Law, Society, and Industrial Justice.

Domestic law has long been recognised as a source of international law, an inspiration for legal developments, or the benchmark against which a legal system is to be assessed. Academic commentary normally re-traces these well-trodden paths, leaving one with the impression that the interaction between domestic and international law is unworthy of further enquiry. However, a different - and surprisingly pervasive - nexus between the two spheres has been largely overlooked: the use of domestic law in the interpretation of international law. This book examines the practice of five international courts and tribunals to demonstrate that domestic law is invoked to interpret international law, often outside the framework of Articles 31 to 33 of the Vienna Convention on the Law of Treaties. It assesses the appropriateness of such recourse to domestic law as well as situating the practice within broader debates regarding interpretation and the interaction between domestic and international legal systems.

Comparative Reasoning in International Courts and Tribunals

Although neither of them is a constitutional court, both the US Supreme Court and the European Court of Justice conduct extensive constitutional review. Although the European Union does not have a constitution, the European Court often engages in what functionally amounts to constitutional review, particularly in relation to the quasi-federal structure of the EU. This article compares the two courts as constitutional adjudicators. It explores the differences in style and rhetoric between the two courts and places these in their respective institutional and cultural settings. It compares the two courts' approaches to interpretation, and the source and scope of their legitimacy. Both courts have engaged in the constitutionalization of politics and seem in constant risk of politicizing the constitution (or its functional equivalent). The threats to their respective powers and legitimacy are different. The US Supreme Court is vulnerable to internal forces - e.g., the President, Congress, national public opinion - whereas the European Court is mainly vulnerable to external forces - e.g., the member states and, in particular, the latter's constitutional courts.

Comparing Constitutional Review by the European Court of Justice and the U.S. Supreme Court

Introduction 1. Against Bill of Rights exceptionalism 2. The common law, judging, and three Bills of Rights 3. Judicial review of legislation before Bills of Rights 4. Bills of Rights and other means of accessing judgment 5. Putting the strike-down in its place 6. Remedies from text to practice 7. Improving the system and engaging the legislature 8. Rethinking remedies and constitutional supremacy Conclusion.

Bills of Rights in the Common Law

This Article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The Article explicates this emerging model, which it terms 'semiprocedural review,' and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The Article pursues these goals through the unique perspective of juxtaposing semiprocedural review with 'pure procedural judicial review' and 'pure substantive judicial review.'

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2177877_code977344.pdf?abstractid=2177877&mirid=2

Semiprocedural Judicial Review

This article is the introduction of the special issue with the same name, which centers around the key note paper of Rainer Forst, "The Justification of Basic Rights. A Discourse-Theorethical Approach".

/pdf/rainer-forst-the-justification-of-basic-rights-2v2xexojph.pdf

Rainer Forst: The Justification of Basic Rights

Recent reforms regarding the European Courts raise the question in which way do ‘new public management’ principles influence the European judicial organisation and how is a balance struck between these principles and classic ‘rule of law’ principles? The article first presents a classification of these types of principles in the framework for discussion regarding the European judicial organisation. Starting out from two paradigms, an inquiry is made into the status of the two sets of principles in the present‐day European ‘constitutional’ framework. Second, the interaction of principles is investigated with regard to a number of current dilemmas, including the demarcation of the judicial domain, the management of the Courts and the distribution of judicial competences.

/pdf/the-european-judicial-organisation-in-a-new-paradigm-the-3z80kd4ty3.pdf

The European judicial organisation in a new paradigm: The influence of principles of 'new public management' on the organisation of the European courts

The question of jurisdiction is at the heart of recent discussions regarding the modernization of European judicial organizations. In some cases, special courts have been created for dealing with specific categories of cases, or particular categories of cases have been concentrated within a single court for the entire legal system. In some instances, reforms focus on reducing the number of courts or on creating a limited number of courts of general competence.

/pdf/balancing-territoriality-and-functionality-specialization-as-j11puqwl0l.pdf

Balancing Territoriality and Functionality; Specialization as a Tool for Reforming Jurisdiction in the Netherlands, France and Germany

In this article, the judicial review of regulatory processes is investigated from the perspective of institutional choice, which concerns the optimal institutional allocation of functions in a society. It is demonstrated that judicial decision-making and policy making, both forms of public decision-making, in liberal democracies are changing under the effects of: (i) shifts in the balance of power between the branches of government, and (ii) the emancipation of the social sciences as standards for public decision-making. The institutional role of the judiciary with regard to the guarantee of the quality of regulatory processes is examined in light of political, legal, economic and professional rationalities concerning public decision-making. On the basis of this analysis, it is concluded that the judiciary in liberal democracies currently seems to be a legitimate institution to exercise a review of regulatory processes. Moreover, the analysis clarifies that the courts in liberal-democratic systems...

Judicial Review of Regulatory Instruments: The Least Imperfect Alternative?

1. Introduction: Highest Courts in Flux I. The Trend of Judicial Internationalisation II. Why Do Judges Cite Foreign Law? III. Learning from the Views of Judges IV. Scope of the Research V. Outline of the Book 2. Understanding the Development of Highest Courts' Practices: A Constitutional-Theoretical Approach I. Constitutional Theory and Legal Evolution II. Procedural Aspects of Legal Evolution III. Substantive Aspects of Legal Evolution IV. Conclusion 3. Introducing the Comparative and Empirical Analysis I. Anglo-Saxon Model: A Single Highest Court (United Kingdom, Canada, United States) II. French Model: Multiple Highest Courts (France, the Netherlands) III. Comparing the Courts IV. An Empirical Analysis V. Conclusion 4. Incorporating the Transnational: Judicial Roles, Relations and Working Methods in a Globalised World I. Judicial Roles in a Globalised World II. International Relations of the Highest Courts III. Working Methods in a Globalised World IV. Conclusion 5. The Use of Foreign Law in Judicial Decision-Making I. Status of Foreign Law II. Use of Foreign Law: Examples from Case Law III. Justification of Developed Practices IV. Conclusion 6. Conclusion: Assessing the Development of Highest Courts' Practices I. Constitutional (In-)Flexibility in Action: Procedural and Substantive Explanations for the Development of Highest Courts' Practices II. Epilogue: The Future of Judicial Internationalisation

Elaine Mak

Papers

Rainer Forst: The Justification of Basic Rights

The European judicial organisation in a new paradigm: The influence of principles of 'new public management' on the organisation of the European courts

Balancing Territoriality and Functionality; Specialization as a Tool for Reforming Jurisdiction in the Netherlands, France and Germany

Judicial Review of Regulatory Instruments: The Least Imperfect Alternative?

Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts