権利の保障をめぐる三権の役割 : アメリカの市民権法1983条訴訟を素材にして

概要

論文の詳細を見る
The Constitution does not clearly specify how government can protect individual rights. However, general constitutional theory has thought that the legislative branch creates rights, and then, judicial branch remedies it. If so, does this exclude the executive branch from the protection of individual rights? Although the executive can execute the enforcement of rights, the creation of rights belong to the legislative realm. In order to examine it, I focus on whether the Civil Rights Act §1983 should include remedies for violations of rights created by federal administrative agency regulations. In short, can administrative agencies create individual federal rights enforceable through §1983? First, I review the development of §1983. Second, I examine judicial response. In instances where the Supreme Court did not address the issue, decisions issued by various Federal Circuit courts are divided as to whether administrative agencies may create individual rights. Third, I conclude that, although as a general promise legislature creates rights and judiciary remedies, there are some qualified areas where the executive has room to create enforceable rights through the use of §1983.
日本法政学会の論文
2008-05-15