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Abstract Review in Article III Courts
West, E. Garrett
West, E. Garrett
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Abstract
The article examines the phenomenon of “abstract review” occurring within Article III federal courts, where courts effectively resolve the general legality of government policies beyond concrete disputes between specific parties, contrary to the traditional case- and- controversy requirement of the U.S. Constitution. It identifies factors contributing to this decentralized abstract review, including aggregation of plaintiffs (e.g., class actions, universal injunctions), pre-enforcement timing of challenges, broad remedial powers (such as universal injunctions and declaratory relief), and ideological incentives of litigants. The article contrasts this with the European model of centralized abstract review by specialized constitutional courts and argues that the U.S. system’s decentralized abstract review risks political conflict and erosion of judicial legitimacy. To address this, it proposes reforms to centralize abstract review—such as presumptive stays pending appeal, certification of cases to the Supreme Court, political triggers for review, expansion of the Supreme Court’s original jurisdiction, or creation of a specialized “Court of Abstract Review”—while preserving district courts’ role in concrete adjudication. The author suggests that such centralization may better preserve the efficacy and legitimacy of judicial review in the U.S. system.