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The Judge and the Proportionate Use of Discretion: A Comparative Administrative Law Study (Routledge Research in EU Law)
by Sofia Ranchordás Boudewijn De WaardThis book examines different legal systems and analyses how the judge in each of them performs a meaningful review of the proportional use of discretionary powers by public bodies. Although the proportionality test is not equally deep-rooted in the literature and case-law of France, Germany, the Netherlands and the United Kingdom, this principle has assumed an increasing importance partly due to the influence of the European Court of Justice and European Court of Human Rights. In the United States, different standards of judicial review are applied to review ‘arbitrary and capricious’ agency discretion. However, do US judges achieve a similar result to the proportionality or reasonableness test? Drawing together a selection of key experts in the field, this book analyses the principle of proportionality in the judicial review of administrative decisions from different perspectives. The principle is first examined in the context of recent developments in the literature and case-law, including the inevitable EU influence, then light shall be shed on the meaning of this principle in the specific case-law of the European Court of Justice and European Court of Human Rights. Finally, the authors go on to explore the ways in which US judges consciously ‘sanction’ the ‘disproportionate’ and/or unreasonable’ use of agency discretion. In the legal systems where the proportionality test plays a very limited role, Ranchordás and de Waard also try to clarify why this is the case and look at what alternative solutions have been found. This book will be of great interest to scholars of public and administrative law, and EU law.
The Judge as Political Theorist: Contemporary Constitutional Review
by David RobertsonThe Judge as Political Theorist examines opinions by constitutional courts in liberal democracies to better understand the logic and nature of constitutional review. David Robertson argues that the constitutional judge's role is nothing like that of the legislator or chief executive, or even the ordinary judge. Rather, constitutional judges spell out to society the implications--on the ground--of the moral and practical commitments embodied in the nation's constitution. Constitutional review, in other words, is a form of applied political theory. Robertson takes an in-depth look at constitutional decision making in Germany, France, the Czech Republic, Poland, Hungary, Canada, and South Africa, with comparisons throughout to the United States, where constitutional review originated. He also tackles perhaps the most vexing problem in constitutional law today--how and when to limit the rights of citizens in order to govern. As traditional institutions of moral authority have lost power, constitutional judges have stepped into the breach, radically altering traditional understandings of what courts can and should do. Robertson demonstrates how constitutions are more than mere founding documents laying down the law of the land, but increasingly have become statements of the values and principles a society seeks to embody. Constitutional judges, in turn, see it as their mission to transform those values into political practice and push for state and society to live up to their ideals.
The Judge as Political Theorist: Contemporary Constitutional Review
by David RobertsonThe Judge as Political Theorist examines opinions by constitutional courts in liberal democracies to better understand the logic and nature of constitutional review. David Robertson argues that the constitutional judge's role is nothing like that of the legislator or chief executive, or even the ordinary judge. Rather, constitutional judges spell out to society the implications--on the ground--of the moral and practical commitments embodied in the nation's constitution. Constitutional review, in other words, is a form of applied political theory. Robertson takes an in-depth look at constitutional decision making in Germany, France, the Czech Republic, Poland, Hungary, Canada, and South Africa, with comparisons throughout to the United States, where constitutional review originated. He also tackles perhaps the most vexing problem in constitutional law today--how and when to limit the rights of citizens in order to govern. As traditional institutions of moral authority have lost power, constitutional judges have stepped into the breach, radically altering traditional understandings of what courts can and should do. Robertson demonstrates how constitutions are more than mere founding documents laying down the law of the land, but increasingly have become statements of the values and principles a society seeks to embody. Constitutional judges, in turn, see it as their mission to transform those values into political practice and push for state and society to live up to their ideals.
The Judge in a Democracy
by Aharon BarakWhether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book. In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy. Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia. As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.
The Judge in a Democracy
by Aharon BarakWhether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book. In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy. Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia. As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.
Judge Walden: Funny stories of the British courtroom (Walden of Bermondsey #2)
by Peter MurphyThe second Judge Walden novelIf you like Rumpole of the Bailey, you'll love Walden of BermondseyJudge Walden is back, to preside over five new cases at Bermondsey Crown Court.Retired resident judge Peter Murphy takes us back to the world of criminal trials in South London for another session with Charlie Walden keeping the peace between his fellow judges – Marjorie, ‘Legless’ and Hubert – while fighting off the attacks of the Grey Smoothies, the civil servants who seem intent on reducing the court’s dwindling resources to vanishing point in the name of ‘business cases’ and ‘value for money’.Meet the rum and memorable characters who pop into Charlie’s domain, including Lester Fogle from one of London’s Disorganised Crime Families, Arthur Swivell the one-time Bermondsey singing legend and the very unbardlike Elias Shakespeare. And you will never feel the same about ‘The Owl and the Pussycat’ or the Entente Cordiale again.Fortunately, Charlie has Elsie and Jeanie’s lattes and ham and cheese baps, and newspaper vendor George’s witty banter, to sustain him in the mornings; and in the evenings, the Delights of the Raj, or La Bella Napoli, to enjoy with the Reverend Mrs Walden.Praise for Walden of Bermondsey'No one writes with more wit, warmth and insight about the law and its practitioners than Peter Murphy. He has no equal since the great John 'Rumpole' Mortimer' - David Ambrose'Though his exasperation is sometimes palpable, what triumphs over everything is his sense of humour. And it is the humour that makes Walden of Bermondsey such a delightful read. Think of him as what Rumpole would be like if he ever became a judge, and you get some idea of his self-deprecating wit and indomitable stoicism. Add a dash of Henry Cecil for his situation and AP Herbert for the fun he has with the law, and you get a sense of Peter's literary precedents' - Paul Magrath'The forensic process is examined in a light touch, good-humoured style, which will evoke a constant stream of smiles, and chuckles from nonlawyers and lawyers alike' – Igor Judge, Lord Judge, former Lord Chief Justice of England and Wales
Judge Walden - Call the Next Case: With an introduction by Judge Rinder and a foreword by Baroness Hale of Richmond, President of the UK Supreme Court (Walden of Bermondsey)
by Peter MurphyThe third Judge Walden novelIf you like Rumpole of the Bailey, you'll love Walden of BermondseyCharlie Walden, the irrepressible Resident Judge (RJ) of Bermondsey Crown Court is back with a new selection of cases. As ever, there is little rest for the RJ as he does his best to deal with the church-going carer who steals from the old lady under her care, the cleaver-wielding chefs wth different ideas about how to make a Caesar salad, the man with a penchant for 'marrying' multiple women and the astrological guru accused of fraud. Not to mention the shock-horror when colleagues get into trouble - Judge Hubert Drake for writing an angry letter to the press, and Judge Marjorie Jenkins for storing suspected pornography on her judicial computer. Oh, and the ongoing wars against the Grey Smoothies, who try to frustrate Charlie at every turn with their bureaucracy and their endless quest for value for money for the taxpayer.Praise for Walden of Bermondsey'No one writes with more wit, warmth and insight about the law and its practitioners than Peter Murphy. He has no equal since the great John 'Rumpole' Mortimer' - David Ambrose'Though his exasperation is sometimes palpable, what triumphs over everything is his sense of humour. And it is the humour that makes Walden of Bermondsey such a delightful read. Think of him as what Rumpole would be like if he ever became a judge, and you get some idea of his self-deprecating wit and indomitable stoicism. Add a dash of Henry Cecil for his situation and AP Herbert for the fun he has with the law, and you get a sense of Peter's literary precedents' - Paul Magrath'The forensic process is examined in a light touch, good-humoured style, which will evoke a constant stream of smiles, and chuckles from nonlawyers and lawyers alike' – Igor Judge, Lord Judge, former Lord Chief Justice of England and Wales'Certainly entertaining, this would be a perfect book to read on the beach' - The Crime Novel Reader
Judge Walden of Bermondsey: Funny stories of the British courtroom (Walden of Bermondsey #1)
by Peter MurphyThe first Judge Walden novelWhen Charlie Walden took on the job of Resident Judge of the Bermondsey Crown Court, he was hoping for a quiet life. But he soon finds himself struggling to keep the peace between three feisty fellow judges who have very different views about how to do their job, and about how Charlie should do his.And as if that’s not enough, there’s the endless battle against the ‘Grey Smoothies’, the humourless grey-suited civil servants who seem determined to drown Charlie in paperwork and strip the court of its last vestiges of civilisation.No hope of a quiet life then for Charlie, and there are times when his real job – trying the challenging criminal cases that come before him – actually seems like light relief.'No one writes with more wit, warmth and insight about the law and its practitioners than Peter Murphy. He has no equal since the great John 'Rumpole' Mortimer' - David Ambrose'Though his exasperation is sometimes palpable, what triumphs over everything is his sense of humour. And it is the humour that makes Walden of Bermondsey such a delightful read. Think of him as what Rumpole would be like if he ever became a judge, and you get some idea of his self-deprecating wit and indomitable stoicism. Add a dash of Henry Cecil for his situation and AP Herbert for the fun he has with the law, and you get a sense of his literary precedents' - Paul Magrath
Judgement at Tokyo: World War II on Trial and the Making of Modern Asia
by Gary J. Bass‘A work of singular importance . . . balanced, original, human, accessible, and riveting’ – Philippe Sands, author of East-West StreetFrom the prizewinning author of the acclaimed The Blood Telegram, a landmark, magisterial history of the postwar trial of Japan’s leaders as war criminals – and their impact on the modern history of Asia and the worldIn the weeks after Japan finally surrendered to the Allies to end World War II, the victorious powers turned to the question of how to move on from years of carnage and destruction. To them, it was clear that Japan’s militaristic leaders needed to be tried and punished for their crimes.For the Allied powers, the trials were an opportunity both to render judgment on their vanquished foes and to create a legal framework to prosecute war crimes and prohibit the use of aggressive war. For the Japanese leaders on trial, it was their chance to argue that their war had been waged to liberate Asia from Western imperialism and that the court was no more than victors’ justice.Gary J. Bass' Judgement at Tokyo is the product of a decade of research, a magnificent, riveting story of wartime action, dramatic courtroom battles, and the epic formative years that set the stage for the postwar era in the Asia–Pacific.
Judgement-Proof Robots and Artificial Intelligence: A Comparative Law and Economics Approach
by Mitja KovačThis book addresses the role of public policy in regulating the autonomous artificial intelligence and related civil liability for damage caused by the robots (and any form of artificial intelligence). It is a very timely book, focusing on the consequences of judgment proofness of autonomous decision-making on tort law, risk and safety regulation, and the incentives stemming from these. This book is extremely important as regulatory endeavours concerning AI are in their infancy at most, whereas the industry’s development is continuing in a strong way. It is an important scientific contribution that will bring scientific objectivity to a, to date, very one-sided academic treatment of legal scholarship on AI.
Judges Against Justice: On Judges When the Rule of Law is Under Attack
by Hans Petter GraverThis book explores concrete situations in which judges are faced with a legislature and an executive that consciously and systematically discard the ideals of the rule of law. It revolves around three basic questions: What happen when states become oppressive and the judiciary contributes to the oppression? How can we, from a legal point of view, evaluate the actions of judges who contribute to oppression? And, thirdly, how can we understand their participation from a moral point of view and support their inclination to resist?
Judges and Adjudication in Constitutional Democracies: A View from Legal Realism (Law and Philosophy Library #135)
by Pierluigi Chiassoni Bojan SpaićThe book offers contributions to a philosophical and realistic approach to the place of adjudication in contemporary constitutional democracies. Bringing together scholars from different legal and philosophical backgrounds, the book purports to cast light on the role(s) of judges and the function of judicial interpretation inside of constitutional states, from the standpoint of legal realism as a revisited and sophisticated jurisprudential outlook. In so doing, the book also copes with a few major jurisprudential issues, like, e.g., determining the ideas that make up the core of legal realism, exploring the relation between legal realism and legal positivism, identifying the boundaries of judicial interpretation as they appear from a realist standpoint, as well as considering some skeptical outlooks on the very claims of contemporary legal realism.
Judges and Their Audiences: A Perspective on Judicial Behavior
by Lawrence BaumWhat motivates judges as decision makers? Political scientist Lawrence Baum offers a new perspective on this crucial question, a perspective based on judges' interest in the approval of audiences important to them. The conventional scholarly wisdom holds that judges on higher courts seek only to make good law, good policy, or both. In these theories, judges are influenced by other people only in limited ways, in consequence of their legal and policy goals. In contrast, Baum argues that the influence of judges' audiences is pervasive. This influence derives from judges' interest in popularity and respect, a motivation central to most people. Judges care about the regard of audiences because they like that regard in itself, not just as a means to other ends. Judges and Their Audiences uses research in social psychology to make the case that audiences shape judges' choices in substantial ways. Drawing on a broad range of scholarship on judicial decision-making and an array of empirical evidence, the book then analyzes the potential and actual impact of several audiences, including the public, other branches of government, court colleagues, the legal profession, and judges' social peers. Engagingly written, this book provides a deeper understanding of key issues concerning judicial behavior on which scholars disagree, identifies aspects of judicial behavior that diverge from the assumptions of existing models, and shows how those models can be strengthened.
Judges and Their Audiences: A Perspective on Judicial Behavior
by Lawrence BaumWhat motivates judges as decision makers? Political scientist Lawrence Baum offers a new perspective on this crucial question, a perspective based on judges' interest in the approval of audiences important to them. The conventional scholarly wisdom holds that judges on higher courts seek only to make good law, good policy, or both. In these theories, judges are influenced by other people only in limited ways, in consequence of their legal and policy goals. In contrast, Baum argues that the influence of judges' audiences is pervasive. This influence derives from judges' interest in popularity and respect, a motivation central to most people. Judges care about the regard of audiences because they like that regard in itself, not just as a means to other ends. Judges and Their Audiences uses research in social psychology to make the case that audiences shape judges' choices in substantial ways. Drawing on a broad range of scholarship on judicial decision-making and an array of empirical evidence, the book then analyzes the potential and actual impact of several audiences, including the public, other branches of government, court colleagues, the legal profession, and judges' social peers. Engagingly written, this book provides a deeper understanding of key issues concerning judicial behavior on which scholars disagree, identifies aspects of judicial behavior that diverge from the assumptions of existing models, and shows how those models can be strengthened.
A Judge's Journey
by Lord DysonJohn Dyson is one of the leading lawyers of his generation. After a successful career at the Bar, he rose to become a Justice of the Supreme Court and Master of the Rolls. In this compelling memoir, he describes his life and career with disarming candour and gives real insights into the challenges of judging. He also gives a fascinating account of his immigrant background, the impact of the Holocaust on his family and his journey from the Jewish community in Leeds in the 1950s to the top of his profession. Although he may be perceived as being a member of the Establishment, this arresting story shows how he continues to be influenced by his Jewish and European roots.
A Judge's Journey
by Lord DysonJohn Dyson is one of the leading lawyers of his generation. After a successful career at the Bar, he rose to become a Justice of the Supreme Court and Master of the Rolls. In this compelling memoir, he describes his life and career with disarming candour and gives real insights into the challenges of judging. He also gives a fascinating account of his immigrant background, the impact of the Holocaust on his family and his journey from the Jewish community in Leeds in the 1950s to the top of his profession. Although he may be perceived as being a member of the Establishment, this arresting story shows how he continues to be influenced by his Jewish and European roots.
Judges, Judging and Humour
by Jessica Milner Davis Sharyn Roach AnleuThis book examines social aspects of humour relating to the judiciary, judicial behaviour, and judicial work across different cultures and eras, identifying how traditionally recorded wit and humorous portrayals of judges reflect social attitudes to the judiciary over time. It contributes to cultural studies and social science/socio-legal studies of both humour and the role of emotions in the judiciary and in judging. It explores the surprisingly varied intersections between humour and the judiciary in several legal systems: judges as the target of humour; legal decisions regulating humour; the use of humour to manage aspects of judicial work and courtroom procedure; and judicial/legal figures and customs featuring in comic and satiric entertainment through the ages.Delving into the multi-layered connections between the seriousness of the work of the judiciary on the one hand, and the lightness of humour on the other hand, this fascinating collection will be of particular interest to scholars of the legal system, the criminal justice system, humour studies, and cultural studies.
Judges, Judging and Humour
by Jessica Milner Davis Sharyn Roach AnleuThis book examines social aspects of humour relating to the judiciary, judicial behaviour, and judicial work across different cultures and eras, identifying how traditionally recorded wit and humorous portrayals of judges reflect social attitudes to the judiciary over time. It contributes to cultural studies and social science/socio-legal studies of both humour and the role of emotions in the judiciary and in judging. It explores the surprisingly varied intersections between humour and the judiciary in several legal systems: judges as the target of humour; legal decisions regulating humour; the use of humour to manage aspects of judicial work and courtroom procedure; and judicial/legal figures and customs featuring in comic and satiric entertainment through the ages.Delving into the multi-layered connections between the seriousness of the work of the judiciary on the one hand, and the lightness of humour on the other hand, this fascinating collection will be of particular interest to scholars of the legal system, the criminal justice system, humour studies, and cultural studies.
The Judge's List: The phenomenal new novel from international bestseller John Grisham
by John GrishamFrom the Sunday Times and New York Times bestselling author, a new legal thriller about a man who might be the most criminal sitting judge in American history.In The Whistler, Lacy Stoltz investigated a corrupt judge who was taking millions in bribes from a crime syndicate. She put the criminals away, but only after being attacked and nearly killed. Three years later, and approaching forty, she is tired of her work for the Florida Board on Judicial Conduct and ready for a change. Then she meets a mysterious woman who is so frightened she uses a number of aliases. Jeri Crosby's father was murdered twenty years earlier in a case that remains unsolved and that has grown stone cold. But Jeri has a suspect whom she has become obsessed with and has stalked for two decades. Along the way, she has discovered other victims. Suspicions are easy enough, but proof seems impossible. The man is brilliant, patient, and always one step ahead of law enforcement. He is the most cunning of all serial killers. He knows forensics, police procedure, and most important: he knows the law. He is a judge, in Florida - under Lacy's jurisdiction. He has a list, with the names of his victims and targets, all unsuspecting people unlucky enough to have crossed his path and wronged him in some way. How can Lacy pursue him, without becoming the next name on his list? The Judge's List is by any measure John Grisham's most surprising, chilling novel yet.PRAISE FOR JOHN GRISHAM'When Grisham gets in the courtroom he lets rip, drawing scenes so real they're not just alive, they're pulsating' Mirror'A superb, instinctive storyteller' The Times'Storytelling genius . . . he is in a league of his own' Daily Record 350+ million copies, 45 languages, 9 blockbuster films:NO ONE WRITES DRAMA LIKE JOHN GRISHAM
Judges of the Supreme Court of India: 1950–1989
by George H. Gadbois, JrDespite the critical role played by the Supreme Court of India, the lives of the judges have never been studied before. This seminal book presents biographical essays for each of the first ninety-three judges who served on the Court from 1950 through mid-1989. The essays in the book are based on interviews the author conducted with sixty-four of the sixty-eight judges who were alive in the 1980s, and on meetings and correspondence with family members or relatives, friends, and associates of the deceased judges. An attempt is made to account for why certain judges rather than others were chosen, the selection criteria employed and, to the extent possible in a secretive selection environment, to identify those who selected them. It concludes with a collective portrait of these judges, paying particular attention to changes in their background characteristics—fathers' occupation, education, pre-SCI career, caste, religion, state of birth, and region, over four decades. The essays also embrace their post-retirement activities.
Judges, politics and the Irish Constitution (Manchester University Press Ser. (PDF))
by Tom Hickey Laura Cahillane James GallenA collection of essays on politics and judicial power in Ireland, featuring contributions from scholars, judges and legal practitioners.
Judges, Technology and Artificial Intelligence: The Artificial Judge (Elgar Law, Technology and Society series)
by Tania SourdinNew and emerging technologies are reshaping justice systems and transforming the role of judges. The impacts vary according to how structural reforms take place and how courts adapt case management processes, online dispute resolution systems and justice apps. Significant shifts are also occurring with the development of more sophisticated forms of Artificial Intelligence that can support judicial work or even replace judges. These developments, together with shifts towards online court processes are explored in Judges, Technology and Artificial Intelligence. By considering how different jurisdictions are approaching current and future technological shifts and in particular by focusing on the different approaches in the US, UK, Australia and China and elsewhere, the author draws a rich comparative exploration of justice technology trends. Judicial commentary is considered as well as the growing scholarly discourse about these trends. Ethical and user centred design options are examined in the context of how responsive judges engage with supportive, replacement and disruptive technologies in courts. This book explores current issues regarding the responsiveness of the justice system in the pandemic era. In addition, how technology can respond and shift justice processes is a growing field of research, for judges, scholars, students and justice commentators. It provides a much-needed resource on an increasingly important topic.
Judging and Emotion: A Socio-Legal Analysis
by Sharyn Roach Anleu Kathy MackJudges embody impartial legal authority. They are the nexus between formal abstract law, the legal institution of the court, and the practical tasks of making and communicating decisions. Because emotions are often viewed as inherently irrational, disorderly, impulsive and personal, and therefore inconsistent with the impartiality required for a legitimate exercise of judicial authority, judging is usually understood to be unemotional. This conventional model of judging emphasises reason over feeling and legal rules over emotion. But, despite these powerful expectations of judicial dispassion and detachment, emotions and emotional capacities are inevitably part of judging and courtroom practice. This book addresses the place of emotion in judicial work. Grounded in empirical data – interviews, observations and surveys – it investigates how judicial officers understand, experience, deploy, display and manage emotions as part of their everyday work, especially in court. Building on a growing interest in emotions – in law and elsewhere – the book offers a much-needed empirical examination of the relationship between judging and emotion, as it considers how tensions between the demand for emotional engagement and the obligation of constraint are managed at the level of the individual judicial officer, and institutionally.
Judging and Emotion: A Socio-Legal Analysis
by Sharyn Roach Anleu Kathy MackJudges embody impartial legal authority. They are the nexus between formal abstract law, the legal institution of the court, and the practical tasks of making and communicating decisions. Because emotions are often viewed as inherently irrational, disorderly, impulsive and personal, and therefore inconsistent with the impartiality required for a legitimate exercise of judicial authority, judging is usually understood to be unemotional. This conventional model of judging emphasises reason over feeling and legal rules over emotion. But, despite these powerful expectations of judicial dispassion and detachment, emotions and emotional capacities are inevitably part of judging and courtroom practice. This book addresses the place of emotion in judicial work. Grounded in empirical data – interviews, observations and surveys – it investigates how judicial officers understand, experience, deploy, display and manage emotions as part of their everyday work, especially in court. Building on a growing interest in emotions – in law and elsewhere – the book offers a much-needed empirical examination of the relationship between judging and emotion, as it considers how tensions between the demand for emotional engagement and the obligation of constraint are managed at the level of the individual judicial officer, and institutionally.
Judging European Democracy: The Role and Legitimacy of National Constitutional Courts in the EU (Oxford Studies in European Law)
by Nik de BoerIn several EU Member States, constitutional courts have reviewed European law on its compatibility with national constitutional law. These judgments deal with issues of major importance such as EU democratic legitimacy, the protection of fundamental rights, and the status of national sovereignty within the EU. Yet should national courts decide such issues of key constitutional significance for the EU? Or is it more democratic to leave these matters to political institutions that represent Europe's citizens and are politically accountable to them? In Judging European Democracy, Nik de Boer argues that the national courts' review of European law can actually constrain democratic debate over the EU's constitutional underpinnings. Rather than opening up a space for discourse or addressing democratic problems with the EU's decision-making process, national courts risk taking sides in good faith political disagreements among elected legislators about constitutional questions relating to the EU, thus distorting, rather than protecting, the democratic decision-making process. Judging European Democracy uniquely combines constitutional and political theory with an in-depth case study of the German Constitutional Court, the EU's most authoritative constitutional court. Based on an extensive analysis of parliamentary debates, EU policy documents, and interviews with politicians, policymakers, and constitutional court judges, the case study shows how the German Constitutional Court has distorted political debate and democracy in the EU. Scholars, practitioners, and policymakers involved in political theory, political science, EU constitutional law, and European integration will find this book compelling.