Fig Leaves, Fairy Tales, and Constitutional Foundations: Debating Judicial Review in Britain

Abstract:     
This paper examines an ongoing debate about the origins and legitimacy of judicial review as practiced in Britain. I begin by examining how British law traditionally has attempted to justify judicial review of governmental actions. I then discuss how that orthodox view has been challenged, and how the proponents of the orthodoxy responded to that challenge. In doing so, I explain how the British debate has evolved into a far-reaching examination of the role of interpretive methodologies in legitimating judicial power. I conclude by exploring how the richness and depth of the British discussion can inform the larger debate about the role of judicial power, and our efforts to explain and contain that power, in the United States.

Number of Pages in PDF File: 40

Keywords: Britain, comparative, judicial review, activism

Accepted Paper Series