A GJ Frontiers article.

Abstract

Judicial review, by which I mean review of legislation or administrative action for conformity with the constitution, is a central feature of many constitutional systems. It is somewhat surprising, then, that the literature on the economic analysis of constitutions has not yet devoted much attention to the design of constitutional courts, either from a positive perspective or from the point of view of normative institutional design. There are numerous questions of institutional design that constitution-makers must address when establishing a system of constitutional review, including whether to centralize review in a designated court, how to appoint judges, and how much access to give the public. What insights come from political economy? To proceed we must start with foundational questions. On whose behalf is constitutional review exercised and what is the role of third party monitors? These issues are discussed in Part I. Part II lays out the major design questions, including whether constitutional review power should be restricted to a designated body or given to any court of law, how judges should be appointed, and the question of standing. Part III considers empirical evidence on how constitutional courts are actually designed. This part argues that a key determinant of the design of constitutional courts is the political configuration in place at the time of the court's design. To explore this issue, I construct a sample of 18 countries, and regress measures for various aspects of court design on the strength of the largest party in the legislature. Through this simple model, I find that the design of constitutional courts reflects the interests of dominant political parties, and that more independent and powerful courts are associated with situations of divided or deadlocked politics. Part IV concludes.

Originally published in Global Jurist Frontiers.

Recommended Citation

Ginsburg, Thomas (2001) "Economic Analysis and the Design of Constitutional Courts," Global Jurist Frontiers: Vol. 1 : Iss. 2, Article 2.
Available at: http://www.bepress.com/gj/frontiers/vol1/iss2/art2