GW Law Faculty Publications & Other Works
Document Type
Article
Publication Date
1999
Status
Accepted
Abstract
Deference presents one of the greatest threats to liberalism in the modern age, undermining judicial review for fundamental constitutional rights such as freedom of speech, freedom of religion, and due process. In contrast to existing critiques which dismiss deference as an ideological tool wielded by conservative judges, this article explores deference more systematically and rigorously, addressing it at its conceptual underpinnings. Deference has a strong conceptual backbone rooted in the long-accepted principle that the judiciary must avoid doing what was done in Lochner - the substitution of judicial judgment for that of the policymaker or legislature. The article argues that deference is a misguided attempt to carry out this principle in practice, an attempt based on an impoverished conception of how the judiciary and government institutions evaluate factual and empirical evidence.
SSRN Link
http://ssrn.com/abstract=693281
Recommended Citation
Daniel J. Solove, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L. Rev. 941 (1999).