Time and Judicial Review: Tempering the Temporal Effects of Judicial Review
The Effects of Judicial Decisions in Time (Cambridge, Intersentia, P. Popelier, S. Verstraelen, D. Vanheule and B. Vanlerberghe eds., 2013)
31 Pages Posted: 27 Oct 2013
Date Written: January 10, 2013
This Article deals with a predicament inherent in judicial review: Under the traditional view, judicial declarations of unconstitutionality apply retrospectively, meaning that the law is treated as void from its inception — as if it was never enacted. This, however, means nullifying all the legal arrangements, rights, interests, and obligations that were established under its authority, which can have far-reaching ramifications for both public and private interests.
The Article explores the Israeli Supreme Court's approach for dealing with potential negative consequences of retrospective voidance of statutes. It focuses on three main remedial strategies for tempering the temporal effects of invalidating a statute: giving the judicial declaration of invalidity prospective effect; suspending the declaration of invalidity; and the relative voidance doctrine. It explains each strategy and analyzes the (frequently misunderstood) relationship between the three strategies. The Article also examines the use of these modulating strategies in practice, by analyzing all the cases in which the Court invalidated a law. This examination reveals some interesting developments, as well as surprising findings, as to the actual use of modulating strategies by the Court. Finally, the Article turns to a normative evaluation, defending modulated remedies, but advocating a preference of suspension and prospective application over relative voidance.
Keywords: Judicial review; constitutional remedies; temporal effects of judicial decisions; prospective effect; ex nunc effect; retrospective effect; retroactive effect; ex tunc effect; pro futuro effect; absolute voidance; voidablity; void; voidable; relative voidance; relative invalidity
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