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Dissertations / Theses on the topic 'Judicial review'
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1
SCHETTINO, JOSE GOMES RIBERTO. "JUDICIAL REVIEW AND PROCEDURAL JUDICIAL ACTIVISM." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2008. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=13355@1.
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O controle judicial de constitucionalidade teve sua origem nos Estados
Unidos com o julgamento de Marbury v. Madison, em 1803. A partir de uma
análise histórica do desenvolvimento desse precedente e do desenvolvimento do
judicial review no referido país, bem como do nascimento da jurisdição
constitucional européia de matiz kelseniano, demonstra-se a expansão da
atividade judicial para searas não originariamente imaginadas pelos ideólogos do
controle de constitucionalidade das leis pelo Judiciário. Conceitua-se então o
fenômeno como ativismo judicial e, após, distingue-se-o, assim, em ativismo
judicial de índole material ou substantiva do de aspecto processual ou formal.
Tendo, desse modo, como premissa a historicidade do controle judicial de
constitucionalidade e a influência que os modelos americano e europeucontinental
lograram no Brasil, analisa-se a expansão da atividade jurisprudencial
do Supremo Tribunal Federal nos últimos anos, seja pelo alargamento dos limites
de sua competência constitucional seja pela extensão temporal e funcional dos
efeitos de suas decisões, como resultado de um ativismo judicial de caráter
processual.Judicial review of legislation originated in the United States of America with the ruling in the Marbury v. Madison case, back in 1803. The expansion of judicial activity into domains not originally imagined by the ideologues of judicial review will be expounded by means of a retrospective analysis of doctrine and case-law arising from said ruling in the USA, as well as of the rise of Kelsenfashioned constitutional adjudication in Europe. Such phenomenon is herein conceptualized as judicial activism and henceforth marked as material or substantive judicial activism as distinct from the procedural or formal type. Premised, thus, on the historical nature of judicial review and the influence of both the American and the European models have born on Brazil, an analysis is made of the expansion of Supremo Tribunal Federal adjudication in Brazil in the past few years, be it through the widening of its constitutional jurisdiction, be it through the enlargement both in duration and in function of the effects of its rulings as a result of procedural-based judicial activism.
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Magalhâes, Pedro C. "The limits to judicialization legislative politics and constitutional review in the Iberian democracies /." Connect to this title online, 2003. http://rave.ohiolink.edu/etdc/view?acc%5Fnum=osu1046117531.
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Thesis (Ph. D.)--Ohio State University, 2003.Title from first page of PDF file. Document formatted into pages; contains xvii, 398 p.: ill. Includes abstract and vita. Advisor: Richard Gunther, Dept. of Political Science. Includes bibliographical references (p. 364-398).
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Yang, Fuhao. "Post-WTO judicial review in China inspiration, impetus and progress : establishing an independent judicial review within the review mechanism /." Click to view the E-thesis via HKUTO, 2005. http://sunzi.lib.hku.hk/hkuto/record/B36635716.
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O'Brien, Patrick. "The democratic objection to judicial review." Thesis, University of Oxford, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.543632.
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Yang, Fuhao, and 楊芙皓. "Post-WTO judicial review in China: inspiration, impetus and progress : establishing an independentjudicial review within the review mechanism." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2005. http://hub.hku.hk/bib/B36635716.
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Chaudhury, Shirin Sharmin. "The scope of the right to life and the Indian constitution : an essay in law and theory." Thesis, University of Essex, 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.313098.
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Kaminski, Jessika Torres. "Judicial review, instituição políticas e processo decisório." reponame:Repositório Institucional da UFPR, 2013. http://hdl.handle.net/1884/31666.
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Resumo: O presente trabalho tem por objetivo analisar as decisões do Supremo Tribunal Federal ante o prisma do processo legislativo estadual e conferir se o mesmo é ou não um ator com poder de veto no conceito de George Tsebelis, para então, verificar algumas hipóteses colacionadas a respeito da influencia do governador frente as decisões da Assembleia Legislativa. Desta forma, as respostas buscadas são para responderem se o STF veta igualmente ou diferentemente as decisões federais e estaduais, se os legitimados para propositura de ações de controle concentrado podem ser absorvidos, restringidos, e, se o número de legitimados na introdução da judicialização aumenta a estabilidade decisória e reduz o poder de agenda (do governador/coalizão) e a capacidade decisória de coalizões majoritárias (maioria governista) no processo decisório estadual. Para tanto, o método utilizado é tanto o qualitativo, como o quantitativo, e revelaram que o STF tem sido um ator presente nas decisões estaduais, alterando-as e tem sido buscado, especialmente pelo governador, face a assembleia legislativa quando alguma lei estadual lhe desfavorece ou não é competência constitucional da assembleia em legislá-la. O que se pecebe é uma restrição ao processo legislativo estadual, desde as competências previstas, até a legislação que propõe, sendo o STF um importante ator nestas decisões. Os resultados ainda indicam que os legitimados não são restringidos, não há como ter este controle, ainda que com uma coalizão forte estadual, aumentando, portanto, a estabilidade decisória.
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Zhai, Guoqiang. "The practice of judicial review in China." Pontificia Universidad Católica del Perú, 2013. http://repositorio.pucp.edu.pe/index/handle/123456789/115759.
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The author classifies constitutional control models in the world inthree groups: Constitutional Court model, judicial revision and parliamentary control. China’s model is the last one. Then, underlines, two main goals of constitutional control: human rights protection and constitutional control of the legal system. Finally, suggests a debate about which body should bein charge of the constitutional control, whether that important work shall continue under the National People’s Congress, become a non legislative body or if it shall stay in charge of China’s Superior Court.El autor clasifica en tres grupos los modelos de control constitucional en el mundo: el modelo de Tribunal Constitucional, el derevisión judicial y el control parlamentario, ubicando a China en este último. Posteriormente, resalta las dos finalidades principales del control de constitucionalidad: la protección de los derechos humanos y el control de constitucionalidad del sistema legal. Finalmente, el autor plantea el debate sobre el órgano que debería estará cargo del control de constitucionalidad, vale decir, si esa importante labor debe continuar en la Asamblea Popular Nacional, transformarse de un órgano legislativo a uno no legislativo o si debe quedar a cargo de la Corte Superior de China.
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Lemieux, Scott. ""Constitutional politics and the political impact of abortion litigation : judicial power and judicial independence in comparative perspectives" /." Thesis, Connect to this title online; UW restricted, 2004. http://hdl.handle.net/1773/10756.
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Ura, Joseph Daniel Vanberg Georg. "The effects of judicial review in American politics." Chapel Hill, N.C. : University of North Carolina at Chapel Hill, 2006. http://dc.lib.unc.edu/u?/etd,349.
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Thesis (Ph. D.)--University of North Carolina at Chapel Hill, 2006.Title from electronic title page (viewed Oct. 10, 2007). "... in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Political Science." Discipline: Political Science; Department/School: Political Science.
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Campbell, C. D. "The conception of public power in judicial review." Thesis, University of Cambridge, 2006. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.597252.
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The central thesis of this dissertation is that for the purposes of English domestic judicial review, public power is best conceived of as being synonymous with monopoly power; in other words, power that operates free from effective competition. The dissertation is divided into three parts. In the first part, the test currently relied on by the English courts for distinguishing between public power and private power in the context of judicial review are examined, and their deficiencies identified. It is contended that each test suffers from one or more of the following problems: it lacks a normatively attractive underpinning; it cannot be coherently applied in practice; and the circumstances in which power will be subjected to judicial review pursuant to the application of the test bear little resemblance to the circumstances in which the courts actually assume review jurisdiction. Consideration is also given the first part of the dissertation to jurisprudence relating to the Human Rights Act 1998, European competition law and the direct effect of European Community directives, to ascertain whether that jurisprudence might be of assistance in the determining whether power is public for the purposes of English domestic judicial review. It is concluded that that jurisprudence is of no assistance. In the second part of the dissertation, the conception of public power as monopoly power is outlined, and arguments in favour of such a conception advanced. To begin, normative and functional arguments in support of the conception of monopoly power as public power are advanced. Then, it is contended that the circumstances in which power will be subject to the court’s review jurisdiction pursuant to the monopoly power conception of public power very closely match the circumstances in which the courts actually assume review jurisdiction. Finally, it is argued that underlying the conception of public power advanced in the dissertation is a concern to protect people against the adverse effects of power exercised in contravention of the principles of good administration. That concern, it is suggested, also pervades the law relating to standing, the grounds of review, and remedies. The third part of the dissertation examines aspects of the operation of the monopoly power conception of public power. Hence, for instance, the circumstances in which power will be monopolistic are elaborated upon. To lend a concrete context to that examination, it is conducted in the context of the form of power generally known as privatized power, but referred to in the dissertation, for reasons that are explained, as divested power. Further, consideration is given to the manner in which the successful bringing of review applications against the monopolistic exercise of divested power may be impeded by the unavailability of certain grounds of review with regard to divested power, and also by the operation of the doctrine of deference, the doctrine of exhaustion and privative clauses.
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PINTO, JOSE GUILHERME BERMAN CORREA. "COMPARATIVE CONSTITUTIONAL LAW AND WEAK-FORM JUDICIAL REVIEW." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2013. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=22217@1.
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PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIROCOORDENAÇÃO DE APERFEIÇOAMENTO DO PESSOAL DE ENSINO SUPERIOR
Até os anos 1980, tratar de controle de constitucionalidade no âmbito do direito comparado significava ignorar a prática constitucional desenvolvida em boa parte dos países da família da common law. Isso porque o Reino Unido, juntamente com algumas de suas ex-colônias (como Canadá, Nova Zelândia e Austrália, além de Israel, cujo território fora um protetorado inglês antes de se tornar um Estado independente), apegados ao dogma da soberania do Parlamento, resistiam em reconhecer a juízes não eleitos competência para invalidar atos emanados dos legítimos representantes do povo. O cenário começa a mudar com a aprovação da Carta de Direitos e Liberdades canadense, em 1982. Nesta ocasião, os direitos fundamentais foram recolhidos em um documento jurídico dotado de supremacia e rigidez, tendo sido facultado a juízes e tribunais invalidar normas que não os respeitassem. Mas, para conciliar a nova prática com a tradição constitucional habituada à supremacia do Parlamento, alguns arranjos foram feitos, de forma a permitir que a última palavra em matéria de interpretação de direitos constitucionalmente protegidos permanecesse com o legislador. Surgiu, assim, um novo modelo de controle de constitucionalidade, no qual o judiciário possui um papel importante, mas não determinante, na proteção a direitos fundamentais. Este modelo, aqui chamado de controle fraco de constitucionalidade, serviu de inspiração para que o próprio Reino Unido e outras de suas ex-colônias adotassem alguma forma de judicial review entre os anos que marcaram a virada do século XX para o XXI. Nesta tese, pretende-se apresentar as características desse novo modelo, contrapondo-o ao modelo tradicional (forte) de controle de constitucionalidade e, ao final, fazer reflexões sobre a possível recepção do novo sistema em países integrantes da família romano-germânica.
By the 1980s, to approach judicial review in the context of comparative law meant to ignore the constitutional practice developed in a number of members within the common-law family of nations. This happened because the United Kingdom, along with some of her former colonies (such as Canada, New Zealand and Australia, besides Israel, whose territory had been an English protectorate before becoming an independent state), attached to the principle of Parliament s sovereignty, resisted the endowment of unelected judges with the power to invalidate acts performed by the people s legitimate representatives. The scenario began to change with the adoption of the Canadian Charter of Rights and Freedoms in 1982. On that occasion, fundamental rights were put into a legal document tagged with supremacy and rigidity; judges and courts having been authorized to invalidate norms that clearly did not respect such rights. However, to accommodate the new practice without sacrificing the constitutional tradition more accustomed to the sovereignty of Parliament, some arrangements were made in order to allow that the last word on the interpretation of constitutionallyprotected rights would remain with the legislator. Thus a new pattern of judicial review appeared in which the Judiciary plays a significant, but not decisive role in protecting fundamental rights. This pattern, herein called weak-form judicial review, inspired the UK herself and other former colonies to adopt some form of judicial review, in the years that marked the turn of the 20th century to the 21st. The present paper intends to present the characteristics of this new pattern, comparing it to the traditional (strong) judicial review pattern, and it eventually elaborates on the possible receptivity to the new system by member countries of the civil law family of nations.
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Herrera-Martin, C. R. "Judicial review of expropriation : the case of Mexico." Thesis, University College London (University of London), 2014. http://discovery.ucl.ac.uk/1456418/.
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The emergence of a more visible and powerful judiciary in Mexico in the last 20 years fits a pattern seen in new democracies all over the world. Democratization and judicialization in post-authoritarian regimes seem to converge, at times acting as mutually reinforcing processes. As part of the strengthening of the courts, the role of judicial review of administrative action has expanded considerably and it has given them a bigger role determining the boundaries of the relationship between citizens and the administration. This thesis looks at one instance of judicialization of administrative law using judicial review of expropriation in Mexico as a case study. Mexico has had some form of constitutional review since the nineteenth century, but its role has been largely ignored because Mexico’s system of government for the most part of the twentieth century can be described as a dominant party system in which a single party governed for almost 70 years. The Mexican political system was somewhere in between a full authoritarian regime and a democracy. In this context, formal judicial independence was severely limited and it was assumed that the courts never challenged the executive branch and were completely subordinate. This research examines how the Supreme Court in Mexico decided cases in which owners challenged expropriation orders between 1917 and 2008 and it concludes that judicial review of administrative action in Mexico was stronger than what is generally presupposed and that this judicialization of administrative law is increasingly having some negative consequences.
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Thomson, Stephen. "The constitutional basis of judicial review in Scotland." Thesis, University of Edinburgh, 2014. http://hdl.handle.net/1842/25785.
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The thesis examines the constitutional position of the Court of Session's supervisory jurisdiction. It begins by emphasising the methodological and substantive importance of the historicality and traditionality of law. It then provides a detailed historical account of the emergence of the Court's supervisory jurisdiction, from its inheritance of supervisory functions from emanations of the King's Council to the present-day law of judicial review. Throughout, emphasis is placed on the Court's strong sense of self-orientation in the wider legal and constitutional order, and the extent to which it defined its own supervisory jurisdiction. The court was a powerful constitutional actor and played a strong role in the increasing centralisation and systematisation of the legal order, expanding its supervisory purview through a powerful triumvirate of remedies (advocation, suspension and reduction) and a comprehensive approach to the supervision of a wide range of bodies. The thesis then frames tensions between Parliament and the Court in the context of judicial review of ouster clauses, chosen as a point of heightened inter-institutional tension. This is demonstrated to be an area in which divergent visions of the constitution are evident – Parliament regarding itself as entitled to oust the jurisdiction of the Court to judicially review, and the Court regarding itself as entitled to examine and pronounce on the extent of ouster, including its limitation or exclusion. In attempting to conciliate these divergent constitutional worldviews, the thesis rejects a “last word” approach which prevails in the English judicial review literature. It considers (and rejects), as alternatives, dialogue theories and functional departmentalism. The thesis then advances constitutional narratology as its preferred analytical framework for the accommodation of those inter-institutional tensions, and conciliation of their divergent worldviews. The Court's performance of a constitutional-narratological function facilitates the integration, conciliation and synthesis of legal norms with an existing law and legal system; weaves and coagulates multifarious legal norms into a unified and univocal body of norms; and executes a chronicling, expository and explanatory storytelling function which sets a legally-authoritative narrative to the law. In doing so, the Court performs a distinctive and indispensable constitutional function incapable of fulfilment by Parliament. It is argued that traditionality and functional necessity provide the legal-systemic legitimation for the Court's performance of the constitutional-narratological function. Finally, the thesis considers the institutional specificity of the function, concluding that it is the function, rather than the institution, that is indispensable. However, neither the advent of the Upper Tribunal nor the U.K. Supreme Court suggest at this stage that the Court's performance of that function is waning.
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Fairweather, Patty Allison. "Judicial review state supreme judicial views on balancing civil liberties and public safety/security measures during the global war on terror /." Thesis, Monterey, Calif. : Naval Postgraduate School, 2009. http://edocs.nps.edu/npspubs/scholarly/theses/2009/Mar/09Mar%5FFairweather.pdf.
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Thesis (M.A. in Security Studies (Homeland Defense and Security))--Naval Postgraduate School, March 2009.Thesis Advisor(s): Strindberg, Anders ; Simeral, Robert. "March 2009." Description based on title screen as viewed on April 23, 2009. Author(s) subject terms: Judicial Review, Balancing Civil Liberties, Global War on Terror, Political Spaces, Strategic. Includes bibliographical references (p. 99-106). Also available in print.
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Elliot, Mark Christopher. "The constitutional legitimacy of judicial review in English law." Thesis, University of Cambridge, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.413114.
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Creally, E. P. "Judicial review of safeguard measures in the European Community." Thesis, University of Edinburgh, 1991. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.645128.
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This thesis is an attempt to analyse the jurisprudence of the European Court of Justice in the review of safeguard measures in the European Community. The safeguard measures considered are the Community's anti-dumping and anti-subsidy rules under Regulation 2423/88, safeguard measures under Regulation 288/82 and rules to combat illicit commercial practices under Regulation 2641/84. These instruments are part of the European Community's arsenal designed to counteract unfair trade practices of Third Countries. Emphasis is placed on the anti-dumping rules given that the measures imposing anti-dumping duties are most frequently challenged before the Court. The thesis begins with a synopsis of the Community's competence to deal exclusively with these matters. The respective roles of the Community authorities and the Member States in the adoption of protective measures is also considered. In order to understand the rationale of the Court's rulings in cases involving safeguard measures each of the instruments are viewed from an international and European perspective. The latter involves an analysis of the Community's legislation with respect to the substantive and procedural rules governing the imposition of protective measures to combat unfair trade practices of Third Countries. Having placed the safeguard measures in their proper perspective, judicical review by the Court is viewed first from the standpoint of an applicant's locus standi or standing to challenge a Community act imposing protective measures. If an applicant has locus standi he may apply to the court for an award of interim measures pending the outcome of the main application. The rules relating to such awards are considered and the Court's rulings in cases involving safeguard measures are analysed. Judicial review 'proper' in the sense of the Court's review of the merits of the cases that have come before it to date are considered in the light of the grounds of review in Article 173 of the EEC Treaty. This final chapter attempts to determine the extent to which the Court is prepared to review the findings of the authorities upon which the measures were adopted.
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PINTO, JOSE GUILHERME BERMAN CORREA. "JUDICIAL REVIEW, GENERAL REPERCUSSION AND THE WRIT OF CERTIORARI." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2006. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=9370@1.
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CONSELHO NACIONAL DE DESENVOLVIMENTO CIENTÍFICO E TECNOLÓGICOO Judiciary Act, aprovado em 1925, tornou o writ of certiorari a principal forma de acesso à Suprema Corte dos Estados Unidos da América. Como seu exame de admissibilidade, diferentemente dos recursos ordinários, é feito discricionariamente (ou seja, não é tido como um direito da parte), os membros daquele tribunal passaram a escolher as questões constitucionais que estariam a merecer sua consideração. Esta solução foi adotada como forma de amenizar a carga de trabalho dos Justices, responsáveis pela uniformização do direito federal aplicável em todo o país, e trouxe importantes conseqüências ao papel desempenhado por eles no sistema jurídico-político estadunidense. A análise do writ of certiorari constitui o objeto da primeira parte desta dissertação, cuja relevância justifica-se pela aprovação, no final de 2004, da Emenda Constitucional nº 45, que concedeu ao Supremo Tribunal Federal poder semelhante, consistente na possibilidade de rejeição de recursos extraordinários por ausência de repercussão geral das questões constitucionais ali discutidas. A análise das conseqüências da ampliação do escopo do writ of certiorari e das modificações que acarretou na atuação da Suprema Corte norte-americana destina-se a fornecer elementos concretos para que se possa ao menos tentar prever o impacto que a repercussão geral - ainda não regulamentada pelo legislador ordinário - poderá ter sobre o Supremo Tribunal Federal e sobre o recurso extraordinário.
The Judiciary Act, adopted in 1925 in the United States of America, transformed the Writ of Certiorari into the main form of appeal to the U.S. Supreme Court, as it enabled the examination of admissibility, as opposed to the mandatory appeal, to be performed discretionarily (i.e. examination is not deemed a right of the Party). Therefore, members of the U.S. Supreme Court now select which particular constitutional issues deserve their consideration. This solution, adopted as a way to minimize the workload of the Justices responsible for making uniform federal laws applicable throughout the U.S., brought significant consequences to the role played by those Justices in the American legal and political system. An analysis of the Writ of Certiorari is the object of the first part of this monograph. Its relevance is straightforwardly justified by the approval, in late 2004, of the Brazilian Constitutional Amendment no. 45, which grants our Federal Supreme Court a similar power, i.e. the chance to dismiss extraordinary legal remedies on account of the constitutional issues therein discussed lacking General Repercussion. Finally, an analysis of the writ of certiorari scope and of the relevant changes introduced in the U.S. Supreme Court´s routine attempts to put forward concrete elements toward an incipient anticipation of the impacts which General Repercussion should eventually produce on the Brazilian Supreme Court as well as on extraordinary legal remedies themselves. (Our regular legislators have not yet reviewed General Repercussion in detail, though.)
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Nanopoulos, Eva Eustasie Ermina. "Judicial review of anti-terrorism measures in the EU." Thesis, University of Cambridge, 2012. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.610483.
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Arancibia, Jaime. "The intensity of judicial review in the commerical context." Thesis, University of Cambridge, 2007. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.612706.
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Mandal, Sangeeta. "Judicial review under indian constitution: its reach and contents." Thesis, University of North Bengal, 2014. http://ir.nbu.ac.in/handle/123456789/2639.
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Fisseha, Yonatan Tesfaye. "Who interprets the constitution: A descriptive and normative discourse on the Ethiopian approach to constitutional review." Thesis, University of the Western Cape, 2005. http://etd.uwc.ac.za/index.php?module=etd&.
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This study explored the process of constitutional interpretation and constitutional review in Ethiopia and determined the role of the courts. It examined the different suggestions made by different authors and officials regarding the respective role and function of the courts and the House of Federation in interpreting the constitution and exercising the power of constitutional review. It also seeked to inquire the counter-majoritarian problem which focused on the relationship between judicial review and democracy. The thesis also inquired into the legitimacy of the Ethiopian approach to constitutional review. In this regard it seeked to determine whether the approach represents and adequate response to the counter-majoritarian problem. It also seeked to determine whether Ethiopia has adopted an institution that is well suited, competent and impartial to discharge the task of constitutional interpretation and constitutional review.
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Fisher, Elizabeth Charlotte. "Risk, expertise and judicial review : scope of review and decision making under scientific uncertainty." Thesis, University of Oxford, 1998. https://ora.ox.ac.uk/objects/uuid:1a252259-a017-4568-a31d-3a94837e5bfe.
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Judicial review of risk regulation rule making in the United States has been a highly controversial area of administrative law. How a court should substantively review expert decision makers acting under scientific uncertainty is by no means clear. While there has been much criticism, few answers have been forthcoming, and the present approach taken by the courts has led to ossification of the rule making process. While risk regulation may seem the product of late twentieth century America, courts in carrying out judicial review have been tackling the problems created by expertise and scientific uncertainty since at least the turn of the century. The courts' approach in applying such scope of review standards as the substantial evidence and arbitrary and capricious tests has been largely determined by their understanding of what is an expert administrative agency. Two models of administrative expertise can be identified - the deliberative and the rationalist. The rationalist expert agency is defined as an analytical fact finder which does not stray outside precise legislative boundaries. In contrast the deliberative expert agency is a complex problem solver in the public interest. It engages in deliberation informed by analysis to solve problems identified by Congress. Through an examination of the impact of these models on scope of review doctrine an appreciation can be gained of why judicial review is presently carried out the way it is and how it can be reformed. In the early half of this century, scope of review doctrine was underpinned by the deliberative model. With the creation of the risk regulatory agencies in the early 1970s there was much confusion over both the role of these new agencies and how the courts should review their decisions. Due to a number of circumstances, both internal and external to risk regulation, judicial review was by 1980 underpinned by the rationalist paradigm. Influential factors included: growing distrust of public administration, hard look review, debates about administrative procedure, and legislative ambiguity. It is argued that the rationalist model is at odds with the task of risk regulators and what is expected of them. It is the rationalist paradigm rather than judicial review per se which has led to the problems of ossification. The deliberative paradigm can and should be the basis for effective judicial review and this is illustrated with a mock judgement.
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Pacelle, Richard L. "The Supreme Court agenda across time : dynamics and determinants of change /." The Ohio State University, 1985. http://rave.ohiolink.edu/etdc/view?acc_num=osu1487259580263227.
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Makris, Maria C. "The distinct use and development of administrative law principles by the European Court of Justice." Thesis, University of Cambridge, 1991. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.240041.
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Al-Ghufli, Saeed M. A. O. "A reconsideration of constitutional review in the United Arab Emirates : 'a posteriori' or 'a priori' review?" Thesis, Aberystwyth University, 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.252170.
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Thomas, Cheryl Anne. "Judicial review of federalism in the United States and Canada." Thesis, University of Oxford, 1989. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.332861.
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Palmer, Ellie. "Judicial Review, Socio-Economic Rights and the Human Rights Act." Thesis, University of Essex, 2009. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.510528.
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Katsapaou, Chrystalla. "The role of judicial review in safe third country cases." Thesis, University of Bristol, 2008. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.500443.
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This thesis provides a study on the role of judicial review in safe third country cases. A 'safe third country case' may be defined as a legal challenge by an asylum seeker against removal from the United Kingdom to a third state in the absence of substantive determination of an application for asylum. A 'safe third country' is defined as a state where an asylum seeker has found some form of protection and from which has moved on, a territory travelled through en route where it is deemed that protection could have been sought, a state where asylum has been requested and previously refused, or any other territory that an asylum seeker may be removed to on the basis of prior connection.
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Obadina, Derek Adetokunboh. "Impact of judicial review on local authority decision-making processes." Thesis, Cardiff University, 1988. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.244814.
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SILVEIRA, HELENA COLODETTI GONCALVES. "LAW AND MODERNIZATION: THE CIVILIZATIONAL ROLE OF THE JUDICIAL REVIEW." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2015. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=26755@1.
Full textAbstract:
PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIROCOORDENAÇÃO DE APERFEIÇOAMENTO DO PESSOAL DE ENSINO SUPERIOR
FUNDAÇÃO DE APOIO À PESQUISA DO ESTADO DO RIO DE JANEIRO
PROGRAMA DE SUPORTE À PÓS-GRADUAÇÃO DE INSTS. DE ENSINO
BOLSA NOTA 10
Considerando que o direito tem sido mobilizado no processo de modernização brasileiro como instrumento de soberania do Estado, a tese discute as oportunidades emancipatórias abertas pelo constitucionalismo democrático da Carta de 1988. A ideia é demonstrar que a disputa pelo sentido da Constituição se transfigurou na própria pauta civilizatória, conduzida de maneira horizontal e plural pela cidadania através do acesso à Justiça. Este seria o sentido da judicialização da política. Todavia, nem sempre os Tribunais assumem o papel de mediador ou representante da soberania popular na sua luta por direitos constitucionalizados. Esse trabalho chama de ativismo judicial a postura imperial da Justiça no que diz respeito à sua capacidade de estabelecer uma agenda política de âmbito nacional, por se considerar o principal, senão o único, intérprete do compromisso constitucional. Sob essas condições, é possível perceber o retorno da ação demiúrgica da soberania monolítica do Estado, todavia, operacionalizada no âmbito da jurisdição constitucional. Essa pesquisa discute e critica as inflexões judicializantes e ativistas do Supremo Tribunal Federal.
Considering that the Brazilian modernization process has been used the law as State s sovereignty instrument, this work discusses the emancipatory opportunities disclosed by the democratic constitutionalism of the 1988 Charter. The goal is to show that the dispute for the meaning of the Constitution ends up being its own civilizational agenda, steered horizontally and plurally by the citizenship through right s litigation. That would be the definition of the judicialization of politics. However, not always the Courts take over this role as the citizenship s mediator or representative. The research will call judicial activism the imperial attitude of the Justice regarding its own ability to establish a national political agenda, because it considers itself as the major if not the only interpreter of the constitutional commitment. Under these circumstances it is plausible to realize the return of the demiurgic action of the monolithic State s sovereignty, however, implemented by the judicial review. This work discusses both judicial and activist inflexions of Brazil s Supreme Court.
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Corkin, Nicola Christine. "Developments in abstract judicial review in Germany, Austria and Italy." Thesis, University of Birmingham, 2011. http://etheses.bham.ac.uk//id/eprint/2835/.
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This thesis investigates the reasons for the change in decision-making patterns in abstract judicial review in Germany, Italy and Austria in the last three decades. The literature on constitutional courts suggests that there are six factors influencing the decision-making of a constitutional court judge: personal political attitudes of the judges, direct influence by political institutions, Black Letter of the Law, Precedent, changes in public opinion and the harmonisation of national law with European law. The empirical data shows that throughout the last three decades the conditions in which legislation is formulated has become more complex through the harmonisation of national law with European Law. This causes the courts to react in three distinct ways: 1. The style of decisions is more interpretative 2. More laws are, at least in part, found unconstitutional 3. The pattern of decisions is leaning towards more unconstitutionality rulings so as to clarify the political framework for future legislation. Worry is expressed by the courts that not all the cases reaching them are referred to them in good intention. Politicians are increasingly using the complexity of the political system to refer cases to the courts on which they would prefer not to take a decision.
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McGarry, John. "Debating the theoretical basis for judicial review : a hermeneutical study." Thesis, University of Central Lancashire, 2008. http://clok.uclan.ac.uk/21908/.
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The purpose of this dissertation is to address the question of how we can constitutionally justify the judicial review jurisdiction of the English courts. Two competing theories are commonly posited as providing this justification: the ultra vires theory and the common law theory. This research consists of a hermeneutical analysis of these two theories; it examines their rationales and the main themes of the debate between their supporters. It also uses immanent critique to reveal a significant lack of 'fit' between judicial review in practice and each of the theories. It is implicit within the two theories that they match the actual exercise of the supervisory jurisdiction. Thus, the lack of fit exposed by the critique brings into question any claims that either theory can provide the constitutional legitimacy for judicial review. The thesis advanced in this dissertation is in two parts. First, it is argued that the doctrine of parliamentary sovereignty operates as a principle. This means that legislation may be balanced against other principles derived from the common law or other statutes. This is in contrast to both the ultra vires and common law theories in which the doctrine is assumed to function as a rule. Second, under this novel conception of parliamentary sovereignty it is not necessary to justify the operation of judicial review by reference to legislative intent or express statutory provision. Rather, the standards of good administration may be rationalized as being developed and applied pursuant to an inherent jurisdiction of the courts.
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au, adt@murdoch edu, and Arnold Laoh. "The availability of international judicial review of government act for breaches of human rights." Murdoch University, 2002. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20061122.131327.
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The main objective of this thesis is to provide description, analysis and criticism on
the existing international instruments for the promotion of respect and protection of
human rights, as well as a suggestion to the international community through the
United Nations mechanism to adopt an additional legal instrument as a
complementary procedure. This, in turn, should serve as an extra-pressure upon the
State governments to bring their internal legal system in the same line as the
international standards for the protection of human rights.
It is being argued in this work that the current international procedures available to
individual alleging their human rights have been abused by State are no longer
sufficient and therefore another procedure should be introduced and put into place.
The chapter "The Case of Indonesia" serves as a good (or bad?) example of State
abusive conduct and remain "untouchable" under international mechanisms.
Despite gross and systematic violations of human rights Indonesian government is
still immune due to executive-heavy legislation system, restricted judicial review as a
result of a corrupt judiciary and impunity of government and other public agencies.
The study fvstly concentrates on the procedures available at international level for
dealing with individual complaint alleging human rights violations. Different
procedures both under Charter and treaty provisions are analysed in the attempt to
describe their advantages and disadvantages. Two Charter-based procedures dealt
with in the discussion cover the communication procedure under the United Nations
Economic and Social Council (ECOSOC) which includes the "1503" procedure.
Treaty-based procedures are given special attention in this thesis which include the
procedure before the Human Rights Committee (HRC), the Committee on the
Elimination of Racial Discrimination (CERD), the Committee against Torture
(CAT) and the Committee on the Elimination of Discrimination against Women
(CEDAW).
The discussion further presents a critical appraisal of those procedures in which the
limitations and weaknesses of the procedures are analysed followed by the suggestion
to adopt an additional procedure to complement the current mechanisms available
to individual seeking remedies for human rights violations. The limitations
of the procedures featured largely by the fact that the decisions resulted from those
procedures are legally non-binding. And this all what an individual can receive after
being allowed to bring hisher petition before the Committee. Before one is
permitted to communicate with one of the Committee hetshe must first meet all the
conditions of admissibility. The condition "exhaustion of all domestic remedies" can
virtually be seen as a hindrance for individual to communicate with the Committee.
Jn order to support this argument several decisions on several individual complaints
handed down by the HRC are presented in this study.
Finally, the study introduces a complementary procedure called International
Judicial Review by which the State Constitutions and legislation can be examined
whether or not they are in conformity with international human rights standards
and norms. If found inconsistent the Constitutions or legislation must be declared
invalid. The power to review is given to the International Court of Justice (ICJ) as
the "principal judicial organ of The United Nations". And as a World Court the
decision made by the ICJ has legally binding power.
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Daly, Thomas Gerald. "Judging democratisation : courts as democracy builders in the post-war world." Thesis, University of Edinburgh, 2015. http://hdl.handle.net/1842/28687.
Full textAbstract:
Can courts really build democracy in a state emerging from undemocratic rule? If so, how they do this, and what are their limits in this regard? This thesis seeks to explore the development since 1945 of a global model of democracy-building for post-authoritarian states, which accords a central position to courts. In essence, constitutional courts and regional human rights courts have come to be viewed as integral to the achievement of, or even constitutive of, a functioning democratic state. The roles courts play in supporting a democratisation process are onerous, and differ starkly from the roles of such courts in long-established democracies of the Global North. Courts in the new democracies of the post-war world have been freighted with weighty expectations to ‘deliver’ on the promises of a new democratic order, while navigating their own place within that developing order–or, in the case of regional human rights courts, inserting themselves into the democratisation process from without. At both the domestic and regional levels, from within and without the state, they are somehow expected to ‘judge’ democratisation. They are required to assess what is needed to support the democratisation process at any given point, especially in light of key deficiencies of the newly democratic order, and to judge when the democratisation context requires a different approach than may be appropriate in a mature democracy, such as the US or Ireland. However, the grand claims made for these courts as democracy-builders in existing scholarship have never been subjected to systematic analysis, nor have the overlapping roles of constitutional courts and regional human rights courts been considered in tandem. This thesis addresses a very significant research gap by drawing together a scattered and fragmented scholarship on the roles of courts in new democracies, integrating discussion of regional human rights courts, providing an innovative conceptual framework for how courts at each level act and interact as democracy-builders, and tracing connections between different normative arguments concerning the roles courts should play. As the first attempt at a wholesale exploration of the effectiveness and viability of the existing global court-centric model for democratisation, this thesis examines what we think courts do as democracy-builders, what they actually do, and what they should do. In doing so, it argues for a significant re-evaluation of how we conceive of, and employ, courts as democracy-builders.
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Laoh, Arnold. "The availability of international judicial review of government breaches of human rights." Thesis, Laoh, Arnold (2006) The availability of international judicial review of government breaches of human rights. PhD thesis, Murdoch University, 2006. https://researchrepository.murdoch.edu.au/id/eprint/144/.
Full textAbstract:
The main objective of this thesis is to provide description, analysis and criticism on the existing international instruments for the promotion of respect and protection of human rights, as well as a suggestion to the international community through the United Nations mechanism to adopt an additional legal instrument as a complementary procedure. This, in turn, should serve as an extra-pressure upon the State governments to bring their internal legal system in the same line as the international standards for the protection of human rights.
It is being argued in this work that the current international procedures available to individual alleging their human rights have been abused by State are no longer sufficient and therefore another procedure should be introduced and put into place. The chapter The Case of Indonesia serves as a good (or bad?) example of State abusive conduct and remain untouchable under international mechanisms. Despite gross and systematic violations of human rights Indonesian government is still immune due to executive-heavy legislation system, restricted judicial review as a result of a corrupt judiciary and impunity of government and other public agencies.
The study fvstly concentrates on the procedures available at international level for dealing with individual complaint alleging human rights violations. Different procedures both under Charter and treaty provisions are analysed in the attempt to describe their advantages and disadvantages. Two Charter-based procedures dealt with in the discussion cover the communication procedure under the United Nations Economic and Social Council (ECOSOC) which includes the 1503 procedure. Treaty-based procedures are given special attention in this thesis which include the procedure before the Human Rights Committee (HRC), the Committee on the Elimination of Racial Discrimination (CERD), the Committee against Torture (CAT) and the Committee on the Elimination of Discrimination against Women (CEDAW).
The discussion further presents a critical appraisal of those procedures in which the limitations and weaknesses of the procedures are analysed followed by the suggestion to adopt an additional procedure to complement the current mechanisms available to individual seeking remedies for human rights violations. The limitations of the procedures featured largely by the fact that the decisions resulted from those procedures are legally non-binding. And this all what an individual can receive after being allowed to bring hisher petition before the Committee. Before one is permitted to communicate with one of the Committee hetshe must first meet all the conditions of admissibility. The condition exhaustion of all domestic remedies can virtually be seen as a hindrance for individual to communicate with the Committee. In order to support this argument several decisions on several individual complaints handed down by the HRC are presented in this study.
Finally, the study introduces a complementary procedure called International Judicial Review by which the State Constitutions and legislation can be examined whether or not they are in conformity with international human rights standards and norms. If found inconsistent the Constitutions or legislation must be declared invalid. The power to review is given to the International Court of Justice (ICJ) as the principal judicial organ of The United Nations. And as a World Court the decision made by the ICJ has legally binding power.
37
Laoh, Arnold. "The availability of international judicial review of government breaches of human rights." Laoh, Arnold (2006) The availability of international judicial review of government breaches of human rights. PhD thesis, Murdoch University, 2006. http://researchrepository.murdoch.edu.au/144/.
Full textAbstract:
The main objective of this thesis is to provide description, analysis and criticism on the existing international instruments for the promotion of respect and protection of human rights, as well as a suggestion to the international community through the United Nations mechanism to adopt an additional legal instrument as a complementary procedure. This, in turn, should serve as an extra-pressure upon the State governments to bring their internal legal system in the same line as the international standards for the protection of human rights.
It is being argued in this work that the current international procedures available to individual alleging their human rights have been abused by State are no longer sufficient and therefore another procedure should be introduced and put into place. The chapter The Case of Indonesia serves as a good (or bad?) example of State abusive conduct and remain untouchable under international mechanisms. Despite gross and systematic violations of human rights Indonesian government is still immune due to executive-heavy legislation system, restricted judicial review as a result of a corrupt judiciary and impunity of government and other public agencies.
The study fvstly concentrates on the procedures available at international level for dealing with individual complaint alleging human rights violations. Different procedures both under Charter and treaty provisions are analysed in the attempt to describe their advantages and disadvantages. Two Charter-based procedures dealt with in the discussion cover the communication procedure under the United Nations Economic and Social Council (ECOSOC) which includes the 1503 procedure. Treaty-based procedures are given special attention in this thesis which include the procedure before the Human Rights Committee (HRC), the Committee on the Elimination of Racial Discrimination (CERD), the Committee against Torture (CAT) and the Committee on the Elimination of Discrimination against Women (CEDAW).
The discussion further presents a critical appraisal of those procedures in which the limitations and weaknesses of the procedures are analysed followed by the suggestion to adopt an additional procedure to complement the current mechanisms available to individual seeking remedies for human rights violations. The limitations of the procedures featured largely by the fact that the decisions resulted from those procedures are legally non-binding. And this all what an individual can receive after being allowed to bring hisher petition before the Committee. Before one is permitted to communicate with one of the Committee hetshe must first meet all the conditions of admissibility. The condition exhaustion of all domestic remedies can virtually be seen as a hindrance for individual to communicate with the Committee. In order to support this argument several decisions on several individual complaints handed down by the HRC are presented in this study.
Finally, the study introduces a complementary procedure called International Judicial Review by which the State Constitutions and legislation can be examined whether or not they are in conformity with international human rights standards and norms. If found inconsistent the Constitutions or legislation must be declared invalid. The power to review is given to the International Court of Justice (ICJ) as the principal judicial organ of The United Nations. And as a World Court the decision made by the ICJ has legally binding power.
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SETARI, ALICE. "THE STANDARD OF JUDICIAL REVIEW IN EU COMPETITION CASES: THE POSSIBILITY OF INTRODUCING A SYSTEM OF MORE INTENSE OR FULL JUDICIAL REVIEW BY THE EU COURTS." Doctoral thesis, Università degli Studi di Milano, 2014. http://hdl.handle.net/2434/232402.
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The work analyses the characteristics of the ‘limited’ standard of judicial review exercised by the EU Courts in the competition field, its evolution over time, and the main criticisms which have been advanced against its alleged shortcomings, in order to understand whether a system of more intense or full judicial review is necessary and warranted at the EU level.
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Jenkins, David 1971. "Judicial review of unlawful combatant detentions under the United States Constitution." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=103149.
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This thesis examines how United States federal courts can review the President's exercise of the war powers to detain American citizens, or non-citizens having similar rights, as unlawful combatants. It argues that the separation of powers doctrine, based on Lockean principles, permits probing judicial review of such an executive detention, where the President exercises the war powers in a way that effectively adjudicates individual rights or impacts upon domestic affairs.The constitutional controversy over unlawful combatant detentions is fundamentally a separation of powers problem. Existing functionalist and formalist theories about the separation doctrine, as well as dichotomous debates about individual rights versus national security, fail to reconcile judicial deference to executive decisions in some war powers cases with closer scrutiny in others. This thesis therefore proposes a new separation of powers theory that explains the existing war powers jurisprudence, while establishing principles upon which courts can vigorously review future executive war powers decisions that interfere with individual rights or impact upon domestic matters, such as with the detention of a citizen as an alleged unlawful combatant.
The thesis first sets out a separation of powers theory based on the political thought of John Locke, placing upon each branch a fiduciary duty to make decisions only in ways best calculated to serve the public good. The "deliberative processes" approach to the separation doctrine, growing out of this fiduciary duty, functionally distributes constitutional power among the branches depending upon which one is most institutionally suited to resolve the matter at hand. Judicial application of the political question doctrine in past war powers cases demonstrates such a Lockean deliberative processes analysis, in the ways that courts have questioned judicial competency to scrutinize the executive's strategic military decisions. Cases dealing specifically with unlawful combatant detentions, in turn, show that judicial competence to review executive military decisions increases when the President functionally adjudicates individual rights of the citizen, a deliberative process for which the courts are more institutionally competent. Accordingly, this thesis concludes that courts can review executive unlawful combatant detentions under adjudicative standards of legality, procedural fairness, and reasonableness.
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Fei, Lanfang, and 费兰芳. "Judicial review of arbitral awards in China: the need for reform." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2012. http://hub.hku.hk/bib/B50533976.
Full textAbstract:
The subject of this thesis is the judicial review of arbitral awards in China. Chinese arbitration law provides a distinct set of rules for reviewing international and domestic awards, which is usually referred to as the dual-track system (“Shuang Gui Zhi”). First, the judicial review standard is dual-track because international awards are subject to procedural and limited review, whereas domestic awards are subject to substantial review. Second, the review procedure is also dual-track because a reporting mechanism under which the lower courts cannot deny an international award without confirmation by the Supreme People’s Court of China is applied to international awards but is not applied to domestic awards.
The following question arises: Should the dual-track judicial review system for arbitral awards be harmonised into a single system, and if so, how should it be accomplished. This question has sparked heated debates among scholars and practitioners. It is important because appropriate and efficient judicial review of awards is essential to the functioning and development of the arbitration system in China.
The research is based on the theory of path-dependent and institutional change. My consideration of the future of the dual-track system is centred on the wisdom of the original policy considerations behind the dual-track judicial review path, the solidity of the institutional foundations of the dual-track judicial review path and feedback on the dual-track system from judicial practice and the arbitration market. The research critically examined the policies and institutions behind the design of the dual-track judicial review and conducted an empirical study of the feedback of the design, which included a comprehensive review of various materials, cases and data relating to the subject.
The thesis concluded that the dual-track review path should be reformed by harmonising the dual-track review standard while maintaining and revising the dual-track procedure. The dual-track review standard should be uniform, and the limited scope of procedural review should be applied to both domestic and international awards. Policy and institutional foundations have failed in the substantial review of domestic awards due to the disruption in boundaries between international business and Chinese domestic business, as well as a weakened distinction between international and domestic arbitration commissions. The case study and the survey provide further empirical evidence that supports my argument, which revealed that the dual-track standard causes chaos and abuse of law in judicial practice and has gained negative feedback from arbitration market participants.
In contrast, the dual-track judicial review procedure should be maintained and revised. The study indicated that the reporting mechanism still acts as a positive force to control the outcome of reviews and secure proper and uniform application of the law. Despite its shortcomings, it still plays an important role in counteracting the negative effect of local protectionism and reinforces confidence of foreign investors in arbitration and within the legal infrastructure in China.
Based on the above findings, the author proposed a new regulatory framework designed to be sufficiently flexible and current for meeting the practical requirements of arbitration, while considering suitable interaction between arbitration bodies and courts. Specifically, the thesis suggested that the Arbitration Law should be revised as a unitary and exclusive legal framework for regulating judicial review of arbitral awards, and for incorporating the rules of enforcement of arbitral awards specified in the Civil Procedural Law. Although separate regimes for domestic and international arbitration should be maintained, the criteria for differentiating various types of arbitral awards should be clarified and redefined. Finally, the thesis made several concrete suggestions for improving specific provisions of the law that govern judicial review of arbitral awards.published_or_final_version
Law
Doctoral
Doctor of Philosophy
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SILVEIRA, HELENA COLODETTI GONCALVES. "JUDICIAL REVIEW AND DEMOCRATIC DEFICITS: A COMMUNICATIVE CRITIQUE TOWARDS MODERN DISTORTIONS." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2009. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=15044@1.
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CONSELHO NACIONAL DE DESENVOLVIMENTO CIENTÍFICO E TECNOLÓGICOO presente trabalho almeja problematizar os déficits democráticos existentes na jurisdição constitucional, partindo da premissa de que o direito decidido pelas Cortes, sob certas condições, pode ter o mesmo efeito desmobilizador sobre o mundo da vida que os sistemas clássicos de ação estratégica (dinheiro e poder), caso utilize o saber jurídico especializado como meio difusor de ideologias disfarçadas pela técnica. Chamaremos a atenção para os riscos envolvendo uma atuação tecnocrática dos tribunais para as relações sociais, no sentido de juridificá-las, e, por conseqüência, subtrair dos atores a deliberação acerca dos rumos de sua comunidade, se valendo, para tanto, de uma suposta neutralidade da norma, capaz de ocultar o exercício elitista de poder político. Para fundamentar a nossa hipótese, será feita a reconstrução dos processos de modernização das sociedades tradicionais, passando pelo Estado liberal até chegar na variante intervencionista. O objetivo é identificar como dois processos distintos de acúmulo de razão – comunicativa e instrumental - se tornaram concorrentes e contraditórios na seletividade específica que marcou o capitalismo ocidental, a culminar com a colonização sistêmica do mundo da vida pela burocracia e economia. Feito o diagnóstico das distorções modernas, e para reforçar a crítica inicial à tecnocracia, será descrito um modelo de Estado constitucional que refuta veementemente o uso sistêmico do direito, e o coloca como principal instituição de defesa do mundo da vida contra os assédios funcionais. Um sistema jurídico comunicativamente engajado não comprometeria a resolução dos problemas de reprodução material da sociedade, mas submeteria o uso do poder político ao poder comunicativo, conferindo-lhe legitimidade em virtude da gênese democrática.
The present work aims to problematize the democratic deficits that possibly exits in the abstract judicial review, starting from the premise that the law which is decided by Courts could have the same demobilizing effect over the lifeworld as the classic systems of strategic actions (power and money) if it uses the specific juridical knowledge as a medium to difuse ideologies disguised as technique. We’ll call attention for the risks to social relations involving a technocratic ruling, which could lead to juridification, and thus taking away from the society the task of deliberating their own social goals, and neutralizes a elitist political power using as resource the presumed technical impartiality. To ground our hypothesis, we are going reconstruct the modernization processes of the tradicional societies, through the liberal state up to the welfare state variant, having as purpose the explanation of how two different processes of rational acumulation – communicative and instrumental – became contradictory and concurrent according to the specific capitalism selection, culminating on lifeword’s systemic colonization by bureaucracy and economy. From this diagnose of the modern distorcion, and to reinforce our inicial criticism of technocracy, we are going to describe a constitutional state model which strongly refuses the sistemic use of law, and places it as the main lifeworld’s institution defense against functional steering. A juridic system communicatively engaged would not compromise the problems of material reproduction of society, but at the same time would submit the political and economic power to communicative power, atributing both legitimacy because law’s democratic genesis.
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FERREIRA, RODOLFO DE ASSIS. "JUDICIAL REVIEW, INTERPRETATION AND MANIPULATION OF THE LEGISLATION THROUGH THE CONSTITUTION." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2017. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=36402@1.
Full textAbstract:
PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIROCOORDENAÇÃO DE APERFEIÇOAMENTO DO PESSOAL DE ENSINO SUPERIOR
PROGRAMA DE SUPORTE À PÓS-GRADUAÇÃO DE INSTS. DE ENSINO
As decisões interpretativas, no caso a interpretação conforme a constituição, inconstitucionalidade parcial sem redução de texto (decisão manipulativa redutiva), decisão manipulativa aditiva, decisão manipulativa substitutiva estão presentes no controle de constitucionalidade brasileiro. Elas são tratadas indistintamente e um aspecto disto é linguístico: a diferença entre identificar uma regra (interpretação(1)) e seguir uma regra (interpretação(2)). As abordagens semânticas permitem esse tipo de diferenciação, mas abordagens pragmáticas parecem têm maiores dificuldades. Dentro do direito, isso pode ser traduzido como a oposição entre a identificação do significado literal, significado ordinário e a identificação do significado intencional, significado finalístico dos documentos normativos. Quanto a seguir regras jurídicas, três modelos são possíveis: o formalismo forte, o formalismo presumido e o particularismo sensível às regras. Dentre esses, os últimos dois são mais compatíveis com a jurisdição constitucional. Contudo, críticas à falta de critérios presentes nesses dois atingem também o controle de constitucionalidade e especialmente as decisões interpretativas, por faltarem parâmetros precisos para justificar uma decisão interpretativa em detrimento da declaração de (in)constitucionalidade simples. Ademais, a diferenciação entre interpretação(1) e interpretação(2) também é útil à aplicação da cláusula de reserva de plenário, diferenciando quando órgão fracionário está apenas identificando o que a lei diz, usando a constituição como referência, e quando a lei diz algo inconstitucional.
The interpretative decisions - interpretation according to the constitution, partial unconstitutionality (reductive manipulative decision), additive manipulative decision, substitutive manipulative decision - are present in brazilian judicial review. They are treated indiscriminately and one aspect of it is linguistic: the difference between identifying a rule (interpretation(1)) and following a rule (interpretation(2)). Semantic approaches allow this kind of differentiation, but pragmatic approaches seem to have greater difficulties. Within the law, this can be translated as the opposition between the identification of the literal meaning, the ordinary meaning and the identification of the intentional meaning, the purposivism meaning of legal texts. As for following legal rules, three models are possible: strong formalism, presumptive formalism, and rulesensitive particularism. Of these, the latter two are more compatible with judicial review. However, criticisms of the lack of criteria present in these reach judicial review and especially the interpretative decisions because they lack precise parameters to justify why an interpretative decision should trump the simple declaration of (un)constitutionality. In addition, the distinction between interpretation(1) and interpretation(2) is also useful in applying the full bench clause because it allow us to differentiate when the fractional body is only identifying what the legal text says using the constitution as a reference and when the legal text says something unconstitutional.
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Stech, Radoslaw. "Costs barriers to environmental judicial review : a study in environmental justice." Thesis, Cardiff University, 2013. http://orca.cf.ac.uk/47605/.
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The thesis analysed unique data collected in the Environmental Law Foundation (E.L.F.), a London-based charity with a network of legal advisers located throughout the UK. It had two main purposes: firstly, to prove that costs constitute a barrier to judicial review and; secondly, to understand better the concept of environmental justice in light of polycentricity. Environmental justice focuses on patterns of disproportionate exposure to environmental hazards and promotes increased access to information and participation in decision-making. Adjudication is said to have a limited role in achieving environmental equity as it rarely addresses issues of political and economic distribution. The thesis analysed the UNECE Aarhus Convention which is binding in the UK. It is alleged that the UK Government is in breach of the Convention’s third pillar which requires access to a review procedure not to be “prohibitively expensive” (art 9(4)). E.L.F. receives calls for support from primarily poor communities facing environmental problems and refers the viable ones to a legal adviser for free initial advice. The study reviewed 774 referrals focusing on 219 of these at various stages of judicial review. A half of these referrals received a negative opinion as to the prospects of success at judicial review and the remaining half were advised to proceed. In the latter pool there were 54 cases which were prevented by the cost barrier. A significant number concluded in out-of-court/in-court settlement. The latter sample consisted of planning law-based claims which are polycentric due to the variety of involved interests. The data was also matched with the Indices of Multiple Deprivation to show polycentricity. The findings were analysed through the participatory thesis of judicial review and the concept of limits of adjudication. Thus access to adjudication may create opportunities for engagement and contributes to achieving environmental justice.
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Man, Derek Mang Wo. "Court intervention in and judicial review of Hong Kong domestic arbitration awards." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20834184a.pdf.
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Wladeck, Felipe Scripes. "Meios de controle judicial da sentença arbitral nacional." Universidade de São Paulo, 2013. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-08092016-162943/.
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Conforme a Lei n.º 9.307, de 23 de setembro de 1996, as sentenças arbitrais nacionais produzem os mesmos efeitos das sentenças judiciais, independentemente de homologação. A despeito disso, elas se encontram sujeitas ao controle do Poder Judiciário. A Lei de Arbitragem disciplina os limites e meios para a impugnação judicial das sentenças arbitrais nacionais basicamente em dois dispositivos, os arts. 32 e 33. Optou-se por um regramento bastante sucinto, mas que é suficiente para resolver as situações práticas que podem se verificar quando uma sentença arbitral é impugnada. Compreendido que a arbitragem é processo de origem convencional (privada) e que por força daquelas e outras regras, como os arts. 17, 18, 20, § 2º, e 31 ela se insere no círculo da teoria geral do processo (aplicando-se-lhe, por conseguinte, os respectivos princípios e conceitos) e se sujeita aos ditames essenciais do devido processo legal, torna-se possível, a partir das técnicas interpretativas existentes, chegar a soluções para as diversas questões envolvendo o controle judicial das sentenças arbitrais nacionais das quais a Lei n.º 9.307 não tratou expressamente ou de que tratou de forma imprecisa.According to Law n.o 9.307, which came into effect in September 23rd, 1996, domestic arbitral awards have the same effect on the parties as a ruling by a State Court, without the need for judicial confirmation. The Brazilian Arbitration Act regulates the limits and means for the judicial challenge of domestic arbitral awards in, essentialy, two articles, art. 32 and 33. The Act opted for brief rules on the issue, but they are sufficient to resolve the practical situations that may arise when an arbitral award is challenged. Understanding that arbitration is a process of conventional origin (private) and that due to those as well as other rules, such as articles 17, 18, 20, paragraph 2, and 31 it is contained in the field of general procedural theory (so that, consequently, the same principles and concepts are applicable) and is subject to the essential dictates of due legal process, it becomes possible, due to existing techniques of interpretation, to develop solutions to the many issues involving the judicial control of domestic arbitral awards that Law n.o 9.307 either did not expressly regulate or regulated imprecisely.
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Farias, Daniel Rocha de. "Ativismo judicial, judicialização de políticas públicas e Judicial Review no Brasil: análise crítica da supremacia do judiciário e da quimera dialógica." reponame:Repositório Institucional do UniCEUB, 2016. http://repositorio.uniceub.br/handle/235/12132.
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Podemos dizer que há no Brasil problemas quanto à legitimidade de decisões judiciais, notadamente quando o Supremo Tribunal Federal confere a última palavra em interpretação constitucional? A discussão, antes sem importância prática, ganhou relevo a partir da adoção da prática do ativismo judicial, especialmente quando associada ao fenômeno da judicialização de políticas públicas. Neste trabalho, pretende-se demonstrar em que termos é discutida a legitimidade das decisões judiciais e a última palavra, a partir de debate frequente na academia americana para, em sequência, demonstrar que a prática do ativismo contribui, em boa monta, para trazer o problema para o Brasil. Além disso, em virtude de uma alegada atenuação ou, até mesmo, esvaziamento do problema em virtude das teorias do diálogo institucional, é feita uma abordagem da teoria e dos sistemas constitucionais reputados como dialógicos com a finalidade de verificar tal assertiva.
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Case, Roland. "Understanding judicial reasoning : a conception and rationale for law-related education." Thesis, University of British Columbia, 1989. http://hdl.handle.net/2429/30606.
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The topic of judicial reasoning has been largely excluded from high school law and social studies curricula despite widespread ignorance and misunderstanding among Canadians of the reasoning judges are expected to employ in applying the law. The two biggest obstacles to its inclusion are: (1) insufficient appreciation among educators of the importance of public understanding of judicial reasoning, and (2) a lack of consensus about the nature of judicial reasoning. Accordingly, the major thrusts of this dissertation are to justify why judicial reasoning ought to be part of basic civic education and to articulate a defensible conception of judicial reasoning for educators' use in law-related and public legal education programs.
Defensible criteria for theorizing about judicial reasoning are explained and justified by considering different types of theorizing about social practices. Three basic types of theories are identified - formal, causal and ethical theories. It is suggested that the relevant type of theory of judicial reasoning, what I call a formal theory, involves explication of what informed practitioners would accept as the standards operating within their system. This account of theorizing about social practices is defended against objections implied by a rival account of theorizing presented by Dworkin. Dworkin's explication is rejected on the grounds that it conflates a
distinction between theories that faithfully represent the standards of proper judicial practice and theories whose account of judicial standards is controlled by instrumental purposes.
Building on Hart's conception of law as a union of primary and secondary rules, an account of judicial reasoning is developed in terms of three types of second-order rules. These rules of application, which establish standards for applying the law in particular cases, include rules for determining the legal validity of arguments for a decision, for setting the relative weight of legal arguments, and for verifying the conclusions attributed to a legal argument. Rules of application are organized into three dominant modes or forms of reasoning: (1) reasoning from interpretive guidelines, which refers to a constellation of second-order rules that govern application of law by determining a law's meaning; (2) reasoning from prior cases, which deals with rules governing application of law in light of previous judicial decisions; and (3) reasoning from principle, which involves rules for assessing the implications of potential judicial decisions in light of other legal standards. Specific judicial decisions and general judicial practices are explicated in terms of these modes of reasoning. This account of judicial reasoning is defended against a number of objections, including challenges posed by the principal rival conception of reasoning about the law - an account of judicial reasoning offered by Dworkin.
Teaching high school students about the modes of judicial reasoning is justified because greater public understanding of judicial reasoning is required to combat widespread, potentially damaging, misperceptions of judicial practices. The key elements comprising an adequate lay understanding of judicial reasoning are outlined.Education, Faculty of
Curriculum and Pedagogy (EDCP), Department of
Graduate
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Ferreira, Eber de Meira. "Poder judiciário, ativismo judicial e democracia." Universidade de São Paulo, 2014. http://www.teses.usp.br/teses/disponiveis/2/2134/tde-08122014-161522/.
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O princípio da separação de poderes sofreu alterações fundamentais ao longo dos mais de três séculos desde sua consagração. Dentre as alterações na balança dos poderes, destaca-se a evolução do Poder Judiciário, com o alargamento de suas funções e aumento de sua importância se comparado em face da concepção clássica. No contexto brasileiro pós Constituição de 1988, dois fatores têm se mostrado fundamentais ao avanço do Poder Judiciário a uma posição de destaque no cenário político e constitucional: o desenvolvimento sistema de controle de constitucionalidade aliado às características das normas do texto constitucional, aliados a outros fatores, permitindo o seu avanço ao campo do chamado ativismo judicial. Dentro desta abordagem, o presente estudo busca apontar as implicações desta nova forma de atuação do Poder Judiciário denominada de ativismo judicial em face da democracia, analisando os principais pontos de tensão e críticas surgidas de seu confrontoThe principle of separation of powers has undergone fundamental changes over the last three centuries since its establishment. Among the changes in the balance of powers, there is the evolution of the judiciary, with the enlargement of its functions and increase its importance compared in view of the classical conception of the separation of powers principle. In the Brazilian context after the 1988 Constitution, two factors have been shown to be fundamental to the advancement of the Judiciary to a prominent position in political and constitutional landscape, the development of the mechanisms of judicial review combined with the features of constitucional norms, also combined with other factors, allowing its advancement to the field of so-called judicial activism. Within this approach, this study seeks to identify the implications of this new form of action of the Judiciary called judicial activism in the face of democracy, analyzing the main points of tension and conflict that arises from them.
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Reid, A. C. A., and n/a. "An examination of overlap in the Australian Federal system of review of administrative decisions : and some suggestions for change." University of Canberra. Management, 1990. http://erl.canberra.edu.au./public/adt-AUC20061107.104025.
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Sapienza, Amanda Rose. "Principle v Practice: Judicial Review of Non-Statutory Executive Action in Australia." Thesis, The University of Sydney, 2019. http://hdl.handle.net/2123/21141.
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In Australia, the Commonwealth and State governments are authorised to take action authorised by no source other than non-statutory executive power. Where non-statutory executive power is exercised, questions arise as to the role of the courts in keeping the government accountable for this action. Although intermediate appellate courts at the Commonwealth and State levels have applied the House of Lords decision in Council for Civil Service Unions v Minister for the Civil Service to permit judicial review of non-statutory action in an appropriate case, it is unclear what cases are ‘appropriate’ and how the traditional grounds of review and remedies might apply to action that is not authorised by legislation. This dissertation attempts to bring clarity to this area of law by assessing the extent to which Australian judicial review principles are capable of application to an exercise of non-statutory executive power. In so doing, it argues that Australian judicial review principles are capable of accommodating judicial review of non-statutory executive action, but only to a limited extent due to the characteristics of the power exercised and constitutional constraints on judicial power. That is, the ‘gaps’ that remain in reviewability are justified by the constitutional context in which judicial review occurs.