Understanding the Global Regulatory Process
Edited by Francesca Bignami and David Zaring
Chapter 10: Regulation and the courts: judicial review in comparative perspective
The public law of government intervention in economy and society has a long history that has been driven by the politics of democratization and state formation and that has had profound consequences for the legitimacy and effectiveness of the contemporary administrative state. In large part, this public law has been identified with judicial review and the courts: on what grounds will a court find the decisions of the political and administrative organs of the state to be unlawful? At the same time, a considerable body of comparative scholarship has sought to capture variation in judicial redress in different legal systems. The premise of much of the comparative scholarship is that liberal societies can share roughly similar commitments to principles such as the rule of law and fundamental rights but can seek to safeguard such principles through different types of courts and legal doctrines. The thought is that, by appreciating the differences, it is possible to obtain a better understanding of the legal and political operation of government policymaking both at home and abroad and to engage in constructive thinking on the proper design of law, courts, and the administrative state. This chapter is designed as both a review of the comparative literature on judicial review and as an original contribution to that literature. It presents two important contrasts that have been drawn between systems of public law in western countries and proposes a third based on my own research.
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