Judicial Review Mechanism Research Articles

Constitutional Identity as a Shield and as a Sword: The European Legal Order within the Framework of National Constitutional Settlement

Abstract The pitfalls of the relationship between European and national judges constitute a well-travelled ground in literature, especially with regard to ‘sagas’ over the reconciliation of national sovereignty with EU law primacy. Hence, the contribution that this article is attempting to make is to explore the judicial understanding and potential of the concept of constitutional identity in the light of the newly-introduced Article 4(2) TEU by the Treaty of Lisbon, which makes it explicit that national identity encompasses constitutional specificity. A number of questions are raised and discussed. For instance: How has the Court of Justice of the European Union (CJEU) been adjudicating on issues pertaining to the constitutional identity of the Member States pre- and post-Lisbon? How far can Member States stretch the concept to avoid the tidal effect of EU law upon their legal systems? For the sake of clarity, two notions of constitutional identity are identified and presented in this article: One related to the CJEU’s case law, where ‘constitutional identity’ has been invoked by defending Member States as a qualified derogation from their EU law obligations (a ‘shield’) and another, inherent in the German Constitutional Court’s (BVerfG) use of ‘constitutional identity’ as a break to an unprecedented transfer of competences to the EU and a tool of judicial review of national implementation measures of secondary legislation (a sword). The arguments advanced hereafter suggest that the implications of identity retention as a ‘shield’ may not be far-reaching since the CJEU has, through a pragmatic use of the loyalty and proportionality principles, succeeded in reducing its effect to the bare minimum. On the other hand, as a judicial review mechanism, the German paradigm demonstrates that, as a ‘sword’, constitutional identity retention comprises, largely, a theoretical possibility. These assumptions aside, it is concluded that constitutional identity retention may provide both national judiciaries and legislatures with new opportunities to participate in trans-national constitutional development through monitoring and assessing the compatibility of the exercise of EU competence with the requirements of national constitutions.

A Signaling Game of Judicial Review and Agency Implementation

As the U.S. Supreme Court observed in Federal Maritime Commission v. South Carolina State Ports Authority, “[t]he founders . . . could not have anticipated the vast growth of the administrative state.” As this growth has occurred in both size and scope in the U.S and in countries around the world, agency action has begun to directly impact the lives of individual citizens in a myriad of ways. This begs the question, how can agency action be checked to ensure these institutions do not infringe upon individual rights? Existing models of court-agency interaction have analyzed one check on agencies – the mechanism of judicial review. Yet, these models ignore the iterative process of court-agency interaction by failing to account for what occurs after a court has ruled on the validity of an agency action. Of equal import is what occurs after a court has rendered its decision, as court decisions are generally not self-enforcing. Moreover, in the context of administrative law judicial rulings often must be implemented by the same agency whose initial action was at issue in the case. To bring additional leverage to bear on our understanding of court-agency interaction, I develop a simple signaling game to model the process of judicial review and agency implementation. To capture the second stage of the process, I draw from the literature on implementation of judicial decisions to model agency implementation of judicial decision and the decision of courts to ‘punish’ agencies that shirk faithful implementation of their rulings. Additionally, I use the signaling aspect of the game to formalize the idea that the importance of all cases – or their salience – is not given equal weight by the actors. From this model, I derive implications about the impact of the costs and salience, on the strategic choices of the actors. I then conduct a preliminary test of the models prediction using a sample of immigration cases in the U.S. Courts of Appeals.

Habeas Corpus and Military and Naval Impressment, 1756–1816

At the start of the Seven Years War in 1756, there occurred an unexpected increase in the demand by impressed soldiers and sailors for habeas corpus. This increased usage occurred in spite of the fact that habeas corpus was a deficient mechanism of judicial review: the scope of review was limited to formal defects appearing on the face of the return; it was unclear whether there was jurisdiction to issue the writ during the extensive times that the court was out of term; and there was no power to issue process of contempt in vacation for disobedience of the writ. Notwithstanding these defects (and the rejection by the House of Lords in 1758 of a habeas corpus bill drafted in order to remedy those faults) the custom of using habeas corpus as an anti-impressment remedy flourished within the navy (and, during the short periods of statutory military conscription, within the army); in the late eighteenth century it was impressed sailors who made up the largest constituency using the writ. This account describes the scope of review and procedure regulating impressment-related habeas corpus.

Assessing the New Constitutionalism

Over past twenty-five years, turn that began in Europe in wake of World War II has spread to almost all corners of globe.' In established and emerging democracies alike, parliamentary sovereignty is in decline, and constitutional courts with broad powers have become commonplace.2 Although formal introduction of judicial review mechanisms does not necessarily translate into an energetic assertion of judicial authority in all places, it is that in many polities, courts have come to play an unprecedented role in policymaking process.3 Initially, this trend toward constitutionalism was met with great scholarly enthusi asm. Prominent figures such as Ronald Dworkin and Bruce Ackerman hailed expan sion of judicial review as an important step toward greater rights protection for citizens, and thus toward establishment or deepening of democracy around world.4 Dworkin, standard-bearer for active judicial rights protection, made his approval clear he wrote in favor of incorporation of European Convention on Human Rights into British domestic law and empowerment of British judges to interpret and apply it against statutes passed by parliament. He claimed that such incorporation would help cultivate (or reinvigorate) a culture of liberty in Britain, thereby bringing country closer to a true understanding of democracy.5 In a similar spirit, Ackerman claimed-that the Enlightenment hope in written constitutions is sweeping world and that future of liberal democracy looked bright since, when judges intervene, they tend to operate on behalf of internationally-recognized norms of human dignity.6 In recent years, however, a spate of more skeptical, in some cases downright dismis sive, works have been published, challenging earlier and rosier perspectives.7 Reviving older (and in some circles persistent) concerns about counter-majoritarian difficulty or gouvernement desjuges, authors of these works accuse liber al enthusiasts of, at best, naive idealism or, at worst, disingenuous elitism.8 Whether coming from left or right, these critical works offer a common assessment: spread of constitutionalism means power is being shifted out of hands of people and their representatives in legislature. Fundamental policy decisions are now increasingly made by an unrepresentative, unaccountable, and out-of-touch elite judges-who are only interested in or capable of serving privileged minorities. Hence,

THE REVIEW OF THE UNITED NATIONS SECURITY COUNCIL DECISIONS BY THE INTERNATIONAL COURT OF JUSTICE

The present topic has been extensively addressed by several authors during the 1990s. It has provoked harsh polemics and a passionate debate and still represents an issue of interest for the international lawyers, as no formal and complete answer to the question of the international judicial review has been brought to this day. This article tries to put forward an effective and efficient mechanism allowing the International Court of Justice to review the resolutions adopted by the Security Council in the realm of Chapter VII of the UN Charter. The approach of the subject is favourable to an international judicial review, which would render the intervention of the Council more legitimate, hence more easily accepted by states. The proposed method of judicial review must however ensure both the legitimacy and the efficiency of the political organ and strengthen, not weaken the United Nations' role in the maintenance of international peace and security. That is why the international judicial review mechanism should be carefully defined and should confer upon the international judge a limited power of appreciation. At the same time, the other international courts and tribunals should defer to the International Court on matters concerning the legality of the Security Council's coercive measures by means of a preliminary ruling mechanism.

Why politicians want constitutional courts: the Russian case

Why are judicial review mechanisms being incorporated into so many democratizing states? This study analyzes why politicians create an independent judicial institution with the authority to overrule their own decisions. It sheds light on the role constitutional courts play in the consolidation phase of a democratic transition, focusing on one of those countries with no tradition of independent judicial review or of democratic forms of governance—Russia. Past practices and historical precedent do not support the formation of an independent judiciary in Russia, and yet a potentially powerful constitutional court now exists. Moreover, during the course of the transition from the Soviet state to the Russian Republic, there were three attempts to create an independent judicial review mechanism only one of which could be termed a success. This analysis focuses on the self-interested calculations of politicians in forming each of these three institutions, demonstrating that political actors establish a constitutional court to enhance their democratic credibility.

Towards a European criminal jurisprudence? The justification of criminal law by the Strasbourg court

The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the Convention) has been in operation for almost 40 years, the Commission and the court for more than 30 years. In the meantime, recourse to Strasbourg has become a built-in mechanism of judicial review in the Member States. In particular, art 25 of the Convention which entitles individuals to plead a violation of the Convention has turned into a corner-stone of a working system of human rights protection, since the court's first decision in 1960. Even though the court's output cannot compare to internal state jurisdictions, applications to Strasbourg have risen dramatically over the years.