Comparative Law And Courts - Lsj 367 - Final Fall 2014

Front 1

Define: Margin of Appreciation

Back 1

The degree of deference afforded to member states in the implementation and application rights granted by the European Convention on Human Rights, developed by the European Court of Human Rights

Front 2

Define: The Council of Grand Judges

Back 2

The Constitutional Court of Taiwan, created in 1947 with 15 judges and 8 year non-renewable terms. According to Ginsburg, they not only interpret the constitution, but unify the interpretation of statutes and regulations

Front 3

Define: Van Gend en Loos

Back 3

A 1963 European Court of Justice case in which the Dutch tried charging a tarriff for the transportation of chemicals from Germany to the Netherlands. The ECJ ruled that it was against the law to put a tarriff on imports between member states. This produced the doctrine of Direct Effect

Front 4

Define: National Sovereignty

Back 4

The ability of a government to exercise unilateral control over their borders, policies, laws, and to operate without the outside influence over their internal affairs.

Front 5

Define: Subsidiarity

Back 5

The principle in the EU legal system that states: Policy areas in which the EU does not have clear jurisdiction or competence, the EU will only act if the objectives cannot be sufficiently achieved by member states

Front 6

Define: Principle of Complementarity

Back 6

The ICC will only initiate prosecution if the state of primary jurisdiction proves itself unwilling or unable to launch criminal proceedings.

Front 7

Generally speaking, constitutions embody whose interests? Throughout the 1990s we

have seen widespread adoption of new constitutions as countries are democratizing (e.g. in

Central and Eastern Europe). In the case of these recent new democracies, are there other

interests who may influence what is included in these new constitutions?

Back 7

The Constitution embodies the interests of citizens and the framers. They can also be influenced by other countries, IO that are facilitating the constitutionalization or IO's to which the country seeks admittance.

Front 8

What is the Insurance Model

Back 8

Ginsburg argues that politicians who draft constitutions do so to preserve their power. In political environments where power is more diffuse, there is a greater potential for Judicial Review to be implemented in the Constitution. Where Power is concentrated in one group, JR is less likely to make an appearance

Front 9

Identify the five Institutional factors that Ginsburg argues can influence JR powers of a court and explain how they might influence them

Back 9

1. Access: More Access = More Judicial Power

2. Effect: How judicial decisions impact current policy.

3. Appointments: Establishes independence and accountability - professional, cooperative, and representative

4. Terms: Longer Terms = More Judicial Power

5. Court Size: Affects the speed and accuracy of a court. Bigger Courts diminish Judicial Power

Front 10

Reflecting on the role of courts in new democracies, what two different ways could

constitutional courts effectively give meaning to the new constitution?

Back 10

1. Provide clarity and stability through neutral interpretation of existing rules

2. Purposeful development of the Constitution through Judicial decisisons

Front 11

What types of cases will New Constitutional Courts will hear? Which is most difficult and why?

Back 11

1. Vertical Separation of Powers

2. Horizontal Separation of Powers

3. Constitutional Rights Cases are the most difficult as decisions can often threaten the legitimacy of the court

Front 12

Identify three waves of democracy that characterize the historical expansion of judicial review around the world. Identify a country in each wave

Back 12

1. First Wave/ The United States established with Marbury v Madison in 1803 when SCOTUS claimed JR for themselves. Considered to be the origin of JR

2. 2nd Wave: Post-Facism/Colonialism/WWII takes place after the end of WWII when countries such as Germany, Italy, Spain, Japan, and India wanted to solidify and protect basic rights in the wake of the facist experience.

3. 3rd Wave: Post-Communism/Authoritarianism takes place after the fall of the Soviet Union in the 80's -90's in countries once ruled by Communism such as Eastern Europe and Latin America

Front 13

What are the distinctive features of Taiwan's Constitutional Court?

Back 13

1. Created in 1947 Constitution with 15 justices who serve 8 yr. non-renewable terms, appointed by the president

2. Abstract and Concrete Review by Ordinary Courts, Dissolution of Political Parties

3. Accessed by Gov't officials and individuals to a lesser extent.

Front 14

How have Human Rights been protected in Taiwan? Is the Constitutional Court more or less powerful?

Back 14

The court is more powerful due to their incremental expansion of powers. It now regularly challenges administrative action

Example: DPP makes decision to build Taiwan's 4th nuclear power plant, Council held that decision violated procedural requirements and that the government should have consulted with the legislature before making the decision.

Front 15

What are the distinctive features of the South Korean Court

Back 15

1. Created through the 1988 Constitutional Court Act with 9 justices who serve 6 yr. renewable terms, representatively appointed.

2. Concrete Review by ordinary courts and individual complaint

3. Widely accessed by individuals and gov't officials.