When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach

Mathilde Cohen 

University of Connecticut - School of Law
2015

Washington and Lee Law Review, Vol. 72, 2015 
Abstract:      

Influential theories of law have celebrated judicial reason- giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in adjudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason- giving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between reasons for and against reason-giving in increasingly similar ways.

By combining theories of democratic legitimacy with empirical, doctrinal, and historical evidence of judges’ concrete reason-giving practices in the United States and Europe, the Article argues that rather than being in opposition, these two legal cultures are converging toward a common methodology. No longer can it be assumed that civil law judges and common law judges are on opposite ends of the spectrum.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2646871

The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada

Richard Albert 

Boston College - Law School; Yale University - Law School

August 23, 2015

41 Queen's Law Journal (2016 Forthcoming) 

Abstract:    
It has become increasingly common for courts in constitutional democracies to invalidate constitutional amendments. Courts have enforced both written and unwritten limits on how political actors may exercise the formal amendment power. They have relied either on constitutional texts that expressly entrench provisions against formal amendment or on their own interpretation of these texts as implicitly establishing an unalterable constitutional core. Although the Supreme Court of Canada has not yet invalidated a constitutional amendment, modern case law provides the constitutional basis for the Court to declare that a future constitutional amendment violates either the text or spirit of the Constitution of Canada. In this Article, I trace the origins and evolution of the theory and doctrine of unconstitutional constitutional amendment, I explain how the theory and doctrine may apply today in Canada, and I suggest a detailed framework to evaluate when and how the Supreme Court of Canada may exercise the extraordinary residual constitutional authority to invalidate a constitutional amendment.

Keywords: Constitutional Amendment, Unconstitutional Constitutional Amendment, Basic Structure Doctrine, Formal Amendment, Informal Amendment, Constitution of Canada, Indian Constitution, Amendment Difficulty, Supreme Court of Canada, Constitutional Interpretation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2649447

The Meanings of Concurrency

Anna Dziedzic 

Melbourne Law School

Cheryl Saunders 

Melbourne Law School
August 20, 2015

Concurrent Powers in Federal Systems, Nico Steytler (ed), Martinus Nijhoff Publishers, 2015
U of Melbourne Legal Studies Research Paper No. 712 
Abstract:      

Concurrency is a feature in the organisation of legislative powers in most federal systems. Broadly understood, concurrency arises when legislative powers are conferred in a way that enables both the central and regional spheres of government to legislate on the same subject matter in certain conditions. This paper seeks to demonstrate that there are significant variations amongst federal systems in the way in which concurrency is used and applied. It examines how concurrency is understood in five federal systems: Australia, Germany, India, South Africa and the United States. It traces the principal variations in the use and application of concurrency with respect to the design of constitutional provisions, the scope of authority that concurrent power confers, the significance of an exercise of concurrent power by both spheres of government at the same time, and the relevance (if any) of concurrency to the authority of regional governments to administer central laws. The paper also suggests some possible reasons for the different uses and understandings of concurrency, including the circumstances in which the federation was formed, pre-federation history and institutional context. The findings are significant for comparative constitutional method, insofar as they demonstrate that a concept that often is assumed to have shared meaning across federal type systems, in fact is both understood and used in different ways. The findings have practical significance as well, not least for the design of federal constitutions, most of which employ the concept of concurrency in some way.

Number of Pages in PDF File: 22

Keywords: federalism, comparative constitutional law, legislative powers

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2648673

Viking's 'Semantic Gaps': Law and the Political Economy of Convergence in the EU

Peter L. Lindseth 

University of Connecticut School of Law
May 6, 2015

Forthcoming in Bill Davies and Fernanda Nicola, eds., EU Law Stories: Critical and Contextual Histories of European Jurisprudence (Cambridge University Press) 
Abstract:      

This chapter is part of a forthcoming edited volume exploring alternative approaches and readings of decisions of the European Court of Justice (ECJ) within their political, economic and legal contexts. This contribution focuses on the Viking judgment of December 2007, which, together with the Laval decision of the same month, is famous for subjecting the right to strike under national law to certain potential limitations deriving from European law. In the case of Viking specifically, those limitations flowed from the need to balance the right to strike against the freedom of establishment under ex Article 43 EC (now Article 49 TFEU). The specific holding in the case, however, as well as the ensuing controversy in the EU legal literature, are not really our concern here, or at least not directly. Rather, the focus of this chapter is on what the judgment does not say — on its 'semantic gaps', so to speak — most importantly between the ECJ's emphasis on balancing 'rights' in a constitutional/legal sense versus the European Commission's more technocratic/political role as manager of the Cohesion Policy — the EU's internal development policy for economically disadvantaged regions and member states. By focusing on these differing institutional and policy perspectives, this chapter seeks to refocus our attention on the broader challenge of legal, political, and economic 'convergence' that lies at the heart of the integration process, particularly after the EU’s enlargement to the east in 2004. The attempt at a combined perspective here also seeks to understand the tensions flowing from enlargement in the context of the political economy of market integration, with an eye to the historical experience in the North Atlantic world stretching back to the nineteenth century. The chapter concludes by reflecting on the relationship of the Viking controversy to a theory of institutional change along three dimensions — functional, political, and cultural — as well as on what this episode suggests for the continued tension between the national and the supranational (that is, between 'democracy' and 'demoi-cracy') in the ongoing crisis of European integration.

Number of Pages in PDF File: 13

Keywords: European Union, European Court of Justice, Viking, Laval, right to strike, freedom of establishment, cohesion policy, convergence, market integration, political economy, economic history, institutional change, demoi-cracy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2603072

The Difficulty of Constitutional Amendment in Canada

Richard Albert 

Boston College - Law School; Yale University - Law School
May 24, 2015

Alberta Law Review, Vol. 39 (2015), Forthcoming
Boston College Law School Legal Studies Research Paper No. 362 
Abstract:      

Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. But in this paper I suggest that the Constitution of Canada may be even harder to amend. Modern Canadian political history has proven the textual requirements for major constitutional amendment so far impossible to satisfy, yet the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the Constitution’s formal amendment rules. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions — additional rules that may well make major constitutional amendment impossible today in Canada. These as-yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness.

Number of Pages in PDF File: 29

Keywords: Constitutional Amendment, Formal Amendment, Informal Amendment, Constitution of Canada, United States Constitutional, Amendment Difficulty, Constitutional Rigidity, Secession Reference, Senate Reference, Nadon Reference, Regional Veto Law, Clarity Act

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2609939

Legal Manifestations of the Emergency in National Euro Crisis Law

Stephen Coutts 

European University Institute

Leticia Díez Sánchez 

European University Institute - Department of Law (LAW)

Afroditi-Ioanna Marketou 

European University Institute - Department of Law (LAW)

Leonardo Pierdominici 

European University Institute - Department of Law (LAW); University of Bologna - Faculty of Law
2015

EUI Department of Law Research Paper No. 2015/14 
Abstract:      

Most constitutions foresee a 'state of emergency' associated with the existence of an armed conflict. Paradoxically, modern societies seem to be permanently confronted with genuine emergencies increasingly removed from the threat of actual, physical violence. The Eurozone crisis can be said to have accentuated this, as the immense pressures from financial markets have turned the control of public finances into a struggle for the survival of the affected States. The present paper explores the legal manifestations of emergency in the domestic law of Greece, Italy, Spain and Ireland. These countries have all been hit by the Eurozone crisis (albeit in different manners) and have had to accommodate external oversight in their crisis management. The adoption of emergency measures for tackling the economic upheavals has been diverse across the case studies, although all have in common the emergence of a prominent role for the executive in the aftermath of the Eurozone crisis.

Number of Pages in PDF File: 29

Keywords: Constitutional law; Constitutional change; Eurozone crisis; Economic emergency; Emergency legislation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2610657

Conventions of Unamendability: Unamendable Constitutional Law in Politically Enforced Constitutions

Gert Jan Geertjes 

Leiden Law School, Department of Constitutional and Administrative Law

Jerfi Uzman 

Leiden University - Leiden Law School
June 17, 2015

Abstract:      

Legal scholarship on unamendable constitutional provisions regularly tends to focus on, what one might call ‘judicially enforced constitutions’. These are characterized by strong-form judicial review on the basis of a written constitution. Political constitutions, such as the United Kingdom and The Netherlands, are - on the other hand – to a large extent enforced by the political branches of government. The constitutional unamendability featuring in comparative scholarship usually concerns explicit (unamendability based on so-called ‘eternity clauses’) or implicit forms (unamendability inherent in the so-called ‘inner logic of the constitution’). These usually take place in (quasi-) constitutional court litigation. The classic example concerns a constitutional court directly invalidating acts of the (constitutional) legislature. At first sight, political constitutions do not fit well with existing perceptions of constitutional unamendability. Consequently, legal systems lacking judicial review of parliamentary legislation would arguably fall well outside the categories of either explicit or implicit constitutional unamendability.

We argue however, that political constitutions nonetheless contain mechanisms of unamendability. These mechanisms operate in the form of judicial or executive disobedience. As an example might serve the current debate on the future of the European Convention of Human Rights in the UK. Political calls for abandoning the judicial enforcement of European human rights law, have led British courts to respond by developing common law constitutional rights largely inspired by the ECHR. As a result, the judicial branch may continue to uphold fundamental rights, even in the unlikely event that Parliament would abolish such rights altogether. Similar examples may be found in Dutch case law.

The doctrine of unconstitutional constitutional amendments thus becomes relevant to a broader range of constitutional systems, such as the UK and The Netherlands. However, the concept of unamendability in political constitutions requires a more subtle approach. The unamendability of this type of constitutions does not emerge from constitutional provisions, whether explicit or not, but from principles embedded in constitutional culture. The nature of unamendability in these legal systems rather takes the form of conventions. The question whether parts of the constitution should be regarded as unamendable thus cannot be solely couched in the all-or-nothing terminology of legal rules. Instead, we argue that conventions of unamendability, due to their principle-based character, may be subject to changing circumstances and exceptions. Using existing literature on conventions as a model, we offer a comparative account of constitutional unamendability in political constitutions (i.e. legal systems lacking strong-form judicial review of legislative action).

Number of Pages in PDF File: 20

Keywords: Politically enforced constitutions, unconstitutional constitutional amendment, constitutional conventions, constitutional law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2619643