giovedì 5 gennaio 2017

Comparing Judicial Activism – Can We Say that the US Supreme Court is More Activist than the German Constitutional Court?

Nuno M. Garoupa 
Texas A&M University School of Law; Catholic University of Portugal (UCP) - Católica Global School of Law

December 19, 2016

Revista Portuguesa de Filosofia (RPF), Special Issue on Democracy in Question, vol. 72 (4), 2016 

Although widely used, “judicial activism” is a diffused and, to some extent, an empty concept. However, if it is to be useful in comparative law and politics, a transparent and consistent definition of “judicial activism” has to be developed. We assess different approaches and the consequent comparative implications. We conclude that, at some levels, we can answer whether or not the US Supreme Court is more activist than the German Constitutional Court. Nevertheless, such question cannot be addressed satisfactorily once we understand the complexities of “judicial activism.”

Number of Pages in PDF File: 16

Keywords: judicial activism, constitutional review, constraint, restraint

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Convergence, Compatibility or Decoration: The Luxembourg Court's References to Strasbourg Case Law in its Final Judgments

Fan Jizeng 
Scuola Superiore Sant'Anna, Students; Scuola Superiore Sant'Anna di Pisa - Faculty of Law

October 21, 2016

Pécs Journal of International and European Law, 2016, no.2, pp.38-67 

Although the EU is not a Contracting Party to the European Convention yet, the ECHR and its Strasbourg Case-law do have an impact on the EU legal order. Before the Lisbon Treaty came into effect, the Court of Justice of the EU and the drafters of the Maastricht Treaty recognized that the ECHR and the ECtHR case law had a special significance for the EU legal order and regarded them as one part of the general principle of EU law. The Lisbon Treaty entitles the EU Charter on Fundamental Rights the primary legislation from which the Court could depart in its deliberation. According to Art.53(3) and the relevant Official Explanation, the Court of Justice should take the Strasbourg jurisprudence into account when it needs to define the scope and meaning of fundamental rights borrowed from the ECHR and its case-law. Although the CJEU still lacks a set of uniform rules on the reference to the Strasbourg case-law, and even the European judges motivations on the Strasbourg case-law reference are varied, this method can be regarded as one of the best resolutions on the elimination of the jurisprudential conflicts between the two European Courts. From a functional perspective, the function of the Strasbourg case-law reference can be divided into four categories: authoritative guidance, legitimate guidance, reference “by analogy”, and decorative reference. In particular, the function of legitimate guidance can even be re-divided into three sub-functions: guidance, conformation to legitimacy, and warning the member states against the undermining of the Strasbourg jurisprudence as well as a comparative analysis of similarity and difference between EU law and ECHR.

Number of Pages in PDF File: 30

Keywords: case-law reference, Luxembourg judgments, fundamental rights, comparative law, Strasbourg case law.

¿Pueden Haber Enmiendas Constitucionales Inconstitucionales? Una Mirada Al Derecho Comparado (Can There Be Unconstitutional Constitutional Amendments? A Comparative Perspective)

Joel I. Colón-Ríos 
Victoria University of Wellington - Faculty of Law


42 Rev. Jur. U.I.P. 207 (2008) 

Spanish Abstract: Este artículo tiene tres objetivos principales. Primero, analizar las bases teóricas de la doctrina de los límites implícitos al poder de reforma. Segundo, examinar las maneras en que dicha doctrina a sido tratada en diversas jurisdicciones (incluyendo Estados Unidos, Alemania, India, y Colombia). Finalmente, considerar la doctrina la luz del ordenamiento jurídico puertorriqueño.

English Abstract: This article has three main objectives. First, to analyze the theoretical bases of the doctrine of the implicit limits to the power of constitutional reform. Second, to examine the ways in which this doctrine has been treated in various jurisdictions (including the United States, Germany, India, and Colombia). Finally, to consider the doctrine the light of the Puerto Rican legal system.

Number of Pages in PDF File: 53

Keywords: Constitutional Law, Comparative Law

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Global Constitutionalism - A Critical View

Jaakko Husa 
University of Lapland - Faculty of Law

December 1, 2016

Maastricht European Private Law Institute Working Paper No. 2016/11 

Drawing on comparative law scholarship this paper discusses global constitutionalism from a critical point of view. Many contemporary authors seem to presume that the idea of constitutionalism must be universal. In agreement with this thinking the commitment to the rule of law, democracy and human rights has arguably become a defining global factor. Allegedly, constitutionalism is regarded as relevant not only in the context of States but also when we assess and interpret development of law beyond the State. This paper analyses underlying themes and calls the universality of global constitutionalism into question.

Number of Pages in PDF File: 19

Keywords: Constitutionalism, Global Law, Globalization, Comparative Law

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