Judicial Review and Institutional Choice

By Vermeule, Adrian | William and Mary Law Review, March 2002 | Go to article overview

Judicial Review and Institutional Choice


Vermeule, Adrian, William and Mary Law Review


It's an appropriate time to consider the legacy of judicial review. Only rarely do deeply entrenched doctrines and practices like judicial review become plausible candidates for rethinking. Yet two contradictory trends have restored this basic question to the intellectual agenda. On the one hand, judicial review has gained new vigor in European legal systems, (1) and the Rehnquist Court is currently in an aggressive phase. (2) On the other hand, prominent American jurists such as Mike Klarman, Richard Posner, and Mark Tushnet, and including Jeremy Waldron as an honorary American, have recently questioned judicial review root-and-branch (3)--a significant development given that even ten years ago a thoroughgoing opposition to judicial review was the mark of a crank. Judicial review is making gains abroad while losing a measure of intellectual respectability at home.

Is judicial review desirable? I shall supply a three-part answer to that question. First, normative analysis of judicial review is necessarily a consequentialist exercise in institutional choice. The question we'd like to answer is whether paramount authority to interpret the Constitution should be lodged in the judiciary or in the lawmaking process. (4) Nonconsequentialist commitments, for example a commitment to "democracy," usually prove too abstract to cut between institutional options of this sort. Second, however, institutional-choice questions of this magnitude are excessively information-demanding. The information necessary to make the assessment is unobtainable, or at best excessively costly to obtain; the scale of the questions is too large; the interaction between institutions is too dynamic and complex; and the possibility of unintended consequences from any choice of institutional arrangement is too great.

Third, the combination of the first two points creates the dilemma of institutional choice: we can't assess judicial review without answering questions that we lack the information to answer. The upshot is that, as I've argued elsewhere, institutional choice over questions of this magnitude must inevitably fall back upon a weak repertoire of techniques for practical reasoning under conditions of profound uncertainty. (5) I will apply some of those techniques to the question of judicial review, but they butt up against the region where consequentialism runs out of steam. In that region large-scale institutional reforms like abolishing judicial review require a leap of faith, and I'll conclude with a bit of positive theorizing about what causes us to take such leaps on the infrequent occasions that we do so.

Start by assuming that we can costlessly obtain full information about the determinants of the institutional-choice question. Because we need some fixed starting points from which to reason, I will assume that the only issue at stake is whether Marbury v. Madison (6) should be overruled, leaving in place all other constitutional provisions and doctrines that regulate relations between the judiciary and other branches of government. For expository clarity I'll exclude intermediate institutional forms like Robert Bork's proposal that Congress be empowered to override constitutional decisions by a majority vote of each House. (7) I will assume that the only options under consideration are full judicial supremacy, on the one hand, and political-branch supremacy, on the other. Now this procedure is mildly unrealistic--obviously various doctrines of standing, justiciability, and deference moderate the current regime--but it helps to isolate the relevant considerations.

With full information, the principal determinants of the institutional choice question are the agency costs of judicial review, its moral hazard effects, the optimal rate of legal change, and the transition costs of switching from a Marbury regime to a political-supremacy regime. Each of these considerations, however, implicates a tangle of subsidiary questions, and I hope it will become clear that the information needed for fully specified institutional choice far exceeds our present intellectual resources. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Judicial Review and Institutional Choice
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.