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Alternative Forms Of Judicial Review, Mark Tushnet
Alternative Forms Of Judicial Review, Mark Tushnet
Michigan Law Review
The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …
Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet
Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet
Michigan Law Review
In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …