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  1. Refining the argument from democracy.Gabe Broughton - forthcoming - Journal of Ethics and Social Philosophy.
    This paper presents a new version of the democratic argument for the freedom of expression that has the resources to give a plausible reply to the perennial objection—ordinarily considered fatal—that such accounts fail to deliver protections for abstract art, instrumental music, and lots of other deserving nonpolitical speech. The argument begins with the observation that there are different things that a free speech theory might aim to accomplish. It will hope to justify a right to free speech, of course, with (...)
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  • In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place.Ming-Sung Kuo - 2016 - Ratio Juris 29 (1):83-104.
    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 (...)
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  • Discovering Sovereignty in Dialogue: Is Judicial Dialogue the Answer to Constitutional Conflict in the Pluralist Legal Landscape?Ming-Sung Kuo - 2013 - Canadian Journal of Law and Jurisprudence 26 (2):341-376.
    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 (...)
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  • Justification by constitution and tiered constitutional design?Rosalind Dixon - 2024 - Philosophy and Social Criticism 50 (7):1051-1063.
    Constitutions serve to legitimate the exercise of public power. Yet their scope is often subject to reasonable disagreement among citizens in a democracy. As Frank Michelman notes, this points to an understanding of democratic constitutions as a framework for contestation, rather than entrenched set of binding legal constraints. This understanding, however, arguably overlooks the difference between ordinary constitutional norms and those that protect the ‘democratic minimum core’. For the latter, there is far less scope for reasonable disagreement, and greater prudential (...)
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