The separation of powers and legislative interference in judicial process constitutional principles and limitations Peter A. Gerangelos.

Format:

Book

Author/Creator:

Gerangelos, Peter A., author.

Language:

English

Subjects (All):

Separation of powers.

Judicial independence.

Judicial process.

Physical Description:

1 online resource (360 p.)

Edition:

1st ed.

Place of Publication:

Oxford Portland, Oregon Hart Publishing 2009.

Language Note:

English

Summary:

This book examines the constitutional principles governing the relationship between legislatures and courts at that critical crossroads of their power where legislatures may seek to intervene in the judicial process, or to interfere with judicial functions, to secure outcomes consistent with their policy objectives or interests. Cases of high political moment are usually involved, where the temptation, indeed political imperative, for legislatures to intervene can be overwhelming. Although the methods of intervention are various, ranging from the direct and egregious to the subtle and imperceptible, unbridled legislative power in this regard has been a continuing concern in all common law jurisdictions. Prominent examples include direct legislative interference in pending cases, usurpation of judicial power by legislatures, limitations on the jurisdiction of courts, strategic amendments to law applicable to cases pending appeal, and attempts directly to overturn court decisions in particular cases. Because the doctrine of the separation of powers, as an entrenched constitutional rule, is a major source of principle, the book will examine in detail the jurisprudence of the United States and Australia in particular. These jurisdictions have identical constitutional provisions entrenching that doctrine as well as the most developed jurisprudence on this point. The legal position in the United Kingdom, which does not have an entrenched separation of powers doctrine, will be examined as a counterpoint. Other relevant jurisdictions (such as Canada, Ireland and India) are also examined in the context of particular principles, particularly when their respective jurisprudence is rather more developed on discrete points. The book examines how the relevant constitutional principles strive to maintain the primacy of the law-making role of the legislature in a representative democracy and yet afford the decisional independence of the judiciary that degree of protection essential to protect it from the legislature's 'impetuous vortex', to borrow the words of James Madison from The Federalist (No 48)

Contents:

Introduction

Legislative interference in the pending case scenario : the foundation of principle and the Australian position

Legislative interference with judicial functions : the jurisprudence of the United States, evaluation of principle, and towards resolution

The separation of powers and final judgments : defining the principle limiting legislative revision of final judgments

Qualifications to the inviolability of final judgments and final summation

Protections afforded decisional independence in jurisdictions without an entrenched separation of powers

1 Introduction

I. The Relevant Scenarios

II. Definitional Difficulties

III. The Original Legal Entrenchment of the Doctrine and

the Underlying Rationale

IV. The Possibility of General Principles and

Interpretational Methodology

V. The Purposive Nature of The Separation of Powers

Doctrine

VI. The Problem of Definition and the Formalist Approach

VII. Core Branch Functions?

2 Legislative Interference in the Pending Case Scenario: The

Foundation of Principle and the Australian Position

I. Introduction

II. The Australian Constitutional Position and the Early

Australian Constitutional Scholars

III. Early Development of Principle by the High Court

IV. The Foundation of a Discrete Set of Principles

Governing the Pending Case Scenario: Liyanage v R

V. Consolidation of Principle Post-Liyanage

VI. The Direction Rule at the Crossroads: Nicholas v The

Queen

VII. The Uncertain Status of the Direction Principle in

Australia

3 Legislative Interference with Judicial Functions: The

Jurisprudence of the United States, Evaluation of Principle, and

Towards Resolution

II. The Emergence of the Changed Law Rule and the

Direction Principle in the United States

III. Klein and Its Uncertain Meaning

IV. Hart's Thesis and the United States Foundation of the

Direction Principle

V. The Decline of the Direction Rule: The Robertson Case

VI. Robertson's Uncertain Legacy: Plaut v Spendthrift Farm Inc

VII. Klein Qualified, Overruled or Misinterpreted? Miller v

French

VIII. The Schiavo Litigation

IX. Further Confirmation of the Direction Principle

X. General Conclusions on the Separation of Powers and

the Pending Case Scenario

XI. Towards a Resolution

XII. A Reformulated Direction Principle

XIII. Speculative Propositions

XIV. Conclusion

4 The Separation of Powers and Final Judgments: Defining the

Principle Limiting Legislative Revision of Final Judgments

I. Introduction and Definition of Final Judgment

II. Reflections on Finality Where the Separation Doctrine

is Not Entrenched

III. A Middle Case: India

IV. Early Australian Commentary on the Constitutional

Protection of Final Judgments

V. The Current Australian Position

VI. Qualifications

VII. A Reinforcement of Australian Jurisprudence: The

Irish Position on Final Judgments

VIII. The United States Supreme Court and Final Judgments

IX. The Wheeling Bridge Qualification

X. The Development and Consolidation of Principle by

the United States Supreme Court

XI. The Inviolability Principle Tested: Miller v French

XII. Conclusion

5 Qualifications to the Inviolability of Final Judgments and

Final Summation

II. The Wheeling Bridge Qualification, the Regulation of

Public Rights and 'Conditional' Final Judgments

III. The Waiver Qualification

IV. Conclusions on the Final Case Scenario

6 Protections Afforded Decisional Independence in Jurisdictions

without an Entrenched Separation of Powers

II. The United Kingdom and the Separation of Powers

III. The European Convention on Human Rights

IV. The United Kingdom, the ECHR and the Human

Rights Act 1998.

V. Canons of Statutory Intepretation

7 Conclusion

Notes:

Description based upon print version of record.

Includes bibliographical references and index

ISBN:

9786612304897

9781472560421

1472560426

9781282304895

1282304895

9781847315007

1847315003

OCLC:

496273443