Chapter

Abstract and Concrete Review in the United States

Alec Stone Sweet and Martin Shapiro

in On Law, Politics, and Judicialization

Published in print August 2002 | ISBN: 9780199256488
Published online November 2003 | e-ISBN: 9780191600234 | DOI: http://dx.doi.org/10.1093/0199256489.003.0011
Abstract and Concrete Review in the United States

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The diffusion of constitutional judicial review over the past half-century has resulted in the emergence of two dominant ‘models’ of review, the American and the European. The European model, called ‘abstract review’, is typically defended as guaranteeing a more complete system of constitutional justice than does the American model, in which the orthodoxy of the ‘case and controversy requirement’ enables judicial – ‘concrete’– review while prohibiting abstract review. In the one paper included in Ch. 6, parts of which were first published by Stone Sweet in 1998, this orthodoxy is used as a reference point to ground a discussion about the essentially abstract nature of all judicial law-making, and to question the extent to which this limitation and the different forms of jurisdiction and modes of review matter; some of these questions are answered with reference to the United States, using Europe as a backdrop. The paper begins by discussing how and under what conditions abstract review of statutes is exercised in America, and then two particular American supreme court decisions, made in the summer of 1997, that invalidated legislation before them after having suspended the application of the statutes pending a ruling on their constitutionality are examined, to show how such abstract review operates in practice. A more general discussion of judicial law-making is then pursued in light of orthodox distinctions between different modes of review, and the last section of the paper concludes that the judicialization of politics proceeds through judicial law-making, which is always a blend of the abstract and concrete review.

Keywords: abstract review; American supreme court; case and controversy requirement; concrete review; constitutional judicial review; constitutional justice; constitutionality; Europe; judicial law-making; judicial review; law-making; United States

Chapter.  13288 words. 

Subjects: Comparative Politics

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