Nicholas Almendares and Patrick Le Bihan (New York University - School of Law - Politics Department and New York University (NYU)) have posted Increasing Leverage: Judicial Review as a Democracy-Enhancing Institution on SSRN. Here is the abstract:
-
Judicial review has been criticized as inconsistent with democratic rule as a democratically unaccountable institution (the courts) has the power to override the decisions of more democratic institutions (the legislature and executive). We show, however, that judicial review has a heretofore unappreciated democracy-enhancing effect. Namely, it has the capacity to make elected officials more sensitive to the voters' interests. We explicate this argument with a game-theoretic model with multiple policy dimensions.
The overall effect of judicial review vis-a-vis democracy is, however, ambiguous. We suggest that this ambiguity can be resolved in favor of democracy by manipulating the court's jurisdiction. Finally, our arguments demonstrate that judicial review, by virtue of its effect upon lawmakers and other elected officials, has a more pervasive effect than expected.
