Process Review as Panacea: A Critique of Process Review Advocacy in the European Union
This article responds to the trend of process review advocacy in EU academic literature. It offers a critical assessment of process review, broadly defined as the idea that the Court ought to focus on the process by which decisions are made when conducting its review of a given measure. The article explores John Hart Ely’s theory of process review, developed in the context of the US Supreme Court, and how this has influenced the EU’s own process review advocates. It seeks to add value to this literature by engaging with the extensive critique of Ely’s theory. In doing so, it argues that process review may fail to live up to the expectations placed upon it, both in terms of the outcomes of review and its legitimacy.