New Forms of Judicial Review and the Persistence of Rights - And Democracy-Based Worries

Recent developments in judicial review have raised the possibility that the debate over judicial supremacy versus legislative supremacy might be transformed into one about differing institutions to implement judicial review. Rather than posing judicial review against legislative supremacy, the terms of the debate might be over having institutions designed to exercise forms of judicial review that accommodate both legislative supremacy and judicial implementation of constitutional limits. After examining some of these institutional developments in Canada, South Africa, and Great Britain, this Article asks whether these accommodations, which attempt to pursue a middle course, have characteristic instabilities that will in the long run lead constitutional systems back to wither judicial or legislative supremacy

The Guarantees of Freedom

Hayek (1960) distinguishes the institutions of English freedom, which guarantee the independence of judges from political interference in the administration of justice, from those of American freedom, which allow judges to restrain law-making powers of the sovereign through constitutional review. We create a data base of constitutional rules in 71 countries that reflect these institutions of English and American freedom, and ask whether these rules predict economic and political freedom in a cross-section of countries. We find that the English institutions of judicial independence are strong predictors of economic freedom and weaker predictors of political freedom. The American institutions of checks and balances are strong predictors of political but not of economic freedom. Judicial independence explains half of the positive effect of common law legal origin on measures of economic freedom.

Legal Origins and the Evolution of Institutions: Evidence from American State Courts

Several important studies of institutions assume that the quality of institutions is persistent following some formative historic event. The assumption of institutional persistence, however, begs the question of how these institutions persisted. To better understand this issue, this paper examines the evolution of state courts in the United States. We begin by reviewing the evidence that France, Spain, and Mexico operated civil-law legal systems in territory that would later make up thirteen states. One important philosophical difference between civil-law and common-law legal systems arises from differences in their beliefs regarding the appropriate degree of judicial independence. To show how these beliefs, if persistent, would manifest themselves, we present a model in which legislatures allocate budgets to their judges. In the model, common and civil-law legislatures have different preferences regarding the level of judicial independence. Our model predicts civil-law legislatures will give fewer discretionary resources to their judges when judicial elections are replaced by a system of appointments. We confirm this prediction using state-level data for the period 1961-1999. Finally, we argue that one important reason why civil-law preferences for a weak judiciary appear to have persisted in the American states is that the political culture within state legislatures is slow-moving.

Due Process, Fundamental Fairness, and Judicial Deference: The Illusory Difference Between State and Private Educational Institution Disciplinary Legal Requirements

[Excerpt] “The educational process at a college or university, where students often experience new-found freedom, includes adherence to academic and behavioral standards. The institution may impose sanctions on students for breaching these standards. Prior to imposing a sanction, however, an institution must provide the student with a sufficient level of process or risk judicial invalidation of the sanction. Courts distinguish the process due a student attending a state institution from the process due a student attending a private institution. Related to this distinction is the judicial claim that courts grant discretion to a private institution’s judgment regarding discipline for academic, as opposed to behavioral, matters. However, as actually applied, the difference between the process due students at state institutions and those at private institutions is questionable. Furthermore, the actual discretion afforded to private institutions for their academic-violation processes is similarly questionable. This article will analyze five issues related to the distinction between state and private institution disciplinary proceedings. First, this article will analyze the process due a sanctioned student at a private institution. Second, it will compare the process due a sanctioned student at a private institution with the process due a student at a state institution and assert that the practical differences are small. Third, it will analyze the judicial claim that more discretion is afforded private institutions in academic disciplinary matters and assert that this discretion is applied inconsistently between courts. Fourth, this article will present the judicial doctrines regarding review of a private institution’s behavioral disciplinary proceedings. Finally, this article will provide recommendations to private institutions regarding disciplinary policy creation and implementation.

Evaluating Judges and Judicial Institutions: Reorienting the Perspective

Empirical scholarship on judges, judging, and judicial institutions, a staple in political science, is becoming increasingly popular in law schools. We propose that this scholarship can be improved and enhanced by greater collaboration between empirical scholars, legal theorists, and the primary subjects of the research, the judges. We recently hosted a workshop that attempted to move away from the conventional mode of involving judges and theorists in empirical research, where they serve as commentators on empirical studies that they often see as reductionist and mis-focused. Instead, we had the judges and theorists set the discussion agenda for the empiricists by describing topics that they thought were worthy of inquiry. In this essay, we explain why we think collaboration of this sort should be encouraged and draw on the workshop experience to offer suggestions for improving the quality and utility of empirical research in this area

One Roof System Lembaga Peradilan Agama di Bawah Kekuasaan Mahkamah Agung

History of judiciary power in Indonesia judicial institutions is quite long and dilemmatic. The political situation in Indonesia has a major impact on the existence of judicial institutions. Independence of judiciary power is not met a demand for years. It is proved by the interventions of extra-judicial government institutions to judicial institutions. The Supreme Court, as Indonesia\u27s top court, at first has supervised General Courts, Religious Courts, State l Administration Court and the Military Courts only in judicial technical. Meanwhile, for non-judicial technical matters, those judicial institutions have been supervised by each government departments respectively. But with the enactment of Act No. 35 Year 1999 on Amendment of Act No. 14 Year 1970, which was enhanced by Act No. 4 Year 2004 on Judiciary Power, cultivation of non-judicial technical in those judicial institutions, including Religious Court have been held by the Supreme Court.Sejarah kekuasaan kehakiman lembaga-lembaga peradilan di Indonesia cukup panjang dan dilematik. Situasi politik yang bergolak di Indonesia, berpengaruh besar terhadap eksistensi lembaga-lembaga peradilan. Independensi kekuasaan kehakiman tidak terpenuhi selama bertahun-tahun. Terbukti dengan banyaknya intervensi lembaga pemerintah ekstra-yudisial terhadap lembaga peradilan.Mahkamah Agung, sebagai puncak peradilan di Indonesia, pada mulanya hanya membina Peradilan Umum, Peradilan Agama, Peradilan Tata Usaha Negara dan Peradilan Militer secara teknis yudisial saja. Untuk urusan teknis non-yudisial,pembinaan lembaga-lembaga peradilan tersebut dibawah naungan departemen pemerintahan masing-masing. Namun seiring diundangkannya Undang-Undang Nomor 35 Tahun 1999 tentang Perubahan Atas Undang-Undang Nomor 14 Tahun 1970, yang kemudian disempurnakan dengan Undang-Undang Nomor 4 Tahun 2004 tentang Kekuasaan Kehakiman, pembinaan teknis non-yudisial lembaga-lembaga peradilan, termasuk Pengadilan Agama dipegang oleh Mahkamah Agung

Institutional reform and the judiciary : which way forward?

The author presents some general lessons in institution-building that has relevance for judiciary reform. She emphasizes the value of simplicity in design commensurate with country capacity, the importance of innovation and experimentation, and of economic openness in effective institution-building. The author underscores how the incentives of individuals depend on both the details of institutional design within the judiciary and also some critical institutions external to the judiciary. Finally she argues for the need to ground reform initiatives on a solid empirical and comparative approach. The author illustrates some of these issues by drawing on a recent project conducted by the World Bank and other institutions.Judicial System Reform,Judicial System Reform,Legal Institutions of the Market Economy,Decentralization,Legal Products,Judicial System Reform,Legal Institutions of the Market Economy,Judicial System Reform,Children and Youth,Environmental Economics&Policies

The market reaction to legal shocks and their antidotes : lessons from the sovereign debt market

This Article examines the market reaction to a series of legal events concerning the judicial interpretation of the pari passu clause in sovereign debt instruments. More generally, the Article provides insights into the reactions of investors (predominantly financial institutions), issuers (sovereigns), and those who draft bond covenants (lawyers), to unanticipated changes in the judicial interpretation of certain covenant terms

Legal Determinants of the Return on Equity

Recent work documents that better legal institutions are associated with broader equity markets. We investigate whether international differences in legal institutions also help explain the international cross-section of expected stock returns. We document three main regularities. First, total stock market returns are positively correlated with overall measures of the quality of institutions, such as judicial efficiency and rule of law, but have no relationship with measures of shareholder rights, controlling for risk. Second, dividend yields and earning-price ratios also correlate positively with judicial efficiency and rule of law, but negatively with shareholder rights' protection, controlling for risk and expected earnings growth. Thirdly, the excess return on new issues is negatively associated with the quality of accounting standards. We interpret the positive effect of the overall quality of institutions on equity returns as capturing the resulting curtailment of private benefits and increase of profitability, under imperfect international integration of stock markets. The negative impact of shareholders' legal protection and of accounting standards can instead be seen as resulting from the implied reduction in shareholders' auditing and monitoring costs.law, enforcement, shareholder protection, corporate governance, return on equity