University of San Diego Legal Working Paper Series
University of San Diego Public Law and Legal Theory Research Paper Series
Generic Constitutional Law
Abstract
This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the paper discusses why the idea of generic constitutional law should matter to legal academics, and whether judges can or should resist its development.
Subject Area
Comparative Law, Constitutional Law, Courts, Jurisprudence, Public Law and Legal Theory
Recommended Citation
David S. Law,
"Generic Constitutional Law"
(September 2004).
University of San Diego Legal Working Paper Series.
University of San Diego Public Law and Legal Theory Research Paper Series.
Working Paper 23.
http://law.bepress.com/sandiegolwps/pllt/art23
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