The new Commonwealth model of constitutionalism: theory and practice
In: Cambridge studies in constitutional law
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In: Cambridge studies in constitutional law
In: Law & policy
ISSN: 1467-9930
AbstractThis 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.
In: Global constitutionalism: human rights, democracy and the rule of law, S. 1-19
ISSN: 2045-3825
Abstract
This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of 'semi-substantive review' as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.
In: Global Constitutionalism, Forthcoming
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In: 70 UCLA L. REV. DISC. 184 (2023)
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In: in The Entrenchment of Democracy: The Comparative Constitutional Law of Elections, Parties, and Voting (Tom Ginsburg, Aziz Huq, Tarun Khaitan, eds., Forthcoming)
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In: The Oxford Handbook on Freedom of Speech (Stone & Schauer, eds., Forthcoming)
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In: 18 International Journal of Constitutional Law 1429 (2020)
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In: Columbia Journal of Transnational Law, Band 59, Heft 1
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Working paper
In: Constitutional Court Review, Band 9, Heft 1
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In: 21 University of Pennsylvania Journal of Constitutional Law 1 (2018)
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In: Duke Journal of Comparative & International Law, Band 29, Heft 1
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Working paper
In: Comparing Comparative Law, Samantha Besson, Lukas Heckendorn & Samuel Jube eds. (Swiss Institute of Comparative Law, 2016)
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In: 65(2) American Journal of Comparative Law 229 (2017)
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In: Harvard Law Review Forum, Band 129, S. 158
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