Jurisprudence

Question 1

Jeremy Waldron (2006) “Core of the Case Against Judicial Review” - What are the four assumptions he makes with regard to conditions in the society?

Answer 1

1. Legislative institutions are in reasonably good working order
2. Judicial institutions are in reasonably good working order
3. People generally have a culture of respecting rights
4. Reasonable disagreement exists with regard to questions of rights

Question 2

Jeremy Waldron (2006) “The core of the case against Judicial Review” - main argument:

Answer 2

• He says there can be outcome-related and process-related arguments for courts or legislatures to resolve questions
• We must balance good outcomes and legitimate processes, like getting the fastest car at the cheapest price
• He argues that the outcome-based arguments - traditionally thought to favour courts - are at best ambiguous
• Meanwhile process-based arguments favour legislatures

Question 3

Jeremy Waldron (2006) “The core of the case against Judicial Review” - two main qualifiers which limit the situations in which his argument applies:

Answer 3

1. It only applies to strong JR
2. It only applies when his four assumptions are in place

Question 4

Richard Fallon (2008) “The core of an (uneasy) case for Judicial Review” - main argument:

Answer 4

• Courts and legislatures should be a “double veto” against rights infringements
• Admits courts do not necessarily err less overall when it comes to correctly identifying rights
• However, argues they have advantages at spotting fundamental rights infringements, and these are the kinds of errors we most want to prevent (like false convictions)
• This process actually increases overall political legitimacy, properly undersood
• This provides an argument for JR of legislation which breaches fundamental rights, but not for JR resolving rights being pitted against each other

Question 5

Frank Cross (1999) - The relevance of law in human rights protection