Alternative Forms of Judicial Review

Abstract

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review.1 Strongand weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strongand weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strongor weak-form treatment. I examine examples of legislative allocations of issues to strongand weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations of the courts' own decisions to strongor weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as exam-