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What is the starting point of Stone Sweet's theory on triadic dispute resolution
The theory begins with a dyad, a relationship between two people, as the necessary building blocks for governance and society.
What role does the normative structure play in dyads?
The dyad rests on the normative structure which includes rules, principles, and values that govern the relationship.
What is a triad in the context of TDR?
A triad is a third party that helps resolve conflicts arising in dyads based on the normative structure they operate within.
What is a key requirement for a triadic dispute resolver?
Impartiality is key; the third party must be agreed upon by both parties to provide a fair decision without bias.
What is the constitutional role of the Constitutional Council in the French Fifth Republic?
The Constitutional Council checks if laws are constitutional and adheres to the separation of powers, reshaping the normative structure of law-making.
What changes occurred in the French Constitutional Council in 1974?
There were two major changes: the introduction of rights allowing review of rights violations and allowing legislative minorities to bring claims of unconstitutionality.
What are the three functions of courts as noted by Shapiro?
Dispute/conflict resolution, social control, and lawmaking.
What is one flaw identified in the prototype of courts by Shapiro?
Judges are not independent as they represent the state and often create new law while deciding cases.
How does the notion of consent function in triadic dispute resolution?
Consent is crucial; it ensures all parties agree to the resolution approach, and its absence may undermine the legitimacy of the decision-maker.
What is the mediating continuum described in the context of consent?
The continuum includes roles such as go-between, mediator, arbitrator, and judge, differing primarily in the degree of consent from the parties.
What distinguishes mediation from arbitration?
Mediation involves greater consent and collaboration in finding solutions, while arbitration is more binding and often involves less participatory consent.
What is Social Control in the context of law?
Social Control is the imposition of national or community standards for interactions and disputes, similar to the normative structure that courts operate in.
How does a dispute resolver relate to the normative structure?
The dispute resolver embodies that normative structure or represents the interests of society or the regime.
What does Shapiro argue about judges in relation to the political system?
Judges are not independent of the political system; they are part of it and responsible for administering society.
What does Shapiro mean when he says 'courts govern a space'?
It signifies that judges play an active role in the political and administrative structure, influencing societal norms and control.
What class interests do courts often embody according to Shapiro?
The law often embodies the interests of the dominant class in society, typically the wealthy, white, men.
How is the fiction of judicial independence maintained?
It is maintained through institutional means and design, including barriers between the regime and the courts.
What is Shapiro's perspective on judges as lawmakers?
Judges make law through their decisions in dispute resolution, rather than merely applying preexisting rules.
What are some ways that regimes exert control over courts?
Regimes can withdraw from judicial matters, intervene in cases, and create recruitment systems that ensure judges serve their political interests.
What function do courts serve in many societies according to Shapiro?
Courts assist in maintaining order and provide a uniform body of law to facilitate central administration.
How does Shapiro critique the concept of judicial independence?
Judicial independence is often more about serving upper class interests rather than being independent from political or local interests.
Why is the independence of judges critical to the triadic conflict resolution framework?
Independence is crucial because it underpins the legitimacy of judges as fair arbiters between conflicting parties.
What is the impact of preexisting legal norms on the independence of judges?
Applying preexisting legal norms undermines the concept of an independent judge, as it introduces external interests into the dispute.
What does Shapiro say about judicial lawmaking in the Anglo-American legal system?
The common law is primarily judge-made, and judicial lawmaking can violate the requirement for preexisting rules outlined in the prototype.
What are the implications of case-by-case judicial lawmaking?
Case-by-case lawmaking can conflict with the prototype's structure of preexisting legal norms and undermine the independence of judges.
What is power in the context of judicial systems?
Power is defined as the capacity of a court to have independent input on a broad range of politically significant issues.
What are the three dimensions of formal judicial power?
Ability to form preferences (ex ante autonomy). 2. Ability to articulate preferences (ex post autonomy). 3. Ability to rule on important questions and intervene in disputes (authority).
What does autonomy refer to in judicial contexts?
Autonomy refers to the extent to which a court is free from unilateral control by a single actor or interest outside the court.
What is the definition of authority in judicial systems?
Authority is the ability to intervene decisively in a broad range of politically significant disputes on behalf of a broad range of people.
What components are considered under the scope of authority?
Agenda control. 2. Access continuum. 3. Rights in the constitution. 4. Types of disputes. 5. Difficulty of overruling decisions. 6. Effect of decisions. 7. Ancillary powers.
What does ex post autonomy refer to?
Ex post autonomy relates to mechanisms that control the behavior of justices after they are appointed, including tenure length, removal, and pressure mechanisms.
What influences the majoritarian or supermajoritarian nature of judicial appointments?
The more supermajoritarian the appointment process, the more moderate the candidates are likely to be.
What role does the Judicial Council play in appointments?
The Judicial Council proposes a slate of candidates for appointment, aiming to balance political representation.
What are the pros and cons of professional vs. political judicial appointments?
Professional appointments tend to provide more insulation from political influence, while political appointments align the court more closely with current political realities.
What does the term 'scope of authority' imply in judicial contexts?
Scope of authority implies formal capacity to intervene in a variety of disputes on behalf of various actors with broadly binding decisions.
What differentiates unilateral, cooperative, and representative political appointments?
Unilateral allows one individual to appoint justices; cooperative requires agreement between bodies; representative ensures different political groups are represented.
What is the impact of access on judicial review?
Access affects who can bring claims to court and whether the review process is open to the general public or restricted to elite actors.
What is the effect of the ruling in judicial authority?
The effect of rulings includes whether courts acknowledge precedent, the universality of rulings, and if legislature can overrule a decision.
How does the balance of political control affect judicial autonomy?
A balance of political control in appointments and oversight can lead to increased judicial autonomy and improved impartiality.
What distinguishes low autonomy/high authority courts from high autonomy/low authority courts?
Low autonomy/high authority courts engage more in lawmaking for social control, while high autonomy/low authority courts have predetermined outcomes due to regime interests.
What does the design of courts aim to achieve regarding autonomy and authority?
The design aims for a balance of autonomy and authority that effectively addresses the political context and desired societal outcomes.
What does 'ex ante autonomy' refer to?
Ex ante autonomy refers to the mechanisms in place before a judge's appointment that influence the selection of judges based on their preferences.
How does the 'scope of authority' define a court's role?
The scope of authority defines a court's formal capacity to intervene in a broad range of politically significant disputes on behalf of various actors.
What is the difference between centralized and diffuse judicial review?
Centralized judicial review involves a specific court reviewing legislation, while diffuse review allows ordinary courts to address constitutional issues.
What are the implications of judicial appointments on ex ante and ex post autonomy?
Judicial appointments shape who controls the court before (ex ante) and after (ex post) justices are seated, impacting the court's independence and accountability.
What are the potential effects of a professional appointment system compared to a political appointment system?
Professional appointments can lead to greater insulation from political influence, while political appointments may align judges more closely with current government policies.
How does tenure length affect judicial autonomy?
Longer terms may enhance independence from political control, whereas shorter terms can increase accountability but lower autonomy.
In what ways can the legislature exert control over the judiciary?
Through removal processes, defining the court's budget, and influencing the appointment of judges.
What is the significance of the legislative majority or supermajority in judicial appointments?
A supermajority may ensure broader representation and moderate candidates, while a simple majority can lead to more partisan appointments.
How does access to judicial review vary based on the prevalence of political interests?
Access can be limited to political elites or opened up to the general public depending on whether the ruling coalition expects to lose influence.
How does the relationship between judicial authority and autonomy affect governance?
High authority with low autonomy can lead to courts that serve social control, while high autonomy with narrow authority may limit the court's importance.
What is the impact of 'court packing' on judicial independence?
Court packing can undermine judicial independence by increasing political control over the court's composition and decisions.
Why might courts with low autonomy and high authority still have significant power?
They can enact social control and make laws, despite being politically aligned with the governing coalition.
How can conflicting political interests within a court's makeup affect its function?
Conflicting interests may lead to fragmentation and hinder consensus, impacting the court's effectiveness.
In what way does the design of courts need to align with societal goals?
Court design should balance autonomy and authority to effectively address the relevant political context and achieve desired societal outcomes.
How do changes to institutional arrangements affect court operations within political systems?
Changes to institutional arrangements can alter the dynamics of how courts interact with the political system, including the balance of power, judicial authority, and the scope of issues they can adjudicate.
What boundaries does the Constitution establish around ordinary politics?
The Constitution delineates a boundary within which ordinary politics operates, allowing discussions and decisions on a broad range of issues while preserving certain areas for constitutional interpretation.
What is the difference between constitutional politics and constitutional justice?
Constitutional politics refers to issues that have a constitutional dimension but are not necessarily adjudicated in court, while constitutional justice involves cases initiated within the court system.
How do the constitutional structures of the U.S., England, and France differ in terms of judicial authority?
These countries conceptualize a broad space for ordinary politics, a limited space for constitutional politics, and a narrow space for constitutional justice, restricting court powers compared to newer constitutions.
What shift occurred in England regarding constitutional justice with the UK's membership in the EU?
England saw an expansion of constitutional justice as the courts were empowered to interpret and enforce broader rights under the European legal framework.
How did the role of the Indian judiciary evolve over time regarding constitutional politics?
When India was first created, there was this huge space for constitutional politics, the legislature has this constitutional duty to pursue these ends of state but the court doesn't have jurisdiction over those things. Over time, the court took power and decided that those directive principles would be justiciable and that they would have a say over that sphere. All those things are now subject to constitutional adjustments and to the court's oversight.
This pattern spread across the global south.
What role do courts in Colombia and South Africa play concerning social rights?
Courts are tasked with overseeing state obligations regarding rights such as health, education, and work, prompting a proliferation of constitutional rights that reshape political debates.
What does judicial autonomy aim to achieve in terms of court impartiality?
Judicial autonomy seeks a balance of partialities—not complete separation from politics—by promoting broader participation in appointing and overseeing the judiciary.
What is the goal of judicial authority in the context of court operations?
The goal is for courts to effectively weigh in on significant issues with promptness and to have an authoritative voice, emphasizing engagement in constitutional discourse rather than being the final arbiter.
How can judicial authority and autonomy be effectively designed?
Courts should be designed to have balanced autonomy and authority that align with societal needs and preferences, ensuring they can handle constitutional matters competently.
How did the Venezuelan regime utilize the court system?
The regime used the court to dismantle the old constitutional framework and build a new one, disempowering the legislature and delegitimizing the opposition.
What characterizes sidelined systems of constitutional justice?
These systems have very low authority and autonomy, often only involved in taking the regime's side and dedicated to social control.
What has been the situation of courts in Haiti?
Haiti has had a weak court system with unilateral appointments by the prime minister and limited jurisdiction over important legal questions.
What is the impact of courts with low autonomy and high authority?
They engage in lawmaking that serves social control, utilizing their authority to intervene in various matters.
What defines courts with high autonomy and low authority?
Their outcomes are predetermined by regime interests, but they are limited in the scope of issues addressed, making them less important.
How does political control over ex ante mechanisms typically manifest in Latin America?
It is largely concentrated in the executive branch, as seen in cases from Guatemala, El Salvador, and Honduras in 1975.
What is the trend involving ex post autonomy in Latin American courts?
Control tends to be centered in the legislature, especially regarding incentives for judges once they are appointed.
How does the relationship between the executive and legislature affect judicial autonomy in Mexico?
The Mexican executive has substantial control over judicial appointments, with little influence from the legislature.
What does it mean for a court to have low ex post autonomy but high ex ante autonomy?
It indicates that the court is separating from the executive while maintaining closer ties with the legislature, increasing its overall independence.
What has been the general acceptance regarding constitutional courts in Latin America?
Political actors have largely accepted that a functioning democracy requires a constitutional court, leading to the decline of systems with little autonomy
What is a common trend regarding constitutional courts in Latin America?
Political actors largely accept that a functioning democracy requires a constitutional court, benefiting the stability of democratic institutions.
What characterizes courts with low autonomy and high authority in Latin America?
They engage in lawmaking that serves social control, often aligned with the interests of the ruling regime.
What is the significance of the judicial landscape in Haiti?
Haiti's judicial system has been weak, with a history of unilateral appointments by the prime minister and limited jurisdiction over significant legal matters.
How have Venezuelan regimes used the court system?
The regime has used the judicial system to dismantle the old constitutional framework and promote a new one, undermining legislative power and delegitimizing opposition.
What are the potential benefits of ex post autonomy?
Pros of ex post autonomy include increased insulation of judges from political influence due to more actors and protected features.
What are the trade-offs associated with ex post autonomy?
Cons of ex post autonomy include potential loss of control, possible deadlock among judges, and a lack of accountability.
How does term length impact judicial autonomy?
Judges can have life tenure with mandatory retirement or fixed terms; fixed terms may allow for re-appointment or specific duration, influencing overall independence.
What role does the Judicial Council play in discipline and removal of judges?
The Judicial Council may handle judge removals under specified conditions, requiring a certain number of actors and a consensus level for decisions.
What are some considerations for pressure points in judicial systems?
Key pressure points can include whether court size is predetermined (to prevent packing), how jurisdiction is fixed in the constitution, and whether salary/budget is protected from political pressure.
What is the significance of fixed jurisdiction in relation to ex post autonomy?
Fixed jurisdiction helps to insulate courts from political pressure, allowing them to operate independently in their adjudicative functions.
How does the term 'court packing' relate to judicial autonomy?
Court packing refers to increasing the size of the court to dilute its independence, thus affecting its ability to function impartially.
What is power in the context of judicial systems?
Power is defined as the capacity of a court to have independent input on a broad range of politically significant issues.
What does autonomy refer to in judicial contexts?
Autonomy refers to the extent to which a court is free from unilateral control by a single actor or interest outside the court.
What is the definition of authority in judicial systems?
Authority is the ability to intervene decisively in a broad range of politically significant disputes on behalf of a broad range of people.
What components are considered under the scope of authority?
Agenda control. 2. Access continuum. 3. Rights in the constitution. 4. Types of disputes. 5. Difficulty of overruling decisions. 6. Effect of decisions. 7. Ancillary powers.
What influences the majoritarian or supermajoritarian nature of judicial appointments?
The more supermajoritarian the appointment process, the more moderate the candidates are likely to be.
What role does the Judicial Council play in appointments?
The Judicial Council proposes a slate of candidates for appointment, aiming to balance political representation.
What are the pros and cons of professional vs. political judicial appointments?
Professional appointments tend to provide more insulation from political influence, while political appointments align the court more closely with current political realities.
What is the impact of access on judicial review?
Access affects who can bring claims to court and whether the review process is open to the general public or restricted to elite actors.
What is the effect of the ruling in judicial authority?
The effect of rulings includes whether courts acknowledge precedent, the universality of rulings, and if legislature can overrule a decision.
How does the balance of political control affect judicial autonomy?
A balance of political control in appointments and oversight can lead to increased judicial autonomy and improved impartiality.
What distinguishes low autonomy/high authority courts from high autonomy/low authority courts?
Low autonomy/high authority courts engage more in lawmaking for social control, while high autonomy/low authority courts have predetermined outcomes due to regime interests.
What does the design of courts aim to achieve regarding autonomy and authority?
The design aims for a balance of autonomy and authority that effectively addresses the political context and desired societal outcomes.
What is the difference between centralized and diffuse judicial review?
Centralized judicial review involves a specific court reviewing legislation, while diffuse review allows ordinary courts to address constitutional issues.
What are the potential effects of a professional appointment system compared to a political appointment system?
Professional appointments can lead to greater insulation from political influence, while political appointments may align judges more closely with current government policies.
