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Judicial review (constitutional adjudication)

Prof. R. Uitz
The course covers problems of constitutional adjudication in the U.S., Germany, France, Canada, South Africa and Eastern Europe, with a focus on constitutional review of legislation. Issues include the origin of judicial review, procedural aspects (jurisdiction, standing and admissibility), justification and criticism of the review power. Course materials:
Please note that the course reader does not contain all materials necessary for the
completion of the oral and written assignments. Make sure to bring to class the
respective constitutional documents.

N. Dorsen, et al. Comparative Constitutionalism Kommers D. Kommers, The Constitutional Jurisprudence in the Federal G. Stone, et al. Constitutional Law, 3rd ed.
The final grade is based on written assignments [40 per cent], in-class participation [not limited to oral assignments] [40 per cent] and a final exam [20 percent]. The final exam will be a 24 take-home essay. Coming to class unprepared amounts to absence. Please come
already to the first class prepared.
The syllabus calls for 4 (four) written assignments to be submitted during the course. No one shall be admitted to the final exam without presenting all written assignments in due time. All written assignments shall be in an essay format and shall be based on individual work. The assignments are expected to be based on required readings assigned for a particular class and do not call for additional individual research. It is advised that students read all readings required for a class before starting to work on their assignments.
Rules of academic honesty apply to all written work, including written assignments, submitted for the course. Written assignments shall be submitted at
the end of the respective class and not after the class.
Unsatisfactory written assignments may be returned for revision. Revised written assignments shall be submitted a.s.a.p., and no later than the end of the course. Written assignments are scored as Pass, Fail or Rewrite. A successfully revised assignment is worth half of a Pass. In the final grade only the 3 (three) highest scoring assignments will be counted.
Format: Times New Roman CE, 12 pts, double-spaced, no-extra wide / extra- narrow margins. Please use spell-check and observe page limits. Do not forget to put your name on each page.
In addition to written assignments, there are two major in-class oral assignments which are meant to be group projects: one is a moot-court, the other is a debating society-like task. Each student taking the course for grade is expected to participate in two group projects. All members of a group are required to participate in preparing the presentation, yet, not all members of the group are required to speak or participate otherwise during the in-class presentation. It is preferred that each students acts as a lead speaker for one of the two major group projects.
In case you have problems finding material for any of the assignments, please contact me for assistance without delay. INDIVIDUAL CONSULTATIONS:
By appointment via
Prof. R. Uitz
Readings: Marbury v. Madison [Stone]* concentrate on arguments justifying the Court’s review powerMizrahi v. Migdal Village [Dorsen, 103]A. Stone in Dorsen, Notes and Questions, 121-122 Oral assignment:- Find read and bring to class rules on the jurisdiction of the South African Constitutional Court. - Be prepared to discuss the relevant rules on the jurisdiction and basic features of constitutional review in the U.S., Germany, France (1958) and South Africa Class 2ACCESSING REVIEW FORA. THE POLITICAL QUESTION DOCTRINE IN THE US. Readings: Baker v. Carr [Stone]Nixon v. US [Stone] Quebec secession reference [reader] * read only issues and note 2 following CLASS 3WHAT IS BARRED BY THE POLITICAL QUESTION DOCTRINE?A MINI-MOOT ON BUSH V GORE.
Counsels for the Bush team and the Gore team shall argue on whether the matter is barred under the political questions doctrine.
Each team has 20 minutes to present an argument. Following a break, each team has 10 minutes for rebuttal. Note that the task is not to reenact any of the real hearings which took place in the case. Instead, each team is encouraged to come up with creative and plausible arguments, in the light of the Baker criteria.
Readings: Dorsen on standing [Dorsen, 133-136]Dienes – Barron, Specific Doctrines Limiting Judicial Review [reader]Allen v. Wright [Stone]Lujan v. Defenders of Wildlife [Stone] After class, we shall have a discussion on tasks for the debating session in Class 7. Class 5STANDING. BEYOND ‘CASE OR CONTROVERSY.’Readings: Mtikila v. A.G. [Dorsen, 136]Anand, Public interest litigation in India [reader]Zvolsky and Zvolska v. Czech Republic [reader]Canada: How do constitutional issues get to Court? [reader] WRITTEN ASSIGNMENT: 3-4 pagesWho benefits from actio popularis? Is it useful for protecting constitutional rights? If yes, on what conditions? Brown I [Stone]Brown II [Stone] * note following Brown II is recommendedPrincess Soraya [Kommers]Hogg on remedies [reader]Zeidler, Interpretations which Conform with the Constitution [Dorsen, 147]Timar v Hungary [reader] WRITTEN ASSIGNMENT: 2-3 pages Find and read the South African Constitutional Court’s decision in Minister of Health and others v. Treatment Action Campaign (the Nevirapine case.) What would have been a “proper” remedy in the Nevirapine case, and why? Class 7DEBATING SOCIETY ON JUSTIFICATIONS FOR CONSTITUTIONAL REVIEW.
Readings recommended for preparation included in the reader: Ely, Policing the Process of Representation [reader]Learned Hand, The Bill of Rights [reader]Bickel, Establishment and General Justification of Judicial Review [reader]Black, The Building Work of Judicial Review [reader]Rosenfeld: Constitutional Adjudication in Europe and the United States [reader] Detailed rules and points of argument to be discussed in Class 4.


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