Substantive Judicial Review Research Articles

The Changing Role of Judicial Review during Prolonged Emergencies: The Israeli Supreme Court during COVID-19

This paper explores the role of the Israeli Supreme Court in exercising judicial review of COVID-19 control measures. It argues that the Court exhibited changes in its review methods and an adaptation of its role (and its demands from the other branches of government) throughout this prolong crisis. At the first stage, the Court focused on protecting institutional democratic safeguards, while exercising judicial restraint and greater deference than usual in its substantive review of the content of COVID-19 measures. The second stage, as time has passed, was characterized by greater judicial intervention, and growing propensity to hold COVID-19 measures unconstitutional, based on a combination of stricter substantive judicial review and an increased demand for an evidentiary and scientific basis to justify infringement of rights. The Israeli case therefore demonstrates the question of the changing role of judicial review in general (and of evidence-based judicial review in particular) during prolonged emergencies.

Taming the prince: Bringing presidential emergency powers under law in Colombia

Abstract Can courts check presidential power exercised in a crisis—and should they? The case of Colombia, which recently turned on its head a history of presidential overreach and judicial rubber-stamping, provides an answer in the affirmative. As in much of Latin America, throughout Colombia’s post-independence history, bloodshed fueled authoritarian tendencies, with presidents exploiting the need for “order” to centralize power. One critical weapon in the presidential toolkit was the power to declare a state of emergency. During the twentieth century, these decrees became a routine pretext for the President to govern unilaterally, acquiesced to by the legislature and rarely challenged by the courts. That pattern has since come to an end. Since 1992, the Constitutional Court has proven an unexpectedly strong counterweight to presidential power, especially in its strict review of presidential emergency decrees. Under a model of substantive judicial review, the Constitutional Court has taken for itself the authority to review the factual basis giving rise to a crisis, and the adequacy of the President’s rationale for declaring it. Decrees that, as in the past, attempted to manufacture a crisis or which would exceed the President’s constitutional powers have been struck down. This paper discusses some of the Court’s successes in that ambit, and argues for the portability of this model to other national contexts.

Unfair Terms Control in Business-to-Business Contracts

The aim of the paper is to outline the regulation of one-sided (or onerous) standard terms in business-to-business contracts according to Italian law, in the light of the specific legislative rules and existent case law. Differently than other European legal systems, Italian law does not provide for a substantive control of unfair standard terms in business-to-business contracts. After the implementation of the European Directive no 93/13, the scope of the substantive judicial review covers only unfair terms in business-to-consumer contracts. Italian scholars often discussed the extension of the scope of application of consumer law to business-to-business contracts, but the legislature never addressed the issue. The Italian Civil Code of 1942 represented a forerunner in providing rules for the incorporation of standard terms in contracts, that are applicable to every kind of contractual relationship between businesses. At the present stage, such rules do not protect adhering parties in an effective way and give rise to many disputes. In some cases, the need of protection of weaker businesses induced Italian courts to develop judge-made law based on open-ended clauses, such as good faith. In other cases, Italian judges adopted the parameter of the worthiness of protection or the causa doctrine, to affirm the invalidity of harsh contractual terms. Further limitations of contractual freedom are the so-called ‘abuse of economic dependence’ and rules devoted to certain contractual terms, which are often standardized in business-to-business contracts (exclusions or limitations of liability and time constraints for the exercise of a right). After sketching the comparative law background with reference to German and French law, the article offers a comprehensive account of the aforementioned elements. The examination leads the author to affirm that Italian law entails an indirect control of unfair terms in business-to-business contracts. In the final part, its relevance in the international context is evaluated.

Rationality Review of Legislative Process in Adjudication on Constitutionality of Statutes

위헌법률심판에서 헌법재판소는 다투어지는 법률 내용이 헌법에 위반되는지 여부를 심사한다. 헌법재판소는 합리성 내지 비례성 심사를 통해 법률 내용의 헌법합치성을 판단한다. 위헌법률심판에서 헌법재판소는 과잉금지원칙 같은 실체적 사법심사기준을 매개로 문제되는 법률의 내용적 정당성을 판단하고 입법자가 그법률에 이르게 된 입법과정에는 별반 관심이 없다. 그럼에도 불구하고, 헌법재판 소가 실체적 심사기준을 적용하더라도 법률의 내용적 정당성을 판단하기 곤란한 경우가 있다. 다원성과 불확실성을 특징으로 하는 현대사회에서 입법자는 사회적 으로 논란 있는 사안에 대하여 가치판단을 수행하거나 예측이 쉽지 않은 장래 상황을 규율해야 하는 처지에 놓인다. 이러한 경우, 헌법재판소는 일정 정도는 입법의 내용 그 자체의 정당성이 아닌 입법과정의 합리성에 주목하지 않을 수없다. 헌법재판소는 입법과정에서 입법자가 문제되는 쟁점을 빠짐없이 고려하였 는지, 이를 공적 토론에 충분히 개방하였는지, 그리고 입법자가 신뢰할 수 있는 정보에 근거하여 결정하였는지를 고려하여 법률의 헌법합치성을 판단하게 된다. 입법에 대한 실체적 정당성 판단이 헌법재판소 결정의 대부분을 차지하고 실체적 사법심사기준의 정교화가 헌법학의 주된 관심을 끌어온 반면, 입법과정의 합리성에 대한 헌법재판소의 통제가 갖는 의미는 우리 학계에서 비중 있게 다루어 지지 않았던 쟁점이다. 이에, 본고에서는 위헌법률심판에서 입법과정의 합리성에 대한 심사의 허용가능성과 그 내용, 그리고 그것이 실체적 사법심사와 맺는 관계를 중심으로 입법과정의 합리성 심사를 검토한다. 본고는 우선 헌법재판에서 문제될 수 있는 절차적 심사의 유형을 구분하고, 이른바 입법의 내적 과정으로서 광의의 입법과정에 대한 헌법재판소의 통제를 둘러싼 정당성 논란을 고찰한 후 ( ), 입법과정심사는 무엇을 지칭하는지, 그것이 특히 활용될 수 있는 영역은 어디인지를 비교헌법적 사례를 소재로 하여 검토한다( ). 다음으로, 입법과정 심사와 실체적 내용 심사 간 관계를 고찰하고, 입법과정에 대한 심사강도 문제를 검토한다. ( ) 마지막으로, 입법과정심사의 우리 헌법실무에 대한 시사점을 언급하는 것으로 글을 마무리한다. ( )In an adjudication on constitutionality of statutes, the Constitutional Court examines whether the content of questioned law violates the Constitution. The Constitutional Court determines the constitutionality by examining reasonableness or proportionality of the law. In the adjudication on constitutionality of law, the Constitutional Court judges the legitimacy of the law through substantive judicial review standard, such as the principle of proportionality, and has little interest in the legislative process through which the legislator enacted the law. Nevertheless, even when the Constitutional Court applies substantive review criteria, it may be difficult to determine the legitimacy of the law. In modern societies characterized by pluralism and uncertainty, legislator is often forced to make value judgments on socially controversial issues or to determine future situations that are difficult to predict. In this case, the Constitutional Court focuses on not only the content of the law itself but also the rationality of legislative process. The Constitutional Court has no choice but to judge the constitutionality of the law, taking into account whether the legislator has considered all aspects at issue, whether the legislator has opened the issue to public debate, and whether the legislator enacted the law with reliable evidence. While substantive legitimacy review of the law accounts for most of the decisions of the Constitutional Court and the elaboration of substantive judicial review standards has attracted the attention of the constitutional jurisprudence, the significance of the Constitutional Court’s control over the rationality of the legislative process has not been addressed sufficiently. Therefore, this article examines the rationality of the legislative process, focusing on the justification of the legislative process review, its contents, and its relationship with the substantive judicial review. This article first identifies the types of procedural reviews that may be a problem in the constitutional adjudication and considers the controversy surrounding the constitutional court’s control of the internal process of legislation (II). The article examines what the review of legislative process refers to and in which areas it can be particularly used, using comparative constitutional precedents (III). Next, the relationship between the review of the legislative process and the review of substantive content is examined, and the intensity of review on the legislative process is examined. (IV) Finally, the article concludes with an implication of legislative process review to the practice of Constitutional Court. ( )

Taming the Prince: Bringing Presidential Emergency Powers Under Law in Colombia

Can courts check presidential power exercised in a crisis — and should they? The case of Colombia, which recently turned on its head a history of presidential overreach and judicial rubber-stamping, provides an answer in the affirmative. As in much of Latin America, throughout Colombia’s post-independence history, bloodshed fueled authoritarian tendencies, with presidents exploiting the need for “order” to centralize power. One critical weapon in the presidential toolkit was the power to declare a state of emergency. During the twentieth century, these decrees became a routine pretext for the President to govern unilaterally, acquiesced to by the legislature and rarely challenged by the courts. That pattern has since come to an end. Since 1992, the Constitutional Court has proven an unexpectedly strong counterweight to presidential power, especially in its strict review of presidential emergency decrees. Under a model of substantive judicial review, the Constitutional Court has taken for itself the authority to review the factual basis giving rise to a crisis, and the adequacy of the President’s rationale for declaring it. Decrees that, as in the past, attempted to manufacture a crisis or which would exceed the President’s constitutional powers have been struck down. This paper discusses some of the Court’s successes in that ambit, and argues for the portability of this model to other national contexts.

Googling 'Dunsmuir's Standards of Review' in the Evolution of Law Surrounding Substantive Judicial Review in Canadian Administrative Law: A Paradigmatic Peep and Many Thoughts

Dunsmuir v. New Brunswick, 2008 SCC 9, set out to bring a greater degree of clarity to the law surrounding substantive judicial review than had previously been the case. However, the innovations made in Dunsmuir have not been successful in achieving this objective.That administrative action be "lawful, reasonable, and procedurally fair" is a cardinal gospel principle, stricto sensu. Dunsmuir v. New Brunswick, was in this sense a capstone case in Canadian administrative law, an epochal harbinger. It developed from infancy days of the pre-existing Diceyan formalistic era, underscoring formal trifurcation of powers between the judiciary, legislature and executive, to evolve into the teen-hood of 'pragmatic and functional era'. This focused at contextualized meshing of regulation, policy objectives and practicalities. This graduated into a youthful stage during 2002 to 2008, (affectionately referred to as the dysfunctional period) characterized by weariness and frustration to finally culminate into a mature adulthood, fondly called the categorical approach era. The four-factor approach, not been entirely jettisoned though, was marginalized in favor of a categorical approach. This paper situates Dunsmuir into a historical continuum in Part-I and II to assess the degree of possible clarity afforded to the law surrounding substantive judicial review than had previously been the case. This assesses the impact of standard of review on a range of administrative decisions indicating a perceptible shift from correctness to reasonableness in areas, hitherto not accorded deferential treatment by the Supreme Court. Part III focuses on failure of Supreme Court to apply the reasonableness standard in a consistent and principled fashion, notwithstanding the promise of "principled framework that is more coherent and workable." Part IV, underscores that the "innovations made in Dunsmuir has not been successful in achieving this objective of clarity on law surrounding substantive judicial review than before" and that Court's post-Dunsmuir approach to reasonableness review is both disappointing and confusing. I have argued that this shortcomings can be remedied by articulating a contextual approach on the lines of reasoning in Baker v Canada (Minister of Citizenship and Immigration), contextualizing the values of "justifiability, transparency and intelligibility" through judicial review in a particular administrative context.

Judicial review and political partisanship: 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.

Procedural and Substantive Judicial Review of the Right to Health in Brazil

La versione italiana di questo documento e disponibile all'indirizzo: http://ssrn.com/abstract=2481592La version en espanol de este articulo esta disponible en: http://ssrn.com/abstract=2439008A versao em portugues deste artigo esta disponivel em: http://ssrn.com/abstract=2363398This text seeks to identify the objective and subjective aspects of rights to an existential minimum in health care, based on international parameters which, because they are restricted to internal scope of a nation, depend on a constitutional basis and on comprehensible facts, the demonstration of which should be the responsibility of the national administrative authority. Regarding the judicial review of the minimum right to healthcare, this paper points out that it is a serious mistake to try to handle public health conflicts according to the typical judicial principles governing conflicts under private law, because that distorts the public health system, with judicial orders that depart from the universal access to health care and that are often impossible to comply with. The article concludes that the judicial review of administrative authorities in matters involving the right to health necessarily requires simultaneous judicial review of the corresponding administrative procedures.

Justification, Calibration and Substantive Judicial Review: Putting Doctrine in its Place

This working paper is the precursor to a chapter I am writing for an edited collection on substantive judicial review. In this working paper, I argue against the two dominant schools of thought in this area, according to which substantive review is either bifurcated (by reference to the reasonableness and proportionality doctrines) or the preserve only of the proportionality doctrine. I go on to argue that the existing debate places undue emphasis upon doctrinal considerations, and that a better approach is to place the concept of justification centre-stage. I then develop a notion of justification around two ideas of deference, which are concerned respectively with the allocation to the decision-maker of a justificatory burden and the determinination by the court of whether that burden has been discharged.

Semiprocedural Judicial Review

AbstractThis article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The article explicates this emerging model, which it terms ‘semiprocedural review’, and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The article pursues these goals through the unique perspective of juxtaposing semiprocedural review with ‘pure procedural judicial review’ and ‘pure substantive judicial review’.

The Courts, Futility, and the Ends of Medicine

On august 13, 2010, the appellate division of the Superior Court of New Jersey declined to rule in the matter of Betancourt v Trinitas Hospital,1 a case that raised questions about the limits of medicine in patients with advanced illness. In declining to rule, the judges wrote that resolving such issues in “the context of overheated rhetoric in the battlefield of active litigation” would not positively contribute to the policy debate around medical futility. These comments raise important questions about whether there is a role for the courts in helping to shape the boundaries of medical practice near the end of life. One view is that courts should not provide guidance on medical futility disputes. Texas has formalized this belief into law. The Texas Advance Directives Act bars substantive judicial review when intractable conflict arises between clinicians and patients or their surrogate decision makers. It gives physicians and hospital committees authority to unilaterally withdraw life-sustaining treatment when they believe attempts to extend a patient’s life are inappropriate.2 The state medical associations in California, Washington, and Wisconsin have considered resolutions supporting similar legislation. Another view is that the possibility of appeal to the courts should be preserved because courts have an important role in ensuring fair deliberations between parties (eg, families and physicians) of unequal power.3 Both perspectives neglect a complexity: although judicial intervention is undesirable for the vast majority of decisions in medicine, preserving the possibility of appeal to the courts in medical futility cases may have beneficial effects at the societal level that are distinct from the benefits sought in individual cases. This viewpoint presents a justification for a limited judicial role in intractable futility disputes and delineates 3 potential benefits of preserving this option.

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.

Substituting Substantive for Procedural Review of Guidance Documents

This article proposes that courts substitute immediate substantive review for procedural review of agency guidance documents. The article begins by reviewing the extensive literature about how courts should treat non-legislative rules. Because such rules play an important role in assuring coherence and accountability of agency policies and interpretations and in communicating the views of agencies about such matters the article agrees with those who advocate ex-post monitoring of agency use of rules issued without notice and comment procedures. Recognizing that ex-post monitoring leaves much leeway for agencies to abuse guidance documents by depriving stakeholders of opportunities to participate in their development and of obtaining substantive judicial review of them, the article advocates that non-legislative rules generally should be subject to arbitrary and capricious review when issued. The article proceeds to explain why other proposals to rein in agency discretion to use guidance documents – in particular making the agency explain its decision to proceed by this mode and forcing the agency to consider timely petitions for reconsideration of such documents – are likely to have less effect with greater cost than its proposal for direct review of guidance documents. In advocating for such review, however, the article contends that courts will need to massage doctrines governing availability of review, such as those governing finality and ripeness of guidance documents. Even more significantly, the article argues that review for reasoned decision-making will have to be modified to avoid seriously compromising the speed and procedural flexibility which makes guidance documents an attractive means for agencies to communicate their views of policy and interpretation. It therefore develops a variant on arbitrary and capricious review that would require agencies to explain issuance of guidance in terms of factors that are relevant and alternatives that are plausible given the state of knowledge available to the agency when it acted. The article concludes that such a doctrine can encourage agencies to solicit input even from stakeholders outside the issue networks affected by the guidance document, while preserving sufficient flexibility for the agency to issue the document quickly and without undue procedural burden.

The Merger Control Patchwork

This article discusses the lack of harmonization among European merger control regimes. There are significant differences relating inter alia to the concept of a concentration, the substantive test, remedies, and judicial review. As far as the substantive test is concerned, the chasm is particularly deep between the European Commission’s practice and that of the German Federal Cartel Office. Areas of divergence include the more economic approach, the level at which market shares are considered problematic, the assessment of collective dominance, and the treatment of conglomerate effects. While some feel that ‘the quest for harmonization is quixotic’, the author argues in favour of a level playing field

El sentido del positivismo jurídico (II): el positivismo jurídico prescriptivo como un derecho humano

Continúa aquí defendiéndose el iuspositivismo "prescriptivo" o "ético" ya esbozado en la primera parte de este artículo (Doxa, núm 25): entender el iuspositivismo como una teoría normativa (no conceptual ni descriptiva) sobre la forma del Derecho como gobierno de reglas claras y precisas empíricamente aplicables sin recurrir a opiniones morales. Ahora se muestra cómo lo anterior constituye un derecho humano vinculado a la democracia y a la igualdad: los derechos humanos incorporan la idea del imperio de la ley, pero de la ley positiva en ese sentido formal. En consecuencia, la tarea de articular los derechos humanos es de los gobiernos y los parlamentos, no de los tribunales ni de la Constitución, siendo el control judicial sustantivo sobre las leyes algo básicamente antidemocrático. Por último, la disputa conceptual entre el iuspositivismo incluyente y el excluyente debe reformularse como una disputa moral y política sobre qué órgano ha de determinar el contenido de las reglas y sobre si la regla de reconocimiento debe o no contener criterios morales.

Assessing the Assessors: The Actual Performance of Negotiated Rulemaking

Negotiated rulemaking is a process in which representatives of the interests that would be substantially affected by a rule ? including the agency responsible for issuing the rule ? negotiate in good faith to reach a consensus on a proposed rule. It has proven enormously successful in developing agreements in highly polarized situations. Agencies have therefore turned to it to help resolve particularly difficult, contentious issues that have eluded closure by means of traditional rulemaking procedures. Criticism has recently been leveled at negotiated rulemaking on the ground that it has failed to achieve its instrumental goals of saving time and reducing litigation. Professor Cary Coglianese sought to measure whether negotiated rulemaking in fact saved time and reduced litigation by analyzing negotiated rulemaking at EPA, and he found it wanting in both dimensions. He argues that there has been an insignificant savings of time for rules developed through reg neg, and he concluded that rules developed through it are actually challenged more frequently than rules developed by traditional means. Unfortunately, however, Coglianese's research is significantly flawed and hence misleading concerning the actual experience with negotiated rulemaking. First, he misapplies his own methodology by including a rule as a completed reg neg when it should not have been. Given the dynamics of the particular rule and Coglianese's methodology, its erroneous inclusion had a significant effect on the ultimate conclusion. Second, his methodology measures the wrong thing: it fails to account for what the agency was actually trying to accomplish, and hence his results are skewed since the agency achieved its objective long before Coglianese calculations indicated. Third, he does not differentiate a substantive judicial challenge to a rule that was issued substantially as the committee agreed from either those instances in which the agency itself significantly changed the rule after the committee reached consensus and those petitions for review that were filed while the petitioner and EPA worked out minor details. Properly understood negotiated rulemaking has been remarkably successful in fulfilling its promise. In particular, EPA's experience has been that reg neg has cut the time for rulemaking by a third, knocking a full year off the typical schedule. Moreover, no rule that implements a consensus reached by the committee in which the parties agree not to challenge it has ever been the subject of a substantive judicial review ? even though they tend to be far more controversial and complex than average rules. And, finally, as described by a serious empirical study, the participants and those otherwise affected by rules find a range of values in negotiated rulemakings as opposed to those developed traditionally.

On Making Judges Do the Right Thing

Professors Shapiro and Levy posit that Chevron' and State Farm,2 though frequently cited as landmarks of administrative law, are in reality dead letters. They propose to explain this startling development by juxtaposing the and outcome components of judicial decisionmaking against one another.3 Through this simple modeling exercise, they conclude that existing indeterminate craft norms allow judges to achieve desired substantive outcomes when private parties seek judicial review of administrative rulemaking.4 Implicit in this conclusion is the suggestion that judges usually (or at least sometimes) desire to reach particular substantive outcomes in a more-or-less unprincipled fashion. The authors suggest legislation that would require the courts to toe the line by forcing them to respond to a series of specific questions when they engage in statutory and substantive judicial review.5 The heart of Shapiro and Levy's comment is an ambitious attempt to apply theory to judicial behavior. Although I admire the effort as an intellectual exercise, its resulting prescriptions give me pause. My problem is not so much with the application as it is with the theory itself. Having committed themselves to the theory, the authors are led inexorably to a solution that, in my opinion, has little chance of success in the real world. Practitioners of public choice theory, in my view, often take a very narrow view of the psychological impulses that motivate people to act or decline to act. Judges no doubt want to be respected in the profession (who does not?), and judges (like most

Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions

It was not supposed to be like this. In Chevron and State Farm, the Supreme Court announced what appeared to be controlling standards for substantive review of administrative decisions. Chevron adopted a two-step approach to statutory interpretation under which courts were to overturn agency interpretations that were contrary to the clear intent of Congress, but defer to permissible agency constructions of a statute. State Farm indicated that an agency’s policy judgments should be analyzed according to a specific set of inquiries that focused on the agency’s reasoning process. Administrative law scholars, whether they agreed or disagreed with the Court’s standards, assumed that the two cases were landmark decisions that signaled a turning point in the substantive review of agency decisions. Instead, the Chevron framework has broken down, and State Farm has been all but ignored by agencies and the courts, including the Supreme Court.This article accounts for this breakdown by analyzing the impact of judicial incentives on substantive review in administrative law. Its centerpiece is a model of judicial behavior based on the “craft” and “outcome” components of judicial decisionmaking. Judges engage in the well-reasoned application of doctrine as a matter of craft, and they consider the implications of a result for the parties and society in general as a matter of outcome. When these components pull in opposite directions in a given case, our model suggests how judicial incentives influence the resolution of this tension. Our model of judicial behavior explains why Chevron and State Farm have not been as influential as commonly assumed. Judges have stronger incentives to control outcome and weaker incentives to develop determinate craft norms that limit pursuit of outcome in administrative law than in other areas of law. Because reliance on indeterminate craft norms enables judges to pursue outcome without sacrificing craft, judges have avoided applications of Chevron and State Farm that are determinate. Drawing on this model, we propose a modified approach to substantive judicial review that accounts for the way that judicial incentives influence substantive review doctrine. We recommend that Congress require courts to respond to a series of specific questions that would apply to substantive agency decisions. These questions would make it more difficult for judges to manipulate scope of review standards and would require more explicit reasons for affirming or reversing an agency decision.

Pennsylvania Court permits Limited Substantive Judicial Review of Hospital Staffing Decisions

Pennsylvania Court permits Limited Substantive Judicial Review of Hospital Staffing Decisions