use against each other. This makes judicial review normatively attractive whether or not it leads to better decisions than would be made by other means.

Reflections on Administrative Law in China: A Hong Kong Perspective

Under the constitutional framework of “one country, two systems” that has been put into practice since Hong Kong’s reunification with China in 1997, the legal system of the Hong Kong Special Administrative Region (HKSAR) and that of mainland China operate autonomously in such a way that they are largely independent of each other. The HKSAR retains almost all the features of its pre-1997 common law system. In the domain of public law, the legal history of the HKSAR has seen a number of high profile constitutional cases as well as cases in administrative law. There has been a notable increase in judicial review cases in Hong Kong since the handover. Administrative law in Hong Kong is thus not only alive and well in the post-1997 era, but has flourished and displayed an unprecedented degree of vibrancy and vitality. At the same time, across the Hong Kong-Shenzhen border, administrative law has also flourished in mainland China. In March 1999, the National People’s Congress (NPC) adopted constitutional amendments which provide, inter alia, for “ruling the State in accordance with law” and “building a socialist Rechtsstaat (State based on the Rule of Law)”. Later in the same year, the State Council promulgated the Decision on the Comprehensive Promotion of Administration in Accordance with Law. This Decision was followed by the very detailed and elaborate Implementation Outline for the Comprehensive Promotion of Administration in Accordance with Law promulgated by the State Council in 2004. The last decade has also seen major enactments in the field of Chinese administrative law, including three major laws enacted by the NPC Standing Committee -- the Law of Administrative Licensing 2003, the Law on Civil Servants 2005, the Law on Security Administrative Punishment 2005, and two major enactments by the Supreme People’s Court – its Interpretations on the Administrative Litigation Law in 2000, and its Provisions on Evidence in Administrative Litigation in 2002. Drafting work for the revision of the Administrative Litigation Law 1989 has also begun. In this short essay, I will reflect and comment on some aspects of administrative law in China from the perspective of a scholar of law in Hong Kong, and draw some broad comparisons between administrative law in mainland China and Hong Kong. I will begin with some thoughts on the historical development of Chinese administrative law. Then I will turn to the structure of contemporary Chinese administrative law as presented in leading textbooks, and compare it with that of administrative law in Hong Kong. Finally, I will comment on some key features of the law of administrative litigation in China, particularly the scope of and grounds for judicial review of administrative action.

Sovereign Immunity: No Defense in Private Law

The author makes an analytical study of the defense of sovereign immunity with reference to law of torts and Constitutional law. The author brings out as to how the defense has been progressively narrowly interpreted, and makes a case for judicial review and overruling of the doctrine of sovereign immunity.

Slaying the Hydra: Living Tree Constitutionalism and the Case for Judicial Review of Legislation

In A Common Law Theory of Judicial Review: The Living Tree, Wil Waluchow neatly sidesteps the critique of judicial review based on the contention that constitutional rights are unacceptably indeterminate by arguing that it is this very indeterminacy that makes a common law method of legal interpretation appropriate. However, his contention that judges are able to ‘discover’ the underlying ‘authentic’ moral views of citizens is insufficiently grounded to meet the objection that common law reasoning utilising such unspecific material will result in controversial decisions that reflect the values and experience of an unrepresentative social and professional elite. He also ignores the important fact that electoral democracy is partly about the protection of vulnerable majorities against powerful minorities. However, Waluchow’s approach could be rendered more acceptable where there is the practical possibility of effective legislative review of common law style decision-making in the arena of human rights.

How Different are the Core Cases for and Against Judicial Review?

Recently Jeremy Waldron offered the of the case against judicial Richard Fallon responded with the of an uneasy case for judicial The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar once we take the conditions and qualifications into account. Imagine the conditions lying at the periphery of the core case against judicial review, and the qualifications lying at the periphery of the core case for it, and then convert the peripheries into the core. We will then see that the conditioned core case against judicial review is nearly identical to the qualified core case for it. This Essay focuses on Professor Fallon's case. At its heart that case rests on the proposition that [l]egislative action is more likely to violate fundamental rights than legislative inaction.Put another way: Fewer statutes are better than more statutes. I call this the libertarian presupposition in Professor Fallon's case. As a presupposition it can be overcome, and the qualifications Professor Fallon places on his argument describe the circumstances under which it is. Yet, taking those qualifications into account reduces the scope of judicial review to one largely compatible with Professor Waldron's conditioned case against judicial review. Differences between the cases are reduced even further by Professor Fallon's tentative conclusion that weak-form judicial review is probably preferable to the strong form characteristic of U.S. judicial review. Part II of this Essay outlines the two core cases. Part III examines the libertarian presupposition, raising questions about its implication that private violations of fundamental rights are less serious or pervasive than violations of fundamental rights pursuant to legislation. Part IV discusses an issue that Professor Fallon generally sets to one side: Professor Waldron's argument that an important part of the core case against judicial review is the existence of reasonable disagreement about the proper specification of fundamental rights. I argue that, while Professor Fallon provides a plausible psychological account of why the existence of such disagreement is unlikely to do much work in persuading people to accept the core case against judicial review, that psychological account offers a path toward understanding the different dispositions that lead Professors Waldron and Fallon to characterize their quite similar positions in the more dramatic against-for manner. Part V summarizes the similarities in the two core cases.

Examining the influence of the European Convention on Human Rights in Northern Ireland courts

This article examines the influence of the European Convention on Human Rights (ECHR) on the legal culture of litigants and judges in Northern Ireland. The results show that there has been a dramatic increase in the number of judicial review cases based upon the ECHR in the years immediately following implementation of the treaty through the Human Rights Act. However, while there has been an increase in the number of ECHR claims by litigants, judges in Northern Ireland have thus far been reluctant to issue declarations of incompatibility pursuant to the Human Rights Act. Furthermore, a multivariate analysis of the likelihood of Northern Irish judges to rule against the government shows that, controlling for other factors, judges are not more willing to rule against the government when the ECHR is invoked. Overall, it appears that the early influence of the ECHR on Northern Irish law has been greatest in the willingness of litigants to bring judicial review cases based upon the treaty—a development that may portend larger changes in UK jurisprudence in the future.