General Legitimacy of Judicial Review and the Fundamental Basis of Constitutional Law

Four questions dominate normative contemporary constitutional theroy: What is the purpose of a constitution? What makes a constitution legitimate? What kinds of arguments are legitimate within the process of constitutional interpretation? What can make judicial review of legislation legitimate in principle? The main purpose of this text is to provide one general answer to the last question. The secondary purpose is to show how this answer may bear upon our understanding of the fundamental basis of constitutional law. These two purposes should suggest particular answers to the first three questions.

Diálogo institucional e direito à saúde

O trabalho busca analisar os problemas envolvendo a efetivação do direito à saúde no Brasil, os conflitos alocativos subjacentes à temática e o papel das instituições representativas, do Judiciário e da sociedade civil neste processo. Pretende-se reafirmar a importância da proteção do direito à saúde e, ao mesmo tempo, criticar uma certa euforia doutrinária e jurisprudencial que se instalou nos últimos anos e passou a compreender o Judiciário como o último guardião das promessas constitucionais não cumpridas pelos ramos representativos. O trabalho analisa as experiências constitucionais de países que não apostam no dogma da supremacia judicial e tentam conciliar a revisão judicial com mecanismos mais democráticos. A partir daí propõe o marco teórico das teorias do diálogo institucional como uma alternativa menos unilateral para enfrentar os desafios desencadeados no campo sanitário. No trabalho enfatiza-se a importância pelas preocupações com a efetividade da constituição, mas propõe-se uma reflexão sobre qual seria a melhor alternativa para tanto, chegando-se à conclusão contra-intuitiva de que talvez o caminho mais eficaz passe por um controle judicial fraco, que não despreze as potencialidades do Direito, mas que aposte mais na democracia e na interação sinérgica entre os ramos representativos e a sociedade civil.

New Governance and the EU Courts : The Experimentalist Architecture of Judicial Decision-Making

The dissertation examines the role of the EU courts in new governance. New governance has raised unprecedented interest in the EU in recent years. This is manifested in a plethora of instruments and actors at various levels that challenge more traditional forms of command-and-control regulation. New governance and political experimentation more generally is thought to sap the ability of the EU judiciary to monitor and review these experiments. The exclusion of the courts is then seen to add to the legitimacy problem of new governance. The starting point of this dissertation is the observation that the marginalised role of the courts is based on theoretical and empirical assumptions which invite scrutiny. The theoretical framework of the dissertation is deliberative democracy and democratic experimentalism. The analysis of deliberative democracy is sustained by an attempt to apply theoretical concepts to three distinctive examples of governance in the EU. These are the EU Sustainable Development Strategy, the European Chemicals Agency, and the Common Implementation Strategy for the Water Framework Directive. The case studies show numerous disincentives and barriers to judicial review. Among these are questions of the role of courts in shaping governance frameworks, the reviewability of science-based measures, the standing of individuals before the courts, and the justiciability of soft law. The dissertation analyses the conditions of judicial review in each governance environment and proposes improvements. From a more theoretical standpoint it could be said that each case study presents a governance regime which builds on legislation that lays out major (guide)lines but leaves details to be filled out at a later stage. Specification of detailed standards takes place through collaborative networks comprising members from national administrations, NGOs, and the Commission. Viewed this way, deliberative problem-solving is needed to bring people together to clarify, elaborate, and revise largely abstract and general norms in order to resolve concrete and specific problems and to make law applicable and enforceable. The dissertation draws attention to the potential of peer review included there and its profound consequences for judicial accountability structures. It is argued that without this kind of ongoing and dynamic peer review of accountability in governance frameworks, judicial review of new governance is difficult and in some cases impossible. This claim has implications for how we understand the concept of soft law, the role of the courts, participation rights, and the legitimacy of governance measures more generally. The experimentalist architecture of judicial decision-making relies upon a wide variety of actors to provide conditions for legitimate and efficient review.

Judicial Review of Academic Decisions

This thesis entitled “Judicial review of academic decisions.Education in India is being increasingly controlled and guided by the courts.This study makes an attempt to assess the involvement of the court in regulating education and its role or interference in the conventional concepts of ‘academic freedom’ and ‘university autonomy.The study mostly concentrates on the jurisdiction under Article 226 of the Constitution and its invocation in academic matters with particular reference to the decisions of the Kerala High Court.The concept of judicial review in the Constituent Assembly, initial approach of the Supreme Court of India towards the doctrine, gradual empowerment of Indian judiciary in this area and the resultant judicial activism.The study proceeds through the analysis of ‘academic freedom’ and ‘university autonomy’ in the 4"‘ chapter. This chapter attempts to probe academic freedom and university autonomy in India,England and United States and autonomy of Indian universities before and after independence.Basic principles and the jurisdictional parameters of judicial review in the area of academic decisions, as pronounced by the Apex Court, can be convincingly and consistently followed by the High Courts, which is possible only if special Academic Benches are constituted.

Beyond the separation of powers : judicial review and the regulatory proscription of terrorist organisations

Administrative law remains the key defence against an over-zealous executive arm of government, but administrative law needs to be understood in an international context. Perhaps nowhere is this more apparent than in relation to legislation designed to counter terrorist activities. The co-ordination of terrorist activities knows no borders, and state-centered executive action designed to address the threat of terrorism necessarily operates in a broader global environment. An important but controversial part of Australia's counter-terrorism legislation suite is the power to proscribe terrorist organisations. The authors contend that the scope of judicial review available in relation to decisions of the Commonwealth executive to proscribe terrorist organisations is inadequate and may jeapordise Australia's compliance with international standards, such as those provided in the International Covenant on Civil and Political Rights. Now is an opportune time to reassess the structure and operation of the power to proscribe organisations in Australia.

Corte suprema e constitucional? propostas de reformas do Supremo Tribunal Federal e os modelos de controle de constitucionalidade

Existem duas formas de controle de constitucionalidade: o modelo difuso, de origem norte-americana, e o modelo concentrado, de origem européia. O presente trabalho, em uma primeira parte, analisa estes modelos no direito comparado, buscando compreender suas principais características. Posteriormente, descrevemos as propostas de criação de um tribunal constitucional no Brasil, durante a Assembléia Nacional Constituinte (ANC) de 1987-1988, evidenciando suas diferenças. Por fim, a partir das discussões na ANC, comentamos algumas propostas de emenda à constituição em trâmite no Congresso que pretendem estabelecer um mandato aos ministros e ampliar os critérios de indicação dos mesmos.

Report a review of the concepts and definitions of the various forms of relational contracting

Partnering has been defined in many ways. It can be considered as an individual project mechanism or can be considered as a long term strategy. Alliancing is normally assumed to be a long term business strategy linking together client, contractor and supply chain. Relational contracting goes further than this and brings in the whole philosophy of the value chain and the linking of the interdependent parts within the construction project as a key business objective. This document aims to review existing definitions of these three concepts and present and overview of the current state of-the-art in terms of their use and implementation. The document should be useful for all of those project team members looking to sharpen their understanding of the various concepts and will also provide a platform for debating the current state of the definitions and implementations being used in Main Roads and Public Works Departments.

Taking stock of temporary organizational forms : a systematic review and research agenda

This paper brings together the research on temporary organizational forms. Despite a recent surge in publications on this topic, there have been few attempts to integrate knowledge on what we know of such temporary forms of organization. In order to correct this, an integrative framework is proposed around four central themes: time, team, task and context. Within each of these themes, the paper offers an overview of the literature, the gaps in what we know, and what future directions might be taken by scholars hoping to contribute to this important and rapidly growing field.

Pan-retinal photocoagulation and other forms of laser treatment and drug therapies for non-proliferative diabetic retinopathy: systematic review and economic evaluation

BACKGROUND: Diabetic retinopathy is an important cause of visual loss. Laser photocoagulation preserves vision in diabetic retinopathy but is currently used at the stage of proliferative diabetic retinopathy (PDR).

OBJECTIVES: The primary aim was to assess the clinical effectiveness and cost-effectiveness of pan-retinal photocoagulation (PRP) given at the non-proliferative stage of diabetic retinopathy (NPDR) compared with waiting until the high-risk PDR (HR-PDR) stage was reached. There have been recent advances in laser photocoagulation techniques, and in the use of laser treatments combined with anti-vascular endothelial growth factor (VEGF) drugs or injected steroids. Our secondary questions were: (1) If PRP were to be used in NPDR, which form of laser treatment should be used? and (2) Is adjuvant therapy with intravitreal drugs clinically effective and cost-effective in PRP?

ELIGIBILITY CRITERIA: Randomised controlled trials (RCTs) for efficacy but other designs also used.

REVIEW METHODS: Systematic review and economic modelling.

RESULTS: The Early Treatment Diabetic Retinopathy Study (ETDRS), published in 1991, was the only trial designed to determine the best time to initiate PRP. It randomised one eye of 3711 patients with mild-to-severe NPDR or early PDR to early photocoagulation, and the other to deferral of PRP until HR-PDR developed. The risk of severe visual loss after 5 years for eyes assigned to PRP for NPDR or early PDR compared with deferral of PRP was reduced by 23% (relative risk 0.77, 99% confidence interval 0.56 to 1.06). However, the ETDRS did not provide results separately for NPDR and early PDR. In economic modelling, the base case found that early PRP could be more effective and less costly than deferred PRP. Sensitivity analyses gave similar results, with early PRP continuing to dominate or having low incremental cost-effectiveness ratio. However, there are substantial uncertainties. For our secondary aims we found 12 trials of lasers in DR, with 982 patients in total, ranging from 40 to 150. Most were in PDR but five included some patients with severe NPDR. Three compared multi-spot pattern lasers against argon laser. RCTs comparing laser applied in a lighter manner (less-intensive burns) with conventional methods (more intense burns) reported little difference in efficacy but fewer adverse effects. One RCT suggested that selective laser treatment targeting only ischaemic areas was effective. Observational studies showed that the most important adverse effect of PRP was macular oedema (MO), which can cause visual impairment, usually temporary. Ten trials of laser and anti-VEGF or steroid drug combinations were consistent in reporting a reduction in risk of PRP-induced MO.

LIMITATION: The current evidence is insufficient to recommend PRP for severe NPDR.

CONCLUSIONS: There is, as yet, no convincing evidence that modern laser systems are more effective than the argon laser used in ETDRS, but they appear to have fewer adverse effects. We recommend a trial of PRP for severe NPDR and early PDR compared with deferring PRP till the HR-PDR stage. The trial would use modern laser technologies, and investigate the value adjuvant prophylactic anti-VEGF or steroid drugs.

STUDY REGISTRATION: This study is registered as PROSPERO CRD42013005408.

FUNDING: The National Institute for Health Research Health Technology Assessment programme.