Active Virtues: Case Attraction in Constitutional Courts

Research shows that “successful” constitutional courts control their own agendas. Specifically, they avoid controversial cases to protect their legitimacy. We show that the power to avoid controversial cases has a logical counterpart: the power to attract uncontroversial cases. By attracting such cases, and resolving them to the satisfaction of powerful actors and the broader society, courts burnish their legitimacy. We provide examples of case attraction drawn from Ecuador, India, Mexico, the United States, and elsewhere. We use these examples to construct a typology of attraction strategies. We relate case attraction to scholarship by Fuller, Hart, Sacks, and others on the appropriate role of courts. Finally, we address a broader question of institutional design: when and why would the state, which often seeks at least limited control over its judiciary, permit judges to attract cases?

Courts without Cases: The Law and Politics of Advisory Opinions “Actors, Advice and Law”

For the last 150 years, Canadian courts of general jurisdiction have exercised a special function. At the request of the executive, they issue advisory opinions in the absence of a live “case or controversy”. Borrowed from the 1833 Judicial Committee Act, but absent from the U.K. domestic context as well other Anglo-American systems, advisory opinions have been critical to Canadian jurisprudence and, in particular, to its constitutional law. They are so familiar that a basic tension at their core has become obscured. The tension arises from the asymmetry between references' formal and practical status. Formally, such opinions as “non-binding” – they do not provide independent reasons for compliance by other actors. In actual practice, though, they are treated as though they do. Drawing upon Chapter 9 of my book (forthcoming, Hart), the paper discusses what created and explains this tension, and what it can reveal about the nature of authority and about law as such.

New Instruments of Judicial Activism and Their Impact on Public Policies

The present paper analyzes the impacts of judicial activism on public policies. First, it studies constitutionalism under the prism of social rights; then, the different doctrinal currents regarding the role played by the Judiciary Branch aroun social rights. Here concept of judicial activism is scrutinized and after, concrete cases before the Federal Supreme Court of Brazil are examined. Also, the Brazilian Judiciary opening to foreign jurisprudential experience on the implementation of fundamental human rights, with a survey of what is understood by judicial activism in India, the institute “unconstitutional state of affairs” of the Colombian Constitutional Court and the so-called “meaningful compromise” in the Constitutional Court of South Africa. The work indicates the jurisprudential precedents that incorporated a new decision-making model and analyzes its legitimacy, which reflects the continuity of the constitutional jurisdiction, even after the delivery of the decision.

A Comparative Study of the Preliminary Reference Procedure under the Hong Kong Basic Law and the Treaty on the Functioning of the European Union

This paper discusses the preliminary reference procedure under Article 158(3) of the Hong Kong Basic Law and its transplantation from Article 267 of the Treaty on the Functioning of the European Union (EU). It argues that this part of Hong Kong constitutional law is woefully underdeveloped due in large part to the unwillingness of the Hong Kong judiciary to respect the interests of the national legislature. An examination of preliminary reference as practiced in and transplanted from the EU makes clear that the constitutional order in Hong Kong must do more to balance regional and national interests. To that end this paper recommends several reforms that would be beneficial in Hong Kong: 1) to eliminate the existing jurisprudence regarding Article 158(3) Basic Law; 2) to adopt EU-style doctrines of judicial economy including irrelevant question acte éclairé and acte clair; 3) to adopt a doctrine of sincere cooperation so as to increase the quality and quantity of judicial references; and 4) to modernize the concept of Hong Kong law to be a hybrid system of common law and Chinese law.