| Since Marbury v. Madison, the very essence of modern constitutionalism has been defined. But, Marbury did not emerge from nowhere. Only the circumstances present in the United States in the late 18th century could have generated this institution. The combination of federalism and common law created the perfect environment for judicial review to develop. However, since its conception, judicial review has spread across the world and dramatically evolved. This dissertation is about how the primal American institution of judicial review functions in different legal environments, such as unitary and/or civil law systems. In doing so, it analyzes the different combinations of institutional design in Germany, New Zealand and Chile, using not only their legal framework but also Law and Economics Analysis. The dissertation concludes that federalism and common law were necessary for the United States to establish judicial review, but once the American model was consciously or unconsciously exported, other countries used it and adapted it regardless of whether they were unitary or federal or followed the common law tradition or not. Thus, judicial review depends on the personal history of each country, both ancient and recent, as well as the court's role towards the government and the legal system. |
