Courts and Democracy: The Production and Reproduction of Constitutional Conflict
Judith Resnik
Resnik.pdf (724.31 KB)
Courts and Democracy: The Production and Reproduction of Constitutional Conflict

A brief foray into comparative and transnational law finds the debate about abortion in courts, legislatures, and intergovernmental bodies around the world. 

Instead of presuming that judicial review displaces or silences democratic processes, the interaction of Roe, Carhart, and the transnational exchanges make plain that the practices of democracies depend on dialogic interaction among the many groups within and across social orders. Legal generativity, from all sides of the political spectrum, is an artefact of adjudication in democratic polities.
 
 
ALSO OF INTEREST
Report
The Capacity of Courts to Handle Complexity

This report and associated policy briefs examine the effectiveness of courts at adjudicating complex cases, through analysis of cases involving health care, education, environmental risk regulation, and commercial law.

Download
Report
Report: Democracy, the Courts, and the Making of Public Policy

Report and critical analysis of the inaugural workshop in our 'Courts and the Making of Public Policy' programme

Download
Policy Brief
Constitutional Socio-Economic Rights: Lessons from Central Europe

Whether socio-economic rights should be entrenched in constitutions has been a subject of lively debate. On the one hand, it has been argued that such an entrenchment is necessary in order to recognize the worth and standing of those rights and in order to give individual claimants sufficient remedies in cases of a breach of a right. On the other hand, it has been argued that it is unnecessary (because statutory recognition is sufficient) and even harmful because it invites judges to enter into the field of social policy where they have neither competence nor legitimacy to act.

Download
Policy Brief
The Role of Courts in the Implementation of Economic, Social, and Cultural Rights

This policy brief sets out some of the recent case law on the right to the highest attainable standard of health and argues that this jurisprudence exposes the unnecessarily narrow construction of the social contract.

The boundaries of the social contract can be expanded to encompass not only the civil and political elements, but also the social.
Download