Aim of the session: To explore how to understand and explain the role of rights, courts, and judges, and the scope and extent of their influence, in democratic politics..
Discussion topics:
(a) Do courts play a unique or especially powerful role in constitutional politics?
(b) How far has ‘judicialisation’ progressed and why?
(c) Are there any affinities between particular rights, on the one hand, and specific institutional
configurations, on the other hand?
Readings:
(a) Judges as political actors, and the relationship between rights, courts and other institutions
· Barak, A. “A Judge on Judging: The Role of a Supreme Court in a Democracy,” Harvard Law Review, Vol. 116, November 2002.
· Barak, A. Purposive Interpretation in Law (Princeton: Princeton University Press, 2005), “Introduction.”
· Benhabib, S. The Rights of Others (Cambridge: Cambridge University Press, 2004), pp. 1-24, and 171-22.
· Epp, Charles R. (1998), The Rights Revolution: Lawyers, Activists and Supreme Courts in
Comparative Perspective, Chicago: The University of Chicago Press.
· Gillman, Howard (2002), ‘How Political Parties Can Use the Courts to Advance Their Agendas:
Federal Courts in the US 1875-1891’, APSR 96 (3): 511-524
· Gloppen, Siri et al. Democratization 10:4 (winter 2003) – special issue on Democratization and the Judiciary: The Accountability Function of Courts in New Democracies.
· Kelemen, R. Dan (2001), ‘The Limits of Judicial Power’, CPS, 34:6, pp. 622-650
· Rosenberg, Gerald (1991), The Hollow Hope: Can Courts Bring About Social Change?
· Sunstein, Cass. “Against Positive Rights,” East European Constitutional Review, Vol 2, No. 1
(Winter 1993), pp. 35-38.
· Whittington, Keith E. (1999), Constitutional Construction.
b) Judicialisation
· Dworkin, R. Taking Rights Seriously, pp. esp. 90-94 and Chapter 7.
· Garrett, Geoffrey, R. Daniel Kelemen, and Heiner Schulz, ‘The European Court of Justice,
National Governments, and Legal Integration in the European Union’, International Organization 52, no. 1 (winter 1998), 149-176.
· Guarnieri, Carlo, and Patrizia Pederzoli (2002), The Power of Judges: A Comparative Study of
Courts and Democracy, introduction and ch 3
· Schwartz, Herman (2000), The Struggle for Constitutional Justice in Post-Communist Europe
· Shapiro, Martin, and Alec Stone Sweet (2002), On Law, Politics and Judicialization, Oxford:
OUP.
· Stone Sweet, A. (2000), Governing with Judges OR
. Stone Sweet (2002), ‘Constitutional Courts and Parliamentary Democracy’, West European Politics 25 (1): 77-100
· Tate, C Neal and Vallinder, Torbjörn eds (1995), The Global Expansion of Judicial Power..
