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COMPARATIVE JUDICIAL REVIEW
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RESEARCH HANDBOOKS IN COMPARATIVE CONSTITUTIONAL LAW
SeriesEditor:TomGinsburg,UniversityofChicago,USA
ComparativeConstitutionalLawisaburgeoningfield,bringingtobearadiversearrayof
methodologiesonabroadrangeofissues.TheResearchHandbooksinComparativeConstitutional
Lawseriesprovidesasetofcomprehensiveoverviewsofaspectsofthefield,includingcontributions
byscholarsfromaroundtheworld.Theaimistogivevoicetothefullrangeofconstitutional
experiencesfromawidesetofcountries,fromaninterdisciplinaryandcomparativeperspective.The
ResearchHandbooksprovideaninvaluableresourceinaworldinwhichjudges,constitution-makers
andconstitutionallitigatorsborrowconceptsandideasacrossborders.
Titlesintheseriesinclude:
ConstitutionsandGender
EditedbyHelenIrving
ComparativeConstitutionalTheory
EditedbyGaryJacobsohnandMiguelSchor
ComparativeJudicialReview
EditedbyErinF.DelaneyandRosalindDixon
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Comparative Judicial Review
Edited by
Erin F. Delaney
Professor of Law, Northwestern Pritzker School of Law, Chicago, USA
Rosalind Dixon
Professor of Law, UNSW Sydney, Australia
RESEARCH HANDBOOKS IN COMPARATIVE CONSTITUTIONAL LAW
Cheltenham,UK+Northampton,MA,USA
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©The Editors and Contributors Severally 2018
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical or photocopying, recording,
or otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL502JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2018944038
This book is available electronically in the
Law subject collection
DOI 10.4337/9781788110600
ISBN9781788110594(cased)
ISBN9781788110600(eBook)
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Contents
List of contributors vii
Acknowledgments xv
1. Introduction 1
Erin F. Delaney and Rosalind Dixon
PART I THE ORIGINS AND FUNCTIONS OF JUDICIAL REVIEW
2. The real case for judicial review 13
Alon Harel and Adam Shinar
3. Constitutions as political insurance: variants and limits 36
Rosalind Dixon and Tom Ginsburg
4. Comparative constitutional law as a window on democratic institutions 60
Samuel Issacharoff
5. The origins and growth of judicial enforcement 83
Steven Gow Calabresi
PART II THE POLITICAL AND INSTITUTIONAL CONTEXTS FOR
JUDICIAL REVIEW
6. Interpreting constitutions in divided societies 99
Hanna Lerner
7. Judicial review in the context of constitutional Islam 117
Salma Waheedi and Kristen Stilt
8. New judicial roles in governance 142
Robert A. Kagan, Diana Kapiszewski and Gordon Silverstein
9. Competition or collaboration: constitutional review by multiple final courts 164
Wen-Chen Chang andYi-Li Lee
PART III THE STABILITY AND EFFECTIVENESS OF JUDICIAL REVIEW
10. Judicial review as a self-stabilizing constitutional mechanism 185
Tonja Jacobi, Sonia Mittal and Barry R. Weingast
11. Losing faith in law’s autonomy: a comparative analysis 204
Theunis Roux
12. Courts and support structures: beyond the classic narrative 226
David Landau
13. National perspectives on international constitutional review: diverging optics 244
Karen J. Alter
v
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vi Comparative judicial review
14. Efficacious judging on apex courts 272
Lee Epstein and Jack Knight
15. Limiting judicial discretion 290
Mila Versteeg and Emily Zackin
PART IV OPERATIONALIZING JUDICIAL REVIEW: TYPOLOGIES,
DOCTRINES AND METHODOLOGICAL CHALLENGES
16. Beyond Europe and the United States: the wide world of judicial review 318
Virgílio Afonso da Silva
17. Judicial review and Public Reason 337
Wojciech Sadurski
18. Pockets of proportionality: choice and necessity, doctrine and principle 357
Vicki C. Jackson
19. Comparative approaches to constitutional history 379
Jamal Greene andYvonne Tew
20. Judicial review and the politics of comparative citations: theory, evidence
and methodological challenges 403
Ran Hirschl
Index 423
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Contributors
Karen J. Alter is Professor of Political Science and Law at Northwestern University,
and a permanent visiting professor at iCourts Center of Excellence, Copenhagen
University Faculty of Law. Professor Alter’s research has been supported by the John
Simon Guggenheim Foundation, the American Academy of Berlin, the Howard
Foundation, the German Marshall Fund, the DAAD, and the Bourse Chateaubriand
Scientifique. Her book The New Terrain of International Law: Courts, Politics, Rights
(Princeton University Press, 2014) provides a framework for comparing and under-
standing the influence of the 24 international courts, and for thinking about how
different domains of domestic and international politics are transformed through the
creation of international courts. Her most recent books are Transplanting International
Courts: The Law and Politics of the Andean Tribunal of Justice (with Laurence R.
Helfer, Oxford University Press, 2017) and International Court Authority (with
Laurence R. Helfer and Mikael R. Madsen, Oxford University Press, 2018).
Steven Gow Calabresi is the Clayton J. and Henry R. Barber Professor of Law at
Northwestern University and is a graduate of theYale Law School (1983) and ofYale
College (1980). Professor Calabresi has been a Visiting Professor of Law atYale Law
School, a Visiting Professor of Political Science at Brown University and a Scholar in
ResidenceatHarvardLawSchool.ProfessorCalabresiservedasaLawClerktoJustice
Antonin Scalia of the United States Supreme Court, and he also clerked for U.S. Court
ofAppeals Judges Robert H. Bork and Ralph K. Winter. From 1985 to 1990 he served
in the Reagan and first Bush Administrations working both in the West Wing of the
Reagan White House and before that in the U.S. Department of Justice. He is the
co-author with Bradley G. Silverman and Joshua Braver of The U.S. Constitution and
Comparative Constitutional Law, published in 2016.
Wen-Chen Chang is Professor and Director of Policy and Law Center for Environ-
mental Sustainability at National Taiwan University College of Law. She has published
majorscholarlyworksoncomparativeconstitutions,includingAsianCourtsinContext,
withJiunn-rongYeh(CambridgeUniversityPress,2015)andConstitutionalisminAsia:
Cases and Materials, with Kevin YL Tan, Li-ann Thio & Jiunn-rong Yeh (Hart
Publishing, 2014). Professor Chang focuses her teaching and research on comparative
constitutions, international human rights, international environmental law, adminis-
trativelaws,andlawandsociety.Shealsoservesontheeditorialboardsofanumberof
leading academic journals including International Journal of Constitutional Law,
Cambridge Journal of Global Constitutionalism, Asian Journal of Comparative Law,
and National Taiwan University Law Review.
Erin F. Delaney is Professor of Law at Northwestern Pritzker School of Law, with a
courtesy appointment in the Department of Political Science. Her research focuses on
vii
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viii Comparative judicial review
constitutional design and comparative constitutional law, with particular attention to the
role of courts in multi-level governance systems. She held the Fulbright Visiting
Research Chair in the Theory and Practice of Constitutionalism and Federalism at
McGill University and has been a MacCormick Visiting Fellow at the University of
Edinburgh Law School and a Wiener-Anspach Visiting Research Fellow at the
Université Libre de Bruxelles. Professor Delaney served as a law clerk to Associate
Justice David H. Souter of the Supreme Court of the United States and to Judge Guido
Calabresi of the U.S. Court of Appeals for the Second Circuit. She received a J.D.,
magna cum laude, from NYU School of Law and an A.B., magna cum laude, from
Harvard College. Her Ph.D. dissertation (Cambridge University) was awarded the
Walter Bagehot Prize from the United Kingdom Political Studies Association.
Rosalind Dixon is Professor of Law at the University of New South Wales (UNSW
Sydney), Faculty of Law, whose research focuses on comparative constitutional law
and constitutional design, theories of constitutional dialogue and amendment, socio-
economic rights, and constitutional law and gender. She is on the Council, and is
Co-President Elect, of the International Society of Constitutional Law, and on the
Editorial Board of its associated journal, the International Journal of Constitutional
Law;amemberoftheGilbert+TobinCentreofPublicLaw;anddeputydirectorofthe
Herbert Smith Freehills Initiative on Law and Economics at UNSW. She previously
served as an assistant professor at the University of Chicago Law School, and has been
a visiting professor at Harvard Law School, Columbia Law School, the University of
Chicago Law School, and the National University Singapore.
Lee Epstein is the EthanA.H. Shepley Distinguished University Professor atWashing-
ton University in St. Louis. Her interests center on the U.S. Supreme Court, judicial
behavior, empirical legal studies, and constitutional law. A recipient of 12 grants from
the National Science Foundation for her work on law and legal institutions, Epstein has
authored or co-authored more than 100 articles and essays, as well as 15 books, several
multi-award winning. In addition to her appointment at Washington U., Epstein is a
Distinguished Affiliated Professor at Hebrew University, Visiting Professor at the
University of Bergen, and Lecturer in Law at the University of Chicago. She is also
principal investigator of the U.S. Supreme Court Database and an elected member of
the American Academy of Arts and Sciences and the American Academy of Political
and Social Science.
Tom Ginsburg is the Leo Spitz Professor of International Law and Professor of
Political Science at the University of Chicago and a member of theAmericanAcademy
of Arts and Sciences. He holds B.A., J.D., and Ph.D. degrees from the University of
California at Berkeley. His books include Judicial Review in New Democracies (2003),
which won the C. Herman Pritchett Award from the American Political Science
Association; The Endurance of National Constitutions (2009), which also won a best
book prize from APSA; Constitutions in Authoritarian Regimes (2014); and Judicial
Reputation (2015). He currently co-directs the Comparative Constitutions Project, an
effort funded by the National Science Foundation to gather and analyze the constitu-
tions of all independent nation-states since 1789.
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Contributors ix
Jamal Greene is the Dwight Professor of Law at Columbia Law School. His
scholarshipfocusesonthestructureoflegalandconstitutionalargument.Greeneserved
as a law clerk to the Honorable Guido Calabresi on the U.S. Court of Appeals for the
Second Circuit and for the Honorable John Paul Stevens on the U.S. Supreme Court.
He was an Alexander Fellow at the New York University School of Law and a Leo
Gottlieb Visiting Professor of Law at Harvard Law School. Greene is the author of
more than 30 law review articles, including publications in the Harvard Law
Review, the Columbia Law Review, and the Yale Law Journal. He is a frequent media
commentator on the Supreme Court and on constitutional law.
Alon Harel is the Phillip and Estelle Mizock Chaired Professor in Administrative and
Criminal Law at the Hebrew University of Jerusalem and a member of the Center of
Rationality. His areas of expertise include moral and political philosophy, legal theory,
law and economics, constitutional law, and criminal law. Professor Harel was a visiting
professor at University of Chicago, Columbia Law School, Texas Law School and
Boston University Law School. He was a fellow at the Ethics Center at University of
Toronto and at Harvard University. Professor Harel’s recent book Why Law Matters
(Oxford University Press, 2014) argues that political and legal institutions are not
merely means to bring about desirable outcomes such as justice, security and
prosperity. Why Law Matters defends the argument that legal institutions and legal
procedures are valuable and matter as such, irrespective of their instrumental value.
Ran Hirschl is Professor of Political Science and Law at the University of Toronto,
Max Planck Fellow and holder of the Alexander von Humboldt Professorship in
Comparative Constitutionalism, awarded by the Humboldt Foundation, Germany. He is
the author of several major books, most recently Comparative Matters (Oxford
University Press, 2014)—winner of the APSA C. Herman Pritchett Award—and over
100 articles and book chapters on comparative constitutional law and its intersection
with comparative politics, religion, sociology and geography. Professor Hirschl served
as co-president of the International Society of Public Law and is the recipient of
prestigious awards, fellowships, and distinguished visiting professorships in five
different countries. His work has been translated into various languages, featured in
scholarly symposia worldwide, cited by high courts, and discussed in international
media outlets. He is Fellow of the Royal Society of Canada (FRSC), the highest
academic accolade in Canada.
Samuel Issacharoff is the Reiss Professor of Constitutional Law at New York
University School of Law and a fellow of theAmericanAcademy ofArts and Sciences.
HehelpedpioneerthestudyofthelawofthepoliticalprocesswithhisarticlesandLaw
of Democracy casebook (co-authored with Stanford’s Pam Karlan and NYU’s Rick
Pildes). That work was extended internationally in the study of the role of constitu-
tional courts in stabilizing democracy, most notably in his monograph, Fragile
Democracies. He is also a leading figure in the field of procedure, both in the academy
and outside. He served as the reporter for the Principles of the Law of Aggregate
Litigation of the American Law Institute. Professor Issacharoff is a 1983 graduate of
theYale Law School.
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