01 May 2006

Papers on Constitutional Dialogue (Bateup) and Publishing Dissents (Jacobson)

New comparative law and judicial decision making papers on SSRN:

Christine Bateup (NYU Law School), "The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue", NYU Public Law Working Paper no. 05-24 (Brooklyn Law Review 71/2006). Full-text here on SSRN.

Abstract: In recent years, the metaphor of "dialogue" has become increasingly ubiquitous within constitutional theory - both in the United States and globally - as a way of describing the nature of interactions between courts and non-judicial actors in the area of constitutional decision-making, particularly in relation to the interpretation of rights. This Article provides a critical account of theories of constitutional dialogue in order to determine which of these theories hold the greatest normative promise. Theories of dialogue face two hurdles to normative success. First, they must accomplish their goal of resolving the democratic objection to judicial review. Second, and legitimacy aside, they must be able to provide an attractive normative vision of the role of judicial review in democratic constitutionalism. This Article maintains that while theories of constitutional dialogue do make important contributions to our understanding of judicial review, most fail to provide satisfying normative visions of dialogue on these dual levels of analysis. This Article concludes that the greatest potential for achieving a normatively satisfying understanding of constitutional dialogue emerges when the contributions of equilibrium and partnership theories of dialogue are synthesized. Equilibrium theories focus on the judiciary's capacity to facilitate society-wide debate, while partnership theories draw attention to more distinct "judicial" and "legislative" functions that the different branches of government respectively perform. The dynamic fusion of these models not only makes the greatest contributions to our understanding of modern constitutionalism and the practice of judicial review, but also offers the greatest potential for designing improved dialogic constitutional systems in the future.

Arthur J. Jacobson (Cardozo Law School), "Publishing Dissent", Cardozo Legal Studies Research Paper No. 150 (Washington and Lee Law Review, 62/2005) . Full-text here on SSRN.

Abstract: Judges in common law jurisdictions sign opinions and publish dissents (as well as concurrences). In civil law jurisdictions they do not. Every civil law opinion is per curiam, by the court, while per curiam opinions in common law are the exception. The origins of the difference are historical and institutional. But the history and institutions of either system both reflect and inform profound jurisprudential differences. Written for a symposium at Washington & Lee Law School on unpublished and de-published opinions, the essay examines the practice of dissent in three legal cultures and the absence of it in civil law culture. It explores the origins of the American practice in Marshall's Supreme Court at the beginning of the nineteenth century.

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