Judicial Review as a Constraint on Tyranny of the Majority

36 Pages Posted: 29 Oct 2010

See all articles by F. Andrew Hanssen

F. Andrew Hanssen

Clemson University - John E. Walker Department of Economics

Robert K. Fleck

Montana State University - Bozeman - Department of Agricultural Economics and Economics

Date Written: October 26, 2010

Abstract

We develop a theoretical model to analyze the role of judicial review in preventing tyrannies of the majority. The model identifies conditions under which the optimal role of the court may be to allow tyranny of the majority – and the tyrannized minority will be better off as a result. This implication hinges on the timing of two events: the lifting of the veil of ignorance with respect to who gains and who loses from the policy subject to judicial review, and the revelation of new information (modeled as a random shock) that affects the level of the payoffs generated by that policy. We explain how the model applies to three controversial rulings (Serrano v. Priest, Kelo v. City of New London, and In re Marriage Cases). In so doing, we demonstrate how the model can help distinguish scenarios in which judicial constraints on majority rule are socially beneficial from those in which they are harmful.

Keywords: Courts, Judges, Judicial Review, Tyranny of the Majority, Serrano, Kelo, in re Marriages

JEL Classification: K00, K40, D72, D74, D78, N40

Suggested Citation

Hanssen, F. and Fleck, Robert K., Judicial Review as a Constraint on Tyranny of the Majority (October 26, 2010). Available at SSRN: https://ssrn.com/abstract=1699206 or http://dx.doi.org/10.2139/ssrn.1699206

F. Hanssen (Contact Author)

Clemson University - John E. Walker Department of Economics ( email )

Clemson, SC 29634
United States

Robert K. Fleck

Montana State University - Bozeman - Department of Agricultural Economics and Economics ( email )

P.O. Box 172920
Bozeman, MT 59717-2920
United States
406-994-5603 (Phone)
406-994-4838 (Fax)

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