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Title: The political constraints on constitutional review
Author: Schroeder, Philipp A.
ISNI:       0000 0004 7970 7040
Awarding Body: UCL (University College London)
Current Institution: University College London (University of London)
Date of Award: 2019
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Scholars of judicial politics have long recognised that courts reviewing the constitutionality of legislative and executive acts lack the power of the purse and sword and cannot coerce lawmakers into compliance with their jurisprudence. In this thesis, I offer a novel perspective on how courts solve the tension that comes with their reliance on the executive and legislative branches for the efficacy of their judgements. The thesis is motivated by an empirical puzzle: Existing scholarship suggests that censure through a court is electorally costly for lawmakers, yet at times we can observe lawmakers' pursuit of policies provoking confrontation with courts. I present a formal model demonstrating that lawmakers dismissing advice that their policies are at odds with constitutional jurisprudence and hence risking the political fallout from a court's veto signal a credible non-compliance threat. Upon observing such signals, courts face incentives to show self-restraint in their judgements and ease the constitutional limits to lawmakers' policy-making. I bring both quantitative and qualitative evidence from the German Federal Constitutional Court's (GFCC) review of federal law to bear on the theoretical model's claims. A statistical analysis of original data on the GFCC's review of federal law between 1983 and 2017 shows that the court is more likely to exercise self-restraint when lawmakers in government had previously dismissed constitutional concerns voiced by members of the governing coalition caucus. Complementing the statistical analysis, I evaluate the assumptions underlying the formal model drawing on evidence from interviews with justices at the GFCC, the German federal government and the Bundestag, while a case study on the GFCC's review of the 2008 Federal Criminal Police Office Act offers an analytic narrative of the model's main argument. The thesis shows that lawmakers' risk-taking in the shadow of courts' constitutional review provides an impetus for the evolution of constitutional jurisprudence.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available