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Vol 21 No 11 Nov/Dec 2016

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Judicial Activism: An Interdisciplinary Approach to the American and European Experiences

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Edited by: Luis Pereira Coutinho, Massimo La Torre, Steven Smith

ISBN13: 9783319185484
Published: June 2015
Publisher: Springer-Verlag
Country of Publication: Switzerland
Format: Hardback
Price: £90.00



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This volume offers different perspectives on judicial practice in the European and American contexts, both arguably characterized in the last decades by the emergence of novel normative and even policy arguments by judges. The central question deserving the attention of the contributors concerns the degree in which judicial exercises in practical reasoning may amount to forms of judicial usurpation of the legislative function by courts. Since different views as to the nature and scope of legal reasoning lead to different degrees of tolerance regarding what should be admissible to courts, that same nature and scope is thoroughly debated. The main disciplinary approach is that of general jurisprudence, but the contributions take stock of other disciplines in which judicial activism has been addressed, namely positive theories of judicial behavior. Accordingly, the book also explores the development of interdisciplinary dialogue about the theme.

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Subjects:
Comparative Law, Other Jurisdictions , EU Law, USA
Contents:
Introduction

Section I Judicial Activism, Legal Reasoning And The Concept Of Law
Between Nightmare and Noble Dream: Judicial Activism and Legal Theory
Massimo La Torre
Judicial Activism: Clearing the Air and the Head
Lawrence Alexander
Judicial Activism and "Reason"
Steven D. Smith
Judicial Activism and Fidelity to Law
Goncalo de Almeida Ribeiro
Adjudication as Grammatication: The Case of French Judicial Politics
Pierre Legrand

Section II Judicial Activism in Perspective
The Activist Judge - Vanity of Vanities
James Allan
Schmitt's Spectre and Kelsen's Promise: The Polemics on the Guardian of the Constitution
Miguel Nogueira de Brito
Theories of Judicial Behavior and the Law: Taking Stock and Looking Ahead
Tiago Fidalgo de Freitas
The Passive Sovereignty of the Constitutional Judge: A State Theory Approach
Luis Pereira Coutinho

Section III Judicial Activism in Context
The Contextual Nature of Proportionality and its Relation with the Intensity of Judicial Review
Jorge Silva Sampaio
Politics and the Judiciary: A Naive Step Towards the End of Judicial Policy-Making
Maria Benedita Urbano.-The Judicial Activism of the European Court of Justice
Lourenco Vilhena de FreitasCourts and European Integration
Francisco Pereira Coutinho
Judicial Activism, Judicial Independence and Judicial Hubris: The Case of International Courts
Maimon Schwarzschild

List of Authors.