
Contents
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Constitutional Judicial Review: The Federalism‐English Hypothesis Constitutional Judicial Review: The Federalism‐English Hypothesis
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The Division of Powers Hypothesis The Division of Powers Hypothesis
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The Rights Hypothesis The Rights Hypothesis
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Post‐Leninist Review Post‐Leninist Review
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Constitutional Courts Constitutional Courts
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Courts as Institutions Courts as Institutions
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Courts of Law Courts of Law
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Case‐By‐Case Decision‐Making Case‐By‐Case Decision‐Making
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Legal Epistemic Communities and the Strength of Constitutional Courts Legal Epistemic Communities and the Strength of Constitutional Courts
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Division of Powers and Rights Division of Powers and Rights
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Democracy and Judicial Institutions Democracy and Judicial Institutions
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The Success of Judicial Review and Democracy
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Published:August 2002
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Abstract
This is the first of two papers that explore the politics of constitutional review – the power of a court or other organ of government to review the constitutionality of public acts, including legislation, and to void those acts as unlawful when they are found to be in conflict with the constitutional law. The paper is a composite of portions of two articles: The Success of Judicial Review, published in 1999, and The European Court of Justice: Of Institutions and Democracy, published in 1998. Based largely on American experience, Shapiro argues that constitutional judicial review is most likely to be successful (1) as a solution to an acute commitment problem, (2) when a constitutional court is serving politically and economically powerful interests, or (3) when it has served such interests in the past and uses the legitimacy accumulated earlier to move on to the service of the less powerful. He maintains that there are both historical and a priori reasons to believe that federalism review has the best chance of success, while the success of human rights review would appear to be more problematic, at least when it is not a follow-on to long-established judicial service to the politically advantaged. The different sections of the paper look at: the causal hypotheses that have been advanced for the process of constitutional judicial review in various European countries, the United States, Canada, and Australia (the federalism-English hypothesis; the division of powers hypothesis; the rights hypothesis); the situation in post-Leninist states; constitutional courts; courts as institutions; courts of law; case-by-case decision-making; legal epistemic communities and the strength of constitutional courts; the division of powers and rights; and democracy and judicial institutions.
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