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The article advocates for the preservation and protection of Utah's judicial independence and accountability. Topics discussed include merit selection system as the starting point of judicial appointment and retention system in Utah, separation of powers and the principles of judicial independence, legislative independence and executive independence under Article VIII of the Utah Constitution, and retention elections and Judicial Conduct Commission as the forms of accountability for judges.

This review of Peter Biro's The Notwithstanding Clause and the Canadian Charter: Rights, Reforms, and Controversies praises the book for bringing together an intellectually diverse group of scholars to discuss section 33 of the Canadian Charter of Rights and Freedoms, better known as the 'notwithstanding clause'. Despite heated disagreement, the diversity in methodologies and perspectives make this volume an ideal starting place to examine the normative considerations that are relevant to analyzing section 33. [ABSTRACT FROM AUTHOR]

Copyright of Journal of Babylon Center for Humanities Studies is the property of Republic of Iraq Ministry of Higher Education & Scientific Research (MOHESR) 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.)

This review of Peter Biro's The Notwithstanding Clause and the Canadian Charter: Rights, Reforms, and Controversies praises the book for bringing together an intellectually diverse group of scholars to discuss section 33 of the Canadian Charter of Rights and Freedoms, better known as the 'notwithstanding clause'. Despite heated disagreement, the diversity in methodologies and perspectives make this volume an ideal starting place to examine the normative considerations that are relevant to analyzing section 33. [ABSTRACT FROM AUTHOR]

Custom, alongside treaties and general principles of law, is one of the important sources of international law. One of the reasons for the significance of custom is that it is unwritten and always dynamic. This advantage has led to an increase in reliance on custom. International law requires states to recognize and implement the customary international rules within their legal systems. For a national judge to refer to custom, it is necessary to clarify the position of this source within the domestic legal structure. Given that custom cannot be proposed and enacted in legislative bodies, the role of courts becomes even more crucial. In this context, examining the pracrice of countries with a common law legal system will provide useful insights. The main question of this article is what position judges in England assign to international custom and in what contexts do they they utilize it? This research shows that international custom has a significant role in the English judicial system. [ABSTRACT FROM AUTHOR]

It is indicated that the development of a modern democratic state is inextricably linked with ensuring the effective functioning of the system of checks and balances, which acts as a fundamental mechanism for maintaining the balance of state power. A special place in this system is occupied by the prosecutor's office, which in the process of constitutional reform has undergone significant transformations and has become an important institutional guarantee for ensuring constitutional legality and protecting fundamental human rights and freedoms. The constitutional changes of 2016 have become a defining stage in the process of constitutionalization of the prosecutor's office in Ukraine, which has led to a rethinking of its institutional status and functional purpose in the mechanism of state power. The changes introduced not only introduced an updated model of the organization of the prosecutor's office, but also significantly modernized its role in the system of checks and balances, adapting it to European standards for the functioning of prosecutorial institutions. The article examines the process of constitutionalization of the legal status of the prosecutor's office in the context of the mechanism of checks and balances. The theoretical and practical aspects of the transformation of the constitutional and legal status of the prosecutor's office in the context of the 2016 constitutional justice reform and European integration processes in Ukraine are analyzed. The peculiarities of the functioning of the prosecutor's office as an element of the system of checks and balances in the mechanism of state power are determined. Scientific approaches to determining the place of the prosecutor's office in the system of state bodies are studied and discussion issues regarding its institutional affiliation are analyzed. It has been established that the modern understanding of the concept of separation of powers does not require mandatory assignment of state bodies to classical branches of power, but focuses on ensuring their effective interaction. It is substantiated that the key aspect of constitutionalization of the prosecutor's office status is not so much its formal positioning in the system of separation of powers as ensuring independence and efficiency in performing constitutional functions. The problematic aspects of the functioning of the prosecutor's office under the new constitutional status are analyzed, in particular, the issues of ensuring its independence, interaction with other state authorities and implementation of constitutional functions. Special attention is paid to the study of European standards for the organization and activities of prosecutorial bodies and prospects for their implementation in national legislation. The role of the prosecutor's office in ensuring constitutional legality and protection of human rights and freedoms in the context of modern challenges, particularly under martial law, is considered. [ABSTRACT FROM AUTHOR]

This research examines the legal uncertainties surrounding restrictions on police officers holding positions outside the police institution, focusing on the analysis of Law Number 2 of 2002 concerning the Indonesian National Police. Using a normative legal research method with legislative and conceptual approaches, the study reviews relevant legal provisions and principles of legal certainty and separation of powers. Key findings reveal significant regulatory ambiguities in defining permissible external roles, enforcement mechanisms, and conditions under which police officers may hold such positions. These gaps contribute to overlapping authorities, legal inconsistencies, and potential conflicts of interest. The study concludes by recommending specific policy revisions, including clarifying legal provisions, strengthening oversight mechanisms, and establishing clear criteria for permissible external roles. These measures aim to enhance legal certainty, maintain institutional integrity, and foster greater public trust in law enforcement. [ABSTRACT FROM AUTHOR]

Freedom of information (FOI) rose to saliency in the early Cold War period as the presidency grappled with controlling what government information was made public or available to Congress. A lack of formal structures and authority provided presidents with the opportunity to unilaterally shape new policies and structures. One such structure was the Office of Strategic Information (OSI), created by a National Security Council directive and housed in the Commerce Department. Congress utilized its oversight power by creating the Moss Subcommittee on Government Information to investigate these new policies and structures. Over a 4‐year period in the mid‐1950s, an interbranch power struggle emerged over what authority existed within the executive branch to deny information and testimony to Congress. OSI is one example in a larger context of FOI that left Congress seeking to clarify executive authority within existing statutes and among new structures, leading to the passage of the first freedom of information law in 1958. Original archival research is used to provide insight into the complexities of governing in a separation of powers system. This early case study informs contemporary politics on congressional access to executive information. [ABSTRACT FROM AUTHOR]

In this study, we examined how and whether a government organisation aligns with a presidential agenda. At all stages of the policy development process, the president interacts with government bodies, despite the principle of the separation of powers. Moreover, in any government organisation, policy implementation begins with interpreting the president's agenda and preferences, given that state administration policy is presented as the law only after the legislature's deliberation and resolution. Our study's premise is that the president's policy agenda preferences and the bureaucratic agency's willingness to act are the drivers of statutory interpretation, which is often neglected but is nonetheless crucial to administrative decision‐making. In addition to interpreting the statutes, the Ministry of Government Legislation of Korea (MGLK) is also a conduit for presidential policy; as such, the MGLK can significantly impact policy formulation and implementation. [ABSTRACT FROM AUTHOR]

The legislative body has undoubtedly an important place in democratic regimes. The issue of whether the legislature should be unicameral or bicameral has been discussed in political science and constitutional law for many years and many studies have been conducted on this issue. The bicameral legislative system is accepted as one of the effective means of limiting state power. It is stated that this system aims to secure the rights and freedoms of individuals by limiting both executive and legislative power. It is also argued that the establishment of a second chamber within the legislature will contribute to the principle of separation of powers. In this study, whether the bicameral legislative model has a vital importance for pluralist democracy is examined by evaluating the positive and negative opinions put forward about the second chambers. As well as it is evaluated that the structures, powers, reasons for the formation and periods in which bicameral parliamentary system were implemented in Turkish political life, the Ayan and Mebusan Assembly, which were formed within the parliamentary general assembly with the 1876 Kanun-i Esasi, and the Republican Senate and National Assembly, which were formed within the Grand National Assembly of Turkey with the 1961 Constitution. [ABSTRACT FROM AUTHOR]

The legal regulation of the state of emergency is a very wide and controversial due to the fact that the tension between the branches of government, which is not so obvious in everyday life, is often more transparent in cases of state emergency. This tension appeared in many countries as well as in Kosovo during the application of the measures to deal with the COVID-19 pandemic, and which revolves around whether the parliament should decide on the measures taken and their financing, or if this responsibility falls within the purview of the executive branch. This paper analyses the legality of the actions taken by the government during the pandemic. Further, it examines the legal ramifications of declaring a state of emergency, the resulting tension between the branches of government and measures taken to ensure respect for human rights. [ABSTRACT FROM AUTHOR]

Copyright of Akdeniz Üniversitesi Hukuk Fakültesi Dergisi is the property of Akdeniz Universitesi Hukuk Fakultesi Dergisi 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.)

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Copyright of Majalat Monazaat Al-Aamal is the property of Majalat Monazaat Al-Aamal 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.)

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(3), 876-909 | Article | (Table of Contents) I. Introduction. – II. Data set and general analysis of CJEU case law. – II.1 The data set. – II.2 Overall findings. – III. Financial assistance programmes. – IV. The ECB’s monetary crisis measures. – V. Banking union. – VI. Conclusions. | (Abstract) During the past ten years or so there has been an ongoing debate about the constitutional limits of EMU development and its external assessment by courts. This Article conducts a systematic investigation of the CJEU’s cases relating to the EMU (including Banking Union) in 2010-2020. A clear pattern emerges from this dataset: the only successful annulment actions derive from the area of the Banking Union. All actions of annulment considering financial assistance programs and the ECB’s crisis measures have been dismissed or rejected, and all actions seeking compensation or recognition of a failure to act were dismissed. We examine the argumentation of the Court and conclude that its function in the EU legal order remains administrative rather than genuinely constitutional. In legal “grey zones” or politically contested cases, the Court’s approach remains that of marked loyalty to the executive decisions taken by executive players at Union level, based on argumentation that is not always legally solid or supported by facts. This not only endorses the liberties taken during the crises, but has the effect of increasing the future room for manoeuvre of the EU’s executive institutions, especially in cases where judicial review would be needed to maintain the credibility of the EU as a union based on the rule of law.

Judge’s Fundamental judicial supervision on ordinary laws is one of the most important issues in the last decade. The problem is that the judge, in the position of hearing the case and invoking the rule of law, which may have a dual source in the constitution and the ordinary, can act as the basic supervisor of the ordinary law and set it aside? The new viewpoint is based on the theory of the attainment of the right and jurisdiction of the Judiciary. According to this view, the patterns of fundamental rules are based on the generality and foundations of the legal system and derive from all the effective norms affecting it and protecting the fundamental rights of individuals, and the judge as a selector person, due to the sources of right, selects the justice verified rule and settles the lawsuit. In this view, the legal rules are subject to the basic duty of the Judiciary in such a way that the judge refuses to enforce them in dealing with laws that are contrary to the reference and fundamental norms. This non-enforcement has a negative character and cannot be used to repeal the law. In this view, the dominance of the legal aspect of political supervision is not only in conflict with the theory of separation of powers, but also in line with its goals and the rule of law.

The article is devoted to the problems and perspectives of the theory of separation of powers. The general aspects of the theory of separation of powers are outlined. The authors say that the multiplicity of types of power and types of social norms and factors, that ensure them, shows that separation is inherent to the phenomenon of power. It was noted that the issue of separation of powers has an important theoretical and practical significance and is closely related to the classification of political regimes into totalitarian, authoritarian, democratic and liberal. It was emphasized that, contrary to the established stereotype, the separation of powers, in certain forms, existed long before the epoch of Ch.L. de Montesquieu. It is noted that the ideas of separation of powers long before J. Locke and Ch.L. de Montesquieu was also expressed by Aristotle and Marsilius of Padua. It was substantiated that, in fact, the separation of powers has existed in some forms since the very beginnings of statehood. So, the theory of the separation of powers does not arise, but is only actualized in the XVII-XVIII centuries in connection with the struggle of the bourgeoisie against absolutism and feudal-clerical orders. It was noted that existence of the separation of powers for a long time before the period of the bourgeois society says that the separation of powers, as such, does not protect society from slavery and serfdom, arbitrariness and tyranny, inquisition and oppression, but, on the contrary, can increase the number of tyrants, independent of each other. The authors say that the separation of powers into the legislative, executive and judicial branches does not protect society from tyranny and usurpation of power by one party, while the incompleteness of the separation of powers (in particular, in the countries of the Anglo-Saxon legal family) does not turn the state into a tyranny. The authors pay attention to the critical view on the separation of powers in the works of J. Bodin, T. Hobbes, G.F. Szerszeniewicz, who say that the real separation of powers is dangerous to the unity of the state. It was emphasized that the theory of separation of powers contradicts the basic characteristics of the state sovereignty, defined by J. Bodin, because if the power is limited and separated into several branches, then it cannot be unified, supreme, absolute and permanent. The historical experience of different riots, rebellions and civil wars, that confirms the validity of the mentioned concerns, was provided. It was noted that the separation of powers in the state can have only a functional nature. It was noted that excessive separation of powers can paralyze state management or significantly complicate the system of state authorities and intensify the struggle between them, which will contribute to the establishment of a dictatorship. The authors support the position of G.F. Szerszeniewicz that the «legal self-limitation of the state» is a fiction and indicate that, theoretically, the limitation of the state by law is most likely in the states of the Anglo-Saxon, religious or traditional legal family, where the legislation, created by the state, is not the main source of law. Following B. Constant, it was stated that, in fact, the number of branches of power in the state is much greater than 3, and it was noted that, in particular, in modern Ukraine, we can talk about 9 branches of government, which creates the need to rethink the classical postulates of the theory of the separation of powers and the mechanism of checks and balances, as well as the necessity of expansion and addition of the typology of political regimes, etc. [ABSTRACT FROM AUTHOR]

Do coalition parties in presidential systems shadow one another with an eye on reducing agency loss? Our knowledge of intra‐coalitional delegation under presidentialism remains limited to a few case studies. This article addresses that question using an original data set of committee chairs in eight multiparty presidential systems around the world. It shows that shadowing—the appointment of chairs from one coalition party to committees overseeing portfolios controlled by another coalition party—is a function of the degree of agency loss the coalition expects to a specific party, operationalized in terms of ideological distance as well as the salience of portfolios. However, the data also tentatively suggest that powerful committees reduce rather than increase the incidence of shadowing, which may be attributed to the risk of intraparty agency loss under separation of powers. [ABSTRACT FROM AUTHOR]

The article focuses on the U.S. Supreme Court's decision in Trump v. Anderson regarding the disqualification of Donald Trump from the Colorado primary ballot under section three of the Fourteenth Amendment. Topics include the legal reasoning behind the Court's decision, the structural logics of federalism, separation of powers, and democracy, and the implications of this decision for presidential disqualification and immunity in the context of criminality by elected officials.

It is indicated that the key problem in the activity of the Constitutional Court of Ukraine is ensuring the implementation of its decisions. Without solving this issue, it is impossible to guarantee the supremacy of the Constitution, the principle of separation of powers and the existence of an independent judicial branch of government as a separate institution. Ignoring the decisions of the constitutional control body undermines the very system of checks and balances, the authority of the Basic Law and the constitutional order in the country in general. These principles underlie the implementation of decisions of constitutional courts, the purpose of which is to ensure constitutional legality. In Ukraine, the mechanism for the implementation of the decisions of the Central Committee of Ukraine has already been developed in general, but there are problems related to the non-implementation of some of its decisions for a long time. Therefore, the task of further improvement of this mechanism and its proper legislative regulation remains relevant. The authors claim that Ukraine has already developed a mechanism for implementing decisions of the Constitutional Court. However, this system is not perfect, which is evidenced by the fact of non-execution of individual court decisions. Therefore, the issue of continuing the work on improving the existing mechanism for implementing decisions of the body of constitutional jurisdiction, securing it properly at the legislative level, remains urgent. At the same time, the problem of the quality of such execution comes to the fore, for the solution of which it is necessary to develop criteria for the effectiveness of the execution of court decisions, which will allow to assess the quality of the legal acts that are introduced and the work of the responsible entities. Both outlined problems definitely need further thorough scientific research. In addition, according to the authors, it should be noted that the issues of the legal nature of the legal positions of the Constitutional Court of Ukraine and the criteria for the effective implementation of its decisions remain interacting categories and, therefore, require thorough scientific study. At the same time, clarifying the legal force of the Court’s legal positions is complicated by the lack of their legislative definition, by a certain difficulty in understanding the role and place of the body of constitutional jurisdiction in the system of state power. At the same time, the legal positions have a normative and mandatory character, reflected in the acts of the KSU. The need to ensure their immutability follows from the principles of legal certainty and stability of the Constitution. However, the possibility of revising some legal positions in connection with the change in the socio-political structure of the state is gaining relevance. [ABSTRACT FROM AUTHOR]

It is indicated that in the conditions of the formation of Ukraine as a state based on the principles of democracy and the rule of law, it is extremely important to ensure the effective work of all links of the state mechanism, in particular the prosecutor's office as its integral component. The correct positioning of the prosecutor's office in the structure of state institutions is of decisive importance for the organization of power as a whole, because it directly affects both the quality of the prosecutor's office's performance of the tasks assigned to it and the balanced functioning of the system of checks and balances. The article examines the problem of determining the place of the prosecutor's office in the system of state authorities of Ukraine. Scientific approaches to understanding the legal nature of law enforcement agencies and their positioning in the state mechanism are analyzed. The discussion on the allocation of law enforcement agencies as an independent component of the state mechanism and the possibility of expanding the constitutional model of the separation of powers is highlighted. Particular attention is paid to the trend of rethinking the traditional concept of the separation of powers and the separation of the control authority as the fourth branch. The need for the formation of an independent control and supervisory branch of power is substantiated and proposals for including a special section on state control in the structure of the Fundamental Law of Ukraine are analyzed. The main approaches to determining the place of the prosecutor's office in the system of state power are considered in detail: as part of the legislative, executive, judicial branches of power or the presidential vertical. Foreign experience in organizing the prosecutor's office is analyzed and five main models of its functioning in different countries are identified. International standards on the role of the prosecutor's office are studied, in particular the Recommendations of the Committee of Ministers of the Council of Europe. Based on the analysis, a conclusion is drawn about the need to reform the status of the prosecutor's office in Ukraine, taking into account both international standards and national characteristics - historical traditions, legal culture, socio-economic and political realities. The importance of a comprehensive approach to resolving the issue of integrating the prosecutor's office into the system of separation of state power is emphasized. [ABSTRACT FROM AUTHOR]

As part of their continuous effort to enhance the effectiveness and democratic legitimacy of human rights treaties, human rights treaty organs have increasingly fostered a direct relationship with various state organs, thereby penetrating the 'states' that traditionally have been treated as monolithic legal entities. Treaty organs review the decision-making process of each type of state organ – courts, parliaments and administrative organs – and make remedial orders that are substantially addressed to specific state organs. Such phenomena go hand in hand with the relativization of the distinction between the legal spheres in which human rights treaty organs and state organs operate. This is the first study to address such phenomena as a totality. It constructs the 'separation of powers in a globalized democratic society' theory, thereby proposing how each type of state organ and the treaty organs should interact under human rights treaties. Its findings contribute, first, to the harmonious achievement of the effectiveness and democratic legitimacy of human rights treaties; second, to the reform of the classical paradigm of international law, in which monolithic states are the only relevant legal entities; and third, to the long-standing debates on the relationship between international and national laws from a new angle. [ABSTRACT FROM AUTHOR]

This paper analyzes the causes of equity pledge, external conduction mechanisms, and economic consequences from the perspective of insurance participation by integrating insurance participation, equity pledge, and stock price crash risk into a unified framework. An empirical analysis of sample data from listed companies in Shanghai and Shenzhen between 2007–2021, indicates that equity pledge reduces the risk of collapse as companies hedge the risk induced by the equity pledge. Further research has revealed that insurance participation can mitigate stock price crash risk brought by equity pledge through a regulatory effect, which is more pronounced for private companies and those with a high shareholding ratio, and companies in manufacturing industry. This is because private companies have a higher demand for capital as their property rights are not state-owned, the degree of separation of powers and agency conflicts is greater in companies held by large shareholders, manufacturing companies usually have stable earnings and cash flow performance, and the financial support provided by insurers for equity pledges at risk can effectively reduce the risk of their collapse. [ABSTRACT FROM AUTHOR]

It is not the place of a court to create a contract between the United States and a private party. However, after the finding of a Procurement Integrity Act (PIA or the “Act”) violation in a U.S. Department of State acquisition, that is exactly what the Court of Federal Claims (COFC) and the U.S. Court of Appeals for the Federal Circuit (CAFC) did by ignoring the phrase “[t]ake any other appropriate actions in the interests of the [g]overnment” (“Option Three”), in Federal Acquisition Regulation (FAR) subsection 3.104-7(d)(1)(iii). While this phrase was likely intended as a catch-all for what contracting officers (COs) and courts could do, the case SAGAM Sécurité Senegal v. United States demonstrated that it is so vague that neither the government litigators nor the courts addressed it for a possible remedy. This vagueness created a gap that put COFC and CAFC in a position to essentially create a contract between the U.S. government and a private party. While the proper end result was achieved in SAGAM Sécurité Senegal v. United States (SAGAM Matter), this Note aims to address the procedural contracting gap that the case identified by suggesting that the FAR Council make Option Three more prescriptive. With specific examples about what other actions are in the interest of the government, the procurement process’s integrity can be bolstered and the separation of powers maintained. [ABSTRACT FROM AUTHOR]

John Locke is acknowledged to be one of the theoretical founders of the separation of church and state, a distinguishing feature of modern liberal democracies. Though Locke's arguments for the merits of such separation have been subject to extensive investigation, his argument for its feasibility has remained relatively unexamined. This article argues that Locke was confident that separation of church and state can successfully be implemented in all times and places because of his epistemological and psychological insights that human beings are moved to act by unease and that separating church and state removes the unease that causes religiously based political instability. We conclude by noting that Locke's understanding of unease is foundational for his larger ambition to secure political liberty. [ABSTRACT FROM AUTHOR]

According to the U.S. Supreme Court, the major questions doctrine requires “clear congressional authorization” for agencies to exercise delegated authority over “major policy decisions.” But where can the Court find constitutional authority to announce such a rule? That question divides originalist-oriented scholars and judges. Some have criticized the doctrine sharply as departing from a court’s obligation to apply a law’s textual meaning. Others have defended it as arising from congressional intent, ordinary linguistic conventions, or a constitutionally based rule against delegation of legislative power. This Article undertakes a broader originalist defense. First, it describes the major questions doctrine as a substantive canon—that is, an interpretive rule based not on linguistic conventions but on an extra-textual value of protecting the separation of powers. Second, it assumes that the major questions doctrine need not be derived from a direct constitutional command against delegation. It then argues instead that the major questions doctrine can be seen as part of a broader power of courts to read ambiguous federal laws narrowly to avoid erroneously undermining core founding-era structural assumptions. The article explores early post-ratification judicial practice in support. It concludes that the early judicial practice indicates a discretionary authority, uncontested at the time, to underenforce ambiguous laws in this manner. It thus links early interpretive canons such as the presumption against violations of international law and the presumption against civil retroactivity, with the modern Court’s longstanding presumptions protecting federalism and the present Court’s recent invocation of the major questions doctrine. [ABSTRACT FROM AUTHOR]

“[W]ere the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.” The Federalist No. 47 (James Madison) (quoting Montesquieu). If asked to name some of the core beliefs of the current Supreme Court Justices, one would undoubtedly identify their allegiance to maintaining the separation of powers and to interpretative methods such as textualism, as well as taking an anti-activist approach in their roles as decisionmakers. Yet several of these bedrock principles, especially textualism, have been trumped in several notable recent cases when the Court has invoked the newly-metamorphosized “major questions” doctrine. The major questions doctrine, as it stands today, requires courts to scrutinize agency action where the agency is attempting to exercise powers of deep economic or political significance or to exercise powers in a way that would effectuate an enormous and transformative expansion of the agency’s regulatory authority. Only if the court finds that Congress clearly authorized such power can the court sustain the action. But this approach is not the way the doctrine had previously functioned in our administrative state. In my 2016 article on the major questions doctrine, I highlighted a significant expansion in how the doctrine had recently been applied in Supreme Court cases at that time. As originally conceived in two early cases, the Court raised the doctrine as part of its Chevron Step-One analysis to determine whether the statutory language in question was ambiguous. But upon resurrecting the doctrine in 2014 and 2015, the Court invoked the doctrine in other stages of the Chevron analysis, including to justify that the Chevron analysis should not apply at all. Now, in a series of very recent cases, the doctrine has transformed into a much more significant —and perilous —doctrine with respect to how it functions in both our administrative state and in our democracy. The doctrine can now be better regarded as a canon of construction employed to strike down agency action —even in cases where there is statutory textual support for agency’s assertion of power and where Congress’s underlying grant of power to the agency does not effectuate an unconstitutional delegation of legislative power. This presumption against agency power (and the requirement that there be a specific congressional grant) effectively diminishes legislative and executive power. Moreover, it represents a dramatic type of judicial activism that fails to respect accountability principles in our democratic system and the separation of powers. With this new doctrine now firmly in place, this Article analyzes how the major questions doctrine is incompatible with the Court’s fidelity to textualism. The Article concludes that the Court’s application of the doctrine also manifests a hypocrisy because although the Court purports to be protecting accountability principles and Congress’s power (and more broadly the separation of powers) when it invokes the doctrine, the Court is actually subverting these principles. [ABSTRACT FROM AUTHOR]

Independent commissions and other bodies take ever-growing importance in the process of the selection and appointment of judges, but they are not a cure against all threats to judicial independence. Starting from the Guðmundur case in a comparative perspective yet focused on the Hungarian model the paper will investigate other elements of the selection process that also play a role in guaranteeing judicial independence, as the question of judicial appointments is of great importance for an independent tribunal being established by law. The paper argues based on recent case-law that the requirement of judicial review against breaches of the appointment process will lead to a judicialization of this now rather political question and can enhance the system of checks and balances in this field. This will again probably entail the need for more defined selection criteria. The Hungarian model shows weaknesses, the analysis of which may help to avoid some "faux-pas" and trigger a more systematic European response. The paper uses the comparative legal method and relies on the analysis of legal texts, mostly from European and national courts and other European fora within the Council of Europe. [ABSTRACT FROM AUTHOR]

Copyright of Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi is the property of Ankara Haci Bayram Veli Universitesi Hukuk Fakultesi 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.)

Copyright of Environmental & Social Management Journal / Revista de Gestão Social e Ambiental is the property of Environmental & Social Management Journal 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.)

Copyright of Kırıkkale Law Journal (KLJ) is the property of Kirikkale Law Journal 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.)

This article examines the relationship between democracy, capitalism, and inequality in America. It discusses the arguments made by Angus Deaton, who claims that democracy is undermined by money's influence on the legislature and wealthy minorities blocking provisions for the less wealthy. However, the article presents counterarguments, suggesting that "deaths of despair" and income stagnation may not be as prevalent as Deaton suggests. It also challenges Deaton's claim that the rich drive policy, presenting evidence that the middle class often gets what it wants in terms of congressional votes. The article explores the undemocratic nature of the Senate and proposes reforms, but argues against them, stating that they misunderstand the divisions in America and that the Constitution was designed to create unity. The article concludes by cautioning against further expansion of executive power and majoritarianism, suggesting that federalism may offer a solution to accommodate the differing tribes in America. [Extracted from the article]

In recent years, both domestic and international courts have become increasingly deferential to the executive in cases that concern matters of national security. This trend has resulted in rule of law backsliding and the inadequate and ineffective protection of the human rights of individuals. With the steady rise of populism and politics of fear and division, the threat of insecurity has been hyperinflated and exploited to justify national security measures. The normalisation of this 'securitisation populism' has had a profound impact on human right values, tolerance, and the rule of law. Through an analysis of illustrative case law of the European Court of Human Rights as well as domestic courts in the United Kingdom, this article focuses on the role which supranational human rights courts such as the ECtHR should play in putting (early) breaks on rule of law backsliding at the domestic level. The article concludes that it is in the long-term public interest to establish strong rule of law and human rights safeguards which are capable of holding states accountable for insufficient human rights protections through robust judicial review even, and perhaps especially, in highly charged cases that concern national security. [ABSTRACT FROM AUTHOR]

International environmental law rarely refers to the rule of law. However, in fostering inter-state cooperation, international environmental agreements oblige parties to prohibit, restrict or control various activities that are harmful to the environment. The application of these constraints at the national level requires the rule of law to be taken into account. [ABSTRACT FROM AUTHOR]

The article discusses controversial judicial decisions and the protection of judges from political attempts to remove them from office. It emphasizes the importance of judicial independence in a modern democracy and highlights instances such as Trump v United States and the Miller cases. The text also explores the UK's constitutional safeguards for senior judges, including security of tenure, and recounts the 1973 attempt to remove Sir John Donaldson. The article concludes by contrasting the UK's strong tradition of judicial independence with the US's impeachment mechanism for federal judges, reflecting on the implications of controversial decisions on judicial legitimacy. [Extracted from the article]

There are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. Such disputes--including over statutory removal restrictions, recognition, conduct of diplomacy, and executive privilege--do not involve instances where one branch is trying to exercise the other's exclusive power, as formalism posits. Nor is it clear how one could measure, or evaluate the effect of any one dispute on, the general balance of powers between the branches that functionalism seeks to maintain. Instead, difficult separation of powers questions involve separation of powers infringements--instances where both branches have power to act, but one branch's exercise of power infringes on or interferes with the other's exercise of power. This Article proposes a method built to resolve precisely such cases: interest balancing. Accepting that both branches might have power to act over a matter, interest balancing asks whether one branch's exercise of power has infringed upon the other's and, if so, whether such infringement is justified by a sufficiently strong interest. This mode of analysis might sound familiar, as it is the standard method of addressing infringement on constitutional entitlements in the other half of constitutional law--individual rights. When someone alleges an individual rights violation, we do not ask whether the government or individual has "exclusive power" over the matter, nor do we resolve the dispute by asking how it might affect the "general balance of power" between the individual and the government. Instead, we ask whether a right has been infringed and, if so, whether such infringement can be justified by a sufficiently strong governmental interest. Despite the long history of interest balancing in individual rights cases, scholars have failed to appreciate its utility in resolving separation of powers disputes. Yet, there is precedent for its use in the separation of powers. It was introduced in Nixon v. Administrator of General Services, continues to be the standard method of resolving executive privilege disputes, and has been used, albeit never routinely, by executive branch actors and courts of appeals in various other domains. Notwithstanding this precedent, neither courts, nor scholars, have recognized interest balancing's potential as a general framework for resolving separation of powers disputes. This Article identifies interest balancing as a coherent method of separation of powers analysis that is both conceptually and practically well suited to address the separation of powers disputes that actually arise today. It explains how interest balancing is distinct from the prevailing approaches--including formalism, functionalism, Justice Robert Jackson's Category Three analysis in Youngstown Sheet & Tube Co. v. Sawyer, and recent proposals for categorical deference to statutes-- --and then evaluates its strengths and weaknesses relative to such approaches. Ultimately, it concludes that interest balancing is the approach best suited to resolve the difficult cases that actually arise--those of separation of powers infringements. The Article then theoretically develops how interest balancing can be operationalized and improved going forward. [ABSTRACT FROM AUTHOR]

Copyright of Journal of Anbar University for Law & Political Sciences is the property of Republic of Iraq Ministry of Higher Education & Scientific Research (MOHESR) 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.)

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Copyright of Estudios Politicos (01215167) is the property of Universidad de Antioquia 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.)

Copyright of Nachhaltigkeitsrecht is the property of Verlag Oesterreich GmbH 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.)

One challenge of administrative law is explaining why public officials must abide by the duty of reasonableness, even when the statute purports to confer an absolute power to the administrative decision-maker. However, underlying this challenge is often an assumption that judicial review is a regulative practice that aims to constrain or control the administrative state through the imposition of duties. It is this assumption, however, that puts the practice of judicial review under scrutiny, and results in Parliament and the courts competing for supremacy, as it is unclear why unelected judges should be able to superimpose restraints on Parliament’s statutory design choices. This paper aims to challenge that assumption. Drawing on three foundational cases of administrative law (Roncarelli v Duplessis; CUPE v NB Liquor Corporation; and Canada (Minister of Citizenship and Immigration) v Vavilov), I argue that judicial review is a power-conferring practice that makes possible administrative authority, rather than constrains it. I do so principally by arguing that reasonableness is not a duty but a powerconferring norm that produces the validity of exercises of administrative authority. While a duty often constrains our actions, power-conferring norms are facilitative in nature; they secure legal ways of acting in the world and provide for the valid exercise of that action. As a powerconferring norm, reasonableness generates rather than constrains administrative authority by making it legally possible for the administrator to act with genuine legal authority. Consequently, the aim of judicial review is not to control the administrative state but to facilitate it by securing the legality of Parliament’s statutory design schemes. On the power-conferring interpretation, therefore, the courts and Parliament do not compete for supremacy but collaborate to confer and constitute administrative authority. I explore several important consequences that flow from this argument in the article, including implications for the theoretical foundations of judicial review, the way in which administrative power is constituted, the separation of powers and the strength of parliamentary sovereignty [ABSTRACT FROM AUTHOR]

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