Margit Cohn (Hebrew University of Jerusalem – Faculty of Law) has posted Hierarchies, Constitutional Dialogues, and Political Networks: A Comparative and Conceptual Study (Richard Rawlings, Peter Leyland & Alison Young (eds.), Sovereignty and the Law: Domestic, European and International Perspectives (Oxford University Press, 2013), 236) on SSRN. Here is the abstract:
This Chapter links two discourses: sovereignty and constitutional dialogue. Dialogue analysis is typically part of a normative attempt to alleviate concerns about the supremacy of the judiciary once judicial review of legislation is introduced. In this Chapter, it is argued that “dialogue” in fact connotes two distinct structural arrangements: formal and implied. True formal dialogue mechanisms create potential crises for those who wish to maintain the hierarchical vision of sovereignty as they transform the balance of powers. Other constitutional mechanisms such as limitations clauses have been defined as dialogic instruments, but are in fact mere permutations of the classical form of judicial decision-making. The Chapter discusses the version of implied/political dialogue that has emerged in the US and offers a vision of multi-player networks that operate both in the legal and political spheres. The Chapter demonstrates how both formal and implied dialogue assist in rejecting hierarchical visions of domestic sovereignty.