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Mark Tushnet, Non-judicial Review, in Protecting Human Rights: Instruments and Institutions (Tom Campbell, Jeffrey Goldsworthy & Adrienne Stone eds., 2003).

Abstract: This chapter examines three practices of non-judicial constitutional review, which involve constitutional review conducted by elected officials. It identifies the incentives and structures for judges and quasi-judicial bureaucrats who interpret constitutional norms. It tries to bring out the effects that different institutional structures and, in particular, different incentives have on the officials' performance, with an eye to comparing the effectiveness of non-judicial constitutional review with that of judicial constitutional review. It identifies what might be truly distinctive about judicial constitutional review, and suggests that the necessary comparative judgment about the relative ability of courts and non-judicial actors to perform constitutional review well is harder than our familiar understandings would have it.