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Author: Mark Tushnet
Publisher: Princeton University Press
ISBN: 1400828155
Category : Political Science
Languages : en
Pages : 288
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Book Description
Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.
Author: Mark Tushnet
Publisher: Princeton University Press
ISBN: 1400828155
Category : Political Science
Languages : en
Pages : 288
Get Book Here
Book Description
Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.
Author: Mark V. Tushnet
Publisher:
ISBN: 9780691130927
Category : Law
Languages : en
Pages : 272
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Book Description
Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.
Author: Ellie Palmer
Publisher: Bloomsbury Publishing
ISBN: 1847313760
Category : Law
Languages : en
Pages : 384
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Book Description
In the United Kingdom during the past decade, individuals and groups have increasingly tested the extent to which principles of English administrative law can be used to gain entitlements to health and welfare services and priority for the needs of vulnerable and disadvantaged groups. One of the primary purposes of this book is to demonstrate the extent to which established boundaries of judicial intervention in socio-economic disputes have been altered by the extension of judicial powers in sections 3 and 6 of the Human Rights Act 1998, and through the development of a jurisprudence of positive obligations in the European Convention on Human Rights 1950. Thus, the substantive focus of the book is on developments in the constitutional law of the United Kingdom. However, the book also addresses key issues of theoretical human rights, international and comparative constitutional law. Issues of justiciability in English administrative law have therefore been explored against a background of two factors: a growing acceptance of the need for balance in the protection in modern constitutional arrangements afforded to civil and political rights on the one hand and socio-economic rights on the other hand; and controversy as to whether courts could make a more effective contribution to the protection of socio-economic rights with the assistance of appropriately tailored constitutional provisions.
Author: Trevor Buck
Publisher: A&C Black
ISBN: 9781855674226
Category : Political Science
Languages : en
Pages : 360
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Book Description
The essays that comprise this collection focus on the impact and future developments of judicial review in a number of social welfare situations that include homelessness, housing benefit, immigration and social security, to name but a few.
Author: Daniel H. Cole
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
This article proposes that constitutional judicial review should be subject to a social welfare analysis to determine when and if such review is efficient in enhancing social welfare. A model is proposed in which property rights protection is a component of social costs. Judicial review is then assumed to, on net, either add to or subtract from those costs, affecting social welfare generally. It will be shown that under realistic conditions, reflected in real instances, judicial review might not enhance economic efficiency or overall social welfare. We show that the efficiency of constitutional judicial review is likely to vary within the larger institutional context.
Author: Frances Patterson
Publisher: Jordan Publishing (GB)
ISBN: 9781846611766
Category : Judicial review
Languages : en
Pages : 0
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Book Description
The process of judicial review offers claimants the opportunity to challenge the decisions of public bodies that carry out functions of state. Due to the increasing importance of this area, since April 2009 such cases have been heard not only in the Administrative Division of the High Court in London, but also in new Regional Divisions throughout England and Wales.To coincide with the regionalisation project, Judicial Review: Law and Practice has been written to provide practitioners with a comprehensive introduction to judicial review proceedings. It covers the substantive law of judicial review including grounds of review and remedies, and looks in detail at the practice and procedure specific to such claims. The largest part of the work is dedicated to individual areas of the law where judicial review is relevant, including town and country planning, community care and social welfare, immigration, housing, mental health, education and licensing. It therefore provides a wide-ranging coverage of administrative law and its niche practice areas including essential procedural rules, forms and guidance issued by the Administrative Court. Whether you are a specialist public lawyer or whether you practise in areas of law where expertise in judicial review is required, Judicial Review: Law and Practice provides the guidance you need to take on and manage cases confidently. This work also includes precedents and procedural guides to provide a comprehensive practice toolbox.
Author: Donald L. Horowitz
Publisher: Brookings Institution Press
ISBN: 9780815707318
Category : Law
Languages : en
Pages : 326
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Book Description
In recent years, the power of American judges to make social policy has been significantly broadened. The courts have reached into many matters once thought to be beyond the customary scope of judicial decisionmaking: education and employment policy, environmental issues, prison and hospital management, and welfare administration—to name a few. This new judicial activity can be traced to various sources, among them the emergence of public interest law firms and interest groups committed to social change through the courts, and to various changes in the law itself that have made access to the courts easier. The propensity for bringing difficult social questions to the judiciary for resolution is likely to persist. This book is the first comprehensive study of the capacity of courts to make and implement social policy. Donald L. Horowitz, a lawyer and social scientist, traces the imprint of the judicial process on the policies that emerge from it. He focuses on a number of important questions: how issues emerge in litigation, how courts obtain their information, how judges use social science data, how legal solutions to social problems are devised, and what happens to judge-made social policy after decrees leave the court house. After a general analysis of the adjudication process as it bears on social policymaking, the author presents four cases studies of litigation involving urban affairs, educational resources, juvenile courts and delinquency, and policy behavior. In each, the assumption and evidence with which the courts approached their policy problems are matched against data about the social settings from which the cases arose and the effects the decrees had. The concern throughout the book is to relate the policy process to the policy outcome. From his analysis of adjudication and the findings of his case studies the author concludes that the resources of the courts are not adequate to the new challenges confronting them. He suggests
Author: Andrea Castagnola
Publisher: Routledge
ISBN: 1315520605
Category : Political Science
Languages : en
Pages : 191
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Book Description
After more than seventy years of uninterrupted authoritarian government headed by the Partido Revolucionario Institucional (PRI), Mexico formally began the transition to democracy in 2000. Unlike most other new democracies in Latin America, no special Constitutional Court was set up, nor was there any designated bench of the Supreme Court for constitutional adjudication. Instead, the judiciary saw its powers expand incrementally. Under this new context inevitable questions emerged: How have the justices interpreted the constitution? What is the relation of the court with the other political institutions? How much autonomy do justices display in their decisions? Has the court considered the necessary adjustments to face the challenges of democracy? It has become essential in studying the new role of the Supreme Court to obtain a more accurate and detailed diagnosis of the performances of its justices in this new political environment. Through critical review of relevant debates and using original data sets to empirically analyze the way justices voted on the three main means of constitutional control from 2000 through 2011, leading legal scholars provide a thoughtful and much needed new interpretation of the role the judiciary plays in a country’s transition to democracy This book is designed for graduate courses in law and courts, judicial politics, comparative judicial politics, Latin American institutions, and transitions to democracy. This book will equip scholars and students with the knowledge required to understand the importance of the independence of the judiciary in the transition to democracy.
Author: Salman Khurshid
Publisher: Cambridge University Press
ISBN: 1108836038
Category : Law
Languages : en
Pages : 463
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Book Description
Discusses Upendra Baxi's role as an Indian jurist and how his contributions have shaped our understanding of legal jurisprudence.
Author: Ran Hirschl
Publisher: Harvard University Press
ISBN: 9780674038677
Category : Law
Languages : en
Pages : 306
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Book Description
In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom. Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms. Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.
