From First-Best to Least-Worst: An Anti-Idealist Defence of Judicial Review

Anglophone constitutional law scholarship has long argued about the institution of judicial review and the legitimacy of different methods of statutory interpretation. A prominent argument against independent judicial review has emerged, suggesting that the merits of any interpretive methodology depend less upon its philosophical aspirations (eg, to rights, to separation of powers) and more upon how realistically it accommodates the imperfect capacities of the decision-makers who will ultimately carry it out. Investigating the institutional features that shape performance of the judicial function, this article catalogues the key vectors of uncertainty faced by judges, and proposes technical rules to guide the more cautious statutory interpreter. Exploring the synergies between decision theory, public choice theory and behavioural economics, this author adopts the anti-idealism of previous scholars but arrives at an obverse conclusion: that the very human problem of uncertainty necessitates, rather than obviates, retention of statutory interpretation squarely within the judicial function.