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The Core of the Case against Judicial Review
Open accessAbstract
This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law.The Essay criticizes judicial review on two main grounds.First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures.Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate.The second argument is familiar; the first argument less so.However, the case against judicial review is not absolute or unconditional.In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have).The Essay ends by considering what follows from the failure of these conditions.
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Citations
Cited by
Poland's Constitutional Breakdown
Sadurski, W. (2019) · doi:10.1093/oso/9780198840503.001.0001 · Cited by 588
The Judicialization of Mega-Politics and the Rise of Political Courts
Hirschl, R. (2008) · Annual Review of Political Science · doi:10.1146/annurev.polisci.11.053006.183906 · Cited by 437
Kumm, M. (2009) · Ruling the World? · doi:10.1017/cbo9780511627088.011 · Cited by 281
Contemporary Debates in Political Philosophy
(2009) · Wiley eBooks · doi:10.1002/9781444310399 · Cited by 252
Metadata
- Authors
- Waldron, J.
- Venue
- The Yale Law Journal
- Publisher
- JSTOR
- Published
- 2006-04-01
- Volume
- 115
- Issue
- 6
- Pages
- 1346
- ISSN
- 0044-0094 (ISSN-L)
- OpenAlex
- W109677913
- Cited by
- 1,266
- References
- 0
- FWCI
- 272.82
- Type
- journal article
- Language
- en
- Open access
- green
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- Waldron, J. (2006). The Core of the Case against Judicial Review. The Yale Law Journal. https://doi.org/10.2307/20455656
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