The transition to democracy in Latin America encompasses adjustments in norms and institutions regarding the strictures of the rule of law. This book addresses the critical role of the judiciary in the transition. The contributors examine the significance of the independence of the judiciary, which ensures institutional integrity and freedom from p
Table of Contents
Introduction -- The Difficulties of the Transition Process -- Various Roles of the Judiciary in the Transition to a Democratic Society -- Concerning the Role the Judiciary May Serve in the Proper Functioning of a Democracy -- The Role of the Judiciary in the Transition to Democracy -- The Function of Judicial Power During the Transition -- The Independence of the Judiciary -- The Right Degree of Independence -- Independence and Responsibility in the Judicial Role -- The Judiciary and the Political System in Chile: The Dilemmas of Judicial Independence During the Transition to Democracy -- Judicial Power and Three Conceptions of Impartiality -- The Judicial Process: Trial -- Is It Better to Be Tried for a Crime in a Common Law or Civilian System? -- Persecution and Inquisition: A Case Study -- The Latin American Reformer’s Stake in U.S. Human Rights Policy -- Some Thoughts on Institutional Structures in the Judicial Process -- The Judicial Process in Context -- The Role of the Prosecutor -- The Function of the Prosecution in the Transition to Democracy in Latin America -- Should Prosecutors Be Independent of the Executive in Prosecuting Government Abuses? -- Human Rights Abuses in Fledgling Democracies: The Role of Discretion -- The Role of the Prosecutor in the Transition to Democracy in Latin America -- Designing the Institutional and Legal Structure of Prosecutorial Power in the Transition to Democracy -- Judicial Review and Remedies -- Judicial Independence and Constitutional Democracy: Lessons from the U.S. Experience1 -- The Opinion-Writing Function of the Judiciary of Latin American Governments in Transition to Democracy: Martinez v. Provincia de Mendoza -- On the Exercise of Judicial Review in Argentina -- The Role of the Judiciary in the Review of Human Rights Violations in Argentina -- The Tradition of Constitutional Adjudication -- The Negative Constitution: Transition in Latin America -- Constitutions, Constitutionalism and Constitution-Mongering -- Conclusion -- A Democratic Vision
Irwin P. Stotzky is currently Professor of Law at the University of Miami School of Law. In 1986-1987, he was a Visiting Scholar at the Yale University Law School. In 1991-1992, he was a Fulbright Scholar in Argentina. For the past sixteen years, he has represented Haitian refugees on constitutional and human rights issues in many cases, including several cases in the U.S. Supreme Court. He teaches in the areas of constitutional law and theory, criminal procedure, and philosophy. He has published numerous articles and is the author of The Theory and Craft of American Law: Elements (with Soia Mentschikoff) (1981).