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.