APPOINTING JUDGES THE EUROPEAN WAY

This Article looks at methods of judicial selection in Europe as a way to contrast and perhaps better understand and improve the systems of judicial selection used in the United States. The article argues that in Europe, judicial independence is prized above and beyond any other possible positive trait. The democratic legitimacy of European judges derives from the intimate connection between democracy and the rule of law. Legitimacy does not attach, in the public eye, to a single political institution, but rather to the system as a whole

"Judicially crafted federalism: EU and USA"

[From the Introduction]. The designation "United States of America" appears to have used for the first time in 1776, in the closing paragraph of the Declaration of Independence issued by the Continental Congress. Almost two centuries later, in 1948, Winston Churchill applied a similar assignation, "the United States of Europe," to capture one vision of a future face for Western Europe. The first was a declaration, and the second, a statement of inspiration. As the European Community (EC) evolved into the European Union (EU), parallels between it and the United States have been sought. In this essay, I follow in that line by considering how federalism, as a concept and as a reality, has been molded in the hands of judges. The trajectories of federalism may, however, explain more about how courts consolidate and wield their power than about center and periphery relations. Even so, the evolution of federalism, which carries different connotations in Europe and the U.S., bears the clear fingerprints of judges

Conclusion: Lessons Learned

Since ancient times, terror tactics have been used to achieve political ends and likely will continue into the foreseeable future. Preserving national security and the safety of civilian populations while maintaining democratic principles and respecting human rights requires a delicate balancing act. In democracies, monitoring that balance typically falls to the courts. Courts and Terrorism examines how judiciaries in nine separate nations have responded, not just to the current wave of Al Qaeda threats, but also to nacro-trafficking, domestic terrorism, and organized crime syndicates. Terrorism is not a new phenomenon, and even though the reactions have varied significantly, common themes emerge. This volume discusses eleven case studies and analyzes the experiences of these various nations in their battles with terrorism to reveal the judicial quandary for democratic governance and the rule of law in the twenty-first century --Provided by publisher.https://ecollections.law.fiu.edu/faculty_books/1250/thumbnail.jp

Courts Crossing Borders

Europeans have suspected for some time that subtle inroads into national prerogatives are consequences of transnational organizations and their courts.The successive treaties and the economic, legal, and political frameworks that have given rise to the European Union (EU) over the past fifty years have conceived an approach to state building that has incorporated the eighteenth century nation-state into a supranational structure that has stimulated economic growth. In so doing, the power of courts above the level of states has been dramatically intensified as the various iterations of the European Union have sought to expand economic opportunities and integrate aspects of political processes. Courts have played a seminal role in blurring lines of sovereignty among states in order to implement the economic and policy objectives of Europe\u27s collective interests. The European Court of Justice of the EU has elevated the treaties to the stature of a constitution, facilitated free movement of workers and capital among member states, and annulled national barriers to the free movement of goods and services. Americans have, however, been smugly less concerned about potential incursions into their national sovereignty, by courts or any other transnational bodies. Yet, as the New York Times noted, a phenomenon similar to what has happened in Europe is occurring on this side of the Atlantic. NAFTA\u27s Powerful Little Secret detailed the ways in which obscure tribunals, impaneled to enforce the rules of the North American Free Trade Agreement, are overriding national laws. More recently, and more powerfully, Chief Justice Margaret Marshall of the Massachusetts high court was surprised,” according to an article in the New York Times, to discover that a case her court had decided and that the U.S. Supreme Court had declined to hear was under review by a North American Free Trade Agreement (NAFTA) court. Less than two weeks after reporting about the Massachusetts case, the New York Times noted that a dispute settlement panel of the World Trade Organization (WTO) had ruled against the U.S. practice of subsidizing cotton producers, a ruling that, if upheld by the higher WTO judicial body, would likely end or seriously change the current model of cotton production in the United States.https://ecollections.law.fiu.edu/faculty_books/1202/thumbnail.jp

Judicialization And Sovereignty

“Courts crossing borders was chosen as a title to convey the convergence of two realities in international politics. The first is that the traditional meanings of national sovereignty and, indeed, possibly the nation-state itself, are undergoing a radical metamorphosis. Simultaneously, the international political sphere is becoming progressively judicialized.” By judicialization, we refer to a process explained by Torbjorn Vallinder as the infusion of judicial decision-making and of court-like procedures into political arenas where they did not previously reside.” In some instances this process extends beyond formal courtroom proceedings and judicial deliberation and has come to dominate nonjudicial negotiating or decision-making arenas by quasi-judicial (legalistic) procedures. This book addresses that phenomenon at the transnational level, where courts or court-like bodies have encroached not only on what has typically been seen as the political sphere, but also on traditional notions of the nation-state and national sovereignty. The judicialization of international politics has resulted from the creation of a growing number of transnational organizations whose aims are to promote economic or political integration or to protect human rights. These organizations have challenged notions of exclusive sovereignty as control over population within a well-defined territory because of concerns over the implications on state action or inaction on a range of issues. The state, as a result, no longer is the primary actor in international relations, and transnational, as opposed to interstate, relations have increased in importance. The list of transnational organizations is long, and many of them have a tribunal of some sort embedded within them. These include the European Union, with its Court of Justice (ECJ), and the European Council, with its European Court of Human Rights (ECHR). There is also the Inter-American Court of Human Rights for the Organization of American States (OAS), and even the North American Free Trade Agreement (NAFTA) provides for bi-national panels. There are courts for the World Trade Organization (WTO), the Asian Free Trade Area (AFTA), and the Common Market of the South (MERCOSUR), as well as courts created to address a specific international issue, such as the International War Crimes Tribunal for Rwanda (ICTR) and the International War Crimes Tribunal for the Former Yugoslavia (ICTY). Perhaps the most ambitious is the newly created International Criminal Court that named its 18 judges early in 2003. Whereas each of these courts possesses the capability to judicialize international relations and to erode national sovereignty, assertions of universal jurisdiction for human rights violations represent the most extreme threat. Universal jurisdiction possesses the potential to transcend or even obliterate protections traditionally afforded by national sovereignty for those accused of crimes against humanity.https://ecollections.law.fiu.edu/faculty_books/1203/thumbnail.jp