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.
Dan T. Coenen,
Structural Review, Pseudo-Second-Look Decision Making, and the Risk of Diluting Constitutional Liberty
Available at: https://digitalcommons.law.uga.edu/fac_artchop/285