ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

119 JUDICIAL REVIEW AND
CONSTITUTIONAL STRUCTURE
Panel formed with individual proposals.
Participants
Name of Chair
Room
David E. Landau
Ozan Varol
Rosalind Dixon
Yaniv Roznai
UL9 E14
David E. Landau: Courts and the Shaping of
Support
Two separate strains of existing work have shown
that exercises of judicial review can be either redundant
because so much external support for a constitutional
equilibrium exists (the “structural safeguards”
literature in US law), or futile because so little external
support exists (much of the courts and social change
literature). The coexistence of these two theories suggests
considerations that should inform a theory of
judicial review, particularly (but perhaps not exclusively)
in newer democracies. Courts can target issues where
levels of support render review neither futile nor redundant.
Further, they can shape their judgments to
increase the amount of support they receive from political,
civil society, and international actors, rather than
merely taking their political environments as a given.
The paper draws on examples from a number of countries
to demonstrate the feasibility and attractiveness
of such an approach to judicial review.
structural commitments in constitutional law. In international
law, constitutional law and administrative law,
particularly in the US, it is quite common to see a variety
of forms of legal ‘self-interpretation’ – i.e. processes by
which those who help write a law play a central role in
its later interpretation. The article this phenomenon in
constitutional and international law, and its potential
advantages in terms of access to information in the
process of interpretation, but also downsides in terms
of loss of interpretive impartiality. It further explores
the lessons from US administrative law and theory as
to how best to trade-off these factors in different contexts,
and in particular, the degree to which relevant
laws are (a) are ambiguous; (b) recent in origin; and (c)
being interpreted by multimember rather than single
member bodies, or (d) reflect areas of significant policy
expertise or complexity.
Ozan Varol: Structural Rights
Constitutional theory commonly casts individualrights
provisions and structural provisions as conceptual
opposites. Conventional wisdom suggests
that structural provisions establish and empower government
institutions, and rights provisions protect
individual freedoms. Although scholars have long explored
how government structure can affect individual
liberty, its mirror image has been neglected. Scholars
have largely assumed that individual rights have little
resemblance to constitutional structure. This Article
fills a scholarly gap by identifying and elucidating
structural rights, which straddle the right-structure
dichotomy and complicate contemporary constitutional
theory. Although rights are commonly assumed
to restrict government institutions, this Article argues
that rights can generate and distribute power, similar
to structural provisions.
Rosalind Dixon: Constitutional Self-Interpretation
In a constitutional context, separation of powers
understandings generally contemplate a strict institutional
separation between the drafting and interpretation
of laws. Yet this understanding is frequently
violated at the level of actual legal practice, in ways that
encourage us to rethink basic assumptions about core
Concurring panels 168