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Justin Fox & Matthew Stephenson, The Distributional Effects of Minority-Protective Judicial Review (APSA 2011 Annual Meeting Paper, Sept. 2011).

Abstract: Constitutional theorists usually assume that minority-protective judicial review leads to outcomes more favorable to the protected minority and less favorable to the majority. Our analysis highlights three effects of judicial review that complicate, and sometimes undermine, this conventional wisdom. First, judicial review can induce a shift from a separating equilibrium—in which pro-majority leaders and pro-minority leaders pursue different policies—to a semiseparating or pooling equilibrium in which pro-minority leaders sometimes mimic pro-majority leaders by adopting the most anti-minority policy that the judiciary would uphold. Second, if judicial invalidation of anti-minority policies is probabilistic rather than certain, pro-majority leaders may propose even more extreme anti-minority policies in order to deter pro-minority leaders from mimicking. Third, if voters cannot directly observe policy outcomes, the nminority-protective judicial review may create incentives for a leader to signal (or con-ceal) her type by provoking judicial reversal. These effects can sometimes nullify, oreven reverse, the assumed relationship between minority-protective judicial review and pro-minority outcomes. When such reversal occurs, majoritarian democrats should favor minority-protective judicial review, while those concerned with protecting un-popular minorities should oppose it.