Academic

Harel & Shinar on Constrained Judicial Review

By Lawrence Solum

Alon Harel and Adam Shinar (Hebrew University of Jerusalem - Faculty of Law and Harvard Law School) have posted Between Judicial and Legislative Supremacy: A Cautious Defense of Constrained Judicial Review on SSRN. Here is the abstract:

This Article explores and evaluates theories that we label "theories of constrained judicial review." These theories, which include popular constitutionalism, departmentalism, and weak judicial review, challenge both the constitutional supremacy of courts and adopt an intermediate position that grants courts a privileged but not supreme role in interpreting the Constitution. To evaluate such theories, this Article develops both a negative and a positive argument. It criticizes the existing justifications of constrained judicial review and provides a new justification for such theories. More specifically, we argue that the ultimate justification for constrained judicial review cannot be grounded in instrumentalist or consequentialist concerns, namely in the allegedly superior decisions rendered by courts within systems of constrained judicial review. Moreover, these theories cannot be defended by appealing to extant non-instrumental legitimacy-based justifications. Instead, the justification for constrained judicial review must be grounded in what we call a "the right to a hearing." We distinguish between a strong (or robust) right to hearing (which requires judicial supremacy) and a weak right to a hearing (which requires constrained judicial review). Thus, the debate between advocates of judicial supremacy and advocates of constrained theories of judicial review should be construed as a debate concerning the nature and scope of the right to a hearing. Furthermore, systems of constrained judicial review, if they are to guarantee the right to a hearing, must be designed such that non-adjudicative bodies reconsider individual grievances. By doing so in a way that is sensitive to the individual grievance and its particularities, these bodies undertake adjudicative functions.

And from the paper:

Strong and constrained judicial review differ in the weight they give to the grievance, as is evidenced by the reasoning at the third stage of the hearing ? the reconsideration stage. What is unique about strong-form reconsideration ? the one conducted by courts ? is that the grievance is given a prominent role at the reconsideration stage. The grievance and the attempts to address the grievance are the focal center of the adjudicative reconsideration. In contrast, weaker schemes of judicial review are characterized by a different process of reconsideration ? one that ideally takes into account the grievance but need not assign it a central status. Such schemes of judicial review dilute the weight of the grievance and the arguments aimed at addressing the grievance by distancing the reconsideration from the adjudicative body. This observation has important normative implications as it suggests how to evaluate systems of constrained judicial review. Systems of constrained judicial review need to be designed such that grievances trigger a genuine reconsideration of the decisions giving rise to the grievance. A person who has a grievance ought to be able to challenge legislation and such a challenge ought to be seriously considered by the polity. The process of reconsideration ought to be attentive to the grievance and its particularities. This need not imply a fully fledged adjudicative process (which characterizes judicial supremacy) but it must resemble such a process.

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Full post as published by Legal Theory Blog on February 16, 2011 (boomark / email).