Judicial Review

2019 ◽  
pp. 268-282
Author(s):  
James Lindley Wilson
Keyword(s):  
United States ◽  
Judicial Review ◽  
The United States ◽  
Legislative Process ◽  
Individual Rights ◽  
Political Equality ◽  
The Right ◽  
Ordinary Citizens

This chapter assesses whether judicial review of legislation is compatible with political equality. Judicial review typically involves the right of some group of judges—often with very distant, if any, electoral authorization—to overturn acts of elected legislative authorities. In empowering the unelected over the elected, many lawyers, philosophers, and ordinary citizens believe that such review is undemocratic. The chapter argues that a well-designed system of judicial review could be compatible with political equality, despite the institutional inequalities it involves, if such review reliably promotes the consideration of citizens' judgments that would otherwise be neglected by the legislative process. Notably, this is not an argument that judicial review is justified because it protects individual rights from democratic abuse. It is an argument that judicial review is justified because it contributes to a regime that as a whole better instantiates political equality than would a regime without such review. However, the systems of judicial review in place in the United States and elsewhere likely require reform if they are to meet this standard.

scholarly journals GEOPOLÍTICA E CONSTITUIÇÃO À LUZ DO ESTADO DEMOCRÁTICO DE DIREITO

2021 ◽  
Vol 9 (18) ◽  
Author(s):  
Guilherme Sandoval Góes
Keyword(s):  
United States ◽  
The United States ◽  
Global South ◽  
Fundamental Rights ◽  
Legislative Process ◽  
Neoliberal Globalization ◽  
Late Modernity ◽  
World Power ◽  
The University ◽  
Ordinary Citizens

This article is the result of research carried out in the postdoctoral stage of the Postgraduate Program in Aeronautical Sciences at the University of Aeronautics (PPGCA), whose theme was “Geopolitics, Culture and Law: Epistemological dialogues needed in times of postmodernity” Thus, it collimates to examine the scientific connections that unite geopolitics and law, disciplines that overlap in such a way that they end up guaranteeing fundamental rights for ordinary citizens, aiming to analyze the geopolitical control of law from the influence of neoliberal geopolitics on constitutionalism. of the countries of late modernity, as is the case of Brazil, thus it was possible to demonstrate the influence of real factors of world power in the legislative process of the countries of the Global South of neoliberal globalization, whose leadership is being disputed by the United States and China.

Two Hundred Years of Marbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United States and Europe

2004 ◽  
Vol 5 (6) ◽  
pp. 685-701 ◽  
Author(s):  
Wolfgang Hoffmann-Riem
Keyword(s):  
United States ◽  
Judicial Review ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Thomas Jefferson ◽  
Court Decision ◽  
United States Supreme ◽  
The Right ◽  
Justice Of The Peace

This year we celebrate a United States Supreme Court decision that marks the beginning of modern jurisdiction over constitutional questions: Marbury v. Madison. This is all the more remarkable since, when it was decided two hundred years ago in 1803, it was controversial and many still maintain it was wrongly decided. Chief Justice Marshall ruled on a dispute which he had earlier had a hand in causing, since the alleged legal error – the untimely delivery of a commission to Justice of the Peace Marbury – fell within his area of responsibility as Secretary of State. He dismissed the petition because the incorrect legal procedure had been chosen. However, he did not examine this question at the outset but – contrary to the accepted procedural rules of his time – at the end. This left room for a wide-ranging discussion of the right of judicial review, which was not required by law, and was, therefore, obiter dicta. Thomas Jefferson later referred to this discussion as the Chief Justice's “obiter dissertation.” Of course, Adams himself contended that the case turned on the judicial right of review, since this was a component of his argument that the petition should be dismissed.

Judicial Review and the Military Commissions Act: On Striking the Right Balance

2007 ◽  
Vol 101 (2) ◽  
pp. 344-362 ◽  
Author(s):  
David A. Martin
Keyword(s):  
United States ◽  
Human Rights ◽  
Judicial Review ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Geneva Conventions ◽  
Military Commissions ◽  
The Right ◽  
The Military

Hamdan v. Rumsfeld seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the United States Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy—President George W. Bush’s unilateral establishment of military commissions to try terrorist suspects by means of reduced procedures—and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA), came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantánamo and other U.S. detention sites overseas; it limits certain key protections available to the accused in a military commission proceeding, as compared to courts-martial; and it takes a crabbed view of the requirements of common Article 3 of the Geneva Conventions—at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible—and highly desirable.

“I’m Schizophrenic!”

2016 ◽  
Author(s):  
T. M. Luhrmann
Keyword(s):  
United States ◽  
The United States ◽  
Social World ◽  
Individual Rights ◽  
Right To Know ◽  
Erving Goffman ◽  
The Right To Know ◽  
Diagnostic Label ◽  
The Right

One of the challenges of living with schizophrenia in the United States is the clear identity conferred by the diagnostic label itself. In a society so acutely aware of individual rights, care involves explicit diagnosis. After all, a patient has the right to know. But the label “schizophrenia” is often toxic for those who acquire it. It creates not only what Erving Goffman called a “spoiled identity” but also an identity framed in opposition to the broader social world. This chapter illustrates this challenge through the life of a man who struggles with this illness.

Predicting Supreme Court Decisions Mathematically: A Quantitative Analysis of the “Right to Counsel” Cases

1957 ◽  
Vol 51 (1) ◽  
pp. 1-12 ◽  
Author(s):  
Fred Kort
Keyword(s):  
United States ◽  
Supreme Court ◽  
Judicial Review ◽  
Quantitative Methods ◽  
The United States ◽  
Court Decisions ◽  
Quarter Century ◽  
The Past ◽  
The Supreme Court ◽  
The Right

This study represents an attempt to apply quantitative methods to the prediction of human events that generally have been regarded as highly uncertain, namely, decisions by the Supreme Court of the United States. The study is designed to demonstrate that, in at least one area of judicial review, it is possible to take some decided cases, to identify factual elements that influenced the decisions, to derive numerical values for these elements by using a formula, and then to predict correctly the decisions of the remaining cases in the area specified. The analysis will be made independently of what the Court said by way of reasoning in these cases; it will rely only on the factual elements which have been emphasized by the justices in their opinions and on their votes to affirm or set aside convictions. Changes in Court personnel made no decisive difference in the pattern of judicial action in this area; so the analysis will not need to take into account the fact that twenty-five different justices have occupied the nine seats on the Court during the period covered, i.e., the past quarter century.

Lending to the Borrower from Hell

2017 ◽  
Author(s):  
Mauricio Drelichman ◽  
Hans-Joachim Voth
Keyword(s):  
United States ◽  
Sixteenth Century ◽  
Sovereign Debt ◽  
Risk Sharing ◽  
The United States ◽  
Philip Ii ◽  
Loan Contracts ◽  
The Right ◽  
Intelligent Model ◽  
New Evidence

Why do lenders time and again loan money to sovereign borrowers who promptly go bankrupt? When can this type of lending work? As the United States and many European nations struggle with mountains of debt, historical precedents can offer valuable insights. This book looks at one famous case—the debts and defaults of Philip II of Spain. Ruling over one of the largest and most powerful empires in history, King Philip defaulted four times. Yet he never lost access to capital markets and could borrow again within a year or two of each default. Exploring the shrewd reasoning of the lenders who continued to offer money, the book analyzes the lessons from this historical example. Using detailed new evidence collected from sixteenth-century archives, the book examines the incentives and returns of lenders. It provides powerful evidence that in the right situations, lenders not only survive despite defaults—they thrive. It also demonstrates that debt markets cope well, despite massive fluctuations in expenditure and revenue, when lending functions like insurance. The book unearths unique sixteenth-century loan contracts that offered highly effective risk sharing between the king and his lenders, with payment obligations reduced in bad times. A fascinating story of finance and empire, this book offers an intelligent model for keeping economies safe in times of sovereign debt crises and defaults.

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.

Law Struggles, Lawmaking, and the Politics of Hegemony in Neoliberal India

2017 ◽  
Author(s):  
Kenneth Bo Nielsen ◽  
Alf Gunvald Nilsen
Keyword(s):  
United States ◽  
The United States ◽  
Land Acquisition ◽  
Ethical Perspective ◽  
Judicial Decisions ◽  
Fair Compensation ◽  
The Right ◽  
Neoliberal India ◽  
Land Question

The chapter examines the fairness claim of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (LARR), 2013. The author uses the utilitarian fairness standard proposed by one of the most influential American constitutional scholars of the twentieth and twenty-first centuries, Frank Michelman, whose study of judicial decisions from an ethical perspective by introducing the concept of “demoralization costs” has shaped the interpretational debate on takings law in the United States. Michelman’s analysis is particularly relevant for the land question in India today since there is a widespread feeling that millions of people have been unfairly deprived of their land and livelihoods. The chapter looks at the role of the Indian judiciary in interpreting the land acquisition legislation since landmark judgments affect the morale of society. It concludes that using Michelman’s standard would help in bringing about greater “fairness” than what the new legislation has achieved.

The Power to be Ethical: Controlling Moral Assemblages in Border Militias

2021 ◽  
pp. 089124162110218
Author(s):  
John R. Parsons
Keyword(s):  
United States ◽  
The United States ◽  
Recent Interest ◽  
Ethical Conflicts ◽  
Moral Landscape ◽  
The Government ◽  
Moral Certainty ◽  
The Right ◽  
Ethical Response

Every year, hundreds of U.S. citizens patrol the Mexican border dressed in camouflage and armed with pistols and assault rifles. Unsanctioned by the government, these militias aim to stop the movement of narcotics into the United States. Recent interest in the anthropology of ethics has focused on how individuals cultivate themselves toward a notion of the ethical. In contrast, within the militias, ethical self-cultivation was absent. I argue the volunteers derived the power to be ethical from the control of the dominant moral assemblage and the construction of an immoral “Other” which provided them the power to define a moral landscape that limited the potential for ethical conflicts. In the article, I discuss two instances Border Watch and its volunteers dismissed disruptions to their moral certainty and confirmed to themselves that their actions were not only the “right” thing to do, but the only ethical response available.

The Three Rs in Research and Education: A Long Road Ahead in the United States

1996 ◽  
Vol 24 (2) ◽  
pp. 151-158 ◽  
Author(s):  
F. Barbara Orlans
Keyword(s):  
United States ◽  
Animal Experiments ◽  
The United States ◽  
Education Student ◽  
Funding Sources ◽  
Research And Education ◽  
The Right ◽  
Student Projects ◽  
Institutional Oversight ◽  
The Three Rs

Attitudes toward the Three Rs concept of refinement, reduction and replacement in the United States in research and education are widely divergent. Positive responses have come from several sources, notably from four centres established to disseminate information about alternatives. Funding sources to support work in the Three Rs have proliferated. The activities of institutional oversight committees have resulted in the nationwide implementation of important refinements. In the field of education, student projects involving pain or death for sentient animals have declined, and the right of students to object to participation in animal experiments on ethical grounds has been widely established. However, there is still a long way to go. Resistance to alternatives is deep-seated within several of the scientific disciplines most closely associated with animal research. The response of the National Institutes of Health to potentially important Congressional directives on the Three Rs has been unsatisfactory. The prestigious National Association of Biology Teachers, which at first endorsed the use of alternatives in education, later rescinded this policy, because of opposition to it. An impediment to progress is the extreme polarisation of viewpoints between the biomedical community and the animal protectionists.

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