Judicial lawmaking and precedent in Supreme Courts

What does it mean for a supreme court to ‘make law?’ When is it possible to say that its decisions are ‘precedents?’ To what extent should a supreme court’s pronouncements be taken into account by others – lower courts and political branches? And how should these other actors reason with such precedents? This article shows how a particular approach to judicial lawmaking and precedent shapes answers to these questions and examines them in relation to the US Supreme Court and the French Cour de cassation. The findings are then used for a critical analysis of the European Court of Justice’s case law. It is suggested that while the US and French systems have found some ways of reconciling judicial lawmaking with the basic premises of their constitutional and political systems (although they are not entirely satisfactory), the EU system is still waiting for an account of the Court’s lawmaking and precedent. The conclusion indicates directions of possible further research relevant for all courts examined

The Debt-adjusted Real Exchange Rate for China

The paper aims to enrich the debate on the overvaluation/undervaluation of China yuan Renminbi (CNY) against USD and JPY by applying the concept of the Debt-Adjusted Real Exchange Rate (DARER). This approach is offering to monetary policy makers another indicator for more responsive management of this important economic variable. The general motivation for constructing DARER is the fact that long-term current account surplus (deficits) is linked with capital outflows (inflows), which often leads to real undervaluation (overvaluation) of domestic currency. DARER can signal to the authorities that the real exchange rate is becoming unsustainable in the medium term. Based on the DARER approach we also introduce three indicators of exchange rate misalignment.Exchange rate ; current account ; misalignment ; China ; DARER

Constitutional revolutions and the constituent power: a reply to Mark Tushnet

Pitchforks, and Toilers with Twitter: Constitutional Revolutions and the Constituent Power,” I seek to explain why I do not find Tushnet’s account of constituent power and unconstitutional amendments very helpful in our understanding of both the underlying theoretical controversies and actual constitutional transformations

The struggle for legal reform after communism

The working paper contains an extended review essay of Zdenĕk Kühn, "The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation?" (2011). The central thesis of the book is that 'there is a deep continuity in the methods of legal reasoning employed by lawyers in the region, starting in the era of Stalinist Communism, continuing through the era of late Communism of the 1970s and 1980s and up to the current post-communist period'. In this respect the book's analysis is retrospective, starting in the late nineteenth century, when the Central European legal culture emerged within the 'Austrian legal tradition'. It provides a rich analysis of legal thinking, institutional practices, and expert as well as public discourse concerning judges, courts and judicial process over the course of the whole of the twentieth century in the region. The book's central argument concerns our time, however. The continuity of Central European legal thinking is, according to Kühn, 'manifested in the problems of the first two decades after the collapse of Communism'. In this regard the book turns to the present and future of Central Europe and becomes missionary, offering a diagnosis together with a prescription. The cure lies, essentially, in catching up with the West and adopting its 'new European legal culture'. More concretely, Kühn argues empathically for the empowerment of the judiciary, which would in his view correspond to the development in the West throughout the second half of the last century. The result is rather ambiguous. On the one hand, the book is engaging and worth reading for anyone interested in post-communist Europe and its past. The book however serves as an interesting exhibit in the gallery of post-communist legal culture, rather than an accomplished study thereof. In what follows I will firstly introduce the book and then turn to its problematic features, which relate to the (still) prevailing discourse concerning post-communism in Europe

Book review: judging Europe’s judges: the legitimacy of the case law of the European Court of Justice edited by Maurice Adams et al.

The aims of this volume are to study the new era in which the European Court of Justice finds itself, following successive waves of EU enlargement. Through eight chapters, Maurice Adams and contributors consider the general principles of EU law, external relations, the internal market, and Union citizenship. Jan Komárek is somewhat disappointed by the short-sighted character of the thinking about judicial legitimacy in most contributions

National constitutional courts in the European constitutional democracy

This article critically assesses the transformation of national constitutional courts’ place in the law and politics of the EU and its Member States. This process, which has its origins in the foundational constitutional doctrines of EU law, has recently been accelerated on the one hand by a handful of recent European Court of Justice (the ECJ) decisions and on the other hand by national constitutional courts’ own approach to EU law. The ECJ’s doctrine, based on an orthodox understanding of the primacy of EU law, fails to acknowledge the difference between constitutional and ordinary national courts implementing the distinction between ordinary and constitutional legality. At the same time some national constitutional courts show little sensibility to the nature of EU law and to the symbiotic relationship between constitutional democracies established after World War II and European integration. The assessment is based on the idea of European constitutional democracy, which is briefly sketched here. The article argues that maintaining the special place of national constitutional courts is in the vital interest of both the EU and its Member States

MONETARY POLICY AND OIL PRICES

This article discusses the relationship between monetary policy and oil prices and, in a broader sense, commodity prices. Firstly, it focuses on describing the relationship between key macroeconomic variables, gas prices and other commodity prices relative to oil prices. Subsequently, it discusses the existence of “transmission channels” through which monetary policy can be propagated to oil prices (or prices of commodities). It then provides an insight into the CNB’s forecasting process, both by looking retrospectively at the oil price outlook in the past and by analysing a transitory and a permanent shock (a rise in the oil price of USD 30/b). The simulated oil price shock is calculated from the average level of Brent oil prices in the first quarter of 2010, i.e. USD 77.50/b.oil price ; monetary policy ; real interest rate ; oil price shock JEL Classification: G12 ; G14 ; D53