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In The Federalist, Publius makes five defective assumptions about judicial power, which underestimate and invite the danger of judicial supremacy. Contemporary judicial practice conforms to Publius's assumption that the judicial branch holds final authority in interpreting the Constitution, but contradicts his expectation that this would not lead to judicial supremacy in the political regime. This article excavates and critiques Publius's assumptions about judicial power from a close reading of The Federalist. It argues that any successful check on the judiciary requires adoption of the theory of coordinate construction. It concludes with an exploration of the institutional and normative implications of coordinate construction. [ABSTRACT FROM AUTHOR]

This Article challenges one of the most robust commonplaces in the study of Indian Constitutional Law, viz. that Directive Principles of State Policy under Article IV cannot be enforced by the judiciary. Through a careful reading of the Constitution's text and structure, as well as an investigation of relevant precedents within India, the United States, and other common-law jurisdictions, it argues: (1) Article 39A commands 'the State' to promote justice on the basis of equal opportunity, in particular through legal services enacted through legislation or other methods; (2) The judiciary is part of the State that Article 39A commands; (3) Courts, then, must use their powers to fulfill Article 39A even if that Article is not judicially enforceable; (4) The judiciary has authority over the maintenance and integrity of the legal system; (5) It also has its own authority to spend money to maintain and improve that system; and (6) it has the authority to allocate funds to pay lawyers and other legal personnel in civil cases if it believes that doing so will strengthen the legal system and fulfill its Article 39A mandate. The Constitution's promise of the right to counsel in civil cases thus lies well within the judicial power to accomplish. The Article suggests areas where the judiciary should use this power, e.g., family law, housing, and the environment. It also raises important questions about the very nature of Directive Principles and the meaning of judicial 'enforcement.' [ABSTRACT FROM AUTHOR]

Under the Judicial Conduct and Disability Act of 1980 (JCDA), it falls to federal judges in each circuit to investigate and redress complaints about their colleagues' behavior. A controversial provision of the Act authorizes the temporary suspension of misbehaving judges from new case assignments. Judges suspended under the Act--most recently, Judge Pauline Newman in the Federal Circuit--have argued that this amounts to effectively removing them from office without impeachment, violating constitutional protections of judicial tenure and independence. No court has invalidated a suspension on this basis so far. Yet courts have reserved the question taken up here, namely whether a long-term suspension could, by its practical effect, cross the line into removal. Returning to first principles, this Comment develops and defends a bright-line rule for conceptualizing effective removal. Article III vests federal judges with the power to decide legal cases and controversies within limits set by the Constitution and Congress. Individual judges are not entitled to dockets of any particular size or scope. Yet possessing some measure of case-deciding power is a necessary condition for holding judicial office. It follows that a judge does not hold office if she does not wield any judicial power, as when a categorical prohibition on hearing cases eliminates her entire docket. When a case-suspension sanction under the JCDA even temporarily has that effect, disqualifying a judge who lacks assigned cases from further assignments, it unconstitutionally removes the judge from office. After crystallizing the concept of effective removal, the Comment attends to non-merits-related reasons that courts are unlikely to accept this challenge to the JCDA even in compelling cases; assesses the risk that the Act's case-suspension provision could be abused to effectively remove judges for improper reasons; and ultimately proposes a targeted amendment to the provision that would foreclose the possibility of effective removal and conform the Act's scheme of judicial self-discipline to the Constitution's separation of powers. [ABSTRACT FROM AUTHOR]

This article, titled "Letters from the Editors," discusses the challenges and rewards of running a law review that is committed to double-blind peer review. The editors express their gratitude for the time and dedication of the referees who contribute to the journal's quality. They also acknowledge the time-consuming nature of peer review and the difficulty of publishing timely manuscripts. To address this, the journal has created a new section called "Letters from the Editors," where members of the Board of Corresponding Editors will share their views on topical issues. The article also includes a section by Yaniv Roznai discussing the judicial overhaul in Israel and its implications for democracy. The article concludes by emphasizing the importance of protecting democracy and creating a stable constitutional order in Israel. [Extracted from the article]

Background: Stability is considered a traditional legal value, particularly in relation to the stability of the constitution. This emphasis on stability stems from the need to protect the text of the constitution from frequent and unreasonable changes. However, stability must be combined with dynamism, a task primarily shouldered by the judicial branch of power through constitutional interpretation. Notably, ideas of judicial rule-making and the notion of a living/invisible constitution are only some manifestations of such a phenomenon as informal changes to the constitution. Yet, the potential risks posed by judicial intervention and the legitimacy concerns surrounding such informal changes warrant scrutiny. What is the correlation of informal constitutional changes through interpretation with the traditional doctrine of sovereign constituent power? What should be the limit of the interpretation of the constitution so that such an interpretation is not recognised as abusive? These and other issues are the focal point of research in the article. Methods: The following methods were used to research the main approaches to informal changes to the constitution. The system-structural method was used to characterise the concept of a living and invisible constitution and varieties of informal constitutional changes and to establish the relationship between these concepts. The logical-legal method made it possible to find out the content of the positions of scientists regarding the potential violation of the boundaries of interpretation of the constitution by the courts, as well as arguments for and against the legitimacy of judicial interpretation, an assessment of informal changes in the constitution from the standpoint of modern views on the doctrine of constituent power. Additionally, the comparative method was employed to study the experience of foreign countries in terms of the characterisation of binding interpretation. Results and Conclusions: The study analyses the current state of the concept of informal changes to the constitution through judicial interpretation, its connection with the doctrine of constituent power, as well as the question of the legitimacy of such an interpretation and its limits. The primary conclusion is that judicial activity guarantees the protection of the material constitution, principles and human rights. That is, the judiciary does not allow sovereign decisions made democratically (by the people) to infringe on human rights. Thus, the text of the constitution is interpreted in a conformal way to individual rights. Questions about the role of the judiciary, the possibility of informal changes to the constitution, and judicial lawmaking as such can be an indicator for distinguishing between authoritarian/totalitarian countries and democratic ones. [ABSTRACT FROM AUTHOR]

Common-law interpretive methodologies memostly nonbinding, but some interpretive methodologies are seen as binding preced€nt. This Aitide offers an explanation for this state of affairs. Whereas the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se nonbinding) and normative analysis, this Article fills a gap in the literature 14 providing a realist explanation for the legal landscape of binding interp-etive methodologies. It identifies whether a methodolog, is rule-like, and whether it increases judicial legitimag and/or court power as "pull factors-that is, incentives that might attract judges to recognize interpretive methodologies as binding. It also identifies high stakes (i.e., broad methodological scope) and constitutional argumentation over methodologies as "push factors"-that is, obstacles to finding methodologies to be binding. This approach explains the current landscape of int€*etive methodologies and also enables predictions about the stability of existing binding interpretive methodologies. [ABSTRACT FROM AUTHOR]

The Supreme Court's apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for "major" ageng actions has already had, and will continue to have, wide-Tanging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutog interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress cund newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particularfonnulation of a clear statement rule, which stands almost entirely alone in its structuml features. With the exception ofthemuch-maligned absurdity doctrine, the new majoT-questions-doctrine-as-clear-statement-mle is the only substantive canon that combines two extreme design elements of canons:.first, a weakielationship to existing authoritative constitutional law, and, second, unbounded potential applicability. While courts and scholars have accepted or created many canons that have one or the other of these extreme features, they have conspicuously avoided combining these two features in any new canonperhaps because the combination exponentially increases the potential inte*renee of canons with Congress's exercise of the legislative power. This avoidance has helped to keep the Coulfs use of substantive canons within recognizable boundalies that pieserue a limited role for thejudician. Now that the modern Court has, for the f·rst time, taken this step in the Tecognition Of a new canon, it is time to assess the limits of canons in a system of limited judicial power. This Article undertakes that project,. finding that the major questions doctritte's novel features are a tell of serious theoretical and constitutional injirmities. #' canons can take on this unique combination offeatures. there are no Speed brakes to stop the unraveling of the faithful agent model at the center of standa,-d textualist and intention, alist accounts of the judicial power to interpret statutes. If such canons could. be justified at all, it would only be under a more dynamic statutcny interpTetation approach that explicitly departs from legislative supremag, but the extremibi of the major questions doctrine potentially goes bgond partnership to judicial takeouer of the legislative power, putting significant p'resswe euen on these justifications. In sum, the major questions doctrine's novel step in the law of interpretation mises new questions about the limits ofsubstantive canons. It is not enough jor the Court and defenders of the doct'rine to identify the major questions doctrine as a canon; they must explain why newly recognizing this form of canon is consistent with core theoretical, normative, and constitutional commitments in our legal system. [ABSTRACT FROM AUTHOR]

This article examines the constitutionality of the Egyptian Supreme Constitutional Court's (hereinafter SCC) authority to overrule its prior precedents. The authors argue, contrary to the assertions of the predominant conservative approach in Egypt, that bestowing the SCC with such an overruling power neither violates the Constitution nor undermines fundamental legal principles such as the principles of equality, legal certainty, or the justified expectations of litigants. Indeed, we make the argument that the Court's ability to overrule its prior precedents seems to be the most conceivable and plausible way to correct the Court's past mistakes or inaccuracies. We finally claim that endowing the court with such overruling power enhances the constitutional protection of fundamental rights and freedoms and strengthens the Court's credibility not only via other public authorities, but also via public opinion. [ABSTRACT FROM AUTHOR]

The Supreme Court of Pakistan plays an important mediatory role in managing political conflict. While there is a growing body of literature on the merits of the Eighteenth Amendment to Pakistan's Constitution, not much has been written about how those changes have actually played out in practice before the courts. This paper tries to plug this gap by critically examining the implications of the Supreme Court's decision in Sui Southern Gas Company Ltd v Federation of Pakistan. This paper argues that while the outcome is consistent with a general tendency of constitutional courts to centralize power, the expansive rule laid down by the Supreme Court does not square up with the spirit of the Eighteenth Amendment which was intended to resolve long-standing disputes between the centre and the provinces by conferring greater provincial autonomy. [ABSTRACT FROM AUTHOR]

"Nondelegation doctrine." Lawyers know it as the rule barring Congress from delegating power to other branches of government. The doctrine, however, has another side-one that applies to the judiciary. This aspect of the doctrine holds that courts may not delegate judicial power to other branches of government. Nonetheless, courts do precisely that. And they do it thousands of times each and every day. Judges empower non-judicial actors to do everything from making legal findings and rendering sentences to resolving custody disputes and setting probation conditions. This Article is the first to explore the constitutionality of these kinds of delegations. To that end, this piece presents an original dataset of more than one thousand judicial nondelegation challenges. Reviewing these cases will illustrate the scope of judicial delegations, the problems with current case law, and the need for a clear rule to guide courts in delegating judicial power. This Article concludes by arguing that courts should look to the intelligible principle standard for such a guiding rule. [ABSTRACT FROM AUTHOR]

How should the constitutional reform in Israel be assessed in comparative terms? Comparative constitutional understandings point to the centrality of three key sets of norms as part of the 'democratic minimum core': (i) commitments to free and fair, regular multi-party elections; (ii) political rights and freedoms; and (iii) a system of institutional checks and balances necessary to maintain (i) and (ii). Any change in judicial power and independence must be assessed against the benchmark of the democratic minimum core, and by reference to its cumulative practical effect on a system of institutional checks and balances. We claim that recent changes in Israel may already threaten these institutional checks, and have the potential to do more damage in the future, if given broad effect and if combined with further changes in the power and independence of the Supreme Court. On this basis, we suggest, the relevant changes should be viewed as either 'abusive' or 'proto-abusive' in nature. By threatening to undermine both the power and independence of the Supreme Court of Israel, they directly threaten the health of the constitutional checks and balances system and, hence, the 'democratic minimum core' in Israel. [ABSTRACT FROM AUTHOR]

The book "Origins of Judicial Norm Control in the Constitutional Law of the United States, 1761-1803" by Lukas Wolfgang Lübben examines the development of norm control in constitutional law and constitutional jurisdiction in the USA. It addresses topics such as the relationship between the legislative and judicial branches, the relationship between constitutional jurisdiction and specialized courts, and the relationship between elected and non-elected state organs. The author reconstructs the history of judicial norm control and analyzes the discussions on the separation of powers and judicial review in the US Constitution. He concludes that the relationship between the various parties involved remains open. [Extracted from the article]

Article III limits the federal courts to deciding cases and controversies, and this limitation has given rise to the black-letter law of standing, ripeness, and mootness. But the law of mootness presents a puzzle: Over time, the Court has recognized various “exceptions” to ordinary mootness rules, allowing federal courts to hear arguably moot cases. On one hand, the Court consistently asserts that mootness doctrine, including its exceptions, is compelled by the original understanding of Article III. On the other hand, the scholarly consensus is that these exceptions are logically inconsistent with the Court’s claims about Article III and that their existence proves that mootness is fundamentally prudential, not constitutional. This Article seeks to provide a coherent justification for the mootness exceptions within the constitutional model. First, some exceptions are not really exceptions at all. Collateral consequences; voluntary cessation; and capable of repetition to the same plaintiff, yet evading review—these doctrines merely recognize a shift from a present harm to a potential future harm. And that harm might be sufficiently likely to occur when examined in the light of Bayes’ Theorem. Second, the other exceptions, for class actions, are justified through a better understanding of the history of representative litigation. And that understanding also justifies the extension of the capable of repetition, yet evading review exception to non-parties who are similarly situated to the plaintiff. Modern mootness doctrine is therefore conceptually consistent with the Court’s understanding of the original meaning of Article III. [ABSTRACT FROM AUTHOR]

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The article focuses on the decision of the Nevada Supreme Court in the case Mack v. Williams which recognized an implied cause of action for damages under the Nevada state constitution's search and-seizure guarantee. It mentions court's reasoning turned instead on the court's conception of its inherent judicial power to craft remedies necessary to effectuate constitutional rights. It also mentions officers violated her federal and state constitutional due process and search-and-seizure rights.

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Copyright of Law Studies Journal / Revista Novos Estudos Juridicos is the property of Novos Estudos Juridicos and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

What is constitutional review? Although the question itself does not connote any institutional contexts, traditional literature has typically defined it as "the power/practice of courts to evaluate and determine the conformity of political acts with the constitution." As a result, the concept and practice of constitutional review has been largely equated to one led by courts. Unfortunately, such synonymization overshadows the empirical reality of non-judicial bodies serving central reviewing roles in major democracies such as the Netherlands, Finland, and Japan. By viewing constitutional review as a functional concept, from the institutional design perspective, this Article questions that scholarly tendency and proposes a working definition of constitutional review as an institution-independent concept. This approach in turn encompasses institutional diversity inherently embedded into the practice of constitutional review. Anchored by such a vision, the Article attempts to demonstrate key implications and values for conceptualizing constitutional review independently from institutions and actors. Referring to concrete examples from different countries, it categorizes and juxtaposes existing constitutional review models led by various institutions on the same spectrum (treating court-led review models as only one such category). Using a few countries as an example, the Article also preliminarily discusses how and where to institutionalize the practice of constitutional review so as to design an optimal review mechanism for countries. In conclusion, the Article calls for a new research direction to establish the general literature on constitutional review that reflects the institution-independent concept. [ABSTRACT FROM AUTHOR]

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New judicial federalism urges states to extend their constitutional protections beyond the federal Constitution’s. Yet the scholarship has largely ignored justiciability doctrines—including standing—that dictate the requirements for suing in court. Meanwhile, the federal injury in fact requirement has been debated for years, with critics claiming it is ahistorical and overly restrictive. States, though, are not bound by Article III and can reject the federal standing doctrine. Some states have. In fact, the same year the Supreme Court doubled down on injury in fact by stating “no concrete harm, no standing,” the North Carolina Supreme Court rejected injury in fact and adopted a more permissive legal injury requirement. But the North Carolina Supreme Court’s main rationale was that the federal doctrine is wrong itself. This rests on the mistaken assumption that state and federal courts should have the same standing doctrines. On the contrary, states are not tied to the federal doctrine in any way. This Note explains why states should reject the federal doctrine regardless of whether it is right for federal courts: injury in fact addresses uniquely federal concerns. Federal power grew in response to federal crises and political realities, and, in reaction, the Court used injury in fact to pull the federal judiciary back within its intended limits. Thus, the concerns and values underlying injury in fact are inapplicable to states. Instead of adopting injury in fact, states should adopt more permissive standing doctrines. Such doctrines would be consistent with states’ broader judicial power and would effectuate the goals of the new judicial federalism. [ABSTRACT FROM AUTHOR]

Starting from 2011, the competence of the Constitutional Court of the Republic of Moldova in relation to that of the courts was unclear and unstable, which depended on the interpretations given by the Constitutional Court itself. In particular, we are referring to the competence in examining applications regarding contesting the decrees of the President of the Republic of Moldova and the Decision of the Government of the Republic of Moldova. In the last period, the Constitutional Court carried out such a different practice, that in some cases it stated that the control of some Decisions of the Government of the Republic of Moldova belonged to the competence of the courts of common law, and in other cases the same Government Decisions considered to be the object of the constitutional jurisdiction. From the analysis of several decisions of the Constitutional Court, we found that the litigants faced a deep problem when they determined at which court they would challenge the decrees of the President of the Republic of Moldova and the Decision of the Government of the Republic of Moldova. That's why, in this paper we sought to present this problem that existed in judicial theory and practice, and we submitted recommendations for the resolution of this conflict of competence. We also started from Romanian specialized literature, which mentioned that the object of constitutional jurisdiction is entirely particularized. An important solution is that the Moldovan legislator is to stipulate in art. 135 lit. a) from the Constitution of the Republic of Moldova, the particularities of the decrees of the President of the Republic of Moldova and the Decisions of the Government of the Republic of Moldova that can be subject to constitutional jurisdiction. [ABSTRACT FROM AUTHOR]

In this brief contribution, we propose to first analyze the debates that took place regarding the manner in which the regulation of judicial power should have been carried out in the future fundamental law of Romania; later we will outline the main characteristics of the cassation appeal institution, as they emerge from Law no. 144/1925 for the Court of Cassation and Justice of December 20, 1925; next, we will present some observations regarding the functions of appeal in cassation and we will show that the recognition of the right to appeal in cassation, together with the concentration of constitutional control of laws, had the ability to strengthen the state of the supreme court in the logic of the principle of separation of powers in the state. [ABSTRACT FROM AUTHOR]

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Key voices, most prominently that of Justice Neil Gorsuch, have embraced the position that the Chevron doctrine, under which federal courts defer to an agency's reasonable interpretation of its organizing statutes, is incompatible with the judicial duty to "say what the law is." These voices include several state supreme courts, which have held (often citing Justice Gorsuch) that state-court deference to state agency interpretations likewise impinges upon the fundamental duty of state judges to decide, on their own, what state law is. This Article urges states to resist the uncritical importation into state law of antideference arguments based on the nature of judicial power in the federal context--that is, to resist the temptation to move deference rules in "lockstep" with federal doctrine. In state court, "saying what the law is" is essentially different than doing so in federal court. State courts are common-law courts whose judges not only interpret the law but declare it, often based on policy concerns--just as agencies do. And the law that state courts find is subject to federal supremacy, which makes courts' law-declaration function contingent rather than final. This contingency requires them, even as they say what the law is, to cooperate with agencies in achieving state goals in the face of federal regulatory power. These differences drain the applicability to state constitutional law of most of the arguments now centered in the federal deference debate, both for and against. State courts do not need to decide between Chevron deference and de novo review. Instead, they should seek to build a judicial relationship to agency statutory interpretation consistent with their own particular role as common-law courts, as creators of common-law precedent, and as joint participants with both state and federal agencies in federal regulatory systems. [ABSTRACT FROM AUTHOR]