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Alon Harel and Adam Shinar

Rather than considering judicial review as an overarching mechanism to protect rights, democracy, or justice, or to promote other desirable ends, this chapter examines which institutional features facilitate the realization of non-instrumentalist concerns underlying judicial review. After first surveying various instrumentalist theories, the authors argue that these theories fail because they rest upon empirical conjectures which cannot be substantiated. They then defend a non-instrumentalist theory of judicial review: Individuals have a right to a hearing if there is an alleged rights violation, and it is the protection of the right to a hearing that ultimately justifies judicial review. Finally, the chapter aims to understand how the right to a hearing is implemented in various jurisdictions. It thus draws on examples from the United States, Israel, India, Columbia, and South Africa to explore the importance of three aspects of the right to a hearing: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision, and the duty to reconsider the initial decision giving rise to the grievance.

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Edited by Alon Harel and Keith N. Hylton

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Edited by Alon Harel and Keith N. Hylton

Jeremy Bentham and Gary Becker established the tradition of analyzing criminal law in utilitarian and economic terms. This seminal book continues that tradition with specially commissioned, original papers that span the philosophical foundations of the use of economics in criminal law, both traditional economic perspectives and behavioral and experimental approaches to the discipline.