Abstract

http://ssrn.com/abstract=2000735
 
 

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Judicial Capacity and the Substance of Constitutional Law


Andrew Coan


University of Arizona, James E. Rogers College of Law; University of Wisconsin Law School

September 21, 2012

122 Yale Law Journal 422
Univ. of Wisconsin Legal Studies Research Paper No. 1190

Abstract:     
Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This paper advances a twofold thesis. First, constraints on judicial capacity derive from a combination of the hierarchical structure of the judiciary and broadly held judicial norms. Second, in certain important constitutional domains, these constraints create strong pressure on courts to adopt hard-edged categorical rules, defer to the political process, or both. The argument is mostly positive but has significant normative implications. In particular, the constraints of judicial capacity suggest a new and previously unexplored justification for courts to defer many constitutional questions to the political process. Capacity constraints also help to explain the reluctance of courts to challenge political majorities, diminishing though not eliminating the countermajoritarian difficulty. For these reasons and others, judicial capacity deserves a central place on the agenda of constitutional theory.

Number of Pages in PDF File: 39

Keywords: Judicial Capacity, Constitutional Law, Courts, Judicial Decision-Making, Judicial Politics

JEL Classification: K41

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Date posted: February 7, 2012 ; Last revised: February 18, 2014

Suggested Citation

Coan, Andrew, Judicial Capacity and the Substance of Constitutional Law (September 21, 2012). 122 Yale Law Journal 422; Univ. of Wisconsin Legal Studies Research Paper No. 1190. Available at SSRN: http://ssrn.com/abstract=2000735

Contact Information

Andrew Coan (Contact Author)
University of Arizona, James E. Rogers College of Law ( email )
P.O. Box 210176
Tucson, AZ 85721-0176
United States
University of Wisconsin Law School ( email )
975 Bascom Mall
Madison, WI 53706
United States
HOME PAGE: http://law.wisc.edu/profiles/index.php?iEmployeeID=413
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