Rosalind Dixon

Visiting Professor of Law

Fall 2017

Areeda 135

617-496-4867

Assistant: Anna Kim Reilly / 617-495-4863

Biography

Rosalind Dixon is a professor of law at the University of New South Wales, Faculty of Law.

She earned her B.A. and LL.B. from the University of New South Wales and was an associate to the chief justice of Australia, the Hon. Murray Gleeson AC, before attending Harvard Law School, where she obtained an LL.M and S.J.D.

Dixon’s work focuses on comparative constitutional law and constitutional design, theories of constitutional dialogue and amendment, socio-economic rights, and constitutional law and gender. She has been published in leading journals in the U.S., Canada, the U.K. and Australia, including the Cornell Law Review, the University of Pennsylvania Journal of Constitutional Law, The International Journal of Constitutional Law, Oxford Journal of Legal Studies, Osgoode Hall Law Journal, and the Sydney Law Review. She is co-editor, with Tom Ginsburg, of a leading handbook, Comparative Constitutional Law (Edward Elgar, 2011) and a related volume, Comparative Constitutional Law in Asia (Edward Elgar, 2014), co-editor (with Mark Tushnet and Susan Rose-Ackermann) of the Edward Elgar series on Constitutional and Administrative Law, and editor of the Constitutions of the World series for Hart publishing. She is on the Council of the International Society of Constitutional Law, and on the Editorial Board of its associated journal, the International Journal of Constitutional Law, as well as advisor to the Public Law Review.

Dixon is a member of the Gilbert + Tobin Centre of Public Law and deputy director of the Herbert Smith Freehills Initiative on Law and Economics. She previously served as an assistant professor at the University of Chicago Law School.

Areas of Interest

Rosalind Dixon & Samuel Issacharoff, Living to Fight Another Day: Judicial Deferral in Defense of Democracy, 2016 Wis. L. Rev. 683.
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Courts
,
Politics & Political Theory
,
Comparative Law
,
International Law
,
Developing & Emerging Nations
Type: Article
Abstract
Even many years after Marbury v. Madison, and even in the face of the spread of aggressive constitutional court review in democracies around the world, the ability of courts to assert their authority against the political branches continues to demand explanation. Especially in newly minted democracies, and most so in countries emerging from authoritarian rule, how courts can engage the misuse of state power remains a bit of a mystery. This Article examines the hitherto under-studied phenomenon of judicial deferral as providing some insight into how courts acquire the institutional capacity to engage in robust judicial review and, in particular, how the deferral of implementation avoids direct political confrontations for the judiciary. Unlike in the US, constitutional court decisions around the world frequently delay the practical effect of their decisions. The Article explores various modes of judicial deferral, including suspended declarations of invalidity, doctrines of prospective overruling and progressive implementation, and more implicit or forms of delay involving narrow rulings paired with broad dicta. It also considers different functions served by judicial deferral, including practical concerns about smooth transition from one legal regime to another, democratic legitimacy and dialogue, and more political concerns about ensuring the legal and political preconditions necessary for effective judicial review; and the connections between these various 'first' and 'second' order modes and functions of deferral. Once examined in this light, it turns out that various deferral-based strategies have been by courts in some of the most successful systems of constitutional review in recent years, including in Germany, India, Colombia and Indonesia. Finally, the Article turns to both the preconditions necessary for successful deferral and the corresponding risks when delay simply postpones an inevitable conflict.
David Landau & Rosalind Dixon, Constraining Constitutional Change, 50 Wake Forest L. Rev. 859 (2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
International Law
Type: Article
Abstract
This paper, presented at a symposium on Constitution-Making and Constitutional Design held at the Clough Center for the study of Constitutional Democracy at Boston College Law School on October 31, 2014, tackles a significant gap in constitutional theory -- the legal regulation of constitutional replacement. Recent work has recognized the risks posed by constitutional amendment to democracy and has developed a series of tools to mitigate those risks. In particular, would be authoritarian actors can engage in abusive forms of constitutional change that perpetuate their power and marginalize minority groups. In response, courts around the world have recognized that amendment can be limited in ways that go beyond the standard textual regulation of procedure to encompass both substantive ex ante controls (eternity clauses) and substantive ex post controls (the unconstitutional constitutional amendment doctrine). Constitutional replacement is usually seen as fundamentally different from constitutional amendment, but the two are often used jointly in projects of abusive constitutional change. Scholars and courts should thus consider ways in which constitutional replacement might be limited. The same list of possibilities utilized to constrain constitutional amendment -- substantive as well as procedural limits, and ex post as well as ex ante controls -- exists to constrain constitutional replacement. Moreover, each of these possibilities has actually been used, with varying degrees of success, in constitution-making processes in contexts like Venezuela, Bolivia, and South Africa. The key question is under which political conditions these tools might be effective. Based on the case studies, we suggest that those conditions are demanding but not impossible to meet in real-world constitution-making.
Rosalind Dixon & Vicki C. Jackson, Constitutions Inside Out: Outsider Interventions in Domestic Constitutional Contests, 48 Wake Forest L. Rev. 149 (2013).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Federalism
,
International Law
Type: Article
Abstract
Increased interactions among peoples and states combined with the growth of written constitutions are creating new opportunities for “extra-territorial” forms of constitutional interpretation, that is, the interpretation of domestic constitutions by “outsiders.” This article considers the potential benefits, and dangers, of outsider interpretation. It also identifies factors relevant to the appropriateness or legitimacy of such practices, drawing from analogous rules and doctrines developed in the context of U.S. federalism and international law.
Rosalind Dixon, Creating Dialogue About Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited, 5 Int’l J. Const. L. 391 (2007).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Courts
,
Comparative Law
,
International Law
Type: Article
Abstract
The decision of the South African Constitutional Court in South Africa v. Grootboom is one of the most important examples of the judicial enforcement of socioeconomic rights known to comparative constitutional lawyers. South African scholars generally agree that the approach taken by the South African Court in Grootboom was overly cautious but disagree as to how much stronger the Court's approach could have been without overtaxing judicial competence and legitimacy. This article seeks to provide theoretical guidance in answering that question—by developing a theory of “constitutional dialogue.” Like other theories of cooperative constitutionalism, this theory suggests that judicial review will need to be weakened, compared to traditional models, before it can be counted fully legitimate—in general, and in the context of the enforcement of the positive dimension of socioeconomic rights in particular. At the same time, it suggests that, in enforcing rights, courts have a much greater capacity, even a responsibility, to play an active role in countering “blind spots” and “burdens of inertia” in the political process than is envisaged in other theories. In the enforcement of socioeconomic rights, courts should not discount the value of a strong approach to the definition of states' obligations, or the use of strong remedies; rather, they should weigh the benefits of weakened rights versus remedies according to the circumstances of a particular country and case.

Current Courses

Course Catalog View

Areeda 135

617-496-4867

Assistant: Anna Kim Reilly / 617-495-4863