scholarly journals Welfare state and judicial review. Aproximación a una teoría «posible» del estado social en el federalismo = Welfare State and Judicial Review

2014 ◽  
pp. 505
Author(s):  
Víctor J. Vázquez Alonso
Keyword(s):  
Welfare State ◽  
Supreme Court ◽  
New Deal ◽  
Judicial Review ◽  
American Exceptionalism ◽  
The United States ◽  
Fourteenth Amendment ◽  
Social Rights ◽  
The Supreme Court ◽  
The Welfare State

En este trabajo se lleva a cabo una aproximación a la evolución del Estado Social en el Federalismo americano, destacando el papel que ha tenido en la misma el Judicial Review. Para ello, primeramente, se estudiarán las causas del denominado excepcionalismo americano, en lo referido a la falta de consagración constitucional de los derechos sociales. Se estudiarán aquí los frustrados intentos de la Corte Suprema de dotar de eficacia a ciertos derechos sociales a partir de la Enmienda Catorce. Una vez señalada esta excepción americana, se analizará cómo la construcción de un estado del bienestar en los Estados Unidos, desde el New Deal hasta nuestros días, ha ido de la mano de una interpretación de las categorías del federalismo favorable a los poderes del Congreso. Del mismo modo, se llamará la atención sobre las limitación que tienen los jueces estatales para dar eficacia a los derechos sociales de sus constituciones y de cómo a nivel estatal, se abre paso la idea de reformular la función judicial cuando se trata de aplicar disposiciones de carácter social que exigen políticas públicas. Finalmente, y a la luz de la última jurisprudencia de la Corte Suprema, se insistirá en la necesaria deferencia judicial que reclaman las leyes estatales que sobre una interpretación concreta del federalismo implementan nuevas facetas del bienestar social.This paper addresses the evolution of the Welfare State in American Federalism, highlighting the role played by Judicial Review. With such an aim, we first study the causes of the so-called «American Exceptionalism», in reference to the lack of constitutional enforcement of social rights. Concretely, we will focus on the frustrated attempts of the Supreme Court to give efficacy to certain social rights through the Fourteenth Amendment of the Federal Constitution. Once this exception and its reasons are fully acknowledged, we are able to discuss how the construction of the welfare state in the United States, since the New Deal to the present day, has been accompanied by an interpretation of Federal categories very favourable to the powers of the National Congress. Similarly, we will analyse the limitations that state judges have when enforcing social rights protected in state constitutions as well as the current debate taking place at the state level regarding possible reformulations of the judicial function when it comes to implement provisions of social nature that require public policies. Finally, and in light of the recent case law of the Supreme Court, we will insist on the necessary judicial deference in cases in which Federal categories are used to implement new welfare goals.

How Trains Became People: Southern Pacific Railroad Co.’s Networked Rhetorical Culture and the Dawn of Corporate Personhood

2018 ◽  
Vol 43 (2) ◽  
pp. 194-213
Author(s):  
Nicholas S. Paliewicz
Keyword(s):  
United States ◽  
Supreme Court ◽  
Human Subject ◽  
The United States ◽  
Fourteenth Amendment ◽  
Corporate Personhood ◽  
Legal Discourses ◽  
The Supreme Court ◽  
Pacific Railroad ◽  
Southern Pacific Railroad

This essay analyzes how a rhetorical culture emerged in which the Supreme Court of the United States assumed corporations were constitutional persons under the Fourteenth Amendment. Approaching rhetorical culture from a networked standpoint, I argue that corporate personhood emerged from Southern Pacific Railroad Co.’s networks and alliances with environmental preservationists, politicians, publics, lawyers, judges, and immigrants in the late 19th century. Contributing to literatures on rhetorical culture and agency, this study shows how Southern Pacific Railroad Co., through networks of influence and force, was a rhetorical subject that shaped a networked rhetorical culture that expanded the boundaries of the Fourteenth Amendment even though the Supreme Court of the United States had not worked out the philosophical underpinnings of corporate personhood. Corporate personhood remains theoretically restrained by legal discourses that reduce subjectivity to a singular, speaking, human subject.

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

BG Group Plc v. Republic of Argentina (Sup. Ct. U.S.)

2015 ◽  
Vol 54 (1) ◽  
pp. 130-151
Author(s):  
Christina Trahanas
Keyword(s):  
United States ◽  
Supreme Court ◽  
Judicial Review ◽  
The United States ◽  
Commercial Arbitration ◽  
Court Of Appeals ◽  
Investment Treaty ◽  
The Supreme Court ◽  
First Time ◽  
Investment Treaty Arbitration

On March 5, 2014, the Supreme Court of the United States (the Court or Supreme Court) rendered its decision in BG Group PLC v. Republic of Argentina (BG Group). Applying principles from judicial review of commercial arbitration awards to the investment treaty context, the Court overturned a decision of the United States Court of Appeals that vacated an investment treaty arbitral award. BG Group is significant because it is the first time that the Supreme Court has reviewed an investment treaty arbitration.

Constitutional Law in 1936–37: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1936

1938 ◽  
Vol 32 (2) ◽  
pp. 278-310 ◽  
Author(s):  
Robert E. Cushman
Keyword(s):  
United States ◽  
Supreme Court ◽  
Minimum Wage ◽  
New Deal ◽  
Constitutional Law ◽  
Political History ◽  
The United States ◽  
The Supreme Court ◽  
Constitutional Decisions

The 1936 term of the Supreme Court will probably be rated a notable one. This is due both to the Court's own work, and to certain extraneous occurrences which could hardly fail to have some impact upon it. In any attempt to evaluate the work of this term, one should bear in mind the following facts: First, a month after the Court convened President Roosevelt was reëlected by one of the most impressive popular and electoral majorities in our political history. Second, in February the President submitted to Congress his proposal for the reorganization of the Supreme Court, including the enlargement of its membership by the addition, up to fifteen, of a new justice for every one remaining on the Court beyond the age of seventy. This proposal aroused violent opposition, the debates on it continued for many months, and ultimately the plan was defeated largely through the efforts of the President's own party. The discussions on this proposal were going on during much of the time in which the Court was sitting. Third, in every case in which New Deal laws were attacked, they were held valid. These results were accomplished in many instances by five-to-four margins, and in the Minimum Wage Case by a five-to-four reversal of a previous five-to-three decision.

The Supreme Court and National Policy Making

1976 ◽  
Vol 70 (1) ◽  
pp. 50-63 ◽  
Author(s):  
Jonathan D. Casper
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Political Institutions ◽  
Policy Making ◽  
National Policy ◽  
The United States ◽  
Relevant Evidence ◽  
The Supreme Court ◽  
American Legal System

The role of the Supreme Court of the United States in national policy making has long been a subject of debate among students of the American legal system and of democratic theory. Both the relative influence of the Court vis-à-vis other political institutions and the implications of judicial review for principles of majority rule and democracy have been central to this discussion. Perhaps the most influential account of the role of the Court offered in recent years is Robert A. Dahl's 1957 article, “Decision-Making in a Democracy: The Role of the Supreme Court in National Policy-Making.” Dahl argues that the Court, like other political institutions, is a member of the stable ruling coalitions that dominate American politics, and that its decisions are generally supportive of the policies emerging from other political institutions.Consideration of the way Dahl interprets his own evidence, of Court decisions since 1957, and of other relevant evidence that is excluded from his analysis (particularly the activities of the Court in statutory construction and in cases arising out of states and localities) suggests that the Court participates more significantly in national policy making than Dahl's argument admits.

The Supreme Court and Political Eras: A Perspective on Judicial Power in a Democratic Polity

1992 ◽  
Vol 54 (3) ◽  
pp. 345-368
Author(s):  
John B. Taylor
Keyword(s):  
Supreme Court ◽  
New Deal ◽  
Judicial Review ◽  
Political Party ◽  
Current Trend ◽  
Dominant Party ◽  
Democratic Polity ◽  
The Supreme Court ◽  
The New Deal ◽  
The Normative Question

American political history is often conceived as a series of stable eras, controlled by dominant party coalitions and demarcated by realigning elections, most often identified as those of 1828, 1860, 1896, and 1932. Since there is a lag in the corresponding reconstitution of the Supreme Court, it is often deemed a countermajoritarian drag on the workings of electoral democracy. An examination of judicial review in relation to political eras shows that view to be correct only in the New Deal era. Judicial review most commonly occurs within eras rather than across them, with a Court reconstituted by the prevailing coalition negating legislation passed by that coalition. This reality significantly alters the normative question of the Court's role in a democracy, and it raises questions about the concept of stable eras. The current trend of political party dealignment calls into question the continuing validity of the critical-elections approach.

The Mythical Man

2008 ◽  
Vol 74 (1) ◽  
pp. 56-62 ◽  
Author(s):  
David Montgomery
Keyword(s):  
United States ◽  
Welfare State ◽  
Political Culture ◽  
New Deal ◽  
The United States ◽  
The Other ◽  
Political Life ◽  
The Political ◽  
The New Deal ◽  
The Welfare State

Jefferson Cowie and Nick Salvatore have offered us two distinct arguments, one persuasive, the other anything but. There is much to be said for their proposition that the political coalitions that instituted New Deal reforms, far from being the historic culmination of an inexorable march from laissez-faire to the welfare state, were fragile and limited from the start and crumbled beyond the possibility of retrieval after 1970. Much more dubious is their contention that the basic explanation of both the limits and the defeat of the New Deal is to be found in a political culture of individualism, which they claim has circumscribed the political life of the United States from the nation's founding to the present.

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