This dissertation explores conceptual, normative, and institutional dimensions of the emergency problematic and defends judicial participation in emergency governance. I develop my arguments on the basis of Posner and Vermeule’s discussion in their book Terror in the Balance. I reject their institutional account of emergency governance captured in their deference thesis by showing its incompatibility with fundamental liberal democratic commitments. As I argue, Posner and Vermeule’s call for across-the-board judicial deference to the executive during emergencies is unwarranted in a number of cases, most notably those involving conflicts of constitutional rights. I also reject Posner and Vermeule’s account of emergency policymaking captured in their tradeoff thesis by showing that it does not provide a suitable criterion by means of which the legitimacy of emergency policies could be determined. My arguments against the tradeoff and deference theses are based in part on my critique of Posner and Vermeule’s conception of emergency situations. In fleshing out my conception of emergency, I present and defend a methodological approach to studying the emergency problematic and offer an extensive discussion of exceptionality associated with emergencies. My conclusion is that it is necessary to take in account liberal democratic commitments in the process of emergency policymaking and that judicial review of the executive during periods of emergency is conducive to legitimate emergency governance. / Thesis / Doctor of Philosophy (PhD) / Some national security crises pose serious challenges to western liberal democracies. On the one hand, because such crises threaten individual lives and the welfare of the political community, there is a strong case in favor of demanding that the government do everything in its power to quash such threats by any means necessary. On the other hand, a number of constitutional commitments seem to prevent liberal democracies from using some means in addressing national security crises. In particular, emergency measures such as coercive interrogation and indefinite detention seem to undermine a number of values and commitments that are fundamental to liberal democratic regimes. In addition, there is a controversy surrounding the role of the judiciary during emergencies. Should judges review executive action to ensure its legitimacy during emergencies or should the executive be the final authority on the legitimacy of its policies? My dissertation develops answers to these questions. I begin by exploring conceptual issues surrounding emergencies. On the basis of this exploration, I provide an account of the role of fundamental liberal democratic commitments in the project of emergency governance and argue in favor of judicial participation in governing liberal democratic communities during periods of emergency.

A study in the effects of the solicitor general on judicial deference to the executive branch at the state court level. There has been significant research done into the development of judicial deference, but it almost always takes place at the Supreme Court. Similarly, the Solicitor General’s success rate has only been analyzed at the federal level. Recently there has been a trend of states creating Solicitor General Offices in order to gain the advantage perceived at the federal level. By comparing the level of deference state courts give to their executive branch over two time periods I determine that although the Solicitor General does impact deference, the impact isn’t immediate. The states with the strongest level of deference were the states that have had Solicitor Generals for a significant amount of time before the analysis. States where the office was created I between the two time periods do experience heightened deference, but at a lower level. This paper seeks to fill the gap in judiciary research where the majority of the focus is on the Supreme Court, which although very important does not give a comprehensive understanding of the US judicial branch.

Relations between courts and public administration in statutory construction Abstract Judicial review of administrative decisions (and statutory construction contained in them) may use divergent standards (strictness). The classical continental concept of administrative justice follows from the notion that courts answer questions of law independently of the administrative body. The goal of the thesis is to cast doubt on this concept and to define situations where it can be considered that courts could be deferential towards the public administration, i.e. leave certain space to the administration for its own interpretation, which the court would accept even though the court itself might not see the interpretation as the best one. The comparative part of the thesis shows that such an approach of administrative courts regarding interpretation made by public administration is not totally rare. That is mainly the case of the United States of America, where in the instance of ambiguous statutes or secondary legislation, the interpretation made by the agency charged with administering the law is rewarded with deference if such interpretation is at least permissible. Czech administrative courts (and the Constitutional Court) also often concede that there is a plurality of equally convincing legal interpretations....

O presente estudo tem por objetivo investigar a legitimidade do controle judicial de constitucionalidade das leis, à luz do princípio democrático. Assim, o problema básico que se enfrenta nesta dissertação é o seguinte: considerados o fato do pluralismo, a existência de desacordos razoáveis na sociedade e a textura acentuadamente aberta das normas constitucionais, em que situações é legítimo que o juiz constitucional substitua a interpretação que o legislador deu à norma constitucional pela sua, própria? Em outros termos, quais seriam os critérios interpretativos (jurídicos e metajurídicos) que poderiam orientar o controle judicial de constitucionalidade das leis, de modo a se atingir um equilíbrio entre ativismo e deferência para com as decisões tomadas no âmbito do poder legislativo, de acordo com as regras do processo democrático? Para responder a essa pergunta elabora-se um discurso de justificação da revisão judicial das leis e, complementarmente, sugere-se também um método de obtenção de decisão (aplicável especificamente no momento do controle judicial de constitucionalidade das leis) estruturado para assegurar a otimização do princípio democrático. / This work is an inquiry about the legitimacy of judicial review of legislation under the democratic principle. The basic question this study purports to answer is this: taking into consideration the fact of pluralism, the existence of reasonable disagreements among people, and the open texture of constitutional law, in which situations are constitutional courts authorized to substitute their own constitutional interpretation for the interpretation chosen by the legislative body in the lawmaking process? The proposed answer to this question is given in two parts. First, we present some arguments to justify judicial review of legislation in a limited fashion. Second, we suggest a decision-making method (applicable specifically to judicial review of legislation) that is designed to ensure the optimization of democratic principle.

O presente estudo tem por objetivo investigar a legitimidade do controle judicial de constitucionalidade das leis, à luz do princípio democrático. Assim, o problema básico que se enfrenta nesta dissertação é o seguinte: considerados o fato do pluralismo, a existência de desacordos razoáveis na sociedade e a textura acentuadamente aberta das normas constitucionais, em que situações é legítimo que o juiz constitucional substitua a interpretação que o legislador deu à norma constitucional pela sua, própria? Em outros termos, quais seriam os critérios interpretativos (jurídicos e metajurídicos) que poderiam orientar o controle judicial de constitucionalidade das leis, de modo a se atingir um equilíbrio entre ativismo e deferência para com as decisões tomadas no âmbito do poder legislativo, de acordo com as regras do processo democrático? Para responder a essa pergunta elabora-se um discurso de justificação da revisão judicial das leis e, complementarmente, sugere-se também um método de obtenção de decisão (aplicável especificamente no momento do controle judicial de constitucionalidade das leis) estruturado para assegurar a otimização do princípio democrático. / This work is an inquiry about the legitimacy of judicial review of legislation under the democratic principle. The basic question this study purports to answer is this: taking into consideration the fact of pluralism, the existence of reasonable disagreements among people, and the open texture of constitutional law, in which situations are constitutional courts authorized to substitute their own constitutional interpretation for the interpretation chosen by the legislative body in the lawmaking process? The proposed answer to this question is given in two parts. First, we present some arguments to justify judicial review of legislation in a limited fashion. Second, we suggest a decision-making method (applicable specifically to judicial review of legislation) that is designed to ensure the optimization of democratic principle.

<p>Canadian courts have struggled to develop a consistent and coherent approach for reviewing administrative decision-making. In particular, they have been unable to create a workable framework that will guide when the courts will show deference to administrative tribunal interpretations of law and when they will interfere with them, leading to a system of administrative law that is unpredictable and disorderly. This thesis develops a novel approach to administrative review centered on a conception of judicial due-deference that is correlated with a Razian account of legitimate authority. My argument is that administrative review is best understood as an exercise of inter-institutional decision-making in which diverse institutions within the meta-institution of government must work together to arrive at decisions that best secure government objectives. When reviewing courts recognize that administrative actors are better situated in particular circumstances to make decisions than the courts, they ought to show deference. On the other hand, when courts are better situated to handle these matters, deference is not to be shown. I begin in Part I by analyzing the history of Canadian administrative law jurisprudence through to the Supreme Court’s 2008 decision in <em>Dunsmuir</em>, highlighting the competing principles of the rule of law and democracy that animate the ‘Diceyan Dialectic’. In Part II, I articulate a complex theory of inter-institutional reasoning that demonstrates the important role of deference and authority in good government decision-making. In Part III, I apply this model to the circumstances of Canadian administrative review. I show how there are certain institutional strengths, as well as key limitations, with respect to how our superior courts can play a role in upholding the Rule of Law and democracy. Ultimately, I argue that the superior courts must pay attention to the unique institutional placement of administrative actors relative to them in order to discern if these non-curial actors possess greater authority and hence ought to be shown deference.</p> / Doctor of Philosophy (PhD)