Lecture based on the article Judicial Review of Executive Policymaking in Advanced Democracies: Beyond Rights Review by Eduardo Jordão (FGV) and Susan Rose-Ackerman (YALE LAW SCHOOL), recently published at Administrative Law Review, vol. 66, n. 1 (2014).

PROF. PAUL CRAIG (OXFORD) will be discussant.

Judicial Review of Executive Policymaking in Advanced Democracies: Beyond Rights Review

Abstract. The legitimacy of modern states depends on the ability of democratic institutions to reflect citizens’ preferences and values and on the state’s ability to use technical expertise competently. Legitimacy has a three-fold character based on rights, democratic responsiveness, and competence. We argue that courts can help reconcile these competing aspects of executive legitimacy. Our premise may seem implausible because courts are the archetypal “counter-majoritarian” institution, and judges typically have little knowledge of technical subjects. However, based on a critical review of the law in the United States, Canada, Italy and France, we argue that courts can balance respect for democratic choice and deference to experts with limited oversight that enhances legitimacy on all three dimensions. We discuss the hazards of substantive review by technically illiterate courts and argue that procedural review can be a partial substitute. If courts review rulemaking, they need to acknowledge its role in upholding policymaking values, and if they review adjudications, they need to understand that court-like procedures are inadequate to capture the broad policy issues often at stake. Based on our review of the four cases, we conclude that to further both democracy and competence judicial review (i) should subject the substance of the agencies’ decisions to a weak reasonableness test and (ii) should concentrate on the administrative process, notably through the enforcement of a widespread duty to give reasons and of generous rights of participation. 

PROF. EDUARDO JORDÃO is a Professor of Law at Fundação Getúlio Vargas Law School in Rio de Janeiro (FGV Direito Rio), Brazil. PhD summa cum laude in Public Law from the Universities of Paris (Panthéon-Sorbonne) and Rome (Sapienza), Master of Laws (LL.M) from the London School of Economics and Political Science (LSE) and the University of São Paulo (USP). He was a Visiting Research at Yale Law School and a Visiting Fellow at the Max Planck Institutes of Heidelberg and Hamburg.