Mark Tushnet, How Different are Waldron's and Fallon's Core Cases For and Against Judicial Review?, 30 Oxford J. Legal Stud. 49 (2010).
Abstract: Recently Jeremy Waldron offered the ‘core of the case against judicial review’. Richard Fallon responded with the ‘core of an uneasy case for judicial review.’ The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar once we take the conditions and qualifications into account. At its heart Professor Fallon's case rests on the proposition that ‘[l]egislative action is more likely to violate fundamental rights than legislative inaction’. I call this the libertarian presupposition in Professor Fallon's case. This article examines the libertarian presupposition, raising questions about its implication that private violations of fundamental rights are less serious or pervasive than violations of fundamental rights pursuant to legislation. It then discusses Professor Waldron's argument that an important part of the core case against judicial review is the existence of reasonable disagreement about the proper specification of fundamental rights. I argue that, while Professor Fallon provides a plausible psychological account of why the existence of such disagreement is unlikely to do much work in persuading people to accept the core case against judicial review, that psychological account offers a path toward understanding the different dispositions that lead Professors Waldron and Fallon to characterize their quite similar positions in the more dramatic ‘against-for’ manner.