Cass Sunstein: preference

Transcript context

…The New Zealander Jeremy Waldron on judicial review — do you buy any of it? I don’t like it at all, but it pains me to say that because I really admire Waldron. I think he’s one of the greats. The reason I don’t like what he says about judicial review is there’s a contingent argument against judicial review, which depends on our judgments about the institutional capacities of judges, of the executive, of the legislature. It could be, if the judges are stinky and the legislatures are amazing and the executive is reliable, what’s the point of judicial review? But it seems to me the argument against judicial review can’t be, a priori, that there aren’t large-sounding claims about self-government that can make that claim work. If the judges are exercising judicial review to make self-government better by protecting, let’s say, freedom of speech in the franchise, then hooray for judicial review on democratic grounds. Waldron has done such great work on so many things, including homelessness in a very much underappreciated essay. This material is, sorry, Professor Waldron, not my favorite of your great work. How do you think it’s gone in New Zealand, which now has more judicial review but historically has hardly had any? It seems fine. They have big problems, mostly related to their size and distance, but it’s a free country, right? It’s highly liberal.…

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