Separation of Powers and Legislative Interference in Judicial Process

Dr Peter A Gerangelos is the Associate Dean (Undergraduate Studies) and Senior Lecturer in Law at the Faculty of Law, University of Sydney, Australia. He was previously Principal Solicitor in the Office of the Australian Government Solicitor.

• 1 Introduction I. The Relevant Scenarios II. Definitional Difficulties III. The Original Legal Entrenchment of the Doctrine and the Underlying Rationale IV. The Possibility of General Principles and Interpretational Methodology V. The Purposive Nature of The Separation of Powers Doctrine VI. The Problem of Definition and the Formalist Approach VII. Core Branch Functions? 2 Legislative Interference in the Pending Case Scenario: The Foundation of Principle and the Australian Position I. Introduction II. The Australian Constitutional Position and the Early Australian Constitutional Scholars III. Early Development of Principle by the High Court IV. The Foundation of a Discrete Set of Principles Governing the Pending Case Scenario: Liyanage v R V. Consolidation of Principle Post-Liyanage VI. The Direction Rule at the Crossroads: Nicholas v The Queen VII. The Uncertain Status of the Direction Principle in Australia 3 Legislative Interference with Judicial Functions: The Jurisprudence of the United States, Evaluation of Principle, and Towards Resolution I. Introduction II. The Emergence of the Changed Law Rule and the Direction Principle in the United States III. Klein and Its Uncertain Meaning IV. Hart's Thesis and the United States Foundation of the Direction Principle V. The Decline of the Direction Rule: The Robertson Case VI. Robertson's Uncertain Legacy: Plaut v Spendthrift Farm Inc VII. Klein Qualified, Overruled or Misinterpreted? Miller v French VIII. The Schiavo Litigation IX. Further Confirmation of the Direction Principle X. General Conclusions on the Separation of Powers and the Pending Case Scenario XI. Towards a Resolution XII. A Reformulated Direction Principle XIII. Speculative Propositions XIV. Conclusion 4 The Separation of Powers and Final Judgments: Defining the Principle Limiting Legislative Revision of Final Judgments I. Introduction and Definition of Final Judgment II. Reflections on Finality Where the Separation Doctrine is Not Entrenched III. A Middle Case: India IV. Early Australian Commentary on the Constitutional Protection of Final Judgments V. The Current Australian Position VI. Qualifications VII. A Reinforcement of Australian Jurisprudence: The Irish Position on Final Judgments VIII. The United States Supreme Court and Final Judgments IX. The Wheeling Bridge Qualification X. The Development and Consolidation of Principle by the United States Supreme Court XI. The Inviolability Principle Tested: Miller v French XII. Conclusion 5 Qualifications to the Inviolability of Final Judgments and Final Summation I. Introduction II. The Wheeling Bridge Qualification, the Regulation of Public Rights and 'Conditional' Final Judgments III. The Waiver Qualification IV. Conclusions on the Final Case Scenario 6 Protections Afforded Decisional Independence in Jurisdictions without an Entrenched Separation of Powers I. Introduction II. The United Kingdom and the Separation of Powers III. The European Convention on Human Rights IV. The United Kingdom, the ECHR and the Human Rights Act 1998. V. Canons of Statutory Intepretation 7 Conclusion

...a fascinating topic, and Gerangelos is someone who obviously knows the material incredibly well, and has thought deeply on the question of the nature of the separation of powers...Anyone who is deeply interested in the question of the legislative-judicial relationship will find this analysis to be thorough and illuminating. Rebecca Hamlin Law & Politics Book Review Vol.19, No.12 (December 14, 2009) Peter Gerangelos's book, focusing on when legislative interference in the judicial process is legitimate, is a welcome addition to this literature. Gerangelos's book is perhaps the most comprehensive monograph analysing the law related to the problem of legislative interference in the judicial process. It is thorough and detailed, well researched, and provides an up-to-date statement of the current situation in several important common law countries. It will be useful to jurists seeking to understand how the law in this area developed over the past century and the problems that have resulted from this development. Adam Shinar Public Law April 2010