Neutrality and Judicial Review

Posted: 16 Jul 2003

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

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Abstract

Since Herbert Wechsler's famous article, the topic of neutrality has played central stage in many debates about judicial review specifically and constitutional law generally. On closer inspection, however, it turns out that the heading of "neutrality" encompasses not one but four different debates. One is about principled adjudication, another is about decision according to rules, a third is about substantive neutrality, and the fourth is about the desirability (or not) of designing the institutions of judicial review without regard to likely substantive outcomes and without regard to the likely staffing of those institutions. This paper distinguishes these four conceptions of neutrality and analyzes each of them.

Suggested Citation

Schauer, Frederick, Neutrality and Judicial Review. Law and Philosophy, Vol. 22, 2003. Available at SSRN: https://ssrn.com/abstract=415180

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

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