
doi: 10.2139/ssrn.6611279
Despite extensive scholarship on judicial self-empowerment-including the Marbury moments thesis and maxi-minimalism-comparative constitutionalism lacks a model with high explanatory power that explains how weak constitutional courts in common law countries successfully transition to strong-form judicial review. This paper addresses this gap by developing Seminal Case Theory, a falsifiable analytical model positing that successful institutional transitions occur through a specific strategic manoeuvre: the 'Twin Gambit'. This manoeuvre requires courts to simultaneously assert a new, expansive interpretive power in their binding ratio decidendi while strategically insulating themselves from immediate political backlash by ruling in favour of the non-judicial branch. Using a Most Different Systems Design, the model is tested across three foundational cases-the United States' Marbury v. Madison, India's Kesavananda Bharati, and Israel's United Mizrahi Bank v. Migdal Cooperative Village. To ensure the model's falsifiability and identify scope conditions, the paper examines cases in which courts fail to secure power when the claim is not properly contained in the binding ratio or where the rule of law is compromised. It conducts a black swan analysis of D'Emden v Pedder, demonstrating how the gambit fails in the absence of institutional autonomy or a sustained rule of law commitment. By identifying the doctrinal anchor (the ratio) as the necessary mechanism for power consolidation, the article moves beyond a descriptive theory to a predictive framework in ruleof-law jurisdictions.
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