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Mark Tushnet, Nonjudicial Review (Geo. Pub. Law Res. Paper No. 298007, 2002).

Abstract: Constitutional interpretation occurs in many nonjudicial settings. This Essay examines three practices of nonjudicial constitutional interpretation - that done by the United States Senate in debating points of order raising constitutional questions, that done by the Office of Legal Counsel in the U.S. Department of Justice when commenting on proposed legislation, and that done by Ministers of the British government under the Human Rights Act of 1998 in determining that proposed legislation is compatible with the European Convention on Human Rights. With respect to each practice, the Essay examines the incentives under which the decision-makers operate, comparing their incentives to those of judges engaged in constitutional interpretation. It notes that nonjudicial interpreters have political and professional reasons for offering the constitutional interpretations they do and that some of their incentives push them in the direction of offering interpretations that are not substantially less disinterested than the interpretations offered by judges. The Essay also describes the particular ways in which each institution of nonjudicial review differs from judicial review; the Senate, for example, need not take up all the constitutional objections that might be presented in a case challenging enacted legislation, and the Office of Legal Counsel has an institutional interest in defending the president's prerogatives through aggressive readings of judicial precedents and historical practices. The Essay shows that the differences - with respect to disinterestedness - between nonjudicial and judicial interpreters are smaller than many prior studies have suggested, in part because the concept of judicial disinterestedness has not been carefully defined.