Judicial Review as a Constraint on Tyranny of the Majority

Robert Fleck () and F. Andrew Hanssen ()

The Journal of Law, Economics, and Organization, 2013, vol. 29, issue 2, 303-331

Abstract: We develop a theoretical model to analyze the role of judicial review in preventing tyrannies of the majority. The model identifies conditions under which the court's optimal role may be to allow tyranny of the majority--and the tyrannized minority will be better off as a result. This implication hinges on the timing of two events: lifting a veil of ignorance with respect to who gains and who loses from the policy subject to judicial review, and the revelation of new information (modeled as a random shock) that affects the level of the payoffs generated by that policy. We explain how the model applies to three controversial rulings (Serrano v. Priest, Kelo v. City of New London, In re Marriage Cases). In so doing, we demonstrate how the model can help distinguish scenarios in which judicial constraints on majority rule are socially beneficial from those in which they are harmful. (JEL D7, K4) The Author 2012. Published by Oxford University Press on behalf of Yale University. All rights reserved. For Permissions, please email: journals.permissions@oup.com, Oxford University Press.

Date: 2013
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