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.
{"title":"In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in its Place","authors":"Ming‐Sung Kuo","doi":"10.1111/raju.12093","DOIUrl":"https://doi.org/10.1111/raju.12093","url":null,"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.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"2014 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123832168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Sergio J. Campos, Suzette M. Malveaux, D. Rosenberg, Michael D. Sant'Ambrogio, Jay Tidmarsh, Adam S. Zimmerman
This brief addresses the first question presented in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, which concerns the use of statistical techniques in class actions. The brief informs the Supreme Court of the appropriate uses of statistics and other inferential proof in class actions. It also shows that statistical techniques can be used by courts while allowing a defendant to assert individual defenses. Courts can do so by utilizing bifurcation or similar trial practices.
{"title":"Brief of Amicus Curiae Complex Litigation Law Professors in Support of Respondents: Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146","authors":"Sergio J. Campos, Suzette M. Malveaux, D. Rosenberg, Michael D. Sant'Ambrogio, Jay Tidmarsh, Adam S. Zimmerman","doi":"10.2139/SSRN.2669672","DOIUrl":"https://doi.org/10.2139/SSRN.2669672","url":null,"abstract":"This brief addresses the first question presented in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, which concerns the use of statistical techniques in class actions. The brief informs the Supreme Court of the appropriate uses of statistics and other inferential proof in class actions. It also shows that statistical techniques can be used by courts while allowing a defendant to assert individual defenses. Courts can do so by utilizing bifurcation or similar trial practices.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124036526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2007-05-19DOI: 10.5771/9783845204291-13
Chrysostomos Mantzavinos
After providing a brief overview of the economic theory of judicial decisions this paper presents an argument for why not only the economic theory of judicial decisions, but also the rational choice approach in general, most often fails in explaining decision-making. Work done within the paradigm of New Institutionalism is presented as a possible alternative. Within this research program judicial activity is conceptualized as the activity of "interpreting the rules of the game", i.e. the institutions that frame the economic and political interaction in society. Such a conceptualization of judicial interpretation and judicial decision-making would have to depart from rational choice modes of reasoning, and should instead focus on how human beings actually reason, learn and choose from research in cognitive science.
{"title":"Interpreting the Rules of the Game","authors":"Chrysostomos Mantzavinos","doi":"10.5771/9783845204291-13","DOIUrl":"https://doi.org/10.5771/9783845204291-13","url":null,"abstract":"After providing a brief overview of the economic theory of judicial decisions this paper presents an argument for why not only the economic theory of judicial decisions, but also the rational choice approach in general, most often fails in explaining decision-making. Work done within the paradigm of New Institutionalism is presented as a possible alternative. Within this research program judicial activity is conceptualized as the activity of \"interpreting the rules of the game\", i.e. the institutions that frame the economic and political interaction in society. Such a conceptualization of judicial interpretation and judicial decision-making would have to depart from rational choice modes of reasoning, and should instead focus on how human beings actually reason, learn and choose from research in cognitive science.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121367984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748908296-99
H. Cohen
Thanks to the United States, the WTO Appellate Body can no longer hear appeals. Having blocked all appointments to the body, the United States has left its bench empty, with no members to fulfill its role. Among the United States’ justifications: The Appellate Body’s adoption of an apparent doctrine of precedent. This chapter takes a deeper look at the fight over precedent at the WTO, both as a case study in the emergence and operation of precedent within international law and as a microcosm of the cultural conflicts playing out within the WTO. The chapter develops an account of precedent as a product of three overlapping, inter-dependent, and mutually constructed logics: (1) the jurisprudential, (2) the rational, and (3) the sociological. It then uses these three logics to retell the story of precedent at the WTO – the emerging patterns of argumentative practice, the Appellate Body’s adoption of a doctrinal test, and the escalating U.S. opposition to the “cogent reasons” standard that body applied. Seeing the fight over precedent as a function of all three logics reveals the real cultural fights for control of the WTO community of practice. Seeing that community of practice coalesce around and split over unwritten practices of precedent reveals how international law develops as much as a function of culture, training, and practice as of rules and power.
{"title":"Culture Clash: The Sociology of WTO Precedent","authors":"H. Cohen","doi":"10.5771/9783748908296-99","DOIUrl":"https://doi.org/10.5771/9783748908296-99","url":null,"abstract":"Thanks to the United States, the WTO Appellate Body can no longer hear appeals. Having blocked all appointments to the body, the United States has left its bench empty, with no members to fulfill its role. Among the United States’ justifications: The Appellate Body’s adoption of an apparent doctrine of precedent. This chapter takes a deeper look at the fight over precedent at the WTO, both as a case study in the emergence and operation of precedent within international law and as a microcosm of the cultural conflicts playing out within the WTO. The chapter develops an account of precedent as a product of three overlapping, inter-dependent, and mutually constructed logics: (1) the jurisprudential, (2) the rational, and (3) the sociological. It then uses these three logics to retell the story of precedent at the WTO – the emerging patterns of argumentative practice, the Appellate Body’s adoption of a doctrinal test, and the escalating U.S. opposition to the “cogent reasons” standard that body applied. Seeing the fight over precedent as a function of all three logics reveals the real cultural fights for control of the WTO community of practice. Seeing that community of practice coalesce around and split over unwritten practices of precedent reveals how international law develops as much as a function of culture, training, and practice as of rules and power.","PeriodicalId":229524,"journal":{"name":"Law & Society: Public Law - Courts eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123731244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：