Abstract

GARCIA GARCIA, José Francisco. THE CONSTITUTIONAL COURT AND THE USE OF STANDARDS: A NECESSARY METHODOLOGY FOR STRENGHTENING ECONOMIC JUDICIAL REVIEW. Rev. chil. derecho [online]. 2011, vol.38, n.1, pp. 101-138. ISSN 0718-3437.  doi: 10.4067/S0718-34372011000100006.

The author suggests that the use of certain judicial standards by the Chilean Constitutional Court (TC) when exercising its judicial review authority is an enormous step towards strengthening the judicial review of economic regulation. The benefits of the use of this methodology are several: minimizes the space for judicial discretion, improves the quality of the decisions, and raises juridical certainty. However, the author suggests that it is possible to sophisticate the use of these standards. For achieving this, he confronts the jurisprudence that the TC has generated through the use of the proportionality principle and regulatory takings, with the jurisprudence generated by the Spanish Constitutional Court and the American Supreme Court, respectively. The author states that it is possible to raise the depth of both tests in Chile, if the TC examines the experience of its counterparts of Spain and the United States.

Keywords : Constitutional Court; judicial review; standards; proportionality principle; ulatory takings; economic regulation.