Academic literature on the topic 'Government lawyers; Solicitor-General; constitutional law'

On June 24, 2022, the U.S. Supreme Court decided in Dobbs v. Jackson Women’s Health Organization that the Constitution does not confer a right to abortion, which had been upheld since Roe v. Wade in 1973. Roe, overruled by Dobbs, had represented constitutional revolution led by liberal Justices starting from the Warren Court. Conservative lawyers have tried to put an end to judicial activism since early 1980s. This paper reviews the conservative judicial movement in terms of constitutional interpretation as well as social movement. Originalism, conservative theory of constitutional interpretation based upon the text of the Constitutional and original meaning of the text, has been developed to criticize the Warren and Burger Court’s decisions of making constitutional rights based upon a theory of living constitutionalism. Originalists argue that incorporation of current values is the obligation of the representative, not the job of the court. In Dobbs the Supreme Court delivered an opinion that Roe was egregiously wrong and on a collision course with the Constitution. Six Justices in majority opinion in Dobbs are members of, or otherwise affiliated with the Federalist Society. The Society, which was founded to promote conservative and libertarian beliefs such as limited government and judicial restraint in 1982, has grown to be the most influential legal network. Though the Society is accused of making the Court politicized, what we as foreign scholars should learn from the Society is the intellectual culture that the Society is focusing on. The Society has accumulated intellectual capital by way of reasoned debate and robust discussion.

Although constitutional originalism has attracted a remarkable degree of public and professional attention over the past several decades, little research has been conducted on the intellectual roots of modern originalism. This Article finds that American law schools housed few originalist theorists through much of the 1970s and early 1980s. However, after Edwin Meese III became U.S. Attorney General in 1985, the Department of Justice constructed a vibrant academy in exile, with government lawyers leading the way in the early development, theorization, and exercise of originalism. In addition to becoming the official mode of constitutional interpretation for Meese and the DOJ, originalism started to gain followers on the federal bench and within conservative social movements during the second half of the 1980s. As constitutional originalism grew in influence and professional use, academic interlocutors began engaging with and reimagining originalism more intently.

History might have stopped for the Polish Constitutional Court in 2015–2016. After thirty years of building an impressive resume as one of the most influential and successful European constitutional courts and living proof of ‘the rule of law in action’, the Court has fallen under the relentless attack of a right-wing populist government and succumbed to it. This paper moves beyond the hitherto dominant perspective of ‘here and now’ and lawyers’ fixation on ‘the boat’, and instead focuses more on the journey and important lessons the journey might teach us and enhance the understanding of ‘our boat’. The Polish case (‘the boat’) is much more than just an isolated example of yet another government going rogue. An important European dimension colors what has transpired in Poland over the last twenty months. To understand what has happened in Poland and why, one has to take a longer view and revisit not only its 2004 accession, but also its 1989 constitutional moment. The constitutional debacle in Poland must be but a starting point for a more general analysis of the processes of the politics of resentment and constitutional capture that strike at core European principles of the rule of law, separation of powers and judicial independence.

The process of formation of the Austrian judicial system on the basis of the Basic Constitutional Laws «On the Judiciary» and «On the Establishment of the State Tribunal» of December 21, 1867, is considered. The order of formation and functioning of the State Tribunal of Austria during 1867–1918 is studied. The functions, powers of the State Tribunal and the procedure for considering court cases are analyzed. The main attention is paid to the analysis of the formation of the professional composition of the State Tribunal of Austria. In particular, it is found that under § 1 of the Basic Constitutional Law «On the Establishment of the State Tribunal» the purpose of this body was to resolve disputes with various branches of government and local government, claims of provinces, legal entities and individuals to kingdoms, regions as well as the state as a whole, if such claims did not fall within the competence of courts of general jurisdiction, citizens' complaints about the violation of their constitutional rights, after consideration of these complaints in an administrative manner. The members of the State Tribunal were highly educated and highly professional persons of Austria at that time. About one-fifth of the members of the State Tribunal were law professors who worked at the universities of Vienna, Prague, Krakow, as well as Lviv. Judges and lawyers had a strong representation in the State Tribunal. The State Tribunal made the final decision in cases between the judiciary and the public authorities as to whose jurisdiction these powers belonged to. It consisted of a president, a vice-president, 12 permanent members and 4 deputies, appointed for life by the Austrian emperor from among the candidates recommended by the Chamber of Deputies and the House of Lords (Reichsrat/Council of State). Positions at the State Tribunal were considered honorable among Austrian civil servants and lawyers. Meetings of the State Tribunal were held every three months and their beginning was reported in the national newspapers. The Austrian judicial system operated on the basis of the Constitution of 1867. It provided for the functioning of the courts of general jurisdiction, Administrative and State Tribunals. The establishment of the State Tribunal gave the right to additional protection of the constitutional rights of citizens in case of abuse of public authorities or their officials.

Constitutional law in the United States is, for most practical purposes, the product of ‘judicial review’, the power of judges to disallow policy choices made by other officials or institutions of government, ostensibly because those choices are prohibited by the Constitution. This extraordinary and unprecedented power, America's dubious contribution to the science of government, has made American judges the most powerful in the world, not only legislators but super-legislators, legislators with virtually the last word. Because lawmaking power divorced from popular will is tyranny, most states have attempted to reconcile the lawmaking power of judges with representative self-government by subjecting all or some judges to some form of popular election. In all but four such states, judges, encouraged and supported by their fellow lawyers in the organized bar—would-be judges and beneficiaries of judicial power—have responded by adopting codes of judicial ethics that limit what candidates for election to judicial office are permitted to say. The effect is to undermine elections as a control on judicial power by limiting criticism of judicial activism, the misuse of judicial power.

The first thing for European lawyers to understand about American law is that the distinction between public and private law is in America seldom noticed. American judicial institutions, unlike those in most other countriees, were not designed merely to resolve civil disputes, but were fashioned for the additional purpose of facilitating private enforcement of what in other nations would generally be denoted as public law. This purpose reflects widespread mistrust of the political institutions and government officials upon whom American citizens would have to depend if private law enforcement were not available, as generally it is. That shared mistrust has ancient roots and is reflected in state and federal constitutional provisions assuring the weakness and ineptitude of American political institutions other than courts, and in the habit of Americans, observed in 1835 by the French observer de Tocqueville, to litigate issues they care most about. As a consequence of these conditions, substantial reliance for the regulation of business is placed on private plaintiffs. Much regulation is done ex post the regulated business conduct in the form of civil money judgments rather than ex ante in the form of official approval or disapproval. It is provided by lawyers serving as private attorneys general. Its aim is to keep business executives alert to the risks their business decisions may impose on others.

Konstitusiya - dövlətin əsas qanunu, insan və vətəndaşların hüquq və azadlıqlarını bəyan edən və təmin edən, sosial sistemin əsaslarını, idarəetmə formasını və ərazi quruluşunu, mərkəzi və yerli hakimiyyət orqanlarının təşkilinin əsaslarını müəyyən edən hüquqi aktdır. Konstitusiya bütün mövcud qanunvericiliyin əsasını təşkil edir. [Nikulin.V.V|2012|6] Formal mənada konstitusiya ən yüksək hüquqi qüvvəyə malik olan qanun və ya qanunlar toplusudur. Konstitusiya - konstitusiya quruluşunun dəyərlərinin, institutlarının və normalarının, dövlət orqanlarının dövlət-hüquqi tənzimlənməsinin əsaslarının rəsmi şəkildə təsbit olunduğu ali hüquqi formadır. Hüquqşünaslar konstitusiya anlayışını hüquqi və faktiki olaraq fərqləndirirlər.[Y.İ.Leibo|2004|8] Azərbaycan Respublikası Konstitusiyası 12 noyabr 1995-ci ildə ümümxalq səsvermə əsasında qəbul edilmiş, 27 noyabr 1995-ci il tarixindən qüvvəyə minmişdir. Azərbaycan Respublikası Konstitusiyası 5 bölmə, 12 fəsil və 158 maddədən ibarətdir. AR Konstitusiyasının ümumi xüsusiyyətləri ilə yanaşı, mübahisəli məsələləri də qaldırılmalıdır. Məsələn: “Bizim konstitusiyamız mükəmməldirmi?”, və ya “Konstitusiyamıza dəyişikliklər edilməlidirmi?” Düzgün qurulmuş Konstitusiya, düzgün qurulmuş Konstitusiya Qurululuşunun elementlərindən biridir. Bugün biz Azərbaycan Respublikasının Konstitusiya təhlilinə keçmədən öncə, müxtəlif ölkələrin Konstitusiya quruluşu ilə milli Konstitusiya quruluşumuzun oxşar cəhətlərini göstərəcəyik. Açar sözlər: konstitusiya, konstitusiya müqayisəsi, konstitusiya təhlili, azadlıqlar, hüquq və öhdəliklər Ayan Vugar Manafova Common features and comparative analysis of the constitution of the Republic of Azerbaijan and its constitutional structure with foreign countries Abstract The Constitution is the basic law of the state, a legal act that declares and guarantees the rights and freedoms of man and citizens, determines the foundations of the social system, form of government and territorial structure, the organization of central and local authorities. The Constitution is the basis of all existing legislation. In a formal sense, a constitution is a law or set of laws that has the highest legal force. The Constitution is the highest legal form in which the values, institutions and norms of the constitutional system, the foundations of state and legal regulation of state bodies are officially established. Lawyers distinguish between legal and factual notions of constitution. The Constitution of the Republic of Azerbaijan was adopted on November 12, 1995 on the basis of a nationwide vote, and entered into force on November 27, 1995. The Constitution of the Republic of Azerbaijan consists of 5 sections, 12 chapters and 158 articles. Along with the general features of the Constitution of the Republic of Azerbaijan, controversial issues should also be raised. For example: "Is our constitution perfect?", Or "Should our constitution be changed?" A well-established Constitution is one of the elements of a well-established Constitutional Structure. Today, before moving on to the constitutional analysis of the Republic of Azerbaijan, we will show the similarities between the constitutional structure of different countries and our national constitutional structure. Key words: constitution, constitutional comparison, constitutional analysis, freedom, rights and responsibilities

On April 25-29, 2022, an All-Russian conference with international participation “Problems and Prospects for the Development of Local Self-Government in the Russian Federation and Foreign Countries” was held at the Law Institute of the Peoples’ Friendship University of Russia on the basis of the Department of Municipal Law. More than 200 scientists and practicing lawyers from the Russian Federation and foreign countries took part in the Conference. The Conference has acquired a traditional character and is being held for the sixth time. The 2022 conference was marked by a significant increase in the number of participants from different Russian regions, mostly by state and municipal employees. The additional relevance of the conference was caused by the ongoing municipal reform in Russia, designed to concretize the provisions of the 2020 constitutional reform. Besides reports by leading scientists and practitioners, the Conference included a student section “Young Scientist”, as well as a scientific seminar in Spanish on the topic “Decentralization in the framework of Peruvian constitutionalism”. Presents a general description of the conference, and the contents of the plenary meetings and sessions.

The 2007 joint National Association of Muslim Lawyers (NAML) andNationalMuslimLawStudentsAssociation (NMLSA) conference took placeon 9-11 November in San Francisco. Both NAML and NMLSA are rapidlygrowing organizations with many young Muslim students now deciding toenter the legal profession, a field in which they have been historically underrepresented.This year’s theme, “Protecting America’s Promise,” could nothave been more appropriate.The conference was kicked off by an electrifying talk by Jameel Jaffer,co-author of Administration of Torture: A Documentary Record from Washingtonto Abu Ghraib and Beyond (Columbia University Press: 2007) anddirector of the ACLU’s National Security Program. He detailed the mannerin which the Bush administration has implemented a systematic program oftorture since 9/11, and how it has done this without significant challengefrom the other two branches of government: Congress and the judiciary.The first plenary session, which addressed the topic of “Investigatingand Prosecuting Terrorism Cases: Seeking Justice while Upholding ConstitutionalPrinciples,” focused on the tension between bringing alleged terroriststo justice and upholding core constitutional rights and protections,including the accused’s rights to counsel, a speedy trial, and to confront theevidence presented by the plaintiff. The second plenary session, “The Impactand Legality of U.S. CounterterrorismPolicies Overseas,” discussedwhetherthe United States has accurately framed the terror threat and how its policieshave inflamed or diminished that threat. The session also explored the legalityand effectiveness of arbitrary detention, torture, extraordinary rendition,and other counterterrorism policies.The various parallel sessions throughout the conference addressed amyriad of topics germane to the legal profession in general, as well as toMuslims and the law in particular. In a session entitled “Leveraging LegalResources for the Benefit of the Muslim American Community: A TrainingSession for Lawyers,” attendees learned some of the basic laws and challengesfacing Muslim Americans from experienced criminal defense andwith pdfFactory ...

Abstract The promulgation of the new Italian Law for the protection of competition and the market urges a comparison with the corresponding Spanish legislation, taking also account of its evolution.In 1963 a first competition law was introduced in Spain as a consequence of a request by the United States, whose intention was to increase its business activities in Spain. Another justification of the interest of Spain for introducing this law was the idea that it could be a step forward the European Common Market.This law was not very effective and, furthermore, its life has not been very easy, though it included the main legal definitions of the EEC Treaty, in particular provisions for cartels and for abuse of a dominant position. In addition, the Spanish law introduced a definition for «dominant position».In order to implement the law, two organisms have been created: the «Service for the Defence of Competition” and the Tribunal having the same name.Both the law and the administrative system organized on its basis became almost useless, because for the first two decades very few decisions had been taken and the only proposal by the Tribunal to the Government for inflicting a sanction was not approved. By consequence, the Tribunal made no other attempts to propose measures to the Government.The revival came after the introduction in Spain of the Constitution, which was promulgated in 1978 and which established, in art. 38, a free-enterprise system in the framework of a market economy to be protected by the public authorities.A judgement by July 1st, 1986, of the Constitutional Court, confirmed that competition is a component of the market economy which protects rather than restrict the freedom of enterprise.By the end of 1985 the Service for the Defence of Competition started a new life. The same happened with the activities of the Tribunal. The number of examinations increased and after 1988 the Tribunal tried again to inflict sanctions, and it was successful.A new law for the protection of the competition was approved by the Parliament on July 17th, 1989 and is in force in Spain since that time. It is founded on the EEC Treaty and it also benefits from the experience with the previous law.Cartels and abuse of dominant position are the main objects of the law which introduced, in addition, the case of «unfair competition».The Tribunal can injunct to the undertakings to suspend their action and to eliminate its consequences. Another innovation of the law was the attribution to the Tribunal of the power to inflict fees up to 150 million pesetas (about 1,7 billion Italian lire), to be increased until the 10 per cent of the turnover.As it was with the first law, two organs are committed to the safeguard of competition: the Service for the Defence of Competition and the Tribunal. The Service has the assignment to start preliminary investigations, to supervise the enforcement of the judgements of the Tribunal, to keep the register with the annotations of authorizations, prohibitions and concentrations and to make studies on the economic system.The Tribunal is an organ of the Ministry for Economy and Finances, but is functionally independent. Its eight members (economists and lawyers) and the president are appointed by the Government for six years and can be confirmed. The president is Secretary of State and the members have the rank of general directors. Decisions are taken by the Tribunal with a majority of six votes (including that of the president or of the vicepresident).Apart from its judiciary powers, the Tribunal can express opinions and give advices upon request by the Parliament, by the Government or by Ministers, as well as by local governments, by unions and by organizations of producers and consumers.The Tribunal has also the power to authorize agreements and other actions prohibited by the competition legislation, on the basis of these reasons: 1) productive improvements or better wholesalers’ organization, technical or technological progress; 2) partecipation by the consumers to the resulting benefits.No limitations to competition can be introduced in order to obtain such results. Competition cannot be eliminated from the market or from a relevant part of it.Such authorizations are not retroactive and can be renewed or revoked.On the subject of economic concentrations, the Tribunal can take action only on request by the Minister for Economy and Finances. The notification by undertakings is voluntary. The advice provided by the Tribunal to the Minister is not binding, since the power to decide on concentrations is entirely under the responsibility of the government.The rules of procedure adopted by the Tribunal and the Service are flexible and effective in order to guarantee the rights of the citizens. The judgements of the Tribunal can be taken to the Civil Courts. Also damage compensation is decided by the Civil Courts.At the moment, there are not yet cases on the basis of the new law and those pending follow the rules of the old law.Some authorizations, instead, have been decided already by the Tribunal whose advice has been requested twice on cases of concentration.New regulations for authorizations by category will be issued in the next future. Other rules for cases of individual authorization will also be provided.The number of cases submitted to the Tribunal increases and the number (as well as the amount) of fees goes up as the public opinion realizes how beneficial can be competition for the general welfare.

This thesis introduces the Solicitor-General as an important actor in the modern Australian constitutional order. The Solicitor-General‘s significance lies in the office‘s role as the final and authoritative legal adviser to government. This function is combined with that of government advocate, defending the legality of government action and protecting the institutional interests of the body politic. This research provides the first portrait of the office from an historical, legal, and lived perspective. I hope that it will be a valuable tool for officeholders and government officials seeking to understand the role. The modern Australian Solicitor-General is a uniquely Australian institution. Its design is underpinned by the objective of creating an independent, exclusively legal officer to complement the Australian Attorney-General, who has become increasingly political. On the one hand, the office‘s framers sought to create an office that would be beyond criticism because of improper political or administrative influence. On the other, the officeholder‘s continuity of service to the Crown would mean they would be understanding of, and responsive to, government‘s interests. This thesis considers the extent to which this delicate balance has been achieved. It embarks upon an analysis of the legal position, complemented by a qualitative analysis of interviews with Solicitors-General, and others closely associated with the office. I conclude that removal of the Solicitor-General from the political realm has not been wholly achieved. However, I argue that politics and the public interest remain legitimate, and not inappropriate, influences on the office in many circumstances. The Solicitor-General acts as counsel for the Crown. The Crown‘s legitimacy rests on a complex amalgam of democratic and liberal theory that emphasises empowerment and the necessity of restraint. Because of the Solicitor-General‘s close relationship with the Crown, it is inevitable that political and public interest considerations continue to influence and inform the office. These considerations dictate that the advisory and advocacy functions must be performed differently, they influence how the office ought to resolve legal ambiguity, and they import an obligation to advise the government, not only on the legal position, but on the impact of policies on the whole of government, the long-term interests of the polity, and those principles that underpin our constitutional order – which I have termed ‘core government principles‘. Emphasis was placed on the structural independence of the statutory office when it was created. However, in practice the office‘s independence largely rests on the commitment of individual officeholders to this independence. This commitment can be compromised because the office operates in a wider bureaucratic and government setting where at times it may be competing for legal work. My findings reveal that these and other pressures have resulted in two different approaches. Both have the object of securing the place of the Solicitor-General in the government order, but each emphasises the importance of independence or involvement. I call these the ‘team member‘ and ‘autonomous expert‘ approaches.
Thesis (Ph.D.) -- University of Adelaide, Law School, 2012

This chapter evaluates the constitutional framework of the United Kingdom, revealing a disturbing new settlement of State power. In particular, it hones in on the ‘Westminster Model’ of government which advertises a strict separation of powers supposedly insulating judges from direct executive influence. An altogether different reality emanating from the archival trove of intergovernmental files is found; one which challenges the grundnorm of judicial independence embedded within the Westminster model of governance. Although Executive dominance of the judiciary runs contrary to basic texts and beliefs, this chapter lays out an alternative perspective which implicates the senior judiciary in subterranean policymaking that has led to the steady erosion of procedural due process. It examines where the Civil Service fits into this picture, and draws attention to its servants’ inherent shortcomings as ‘bureaucrats of the law’ having assumed responsibility in large part for the body of sub-standard work distributed under the misnomer: ‘Judges’’ Rules. It explains how, on the critical issue of an individual’s vulnerability when confronted by police power, civil servants, tasked with furthering the ‘public interest’, were far more adept at bolstering ‘police interests’, with backing from the then Head of the Judiciary (Lord Chancellor) and his Law Officers (the Attorney-General and Solicitor-General). By documenting key historical events that impacted upon the criminally suspected or accused, awareness of which has been muted or unknown, this Chapter explains how the doctrine of the Separation of Powers is contravened and the principle of judicial independence muddied to the point of non-recognition.