Law Commons^™

Judicial Review Without Judicial Supremacy: Taking The Constitution Seriously Outside The Courts, James E. Fleming

Faculty Scholarship

Larry Sager and Larry Kramer have written important books that, in quite different ways, call for taking the Constitution seriously outside the courts. Sager's Justice in Plainclothes' and Kramer's The People Themselves2 nonetheless join issue in significant ways, and therefore it is illuminating to analyze them as a pair.

To get a handle on the differences between the two Larrys' books, I have concocted the following fanciful hypothetical. Imagine a law school with a faculty that includes Ronald Dworkin: court-centered constitutional theorist extraordinaire and proponent of a liberal moral reading of the American Constitution.3 Further imagine that the faculty includes …

Constitutionalism, Judicial Review, And Progressive Change, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This paper evaluates arguments made in Ran Hirschl's powerful and sobering book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard, 2004). Studying Canada, Israel, South Africa, and New Zealand, Hirschl aims to dispel what he views as the hollow hopes that constitutionalism and judicial review will bring about progressive change around the world. If Gerald Rosenberg, in his book, The Hollow Hope: Can Courts Bring About Social Change, focused on the hollow hopes of liberals for social change securing, e.g., racial equality (Brown) and women's reproductive freedom (Roe), Hirschl focuses on hollow hopes for progressive economic change …