Introducing Constitutional Transitions Visiting Fellow and UCLA Professor of Law Stephen Gardbaum

The Center for Constitutional Transitions at NYU Law (Constitutional Transitions) is pleased to introduce Spring 2013 visiting fellow Stephen Gardbaum. Professor Gardbaum is joining the Center from the UCLA School of Law, where he is the MacArthur Foundation Professor of International Justice & Human Rights.

A recent Guggenheim Fellow, Gardbaum is internationally recognized for his scholarship on comparative constitutional law, constitutional theory, and federalism. His work has been cited by the U.S. and Canadian Supreme Courts, and widely translated. Two of his current research projects focus on separation of powers issues as they relate to transitional democracies, particularly in the Middle East and North Africa. “For any scholar interested in researching and contributing to constitution building and the processes of democratic transition around the world, there is simply no better place to be than Sujit Choudhry’s pioneering center,” he said.

Gardbaum’s book, The New Commonwealth Model of Constitutionalism: Theory and Practice, was published last month in the United Kingdom by Cambridge University Press.  The book argues that recent constitutional transitions in Canada, New Zealand, the U.K., and Australia are an experiment in a novel and advantageous approach to institutional design and rights protection of interest to constitutional drafters everywhere. The new commonwealth model, Gardbaum argues, represents a normatively attractive intermediate position between the traditional poles of judicial and legislative supremacy. Although courts are authorized to enforce a bill of rights through new interpretive powers and by ruling on the rights compatibility of legislation, parliaments retain the power of the final word on whether to modify the law. In the book, Gardbaum posits that by treating courts and parliaments as joint rather than alternative exclusive protectors and promoters of rights, the new model combines the main benefits of both judicial and legislative supremacy while minimizing their respective costs.  The book will be published in the United States this month, with a book launch to be held at the Straus Institute on March 14.

Of Professor Gardbaum’s two current projects related to transitional democracies, the first asks whether the new commonwealth model’s “weak form” of judicial review described above might sometimes serve their needs better than the standard “strong” form.  By pragmatically reducing tensions and rivalries between courts and the elected institutions stemming from judicial review, weak-form review may be less threatening to incoming governments, thereby avoiding an oft-seen political backlash by executives who perceive the courts as political opponents or allies of the old regime. Protecting the independence of the judiciary in this manner may be more critical to achieving democratic stability than granting expansive powers of judicial review.

The second project, tentatively titled “The Paradox of Presidentialism,” argues that the history and structure of the presidential form of government counsels against its use as a preferred constitutional design option for transitional democracies.  Despite its invention in the separation of powers conscious United States, presidentialism’s inherent concentration of power within the executive, as compared to the more plural executives in parliamentary and semi-presidential systems, increases the risk of a slide toward authoritarianism, putting the stability of the new democracy at risk.

In addition to his involvement with Constitutional Transitions, Gardbaum is currently a Joint Straus / Senior Emile Noël Fellow. He holds degrees from Oxford, London, Columbia and Yale Universities, and teaches constitutional law, comparative constitutional law, EU law, comparative law, and international human rights. For more information on Stephen Gardbaum, click here.

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