Techreport,
A Theory of Weak Judicial Review
SSRN Scholarly Paper, ID 2728372. Social Science Research Network, Rochester, NY, (December 2015)
Abstract
This paper argues that judicial review can be weak in three different dimensions and, therefore, distinguishes three forms of weak judicial review; each of them is lacking one of the defining features of strong constitutional review. Judicial review is limited if the constitution lacks a bill of rights and judges can appeal only to structural-organizational norms when they scrutinize the constitutionality of legislation. Judicial review can be coined penultimate, if judges are authorized to scrutinize legislation, but the legislature has the possibility to override or disregard judicial decisions. Finally, judicial review is deferential if courts usually defer to the views of the elected branches or are constitutionally required to do so. The paper also compares the strengths and weaknesses of the different forms of weak judicial review and evaluates them in light of the normative principles that are spelled out in the earlier chapters of the book.
