Constitutional and Administrative Law

This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional design in lawmaking. It considers the respective advantages and proper scope of application of four fundamental sources of law: legislation, judge-made law, customary law, and international law. The defining features of these four sources of law are examined using the formal methods of public choice theory: lawmaking through legislation; lawmaking through adjudication; lawmaking through practice; and lawmaking through agreement. The book begins by examining the sources of law dependent on collective political decision-making, such as legislation. Multiple issues are considered, such as optimal specificity of law, optimal timing of legal intervention and optimal territorial scope of law, and include a thorough discussion on the sources of law derived from judges' decisions, such as common law. It provides an extensive study on the roles of litigation and judicial path-dependence on judge-made law, biases in the evolution of legal remedies through litigation, and the effect of alternative doctrines of legal precedent, such as stare decisis and jurisprudence constante. It also considers the customary sources of law, with special attention on the mechanisms that determine their emergence and evolution, and explores sources of law derived from international treaties and conventions. The Economics of Lawmaking is the first systematic law and economics treatment of this field and will shed new light on the process of lawmaking.

An analysis of the European Commission's general role in supervising member state compliance with EU law, this book provides a detailed assessment of centralized EU enforcement. It starts out by asking whether it is viable to establish stronger Commission powers of enforcement at this point in time. Against this backdrop, and as a means of exploring the role of the Commission, the chapters examine a number of different aspects pertaining to the enforcement of EU law. Beginning with an appraisal of the Commission's function under the general EU infringement procedure stipulated in Articles 258 and 260 TFEU, the volume argues that the EU lacks independent self-sustained regime authority. Moreover, this is reflected in both substantive EU law and procedural law, including the general EU infringement procedure. Chapter Two makes the case that Article 258 TFEU can usefully be explained in terms of managerialism. Chapter Three analyses Article 260 TFEU concerning repetitive infringements. In particular, it asserts, EU member state sanctions sustain the managerial approach. It then goes on to examine the Commission's unsuccessful attempts to gain sharper enforcement powers through secondary legislation, and identifies the effective points of functional overlap between enforcement powers and certain types of implementing tools. Finally, it discusses the Commission's role under various non-binding, ad hoc arrangements. The concluding chapter places the general EU infringement procedure in the broader context of a comprehensive (negotiated) policy process. It argues that the enforcement stage shares many features with earlier steps in the legislative process, including flexibility and deliberation.

This book examines the evolution of liberty and equality under state constitutions from both a historical and jurisprudential perspective. The rise of the New Judicial Federalism has allowed many states to rediscover that they are empowered to enact their own constitutions and to interpret them as they see fit, independently of federal constitutional law. As the New Judicial Federalism gained ground, it was found that state constitutional law is an extremely important source of protection for individual rights and liberties. In some areas, the state courts are on the cutting edge of constitutional law and have taken the lead in cultivating an expansive view of civil rights and liberties. Not all states have welcomed the New Judicial Federalism, and this has created a compelling dialogue among the states concerning equality and liberty. The book emphasizes how important state constitutional law is in the protection of the individual rights. Acting under their state constitutions, many state courts across the nation have expanded the rights of equality and liberty beyond those recognized under the Federal Constitution. State courts have taken a strong stand against discrimination and have recognized new fundamental rights. In some states, the courts have expanded abortion rights, while others have pioneered the recognition of same-sex unions or marriage. State courts were the first to recognize a right of intimate association, furnishing an incentive for the U.S. Supreme Court to finally follow suit. All of these matters and more are thoroughly analyzed in this book.

The second edition of this book provides comprehensive coverage of the administrative system in the EU and the principles of judicial review that apply in this area. The chapters in the first half of the book deal with all the principal variants of the EU administrative regime. Thus, there are chapters dealing with the history and taxonomy of the EU administrative regime, direct administration, shared administration, Comitology, agencies, social partners, and the open method of coordination. The coverage throughout focuses on the legal regime that governs the particular form of administration and broader issues of accountability, drawing on literature from political science as well as law. The focus in the second part of the book shifts to the principles of judicial review. There are detailed chapters covering all principles of judicial review and the discussion of the law throughout is analytical and contextual. The discussion in this part of the book begins with a chapter that considers the principles that have informed the development of EU judicial review. This is followed by a chapter dealing with the judicial system and the way in which reform could impact on the subject matter of the book. There are then chapters dealing with competence, access, transparency, process; law, fact and discretion; rights, equality, legitimate expectations, two chapters on proportionality, the precautionary principle, two chapters on remedies, and the ombudsman. The book paints a comprehensive picture of administrative law as it exists in the EU today.

European agencies have been created at a rapid pace in recent years in a multitude of highly pertinent and sensitive fields ranging from pharmaceuticals and aviation safety to chemicals or financial supervision. This agency phenomenon shows no signs of relenting, and the trend in recent years is towards the delegation of ever-broader powers. These bodies, meant to operate at arm's length from political control, have real power and their opinions and decisions can have a direct impact on individuals, regulators, and member states. Given the powers wielded by the agencies, who is responsible for holding these non-majoritarian actors to account? Is the growing concern surrounding agency accountability ‘much ado about nothing’ or are we faced with the threat of a powerful and unaccountable bureaucracy? These are precisely the questions that this book seeks to answer. It thus addresses one of the most relevant topics in current European governance: the accountability of European agencies. Scholars have increasingly called attention to the risk of placing too much power in the hands of such agencies, which operate at arm's length from traditional controls and cannot easily be held accountable for their actions. Although this is a major issue of concern, systematic empirical research into the topic is lacking. This book addresses empirically whether, and if so on what counts, agency accountability is problematic. It examines how the accountability system of European agencies operates at both the de jure as well as the de facto level, through an examination of legal provisions, relevant case law as well as policy documents and extensive interview material. Reflecting on these findings, the book also offers important theoretical insights for our understanding and study of accountability in a complex regulatory regime such as the EU context.

This is a book about the definition of executive power and the ways in which it can be rendered accountable. Such power is especially important in the modern day, as exemplified by the detention of prisoners in Guantanomo Bay. The book explores the nature of executive power in a number of different legal systems including England, Scotland, Canada, Australia, New Zealand, France, Germany, Italy, Spain, and the EU, and draws insights from the comparative perspective.

This book is a constitutional and legal analysis of the inner workings of the executive. It aims to provoke a reappraisal, by constitutional lawyers, of the place of the executive within the constitution, by exploring the legal foundations of the powers and structure of the executive, and the mechanisms through which the centre of the executive seeks to control the actions of departments. The book shows that the machinery of executive co-ordination and control is no less crucial a dimension of the constitutional order than the external machinery of democratic and legal control. It examines in detail the controls governing departmental access to staffing, financial, and legal resources, analysing the relationship between these internal controls and the external machinery of democratic and legal control, and showing how the machinery of internal control has been shaped by the structure of the executive branch. It explores the impact of the machinery of executive co-ordination and control of the ambitious public service reform project, which has been pursued by successive governments over the last twenty years, as well as of changes in the wider constitutional framework, including those stemming from the United Kingdom's membership of the European Union and the growth of judicial review.

This book explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration.  Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself. The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters—including checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. Instability in the Supreme Court’s federalism jurisprudence reflects its ongoing attempt to reconcile the tension through successive theories of federalism, each privileging different values in the federalism constellation. It traces federalism’s internal struggle through history and into the present, critiquing the Rehnquist Court and Tea Party’s embrace of greater jurisdictional separation, the limits of New and Cooperative Federalism approaches, and the growing disjuncture between federalism theory and practice. The book then outlines a Balanced Federalism alternative, mediating federalism’s tensions on three separate planes: (1) fostering balance among the competing federalism values, (2) leveraging the functional capacities of all three branches of government in interpreting federalism, and (3) maximizing the wisdom of both state and federal actors in so doing. It articulates distinct judicial and political roles in navigating jurisdictional overlap, including strong and weak judicial constraints in Tenth Amendment contexts and deference to intergovernmental bargaining. Forging new territory in the federalism safeguards debate, it provides theoretical justification for the political safeguards already in operation while preserving a role for judicial review. The resulting dynamic model fosters a healthier dialectic between the core principles and functional capacities that—though in tension—have made the American system of government so effective and enduring.

This text contains Louis Henkin's classic book, long out of print, in a much-anticipated new edition. Reconceived, reorganised, and updated, this book remains a model of clarity. It is all about understanding the United States and its place in world affairs. The book travels through the mysteries of the U.S. constitutional system as it governs U.S. foreign relations. It explains how the U.S. government acts on the world scene — the respective authority of the president and Congress in making foreign policy and conducting foreign relations, conflict and co-operation between them in determining the use of military force, and U.S. policy on arms control, on the sale of arms, on trade, on financial assistance, and on human rights. The book explains where U.S. treaties stand in U.S. law and policy; the role of the courts in foreign affairs; U.S. policy on the United Nations and other organisations and on international tribunals, and what the constitution requires in respect of individual rights within the U.S. and beyond.

This book provides a presentation of judicial review of legislation in contemporary France. Created by the Constitution of the Fifth Republic in 1958, the Conseil constitutionnel has had an increasingly important place in French legal and political life, especially since 1981. Part One of the book is an introduction to the Conseil and to the principles it has developed on the allocation of law-making powers between Parliament and the Government, parliamentary procedure, fundamental freedoms, and equality. Part Two is a collection of key materials translated into English, including constitutional texts and leading decisions of the Conseil constitutionnel.