Separating Law-Making from Sausage-Making: The Case for Judicial Review of the Legislative Process

Inspired, perhaps, by the old adage that "people who like sausages and respect the law should never watch either being made," there is significant resistance among judges and scholars alike to the idea that courts should review the lawmaking process. This doctoral dissertation challenges this prevalent position, and establishes the case for judicial review of the legislative process. The dissertation develops the arguments for the authority of courts to review the legislative process; the legitimacy and theoretical justifications of such judicial review; and the practical and normative importance of such judicial involvement. It also challenges the resistance to judicial review of the legislative process by scrutinizing, and seeking to rebut, the major arguments underlying this resistance, and revealing this position's doctrinal and theoretical incoherence, and its negative consequences. In an effort to provide a multifaceted exploration of the issue, the dissertation combines multiple approaches of legal scholarship, including a legal-doctrinal approach, a comparative law approach, a jurisprudential and constitutional theory approach, and an interdisciplinary approach that draws upon political science research and several other disciplines

Lawmakers as Lawbreakers

How would Congress act in a world without judicial review? Canlawmakers be trusted to police themselves? This Article examinesCongress’s capacity and incentives to enforce upon itself “the law ofcongressional lawmaking”—a largely overlooked body of law that iscompletely insulated from judicial enforcement. The Article exploresthe political safeguards that may motivate lawmakers to engage inself-policing and rule-following behavior. It identifies the majorpolitical safeguards that can be garnered from the relevant legal,political science, political economy, and social psychology scholarship,and evaluates each safeguard by drawing on a combination oftheoretical, empirical, and descriptive studies about Congress. TheArticle’s main argument is that the political safeguards that scholarsand judges commonly rely upon to constrain legislative behavioractually motivate lawmakers to be lawbreakers. In addition to providing insights about Congress’s behavior in theabsence of judicial review, this Article’s examination contributes tothe debate about judicial review of the legislative process, the generaldebate on whether political safeguards reduce the need for judicialreview, and the burgeoning new scholarship about legislative rules

The European Court of Justice and the Standard of Judicial Review

In this chapter the standards of judicial review applied by the ECJ when assessing Union acts and decisions and those that are imposed by the ECJ on the national courts when reviewing decisions within the scope of Union law, are examined in comprehensive way. It is proposed that the ECJ is strengthening its grip on the level of national judicial review of those decisions and that the formerly applied national autonomy approach is gradually but surely vanishing. Instead the ECJ increasingly transports its standards of review of EU acts to the review to be conducted by the national courts of similar acts and decisions. These standards include a process-oriented review of discretion and margins of appreciation. This process review combines a strict review of the authorities’ establishment of the facts with a test of the statement of reasons. Therefore, it could better be qualified as semi-procedural. This test provides for the necessary compensation for judicial deference in relation to the substance of the decisions concerned

Should I Stay (Open) or Should I Close? World Legislatures during the First Wave of Covid-19

International audienceCovid-19 has shocked governance systems worldwide. Legislatures, in particular, have been shut down or limited due to the pandemic, yet with divergence from one country to another. In this article, we report results from a cross-sectional quantitative analysis of legislative activity during the initial reaction to this shock and identify the factors accounting for such variation. Exploring legislatures across 159 countries, we find no relation between the severity of Covid-19 and limitations on legislatures' operation, thus suggesting that legislatures are at risk of being shut down or limited due to policy "overreaction" and that a health risk may serve as an excuse for silencing them. However, we find that legislatures in democratic countries are relatively immune to this risk, while those in frail democracies are more exposed. In partially free countries, the use of technology can mitigate this risk. We also find that the coalitional features of the government may lead to legislatures' closing