Academic

Fox & Stephenson on Judicial Review and Democratic Failure

By Lawrence Solum

Justin Fox and Matthew Stephenson (Yale University and Harvard University - Harvard Law School) have posted Judicial Review and Democratic Failure on SSRN. Here is the abstract:

Abstract: We use an agency model to analyze the impact of judicial review on democratic performance. We find that judicial review may increase democratic failure by rescuing elected officials from the consequences of ill-advised policies, but may also decrease democratic failure by alerting voters to unjustified government action. We further find that judges will defer to the decision of elected leaders unless the level of democratic failure is sufficiently high. We then show how judicial review affects voter welfare both through its effect on policy choice and through its effect on the efficacy of the electoral process in selecting leaders. We also analyze how the desirability of judicial review is affected by characteristics of the leaders and the judges. Our welfare analysis establishes general conditions under which judicial review serves majoritarian interests?and thereby arguably increases the ?democratic? character of political outcomes, despite the non-democratic nature of judicial review itself.

Full post as published by Legal Theory Blog on August 25, 2009 (boomark / email).