Document Type

Article

Publication Title

Rutgers Law Review

Publication Date

Summer 2001

Abstract

This Article examines the role of judicial deference in a modern democracy. The Author disputes the view that judges defer to legislatures because legislatures are more majoritarian than judges. In refuting this view, the Author first outlines a theory of democracy as partnership. He then describes and discusses the main decisionmaking processes of a modern democracy, including aggregation processes such as majoritarian politics, economic markets, and civil society, as well as normative systems such as judiciaries, bureaucracies, and professionals, emphasizing the failure of each, taken alone, to satisfy democratic ideals. The Author contends that in order to understand and appreciate the role of judicial deference, we must distinguish judicial reasoning from these other decisionmaking institutions. While the boundaries between these institutions are quite flexible, often overlapping, and sometimes incoherent, the distinctions between them need not (and can not) be disregarded if we are to understand and appreciate the implicit natures and individual characteristics of each. The Author suggests that reinflating the collapsed distinctions between these institutions will set the groundwork for a new and improved analysis of each.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.