Why Do Countries Adopt Constitutional Review?

Ginsburg, Tom; Versteeg, Mila

doi:10.2139/ssrn.2102307

Cited by 13 publications

(5 citation statements)

References 48 publications

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“…China is classified as a state with an abstract review system simply because it is difficult for private parties to bring an actual case to court in order to challenge the constitutionality of Chinese government policies. The Standing Committee of the National People's Congress engages in ex-ante constitutional review upon request from certain state organs and also has a role in delivering authoritative interpretations to courts upon request (Ginsburg & Versteeg, 2022). While this is a unique system, it is closer to abstract constitutional review rather than to concrete review.…”

Section: Investmentmentioning

confidence: 99%

Legal Traditions as Economic Borders

Hamanaka

2023

PaG

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This article makes two main claims: A state’s legal tradition is embedded into its domestic institution in each issue area and a state that has a common/civil law-type domestic institution in a certain issue area (not necessarily a state that has common/civil law tradition) prefers common/civil law-type international agreements in the same issue area. The consequence of these two claims is that states’ legal tradition is often one of the primary sources of international cooperation, especially issue-specific cooperation. This in turn means that the difference in legal traditions is often a potential factor that would induce economic disintegration. By conducting theoretical and empirical investigations of three issue areas covered by free trade agreements (i.e., trade in goods, trade in services, and investment), this article demonstrates that different modes of governance are preferred by civil and common law states domestically and internationally, and that the difference in domestic systems partially explains participation and non-participation in international agreements.

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Section: Investmentmentioning

confidence: 99%

Legal Traditions as Economic Borders

Hamanaka

2023

PaG

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“…Constitutional scholars have noted the overwhelming reliance on juridical forms of constitutionalism. As of 2011, more than three-quarters of the world's constitutions had authorized constitutional review (Ginsburg and Versteeg, 2013). However, remarkably little attention has been paid to whether and how a bill of rights influences legislative decision making, and what work that has been done suggests considerable variance in this relationship.…”

Section: Expectations About the Relationship Between A Bill Of Rightsmentioning

confidence: 99%

The Charter's Influence on Legislation: Political Strategizing about Risk

Hiebert¹

2018

Can J Pol Sci

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Commentators and critics often invoke the metaphor “Charter proofing” to emphasize how much the Charter and judicial review have influenced legislation. This metaphor implies that proposed legislation is evaluated carefully for its consistency with Charter rulings as a condition of passage because decision makers believe legislation should respect judicial interpretations of constitutional norms and/or because they engage in risk-averse behaviour out of self-interest to minimize the likelihood that legislation could subsequently be challenged and declared unconstitutional. However, it is not clear that the federal government is as worried about having legislation declared invalid as many assume. If this is so, federal government responses to the Charter raise an interesting puzzle. The government has both the resources and the institutional capacity to anticipate judicial concerns and integrate judicial norms into legislation to minimize the likelihood of having legislation declared unconstitutional. So why does it not act in a more risk-averse manner at the outset, in order to protect legislation from the possibility of judicial invalidation? This address offers a five-part explanation to this puzzle that emphasizes the significance of political strategizing about risk.

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“…Constitutional adjudication is fundamentally characterized as the combination of three main variables: type of adjudication (concrete or abstract), timing of the adjudication (a priori or a posteriori), and whether it can be exercised by all the judiciary or just by a special body (centralized or decentralized) (Ginsburg and Versteeg 2014). Since 2008, Ecuador embraced an eclectic model of constitutional adjudication, in which only the ECC's justices have the authority to declare the unconstitutionality of those norms emanated from other political branches or local governments.…”

Section: Constitutional Adjudication In Ecuadormentioning

confidence: 99%

Judicial Politics in Unconsolidated Democracies: An Empirical Analysis of the Ecuadorian Constitutional Court (2008–2016)

Castro-Montero

Dijck

2017

Justice System Journal

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In this article, we test the extent to which decisions by the Ecuadorian Constitutional Court (ECC) are predicted by non-legal variables. Our theoretical argument proposes that not only the presence of public actors as plaintiffs-especially those working for the executive branch-but also political salience, i.e., the degree of importance attributed to a case by the government and public opinion, plays a crucial role in explaining the outcome of judicial decisions. Original data on all abstract review decisions issued by the ECC (2008ECC ( -2016) is used to test our argument. We control for possible selection effects, incorporating a novel measure of the overall quality of argumentation and strength of cases brought before the ECC by both public and private parties, in the form of an expert survey. Consistent with our argument, the results show that even when controlling for a wide range of potential confounders, norms are more likely to be struck down by the ECC when (1) public officials claim unconstitutionality than when nonpublic parties do, and (2) cases are reported by media. In the light of the Ecuadorian case, we conclude that the formally powerful ECC is quite sensitive to governmental influence, even under an improved situation of de jure judicial protections.

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Why Do Countries Adopt Constitutional Review?

Cited by 13 publications

References 48 publications

Legal Traditions as Economic Borders

Legal Traditions as Economic Borders

The Charter's Influence on Legislation: Political Strategizing about Risk

Judicial Politics in Unconsolidated Democracies: An Empirical Analysis of the Ecuadorian Constitutional Court (2008–2016)

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