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I. INTRODUCTION In the biggest legal and constitutional controversy of 2017, President Donald Trump and several federal courts clashed over immigration and national security policy. Early in the new year, [...]

It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of [...]

Abstract So-called "substantive due process" has long been criticized by progressives and conservatives as a contradictory interpretation of the Due Process Clauses, and one that undermines the popular sovereignty of [...]

Abstract: This article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court's decision-making in rights-based challenges to economic [...]

Abstract: This article explores the Malaysian judiciary's approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation's political and constitutional history. It traces [...]

Introduction I. How Can We Know Whether Decisions Are Good or Bad, and Relatedly, Is This Just All Really a Liberal's Critique of the Supreme Court? II. Is It Realistic [...]

I. THE PROBLEM WITH CHEMERINSKY'S "CASE" II. THE CASE FOR ERWIN CHEMERINSKY III. THE CONSERVATIVE CASE AGAINST THE SUPREME COURT IV. WHAT THE PEOPLE THINK V. TIME FOR CHANGE? VI. [...]

INTRODUCTION I. VOTING LAWS AND PHOTO IDENTIFICATION A. Voters' Access to the Polls: The Federal Government's Involvement in Voting Laws from 1787-2013 B. Voter Identification Laws: A New Phenomenon 1. [...]

II. TWO TYPES OF SCRUTINY: THE SUPREME COURT AND LAWS BURDENING THE RIGHT TO VOTE The United States has a tumultuous voting rights history. For the majority of this country's [...]

INTRODUCTION Though John G. Roberts has been Chief Justice of the United States Supreme Court for only just more than nine years--less than the median tenure of eleven years for [...], This Article argues that the most salient feature to emerge in the first decade of the Roberts Court's law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors--the Rehnquist and Burger Courts--both of which exercised judicial review more regularly. Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split five to four, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The "liberal" and "conservative" wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases. Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the Article claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well. Whether the Roberts Court's contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one's views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court's approach-logical and complementary, even if not inevitable; just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

In the world of constitutional law, theory and practice are moving in opposite directions. As a matter of legal practice, since the end of the Second World War a groundbreaking [...]

I. INTRODUCTION It is notorious in the area of Japanese legal studies that the Supreme Court of Japan has held legislation to be unconstitutional in only a handful of cases [...]

Can a public authority avoid public law requirements, such as an obligation to act fairly, by 'contracting out' the performance of its functions? In Societe de l'assurance automobile du Quebec v. Cyr, the Supreme Court of Canada said 'no,' but it did not explain how far the Court will move the boundaries of judicial review to adapt to the growth of the private role in governance. However, there is reason to believe that the Court is moving towards a functional approach in defining state power and the location of the boundary between public and private law. This promises to be more coherent and effective than the piecemeal functional approaches that have emerged in the United States and the United Kingdom. A functional approach will prevent the lines of legal accountability to Parliament, the legislatures, the electorate and the courts from being severed by a contract between a public authority anda private party. At the same time, the emerging functional approach accepts that public law remedies should generally not be available if private law offers ah adequate remedy or if applying public law would generate disproportionate costs to efficiency or would damage other public law objectives or private interests. Les pouvoirs publics peuvent-ils eviter les exigences du droit public, telle une obligation d'agir de maniere equitable, en << sous-traitant >> l'execution de leurs fonctions? Dans l'affaire de Societe de l'assurance automobile du Quebec v. Cyr, la Cour supreme du Canada a dit << non >>, mais elle n'a pas explique jusqu'ou elle repoussera les limites de la revision judiciaire pour s'adapter a la croissance du role prive joue dans la gouvernance. Cependant, il y a raison de croire que la Cour est prete a adopter une approche fonctionnelle pour definir le pouvoir de l'Etat et la frontiere qui separe le droit public et le droit prive. Cela promet d'etre plus coherent et efficace que les approches fonctionnelles fragmentaires qui ont vu le jour aux Etats-Unis et au Royaume-Uni. Une approche fonctionnelle empechera que les lignes d'imputabilite juridique envers le Parlement, les organes legislatifs, l'electorat et les tribunaux ne soient rompues par un contrat passe entre un organisme public et une entite privee. Simultanement, la nouvelle approche fonctionnelle accepte que le recours de droit public ne doive pas etre habituellement disponible lorsque le droit prive offre un recours adequat, ou lorsque le droit public qui s'applique entraine des couts disproportionnes par rapport a l'efficience ou nuit a d'autres objectifs du droit public ou a des interets prives., The common law's capacity to adapt to societal change is one of its strengths. However, its greatest strength may lie in its wisdom to adapt only slowly and in small [...]

In this article, the authors assess various influences on U.S. Supreme Court justices' behavior in cases involving judicial review of federal, state, and local statutes. Focusing on challenges to the constitutionality of statutes considered by the Burger and Rehnquist Courts during the 1969 to 2000 terms, the authors evaluate the impact of attitudinal, institutional, and contextual variables on individual justices' votes to strike or uphold statutes challenged before the Court. The authors find that the justices' ideological responses to the challenged statutes, the extent of amicus support for the statute, the support of the solicitor general, congressional preferences, and the existence of a civil liberties challenge to the statute are all significantly related to the justices' votes to invalidate or uphold statutes. They also find that in the Rehnquist Court, conservative justices are less likely to strike state statutes but more likely to strike federal laws than their liberal counterparts, while no similar 'federalism' dimension emerges in the Burger Court. Indeed, in the Burger Court, a distinct pattern emerges with conservative justices more restraintist than liberal justices in both state and federal cases. Keywords: judicial review; federalism; constitutional challenges; U.S. Supreme Court

The limitations of judicial review for rights protection within the Australian system of government are discussed. The judiciary is charged with upholding unambiguous decisions of the legislature by defying the rule of law, international standards, and human rights principles due to the lack of a clear framework for the protection of rights.

CONTENTS INTRODUCTION I. IS DEMOCRATIC PARTICIPATION A PRINCIPLE TO GUIDE CONSTITUTIONAL INTERPRETATION? II. COHERENTISM IN ELY, DWORKIN, AND RAWLS A. A Coherentist Reading of Democracy and Distrust B. Why Can't [...], John Hart Ely's justly celebrated Democracy and Distrust aims to reconcile judicial review with the fundamentally democratic character of the American Constitution. Yet taken at face value, the book does not establish that the American Constitution is fundamentally democratic. While pointing to the large number of constitutional provisions that concern the mechanics of government, Ely offers no satisfactory account of why these provisions should be used to infer a master principle to guide interpretation of the document as a whole. Nor can Ely rely on a comprehensive normative account such as utilitarianism to establish his representation-reinforcing approach, because the book more generally argues that judges have no business importing such substantive values into the Constitution. In fact, the book succeeds to the extent that it does because Americans highly value democracy. But can American faith in democracy be made to serve as a basis for treating democratic representation as the key to constitutional interpretation in a noncircular fashion? Perhaps surprisingly, yes, if Democracy and Distrust is understood as presenting a coherentist account of constitutional interpretation--one that aims to make the best sense of the practice as a whole, given all of our considered convictions. Although this coherentist reading of Ely leaves him vulnerable to standard critiques of coherentism, it does not leave him any more vulnerable to such critiques than are other, rival accounts of constitutional interpretation.