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Comparative Constitutional Law (Research Handbooks in Comparative Law) PDF

680 Pages·2011·2.65 MB·English
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COMPARATIVE CONSTITUTIONAL LAW RESEARCH HANDBOOKS IN COMPARATIVE LAW Series Editors: Francesco Parisi, Oppenheimer Wolff and Donnelly Professor of Law, University of Minnesota, USA and Professor of Economics, University of Bologna, Italyand Tom Ginsburg, Professor of Law, University of Chicago, USA The volumes in this series offer high-level discussion and analysis on particular aspects of legal systems and the law. Well-known scholars edit each handbook and bring together acces- sible yet sophisticated contributions from an international cast of top researchers. The first series of its kind to cover a wide range of comparative issues so comprehensively, this is an indispensable resource for students and scholars alike. Titles in this series include: Comparative Administrative Law Edited by Susan Rose-Ackerman and Peter L. Lindseth Comparative Constitutional Law Edited by Tom Ginsburg and Rosalind Dixon Comparative Constitutional Law Edited by Tom Ginsburg University of Chicago, USA and Rosalind Dixon University of Chicago, USA RESEARCH HANDBOOKS IN COMPARATIVE LAW Edward Elgar Cheltenham, UK • Northampton, MA, USA ©The Editors and Contributors Severally 2011 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or other- wise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2010939197 ISBN 978 1 84844 539 0 (cased) Typeset by Cambrian Typesetters, Camberley, Surrey Printed and bound by MPG Books Group, UK 4 0 Contents List of contributors viii Acknowledgements xi 1 Introduction 1 Rosalind Dixon and Tom Ginsburg PART I CONSTITUTIONAL DESIGN AND REDESIGN 2 Drafting, design and gender 19 Helen Irving 3 Participation in constitutional design 38 Justin Blount 4 Transitional justice and the transformation of constitutionalism 57 Ruti Teitel 5 Constitutional drafting and external influence 77 Zaid Al-Ali 6 Constitutional amendment rules: a comparative perspective 96 Rosalind Dixon 7 Constitutional endurance 112 Tom Ginsburg PART II CONSTITUTIONAL IDENTITY 8 The formation of constitutional identities 129 Gary J. Jacobsohn 9 Citizenship and the boundaries of the constitution 143 Kim Rubenstein and Niamh Lenagh-Maguire 10 Comparative constitutional law and Indigenous peoples: Canada, New Zealand and the USA 170 Claire Charters 11 A new global constitutional order? 189 David Schneiderman PART III CONSTITUTIONAL STRUCTURE 12 Legislative-executive relations 211 José Antonio Cheibub and Fernando Limongi 13 The separation of legislative and executive powers 234 Ronald J. Krotoszynski, Jr. v vi Comparative constitutional law 14 Political parties and constitutionalism 254 Richard H. Pildes 15 The rise of specialized constitutional courts 265 Víctor Ferreres Comella 16 The interplay of constitutional and ordinary jurisdiction 278 Frank I. Michelman 17 Constitutional experimentation: rethinking how a bill of rights functions 298 Janet L. Hiebert 18 The rise of weak-form judicial review 321 Mark Tushnet 19 Constitutions and emergency regimes 334 Oren Gross 20 Federalism, devolution and secession: from classical to post-conflict federalism 356 Sujit Choudhry and Nathan Hume PART IV INDIVIDUAL RIGHTS AND STATE DUTIES 21 The structure and scope of constitutional rights 387 Stephen Gardbaum 22 The comparative constitutional law of freedom of expression 406 Adrienne Stone 23 Comparative constitutional law and religion 422 Ran Hirschl 24 Autonomy, dignity and abortion 441 Donald P. Kommers 25 Human dignity in constitutional adjudication 459 Paolo G. Carozza 26 Equality 473 Kate O’Regan and Nick Friedman 27 The right to property 504 Tom Allen 28 Socio-economic rights: has the promise of eradicating the divide between first and second generation rights been fulfilled? 519 Dennis M. Davis 29 Comparative constitutional law and the challenges of terrorism law 532 Kent Roach 30 Legal protection of same-sex partnerships and comparative constitutional law 551 Nicholas Bamforth PART V COURTS AND CONSTITUTIONAL INTERPRETATION 31 Judicial engagement with comparative law 571 Cheryl Saunders Contents vii 32 Constitutional interpretation in comparative perspective: comparing judges or courts? 599 Vicki C. Jackson and Jamal Greene 33 Docket control and the success of constitutional courts 624 David Fontana Index 643 Contributors Zaid Al-Ali is Visiting Lecturer at the Institut d’Etudes Politiques (Sciences-Po), Paris, France; Senior Analyst at the International Crisis Group; PhD Candidate at the University of Paris II (Pantheon-Assas); and Outside Counsel (international commercial arbitration). Tom Allenis Professor, Durham Law School (UK). Nicholas Bamforthis Fellow in Law, Queen’s College, University of Oxford (UK). Justin Blount is Ph.D. candidate in the Department of Political Science, University of Illinois. Paolo G. Carozzais Professor, University of Notre Dame Law School. Claire Charters is Research Fellow, New Zealand Centre for Public Law, Victoria University of Wellington (New Zealand), and Human Rights Officer, United Nations Office of the High Commissioner for Human Rights. José Antonio Cheibub is Professor in the Department of Political Science, University of Illinois at Urbana-Champaign. Sujit Choudhryis Scholl Chair, University of Toronto Faculty of Law (Canada). Dennis M. Davisis Judge of the High Court, Cape Town, South Africa. Rosalind Dixonis Assistant Professor, University of Chicago Law School. Víctor Ferreres Comella is Professor of Constitutional Law, Pompeu Fabra University (Barcelona). David Fontanais Associate Professor, George Washington University Law School. Nick Friedmanis M.Phil Candidate, Centre for Socio-Legal Studies, University of Oxford (UK). Stephen Gardbaumis MacArthur Foundation Professor of International Justice and Human Rights, University of California Los Angeles School of Law. Tom Ginsburgis Professor, University of Chicago Law School. Jamal Greeneis Associate Professor, Columbia Law School. viii Contributors ix Oren Gross is Irving Younger Professor of Law and Director, Institute for International Legal & Security Studies, University of Minnesota Law School. Janet L. Hiebertis Professor of Political Studies, Queen’s University (Canada). Ran Hirschl is Professor of Law and Political Science, and Canada Research Chair in Constitutionalism, Democracy, and Development, University of Toronto (Canada). Nathan Humeis an S.J.D. candidate at the University of Toronto Faculty of Law (Canada). Helen Irvingis Professor, University of Sydney Law School (Australia). Vicki C. Jackson is Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. Gary J. Jacobsohnis H. Malcolm Macdonald Professor of Constitutional and Comparative Law, Department of Government, University of Texas at Austin. Donald P. Kommers is Joseph and Elizabeth Robbie Professor of Political Science and Professor of Law Emeritus, University of Notre Dame. Ronald J. Krotoszynski, Jr. is John S. Stone Chairholder of Law and Director of Faculty Research, University of Alabama Law School. Niamh Lenagh-Maguire is a Lawyer at the Australian Goverment Solicitor, Canberra (Australia). Fernando Limongiis Professor, Universidade de São Paulo (Brazil). Frank I. Michelmanis Robert Walmsley University Professor, Harvard University. Kate O’Reganis former Judge, Constitutional Court of South Africa (1994–2009); Honorary Professor, University of Cape Town; Visiting Professor, University of Oxford(UK). Richard H. Pildesis Sudler Family Professor of Constitutional Law, New York University School of Law. Kent Roach is Prichard-Wilson Chair of Law and Public Policy, University of Toronto Faculty of Law (Canada). Kim Rubenstein is Professor and Director of the Centre for International and Public Law, Australian National University College of Law (Australia). Cheryl Saundersis Laureate Professor, University of Melbourne Law School (Australia). David Schneidermanis Professor, University of Toronto (Canada). x Comparative constitutional law Adrienne Stoneis Professor, University of Melbourne Law School (Australia). Ruti Teitelis Ernst C. Stiefel Professor of Comparative Law, New York Law School. Mark Tushnetis William Nelson Cromwell Professor of Law, Harvard Law School.

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