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Selected Works

Deliberation

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Full-Text Articles in Law

Judges Or Hostages? The Bureaucratization Of The Court Of Justice Of The European Union And The European Court Of Human Rights, Mathilde Cohen Dec 2016

Judges Or Hostages? The Bureaucratization Of The Court Of Justice Of The European Union And The European Court Of Human Rights, Mathilde Cohen

Mathilde Cohen

Court staff occupy a critical position in the administration of justice around the world. They typically represent a diverse corps of subordinated professionals whom judges delegate responsibilities for multiple aspects of their adjudicative and administrative functions. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) are no strangers to this practice. The size and influence of their non-judicial personnel is striking, raising the question of whether judges have become hostages to the bureaucracy in their own courts. Drawing on the emerging field of the sociology of European institutions, this chapter argues that …

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Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen Dec 2013

Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen

Mathilde Cohen

This Article discusses supreme and constitutional courts’ internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court’s decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European Justices may not deliberate in the full sense that deliberative democrats have theorized. The Article distinguishes two types of high court deliberations, which I call …

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Rational Reasonableness: Toward A Positive Theory Of Public Reason, Gillian K. Hadfield, Stephen Macedo Dec 2011

Rational Reasonableness: Toward A Positive Theory Of Public Reason, Gillian K. Hadfield, Stephen Macedo

Gillian K Hadfield

Why is it important for people to agree on and articulate shared reasons for just laws, rather than whatever reasons they personally find compelling? What, if any, practical role does public reason play in liberal democratic politics? We argue that the practical role of public reason can be better appreciated by examining the structural similarities in normative and positive political theory. Specifically, we consider the analytical parallels between Rawls’ account of political liberalism and a rational choice model of legal order recently proposed by Hadfield & Weingast (2011). The positive model proposes that a shared system of reasoning—a common logic—plays …

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The Rule Of Law As The Rule Of Reasons, Mathilde Cohen Dec 2009

The Rule Of Law As The Rule Of Reasons, Mathilde Cohen

Mathilde Cohen

This paper argues that in contemporary legal thinking, the concept of the rule of law has become inseparable from the idea that legal decision-makers should give reasons to justify their decisions. Yet, how far can the concept of the rule the law be understood as establishing a rule of reasons? I examine whether reason giving is necessarily connected with the rule of law in the sense that a legal system would not conform to the rule of law if its decisions were not supported by publicly articulated reasons. I proceed by arguing that the focus on reason giving vindicates both …

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The Obama Phenomenon: Deliberative Conversationalism & The Pursuit Of Community Through Presidential Politics, Robert Justin Lipkin Dec 2008

The Obama Phenomenon: Deliberative Conversationalism & The Pursuit Of Community Through Presidential Politics, Robert Justin Lipkin

Robert Justin Lipkin

Does political theory have an interesting relationship to presidential politics? This Article argues that the public statements of Senator Barack Obama exemplify an anti-foundationalist theory of political dispute resolution. This theory, called “deliberative conversationalism,” attempts to answer the question of how agreement is possible in a republican democracy. The theory’s central features include deliberation, conversation, transformative change, community, and, consensus. These are also elements in Senator Obama’s vision for a new American politics. Understanding the relationship between the theory of deliberative conversationalism and Senator Obama’s public statements provides a window into the mind of a politician who may become the …

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Does The Constitutional Process Matter?, Zachary Elkins Dec 2008

Does The Constitutional Process Matter?, Zachary Elkins

Zachary Elkins

Constitution-making is a ubiquitous but poorly understood phenomenon. There is much speculation but relatively little evidence about the impact of different design processes on constitutional outcomes. Much of the debate reduces to the question of who is involved in the process and when. We consider two central issues in this regard. The first is the problem of institutional self-dealing, or whether governmental organs that have something to gain from the constitutional outcome should be involved in the process. The second has to do with the merits of public involvement in the process. Both of these concerns have clear normative implications …

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The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan Dec 2004

The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan

Erin Ryan

All lawyers negotiate, and all negotiators deliberate. This article addresses the pervasive but unrefined use of emotional insight by deliberating and negotiating lawyers, and suggests that legal education could improve lawyering by adopting a fuller model of legal thinking that takes account of this “epistemological emotionality.” In forming the beliefs that underlie choices made during deliberation and negotiation, people rely on insights informed by past and present emotional experience. Such epistemological emotional input fuels a pre-linguistic, quasi-inductive reasoning process that enables us to draw on stored information about emotional phenomena to hypothesize about motives, behavior, and potential consequences. As deliberation …

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