scholarly journals Alternative forms of judicial review

2021 ◽  
Vol 280 (3) ◽  
pp. 15-40
Author(s):  
Mark Tushnet
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Weak Form ◽  
The United States ◽  
Strong Form ◽  
Constitutional Design ◽  
Late Twentieth ◽  
Conceptual Problems ◽  
Late Twentieth Century ◽  
Allocation Strategies

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations — of the courts’ own decisions — to Strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weakform systems the issues that arise on the level of constitutional design. Weak-form systems and allocation may seem to alleviate some difficultiesassociated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.

scholarly journals Mandatory pre-enactment review of legislation; or should only one government branch be responsible for the protection of rights in the United States?

2021 ◽  
Author(s):  
◽  
Ayla Saroz
Keyword(s):  
United States ◽  
New Zealand ◽  
Judicial Review ◽  
Weak Form ◽  
The United States ◽  
Comparative Assessment ◽  
Strong Form ◽  
Made In

<p>This paper focuses on pre-enactment review of legislation as a constitutional tool for the protection of recognised rights. The paper first makes the distinction between strong- and weak-form judicial review, in order to analyse how pre-enactment review can be practiced within each constitutional model. Two countries are first looked at to illustrate the two models: the United States for strong-form review, and New Zealand for weak-form review. The absence of any formal pre-enactment review in the United States is noted, and evaluated through a more in-depth assessment of congressional practice. This observation leads to the main proposal of the paper: that pre-enactment review should be made mandatory in the United States. A comparative assessment is then made in order to discuss the proposal. The relevant constitutional practices in Australia, Canada and Japan are outlined. These comparative assessments are used to further delineate the appropriate form that mandatory pre-enactment review of legislation could take in the United States.</p>

scholarly journals Mandatory pre-enactment review of legislation; or should only one government branch be responsible for the protection of rights in the United States?

2021 ◽  
Author(s):  
◽  
Ayla Saroz
Keyword(s):  
United States ◽  
New Zealand ◽  
Judicial Review ◽  
Weak Form ◽  
The United States ◽  
Comparative Assessment ◽  
Strong Form ◽  
Made In

<p>This paper focuses on pre-enactment review of legislation as a constitutional tool for the protection of recognised rights. The paper first makes the distinction between strong- and weak-form judicial review, in order to analyse how pre-enactment review can be practiced within each constitutional model. Two countries are first looked at to illustrate the two models: the United States for strong-form review, and New Zealand for weak-form review. The absence of any formal pre-enactment review in the United States is noted, and evaluated through a more in-depth assessment of congressional practice. This observation leads to the main proposal of the paper: that pre-enactment review should be made mandatory in the United States. A comparative assessment is then made in order to discuss the proposal. The relevant constitutional practices in Australia, Canada and Japan are outlined. These comparative assessments are used to further delineate the appropriate form that mandatory pre-enactment review of legislation could take in the United States.</p>

James Bryce and the Australian Constitution

2015 ◽  
Vol 43 (2) ◽  
pp. 177-200
Author(s):  
Stephen Gageler
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Development ◽  
Practical Operation ◽  
Responsible Government ◽  
Shed Light

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

Japanese Multinationals in the United States: Continuity and Change, 1879–1990

1990 ◽  
Vol 64 (4) ◽  
pp. 585-629 ◽  
Author(s):  
Mira Wilkins
Keyword(s):  
United States ◽  
Direct Investment ◽  
The United States ◽  
Business Leaders ◽  
Late Nineteenth Century ◽  
Historical Survey ◽  
Continuity And Change ◽  
Late Twentieth ◽  
Late Nineteenth ◽  
Late Twentieth Century

A great deal of attention has recently been focused on the extent of Japanese direct investment in the United States. In the following historical survey, Professor Wilkins details the size and scope of these investments from the late nineteenth century, showing that Japanese involvements in America have deep historical roots. At the same time, she analyzes the ways in which late twentieth century Japanese direct investment differs from the earlier phenomenon and attempts to explain why it has aroused such concern among both business leaders and the general public.

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

scholarly journals Corporate Defaults, Workouts, and the Rise of the Distressed Asset Investment Industry

2015 ◽  
Vol 89 (2) ◽  
pp. 305-330 ◽  
Author(s):  
Douglas Cumming ◽  
Grant Fleming
Keyword(s):  
United States ◽  
Twentieth Century ◽  
Private Sector ◽  
Scale Effects ◽  
The United States ◽  
Corporate Restructuring ◽  
Specific Focus ◽  
Late Twentieth ◽  
Late Twentieth Century

We examine the formation and growth of the distressed asset investment industry during the late twentieth century, with specific focus on the strategies of the leading firms. The distressed asset investment industry is dominated by firms based in the United States and is relatively concentrated, due in large part to early movers developing distinctive investment capabilities through participation in landmark transactions, relationship-specific resources, and exploitation of scale effects. We argue that the participation of these firms in the bankruptcy and corporate restructuring markets has resulted in private-sector workouts becoming more competitive and more efficient over the last thirty years, especially in the United States.

Introduction

Mahjong ◽  
2021 ◽  
pp. 1-13
Author(s):  
Annelise Heinz
Keyword(s):  
Twentieth Century ◽  
World War Ii ◽  
The United States ◽  
Ethnic Communities ◽  
World War ◽  
The Social ◽  
Changing Roles ◽  
History Of ◽  
Late Twentieth ◽  
Late Twentieth Century

The Introduction provides an orientation to the book and its key questions: What did it mean to become “modern” in the early twentieth century? How did American ethnicities take shape in the years leading up to and after World War II? How did middle-class women experience and shape their changing roles in society, before the social revolutions of the late twentieth century? How are these things related? The Introduction also covers an overview of mahjong’s trajectory in the United States. It examines background related to the history of leisure, gender, and consumerism in addition to introducing key sources and methodologies. The introduction sets up the book to tell the story of mahjong’s role in the creation of identifiably ethnic communities, women’s access to respectable leisure, and how Americans used ideas of China to understand themselves.

The Rise of Supermax Imprisonment in the United States

2019 ◽  
pp. 77-88
Author(s):  
Keramet Reiter
Keyword(s):  
United States ◽  
The United States ◽  
Human Contact ◽  
Seriously Mentally Ill ◽  
Supermax Prisons ◽  
History Of ◽  
Late Twentieth ◽  
Fluorescent Lighting ◽  
Late Twentieth Century ◽  
Harsh Conditions

This chapter provides an overview of the history of supermax prisons: facilities built across the United States in the 1980s and 1990s in order to hold “problem” prisoners, like gang members, the seriously mentally ill, the extremely violent, and those sentenced to death, in solitary confinement for months and years at a time. Since nearly every state opened one of these facilities in the late twentieth century, prisoners have litigated the constitutionality of the harsh conditions: no human contact, 24-hour fluorescent lighting, limited time outdoors. In spite of these conditions, supermaxes were not just another popular tough-on-crime innovation; state (not federal) prison administrators designed the first supermaxes with little public knowledge or oversight, in response to organized protests in prisons in the 1970s and 1980s. Although prisoners have sought to challenge these facilities, litigation has, in many cases, played a legitimizing in the history of supermaxes.

The World of the Immigrant Worker

2013 ◽  
Author(s):  
James Barrett
Keyword(s):  
Twentieth Century ◽  
Ethnic Differences ◽  
The United States ◽  
Service Industries ◽  
Immigrant Workers ◽  
Immigrant Worker ◽  
Late Twentieth ◽  
Service Jobs ◽  
Radical Organizations ◽  
Late Twentieth Century

Working-class formation in the United States was considerably complicated by waves of immigration from the mid nineteenth century down to the present. In some cases, the ethnic differences lead to conflict, in others to “ethnically hybrid” cultures based on class. Labor and radical organizations often played an important role in acculturating late nineteenth- and early twentieth-century immigrant workers. The kind of ethic “niches” in earlier industrial occupational structures can also be found in the employment available to immigrants today. By the late twentieth century, union organization was also complicated by shifts in the occupational structure from manufacturing to service jobs, yet much of the meager growth in union organization in recent decades has come in service industries with heavy concentrations of immigrant workers.

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