Judicial review is typically justified on consequentialist grounds, namely that it is conducive to the effective protection of individual rights. This Essay disputes this popular explanation for judicial review and argues that judicial review is based on a "right to voice a grievance" or a "right to a hearing" - a right designed to provide an opportunity for the victim of an infringement to challenge that infringement. The state must justify and, in appropriate cases, reconsider any infringement in light of the particular claims and circumstances of the victims of the infringement. This right-to-a-hearing-based justification implies that judicial review is justified even if, ultimately, it is found to be detrimental to the protection of rights. Finally, this Essay concludes that the right to a hearing is a participatory right and, consequently, that judicial review does not conflict with the right to equal democratic participation.
|Original language||American English|
|Number of pages||32|
|Journal||Virginia Law Review|
|State||Published - Sep 2006|