{"title":"A New Publisher","authors":"J. Ramseyer, S. Shavell, R. Jackson","doi":"10.1093/JLA/LAR001","DOIUrl":"https://doi.org/10.1093/JLA/LAR001","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"126 1","pages":"377-377"},"PeriodicalIF":2.2,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90399936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article argues that a resource held in tenancy in common is likely to be underused and underinvested, and is thus better characterized as an anticommons. Nevertheless, tenancy in common does not necessarily create tragedy, as under most legal regimes each co-tenant has a right to petition for partition at any time, and after partition, new owners are likely to utilize the resource more efficiently. Using data from Taiwan, this article finds that cooperation among co-tenants does not fail as often as the literature has suggested. In 2005–2010, at least 82.5% of the co-ownership partitions were conducted through voluntary agreements, while only about 7.5% of the partitions were ordered by the court. In addition, using multinomial logistic regression models, this article finds that the court tends to order, and the plaintiffs tend to petition for, partition by sale when partitioning in kind or partial partition would create excessively small plots.
{"title":"Tenancy In “Anticommons”? A Theoretical and Empirical Analysis of Co-Ownership","authors":"Yun-chien Chang","doi":"10.1093/JLA/LAS011","DOIUrl":"https://doi.org/10.1093/JLA/LAS011","url":null,"abstract":"This article argues that a resource held in tenancy in common is likely to be underused and underinvested, and is thus better characterized as an anticommons. Nevertheless, tenancy in common does not necessarily create tragedy, as under most legal regimes each co-tenant has a right to petition for partition at any time, and after partition, new owners are likely to utilize the resource more efficiently. Using data from Taiwan, this article finds that cooperation among co-tenants does not fail as often as the literature has suggested. In 2005–2010, at least 82.5% of the co-ownership partitions were conducted through voluntary agreements, while only about 7.5% of the partitions were ordered by the court. In addition, using multinomial logistic regression models, this article finds that the court tends to order, and the plaintiffs tend to petition for, partition by sale when partitioning in kind or partial partition would create excessively small plots.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"6 1","pages":"515-553"},"PeriodicalIF":2.2,"publicationDate":"2011-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82494959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Most Contracts casebooks feature either Baird v. Gimbel or (Drennan v. Star Paving to illustrate the limits on revocability of an offer. In this paper an analysis of the case law yields three major conclusions. First, as is generally known, in the contractor-subcontractor cases Drennan has prevailed. However, both it and its spawn, Restatement 2d 87(2), have had almost no impact outside that narrow area. Moreover, almost all the cases involve public construction projects - private projects account for only about ten percent of the cases. This suggests that private parties have managed to resolve the problem contractually. Public contract law is encrusted with regulations, which courts and contracts scholars have ignored. The result is a peculiar phenomenon - a supposedly general contract doctrine that applies only in a specific context, but which ignores the features of that context.
{"title":"Traynor (Drennan) Versus Hand (Baird) Much Ado About (Almost) Nothing","authors":"Victor P. Goldberg","doi":"10.1093/JLA/LAR003","DOIUrl":"https://doi.org/10.1093/JLA/LAR003","url":null,"abstract":"Most Contracts casebooks feature either Baird v. Gimbel or (Drennan v. Star Paving to illustrate the limits on revocability of an offer. In this paper an analysis of the case law yields three major conclusions. First, as is generally known, in the contractor-subcontractor cases Drennan has prevailed. However, both it and its spawn, Restatement 2d 87(2), have had almost no impact outside that narrow area. Moreover, almost all the cases involve public construction projects - private projects account for only about ten percent of the cases. This suggests that private parties have managed to resolve the problem contractually. Public contract law is encrusted with regulations, which courts and contracts scholars have ignored. The result is a peculiar phenomenon - a supposedly general contract doctrine that applies only in a specific context, but which ignores the features of that context.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"71 1","pages":"539-585"},"PeriodicalIF":2.2,"publicationDate":"2011-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85172564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, I define business method inventions and provide an economic framework to address the question of patentability raised in Bilski. A business method invention is the discovery of a commercial technique that firms can apply to address market opportunities. The initial implementation of a business method invention by firms is a Schumpeterian innovation. I advance several arguments in favor of business method patentability. Business method inventions are an important foundation for entrepreneurship and a channel for the commercialization of scientific and technological inventions. IP protections for business method inventions are essential for economic efficiency, including incentives for invention, efficient allocation of inventions, and transaction efficiencies in the market for discoveries. Business method inventions are significant because they are the foundation of what I term the ‘‘Business Revolution’’: the augmentation and replacement of human effort in business transactions by computers, communications systems, and the Internet. I conclude that the patent system should continue to provide intellectual property protections for business method inventions just as it does for other types of inventions.
{"title":"Should Business Method Inventions be Patentable","authors":"Daniel F. Spulber","doi":"10.1093/JLA/3.1.265","DOIUrl":"https://doi.org/10.1093/JLA/3.1.265","url":null,"abstract":"In this article, I define business method inventions and provide an economic framework to address the question of patentability raised in Bilski. A business method invention is the discovery of a commercial technique that firms can apply to address market opportunities. The initial implementation of a business method invention by firms is a Schumpeterian innovation. I advance several arguments in favor of business method patentability. Business method inventions are an important foundation for entrepreneurship and a channel for the commercialization of scientific and technological inventions. IP protections for business method inventions are essential for economic efficiency, including incentives for invention, efficient allocation of inventions, and transaction efficiencies in the market for discoveries. Business method inventions are significant because they are the foundation of what I term the ‘‘Business Revolution’’: the augmentation and replacement of human effort in business transactions by computers, communications systems, and the Internet. I conclude that the patent system should continue to provide intellectual property protections for business method inventions just as it does for other types of inventions.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"10 1","pages":"265-340"},"PeriodicalIF":2.2,"publicationDate":"2011-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76603301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For over a century England’s judicial system decided land disputes by ordering disputants’ legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle. This paper investigates the law and economics of trial by battle. In a feudal world where high transaction costs confounded the Coase theorem, I argue that trial by battle allocated disputed property rights efficiently. It did this by allocating contested property to the higher bidder in an all-pay auction. Trial by battle’s ‘‘auctions’’ permitted rent seeking. But they encouraged less rent seeking than the obvious alternative: a first-price ascending-bid auction. ‘‘When man is emerging from barbarism, the struggle between the rising powers of reason and the waning forces of credulity, prejudice, and custom, is full of instruction.’’ —Henry C. Lea, Superstition and Force (1866, 73).
{"title":"Trial by Battle","authors":"P. Leeson","doi":"10.1093/JLA/3.1.341","DOIUrl":"https://doi.org/10.1093/JLA/3.1.341","url":null,"abstract":"For over a century England’s judicial system decided land disputes by ordering disputants’ legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle. This paper investigates the law and economics of trial by battle. In a feudal world where high transaction costs confounded the Coase theorem, I argue that trial by battle allocated disputed property rights efficiently. It did this by allocating contested property to the higher bidder in an all-pay auction. Trial by battle’s ‘‘auctions’’ permitted rent seeking. But they encouraged less rent seeking than the obvious alternative: a first-price ascending-bid auction. ‘‘When man is emerging from barbarism, the struggle between the rising powers of reason and the waning forces of credulity, prejudice, and custom, is full of instruction.’’ —Henry C. Lea, Superstition and Force (1866, 73).","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"22 1","pages":"341-375"},"PeriodicalIF":2.2,"publicationDate":"2011-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79121962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that disparaged abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Despite a brief revival of interest stimulated by the writings of Howard Jay Graham and Jacobus tenBroek, in the 1970s and 1980s abolitionist constitutionalism remains obscure to law professors and even to historians of abolitionism. This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North, many of whom were instrumental in the formation of the Liberty, Free Soil, and Republican parties. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One. The more one reads the forgotten writings of these “constitutional abolitionists,” the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came. The Fourteenth Amendment is universally presumed to be the outcome of the organized antislavery movement in the United States, yet its modern history continues to be written without reference to the abolitionists. Judges and historians seek an understanding of phrases admittedly designed to secure the ‘‘freedom of the slave race’’ without first examining the tenets of the group which fought longest and hardest to establish that freedom. [T]he fight for liberty in this land was begun by the Radical Abolitionists long before the final battle..They were followed, however, by a class known as Constitutional Abolitionists; equally bold and brave, but more practical. It was the labor of the latter that accomplished glorious results; fought the good battle to a finish and destroyed the slave power. They were among the organizers of the Republican Party.
{"title":"Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment","authors":"Randy E. Barnett","doi":"10.1093/JLA/3.1.165","DOIUrl":"https://doi.org/10.1093/JLA/3.1.165","url":null,"abstract":"The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that disparaged abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Despite a brief revival of interest stimulated by the writings of Howard Jay Graham and Jacobus tenBroek, in the 1970s and 1980s abolitionist constitutionalism remains obscure to law professors and even to historians of abolitionism. This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North, many of whom were instrumental in the formation of the Liberty, Free Soil, and Republican parties. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One. The more one reads the forgotten writings of these “constitutional abolitionists,” the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came. The Fourteenth Amendment is universally presumed to be the outcome of the organized antislavery movement in the United States, yet its modern history continues to be written without reference to the abolitionists. Judges and historians seek an understanding of phrases admittedly designed to secure the ‘‘freedom of the slave race’’ without first examining the tenets of the group which fought longest and hardest to establish that freedom. [T]he fight for liberty in this land was begun by the Radical Abolitionists long before the final battle..They were followed, however, by a class known as Constitutional Abolitionists; equally bold and brave, but more practical. It was the labor of the latter that accomplished glorious results; fought the good battle to a finish and destroyed the slave power. They were among the organizers of the Republican Party.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"292 1","pages":"165-263"},"PeriodicalIF":2.2,"publicationDate":"2011-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90332075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
T. Eisenberg, Michael Heise, Nicole L. Waters, M. Wells
Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about three to five percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were surprisingly infrequently sought, with requests found in about 10% of tried cases that plaintiffs won. Punitive damages were awarded in about 30% these trials. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60%. Greater harm corresponded to a greater probability of an award: the size of the compensatory award was significantly associated with whether punitive damages were awarded, with a rate of approximately 60% for cases with compensatory awards of $1 million or more. Regression models correctly classify about 70% or more of the punitive award request outcomes, Judge-jury differences in the rate of awards exist, with judges awarding punitive damages at a higher rate in personal injury cases and juries awarding them at a higher rate in nonpersonal injury cases. These puzzling adjudicator differences may be a consequence of the routing of different cases to judges and juries.
{"title":"The Decision to Award Punitive Damages: An Empirical Study","authors":"T. Eisenberg, Michael Heise, Nicole L. Waters, M. Wells","doi":"10.1093/JLA/2.2.577","DOIUrl":"https://doi.org/10.1093/JLA/2.2.577","url":null,"abstract":"Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about three to five percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were surprisingly infrequently sought, with requests found in about 10% of tried cases that plaintiffs won. Punitive damages were awarded in about 30% these trials. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60%. Greater harm corresponded to a greater probability of an award: the size of the compensatory award was significantly associated with whether punitive damages were awarded, with a rate of approximately 60% for cases with compensatory awards of $1 million or more. Regression models correctly classify about 70% or more of the punitive award request outcomes, Judge-jury differences in the rate of awards exist, with judges awarding punitive damages at a higher rate in personal injury cases and juries awarding them at a higher rate in nonpersonal injury cases. These puzzling adjudicator differences may be a consequence of the routing of different cases to judges and juries.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"3 1","pages":"577-620"},"PeriodicalIF":2.2,"publicationDate":"2010-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80283330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The United States Patent and Trademark Office has acquired a well-deserved reputation for inefficacy and inefficiency. Proposals for reforming the patent office have thus focused on improving the quality of patent review while decreasing its cost. Yet this view overlooks the valuable function performed by the high costs associated with obtaining a patent: these costs serve as an effective screen against low-value patents. Moreover, due to asymmetries in patent values, the costly screen is likely to select against socially harmful patents in disproportionate numbers. Although the patent office is the most prominent forum in which this type of costly screening operates, it is not the only one. In a variety of other contexts, the private costs of navigating an administrative process may complement the process itself in screening out unwanted participants.
{"title":"Costly Screens and Patent Examination","authors":"J. Masur","doi":"10.1093/JLA/2.2.687","DOIUrl":"https://doi.org/10.1093/JLA/2.2.687","url":null,"abstract":"The United States Patent and Trademark Office has acquired a well-deserved reputation for inefficacy and inefficiency. Proposals for reforming the patent office have thus focused on improving the quality of patent review while decreasing its cost. Yet this view overlooks the valuable function performed by the high costs associated with obtaining a patent: these costs serve as an effective screen against low-value patents. Moreover, due to asymmetries in patent values, the costly screen is likely to select against socially harmful patents in disproportionate numbers. Although the patent office is the most prominent forum in which this type of costly screening operates, it is not the only one. In a variety of other contexts, the private costs of navigating an administrative process may complement the process itself in screening out unwanted participants.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"16 2 1","pages":"687-734"},"PeriodicalIF":2.2,"publicationDate":"2010-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82091777","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although the Google Books Settlement has been criticized as anticompetitive, I conclude that this critique is mistaken. For out-of-copyright books, the settlement procompetitively expands output by clarifying which books are in the public domain and making them digitally available for free. For claimed in-copyright books, the settlement procompetitively expands output by clarifying who holds their rights, making them digitally searchable, allowing individual digital display and sales at competitive prices each rightsholder can set, and creating a new subscription product that provides digital access to a near-universal library at free or competitive rates. For unclaimed in-copyright books, the settlement procompetitively expands output by helping to identify rightsholders and making their books saleable at competitive rates when they cannot be found. The settlement does not raise rival barriers to offering any of these books, but to the contrary lowers them. The output expansion is particularly dramatic for commercially unavailable books, which by definition would otherwise have no new output.
{"title":"Why the Google Books Settlement is Procompetitive","authors":"E. Elhauge","doi":"10.1093/JLA/2.1.1","DOIUrl":"https://doi.org/10.1093/JLA/2.1.1","url":null,"abstract":"Although the Google Books Settlement has been criticized as anticompetitive, I conclude that this critique is mistaken. For out-of-copyright books, the settlement procompetitively expands output by clarifying which books are in the public domain and making them digitally available for free. For claimed in-copyright books, the settlement procompetitively expands output by clarifying who holds their rights, making them digitally searchable, allowing individual digital display and sales at competitive prices each rightsholder can set, and creating a new subscription product that provides digital access to a near-universal library at free or competitive rates. For unclaimed in-copyright books, the settlement procompetitively expands output by helping to identify rightsholders and making their books saleable at competitive rates when they cannot be found. The settlement does not raise rival barriers to offering any of these books, but to the contrary lowers them. The output expansion is particularly dramatic for commercially unavailable books, which by definition would otherwise have no new output.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"1 1","pages":"1-68"},"PeriodicalIF":2.2,"publicationDate":"2010-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80421028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper defends judicial review on the grounds that judicial review is necessary for protecting “a right to a hearing.” Judicial review is praised by its advocates on the basis of instrumentalist reasons, i.e., because of its desirable contingent consequences such as protecting rights, romoting democracy, maintaining stability, etc. We argue that instrumentalist easons for judicial review are bound to fail and that an adequate defense of udicial review requires justifying judicial review on non-instrumentalist grounds. A non-instrumentalist justification grounds judicial review in essential attributes of he judicial process. In searching for a non-instrumental justification we establish that judicial review is designed to protect the right to a hearing. The right to a hearing consists of hree components: the opportunity to voice a grievance, the opportunity to be rovided with a justification for a decision that impinges (or may have impinged) on one’s rights and, last, the duty to reconsider the initial decision giving rise to the grievance. The right to a hearing is valued independently of the merit of the decisions generated by the judicial process. We also argue that the recent proposals to reinforce popular or democratic participation in shaping the Constitution are wrong because they are detrimental to the right to a hearing.
{"title":"The Easy Core Case for Judicial Review","authors":"Alon Harel, T. Kahana","doi":"10.1093/JLA/2.1.227","DOIUrl":"https://doi.org/10.1093/JLA/2.1.227","url":null,"abstract":"This paper defends judicial review on the grounds that judicial review is necessary for protecting “a right to a hearing.” Judicial review is praised by its advocates on the basis of instrumentalist reasons, i.e., because of its desirable contingent consequences such as protecting rights, romoting democracy, maintaining stability, etc. We argue that instrumentalist easons for judicial review are bound to fail and that an adequate defense of udicial review requires justifying judicial review on non-instrumentalist grounds. A non-instrumentalist justification grounds judicial review in essential attributes of he judicial process. In searching for a non-instrumental justification we establish that judicial review is designed to protect the right to a hearing. The right to a hearing consists of hree components: the opportunity to voice a grievance, the opportunity to be rovided with a justification for a decision that impinges (or may have impinged) on one’s rights and, last, the duty to reconsider the initial decision giving rise to the grievance. The right to a hearing is valued independently of the merit of the decisions generated by the judicial process. We also argue that the recent proposals to reinforce popular or democratic participation in shaping the Constitution are wrong because they are detrimental to the right to a hearing.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"1310 1","pages":"227-256"},"PeriodicalIF":2.2,"publicationDate":"2010-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86488985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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