Law and Disagreement

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I mourn his loss in the best way I can, by examining seriously a question that haunted Professor Frickey throughout his long and distinguished career: Should judges take account of the political consequences of their decisions when these consequences affect the ongoing legitimacy of law? In this Article, I explore whether the virtue of technical legal craft, which exemplifies the ideal of a formally autonomous law, can appropriately be joined to the virtue of judicial statesmanship, which exemplifies the ideal of politically responsive law.

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Faculty Scholarship Series. Authors Robert C. Citation Information Please cite to the original publication. Abstract Phil Frickey's death leaves an irreparable hole in the fabric of legal scholarship. Date of Authorship for this Version The bills of rights adopted in the Commonwealth countries of Canada, New Zealand, the United Kingdom and, at the subnational level, Australia in recent decades, have prompted scholars and institutional actors involved in the process of constitutional design and reform to rethink how to evaluate and compare the different approaches to human rights protection.

This book addresses three questions arising from these developments.

Collective Attitudes and Normative Disagreement | CAND Project | FP7 | CORDIS | European Commission

How do these new bills of rights differ from the traditional approaches to rights protection? What compromises must be struck in the course of adopting a bill of rights of this variety? In answering these questions, the book sets out a new framework for comparison that focuses on the types of inter-institutional disagreement facilitated by and found in the different approaches to rights protection.

Finally, it seeks to contribute to future debates about rights reform in Australia and elsewhere by setting out a number of lessons that emerge from the answers to these three questions. Three questions II. How is multi-stage rights review different?

Why multi-stage rights review? Which normative trade-offs must be made?

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Structure of the book. Introduction II. New Zealand IV. The United Kingdom V. Australia VI. Why institutions? Why disagreement? The case for a framework based on inter-institutional disagreement IV.

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Opportunities for, and costs of, indirect inter-institutional disagreement III. Structural constitutional provisions IV. Direct inter-institutional disagreement III. Opportunities for, and costs of, indirect inter-institutional disagreement IV. Why the United States?

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Legitimacy V. Not necessarily weak or intermediate III.

Further Disagreement on the EDVA Bench over Attorney Rates

Beyond disagreement? Bureaucratic independence III. Responsible government IV.

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Separation of powers V. The rule of law VI. The hierarchy of laws VII. Comity VIII.