The choice of legal basis of EU legal acts is a constitutional question in EU law, determining the relevant competence, institutional role, voting rule, related procedures, and issues of judicial review. This article advances a legal basis critique of a corpus of EU legal acts adopted in the past decade. As it demonstrates, the legal basis case-law set out by the Court of Justice of the European Union, and the limits of what particular legal bases permit, remain formally undisturbed. The practice of EU law, however, has demonstrably shifted, requiring sustained constitutional attention.

The consolidation of authoritarian populism depicting democratically elected leaders and parties aggrandizing their power through the routines of the democratic process has gained significant traction in the last decade. It re-engages the question of the role of courts in protecting the democratic process by reviewing the work of governing institutions prone to abuse. However, the question has for now mostly been asked in the context of a ‘self-contained’ constitutional democracy. In this article, I transpose the question onto the plane of the European Court of Human Rights (ECtHR). Central to this transposition is the conceptual challenge that while the ECtHR adjudicates rights over and above the state, in the Court’s case law these rights are significantly defined in procedural terms, often deriving institutional implications that resemble the prescriptions of the ‘political process theory’ of judicial review originally put by John Hart Ely in the context of the US constitution and recently expanded by Stephen Gardbaum and other scholars in comparative constitutional law. In surveying thematic portions of the case law, I aim to show that the concerns of ‘political process theory’ regarding institutions and procedures as core subjects of judicial review can take the route of rights. I argue that the ECtHR’s account of ‘democratic society’ provides an exemplar of such rights-based political process theory in the European human rights context and discuss both its merits and limits.

A civil appeal from a judicial decision is different from a judicial review of an administrative decision. But how are they different, exactly? One common view is that the grounds of appeal are more extensive than the common law grounds of judicial review. Specifically, appeal concerns the merits of a decision whereas review concerns only its legality. I argue that this common view is false. All the grounds of appeal are, in fact, also grounds of review. The implication is that review concerns the merits of a decision at least as much as appeal does.

How do political institutions shape what courts do? This article develops a theory of judicial regime maintenance and argues that courts reproduce contested institutional settlements in systematically different ways. Comparing the U.S. H-2 and H-1B labor migration programs, I show how class conflict produces distinct statutory and regulatory frameworks that structure subsequent litigation. In dense regimes, courts regularize policy through recurring judicial review. In thinner and more permissive regimes, courts preserve existing arrangements through insulation. Collectively, these forms of judicial regime maintenance contribute to institutional lock-in and path dependence by making contested political settlements increasingly difficult to alter over time.

Omnibus legislation – packaging unrelated measures in one long bill, enacted in an expedited process – is becoming a common feature in many legislatures, and recently also in EU lawmaking. While favoured by some for its effectiveness, it is also a matter of intense criticism and seen by critics as anathema to good lawmaking and as antidemocratic. This led scholars in various countries to ask whether courts should intervene and regulate the use of omnibus legislation. In related debates, scholars around the world are debating whether courts should adopt procedural models of judicial review of the legislative process and debating the possible impact of judicial review on legislative behaviour. This article attempts to provide a first empirical answer to these debates, by presenting findings from an extensive, multi-method empirical study on the impact the introduction of procedural judicial regulation on omnibus legislation had on their enactment in Israel. It shows that the introduction of judicial review had manifest, albeit short-term, impact on the scope and size of omnibus laws, but a long-term effect on the quality of their legislative process. It therefore exhibits the potential of procedural judicial review for improving lawmaking.

Democracy today means liberal democracy. Exclusively. And ‘the crisis of liberal democracy is not necessarily a crisis of democracy as such’. This is the starting point of Philip Manow’s new book, Unter Beobachtung. Die Bestimmung der liberalen Demokratie und ihrer Freunde (‘Under Surveillance. Defining liberal democracy and its friends’). The German political scientist contends that through the new, exclusive understanding of democracy as liberal democracy, politics has been ‘suffocated’, and this largely contributed to the success of populism. In this review I argue that the populist promise for the rebirth of politics is dishonest, and I point to an underestimated consequence of liberal depoliticisation: rights inflation.

The article explores the complex interface between international agreements concluded jointly by the European Union and its Member States (mixed agreements) and the jurisdiction of the Court of Justice. Case law remains unclear and appears fraught with inconsistencies. The article aims to mitigate the uncertainty and identify common principles, proposing a concrete approach to establishing the Court’s jurisdiction in the mixity context. It further explains the underpinnings of the Court’s highly contextual expansion of its jurisdiction. This is understood—though not uncritically—as an effort to fill gaps in judicial protection and ensure the autonomy of the EU legal order.

A year defined by the judicial reform-overhaul in Israel reached its legal climax when the Government amended a constitutional law to abolish the courts’ ability to make use of the reasonableness doctrine, a common-law doctrine which allows courts to review administrative actions based on their “reasonableness”. Petitions to the Israeli Supreme Court were immediately filed, leading to a revolutionary ruling. For the first time in its history, all fifteen justices of the Supreme Court convened and struck down a constitutional amendment in an eight to seven decision.

While a majority was reached, a deeper inspection of the different opinions uncovers substantial differences in the justices’ theoretical approaches. This Article provides an analysis of the five major theoretical approaches utilized in the reasonableness ruling to justify or reject the existence of a limitation on constituent power in Israel: constitutional data, constitutional self-entrenchment, declarations of independence, natural law, and limitless constituent power.

The Article presents the unique insight that despite the unprecedented outcome of the ruling, none of the justices relied on the ubiquitous distinction between the primary and secondary constituent powers. As such, contradictory to common perception, the Supreme Court of Israel didn’t adopt the unconstitutional constitutional amendment doctrine in the reasonableness ruling. Instead, it adopted a much more radical doctrine according to which the Court may strike down any constitutional law–whether the product of the primary or secondary constituent power–so long as it is convinced that the constituent power’s authority was exceeded.

This article examines how courts in a diverse and divided society navigate tensions over a polarized religious issue. The incrementalist approach that defers difficult choices about state and religion through vague compromise has been defended in polities where achieving cohesion proves difficult. This article investigates how the court grapples with incrementalist logic underlying the regulation of interfaith marriage in Indonesia. To mitigate disagreements, the Indonesian Marriage Law has left the legality of interfaith marriage ambiguous and subject to constant negotiation and compromise. This article argues that the Indonesian Constitutional Court has failed to sustain this balance, as the court increasingly leans towards the religious aspect of marriage. Indonesian experience shows the complexities of court interventions on unclear legislative agreements and contentious issues in society. The Court adopted a rigid legal interpretation based on conservative religious views, which not only undermines rights and pluralism, but intensifies tensions and complicates future negotiations.

In a ruling delivered on 1 August 2025, the Court of Justice upheld a General Court judgment annulling the classification as a suspected carcinogen of titanium dioxide in powder form containing at least 1% of particles of a diameter equal to or below 10 μm. Both EU Courts criticise the scientific assessment underlying that classification, but the Court of Justice relies on conceptual distinctions that reveal its reluctance to perform a genuine “manifest error of assessment” review. While these issues are not addressed by the Court of Justice, the case also raises thorny questions regarding the meaning of “intrinsic properties” of a substance.

The relationship between the European Court of Human Rights and the ideal of democracy is a complex one: Convention states tend to understand it in terms of the supremacy of national democratic arrangements, whereas the Court has conceived of the relationship in more substantive procedural terms involving Convention rights as interpreted and promoted by the Court. In recent political debates the ideal of democracy has been instrumentalized to attack the authority of the Court based on the former understanding, such that its contribution to democratic ideals has become muted. Against this background, this article seeks to rebalance political debates about the relationship between democracy and the ECtHR by clarifying ways in which we can understand the Court as playing a democratic role based on the republican democracy of Phillip Pettit. It highlights elements of Pettit’s republican democracy relevant to the Court and analyses features of the Court and its practice which can be understood as expressing those elements. In doing so it contributes to ongoing debates about the relationship between democracy and the Court with a view to protecting and promoting the ideal of democracy in an era in which it is increasingly under threat.