Frederick Schauer, Neutrality and Judicial Review, Herbert Wechsler, Counter-majoritarian decisionmaking
Constitutional Law | Courts | Judges | Legal History
In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review.
Sherwin, Emily, "Designing Judicial Review: A Comment on Schauer" (2003). Cornell Law Faculty Publications. Paper 851.
Published in: Law and Philosophy, vol. 22, nos. 3-4 (2003).