Publication Type: Conference Paper/Unpublished Manuscript
Abstract: The history of US regulatory policy with respect to the protection of human “subject” has its origins in shockingly inhumane treatments of participants in medical experiments conducted with federal support and even, in some cases, by researchers working in federal institutions. The policy, developed since 1974 and continuing to change today, was worked out with a medical-therapeutic experimental research design in mind, with implementation assigned to “institutional review boards” to be created at universities and other research institutions. Aspects of policy implementation at both federal and local levels, together with assumptions built in to its medicentric focus, make the policy problematic for the social sciences. The experimental research design that serves as its model makes the policy further problematic for field research, especially that conducted informed by an interpretive methodology. This paper traces the history of abuses that led to the policy and the history of the policy components, analyzes the implications of the policy provisions for the social sciences, and shows the various ways in which the policy is not appropriate to field research design and methods.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Recent controversies over the role of the Supreme Court of the United States in exercising the power of constitutional review of statutes and regulations have tended to lack sufficient attention to alternative institutional designs for carrying out the function as exhibited in extant constitutional democracies. This paper intends to pay proper attention to such alternatives by considering various options in the light of what recent empirical and cross-national comparative scholarship has revealed about actual experiences in different countries. Building on a normative theory of deliberative democratic constitutionalism, it explores tensions between the ideal of constitutional change effected through the people’s constituent power and the reality of ongoing-constitutional elaboration outside of that process when government organs of whatever kind must nevertheless decide on the constitutionality of specific policies. Seeking solutions beyond judicial institutionalizations of constitutional review, the paper looks at five types of institutional reform proposals: 1) the establishment of self-review panels in the legislature and regulatory agencies, 2) various mechanisms for inter-branch debate and decisional dispersal concerning constitutional meaning, 3) easing formal amendability requirements, and 4) establishing civic constitutional fora as replacements for traditional amendment procedures. It argues in particular that the last option of deliberative constitutional juries charged with tasks of reviewing constitutional change proposals hold out the singular promise of overcoming standard tradeoffs both between popular sensitivity and electoral independence, and between popular empowerment and deliberative quality.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: When the United Kingdom enacted the Human Rights Act of 1998 to bring its laws into compliance with the European Convention on Human Rights, it created a new system of constitutional review, what this Paper calls “expanded secondary constitutional review.” This British system is, in structure and in practice, different from the other major regimes of constitutional review in existence around the world. This Paper discusses this new system of constitutional review and what the United States can learn from it, as a case study in what American constitutionalism might learn from examining structures of constitutional review in existence around the world. Current practice and commentary suggests that when an American court faces a constitutionally problematic law, it can validate the law, invalidate the law, or not speak to the constitutionality of the law in any significant manner. Several countries have developed systems whereby courts can invalidate laws, but have their invalidations subject to legislative overrides. The Human Rights Act creates something altogether new from any of these regimes. It permits British courts to occupy a middle ground between the traditional extremes of constitutional review by permitting courts to speak to the permissibility of a law and have their assessments result in significant consequences, but without actually invalidating laws. An American translation of this system—supplementing rather than replacing already existing obligations and powers of constitutional review—would be a welcome addition to the current American system of constitutional review, and would create more fruitful institutional relationships among the various branches of the American federal government.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Citizen Police Review Boards have long been viewed as the ideal oversight mechanism for reviewing complaints against the police. While the process of establishing and maintaining a panel of civilians to review allegations of misconduct has been viewed as the solution to the secrecy of internal complaint review by police organizations, few studies have examined the outcomes of the establishment and maintenance of review boards.

The success of the review board process is difficult to measure. However, the presence of a citizen police review board should ideally provide some comfort to complainants who have fairness and equity concerns about internal organizational review systems.

This paper uses survey data, collected during the past four years, of complainants who have experienced the review of their complaints against the police by a citizen police review board. Levels of complainant satisfaction are examined, as well as perceptions of the fairness of the various steps of the review process. Complainant satisfaction for those who have been active participants and who have attended review board meetings regarding their cases are compared to the more passive and less involved complainants. Citizen Police Review Board decisions, along with internal police review results, are compared to complainant evaluations of the process as well as the resolution of cases.

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: Why would otherwise rational, power-seeking politicians, interest groups and individuals cede power to a set of unelected judges? Why in short, does judicial review happen? What are the forces that drive constitutional democracies to either adopt (as in South Africa) or accept (as in the United States and the European Union among others) strong judicial review? This comparative, cross-national study focuses on four fundamental building blocks that give rise to strong judicial review: institutional imperatives, normative and rights-driven incentives; economic and other interest-driven imperatives and political needs. Drawing from extensive studies of the role of judges, judicial review and judicial institutions within and beyond the United States, and building on case studies of the United States, the European Union, South Africa and the Republic of Singapore, the paper distills four imperative, four universal building blocks that, much like the four nucleotides of human DNA, can be found combined in a wide range of combinations, proportions and sequences: no two final products may look identical, and yet, at base, they share these fundamental characteristics. Identifying these imperatives, and understanding how they work with and against each other will help us to understand not just why strong judicial review emerges, but perhaps more importantly, help us understand the promise and the pathology of its emergence - its costs and benefits, and how it can be improved.