William and Mary Law Review, Vol. 42, No. 5 (May 2001), pp. 1881-1891


In this Essay, I will pause to note some reasons why the "sham decision" critique of structural review is, for me, unpersuasive. I also will offer a few comments on the proper relationship between structural and substantive review. I note, in particular, that an endorsement of "activist" structural review need not lead to a "nonactivist" approach to substantive review, far less to its total abandonment. I also suggest that a vigorous embrace of structural rules may well lead to more, rather than less, overall judicial protection of fundamental rights.