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

Answer 5

• Researchers have generally assumed that the shape of the legal system is epiphenomenal
• Cross tests which aspects of the legal system might be correllated with rights protection
• He finds an explicit constitutional provision re unreasonable search and seizure isn’t correlated with protection of the right in countries where there is judicial independence: in such countries, they’re protecting from unreasonable search and seizure anyway
• However, an explicit constitutional provision does make a differnce among countries without judicial independence, suggesting it may embolden even a dependent judiciary

Question 6

Michael Dorf: What are the two risks that we are balancing when it comes to whether or not to have Judicial Review?

Answer 6

1. With no Judicial Review, government might overstep the bounds of natural justice and human rights…
2. With Judicial Review, courts might overstep their own bounds and replace the people’s priorities with their own

Question 7

Michael Dorf on the justification of JR: In hard cases, it seems like there is a strong case for letting the people decide, but…

Answer 7

…We also need to consider easy cases

Question 8

Waldron (1995) “The Dignity of Legislation” - main points:

Answer 8

• We have no normative theory of what ideal legislating looks like, unlike with judicial reasoning
• Legislatures derive their legitimacy not just from winning a contest, like Presidents, but from representing the populace more diversely
• The circumstances of legislating requires a determinate focus for discussion…
• The normative importance we place on the plain meaning of statutes derives not from the fact that it reflects any one “intention”, but because decisions by groups require a determinate focus and a canonical form of wording