Alternatives to Liberal Constitutional Democracy

The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security. Along these dimensions, the advantages of liberal constitutional democracy over the alternatives of social democracy of the type seen in Scandinavia, and bureaucratic authoritarianism of the type seen in parts of Asia, are not self-evident. Within Asia alone, seemingly functional alternatives to liberal constitutional democracy run the gamut from illiberal nondemocracy in China, to liberal one-party rule in Japan, to illiberal constitutional democracy in Singapore, to liberal constitutional nondemocracy in Hong Kong, to hereditary monarchy in Bhutan

The Paradox of Omnipotence: Courts, Constitutions, and Commitments

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign\u27s power, enable the sovereign to make such commitments. This paper advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems - undercommitment and overcommitment - between which they must steer: an actor that can bind itself has surmounted the problem of undercommitment but must then face the risk of hobbling itself to an unforeseen or undesirable extent, or overcommitting itself. Third, courts are well positioned to navigate a course between these matching perils and to optimize the extent of the sovereign\u27s commitments, even in the face of constitutional barriers to commitment by the sovereign. In performing these functions, however, courts risk damage to the basis of their own power - namely, their reputation for rendering fair and efficacious judgments

Appointing Federal Judges: The President, the Senate, and the Prisoner\u27s Dilemma

This paper argues that the expansion of the White House\u27s role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates the difficulty of achieving cooperative equilibrium by making both the benefits of cooperative behavior and the costs of retaliation highly uncertain

Generic Constitutional Law

This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the paper discusses why the idea of generic constitutional law should matter to legal academics, and whether judges can or should resist its development

Why Has Judicial Review Failed in Japan?

The Article examines the political and institutional explanations for the failure of judicial review in Japan. It outlines the law reforms on the judicial process which affects the Supreme Court of Japan (SCJ). It concludes that the decision of the SCJ to discharge its responsibility for performing judicial review will be unlikely

Generic Constitutional Law

This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the paper discusses why the idea of generic constitutional law should matter to legal academics, and whether judges can or should resist its development

Introduction: Decision Making on the Japanese Supreme Court

The Article discusses various reports published within the issue including one by Shigenori Matsui on the abandonment of the task of the Supreme Court of Japan (SCJ) in performing judicial review, one by Stephen Givens on the court rulings of several cases involving corporate laws and another one by Hiroshi Itoh on the factors affecting the decision making of the SCJ