Constitutional Rights and Constitutional Design, by Paul Yowell

Paul Yowell, an American legal scholar who teaches at Oriel College, Oxford, has some proposals for altering the judicial process in the US and other nations with a similar model of constitutional courts. In Constitutional Rights and Constitutional Design, he proposes that American-style court systems would benefit from moving toward a Kelsenian model.

Named for Austrian jurist Hans Kelsen, the Kelsenian model dominates many European courts. In contrast to the American system of appellate courts, the Kelsenian model allows for more political and legislative authority, aside from its legal authority.

Yowell argues for a broader scope of the American court’s bases for its rulings.  Whereas every Supreme Court justice is a graduate of one of two elite US law schools, he argues that the court would benefit from a legislative council which can inform the court on non-legal technical matters. The fact that courts have relied increasingly on extralegal source materials, including popular publications and the free, collaboratively written Wikipedia, as well as more academic and social science resources, points to the need for expert consultants from a variety of fields.

By their nature, legislatures tend to consist of men women from a variety of professions. Many, of course, are lawyers, but many are businessmen, doctors, civic leaders, investment professionals, even bartenders.  Their varied backgrounds combined make for a body that has greater expertise than the courts in shaping legislation. Many court decisions hinge on technical legal interpretation, but more and more rulings rely on the aforementioned non-legal sources.

The American appellate court structure has, in a sense, elevated the courts above the legislature.  The American process is designed to mete out justice and to protect the rights of minorities, but as Yowell points out, court rulings have at times done the opposite, requiring corrective action by the legislature.  Ultimately, "judicial review of legislation can work injustice to individuals no less than abuse of power by legislatures."

Yowell's analysis is challenging and thorough, engaging case law and specific examples of rulings, as well as legal scholars and ethicists to bolster his case.  American jurists take note: Yowell's ideas are worth considering.