POLI 330 Lecture Notes - Lecture 16: George Tsebelis, Execution Unit, Constitutional Court Of Bulgaria

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2 Oct 2014
Lecture 16
Tuesday, October 29, 2013
Judicization vs. Judicialization
1st element - Empowerment of constitutional judiciary
oRise of powerful activist constitutional courts
oPolicy making power of the judges at the expense of the power of the
oEasy to document by looking at the spread of constitutional review around the
oLook at the adoption of constitutional courts in newly democratized states
The increasing activity of the courts as well
2nd element - spread of judicial speaking on behalf of the other two branches of
oLegal discourse and reasoning has started to penetrate political discourse and
oTate et al. some of the first to advocate for increased study of this
oJudicial decision making methods that are subplanting political decision
making methods
Bargaining over outcomes has to be done in the open rather than
behind closed doors
A sign of judicial-type competition between two sides
subplanting what was traditionally bargaining behind closed
Goes better with the common law process than civil law
oMore emphasis within political discourse on ascertaining what the correct
policy is (as an analogy of the truth of a case) versus engaging in bargaining to
achieve a compromise to the solution (traditionally seen as the main political
decision making method)
oLegal discourse is rule laden and based on a long list of rules whereas political
discourse is interest laden
oJudicialization of politics is showing that political discourse is becoming
increasing rule laden and there is more talk and justification on decisions by
emphasis on rules instead of the political actors interest in the outcomes
oMajoritarian interests could be pushed before but this is being qualified and
has given way to the negative freedom principle where legislatures now have
to consider when drafting legislation the fundamental rights of citizens and
how their legislation will affect these rights instead of just the interests they
are trying to push through
oBased largely on transferring metaphors and may be challenging to find
empirical ways to test this theory to see how legal discourse going into
politics is indeed a trend
Presence and impact of constitutional courts in the legislative process
oConstitutional courts have become the third legislative chamber
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They have enormous power over the legislative process and
demonstrable impact on legislative impacts
How to tell which constitutional courts are more powerful as
legislators and which are less powerful and how can we measure and
operationalize the impact the courts have on the legislative process?
Simple aggregate numbers will not tell a single story and will
not be useful (i.e. how many cases the constitutional court
decides per year  there is a huge variation on the workload of
constitutional courts around the world due to jurisdiction and
how they receive the cases due to rules of judiciability)
Some scholars have looked at overturn rates to judge the power
of impact of the constitutional courts
oHow often does the constitutional court overturn
statutes when it considers them
oThe more they overturn, the more powerful they are
likely to be
However, Germany has the lowest overturn rate
on the chart showed, even though its arguably
the most powerful constitutional court in Europe
oYou can have a high overturn rate but mostly because
the most egregious laws with the most egregious
violations are sent to the court
They only consider a handful of the worst cases
Therefore they don’t have that much power…
High overturn rate may be due to the fact that it
considers few cases and only overturns the
extremely unconstititonal ones
oYou can also have a high overturn rate with only
unimportant laws being overturned
It may look like a high impact court but in
reality all the important constitutional cases are
skirted and not considered
The high overturn rate is due to the low impact,
low overturn rate
oLow overturn rate may be because the government is
good at following the constitution and making sure the
legislation follows the constitution, not because of lack
of power
The government may be making sure that the
legislation conforms with the constitution and
therefore they send their legislation to the
constitutional court anyways
oLow overturn rate may be mostly because the majority
of the cases that actually get filed are less meritorious
and the opposition may refer a huge number of
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