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Judicial Review and Contemporary Democratic Theory: Power, Domination, and the Courts


ISBN13: 9781138095212
Published: November 2017
Publisher: Routledge
Country of Publication: UK
Format: Paperback
Price: £32.99



For decades, the question of judicial review’s status in a democratic political system has been adjudicated through the framework of what Alexander Bickel labeled "the counter-majoritarian difficulty." That is, the idea that judicial review is particularly problematic for democracy because it opposes the will of the majority.

Judicial Review and Contemporary Democratic Theory begins with an assessment of the empirical and theoretical flaws of this framework, and an account of the ways in which this framework has hindered meaningful investigation into judicial review’s value within a democratic political system. To replace the counter-majoritarian difficulty framework, Scott E. Lemieux and David J. Watkins draw on recent work in democratic theory emphasizing democracy’s opposition to domination and analyses of constitutional court cases in the United States, Canada, and elsewhere to examine judicial review in its institutional and political context.

Developing democratic criteria for veto points in a democratic system and comparing them to each other against these criteria, Lemieux and Watkins yield fresh insights into judicial review’s democratic value. This book is essential reading for students of law and courts, judicial politics, legal theory and constitutional law.

Subjects:
Judicial Review
Contents:
Introduction
Part 1
Beyond the Countermajoritarian Difficulty
How Not to Argue About Judicial Review and Democracy
The Revolution will be Sub Silentio: The Roberts Court and Judicial Minimalism
Part 2
Democracy-Against-Domination and Contemporary Democratic Theory
Compared to What? Judicial Review as Just Another Veto Point
Judicial Review in a Comparative Context
Conclusion: Toward a Realist, Institutionalist Democratic Theory