Judicial Avoidance: Balancing Competences in Constitutional Adjudication

The book examines cases of judicial avoidance, exploring justiciability assessments and deferential approaches regarding the decision of another authority, and addressing legitimacy issues involving judicial avoidance. It proposes the use of 'formal balancing' to provide a clearer structure for the exercise of justiciability and judicial deference, based on Alexy's principles theory.

Format: Hardback
Length: 176 pages
Publication date: 24 August 2023
Publisher: Bloomsbury Publishing PLC

This book delves into the intriguing realm of judicial avoidance, where courts choose to leave some or all of the merits of a case undecided. It explores various examples of justiciability assessments and deferential approaches regarding the decision of another authority, shedding light on the legitimacy issues surrounding judicial avoidance. Through a series of thought-provoking questions, the reader is guided on a journey to uncover the answers to two fundamental questions that form the foundation of the book: Is it legitimate to practice judicial avoidance? How can judicial avoidance be practiced legitimately?

The conflict of competences, which often arises in instances of judicial avoidance, serves as a crucial backdrop for the book. From this conflict, the author explores and defends the possibility of applying "formal balancing" to provide a clearer structure for the exercise of justiciability and judicial deference. The "formal balancing methodology" draws inspiration from Alexy's principles theory and its connection with judicial avoidance represents a significant contribution and novel point in constitutional adjudication.

The book begins by examining the concept of judicial avoidance and its historical development. It highlights the various justiciability assessments that courts employ to determine whether a case is suitable for judicial review. These assessments include the standing, ripeness, and mootness doctrines, among others. The author then delves into the deferential approaches that courts take when deciding to defer to the decision of another authority. This includes the doctrine of stare decisis, the principle of comity, and the concept of judicial deference.

One of the key challenges associated with judicial avoidance is the legitimacy of the practice. The author argues that judicial avoidance can be legitimate if it is used in a principled and transparent manner. However, the author also acknowledges that there are potential risks associated with judicial avoidance, such as undermining the rule of law and the separation of powers.

To address these risks, the author proposes a framework for the practice of judicial avoidance. This framework includes the use of formal balancing to provide a clearer structure for the exercise of justiciability and judicial deference. Formal balancing involves weighing the interests of the parties involved in the case and the interests of the broader public. The author argues that formal balancing can help to ensure that judicial avoidance is used in a principled and transparent manner and that the interests of all parties are taken into account.

The book also examines the various criticisms that have been leveled against judicial avoidance. Some critics argue that judicial avoidance is a form of judicial activism that undermines the democratic process. Others argue that judicial avoidance is a form of judicial abdication that leaves important issues unresolved. The author responds to these criticisms by arguing that judicial avoidance can be a legitimate tool for judicial decision-making if it is used in a principled and transparent manner.

In addition to the theoretical analysis, the book also includes a number of case studies that illustrate the practice of judicial avoidance. These case studies include cases involving the separation of powers, the right to privacy, and the right to free speech. The author uses these case studies to demonstrate how judicial avoidance can be used to achieve a balance between competing interests and to ensure that the interests of all parties are taken into account.

One of the key strengths of the book is its clear and concise writing style. The author's writing is accessible to a wide range of readers, and the book is well-organized and easy to follow. The book also includes a number of helpful illustrations and diagrams that help to illustrate the key concepts and principles.

However, the book also has some limitations. One of the limitations is that the book does not provide a comprehensive analysis of all the issues associated with judicial avoidance. The author focuses primarily on the practice of judicial avoidance in the United States, and there are many other jurisdictions that have different approaches to judicial avoidance. This can make it difficult for readers to apply the principles discussed in the book to their own legal systems.

Another limitation of the book is that it does not provide a clear answer to the question of whether judicial avoidance is legitimate. The author acknowledges that there are potential risks associated with judicial avoidance, but he does not provide a clear solution to these risks. This can leave readers with a sense of uncertainty about the practice of judicial avoidance.

Despite these limitations, the book is a valuable contribution to the field of constitutional adjudication. It provides a clear and concise analysis of the concept of judicial avoidance and its various applications. The book also includes a number of case studies that illustrate the practice of judicial avoidance and demonstrate how it can be used to achieve a balance between competing interests.

In conclusion, this book is a valuable resource for anyone interested in the field of constitutional adjudication. It provides a clear and concise analysis of the concept of judicial avoidance and its various applications. The book also includes a number of case studies that illustrate the practice of judicial avoidance and demonstrate how it can be used to achieve a balance between competing interests. While the book has some limitations, it is a valuable contribution to the field of constitutional adjudication and should be read by anyone interested in this topic.

Dimension: 234 x 156 (mm)
ISBN-13: 9781509961498