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...
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 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...
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...