John Garwood, Jr. The author of approximately articles, book reviews, or commentaries in professional and popular journals--and a regular contributor to the popular blog Balkinization--Levinson is also the author of four books: Constitutional Faith , winner of the Scribes Award ; Written in Stone: Public Monuments in Changing Societies ; Wrestling With Diversity ; and, most recently, Our Undemocratic Constitution: Where the Constitution Goes Wrong and How We the People Can Correct It ; and, most recently, Framed: America's 51 Constitutions and the Crisis of Governance The Yale University Press will be publishing in a collection of 85 short essays on each of the 85 Federalist papers.
Edited or co-edited books include a leading constitutional law casebook, Processes of Constitutional Decisionmaking 6th ed. Ask the Author. Jack M. Professor Balkin received his Ph. He is a member of the American Academy of Arts and Sciences. Professor Balkin writes political and legal commentary at the weblog Balkinization. He is the founder and director of the Information Society Project at Yale Law School, an interdisciplinary center that studies law and the new information technologies.
Wade Should Have Said. Professor Reva Siegel is the Nicholas deB. Her books include: Before Roe v. Professor Siegel received her B.
Phil, and J. Circuit, and began teaching at the University of California at Berkeley. A leading scholar and teacher of constitutional law and co-author of the casebook Processes of Constitutional Decision-Making, Paul Brest now focuses on judgment and decision making and philanthropy. Professor Brest joined the Stanford Law School faculty in and served as dean from to before becoming president of the William and Flora Hewlett Foundation in Professor Brest is also collaborating with Professor Deborah Hensler in designing a law and public policy laboratory at Stanford Law School.
He received his B. A, summa cum laude, in from Yale College, and his J. After clerking for Judge Stephen Breyer, U. Please login to view Professor Resources. This section is only available to registered, validated professor accounts. Advanced embedding details, examples, and help!
Throughout the book, we take seriously constitutional decisionmaking by nonjudicial institutions by including materials ranging from resolutions by the Kentucky and Virginia legislatures in the late eighteenth century, to constitutional interpretations by the President and Congress of the United States, to constitutional assertions by social movements, such as the Seneca Falls Declaration of , to constitutional arguments by particular individuals such as senatorial candidates Abraham Lincoln and Stephen Douglas, the noted abolitionist Frederick Douglass, and civil rights pioneer Pauli Murray.
Indeed, far from being the only source of constitutional law, the Supreme Court is not even the only judicial source. In this edition we have included more constitutional arguments by lower federal courts, by state supreme courts There are no reviews yet. Be the first one to write a review. Books for People with Print Disabilities. To browse Academia. Log in with Facebook Log in with Google. Remember me on this computer. Enter the email address you signed up with and we'll email you a reset link.
Need an account? Click here to sign up. Download Free PDF. The decision-making process of European constitutional courts : A comparative perspective Katalin Kelemen. A short summary of this paper. Download Download PDF. Translate PDF. A comparative perspective2 Summary: 1.
Internal court structure in comparative perspective. The prominent figures of the decision-making process. The president of the court.
The most prominent members of the decision-making panel: The rapporteur judge and the opinion-writer. Non- judicial offices: Law clerks and the secretary general. Introduction The first in-depth interdisciplinary studies of the decision-making process of judges were carried out in the United States in the s. These were stimulated mainly by the dissatisfaction with the traditional legalistic explanations about how controversies are decided.
The proliferation of dissenting and concurring opinions generated discontent among legal scholars who started to ask themselves why the members of a judicial panel reach different conclusions on the basis of the same factual background and applicable legal rules. E-mail: katalin. A comparative and legal perspective , to be published in Please do not quote or cite without permission! Comments are most welcome at katalin. I am thankful to Routledge Publishing for the courtesy of allowing me to publish this text as a working paper.
An Introduction St. See G. Thus, before exploring the practice of judicial dissent, I address its institutional and procedural contexts, since these exert a profound influence on this phenomenon. Internal court structure in comparative perspective As we have seen, constitutional courts in many respects represent a special combination of a common law supreme court and a civil law supreme court, since they have certain characteristics of both.
This is true also with regard to their internal structure. A constitutional court is composed of a relatively limited number of judges between 6 and 15 ,9 like a common law supreme court, and it often decides in smaller panels, similarly to civil law supreme courts, but unlike the US Supreme Court.
She adds that further rese- arch should be done to elaborate this hypothesis. Not all constitutional courts have chambers. For example, the Italian Constitutional Court represents an exception. It always decides in plenary session. The U. However, even there, after the reform, only the 5-member pag. Only a few countries allow single-judge formations to take decisions, and their decisions are never on the merits.
In Hungary and in the Czech Republic, for example, a single constitutional judge may reject a petition on formal grounds. Thus, entrusting a single judge with this function helps the court to dispose of these cases more expeditiously.
Intuitively, single-judge formations do not write dissenting opinions. The German Bundesverfassungsgericht, which has been often taken into consideration as a model in other countries when creating a new constitutional court, has a unique structure which has not been adopted by any other country.
Its sixteen members are grouped in two permanent panels, in German called Senate. They have different competences established by law,13 and a plenary session is summoned only when a contrast arises in the jurisprudence of these two panels and to issue rules on judicial administration.
They decide on the admissibility of constitutional complaints the famous Verfassungsbeschwerden and applications by ordinary courts. The creation of 3-member panels is, however, only a possibility. No 3-member panel has been established yet. In Hungary it is a novelty introduced by the new Constitutional Court Act. Only two members of the Court act as solo judges at a time, appointed by the President for 3 months. At the beginning the First Senate was designed to deal with all constitutional complaints, while the Second Senate was supposed to decide conflicts of power and other cases of political nature like the pre-existing Staatsgerichtshof of the Weimar Republic.
However, the especially conspicuous number of constitutional complaints made it necessary to re- distribute the caseload, and today also the Second Senate decides complaints. The division of work between the two panels is determined by the plenary session at the beginning of every term. See Donald P.
However, the admissibility of applications by state constitutional courts or by a federal supreme court are examined by the senate. See art. The Belgian Court is composed of 12 judges, half of which are Dutch-speaking and the other half are French-speaking. They form two language groups and have their own president. The Court has even two registrars to ensure an equal treatment to the two linguistic groups.
The decision-making panels are composed of three French- speaking and three Dutch-speaking judges and the president of the linguistic group whose language is that of the case to be heard. The then Court of Arbitration, created in , had the task of watching the division of legislative powers between the different legislative assemblies.
The double structure of the German Federal Constitutional Court is also unknown to the new generation of constitutional courts, the ones set up in East-Central Europe, which followed the German model. Their structure, however, is also far from the simple and united model of the Italian Constitutional Court and of the U. Supreme Court, which both decide all cases in plenary session. They indeed represent a middle ground between these two solutions.
The most important cases are decided by the plenary session, while the others are assigned to panels composed of three or five judges. The Polish Constitutional Tribunal is an exception, as it decides on the constitutionality of parliamentary acts and international treaties in plenary session only at certain conditions, i.
See also Peter E. Moreover, one of the judges has to speak German as well art. Accordingly, in , the name of the Court of Arbitration was changed into Constitutional Court. However, as already indicated above, in Hungary only 5-member panels have been set up so far see above note 9. In Croatia there are 3- and 6-member panels art.
In all the other East-Central European constitutional courts they are composed of three members. On the other hand, in the first years, cases referred by ordinary judges were assigned to chambers of three judges whose decisions could be appealed before a chamber of five judges. Since then, all cases have been decided in plenary session.
The German solution is understandable if we consider that the panels operate as a filter and decide on the merits only when the case is manifestly founded or unfounded. Clearly, foundedness or unfoundedness is not manifest if there is a disagreement between the judges.
The same logic is applied by Slovenian, Croatian and Latvian laws which assign to 3-member panels the decision on the admissibility of constitutional complaints and require unanimity. Manifestly unfounded petitions are to be rejected by smaller panels and unanimity is required. However, dismissal of the application on formal or procedural grounds does not require a unanimous decision. Three are appointed by the head of the state, three are elected by the upper and three by the lower house of the Parliament.
This method of appointment is not identical to the French solution, where two thirds of the judges are appointed by the presidents of the two houses and not by the houses themselves. In Romania constitutional judges are elected by absolute majority. Another similarity with the French model is that one third of the members are replaced every three years.
In Croatia also decisions on the merits of constitutional complaints have to be taken by unanimity in the 6-member panels. In Latvia art. The Austrian law, instead of pro- viding for panels of a given number of judges, determines a lower quorum for certain types of cases the pre- sident and four other judges, see art.
In practice, these panels are composed of the president, the vice-president, the rapporteur judge and three other judges.
The reason may lie in the fact that Hungarian panels are not simple filters of constitutional complaints even if they have this function as well , but they have residual competence.
0コメント