Talk:Judicial review

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[edit] English Law

As far as I know, the highest level of scrutiny applied by the courts is in fact Proportionality. When a case deals with Human rights, Proportionality is the test applied, not Irrationality of any kind (I've never seen reference to "anxious scruitiny"...anyone?). Can anyone else confirm this?

'anxious scrutiny' was a term developed in pre- Human Rights Act cases, whereby the court stated that they would be more alive to claims of irrationality where fundamental rights recognised by the common law were in dispute. Off-hand I think the term itself was coined in the Derbyshire County Council case. It is questionable whether proportionality should be understood as directly supplanting irrationality in cases with an ECHR dimension. Although in practice the two will often collapse into one another (the former being a higher intensity version of the latter), it may be possible, theoretically, to have a decision which is proportionate in effect, but irrational in conception. However, to date proportionality has operated as a species of irrationality and therefore it is wrong to say that in ECHR cases "...proportionality is the test applied, not Irrationality of any kind..." Antisthenes 14:01, 26 November 2006 (UTC)

[edit] Panel on Takeovers and Mergers

I've reverted an edit that replaced an link to the panel to a link to the Competition Commission. The later being a public body, there is no surprise that it is subject to judicial review. The panel was a voluntary body and that was what was so significant about the decision in Datafin. Francis Davey 17:46, 31 March 2006 (UTC)

[edit] Supreme court

"In the first seventy-five years of the Republic, the Supreme Court only struck down two pieces of legislation. Thereafter, laws were invalidated only in bursts, for instance, at certain times in the Progressive Era and during the New Deal. Since 1986, when current Chief Justice William H. Rehnquist joined the court, laws have been declared unconstitutional much more commonly than at any time previous. As of the end of 2004, the Rehnquist court has declared unconstitutional more than three dozen laws."

It's probably true that the Supreme Court didn't stike down many laws after its initial inception. However, it seems very dubious that laws have been struck down circa 1986-2004 with significantly greater frequency than other times. In particular, during the civil rights movements (black's and women's) and the sexual revolution of the 1960's and 1970's, so many laws were struck down. I have heard others point to Justice Warren (rather than Rehinquist) as beginning of a precedence of overturning legislation -- they did not substantiate their claim either. I think the statements are suspect enough to warrant their removal, unless a credible source is supplied. Queerudite 20:58, 5 Feb 2005 (UTC)

[edit] Germany

I modified the Germany secton to use "state" instead of "Land" everywhere; this reflects the most common English usage. I did not translate "Bundesrat" as it is frequently not translated (the institution being one unlike what most if not all English-speaking countries have).

[edit] The lead

The lead has this sentence -- "Judicial review is the power of a court to review a law or an official act of a government employee or agent. For example, the basis are different in other countries because of an unconstitutional act of violating basic principles of justice." "I don't understand it at all. It seems there's been some over editing on this and it needs to be cleaned up."

How about "The power of the courts to declare laws and actions of the local, state, or national government invalid if the courts decide they are unconstitutional."? Omegaorion

Unfortunately that would be an incorrect definition since it appears to focus on "constitutionality" which is not the only ground of review in most common law jurisdictions (certainly outside the united states). Also, judicial review is a process not a power. Whether a court has the power will depend on whether the relevant actions is judiciable in the jurisdiction in question. Francis Davey 18:09, 9 October 2006 (UTC)
I have slimmed down the lead-in section considerably. It now states simply that review is available in relation to the "constitutionality" of official action. This will probably lead to objections that some jurisdictions do not know of constitutional review and do not have a written constitution (eg. the UK). Francis Davey makes this very point above. I stand by my edit.
Essentially judicial review is always about constitutionality. In the UK the orthodox view is that judicial review is about constraining officials within the parameters of action permitted to them by Parliament. This is a constitutional issue - acting beyond the scope of conferred powers is unconstitutional. It is not simply superfluous to claim, as the original introduction did, that review is also available for violations of basic principles of justice, it is wrong to do so. In a country with a written constitution (eg. the USA) actions violating rights are struck at because rights are protected by the constitution expressly - thus the action is unconstitutional. In a country with an unwritten constitution (eg. the UK) actions violating basic rights (in the case of the UK, before the Human Rights Act) were struck at not because they violated basic rights but because there is a presumption that Parliament does not intend to confer powers authorising the violation of basic rights. In other words actions are reviewable because they exceed the powers conferred upon the actor and, as stated above, acting in excess of statutory powers is unconstitutional. Violating basic rights per se is not therefore sufficient grounds for review in either the USA or the UK. Rather the basis for the review is the alleged unconstitutionality of the Act.
Admittedly, the foregoing is based on the orthodox view of the UK constitution. This is not the place to debate the concept of common law constitutionality, but anyone versed in the controversy will, I imagine, appreciate that from either side of the dispute the first sentence of the paragraph above is unobjectionable; the dispute concerns only the reasoning by which one reaches that outcome.
--Antisthenes 22:38, 30 June 2007 (UTC)
With respect, that seems a very straightforward claim that what is written is POV, if (as you say) it represents "the orthodox view" is must (ex hypothesi) be a POV. In fact most of the academics doing work in public law that I have met would reject the "ultra vires" basis of judicial review -- which is the view that I think you are talking about. Certainly the courts do not appeal to a notion of "constitutionality" (whatever that may mean) when making decisions on judicial review (believe me, its something I do). Now, if you chose to analyse everything courts do as "constitutional" since they are part of the constitution and self-evidently every principle they use must be a part of the constitution by definition, then what you say is correct, but (surely) empty of any meaning? Would you define an appeal in the same way (you should because the two overlap considerably)? Your definition also ignores the fact that judicial decisions may be reviewed, unless courts are subsumed under "government" which is at best highly misleading, your definition is wrong in that respect at least. Francis Davey 07:06, 26 September 2007 (UTC)

[edit] US Section

The section on judicial review in America is obviously biased, and comes across as a primer on why judicial review was thought to be bad. Not NPOV.

All I did was quote the Virginia Constitution which was written in the same year as the Declaration of Indepence, Thomas Jefferson who wrote the Declaration of Independence, Robert Yates who was a member of the Constitutional Convention, and James Madison's notes on the Constitutional Convention. If that section is biased, it's because the Founding Fathers were in some way biased. I let the Founders speak for themselves. I'm not saying it's bad. I'm saying the Founding Fathers thought it was bad, which is why they didn't put it in the Constitution, and in some cases outlawed judicial review, in the case of the Virginia Constitution. Judicial review is illegal in the United States. Anyone who reads the Constitution knows that. Whether you think breaking the law is good or bad is left up to you.

No, whether it's illegal is up to you. Wikipedia is not going to take a position on that question. The sentence flatly asserting the correctness of one side of the dispute is the most obvious flaw in this section, so I'll remove that immediately, but much of the rest violates WP:NPOV and will need substantial changes. JamesMLane 06:55, 2 August 2005 (UTC)

Listen, it is provable that it's unconstitutional. That is not someone's opinion. The Supreme Court was not specifically given that power in the constitution. Everything that talks about judicial review recognizes that. Therefore, under the Tenth Amendment, anything not specifically given to the federal government, is denied to the federal government and reserved for the states. Therefore, judicial review is unconstitutional. And I think I present enough historical evidence to show that it was considered to be part of the constitution, but was thrown out. Whether you think that the Supreme Court should have judicial review, whether you would support a constitution amendment giving them that power, whether you think their breaking the law (because the constitution is the law) is good or bad, that's all left up to you.

Actually, it is not so simple as you seem to state. The 10th Amendment does not state that federal powers must be specifically enumerated by the constitution. It states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The argument for judicial review is that it is tacitly endorsed by the constitution. This is of course an arguable point, but your position, that such things must be specifically stated, relies upon a notion of language that seems to deny any power to contextual and subtextual matters that are generally quite important, and thus comes across as overly simplistic and suspect.

You are correct, the 10th Amendment does not say that federal powers must be enumerated. They did, however, state that if those powers were not 'delegated' to the federal government, then they belonged to the state government. Delegated; intransitive verb : to assign responsibility or authority (Merriam-Webster). I have no problem with contextual and subtextual powers when there is no other clear guidance. But the 10th amendment, which doesn't require contest or subtest, says that unless the constitution has delegated (or assigned) a power, it belongs to the state. Reading the Article that gives the SCOTUS it's power, their is no delegation or assignment. --Angncon 16:17, 29 April 2007 (UTC)

[edit] Judicial review: More than just constitutional issues

I have added some language to make clear that while Judicial Review is often thought of (in the United States, at least) as the power of courts to declare statutes unconstitutional, it is really more than that. In a broad technical legal sense in the United States, all substantive considerations of appeals are examples of Judicial Review -- and most involve interpretations of statutes, etc., not interpretations of the Constitution. Famspear 23:50, 22 December 2005 (UTC)

[edit] More countries, editing

I have added a subsection to the German one, but I think if this article would expand the judicial reviews of all countries in the world it would make a book. I think it would be sensible to generalize this article, and create new articles for national judicial reviews. For instance, the Austrian and German Constitutional Court had inspired dozens of new democracies, thus it may be regarded as a general model. The particular information about Germany, Austria, Bulgaria or Hungary may go into separate articles if anybody wants to write them. --ADaniel 11:49, 25 December 2005 (UTC)

[edit] Judicial review in England and Wales- Irrationality

I have swapped Super-Wednesbury and ordinary-Wednesbury in the 'Scale of intensity of review'. I may well be wrong, I did that because it didn't make any sense to me in the other way.

please correct this section if I'm wrong

[edit] Judicial review in France

"Judicial review in France is performed by the Constitutional Council." According to the article: "Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice". So IMHO judicial review also refers to legal actions against an administrative decision which, in France, are heard by courts (notably the Conseil d'Etat) which can strike down (almost) every administrative decision which is contrary to the Constitution, or to the law voted by the Parliament. I think judicial review also includes the compliance of an administrative decision to an international treaty (which is nothing but a sort of law): French court, although they are compelled to abide by a law (in the French meaning, i.e the law voted by the Parliament or approved by a referendum) even if this law is constitutional, can assess whether this law abides by an international treaty and, if not, say the law should be ignored (although the law is not formally cancelled). Apokrif 20:26, 23 March 2006 (UTC)

[edit] Link to de:

The article currently links to de:Verfassungsgericht (and conversely), but as Verfassungsgericht means "constitutional court" and not the power of this court, I think en: should rather link to de:Verfassungsbeschwerde (although a Verfassungsbeschwerde is the application for judicial review - ie an action by by a litigant - rather than the judicial review itself - ie the power of the court). Also, in the case of the Verfassungsbeschwerde, the court is interested only in the violation of the Constitution (Verfassung), whereas, according to the en: article, Judicial review sometimes includes the checking of facts. Apokrif 12:13, 31 March 2006 (UTC)

[edit] Pine Grove v. Talcott

This sentence is being taken out of context. The sentence was referring to the Court declining to decide whether the taking of property was invalid because of its non-private character.

The U.S. Supreme Court has always acknowledged that lack of authority. "It does not belong to courts to interpolate constitutional restrictions. Our duty is to apply the law, not to make it. All power may be abused where no safeguards are provided. The remedy in such cases lies with the people, and not with the judiciary." Pine Grove v. Talcott, 86 U.S. 666 (1873) —The preceding unsigned comment was added by Roadrunner (talk • contribs) 20:13, 25 January 2007 (UTC).

I disagree. The sentence is not being taken out of context. The Court in that case discussed at length the principles of judicial review, so it's very relevant to this article. The Court said:
"[I]t has been argued that the act of the legislature was void. This presents the only question in the case, and it is fundamental. If the foundation fails the entire superstructure reared upon it must fall. It is said the act is in conflict with the constitution of the State. It is an axiom in American jurisprudence that a statute is not to be pronounced void upon this ground, unless the repugnancy to the constitution be clear, and the conclusion that it exists inevitable. Every doubt is to be resolved in support of the enactment. The particular clause of the constitution must be specified and the act admit of no reasonable construction in harmony with its meaning....It does not belong to courts to interpolate constitutional restrictions. Our duty is to apply the law, not to make it. All power may be abused where no safeguards are provided. The remedy in such cases lies with the people, and not with the judiciary."
This is all about judicial review. At least the last four sentences belong back in the article. Those sentences very much support the statement made in the article: "[A] federal court may not strike down any statute absent a violation of some aspect of the Constitution. The U.S. Supreme Court has always acknowledged that lack of authority."Ferrylodge 21:56, 25 January 2007 (UTC)

[edit] Merge

The article, Judicial Review in English Law should form part of this article (in my opinion). --Stormbay 03:21, 18 May 2007 (UTC)


      • Side Note from someone else.... *** (I Agree..)
I desagree, since this is a general view of the subject, focusing on the system of each country in different articles. --Tonyjeff 03:51, 30 September 2007 (UTC)
  • Do not merge - see WP:Summary style. A merged article would be useless to the general or specific reader.Cutler 20:08, 17 October 2007 (UTC)
  • Do not merge - generic legal articles are always problematic, if we have an article with some real content in lets keep it. Would that there were more. Francis Davey 18:11, 5 November 2007 (UTC)
  • Do not merge - as mentioned below, this article should simply serve as a basic guide to judicial review, with signposts to more detailed articles on individual legal systems. I'm against large generic articles (like this one: contract law) which, although largely US-centric, pass themselves off as all-incompassing guides to the subject-matter. Ravenseft (talk) 13:31, 22 November 2007 (UTC)
  • Do not merge - per WP:Summary style. The main article should not contain the specifics. That is what sub articles are for. I also am against large generic articles. Dam, which originated as a decent article, is now a mess because every conceivable dam type was merged into it. And I agree that this is a problem especially in legal articles. It is one reason why many generic legal articles are a mess IMO. Mattisse 17:24, 1 December 2007 (UTC)

Hell no do NOT merge it has nothing to do with it! —Preceding unsigned comment added by 76.20.170.90 (talk) 15:46, 21 January 2008 (UTC)

[edit] Judicial review in English law

I think that, on the contrary, the general article on judicial review should be shorter, with references to special articles on judicial review in the various legal systems. Judicial review in the US is coming to dominate this article and may confuse the reader. I am busy expanding Judicial Review in English Law. I agree with ADaniel above.

I agree with this view. Mattisse 17:28, 1 December 2007 (UTC)

I concur. The core Judicial Review article should be shortened and used only to explicate the nature of judicial review in loose terms. Procedurally and substantively judicial review is radically different from one jurisdiction to another; even amongst common law systems there are very considerable differences. Rather than merging in the English judicial review article I think much of the US material should be removed from this one. This article could then be paired down to a very brief "Judicial review is..." followed by a series of links to each jurisdiction. As I am not a US lawyer I do not want to attempt to disentangle the information here myself and create the US Judicial Review article; I think doing so is a pre-requisite to thinning this one down. --Antisthenes 21:55, 30 June 2007 (UTC)

I agree with this approach, speaking as a person who finds many general legal articles confusing and frequently contradictory. Mattisse 17:28, 1 December 2007 (UTC)