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  • International Journal of Law in Context, Volume 5, Issue 4
  • December 2009, pp. 417-431

With a little help from the courts: the promises and limits of weak form judicial review of social and economic rights

  • Adam Shinar (a1)
  • DOI:
  • Published online: 01 January 2010

This is a review of Mark Tushnet’s Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. The review outlines the main arguments in the book and then moves to elaborate on two preconditions which are necessary for Tushnet’s project to succeed: the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet’s broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet’s 1999 Taking the Constitution Away from the Courts, a work that initially seems to be diametrically opposed to his new book.

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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

Corey Brettschneider (2006) ‘Popular Constitutionalism and the Case for Judicial Review’, Political Theory 34: 516–21.

Morris R. Cohen (1933) ‘The Basis of Contract’, Harvard Law Review 46: 553–92.

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Michael C. Dorf and Charles F Sabel . (1998) ‘A Constitution of Democratic Experimentalism’, Columbia Law Review 98: 267–473.

Cecile Fabre (2000) Social Rights Under the Constitution: Government and the Decent Life. Oxford: Clarendon Press.

Barry Friedman (1993) ‘Dialogue and Judicial Review’, Michigan Law Review 91: 577–682.

Stephen Gardbaum (2001) ‘The New Commonwealth Model of Constitutionalism’, American Journal of Comparative Law 49: 707–760.

Robert Hale (1923) ‘Coercion and Distribution in a Supposedly Non-Coercive State’, Political Science Quarterly 38: 470–94.

Duncan Kennedy (1982) ‘The Stages of the Decline of the Public/Private Distinction’, University of Pennsylvania Law Review 130: 1349–57.

Daryl J. Levinson (1999) ‘Rights Essentialism and Remedial Equilibration’, Columbia Law Review 99: 857–940.

Michael Phillips (1985) ‘Reflections on the Transition from Ideal to Non-Ideal Theory’, Nous 19: 551–70.

Cass R. Sunstein (1995) ‘Incompletely Theorized Agreements’, Harvard Law Review 108: 1733–72.

William E. Thro (1989), ‘To Render Them Safe: The Analysis of State Constitutional Provisions in Public School Finance Litigation’, Virginia Law Review 75: 1639–80.

Jeremy Waldron (2006) ‘The Core of the Case Against Judicial Review’, Yale Law Journal 115: 1346–406.

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International Journal of Law in Context
  • ISSN: 1744-5523
  • EISSN: 1744-5531
  • URL: /core/journals/international-journal-of-law-in-context
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