The David Asper Centre for Constitutional Rights’ Constitutional Roundtables are an annual series of lunchtime discussion forums that provide an opportunity to consider developments in Canadian constitutional theory and practice. The Constitutional Roundtable series promotes scholarship and aims to make a meaningful contribution to intellectual discourse about Canadian and comparative constitutional law.
Professor Michael Beenstock (Hebrew University of Jerusalem) will present the following paper (forthcoming):
The ‘Battle between the Branches’: Positive and Normative Theories of Judicial Review
“My paper is related to the debate in legal philosophy between the legal positivists (and Dworkin), who are in favor of judicial review and the political constitutionalists, who are against it. I use formal methods from game theory and statistical theory to study the tension between the legislature and the judiciary, when the latter is empowered with judicial review. In the positive theory the legislature and the judiciary are adversarial; the judiciary may be more or less activist, and the legislature may engage in override, politicize appointments to the judiciary, or simply ignore rulings of the supreme court. The positive theory predicts that the outcome of the battle between the branches is Pareto inefficient in terms of infringement of the constitution and the public benefit from legislation.
Under the normative theory the legislature and the judiciary cooperate. As expected, the outcome is Pareto superior. The normative theory provides a structural basis for enhancing the efficiency of judicial review. It also sets a benchmark for comparing efficiency under political constitutionalism with the best possible outcome under judicial review.
Whereas the positive theory characterizes the world as it is. The normative theory refers to an ideal world. In a follow-up paper I plan to study efficiency under political constitutionalism and to compare it with efficiency according to the positive and normative theories of judicial review.
By using formal methods and clearly stated axioms, such as rationality, the robustness of these comparisons is transparent axiomatically and methodologically. Legal philosophers who disagree should be able to pin-point the source of their disagreement.”
Michael Beenstock is a Professor of Economics at the Hebrew University where he teaches graduate econometrics. Although his main concern is with economics, he has strayed into other disciplines such as epidemiology, psychology, climate science and criminology. As a result of the constitutional crisis in Israel, Prof Beenstock has also recently strayed into judicial review. Apart from his theoretical paper on positive and normative theories of judicial review, he is currently engaged in testing its empirical predictions using data from the Comparative Constitutions Project (University of Chicago).
Some of Prof Beenstock’s recent books are: Heredity, Family and Inequality: A Critique of Social Science, MIT Press, 2012, Econometric Analysis of Nonstationary Spatial Panel Data, with D. Felsenstein, Springer, 2019, Recurrence Risk of Autism Spectrum Disorder. Nova Science Publishers, Hauppauge, NY, 2021, Zero Interest Policy and the New Abnormal: a Critique, Oxford University Press, 2022. Some of Prof Beenstock’s papers related to jurisprudence are: The Productivity of Judges in the Courts of Israel, Israel Law Review, 35: 249-65, 2001, with Y. Haitovsky, Does the Appointment of Judges Increase the Output of the Judiciary?, International Review of Law and Economics, 24: 351-69, 2004, and, with J. Guetzkow, Plea Bargaining and the Miscarriage of Justice”. Journal of Quantitative Criminology, 2021.
Open to the public. No registration required. Light lunch provided.
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