Judicial Review and Its Impact on Public Policy: A Critical Analysis

Abstract

The institution of judicial review is an important mechanism of holding the government legally accountable, nevertheless questions remain about its proper role in a separation of powers system. This article analyzes the effect of judicial review on the policy-making process from an expertise perspective. It shows that the exercise of non-expert judicial review can induce more informed policies and that non-expert courts have incentives to exercise judicial review in a manner consistent with institutional concerns for expertise. In addition to its importance as a mechanism of legal accountability, our analysis underscores another virtue of judicial review: legal review of governmental policy by non-expert courts can improve the amount of information available for policy-making. The article contributes to a literature on the scope and legitimacy of judicial review and has broader implications for understanding the effect of institutional checks and balances on the quality of policy-making.