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Announcement
Response Questions due in Section on Friday
The Politics of Judicial Review
I. Traditional European Model of Review A. Judicial Review: none for ordinary judgesB. Separation of Powers: Judicial InferiorityC. Hierarchy of Norms: Statute/Code Law
II. New Constitutionalism
A. Origins: Hans KelsenB. Basic Elements 1. Written Constitution 2. Constitution gives power to people 3. Legislative Authority & Constitution 4. Rights system: Constitutional Court
Common Law (US Model)
Civil Law (Trad. Europe)
Civil Law (Europe Today)
Judicial Review
yes No for ordinary judges
No: ord. JudgesYes: CC judges
Separation of Powers
3 co-equal branches
Judicial inferiority
-Jud. Infty-separate CC
Hierarchy of Norms
Constitution
Statute/Code law
Constitution
III. 3 Types of Review by Constitutional Courts
A. Abstract Review
1. Govt writes law
2. Parliament adopts law
3. Opposition Party refers law to the CC
5. Govt. and Parliament implement CC ruling
4. CC reviews the law
ParliamentConst. Court
(III. 3 Types of Review by Constitutional Courts, cont.)
B. Concrete Review by ordinary court
1. Dispute arises between 2 individuals
2. Case comes before ordinary court. Judge refers to CC as the case raises a constitutional question.
4. Court applies the CC ruling
3. CC resolves the dispute and sends back to court.
Ordinary Court Constitutional Court
Disputants
(III. 3 Types of Review by Constitutional Courts, cont.)
C. Concrete Review by individual complaint
1. Individual has a claim, and exhausts all judicial remedies
2. Makes a claim on grounds of unconstitutionality before the CC
3. CC rules on the case
Individual
Constitutional Court
Germany
Spain
Italy France
Abstract Review
Yes Yes Yes Yes
ConcreteReview by court
Yes Yes Yes No
ConcreteReview by individual
Yes Yes No No
Question:
Evaluate the 3 forms of Constitutional Review found in Europe. State which form you think might have a more continuous/ongoing impact on policymaking by the legislature and why.
IV. The Political Effects of Constitutional Review by Constitutional Courts
A. Formal (direct) Legislative Impacts 1. Annulment: invalidate entire law
2. Partial Annulments 3. Constitutional Surveillance & Binding Interpretation
(IV. The Political Effects of Constitutional Review, cont.)
B. Indirect Political Effects (prospective, indirect, creative effect)
1. Anticipatory ReactionDefinition: The Govt. and Parliamentary majority change their behavior in anticipation of how Const. Court wants them to act.2. Corrective RevisionDefinition: The re-elaboration of a censured text in conformity with the Cons. Crt’s case law in order to adopt legislation.