Common law courts as regulators, an exposition: The Judiciary as a regulatory mechanism (original) (raw)
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Common Law Courts: The Judiciary as a Regulatory Mechanism
Journal of Comparative Law, 2017
This article suggests that courts regulate constitutional rights. As such, some may attribute to its author little in the way of revolutionary legal scholarship. “Do Courts regulate?” appears to the uninitiated to be a rhetorical question because when courts make decisions, and decisions are regulations, then courts must be regulators. The syllogistic answer to the above question is superficially yes: courts are regulators and “so what”?However, therein lies an overlooked consideration: although courts do regulate, what is meant by regulation in the judicial context and where does that power originate? What exactly do courts regulate? Is this a legitimate exercise, or a mislabeling of judicial activism?
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