Prevention is Better than Cure: Rethinking Court Behaviour and Design (original) (raw)

Promoting Constitutional Literacy: What Role for Courts?

German Law Journal

This article explores the role of constitutional judges in advancing constitutional literacy, understood as knowledge relating to the functioning of the constitutional order. Part of the inquiry is descriptive and geared towards identifying the modalities that courts today use to cultivate such literacy among the public, or segments thereof. The article also poses normative questions about literacy-boosting efforts. How do these relate to “typical” judicial functions? Are courts well-placed and equipped to disseminate constitutional knowledge? Based on an analysis of judicial practices, it is suggested that lay individuals are increasingly treated as a key constituency by courts, warranting the development of specially curated initiatives crafted with the values of inclusion, accessibility, and transparency in mind. This manifests notably in a turn to social media use and an incipient embrace of legal design thinking. The available literacy-boosting modalities are not without flaws,...

Constitutional Courts, Media and Public Opinion (Hart Publishing, 2023, ISBN: 9781509953608)

Constitutional Courts, Media and Public Opinion, 2023

How has the information revolution affected the way constitutional courts communicate with the public? Whilst constitutional courts have traditionally refrained from engaging in direct dialogue with the public, this book explores the way in which constitutional courts have become the latest institutions to enter the public arena and make use of social media and new communication strategies. The book argues that when it comes to the relationship between courts and the media, different jurisdictions share many similarities. It looks in detail at the communication strategies of the US Supreme Court, the Supreme Court of Canada and in Europe: the German Federal Constitutional Tribunal, the French Conseil Constitutionnel, the Spanish Tribunal Constitucional and the Italian Constitutional court. And it focuses on the consequences of the communication revolution now taking place in these courts both in terms of the relationship with public opinion and with the legitimacy of judicial review of legislation. Some constitutional courts have attracted criticism by engaging in proactive communication and therefore arguably yielding to the temptation of public support. This book argues that objections to the developing institutional communications employed by courts come from a preconceived notion of public opinion, as it has been traditionally referred to in studies on political institutions and the representative state. It considers the heavy burden the communication revolution has placed on constitutional courts, to achieve the right balance between transparency and seclusion, proximity, and distance from public opinion and puts forward arguments for how this balance can be achieved. Url: https://www.bloomsbury.com/uk/constitutional-courts-media-and-public-opinion-9781509953608/

Constructing Courts: Judicial Institutional Change Embedded in Larger Political Dynamics

Tulsa Law Review, 2013

In 1962, legal scholar Alexander Bickel published The Least Dangerous Branch, which subsequently defined the boundaries of scholarship on the federal judiciary, particularly on the Supreme Court, for decades. 1 Bickel viewed the popular and elected-branch hostilities toward the Warren Court, which characterized the judicial politics at the time of his writing, as a consequence of the unelected branch's structural deviance in a democracy. 2 Indeed, The Least Dangerous Branch builds on a foundational supposition defining American political institutions, namely that they were designed so that, in James Madison's famous words, "[a]mbition must be made to counteract ambition." 3 Following the logic of separated powers meant to check and balance one another, a counter-majoritarian court-an institution

THE DEMOCRATIC QUALITIES OF COURTS: A CRITICAL ANALYSIS OF THREE ARGUMENTS

Representation, Volume 49, Issue 3, 2013 , pp. 333-346, Special Issue: Courts and Representative Democracy, ed. C Parau and R. Bellamy,

The democratic critique of judicial review by constitutional courts has prompted its defenders to counter that courts have democratic qualities as good as, and in certain respects even stronger than, conventional democratic politics. This article offers a critical analysis of three arguments favouring this approach. The first argues that constitutional courts operate as exemplars of democratic deliberation. In particular, they give expression to the public reasons underlying democracy and ensure democratic practice does not subvert its ideals. The second holds that rights-based litigation offers a form of democratic participation, providing a voice to those who might have been excluded from electoral democracy. The third contends that judges operate in a similar way to elected representatives, who are best conceived as trustees rather than as delegates. All three views are found wanting. Courts do possess certain limited democratic qualities. However, they are not intrinsic features of courts themselves. They arise from their being dependent upon rather than independent from the conventional democratic process.

CONSTITUTIONAL COURTS SECURING THEIR LEGITIMACY: AN INSTITUTIONAL-PROCEDURAL ANALYSIS

forthcoming in A von Bogdandy, P Hüber and Ch Graberwarter, eds., Handbuch Ius Publicum Europaeum Band VII, CF Müller, 2020

It is imperative for constitutional courts and their judgments to enjoy respect to allow them to make good on the intended objective of providing solid constitutional guardianship. At the same time, judicial legitimacy is a precious commodity that once lost is hard to replace. It should be realised that threats to the legitimacy of constitutional courts are often not self-manufactured, in the sense of gratuitous judicial overreaching or a callous disregard by the court for what the other organs of State or the country's population deem important. They are, rather, a corollary of two distinct though related factors. First, the extent to which the procedural framework, as designed by the political branches of government, allows for the referral of any and all constitutional questions to the court. This chapter explains how quasi-comprehensive portfolios of responsibility, coupled with lenient rules on access, enhances the probability that social or politically sensitive issues will enter the judicial arena for resolution. The second factor concerns a country's political and economic climate. A government faced with a poorly performing economy or other financial constraints, and an electorate demanding effective and rapid action, may be enticed to respond with rules that give short shrift to constitutional values. In such situations, remedial approaches other than annulment decisions are particularly attractive for courts faced with constitutional defective statutes, as they mitigate the risk of an inter-institutional confrontation and any ramifications such may have for the enforcement of judgments. These could further ameliorate perceptions of judges as sympathetic to the plight of governments in regulating society, rather than legalistic troublemakers who do not know or care about socio-political realities. This chapter critically discusses the most significant of these decisional techniques as applied by Europe's Kelsenian constitutional courts: constitution-conform interpretation, rendering rulings of temporary constitutionality or severing the link between a finding of unconstitutionality and annulment. It is interesting to note that in many countries, several of these techniques have been fashioned by the courts themselves in direct response to the precarious reality of their political environment. This suggests that courts are keenly aware of the delicate balancing act that they must perform in protecting constitutional integrity and alert to using 'prudential' remedial techniques to attenuate political or social discontentment.