The History and Growth of Judicial Review, Volume 2: The G-20 Civil Law Countries

cover
Half Title
The History and Growth of Judicial Review
Copyright
Dedication
Contents
Detailed Contents
Acknowledgments
Introduction: The Birth and Growth of Judicial Review in the Civil Law World
Chapter 1 The Civil Law Legal Tradition
I. The History of the Civil Law Tradition
II. The Court Systems in Civil Law Countries
Chapter 2 The Concentrated and Hybrid Models of Judicial Review
I. The History of the Concentrated Model of Judicial Review
II. The Hybrid Model of Judicial Review
III. Conclusion
Chapter 3 The Federal Republic of Germany
I. History
A. The German Empire
B. The Weimer Republic
C. Allied Military Occupation of Germany
D. Writing the Basic Law
E. Bicameralism in the Federal Republic of Germany
F. The Interpretation of the Basic Law by the Constitutional Court
G. Amending the Basic Law
H. Growth in Federal Power in Germany
II. The German Constitutional Court and Its Case Law
A. Federalism Umpiring
1. The Southwest State Case
B. Foundational Importance of Federalism in the Basic Law
1. Early Federalism Cases Decided by the German Constitutional Court
2. Modern Federalism Case Law of the German Constitutional Court
C. Separation of Powers Umpiring
1. The Non-​Delegation Doctrine in Germany
2. Parliamentary Dissolution
D. Individual Fundamental Rights and the Basic Law
1. Lüth’s Case
2. Other Modern Individual Rights Cases
E. The Political Question Doctrine in Germany
F. Balancing Rights and Duties in Germany
III. What Explains the Origins and Growth of German Judicial Review?
Chapter 4 Japan
I. History and Constitution
II. The Practice of Judicial Review in Japan
III. Why Has Judicial Review Failed to Take Root in Japan?
Chapter 5 The Republic of Italy
I. History
A. Italian Constitutionalism before 1848
B. Italian Unification and the Statuto Albertino
C. Fascism and the Resistance
D. Adopting the Constitution
E. Bicameralism and the Italian Senate
F. Regionalism in Italy
G. The Constitutional Amendment Process
II. Constitution and Case Law
A. The Constitution and Bill of Rights
B. Foundational Judicial Review Case
C. Bill of Rights Case Law
III. What Explains the Origins and Growth of Judicial Review in Italy?
Chapter 6 The Republic of France
I. History
A. From Absolute Monarchy to the Reign of Terror
B. From 1815 to 1851: Failure to Democratize
C. The Third and Fourth Republics
D. The Fifth Republic and the Return of General De Gaulle
II. The Constitution of the Fifth Republic
A. Presidential Lawmaking Power
B. The National Assembly
C. The French Senate
D. The Constitutional Council
E. Sovereignty and the Amendment Process
F. French Decentralization and Federalism
III. Judicial Review in France
A. The Historical French View on Judges
B. Judicial Review in France Since 1958
IV. Important Case Law
A. Abortion
B. Equality and Women
C. Hate Speech
D. Religion
1. Law of Dec. 9, 1905 On the Separation of Church and State J.O.
E. Protections Against the Taking of Private Property
V. Why Did Judicial Review Originate and Grow in France?
Chapter 7 The Republic of Korea
I. History, Constitution, and Amending Process
II. Judicial Review, Bill of Rights, and Equality Guarantee
III. The Origins and Growth of Judicial Review in South Korea
Chapter 8 The Federative Republic of Brazil
I. History
II. Institutions of the Government
A. The President
B. The Bicameral National Congress
C. The Supreme Federal Tribunal
D. Federalism
E. Bills of Rights
F. Amendment Procedure
III. Judicial Review in Brazil
A. Foundational Cases
B. Bill of Rights Cases
IV. Origins of Judicial Review in Brazil
Chapter 9 Mexico
I. A Brief History of Mexico and Its Courts
II. The Origins of Independent Judicial Review in Mexico
III. The Post-​1995 Growth of Mexican Judicial Review
A. Foundational Cases
B. The Separation of Powers and Bicameralism
C. Federalism
D. The Mexican Bill of Rights and Unenumerated Rights
E. Freedom of Expression
F. Freedom of Religion and Laïcité
G. Criminal Procedure
H. Unconstitutional Searches and Seizures
I. Election Law and Militant Democracy
J. Conclusion
Chapter 10 Indonesia
I. History
II. A Short History of Judicial Review in Indonesia
A. The Separation of Powers
B. Federalism
C. Bill of Rights and Unenumerated Rights
D. The Death Penalty in Indonesia
E. Equality Under the Law
F. Freedom of Expression
G. Freedom of Religion
III. The Origins and Growth of Judicial Review in Indonesia
IV. Conclusion
Chapter 11 The European Union and the Council of Europe
I. The European Union and the European Court of Justice
A. Institutions and Structure
B. History of the EU
C. History of the ECJ
II. The Emergence of Judicial Review in the European Union
III. Expansion of Judicial Review in the European Union
IV. Why Did Judicial Review Originate and Grow in the EU?
V. The Council of Europe, the European Convention on Human Rights and Freedoms, and the European Court of Human Rights
A. History of the ECHR and of the ECtHR
B. The ECtHR and Its Jurisdiction in 2021
C. Case Law
1. Judicial Independence
2. Freedom of Expression That Incites Lawless Action
3. Freedom of Expression and Hate Speech
4. Freedom of Religion and Proselytizing
5. Freedom from Torture or Inhuman or Degrading Treatment
6. The Right to Silence and Not to Incriminate Oneself
7. Property Rights and Regulatory Takings
8. Right to Respect for Private and Family Life
9. The Right of Incarcerated Prisoners to Vote in Elections
10. Freedom of Assembly and Association
11. The Convention and the Rights of Citizens in the Civil Service
12. Conclusions on the ECtHR’s Case Law
VII. Explaining the Origins and Growth in Power of the Council of Europe and of the European Court of Human Rights
Conclusion: The German Model and Gouvernement des Juges
Index