This paper contributes to debates over the democratic desirability of judicial review, by stating a quasi-general case for the desirability of judicial review that is “weak”–or broad but non-final–rather than “strong”-form in nature. Judicial review of this kind, the paper argues, can help counter blockages in the legislative process–such as legislative “blind spots” and “burdens of inertia”–that can otherwise impair the enjoyment of individual rights even of a kind recognized by democratic majorities. This, the paper suggests, provides an important, if contingent, outcome-based case in favor of courts exercising powers of weak-form review. It provides a relatively general argument for why those persuaded by Waldron’s Core Case should distinguish between judicial review that is strong and weak in form when assessing both the legitimacy and desirability of judicial review from a democratic perspective.
Our next Annual Conference will take place from July 6-9, 2021. It will be held in a completely novel way as a fully online Conference: ICON•S Mundo.
The Call for Papers for ICON•S Mundo is available here. Submissions for papers and panels must be made by May 1, 2021.
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