This policy brief provides an overview of technological risk regulation and assesses the role of courts in reviewing the same. In doing so, it shows that the question of the capacity of courts is problematized by at least two different aspects: constitutional and institutional, both of which are malleable and context-specific.
What role could judicial review play in situations of dishonest corporatism? How can courts determine when government implementers have bargained successfully to achieve the most, but less than full, enforcement for the least cost, particularly in situations where the government seeks, overtly or covertly, to bargain away as much as it can because it really doesn’t want to enforce?
In this policy brief, Judge Robert Sharpe of the Court of Appeal for Ontario argues that it would be wrong for judges exercising the power of judicial review to claim legitimacy as representatives. He argues that the claim is not only wrong, it is dangerous as it distorts the nature of the judicial function.
The US Supreme Court’s decision in Bush v Gore, which effectively ended the 2000 presidential election, provoked a profound national debate about the role of the judiciary in resolving political disputes and raised still lingering questions about the Supreme Court’s credibility as a nonpartisan institution.