Professional Documents
Culture Documents
Responsive Judicial Review Rosalind Dixon full chapter pdf docx
Responsive Judicial Review Rosalind Dixon full chapter pdf docx
Dixon
Visit to download the full and correct content document:
https://ebookmass.com/product/responsive-judicial-review-rosalind-dixon/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...
https://ebookmass.com/product/abusive-constitutional-borrowing-
legal-globalization-and-the-subversion-of-liberal-democracy-1st-
edition-rosalind-dixon/
https://ebookmass.com/product/what-rosalind-likes-paul-j-hecht/
https://ebookmass.com/product/five-alarm-fire-nicole-dixon/
https://ebookmass.com/product/smart-stimuli-responsive-polymers-
liang-hu/
Culturally Responsive Conversations Marina Minhwa Lee
https://ebookmass.com/product/culturally-responsive-
conversations-marina-minhwa-lee/
https://ebookmass.com/product/breast-surgery-6th-edition-j-
michael-dixon/
https://ebookmass.com/product/corsairs-bethiah-corsair-brothers-
book-5-ruby-dixon/
https://ebookmass.com/product/the-american-judicial-system-a-
very-short-introduction-charles-l-zelden/
https://ebookmass.com/product/home-school-and-community-
collaboration-culturally-responsive-family-engagement-null/
OXFORD COMPARATIVE CONSTITUTIONALISM
Series Editors
RICHARD ALBERT
William Stamps Farish Professor of Law,
The University of Texas at Austin School of Law
ROBERT SCHÜTZE
Professor of European and Global Law,
Durham University and College of Europe
Series Editors
Richard Albert, William Stamps Farish Professor of Law,
The University of Texas at Austin Law School
Robert Schütze, Professor of European and Global Law,
Durham University and College of Europe
Comparative constitutional law has a long and distinguished history in
intellectual thought and in the construction of public law. As political
actors and the people who create or modify their constitutional orders,
they often wish to learn from the experience and learning of others. This
cross-fertilization and mutual interaction has only accelerated with the
onset of globalization, which has transformed the world into an
interconnected web that facilitates dialogue and linkages across
international and regional structures. Oxford Comparative
Constitutionalism seeks to publish scholarship of the highest quality in
constitutional law that deepens our knowledge of local, national, regional,
and global phenomena through the lens of comparative public law.
Advisory Board
Denis Baranger, Professor of Public Law, Université Paris II Panthéon-Assas
Wen-Chen Chang, Professor of Law, National Taiwan University
Roberto Gargarella, Professor of Law, Universidad Torcuato di Tella
Vicki C Jackson, Thurgood Marshall Professor of Constitutional Law, Harvard Law
School
Christoph Möllers, Professor of Public Law and Jurisprudence, Humboldt-
Universität zu Berlin
Cheryl Saunders A.O., Laureate Professor Emeritus, Melbourne Law School
ALSO PUBLISHED IN THIS SERIES
Deliberative Peace Referendums
Ron Levy, Ian O’Flynn, Hoi L. Kong
Eternity Clauses In Democratic Constitutionalism
Silvia Suteu
Scales of Memory
Constitutional Justice and Historical Evil
Justin Collings
The Global South and Comparative Constitutional Law
Edited by Philipp Dann, Michael Riegner, and Maxim Bönnemann
City, State
Constitutionalism and the Megacity
Ran Hirschl
Constitutional Change In The Contemporary Socialist World
Ngoc Son Bui
Poland’s Constitutional Breakdown
Wojciech Sadurski
Abusive Constitutional Borrowing
Rosalind Dixon and David Landau
Responsive Judicial Review
Democracy and Dysfunction in the Modern Age
ROSALIND DIXON
Professor of Law and Director of the Gilbert + Tobin Centre of Public Law, UNSW
Sydney
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford. It furthers the
University’s objective of excellence in research, scholarship, and education by publishing
worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in
certain other countries
© Rosalind Dixon 2023
The moral rights of the author have been asserted
First Edition published in 2023
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, without the prior permission in
writing of Oxford University Press, or as expressly permitted by law, by licence or under
terms agreed with the appropriate reprographics rights organization. Enquiries concerning
reproduction outside the scope of the above should be sent to the Rights Department,
Oxford University Press, at the address above
You must not circulate this work in any other form and you must impose this same
condition on any acquirer
Public sector information reproduced under Open Government Licence v3.0
(http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-
licence.htm)
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
This book has been a long time in the making. In many places it
draws on work I did during my doctorate/SJD at Harvard under the
generous supervision of Frank Michelman, Martha Minow, Richard
Fallon, Richard Goldstone, and Jacqui Bhabha. It also reflects time
spent thinking and writing as an assistant professor and professor at
the University of Chicago and University of New South Wales
(UNSW) in Sydney, as well as during several visits as a visiting
professor/fellow at Chicago, Harvard, and Columbia Law Schools.
The attention in the book to the realities of democratic politics, and
various possibilities for democratic experimentalism, is largely due to
the intellectual influence of the University of Chicago and Columbia
Law School. The enthusiasm for ideas about responsive law and
regulation is shaped by many generous colleagues at UNSW,
especially Theunis Roux and Martin Krygier.
The comparative method, and sensibility, I owe to many people
around the world both near and far—including colleagues at UNSW
and Melbourne, many fellow members of the International Society of
Public Law. Many of the ideas have also been shaped by valuable
conversations over many years with colleagues such as Richard
Albert, Micaela Alterio, Gabrielle Appleby, Ori Aronson, Ben Berger,
Carlos Bernal Pulido, Nina Boughey, Sean Brennan, Dan Brinks,
Jessica Bulman Pozen, Lisa Buton Crawford, Cora Chan, Adam
Chilton, Mathilde Cohen, Victor Comella, Joel Colon Rios, Adam Cox,
Javier Cuoso, Grainne de Burca, Maartje de Visser, Sujit Choudhry,
Melissa Crouch, Erin Delaney, Evelyn Douek, Anna Dziedic, Richard
Fallon, James Fowkes, Stephen Gardbaum, Roberto Gargarella,
Conor Gearty, Claudia Geiringer, Jake Gersen, Tom Ginsburg, Mark
Graber, Jamal Greene, Michaela Hailbronner, Andrew Harding, Ran
Hirschl, Aziz Huq, Helen Irving, Samuel Issacharoff, Vicki Jackson,
Aileen Kavanagh, Tarunabh Khaitan, Madhav Khosla, Paul Kildea, Jeff
King, Heinz Klug, David Landau, David Law, Hanna Lerner, Daryl
Levinson, Sandy Levinson, Ron Levy, Peter Leyland, Vanessa
MacDonnell, Frank Michelman, Martha Minow, Sarah Murray, Jaclyn
Neo, Roberto Niembro, Aoife Nolan, Kate O’Regan, Will Partlett, Rick
Pildes, Iddo Porat, Eric Posner, David Pozen, Kent Roach, Yaniv
Roznai, Ruth Rubio, Wojciech Sadurksi, Adam Samaha, Cheryl
Saunders, Jeff Seton, Amelia Simpson, James Stellios, Scott
Stephenson, Kristen Stilt, Adrienne Stone, Lior Strahilevitz, David
Strauss, Julie Suk, Mark Tushnet, Mariana Velasco Rivera, Sergio
Verdugo, Mila Versteeg, Joseph Weiler, Lulu Weis, and Po Jen Yap,
among many others. I am especially grateful to David Dyzenhaus for
encouraging me to return to work on the book after a long delay,
and to Mark Tushnet for his encouragement and guidance at many
different stages of the project.
The book also reflects the intellectual debt I owe to a number of
close colleagues and co-authors. The book inevitably reflects and
has parallels with the work of many of those scholars who I most
admire in the field, and it draws explicitly at a number of points on
ideas developed in joint-authored work with Michaela Hailbronner,
Samuel Issacharoff, Richard Holden, Amelia Loughland, Theunis
Roux, Adrienne Stone, Mark Tushnet, and especially David Landau,
and I am particularly grateful to these co-authors for so many
helpful conversations and their permission to draw on those ideas as
part of this project.
The book also draws directly at various points on articles
previously published in the Cardozo Law Review,1 International
Journal of Constitutional Law,2 Federal Law Review,3 Law & Ethics of
Human Rights,4 Osgoode Hall Law Journal,5 and Virginia Journal of
International Law,6 as well as various edited volumes.7 Chapters 2
and 3 draw directly on developed in The Supreme Court of Canada
and Constitutional (Equality) Baselines, 50 Osgoode Hall L.J. 637
(2012) and Rosalind Dixon and Michaela Hailbronner, Ely in the
World: The Global Legacy of “Democracy and Distrust” Forty Years
On, 19 Int’l. J. Const. L. 427 (2021), and Rosalind Dixon and Amelia
Loughland, Comparative Constitutional Adaptation: Democracy and
the High Court of Australia, 19 Int’l. J. Const. L. 455 (2021). Chapter
3 draws on The Core Case for Weak-Form Judicial Review, 38
Cardozo L. Rev. 2193 (2016) and Rosalind Dixon and David Landau,
Abusive Constitutional Borrowing: Legal Globalization and the
Subversion of Liberal Democracy (2021). Chapter 4 draws on
Calibrated Proportionality, 48 Fed. L. Rev. 92 (2020) and
Constitutional Carve-Outs, 37 Oxford J. Leg. Stud. 276 (2017).
Chapters 4 and 5 incorporate and expand arguments made in
Creating Dialogue about Socioeconomic Rights: Strong-form versus
Weak-form Judicial Review Revisited, 5 Int’l J. Const. L. 391 (2007),
David Landau and Rosalind Dixon, Abusive Judicial Review: Courts
Against Democracy 53 U.C. Davis L. Rev. 1313 (2020), and Rosalind
Dixon and Rishad Chowdhury, A Case for Qualified Hope? The
Supreme Court of India and the Midday Meal Decision, in A Qualified
Hope: The Indian Supreme Court and Progressive Social Change
(Gerald N. Rosenberg et al. eds., 2019). Chapter 6 draws on The
Forms, Functions, and Varieties of Weak(ened) Judicial Review, 17
Int. J. Const. L. 904 (2019). Chapter 8 reproduces and extends prior
arguments made in Strong Courts: Judicial Statecraft in Aid of
Constitutional Change, 59 Colum. J. Trans. L. 299 (2021). And I am
indebted to various referees and editors for these publications for
their role in refining and improving the work.
Many colleagues have also given their time and intellectual
insights and read (sometimes multiple) versions of the book in draft,
and I am especially grateful to them. My special thanks in this
context to Lynsey Blayden, Cora Chan, Erin Delaney, Stephen
Gardbaum, Claudia Geiringer, Mark Graber, Michaela Hailbronner,
Ran Hirschl, Richard Holden, Madhav Khosla, Vicki Jackson, Martin
Krygier, David Landau, Brendan Lim, Roger Masterman, Christoph
Möllers Theunis Roux, Kent Roach, Reva Siegel, Adrienne Stone,
Mark Tushnet, and Po Jen Yap, and participants at the Melbourne
Institute of Comparative Constitutional Law, in December 2019 and
UNSW Comparative Constitutional Roundtable in December 2020. I
was also generously aided in understanding specific comparative
issues by Asli Bâli, Vicente Fabian Benitez Rojas, Siddarth Narrain,
Oren Tamir, Sergio Verdugo, and Po Jen Yap, and at various points
by a range of outstanding UNSW graduates and graduate students,
including Ariella Buckley, John Lidbetter, Karie Mayman, Dessislava
Otachiliska, Elizabeth Perham, Veronica Sebesfi, and Melissa Vogt.
Melissa Vogt in particular contributed outstanding research
assistance throughout the project, and in the context of many of the
articles that were a precursor to it.
To them all, I offer my sincerest thanks.
Finally, to Isobel and Hartley—thank you for always coming with
me to constitutional law conferences that help make my work better,
and for enduring my desire to be on my computer during every
spare moment during COVID, and to finish home-schooling on an
accelerated timetable. Without your understanding and flexibility, the
work would never have been possible—and certainly not nearly as
enjoyable or worthwhile!
1 Rosalind Dixon, The Core Case for Weak-Form Judicial Review, 38 CARDOZO
L. REV. 2193 (2016).
2
Rosalind Dixon, The Forms, Functions, and Varieties of Weak(ened) Judicial
Review, 17 INT. J. CONST. L. 904 (2019); Rosalind Dixon, Creating Dialogue about
Socioeconomic Rights: Strong-form versus Weak-form Judicial Review Revisited, 5
INT’L J. CONST. L. 391 (2007).
3 Rosalind Dixon, The Functional Constitution: Re-reading the 2014 High Court
1. Introduction
A. Courts and Democratic Dysfunction: Promoting Democratic
Responsiveness
B. Responsiveness to Context and Limits on Judicial Capacity
C. Responsive Judging: Responding to Litigants (and
Disappointed Parties)
D. A Sometimes View of the Promise of Judicial Review
E. Structure of the Book
Just over forty years ago, John Hart Ely published Democracy and
Distrust, one of the best-known works of constitutional theory of all
time.1 In it, he outlined the idea of a “representation-reinforcing”
approach to judicial review, in which the role of courts was to
counter various “malfunctions” in the democratic process, rather
than broadly substitute for democratic decision-making by the
political branches of government.2
Many leading scholars have questioned why Ely’s ideas have had
such lasting influence. Ely arguably sought to draw too sharp a
distinction between constitutional “process” and “substance.”3 He
had little to say about the preconditions for effective judicial
representation-reinforcement. Indeed, Democracy and Distrust
largely preceded contemporary social science understandings about
the necessary political and social conditions for effective democracy
protection or enhancement by courts. He also focused entirely on
the United States (US): as Doreen Lustig and Joseph Weiler have
noted, “in some form or another the Ely thesis underlies many
current regimes of judicial review within functioning democracies.”4
Ely, however, developed his ideas solely within a US constitutional
context. He purported to provide an “interpretive” account of the US
Constitution, and the Warren Court’s constitutional jurisprudence,
and did not consider the vast comparative constitutional experience
of courts seeking to protect and promote democracy.5 And, in part
because of this, Ely did not account for the full range of
contemporary threats to democracy and democratic values.
Yet Ely’s focus on the relationship between judicial review and
democracy retains clear value: by linking the scope and intensity of
judicial review to the idea of democratic dysfunction, Ely helped
provide an important theoretical defense of the legitimacy of judicial
review in a democracy, while at the same time helping point to cases
in which more restrained or deferential forms of review by courts
may be appropriate. His work has also provided a common reference
point for constitutional theorists worldwide as they have grappled
with these same questions.
The challenge for contemporary constitutional theory, therefore, is
not to move beyond the idea of judicial representation-
reinforcement. It is to develop a truly comparative, sociologically
informed account of judicial representation-reinforcement that both
draws on comparative understandings of courts’ role in democracy
protection and promotion and acknowledges the potential limits and
contestability of this role.
(1) Reverse burdens of inertia, that is, legal changes that go beyond what
democratic majorities are willing to endorse or support, but which
legislatures cannot effectively override or modify; and
(2) Democratic backlash: forms of backlash against a court, which erode a
court’s capacity to implement democratic constitutional requirements.
(1) Authorship, the identity of a judge who writes for the court;
(2) Tone, how they approach the motives of losing parties; and
(3) Narrative, the mix of “global” and “local” values relied on in their reasoning.
Langford, Judicial Politics and Social Rights’, in The Future of Economic and Social Rights
(Katherine Young eds.,, 2019), 66–109, at 69–73; Malcolm Langford, Responsive Courts
and Complex Cases (forthcoming).
32
See, e.g., Lee Epstein et al., The Role of Constitutional Courts in the
Establishment and Maintenance of Democratic Systems of Government, 35 Law &
Soc’y Rev. 117 (2001); David Landau, Substitute and Complement Theories of
Judicial Review, 92 Ind. L.J. 1283 (2017).
33 Compare Dixon & Landau, Transnational Constitutionalism, supra note 9;
Kim
Lane Scheppele, The Rule of Law and the Frankenstate: Why Governance
Checklists Do Not Work, 26 Governance 559 (2013).
34
Mark Tushnet, Alternative Forms of Judicial Review, 101 Mich. L. Rev. 2782
(2003).
35
Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and
Practice (2013). See also Tom Hickey, The Republican Virtues of the “New
Commonwealth Model of Constitutionalism”, 14 Int’l J. Const. L. 794 (2016).
36 Tushnet himself has also welcomed this expansion and “continuization.” See
As the next section explores in more depth, these questions are far
from abstract: courts around the world routinely face such
questions. Yet different constitutional theories take a wide variety of
views about how courts should approach these questions. And, in
Another random document with
no related content on Scribd:
1.F.6. INDEMNITY - You agree to indemnify and hold the
Foundation, the trademark owner, any agent or employee of the
Foundation, anyone providing copies of Project Gutenberg™
electronic works in accordance with this agreement, and any
volunteers associated with the production, promotion and distribution
of Project Gutenberg™ electronic works, harmless from all liability,
costs and expenses, including legal fees, that arise directly or
indirectly from any of the following which you do or cause to occur:
(a) distribution of this or any Project Gutenberg™ work, (b)
alteration, modification, or additions or deletions to any Project
Gutenberg™ work, and (c) any Defect you cause.
Please check the Project Gutenberg web pages for current donation
methods and addresses. Donations are accepted in a number of
other ways including checks, online payments and credit card
donations. To donate, please visit: www.gutenberg.org/donate.
Most people start at our website which has the main PG search
facility: www.gutenberg.org.