Meeting the Enemy

Nagel, Robert F.; Bork, Reinhard

doi:10.2307/1599958

Cited by 2 publications

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“…Roe v. Wade ([1973] 410 U.S. 113), which legalized abortion, was the prime example (Peretti , 32–4). It was criticized as crossing the line of constitutional interpretation, bordering on rewriting the Constitution (see Nagel , 642 n. 23). As a consequence, the legitimacy of the Supreme Court and the supremacy of judicial decisions that rested on the New Deal settlement were questioned (see generally Burt ).…”

Section: Away From Judicial Supremacy? Pitting Constitutional Departmmentioning

confidence: 99%

In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place

Kuo

2015

Ratio Juris

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I aim to shed theoretical light on the meaning of judicial dialogue by comparing its practice in different jurisdictions. I first examine the practice of dialogic judicial review in Westminster democracies and constitutional departmentalism in American constitutional theory, showing the tendency toward judicial supremacy in both cases. Turning finally to continental Europe, I argue that the practice of constitutional dialogue there is reconciled with its postwar tradition of judicial supremacy through the deployment of proportionality analysis‐framed judicial admonition. I conclude that constitutional dialogue may take place amid the judicialization of constitutional politics, albeit in the shadow of judicial supremacy.

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Section: Away From Judicial Supremacy? Pitting Constitutional Departmmentioning

confidence: 99%

In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place

Kuo

2015

Ratio Juris

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Discovering Sovereignty in Dialogue: Is Judicial Dialogue the Answer to Constitutional Conflict in the Pluralist Legal Landscape?

Kuo¹

2013

Can. J. Law Jurisprud.

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Legal scholars have been inspired by the dialogic approach and rallied around it as the solution to constitutional conflict in domestic constitutional orders and the transnational legal landscape. This paper aims to show that the gravitation towards judicial dialogue in contemporary constitutional theory misses the point, given the ambiguities surrounding it. My investigation reveals that the dialogic approach does not succeed in guiding the inter-departmental or inter-regime interactions in a way that no single power would exert unilateral domination. The emergence of judicial supremacy in both national and transnational constitutional orders further suggests that underlying those ostensible examples of judicial dialogue is a transfigured conception of sovereignty. As it is the rise of judicial sovereignty that drives the move towards judicial dialogue in contemporary constitutional developments, I suggest that legal scholars shift focus of attention from the idea of dialogue to the enhanced judicial role in the new constitutional era.

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Meeting the Enemy

Cited by 2 publications

References 0 publications

In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place

In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place

Discovering Sovereignty in Dialogue: Is Judicial Dialogue the Answer to Constitutional Conflict in the Pluralist Legal Landscape?

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