David S. Law (University of San Diego – School of Law) has posted A Theory of Judicial Power and Judicial Review on SSRN. Here is the abstract:
Judicial review has long been characterized by constitutional scholars as countermajoritarian and antidemocratic. This Article employs insights from political science and game theory to argue that precisely the opposite is true: the relationship between judicial power and popular rule is not antagonistic, but symbiotic. Constitutional courts with the power of judicial review perform monitoring and coordination functions that are crucial to the maintenance of popular sovereignty. By conveying relevant information about government misconduct in a highly public fashion, constitutional courts enable the people to exercise control over the government in an informed and coordinated manner. The fact that constitutional courts perform monitoring and coordinating functions helps, in turn, to solve the puzzle of why governments obey them. Their ability to mobilize the people against the government means that government disobedience of the courts carries potentially severe consequences.
Judicial review supports popular sovereignty by mitigating the principal-agent problem that lies at the heart of democratic government. In a system of constitutional government premised upon popular sovereignty, the people institute and delegate power to a government and may impose terms and conditions in the form of a constitution. The government, as the agent of the people, is supposed to exercise its power consistent with those terms and conditions. But the interests of principal and agent may diverge: those entrusted with public power may seek to seize more power than has been given them, or to turn the power they have been given against the people themselves. The people, as collective principal, thus face the challenge of asserting effective control over a potentially treacherous government. A constitution ordinarily sets forth mechanisms by which they may exercise such control peacefully, but these are not immune to sabotage and failure. In extreme cases of constitutional failure, the people may band together to overthrow a government that has blocked the ordinary mechanisms of popular control. There are, however, significant potential obstacles to any effective exercise of popular power over the government. First is an information problem: the people cannot respond to bad behavior by the government if they remain unaware of that behavior. Second is a coordination problem: even if the people acting together are capable of replacing the government, such action may require widespread coordination that can be difficult to achieve.
Constitutional courts facilitate the exercise of popular control over the government in two ways. First, they provide reliable, low-cost information about the constitutionality of government conduct. A court engaged in judicial review performs the function of a whistleblower or fire alarm: it warns the people whether their government has overstepped the bounds of its delegated power. Second, courts can coordinate popular action against usurping governments. People are unlikely to act openly against a tyrannical government unless they believe that others will act as well. What they need, therefore, is a signal that it is time to act. A court can provide such a signal by ruling publicly against the government.
And from the text:
[C]ourts can shape our predictive beliefs, or our expectations about how others will behave. The essence of strategic behavior is to act in ways that anticipate the behavior one expects from others. Our predictions regarding the behavior of others inform our strategic calculations as to the costs and benefits of different courses of action. A judicial decision that changes our expectations about how others will behave thus influences our own behavior as well. In choosing how to behave in light of a judicial decision, a strategic actor must take into account how she expects others to respond to the decision. Her calculations as to how others will react may lead her to comply with the decision, regardless of whether she finds the decision either factually informative or normatively persuasive. By generating predictive beliefs about the behavior of others, courts can induce rational actors to comply with their decisions. The expectation that others will punish us for defying the courts, for example, has traditionally provided a strong incentive to obey the courts in the first place. Suppose, for example, that A sues B for intentional infliction of emotional distress and wins a damages award. The judgment may have no effect on B’s factual belief that she inflicted no harm on A, or on her normative belief that her behavior was wholly justified. The fact that the court has entered a judgment against her, however, leads her to believe that others–including, but not limited to, the court itself–will inflict various costs on her if she refuses to pay A as ordered. It is B’s predictive beliefs about the consequences of the decision, as opposed to her factual or normative beliefs, that lead her to comply.
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