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How Should We Think a bout Bush v. Gore

01 Jan 2002-
About: The article was published on 2002-01-01 and is currently open access. It has received 5 citations till now.

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TL;DR: In this article, the authors argue 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.
Abstract: 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.

13 citations

Book ChapterDOI
TL;DR: In this paper, the authors argue that legal fictions lack the generative potential of metaphors, because fictions depend on a truncated causal chain that excludes any consequence other than the doctrinal consequence the fiction was created to license, whereas metaphors spur on the imagination to make further connections.
Abstract: Although the law abounds in fabrications, the term “legal fiction” is best reserved for what Alf Ross describes as “posed propositions,” which hazard a premise only to secure a particular doctrinal result. On this view, legal fictions lack the generative potential of metaphors, because fictions depend on a truncated causal chain that excludes any consequence other than the doctrinal consequence the fiction was created to license, whereas metaphors spur on the imagination to make further connections. I explore this idea by drawing on research in the psychology of reading, which distinguishes between the care that readers take in restricting their use of “artificial” information, and their willingness to integrate information they take to be factual. Legal information (facts, doctrines) might similarly be arranged according to how narrowly or broadly the information may be applied. This approach allows us to locate particular examples along a spectrum, characterizing them as more or less fictional rather than simply placing them inside or outside the category of fiction. After developing the implications of this empirical research in psychology, I suggest that legal fictions exhibit the same kind of artifice as exclusionary rules, and that given the relative ease of implementing their artificial requirements, fictions may have facilitated the development of exclusionary rules by inspiring confidence about their workability. Finally, I turn to legal and literary examples that display similar kinds of artifice, focusing on deeming provisions and Wilde’s play The Importance of Being Earnest.

9 citations

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TL;DR: For example, the authors examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore, and argues that the Court shifted noticeably to the left, particularly in high-profile cases, after the decision.
Abstract: This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a partisan body divided along political lines. I also suggest that the same interest in restoring the legitimacy of the Court may have contributed to the Court's substantive emphasis on the values of the rule of law, which was particularly evident in the Court's enemy combatant decisions of 2004 (and for that matter, more recently, in the Court's decision on military tribunals in Hamdan v. Rumsfeld). This "liberal legacy" of Bush v. Gore illustrates one of the checking functions on judicial supremacy - namely the need to maintain the appearance (and reality) that law is distinct from politics. Whether the "Bush v. Gore effect" will continue with the Roberts Court remains to be seen.

8 citations

Journal ArticleDOI
TL;DR: In this article, the authors 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.
Abstract: 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.

7 citations

References
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Book
01 Jan 2002
TL;DR: The first in a series of compact discs on major decisions made by the U.S. Supreme Court as mentioned in this paper takes full advantage of digital technology to allow access to each case as it was presented as well as to the decisions and dissents that came from it.
Abstract: U.S. Supreme Court decisions change the lives of Americans for better or worse. Obviously, the stakes are high for litigants, but the outcomes also affect economic, social, and political life as the Court's actions direct law interpretation throughout the American legal system. Year after year the Supreme Court makes decisions that twist or turn American politics. In 2000, the Court decided the outcome of a presidential election. By doing so, some commentators claimed that the Court veered off its chartered constitutional course. Other commentators maintained that the Court brought needed stability to a political process that required finality. How it happens that a vote of nine justices substituted for the votes cast by citizens is not easily explained. In Bush v. Gore you can read and reflect on the entire proceedings, from the initial petitions urging the Supreme Court review through the briefs and reply briefs to the Court's opinions and dissents. More than that, you can listen to the proceedings as the justices ask questions and the attorneys answer. The recordings demonstrate as no transcript can the tension in the Court while it heard the arguments and the emotions that ran high as the justices dealt with each other. This is the first in a series of compact discs on major decisions made by the U.S. Supreme Court. Bush v. Gore takes full advantage of digital technology to allow access to each case as it was presented as well as to the decisions and dissents that came from it. Hardly an austere and impersonal body, the Supreme Court will come alive as individuals passionately involved in the logic, precedents, and consequences of law in the United States argue the great issues in our time.

5 citations