We present a theory of European legal integration that relies on three causal factors: transnational exchange, triadic dispute resolution, and the production of legal norms. After stating the theory in abstract terms, we explain the construction of the legal system and test the relationship among our three variables over the life of the European Community. We then examine the effect of the EC legal system on policy outcomes at both the national and supranational levels in two policy domains: the free movement of goods and gender equality. Our theory outperforms its leading rival, intergovernmentalism. The evidence shows that European integration has generally been driven by transnational activity and the efforts of EC institutions to reduce transaction costs, behavior which governments react to but do not control.

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Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community

▪ Abstract Political events in various parts of the world during the past decade have attracted new attention to the strengths and weaknesses of federal solutions as a means of resolving political problems. Conceptual distinctions have been drawn between “federalism” as a normative term, “federal political systems” as a descriptive term referring to a broad genus of federal arrangements, and “federation” as a particular species within that genus. The extensive literature on the design and operation of federal systems is reviewed, with particular attention to asymmetry among constituent units, degrees of noncentralization, financial relationships, the impact of federative institutions and the courts, and the development of multi-tiered federal systems. Federal processes illustrated by patterns of formation and evolution, the significance of the increasingly global economy, intergovernmental relations, the impact of cultural, ethnic and national diversities, and the pathology of federal systems are also con...

Federalism, federal political systems, and federations

In recent years, the judicialization of politics worldwide has expanded its scope to encompass what we may term "mega-politics"-matters of outright and utmost political significance that often define and divide whole polities In this article, I explore the scope and nature of judicialization of this kind I begin by identifying the characteristics of the judicialization of mega-politics and by surveying the main explanations for its emergence I then illustrate the various forms and manifestations of the judicialization of mega-politics through recent examples drawn from jurisprudence of courts and tribunals worldwide Next, I explore recent studies that advance a strategic "judicialization-from-above" account, which emphasizes support from the political sphere as a necessary precondition for judicialization of pure politics To further illustrate this point, I survey patterns of political reaction to recurrent manifestations of unsolicited judicial intervention in the political sphere in general, and unwelcome judgments concerning contentious political issues in particular

The Judicialization of Mega-Politics and the Rise of Political Courts

1. Autonomy to manage ethnic conflicts Yash Ghai 2. Federalism and diversity in Canada Ronald Watts 3. Federalism and diversity in India Vasuki Nesiah 4. Autonomy regimes in China: coping with ethnic and economic diversity Yash Ghai 5. How the centre holds: managing claims for regional and ethnic autonomy in a democratic South Africa Heinz Klug 6. Autonomous communities and the ethnic settlement in Spain Daniele Conversi 7. Ethnicity and federalism in socialist Yugoslavia and its successor states Sinisa Malesevic 8. Ethnicity and the new constitutional orders of Ethiopia and Eritrea James Paul 9. Accommodating self-rule: Sri Lankan dialectics Neelan Tiruchelvam 10. Cyprus: from consociationalism to federation Reed Coughlan 11. Bougainville and dialectics of ethnicity, autonomy and separation Yash Ghai and Anthony Regan 12. Autonomy for Aboriginal peoples Cheryl Saunders.

Autonomy and ethnicity : negotiating competing claims in multi-ethnic states

I investigate whether or not national constitutions provide any insight into when states use political repression. Specifically, three constitutional provisions are identified: (1) what political a...

"Constitutional Promises" and Repressive Reality: A Cross-National Time- Series Investigation of Why Political and Civil Liberties are Suppressed

Part I: Introduction The Charter Revolution The Role of Judges The Court Party Part II: Judges and the Charter Judicial Discretion Core Values Textual Innovations Original Intent, Traditional Understandings Oracularism Part III: The Court Party Unifiers Civil Libertarians Equality Seekers Social Engineers Postmaterialists The Elitism of the Court Party Part IV: The State Connection Secretary of State Funding Court Challenges Program Funding for Aboriginal Rights Litigation Academic Research Funding Legal Aid Provincial Law Foundations Part V: The Jurocracy Courts Administrative Tribunals Government Legal Departments Law Reform Commission of Canada National Judicial Institute and Western Judicial Education Centre Part VI: Power Knowledge: The Supreme Court as the Vanguard of the Intelligentsia Administrative Support Rights Experts Advocacy Scholarship Part VII: What's Wrong with the Charter Revolution and the Court Party Notes List of Cases Cited Select Bibliography Index

The Charter Revolution and the Court Party

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This article assesses the impact of the Charter of Rights and Freedoms on the Canadian political system. Unlike some commentators who have minimized the effect of the Charter, the author finds that the Charter is inducing significant and permanent changes in the conduct of Canadian politics. Canadian judges have shed their pre-Charter style of deference and self-restraint, and are playing a bolder and more influential role in the governing process. Charter decisions are remolding the Canadian criminal law process along the lines of the “due process” model and away from the “crime control” model of the pre-Charter era. The Charter has also begun to change the way the Canadian political system operates. Interest groups have responded by making greater use of Charter constitutional litigation as a tactic to pursue policy objectives. Law-making areas once solely the prerogative of provincial governments are now being threatened with uniform national standards laid down by the Supreme Court in the course of Charter decisions. Political executives are using the reference procedure to pass Charter issues on to the courts in order to avoid dealing with political “hot potatoes” such as abortion and minority language education. In sum, the predicted “judicialization of politics” is well under way.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0008423900048939

The Political Impact of the Canadian Charter of Rights and Freedoms

This study proposes a new model for assessing success in interest group litigation. The model is applied to 47 appeal court rulings concerning feminist issues in 21 cases involving the Canadian Charter of Rights and Freedoms and 26 non-Charter cases. The study operationalizes the concept of ''success'' by including not just outcome (''who wins''), but also the effect of the case on the ''policy status quo'' (PSQ) and the creation of favourable or unfavourable legal resources (precedents). Feminist claims prevailed in 72 per cent of the cases. The PSQ optic reveals that previous studies overstate the significance of feminist losses (13), since only three of these changed the PSQ in a direction opposed by feminists. There were 17 cases that changed the PSQ in a direction desired by feminists. Feminist litigation has been most successful in the policy areas of abortion, private-sector discrimination and pornography. Success has been lowest in the areas of sexual assault and income tax. These findings suggest that interest group litigation can achieve significant policy change and that the scope of policy studies should be expanded to include judge-made policy.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0008423901777815

Feminists and the Courts: Measuring Success in Interest Group Litigation in Canada

Canadian experience under the 1982 Charter of Rights contradicts the orthodox understanding ofjudicial review as a decentralizing institution that performs a checking or blockingfunction. Charter politics in Canada suggest that in a federal system, judicial review can also enhance values and policies favored by the national government at the expense of the constituent units. Rather than weakening the policy capabilities of the federal government, the Canadian Charter has enhanced its influence. The Charter has undermined the policy autonomy of the provinces by giving a policy veto to the Supreme Court, an institution that is more receptive to the policy preferences of national elites, especially in the area of language policy. This has aggravated French-English relations, because of the high incidence of judicial nullifications of Quebec's restrictive language policies. Elite attempts to compensate Quebec by way of new constitutional amendments (e.g., the Meech Lake Accord) have been thwarted by the emergence of an influential coalition of postmaterialist social interests, which use Charter litigation to promote their nonterritorial policy objectives. These "Charter Canadians" have opposed constitutional amendments that would "weaken" the Charter or the Court. This coalition has broken Canadian governments' historical monopoly on the constitutional amending process. By stimulating the democratization of constitutional politics, the Charter has weakened the institutions of consociational democracy and elite accommodation. This has diminished the influence of all the provinces, but especially Quebec, thereby contributing to the recent rise in secessionist tendencies within Quebec.

F. L. Morton

Papers

The Charter Revolution and the Court Party

The Charter Revolution and the Court Party

The Political Impact of the Canadian Charter of Rights and Freedoms

Feminists and the Courts: Measuring Success in Interest Group Litigation in Canada

The Effect of the Charter of Rights on Canadian Federalism