Law, Politics and the Judicial Process in Canada
In: Canadian public policy: Analyse de politiques, Band 12, Heft 1, S. 265
ISSN: 1911-9917
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In: Canadian public policy: Analyse de politiques, Band 12, Heft 1, S. 265
ISSN: 1911-9917
In: Oxford Research Encyclopedia of Politics
"The American Judicial Process and Why It Matters" published on by Oxford University Press.
In: Yale law & [and] policy review, Band 18, Heft 1, S. 53-110
ISSN: 0740-8048
In: Signs: journal of women in culture and society, Band 2, Heft 4, S. 877-887
ISSN: 1545-6943
In: Vienna online journal on international constitutional law: ICL-Journal, Band 18, Heft 1, S. 59-76
ISSN: 1995-5855, 2306-3734
Abstract
This paper proposes a synthesis that renders democratic principles compatible with the preservation of judicial control of constitutionality. This has been mediated by what I have called 'weak procedural constitutionalism', a methodology through which constitutional conflicts are debated in the legislature and among the citizenry as the real holders of the final say in society, with judicial activity focused on an intermediate say and the promotion of subsequent social deliberation. The judicial process thus becomes a public dialogical procedure susceptible to intervention by citizens and capable of generating public information processes facilitating accountability. The constant quest for instrumentalities that increase the democratic legitimacy of constitutional courts is an existential necessity. Only through real opportunities for dialogue and citizen participation in the decision-making process can judicial review be made democratically palatable. This requires that both judges and legislators play an intermediate rather than primary role, one in which democratically elected legislatures enjoy a high degree of legitimacy in adopting decisions, in juxtaposition with the derivative legitimacy appurtenant to constitutional courts. The premise for the exercise of what I denominate as weak constitutionality control, or the hypothesis for a weak procedural constitutionalism, is a possible synthesis of the tension between constitutionalism and democracy, with emphasis on the Colombian case.
SSRN
Working paper
In: The Antitrust bulletin: the journal of American and foreign antitrust and trade regulation, Band 20, Heft 4, S. 775-802
ISSN: 1930-7969
Intro -- Summary of Contents -- Table of Contents (Full) -- Part I. Foreword: Defining the Focus -- Chapter 1. Introduction to the Book -- Chapter 2. Introduction to Law and the Judicial Process -- Part II. Social Research and Substantive Justice: Lawmaking in the Appellate Process -- Chapter 3. Creation of Law: Case Study of Southern School Desegregation -- Chapter 4. Implementation and Expansion of Law: Case Study of Southern and Northern School Desegregation -- Chapter 5. Contraction and Abolition of Law: Case Study of the Death Penalty -- Chapter 6. Impact of Law: Case Study of Regulating Police Conduct -- Part III. Social Research and Procedural Justice: Fact-Finding in the Trial Process -- Chapter 7. Selection of the Jury: Case Study of Jury Impartiality -- Chapter 8. Functioning of the Jury: Case Study of Jury Size, Verdict, and Litigation Complexity -- Chapter 9. Presentations to the Jury: Case Study of Evidence Rules -- Chapter 10. Extrajudicial Influences on the Jury Before Trial: Case Study of Eyewitness Identification -- Part IV. Afterword: Perspectives on the Focus -- Chapter 11. Historical and Conceptual Perspectives on Psycholegal Research -- Chapter 12. Jurisprudential Perspectives on the Judicial Process -- Chapter 13. Conceptual and Jurisprudential Perspectives on the Uses of Social Research in the Judicial Process