Constitutional Courts and Deliberative Democracy by Conrado Hubner Mendes
![handle is hein.journals/lqr130 and id is 689 raw text is: Reviews and Notices 685
non-financial interest in the performance of Blake's contractual obligation and
that the court should give effect to it by awarding damages based on the profit
which Blake had made by his breach.
The House of Lords dismissed Blake's appeal, though Lord Nicholls preferred
to characterise the remedy as an account of profits rather than gain-based damages.
The English Court of Appeal has since held that the remedy of an account of profits
should be regarded as compensatory even where there was no identifiable financial
loss. The debate is likely to continue for some time. But however it is characterised
it is clear that the remedy is available only in exceptional circumstances. It has
been accepted in England and New Zealand that the claimant must have a legitimate
interest in the performance of the contract and in preventing the defendant from
profiting by its breach; though whether this is the only requirement is unclear.
Australia remains unpersuaded that the remedy should be available at all.
The book will be of great value to practitioners, bringing together as it does the
relevant cases in the leading common law jurisdictions and deploying both sides
of the argument when dealing with the many questions which remain to be resolved
in relation to an important if underused remedy.
Lord Millett
House of Lords
Constitutional Courts and Deliberative Democracy, by Conrado
Hiibner Mendes, (Oxford: Oxford University Press, 2013), viii +
249pp., hardback, E50.00, ISBN: 987-0-19-967045-1.
This book boldly attempts to traverse across a curious fault-line between analytic
jurisprudence, constitutional theory, and political science. In doing so the author
proposes a vision of constitutional courts as deliberative institutions operating
under a theory of adjudication compatible with the ideals of deliberation. This dual
enterprise generates an ambitious project pitched at a middle-level of abstraction
(at p.5). The author acknowledges that: To combine constitutional adjudication
with the idea of deliberation is a large project. The book takes up the challenge of
outlining such a project and considers that there is a value in presenting a
comprehensive picture in spite of losing depth (at p.177). The overarching aim
is to:
forge a pilot 'deliberometer', a prototype of the critical equipment that
constitutional democracies should develop in order to keep constitutional
adjudication under public scrutiny, but also, and first of all, to justify a
constitutional court that is especially proficient in deliberating (at p. 11).
In order to achieve this aim the book is structured in three broad phases. Chapters
1-3 map out the author's vision of deliberation within a democracy, the relationship
between political deliberation and legal decision-making, and the application of
deliberation to constitutional courts specifically. The next phases of analysis (Chs
4-6) consider the ability of constitutional courts to perform the task of deliberation,
the ethics of deliberation itself, and the necessary preconditions of institutional
(2014) 130 L.Q.R. October 0 2014 Thomson Reuters (Professional) UK Limited and Contributors
October 2014]](ViewImageLocal?handle=hein.journals/lqr130&div=43&collection=&method=preview&ext=.png&size=3)
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Constitutional Courts and Deliberative Democracy by Conrado Hubner Mendes
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