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This article delves into why the United States and Singapore, despite their shared colonial history, democratic institutions, wealth, and global influence, have drastically different free speech models. This paper will look at three points of comparison: historical context, political theory, and evolution of judicial interpretation. By comparing the current events and the prevalent political theories at the time of drafting the Singaporean and American constitutions, this paper seeks to understand why the nations ratified contrasting free speech clauses.  However, the Constitution is only as meaningful as the courts interpret it, so this paper also explores how the respective Supreme Courts of Singapore and America have evolved their interpretation of the Constitution to shape their contrasting free speech models. While this paper will not argue which model of free speech is more effective, it will outline the underlying reasons for Singapore and America's drastically different free speech models.

The article is devoted to the study of certain issues which, if resolved, will contribute to the enhancement of the effectiveness of appeal in pre-trial criminal proceedings. It is stated that regulatory gaps and the lack of uniform approaches to the grounds, conditions and procedure for applying the appeal institute do not allow for an effective mechanism of legal protection of violated substantive and procedural human rights. The author determines that formalized approaches to the appeal procedure have a negative impact on the effective achievement of the objectives (purpose) of appeal in pre-trial criminal proceedings. It is emphasized that the appeal against a notice of suspicion has regulatory shortcomings in terms of the lack of substantive and criminal procedural grounds for filing a complaint. At the same time, the author emphasizes that there are no grounds for appealing against the decision to put a person on the wanted list. Among the defects in the procedure for applying the institution of appeal, the author highlights the lack of criteria which determine the rules of jurisdiction for consideration of appeals against decisions, actions or omissions of the prosecution during the pre-trial investigation. The author examines the impact on the effectiveness of appeal of the possibility provided by procedural law to file a complaint against decisions, actions and omissions of the prosecution to the prosecutor. It is noted that within the framework of constitutional rights, it is important to provide for the possibility of appealing against certain decisions of investigating judges which affect fundamental human rights and freedoms. In particular, the author finds that the list of appealable decisions does not include decisions on determining jurisdiction and on conducting a search in urgent cases. At the same time, the author argues that it is necessary to introduce cassation appeal in pre-trial criminal proceedings, since the right to appeal in cassation is a practical implementation of the constitutional principle of criminal justice. The author also substantiates the need to regulate the procedure for pre-trial criminal proceedings during the filing and consideration of a constitutional complaint. [ABSTRACT FROM AUTHOR]

'Sovereignty', Arendt says, 'is contradictory to' the human condition. It is not, in any event, the kind of thing that can be shared across generations. Subsequent generations lack sovereignty to the precise degree that they are bound by the decisions of their predecessors. It is no answer to say that contemporary citizens participate in the sovereignty of a whole, transgenerational people. To paraphrase de Tocqueville, later generations are not free because they are not entirely equal, and they are not equal because they are not entirely free. Where 'sovereignty' is a metaphysical concept that transcends time, recognition is an act of the imagination that extends empathy diachronically in both directions. An earlier generation treats its successors with recognition and respect by bequeathing the best system it can manage and entrusting later generations to exercise the same freedom that it enjoyed. Democratic law can exist across generations only through negation. Later citizens may accept as valid the law made by their predecessors. But, in doing so, they implicitly affirm their right to alter, amend, or abolish what came before. Only by freely affirming the choices of their predecessors can current citizens participate in something approaching freedom. [ABSTRACT FROM AUTHOR]

The first part of this paper examined the background to and conduct of a case called Symons v Morgan before the Supreme Court of Van Diemen's Land. Symons appears to be the first case in which a colonial court asserted jurisdiction to invalidate a colonial 'statute' on the basis that the legislation concerned contravened the colony's constitution. The Supreme Court claimed the jurisdiction as a matter of inference. There was no imperial or colonial legislation expressly granting such a power, nor any judicial authority – whether colonial or imperial in origin – supporting the Supreme Court's conclusion. The second part of this paper analyses the responses of the colonial government to the Symons judgment, and consequently the responses of the imperial government and Parliament to those colonial initiatives. The actions of the imperial government and Parliament show acceptance of the principle that colonial courts could review the validity of colonial legislation. [ABSTRACT FROM AUTHOR]

For many political constitutionalists, the ordinary democratic process should be the constitution; constitutional entrenchment and strong-form judicial review should be avoided. But how is ordinary democratic politics understood by political constitutionalists? To answer this question, this article engages in an interpretative inquiry to delineate four distinct ideological readings of political constitutionalism—democratic socialist, liberal, republican and conservative—that are alive within the existing literature. It does so to explain how these readings articulate subtly different understandings of ordinary democratic politics. In doing so, it reflects on how to identify political constitutionalist thought; how political constitutionalism can appeal to different ideologies; how ideologies have influenced the theory's intellectual development; and the ideological conditions required to sustain a political constitution. [ABSTRACT FROM AUTHOR]

John R. Commons' Legal Foundations of Capitalism documented the co-evolution of law and economics. Commons reviewed legal cases that affected economic development. Courts had endorsed emerging business practices unleashing endogenous forces of change. Scarcity was the dominant feature of the pre-industrial economy, but Commons' Stages of Capitalism demonstrated that the economy had evolved to industrial production. As industrialism became more dominant, production was potentially abundant. However, abundance was a source of instability. Stabilized scarcity policies relieving instability were confirmed by the judiciary. Judicial review established judicial sovereignty that Commons called "dictatorship of the courts." Intangible property was legalized. Use value of property was replaced by exchange value. Edicts of the courts could supplant the work of the legislative and executive branches risking a movement toward the fascism of pre-war Italy. The economy continues to evolve. The cutting edge of the economy is knowledge-based production, which is not manufacturing commodities. It is about the design and use of technology for the application of ideas that are built on increasing returns and positive feedback (further sources of instability). Competition is different in these industries where market power is prominent. This will require policies to deal with market power. [ABSTRACT FROM AUTHOR]

The article presents the results of the analysis of the changes that have taken place in the legal system of the Netherlands under the influence of digitalization, in particular in the area of property relations regulation. Positive experience in the Netherlands in the implementation of digital technologies in the field of maintaining a number of state registers, which have a direct connection with the mechanism of proper exercise of property rights, has been revealed. The gradual changes that took place from 1996 to today have been clarified. A review of the authentic register of buildings, which contains information on buildings, objects and permanent sites (berths) and has been in operation since July 1, 2011, was carried out. It is emphasized that in the regulation of property registers, special importance is attached to the protection of personal data, in particular, the current Law on the Protection of Personal Data (adopted on May 25, 2018) was analyzed. This legislative act maximally takes into account EU requirements in the field of recording and use of personal data. A Personal Data Base (BRP) has been created separately, which contains personal data of people living in the Netherlands (residents), and citizens living abroad and other non-residents. It was revealed that the Netherlands plans to transform the system of basic registers into a Unified Data System in the coming years. This development is part of the interagency data strategy program. Research has shown that using core registries is not always straightforward, especially for those trying to combine data from multiple registries. The main focus in the coming years will be on streamlining the process of extracting data from sources and their further integrated use, even for sectors and purposes that were not initially envisaged. Analyzed the legal principles and practice of electronic procurement in the Netherlands. A review of judicial practice regarding consideration of the issue of ownership of digital data was carried out. It was established that the issues regarding the adoption of special acts on the regulation of the use of artificial intelligence, the recognition of cryptocurrencies and the owner ship of digital data are unresolved. [ABSTRACT FROM AUTHOR]

Under EU law, state aid is in principle prohibited to ensure fair competition within the internal market. The European Commission reviews proposed state aid schemes submitted by Member States and issues administrative guidelines to lead the process. This paper focuses on the legal effects of state aid guidelines, particularly in relation to the energy transition and the Temporary Crisis and Transition Framework adopted during the 2022 energy crisis. The Courts have reasoned that state aid guidelines are only binding on the Commission, as Member States are not obligated to adopt any state aid schemes. However, this article argues that state aid guidelines are often closely linked to policy objectives of the European Union and should not be considered in isolation. The connections between administrative guidelines and other regulations raises important questions about the Commission's role in ensuring fair competition through state aid control. [ABSTRACT FROM AUTHOR]

The article offers information on the court case Alexander v. South Carolina State Conference of the NAACP, where the Supreme Court reversed a district court ruling that found South Carolina's redistricting plan violated the Fourteenth Amendment's Equal Protection Clause due to racial gerrymandering. Topics include the legal framework for racial gerrymandering claims, the role of legislative intent and evidence in proving racial motivation, and the Court's deference to factual findings.

The article offers information on the court case Vidal v. Elster, focusing on the Supreme Court's interpretation of the Lanham Act's "names clause" in the context of First Amendment challenges. Topics include the Court's reliance on historical traditions to justify content-based trademark restrictions, the disagreement among conservative justices on how to apply history in constitutional interpretation, and the role of judicial review in evaluating content-based restrictions on trademarks.

The article focuses on the Supreme Court's decision in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine, ending the long-standing practice of deferring to agency interpretations of ambiguous statutes. Topics include the Court's reasoning for rejecting Chevron, the implications of this decision for judicial review and agency authority, and the potential shift in interpretive power from agencies to courts in regulatory matters.

The article focuses on the curation, narration, and erasure of cases in the U.S. Supreme Court's 2023 term, using the case Acheson Hotels, LLC v. Laufer as a starting point for reflection. Topics include the Court's selective case review process, the impact of its decisions on national law, and the broader consequences of judicial discretion in shaping the legal landscape.

The Basic Structure Doctrine, developed by the Supreme Court of India to protect the Constitution of India 1950 from undesirable amendments by Parliament, has seen tremendous growth in its 51 years of existence. This paper argues that despite its evolving scope, the doctrine suffers from an abstraction problem: it insufficiently addresses the abstraction level at which basic features should be identified. The judicial techniques employed to identify these features also do not adequately address this problem. A review of the Supreme Court's application of the doctrine in cases involving a basic structure challenge to constitutional amendments reveals that basic features have been identified at varying abstraction levels. Consequently, this paper proposes a "stratification test" that categorizes the Constitution's basic features and the facets of these features as two distinct abstraction levels. It argues that recognizing and stratifying varying abstraction levels is essential for effective constitutional dialogue, experimentation, and governance. [ABSTRACT FROM AUTHOR]

One of the crucial issues of legal problems that is still a pro and con in society is the extraordinary legal effort of judicial review by the public prosecutor. The research research is to analyze the implementation of the submission of extraordinary legal efforts of judicial review by the public prosecutor against criminal cases based on statutory regulations and to analyze and find the formulation of the ideal criminal case review system by the public prosecutor to realize justice and legal certainty in Indonesia. This research uses a type of normative juridical legal research. Research that uses a philosophical approach, a statutory approach, a case approach and a comparative approach. The sources of legal materials collected are analyzed descriptively to answer the research problems. The results of this study conclude that the Implementation of the submission of extraordinary legal efforts of judicial review by the Public Prosecutor against criminal cases based on statutory regulations has not achieved justice and legal certainty. In practice, the addition of the prosecutor's authority to file a judicial review as stipulated in Article 30C letter h and the Explanation of Article 30C letter h of Law Number 11 of 2021 concerning Amendments to Law Number 16 of 2004 concerning the Prosecutor's Office of the Republic of Indonesia cannot be implemented because it is considered contrary to the 1945 Constitution. [ABSTRACT FROM AUTHOR]

Copyright of Pravnik is the property of Czech Academy of Sciences, Institute of State & Law 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 Journal of Educational Science of Hunan Normal University is the property of Hunan Normal University 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 challenges the pervasive assumption that judicial review of administrative action is not concerned with rights. Making a break from this orthodoxy, it proposes a theory of judicial review that suggests that its purpose is to protect distinctive administrative law rights held by those subject to public administrative power. This rights‐based theory makes sense of the structure of applications for judicial review in which, paradigmatically, an individual subject to an administrative decision makes a claim against the state that the public official responsible for that decision failed to meet the relevant administrative law standards, and accordingly demands a remedy. The bulk of the article is dedicated to addressing the major objections to a rights‐based theory, including those arising from public interest standing and the nature of judicial review remedies. The analysis shows that each of these objections fails, clearing the ground for a fuller development of a rights‐based theory of judicial review in future work. [ABSTRACT FROM AUTHOR]

A judicial review (PK) is a legal mechanism given to parties who are dissatisfied with a de)cision that has permanent legal force, either in the District Court or the Supreme Court. In Indonesia, a PK application can only be submitted once, as regulated in Article 268 para)graph (3) of the Criminal Procedure Code, and often involves new evidence (novum) as a basis for requesting a judicial review. The objective to be achieved in this study is to analyze the differences related to the evidence in the District Court decision and the Supreme Court decision in the review process. The method used in this study is juridical normative where the legal material used covers the theory, concept, legal principles and some regulations in accordance with the discussion of research. The method of data collection used is literature study where secondary data are used such as books, laws and related journals. The results of this study indicate that the difference in evidence in conducting judicial review becomes one of the considerations for the acceptance or rejection of PK by the Supreme Court. How)ever, in fact, the specification of the quality of evidence is still not clearly explained where it will only create a blur of norms. Therefore, it is not surprising when the Supreme Court rejected many of the judicial review considering that there was no eligibility for the quality of the evidence received. [ABSTRACT FROM AUTHOR]

We identify and present Brazil's most common behavioral and heuristic biases in judicial decision-making. Through bibliographic and specific cases, we notice the occurrence of the representativeness heuristic, availability heuristic, anchoring heuristic (anchoring effect), confirmation bias, and affect heuristic bias in Brazilian judicial decisions. We also present the current state of Brazilian legislation and its amendments that aim at impartiality in the production, the assessment of evidence, and the judge's conviction. Finally, we present the suggestions and initiatives that aim to mitigate biases and heuristics in judicial decision-making in Brazil, especially with awareness techniques, the replacement of judges by algorithms, and the review of judicial decisions by collegiate bodies. [ABSTRACT FROM AUTHOR]

Working hand-in-hand with the private sector, largely in a regulatory vacuum, policing agencies at the federal, state, and local levels are acquiring and using vast reservoirs of personal data. They are doing so indiscriminately, which is to say without any reason to suspect the individuals whose data they are collecting are acting unlawfully. And they are doing it in bulk. People are unlikely to want this personal information shared with anyone, let alone law enforcement. And yet today, private companies are helping law enforcement gather it by the terabyte. On all of us. Our thesis is straightforward: the unregulated collection of this data must cease, at least until basic rule-of-law requisites are met. Any collection must be authorized by democratically accountable bodies. It must be transparent. It must be based on clear proof of efficacy (that a legitimate purpose actually is being served). There must be protections that minimize or avoid harms to individuals and society. And, of course, there must be judicial review of whether indiscriminate bulk data collection is constitutional, either at all or with regard to specific programs. The basis for this thesis is a first-of-its-kind review of instances, from the dawn of the Information Age, in which Congress acted on these very issues. Much of that history involves indiscriminate collection of data on Americans for reasons of national and domestic security, because national security represents the outer bounds of what law enforcement and intelligence agencies are permitted to do, and much of what is done in the name of national security is inappropriate for domestic policing. Yet, in incident after incident, Congress made clear that indiscriminate bulk collection of Americans' data is unacceptable, unlawful, and of dubious constitutionality. To the extent that such collection was permitted at all, Congress demanded the very requisites specified above. Today's indiscriminate bulk surveillance by federal, state, and local policing agencies violates virtually all of these congressionally established norms. It should cease, at least until the rule-of-law requisites are met. [ABSTRACT FROM AUTHOR]

Governments' compliance with high court decisions is a critical factor affecting judicial independence, power, and legitimacy. Under what conditions do citizens tolerate incumbent non-compliance with apex court decisions? Some theories yield predictions that government supporters will be more tolerant towards non-compliance, while others assert that citizens may value judicial review irrespective of their political preferences. Although the underlying logic of both arguments is plausible, the contexts that shape citizens' non-compliance preferences are not well identified. Focusing on the moderating effect of elite behavior and contextual factors, we demonstrate that supporters of incumbent governments are more tolerant of government non-compliance in the years following high-profile shows of interbranch attacks or government disregard of high court decisions, and in environments where the media is lacking independence. [ABSTRACT FROM AUTHOR]

This article challenges the idea that judicial review is purely judicial and adversarial in nature. Instead, I argue that recent doctrinal and remedial changes to judicial review suggest that courts hold a quasi-administrative jurisdiction. By a quasi-administrative jurisdiction, I mean one that prospectively, and retrospectively, aids and advises on the execution of public administration. For example, the Federal Court in Canada (Citizenship and Immigration) v Mason suggested that federal tribunals should start using the advisory reference procedure found in section 18.3(1) of the 1985 Federal Courts Act to resolve 'dueling administrative interpretations' of their home statutes. Canadian courts have also started to remit cases back to administrative decision makers with specific instructions explaining how they are to proceed upon redetermination, thereby structuring and advising on the proper exercise of discretion. The existence of these quasi-administrative remedies requires us to rethink Lon Fuller's contention that the form of adjudication is inherently bilateral, adversarial, and retrospective. Fuller's contention was based on the claim that arguments in court are ordinarily presented in the form of claims of right in the disputant's favour. However, I argue that, in public law adjudication, arguments are presented in the form of claims of legitimate authority in the public interest. This establishes judicial review on what I term a multilateral, collaborative, and prospective form of adjudication. This form suggests that the court is in fact suited to exercising quasi-administrative functions. [ABSTRACT FROM AUTHOR]

This article argues that courts in the United States are comparatively less likely to be captured than those of many other countries and more able to resist an authoritarian populist regime, but also somewhat more likely to facilitate democratic backsliding on their own account. In this way, they potentially could—and arguably already do—provide a relatively rare case of "abusive judicial review" by independent courts. The article also briefly considers whether the US experience provides any insights for the relationship of courts and democratic backsliding in other countries, and especially how the ability of courts to resist capture might be bolstered. [ABSTRACT FROM AUTHOR]

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.)

The purpose of this chapter is to present a brief overview about the measures adopted in Portugal in the context of the Coronavirus pandemic. This public health crisis gave room in two separate occasions for the declaration of a state of emergency. What is interesting, though, is that it can be argued that a real state of exception occurred not when the state of emergency was in force, but precisely when it was not. This has only been possible because the Government decided to adopt measures that would restrict fundamental rights, because the Parliament did not intervene in such a proceeding, and because the Administrative Supreme Court was arguably too lenient towards the Government. For a while at least, it seems to have occurred a 'provisional abolition of the distinction among legislative, executive and judicial powers' (Agamben, 2005). This has been confirmed by subsequent decisions from the Constitutional Court. [ABSTRACT FROM AUTHOR]

Copyright of FinanzRundschau is the property of De Gruyter 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.)

Criminal law enforcement against tax crimes in Indonesia has raised debates regarding applying the premium remedium or ultimum remedium principle. This study explores the legal issues arising from this change, including the submission of a judicial review of Article 39 paragraph (1) letters d and i by a taxpayer, which is considered to have a premium remedium nuance. This article examines the application of criminal law to tax crimes in Indonesia in the context of the self-assessment system and the amended regulations. With a normative approach, this study aims to assess whether criminal law in tax crimes tends to be more on the ultimum remedium or premium remedium principle, and to highlight the harmonization between the self-assessment system and criminal law enforcement. This study finds that the application of criminal law to tax crimes in Indonesia tends to follow the ultimum remedium principle, where criminal sanctions are used as a last resort after administrative measures are ineffective. Despite the elimination of Article 13A in the KUP Law which has raised debates regarding the application of premium remedium, law enforcement still emphasizes taxpayer compliance in the self-assessment system. In addition, the KUP Law also accommodates the termination of investigations in the interests of state revenue if taxpayers are willing to pay their tax obligations. [ABSTRACT FROM AUTHOR]

This article challenges the idea that judicial review is purely judicial and adversarial in nature. Instead, I argue that recent doctrinal and remedial changes to judicial review suggest that courts hold a quasi-administrative jurisdiction. By a quasi-administrative jurisdiction, I mean one that prospectively, and retrospectively, aids and advises on the execution of public administration. For example, the Federal Court in Canada (Citizenship and Immigration) v Mason suggested that federal tribunals should start using the advisory reference procedure found in section 18.3(1) of the 1985 Federal Courts Act to resolve 'dueling administrative interpretations' of their home statutes. Canadian courts have also started to remit cases back to administrative decision makers with specific instructions explaining how they are to proceed upon redetermination, thereby structuring and advising on the proper exercise of discretion. The existence of these quasi-administrative remedies requires us to rethink Lon Fuller's contention that the form of adjudication is inherently bilateral, adversarial, and retrospective. Fuller's contention was based on the claim that arguments in court are ordinarily presented in the form of claims of right in the disputant's favour. However, I argue that, in public law adjudication, arguments are presented in the form of claims of legitimate authority in the public interest. This establishes judicial review on what I term a multilateral, collaborative, and prospective form of adjudication. This form suggests that the court is in fact suited to exercising quasi-administrative functions. [ABSTRACT FROM AUTHOR]

This paper examines Pakistan's preventive detention policy, focusing on its conflict between national security and individual liberties. The policy, implemented after the 9/11 attacks, aims to hold individuals suspected of terrorism responsible for any crime but their suspecting terrorism status. However, critics argue it undermines constitutionalism, particularly the right to be presumed innocent until proven guilty and personal liberty. The study uses qualitative legal and case study research to analyze Pakistan's preventive detention laws and detainee experiences. Results show that while the policy has reduced terrorism incidences, it has also led to significant human rights violations. Critics blame the lack of judicial review and misuse by security teams. The paper recommends addressing the issue of preventive detentions in Pakistan and ensuring a balance between security and liberty. [ABSTRACT FROM AUTHOR]

Copyright of Türkiye Adalet Akademisi Dergisi is the property of Justice Academy of Turkey 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 explores the concept of 'essential security interests' (ESI) within the framework of international and regional law, specifically focusing on its historical evolution and current interpretations. The ESI exception, which allows states to prioritize their security concerns over international obligations, has gained increased relevance since the turn of the millennium. This study provides a detailed analysis of how the International Court of Justice (ICJ) and the European Court of Justice (ECJ) interpret ESI clauses, highlighting the convergence and divergence between international and regional jurisprudence. By examining both self-judging and non-self-judging ESI clauses, the article assesses their reviewability and the implications for legal consistency and state sovereignty. The analysis aims to clarify the practical application of ESI exceptions and offer insights into potential areas for improvement in their judicial review. [ABSTRACT FROM AUTHOR]

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron as inconsistent with the Administrative Procedure Act ("APA"), which requires courts to decide "all relevant questions of law" and therefore prohibits them from deferring to agency interpretations because the relevant statutory language is ambiguous. A different approach now governs judicial review of the countless routine, often specialized questions of statutory interpretation that agencies answer in the normal course of implementing their statutes--the "ordinary" questions. But Loper Bright did not provide direction on how courts should determine which of these questions are questions of law. This issue arises because many, if not most, ordinary questions involve questions of law that depend on questions of policy for resolution and can be characterized either way for purposes of judicial review. Under Chevron, courts did not need to decide how to characterize such mixed questions because the doctrine instructed them to treat statutory ambiguities as presenting questions of policy for the agency to decide. That directive eased the pressure of determining how to handle such questions for purposes of judicial review under the APA. Loper Bright has altered the doctrine but not the nature of ordinary questions. Even though courts may no longer treat these questions as ones of policy "simply because the statute is ambiguous," they do not need to characterize every question as one of law simply because a statutory term or phrase is involved. Many agency interpretations are no different in kind or degree from the agency policy decisions subject to the arbitrary and capricious standard of review in the APA. Courts determine which of the underlying questions are for them to decide independently and which are for the agency to decide, subject to the arbitrary and capricious test. This is a judicial policy choice, and we should be interested in how courts make it. Before Chevron, courts made the choice on an ad hoc basis. After Loper Bright, the temptation is for courts to ignore the problem and decide what they can. This Foreword contends that courts should make the choice mindful of established judicial norms for questions of policy. More specifically, a court should consider whether resolving a question itself would amount to judicial policymaking in the relatively concrete ways that the arbitrary and capricious test discourages. The claim is not that courts should apply the arbitrary and capricious test straight away to ordinary questions. Rather, the considerations for applying that test are useful in the first instance to discern whether a question is best regarded as one of law or policy, consistent with the APA and the normative values that undergird the allocation of authority between courts and agencies. [ABSTRACT FROM AUTHOR]

President Biden's Executive Order 14,094, Modernizing Regulatory Review, continues the line of presidential directives dating back to the Reagan Administration that centralize the President's control over administrative agencies' regulatory processes. Its express purpose is to ensure well-reasoned, high-quality regulations, but it affords no private right of action to enforce its terms. The Administrative Procedure Act ("APA") shares a similar goal of achieving reasoned agency decision-making, however, unlike the executive orders, the APA authorizes judicial review and expects courts to set aside agency regulations that are arbitrary and capricious. These two authorities make overlapping demands from agencies, but one eschews judicial review while the other requires it. This creates an issue for courts when plaintiffs bring challenges alleging that an agency's failure to comply with the executive order requires vacating its final rule. Does the court have jurisdiction to consider the compliance failure? Courts try to bifurcate the issues and dismiss arguments grounded in the executive order. The issues are so intertwined, however, that this approach fails to account for the reality that the President's views on what well-reasoned decision-making requires informs our conception of what good governance looks like and cannot be ignored, regardless of whether the executive order creates a private right of action. This Essay argues that Congress has given the courts an imperative under the APA to consider all the relevant facts when reviewing unelected experts' policy decisions. This obligation does not depend on whether the President has created a private right of action through executive order--the APA already does so. It is further argued that courts fail to fulfill Congress's expectations when they put on blinders to the executive orders' requirements; instead, courts should treat noncompliance with presidential directives as persuasive evidence of arbitrary and capricious agency action. [ABSTRACT FROM AUTHOR]

Do active judicial reviews bring about better administrative performance? Most scholars argue that active judicial review creates animosity between the judiciary and administration, leading to bad administrative performance. Others advocate that the relationship is not so much hostile as it is constructive. However, the actual impact of and mechanisms enabling such a constructive relationship remain unclear. Employing an analysis of Public Interest Litigation against the Administration (PILA) in environmental protection cases in China, we present a theory of "bargaining in the shadow of judicial review." The threat of imminent judicial review forces the administration to negotiate with the prosecutor and enhance its performance in exchange for dropping charges. Additionally, the effect of PILA is stronger in regions with more public environmental concern and weaker in regions where the higher-level public administration pays greater attention to environmental protection. Furthermore, we identify the impact of PILA on local governments' enforcement efforts and its legitimacy. The present study sheds new light on the long-standing debate on managerialism versus legalism. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(3), 846-850 | European Forum Highlight of 15 December 2024 | (Abstract) In its judgment of 29 July 2024, delivered in the Valančius case (Case C-119/23 Valančius ECLI:EU:C:2024:653), the Court of Justice ruled, for the first time, on the limits that EU law places on Member States in relation to the procedure for appointing judges and advocates general to the Court of Justice. The judgment provides an opportunity to reflect on the complex relationship between the different stages of the appointment procedure to rule out legitimate doubts as to its regularity and, consequently, as to the independence of the judges so appointed. Although not immediately obvious, the arguments and solutions adopted inappropriately entrust the “255 Committee” with a central role in ensuring the integrity and correctness of the overall procedure and its individual stages.

The concept of administrative discretion has become a significant topic in legal scholarship, focusing not on abstract legal terms and concepts, but on the fundamental possibility and extent (intensity, boundaries, limits) of judicial review of the legality of discretionary decisions, actions (or inaction) by public administration. In this context, the article examines the legal positions of the Plenum of the Supreme Court of the Russian Federation (hereinafter referred to as the Plenum) as reflected in its resolutions adopted after the enactment of the Russian Federation’s Law No. 4866-1, “On Appealing Actions and Decisions Violating Citizens' Rights and Freedoms in Court”, dated April 27, 1993. These resolutions concern the judicial review of the legality of discretionary decisions, actions (or inaction) of public administration contested by citizens and organizations through administrative and arbitration proceedings. The purpose of the study is to outline the development trends of these legal positions and assess their capacity to ensure substantive judicial review of the legality of discretionary decisions, actions (or inaction) by public administration. Employing dialectical, formal-logical, historical, formal-legal methods, and the method of legal interpretation, the Author concludes that the Plenum’s legal positions have evolved from an initial disregard of the issue to the establishment of concrete criteria for such a review. This progression, despite certain limitations noted in the article, significantly supports meaningful judicial review of the legality of discretionary decisions, actions (or inaction) by public administration, thereby enhancing the protection of citizens' rights, freedoms, and legitimate interests, as well as those of organizations. The Author suggests that a comprehensive solution would not involve the legislative proposal, made by some authors, to abandon the requirement for courts to determine the illegality of such decisions or actions as a prerequisite for satisfying an administrative claim. Instead, a more effective approach would be the enactment of a federal law on administrative procedures, which is currently absent. Such a law would comprehensively outline principles to serve as criteria for substantive judicial review of the legality of administrative discretion. Until the adoption of this federal law, the Author advocates for a new legal position by the Plenum to clarify how judicial practice interprets the legal requirement for satisfying an administrative claim challenging discretionary decisions or actions by public administration. Specifically, this would involve defining the requirement for courts to establish that the challenged decision, action (or inaction) violated the rights, freedoms, or legitimate interests of the administrative claimant. Adopting the proposed legal position, as outlined in this article, would remove the immunity of administrative discretion from judicial review.

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(2), 621-640 | Article | (Table of Contents) I. Introduction: the low-intensity constitutionalism of the EU and its meaning for agencies. – II. The rule of law and its implication in the EU legal order: effective judicial protection. – II.1. Rule of law and effective judicial protection. – II.2. The rule of law and its meaning for agencies. – III. The rule of law and democratic backsliding of illiberal Member States. – III.1. The rule of law crisis in the EU: overview and countermeasures. – III.2. Effective judicial protection at the intersection of the rule of law backsliding in Hungary: the case law on reception conditions and detention of protection-seekers. – IV. Two weights and two measures? The “fading legality” at the external borders of the EU and the role of the European Commission. – V. One, none, or a hundred thousand? Searching for a (coherent) approach in the case law of the Court of Justice. – V.1. The decisions on the EU – Turkey deal: denialism fed by realpolitik? – V.2. Exploring the limits of effective judicial protection within the EU: the litigation against Frontex. – VI. Conclusions: the difficult emergence of a rule of law for EU agencies, between self-restraint and fading European constitutionalism. | (Abstract) This Article expands the rule of law crisis narrative to the EU administrative layer. It starts by introducing the context where the agencies have developed; it continues with an operationalization of the rule of law for agencies; in the next section, it places the evolution of the agencies against the background of the low-intensity constitutionalism of the EU legal order and its meaning. It unpacks this concept into the right to effective judicial protection, which is assessed in its constitutional potential in the case law on the Hungarian rule of law; it further continues with an assessment of the case law concerning the instruments of the external dimension of migration and border management, focusing on the deference shown by the CJEU. The thesis argued in this Article disputes the idea of the consolidation of a coherent approach toward rule of law issues, especially when migration-related policies are concerned. The Article concludes with a claim that an effort of constitutional coherence is necessary to support the embedding of the agencies into a more robust rule of law framework.

The re-examination of the Job Creation Law in 2023 highlights a serious issue in the national legislative system, specifically the follow-up to the Constitutional Court’s (MK) decisions in judicial review cases (PUU) concerning the Omnibus Law. The urgency of this research stems from the high demand among lawmakers for drafting laws in the omnibus format and the potential for judicial review of such laws. This research contributes to addressing the follow-up to the Constitutional Court’s decisions by focusing on the choice of legislative forms as a response to these rulings. The research employs normative legal methods with conceptual, legislative, and case-based approaches. The findings emphasize the need to standardise the type of regulation to ensure the executability of the Constitutional Court’s decisions. The ideal regulatory form for implementing the Court’s rulings on the Omnibus Law is a law. Therefore, it is necessary to legitimise the use of laws as the standard form of follow-up to the Constitutional Court’s decisions on the Omnibus Law to maximise the executability of these rulings.

MK cenderung memilih untuk melakukan judicial activism sebagai respon terhadap ketidakmampuan hukum tersebut demi mewujudkan esensi keadilan substantif. Penelitian ini bertujuan untuk mengkaji judicial activism dalam kedudukan sebagai benteng untuk melindungi supremasi konstitusi atau justru sebagai tanda dimulainya transisi menuju rezim juristocracy. Metode penelitian menggunakan penelitan yuridis normatif. Hasil penelitian menunjukkan bahwa MK memiliki kewenangan untuk menguji bahkan menganulir suatu undang-undang yang dibentuk berdasarkan kehendak mayoritas yang dimaksudkan untuk menjamin agar hukum yang dibentuk berdasarkan kehendak mayoritas tidak mengabaikan maupun membatasi hak dasar individu dalam status sebagai individu maupun dalam statusnya sebagai warga negara. Judicial activism akan memberikan perlindungan terhadap supremasi konstitusi apabila dilakukan untuk memperluas perlindungan hak dasar kelompok rentan dari tindakan atau kebijakan yang dibentuk oleh kehendak mayoritas. Tetapi di sisi yang lain judicial activism bersinggungan dengan rentannya transisi menuju juristocracy yang ditandai dengan meningkatnya intervensi pengadilan untuk memutuskan persoalan-persoalan yang merupakan domain kewenangan cabang kekuasaan negara lainnya.

Michelman's Constitutional Essentials raises important questions about the idea of political liberalism and related idea of public reason. This essay offers a sympathetic commentary while also exploring the importance of the idea of reciprocity for both Rawls and Michelman. [ABSTRACT FROM AUTHOR]

Can a constitution be treated as a recommendation rather than as binding and entrenched law? I argue that the answer to that question is Yes. With respect to the constitution in gross, that is, the total set of general provisions setting out both the structures of governance and the basic rights the constitution protects, the constitution as recommendation can serve as a focal point for ordinary political contestation which, because it unfolds in real time and is conducted by actors with limited time and energy for such contestation, occurs within (largely) settled institutional forms. With respect to the constitution in detail, that is, brought to ground in judicial judgments in contested cases, the answer is more complicated. Ordinarily treating judicial judgments as recommendations is a prescription for instability (and for that reason inconsistent with the idea of institutional settlement). If the target of such a judgment makes a considered judgment that instability is worth it, the target is raising questions about the continuing value of remaining in the particular polity within which the principle of institutional settlement holds sway. [ABSTRACT FROM AUTHOR]

Constitutions serve to legitimate the exercise of public power. Yet their scope is often subject to reasonable disagreement among citizens in a democracy. As Frank Michelman notes, this points to an understanding of democratic constitutions as a framework for contestation, rather than entrenched set of binding legal constraints. This understanding, however, arguably overlooks the difference between ordinary constitutional norms and those that protect the 'democratic minimum core'. For the latter, there is far less scope for reasonable disagreement, and greater prudential importance to conceptualizing constitutions as entrenched norms authorized strong-form judicial review. The essay thus explores the idea of a 'tiered' approach to constitutional design, which combines elements of strong and weak constitutional entrenchment, and judicial review. In doing so, it further considers the role that transnational norms or practices could play in helping delineate these different constitutional tiers. [ABSTRACT FROM AUTHOR]

The claim of liberal constitutionalism is that a text-like object or a 'diplomatically abstract' set of principles can work a deflection of disagreements within a pluralist polity. But this project assumes both that pluralism remains amenable to reason and that reason is a capacity independent of the profound differences of meaning, value, and forms of life that shape those disagreements. Neither assumption is correct. Differences in norms, values, and forms of life inevitably undergird and structure differences in meaning, perception, and interpretation. Consequently, a constitution (even when written and accompanied by judicial review) will necessarily unfold in an ongoing process of political cooperation and contestation. Legitimacy can arise only from the practice of democracy itself – that is, self-governance under conditions that realistically accord equal recognition and respect to all participants. Law is not some abstract entity or prior fixation, special and above. It is not, as Michelman once said, 'an autonomous force' that provides 'an external untouchable rule of the game'. It is just another social institution or performative practice that does (or does not) reflect our democratic nomos. To be committed, as a strong democrat, to the rule of law is to be committed to the idea that we make the rules by which we govern ourselves. Equal voice, equal power, and equal law are just self-government. They are internal to – that is, constitutive of – the game. They are not untouchable; indeed, they are being manhandled every day. But they nevertheless describe a democratic constitution that fully legitimates itself in its performance. [ABSTRACT FROM AUTHOR]