Defaults, not limits: how to globalize weak-form review and process theory across a fundamental constitutional divide

Recent efforts to generalize or globalize weak form review and process theory beyond their home contexts encounter, in my view, a fundamental problem. They come from systems where it is assumed that both constitutional law and the judicial role are limited to certain areas or contexts. Abroad, they often encounter systems who believe constitutional law applies, in principle, everywhere or almost everywhere, and that the judicial role extends, in principle, everywhere or almost everywhere the constitution does. In these circumstances, I suggest, it is better to rewrite the theories to preserve their core concerns in a paradigmatically different context, than to try and apply them in their original form. The result (which partly builds on existing work, especially on the older effort to globalize weak-form review) is theories of how to exercise broad judicial powers wherever possible, rather than theories that try to keep judicial powers narrow.