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28 - Legislatures in Dialogue with One Another: Dissent, Decisions, and the Global Polity

Published online by Cambridge University Press:  06 August 2009

Heather K. Gerken
Affiliation:
Professor of Law, Harvard Law School
Richard W. Bauman
Affiliation:
University of Alberta
Tsvi Kahana
Affiliation:
Queen's University, Ontario
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Summary

Much academic work on legislative dialogue focuses on legislatures in conversation with other actors within the state. This chapter switches the focus to a different type of conversation: legislatures in dialogue with one another. Specifically, this chapter draws on a robust empirical literature suggesting that nation-states function like members of a “global polity,” much as individuals are embedded in their own societies. They thus follow one another's lead just as individuals do. These empirical findings raise an intriguing policy question: Given the tendency of nation-states (and their legislatures) to engage in mimicry, how do we improve the quality of interlegislative dialogue?

This chapter offers an unusual response to that question. It argues that better decision making within legislatures may depend on variation among them. Drawing on a divergent set of literatures – global polity research, the democratic experimentalism literature, and Cass Sunstein's work on dissent – this chapter discusses a question relevant to any inquiry about improving legislative decision making: how to encourage productive dissent (at least under a Millian account) in the legislative process. The chapter is not intended to offer a fully developed set of answers to that question or even an in-depth analysis of the costs and benefits of the alternatives proposed here. Offered in the spirit of a thought experiment, the chapter merely proposes a more precise set of analytic tools for considering it.

Type
Chapter
Information
The Least Examined Branch
The Role of Legislatures in the Constitutional State
, pp. 547 - 566
Publisher: Cambridge University Press
Print publication year: 2006

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