Judicial Review of Judicial Lawmaking

64 Pages Posted: 19 Mar 2011 Last revised: 5 Feb 2012

See all articles by Amnon Lehavi

Amnon Lehavi

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law

Date Written: December 1, 2011


“It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat… the particular state actor is irrelevant.” Justice Scalia’s statement in the Stop the Beach Renourishment case, made as a basis for recognizing a “judicial taking” doctrine in constitutional property law, may have overreaching jurisprudential consequences. These implications involve not only the allocation of powers among the different branches of government and the modern role of courts as rule-makers, especially in common law doctrines. This recent opinion also bears significantly on what one may term the “judicial review of judicial lawmaking.”

While this term may initially seem odd, it represents a crucial dilemma about the role that the U.S. Supreme Court should play in reviewing certain types of state court actions.

Assume that a state court of last resort alters the state adverse possession doctrine, by eliminating the requirement that the possession has to be “continuous for the statutory period,” an element that had been set up in its previous case law - in a manner that systematically impacts the rights of landowners. When the U.S. Supreme Court reviews a subsequent judicial taking case, should it simply step in for the state court in finding “what the law is” and, in appropriate cases, say that the state court was wrong, as is the case with conventional appeals within the judicial branch? Or should the Court engage in the “classic” type of judicial review that often defers to the policymaker, as if it were examining a legislative or administrative provision? If we recognize the state judiciary as lawmaker, should it indeed receive no special treatment by the Court?

The purpose of this Article is not to engage in tautological exercises or to merely demonstrate incoherence in the Stop the Beach case. Rather, it seeks to identify some major, yet probably unintended, implications that result from the conceptualization of the judiciary as both lawmaker and “state actor” in a constitutional regime. In so doing, the Article offers an innovative theoretical approach, providing guidance to key dilemmas that have been left largely unresolved since the landmark Shelley v. Kraemer decision.

Keywords: constitution, judicial review, legislation, administrative law, federalism, separation of powers, public law, private law. takings, judicial takings, equal protection, due process

JEL Classification: H1, K11, K4

Suggested Citation

Lehavi, Amnon, Judicial Review of Judicial Lawmaking (December 1, 2011). Minnesota Law Review, Vol. 96, p. 520, 2011, Available at SSRN: https://ssrn.com/abstract=1788242

Amnon Lehavi (Contact Author)

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law ( email )

P.O. Box 167
Herzliya, 46150
972 9 9602765 (Phone)
972 9 9568605 (Fax)

HOME PAGE: http://www.idc.ac.il

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