A comparative perspective on reforming the New Zealand Bill of Rights Act

This model grants to legislatures ultimate responsibility for the resolution of controversial rights issues while at the same time seeking to improve the rights sensitivity of the legislative process and increasing the rights protective powers of courts as compared with the traditional institutional form of parliamentary supremacy. Summary As an academic comparative constitutional lawyer, I come to the recent Constitutional Advisory Panel report and the issue of whether and how the New Zealand Bill of Rights Act 1990 (NZBORA) should be reformed from a particular – perhaps idiosyncratic – perspective. This is viewing the NZBORA as an influential version of a new general model of constitutionalism. This model grants to legislatures ultimate responsibility for the resolution of controversial rights issues while at the same time seeking to improve the rights sensitivity of the legislative process and increasing the rights protective powers of courts as compared with the traditional institutional form of parliamentary supremacy. At least in theory and aspiration, this general model provides an alternative to both the latter, venerable form of constitutional arrangement and its conventional rival, the model of constitutional supremacy, involving a fully constitutionalised regime of supreme, entrenched law enforced by the power of one or more courts to invalidate inconsistent statutes. As an experiment, this new model seeks to create greater balance between courts and legislatures on the resolution of contested rights issues than the traditional alternatives, whilst also providing an effective regime of rights protection. &nbsp

What Makes for More or Less Powerful Constitutional Courts?

It is sometimes suggested that one or another constitutional or supreme court (for example, the U.S., Indian, or German) is the “most powerful in the world.” And yet it is often far from clear what the measure of power is or should be, what the sources of judicial power are under the given measure, and what explains why some courts are more powerful than others. Is strength mostly a function of formal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the U.S. and Japanese supreme courts are in this middle category; indeed they have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. Thus, it seems clear that formal powers do not tell the whole story, but what part do they play, if any, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short. For what we are additionally in search of are factors that help to explain why, for example, the U.S. and Japanese courts use their powers in such different ways. This Article seeks to shed light on all three parts of the uncertainty: the measure; sources; and explanation of judicial power. It begins by proposing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political issues. Although more diffuse and harder to quantify, this conception of judicial power is more inclusive and realistically nuanced than commonly employed uni-dimensional alternatives, such as international influence or strike-down rate. The Article next argues that the consequential nature of a constitutional court is a function of three broad variables: formal rules and powers, legal and judicial practice, and the immediate electoral and political context in which it operates. Through a process of mutual interaction, each of these three helps to shape and constitute the more specific components of a court’s institutional power, which include the nature, scope, and content of the constitution it enforces, the jurisdictional and remedial powers it has and employs, the ease or difficulty of constitutional amendment, and its composition and tenure. Moving from measuring to explaining the strength or weakness of constitutional courts, the Article next identifies and discusses three explanatory variables: deliberate constitutional design choices, legal culture, and general or structural political context. The Article concludes with case studies of the supreme courts of India and Japan that illustrate the role and interaction of these multidimensional evidentiary and explanatory factors

What Makes for More or Less Powerful Constitutional Courts?

It is sometimes suggested that one or another constitutional or supreme court (for example, the U.S., Indian, or German) is the “most powerful in the world.” And yet it is often far from clear what the measure of power is or should be, what the sources of judicial power are under the given measure, and what explains why some courts are more powerful than others. Is strength mostly a function of formal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the U.S. and Japanese supreme courts are in this middle category; indeed they have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. Thus, it seems clear that formal powers do not tell the whole story, but what part do they play, if any, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short. For what we are additionally in search of are factors that help to explain why, for example, the U.S. and Japanese courts use their powers in such different ways. This Article seeks to shed light on all three parts of the uncertainty: the measure; sources; and explanation of judicial power. It begins by proposing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political issues. Although more diffuse and harder to quantify, this conception of judicial power is more inclusive and realistically nuanced than commonly employed uni-dimensional alternatives, such as international influence or strike-down rate. The Article next argues that the consequential nature of a constitutional court is a function of three broad variables: formal rules and powers, legal and judicial practice, and the immediate electoral and political context in which it operates. Through a process of mutual interaction, each of these three helps to shape and constitute the more specific components of a court’s institutional power, which include the nature, scope, and content of the constitution it enforces, the jurisdictional and remedial powers it has and employs, the ease or difficulty of constitutional amendment, and its composition and tenure. Moving from measuring to explaining the strength or weakness of constitutional courts, the Article next identifies and discusses three explanatory variables: deliberate constitutional design choices, legal culture, and general or structural political context. The Article concludes with case studies of the supreme courts of India and Japan that illustrate the role and interaction of these multidimensional evidentiary and explanatory factors

Congress\u27s Power to Preempt the States

In this Article, part of a symposium on federal preemption of state tort law, I build upon my earlier work on the nature of preemption to try and deepen the conceptual and constitutional foundations of the subject. I argue that this neglected dimension must be moved to center stage if preemption doctrine is to have a coherent and principled framework. In particular, the key issues are the nature, source, and limits of Congress\u27s power to preempt the states. The result is that preemption should be understood as a discretionary power of Congress the source of which lies in the Necessary and Proper Clause. Most importantly, one and the same constitutional limit on this power is strongly suggested by analyzing it from all four of the following perspectives: (a) its source in the Necessary and Proper Clause; (b) its similarity to two other congressional powers to alter federal-state relations, (c) the political safeguards of federalism, and (d) comparative constitutional law. This constitutional limit is that although Congress has the power to preempt the states, it can only do so expressly. There should be no such thing as implied preemption. In the final section, I illustrate the practical workings of my recast preemption doctrine by applying it to the leading cases of recent years