Workshop on West’s “Abstract Review in Article III Courts”

E. Garrett West, Abstract Review in Article III Courts.

Solum’s Download of the Week for November 1, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5620170.

This is a synthetic academic workshop generated using enTalkenator (Workshop Hot Bench template, using Claude Sonnet 4.5).

Abstract: “Federal courts are supposed to engage in judicial review only in concrete cases and controversies.  Many European constitutional courts, by contrast, engage in abstract review of legislation.  But a combination of features of adjudication in the United States produces something functionally like abstract review of government policies, even while the formal justification for judicial review remains the dispute-resolution function.  The result is decentralized abstract review of the legality of federal and state legislation, federal administrative rules, and executive orders.  And the risk for judicial review is that decentralized abstract review increases the number, scope, and intensity of conflicts between the judiciary and political actors.  I propose centralizing reforms that could rationalize abstract review without departing from the formal requirements of Article III.  The reforms include presumptive stays pending appeal, certification from courts of appeals to the Supreme Court, a mechanism to transfer cases from federal district courts to the Supreme Court’s original jurisdiction, and a specialized court composed of trial and appellate judges drawn from throughout the country to resolve certain challenges to major government policies.”