Judicial Review of Executive Policymaking in Advanced Democracies: Beyond Rights Review

72 Pages Posted: 5 Apr 2014 Last revised: 25 Apr 2014

Date Written: April 3, 2014

Abstract

The legitimacy of modern states depends on the ability of democratic institutions to reflect citizens' preferences and values and on the state's ability to use technical expertise competently. Legitimacy has a three-fold character based on rights, democratic responsiveness, and competence. We argue that courts can help reconcile these competing aspects of executive legitimacy. Our premise may seem implausible because courts are the archetypal "counter-majoritarian" institution, and judges typically have little knowledge of technical subjects. However, based on a critical review of the law in the United States, Canada, Italy, and France, we argue that courts can balance respect for democratic choice and deference to experts with limited oversight that enhances legitimacy across all three dimensions. We discuss the hazards of substantive review by technically illiterate courts and argue that procedural review can be a partial substitute. If courts review rulemaking, they need to acknowledge its role in upholding policymaking values, and if they review adjudications, they need to understand that court-like procedures are inadequate to capture the broad policy issues often at stake. Based on our review of the four case studies, we conclude that to further both democracy and competence, courts: (i) should review the substance of the agencies' decisions under a weak reasonableness test and (ii) should concentrate on the administrative process, notably by enforcing a widespread duty to give reasons and by assuring generous rights of participation.

Suggested Citation

Jordao, Eduardo and Rose-Ackerman, Susan, Judicial Review of Executive Policymaking in Advanced Democracies: Beyond Rights Review (April 3, 2014). Administrative Law Review, Vol. 66, 2014; Yale Law School, Public Law Research Paper No. 499; Yale Law & Economics Research Paper No. 497. Available at SSRN: https://ssrn.com/abstract=2419994

Eduardo Jordao

FGV Direito Rio ( email )

Praia de Botafogo, 190
Rio de Janeiro, 22250-900
Brazil

Susan Rose-Ackerman (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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