Abstract

http://ssrn.com/abstract=1843564
 


 



The Puzzling Resistance to Judicial Review of the Legislative Process


Ittai Bar-Siman-Tov


Bar-Ilan University Law Faculty; Columbia University - Law School

May 11, 2011

Boston University Law Review, Vol. 91, 2011
Columbia Public Law Research Paper No. 11-274

Abstract:     
Should courts have the power to examine the legislature's enactment process and strike down statutes enacted contrary to procedural lawmaking requirements? This idea remains highly controversial. While substantive judicial review is well-established and often taken for granted, many judges and scholars see judicial review of the legislative process as utterly objectionable. This Article challenges that prevalent position and establishes the case for judicial review of the legislative process.

The Article contends that, ironically, some of the major arguments for substantive judicial review in constitutional theory, and even the arguments in Marbury v. Madison itself, are actually more persuasive when applied to judicial review of the legislative process. Furthermore, the Article claims that some of the arguments raised by leading critics of judicial review may actually be employed as arguments justifying judicial review of the lawmaking process. Therefore, countering the orthodoxy in American constitutional law and theory, the Article argues that judicial review of the enactment process is no less important and is, in fact, more justifiable than substantive judicial review.

Number of Pages in PDF File: 60

Keywords: Judicial review, legislative process, due process of lawmaking, constitutional theory, rule of law, rule of recognition

Accepted Paper Series


Download This Paper

Date posted: May 18, 2011 ; Last revised: January 16, 2012

Suggested Citation

Bar-Siman-Tov, Ittai, The Puzzling Resistance to Judicial Review of the Legislative Process (May 11, 2011). Boston University Law Review, Vol. 91, 2011 ; Columbia Public Law Research Paper No. 11-274. Available at SSRN: http://ssrn.com/abstract=1843564

Contact Information

Ittai Bar-Siman-Tov (Contact Author)
Bar-Ilan University Law Faculty ( email )
Faculty of Law
Ramat Gan, 52900
Israel
972-3-7384348 (Phone)
972-3-7384096 (Fax)
HOME PAGE: http://law.biu.ac.il/en/node/1726#tabs-tabset-1
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10025
United States
212-854-0380 (Phone)
212-854-7946 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 1,137
Downloads: 226
Download Rank: 76,713

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.375 seconds