Due Process of Lawmaking: The United States, South Africa, Germany, and the European Union

With nuanced perspective and detailed case studies, Due Process of Lawmaking explores the law of lawmaking in the United States, South Africa, Germany, and the European Union. This comparative work deals broadly with public policymaking in the legislative and executive branches. It frames the inquiry through three principles of legitimacy: democracy, rights, and competence. Drawing on the insights of positive political economy, the authors explicate the ways in which courts uphold these principles in the different systems. Judicial review in the American presidential system suggests lessons for the parliamentary systems in Germany and South Africa, while the experience of parliamentary government yields potential insights into the reform of the American law of lawmaking. Taken together, the national experiences shed light on the special case of the EU. In dialogue with each other, the case studies demonstrate the interplay between constitutional principles and political imperatives under a range of different conditions.

Table of Contents:
1. Political economy and constitutional law; 2. The United States; 3. South Africa; 4. Germany; 5. The European Union; 6. Conclusions.

About the Author :
Susan Rose-Ackerman is the Henry R. Luce Professor of Jurisprudence (Law and Political Science) at Yale University, Connecticut. She has published widely on administrative law, corruption, federalism, and law and economics. She is the author of From Elections to Democracy: Building Accountable Government in Hungary and Poland (2005); Corruption and Government: Causes, Consequences and Reform, 1999 (translated into seventeen languages; 2nd edition, with Bonnie Palifka, 2016); and Controlling Environmental Policy: The Limits of Public Law in Germany and the United States (1995). She is the editor of Anti-Corruption Policy: Can International Actors Play a Constructive Role? (with Paul Carrington, 2013); Comparative Administrative Law (with Peter Lindseth, 2010); and the International Handbook on the Economics of Corruption (Volume I, 2006; Volume II, with Tina Søreide, 2011). Her current research and teaching interests are the comparative study of administrative law and public policy analysis, with a focus on the United States and Western Europe, and the political economy of corruption and its control. She directs the program in comparative administrative law at Yale Law School, and she holds a BA from Wellesley College, Massachusetts and a Ph.D. from Yale University. Stefanie Egidy studied law and European law at the universities of Würzburg, Germany, and Bergen, Norway. She completed her first legal exam in the state of Bavaria in the top rank. She obtained an LL.M. degree at Yale Law School, Connecticut with scholarships from the German National Academic Foundation and the German Academic Exchange Service. During her studies, she worked as a research and teaching assistant at the University of Würzburg and as a research assistant for Aharon Barak. Egidy is currently completing her doctoral dissertation on the constitutional problems of financial market stabilization in financial crises at the University of Würzburg under the supervision of Helmuth Schulze-Fielitz, while working as a research fellow at the Max Planck Institute for Research on Collective Goods in Bonn, Germany. James Fowkes obtained a law degree from the University of the Witwatersrand, where he was ranked first in his class, and an LL.M. from Yale Law School, Connecticut as a Fulbright Scholar. He completed his J.S.D. at Yale University under the supervision of Bruce Ackerman and holds a research fellowship at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. Fowkes clerked at the South African Constitutional Court in 2008 and served as lead author for the International Commission of Jurists' report on domestic remedies for corporate human rights violations in South Africa in 2009. He has published on public and constitutional law topics in the South African Journal on Human Rights, the Constitutional Court Review, and the Cambridge Journal of International and Public Law.

Review :
'By masterfully combining a number of theoretical and analytical approaches, Rose-Ackerman, Egidy and Fowkes illuminate the judicial review of lawmaking and rulemaking in the United States, South Africa, Germany and the European Union and draw comparative lessons for making the process more democratic and accountable in all four jurisdictions. This pathbreaking book will constitute essential reading for scholars of comparative law for many years to come.' Francesca Bignami, George Washington University Law School 'Due process is rightly regarded as central to public law regimes. This important book throws fresh light on how we conceive of due process in the context of lawmaking. The comparative focus throws into sharp relief the features that distinguish the approach of legal systems to this issue, as well as drawing out common themes. It is a valuable addition to the existing literature.' Paul Craig, University of Oxford 'Due Process of Lawmaking offers a novel account of how rules are adopted in some liberal democracies. This work displays a broad and systematic outlook of policy-making processes that focuses on democracy, the protection of rights and the competence of decision makers. It provides an accurate comparative analysis of such processes and brings together views in the theory of government, law and political economy.' Giacinto della Cananea, University of Rome 'This comparative study thoughtfully, subtly, and thoroughly explores efforts to enhance the democratic legitimacy of law- and policy making in the legislature and in the executive branch. The authors' in-depth analysis has particular relevance for Europe where public law is faltering and constitutionalism is under threat.' Christian Joerges, Hertie School of Governance, Berlin 'For a generation of American scholars, Hans Linde's famous article, 'Due Process of Lawmaking,' provided the touchstone for debates about judicial review of the legislative process. The issue has long since taken on comparative and global dimensions. With this excellent comparative study, which borrows its title and general subject from Linde, the authors have given a new generation of scholars around the world a fresh point of departure for that critical conversation.' Daniel Halberstam, Eric Stein Collegiate Professor of Law, University of Michigan Law School 'Insightful, informative, and occasionally provocative, Due Process of Lawmaking: The United States, South Africa, Germany, and the European Union by Susan Rose-Ackerman, Stefanie Egidy, and James Fowkes is a consummate example of comparative public law scholarship. … As the title indicates, the book investigates the law of lawmaking across four jurisdictions with quite different institutional contexts and constitutional cultures: the United States, South Africa, Germany, and the European Union. One of the book's most commendable qualities is the careful and methodical way in which the authors embark upon this ambitious inquiry.' Eoin Carolan, The American Journal of Comparative Law