Adjudication as representation

Article Abstract:

Critics of judicial activism are incorrect when they assert that adjudicative lawmaking is undemocratic because judges are not politically accountable for their decisions. Whether judges are striking down laws as unconstitutional or resolving ambiguities in legislation, they are bound by the positions taken by the litigants. Decisions only have precedential value to the extent that subsequent cases involve similar facts. Judge-made law only poses a threat to the legitimacy of the law when it has binding precedential effect beyond the particular circumstances of the case.

Political aspects, Judicial activism, Judge-made law

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The scope of representation-reinforcing judicial review

Article Abstract:

Judicial review can be justified as promoting the constitutional value of representational equality, meaning that judicial restraint cannot be defended as democratic. Representational reinforcement requires that judges uphold higher-order interests over lower-order ones. For example, the right to abortion represents a higher-order interest for many women, in comparison to the lower-order interest of bystanders in promoting their moral preferences. Therefore, legalized abortion is necessary to obtain political equality between men and women.

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Suing the president: nonstatutory review revisited

Article Abstract:

Nonstatutory judicial review provides a means for injured persons to obtain relief for the unlawful actions of government officials including the President of the US. The existence of the Administrative Procedure Act has diminished general knowledge of the judicial authority which which allows avoidance of sovereign immunity by creation of a fiction. This fiction allows suits against individual officials for actions in their official capacities not to be considered suits against the government.

Executive power

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