Abstract: In 1984 and other writings, George Orwell explored the language of power and the power of language. As illustrations of the abuses he identified, this essay analyzes a pair of famous constitutional opinions, Justice Brown's Plessy v. Ferguson and Justice Douglas’ Griswold v. Connecticut. PubDate: Thu, 16 Jun 2022 00:00:00 GMT
Abstract: This Article examines the general relationship between the Senate Judiciary Committee and the federal courts using a historical institutionalist analysis. The Senate Judiciary Committee, often known as the “Committee of Lawyers”, has adopted a very lawyer-like decision making process and style. This Article considers whether the large number of lawyers who sit on it serves to protect the federal courts from institutional attacks; it explores how the Committee can influence the number of judges sitting on any given federal court and help determine the boundaries of the U.S. Circuit Courts of Appeals. The Article explores why the Senate Judiciary Committee often serves as a graveyard for court-curbing proposals approved by the House Judiciary Committee or even the full House. The main focus of the Article is on how the Committee chair has considerable influence on the court-Congress relationship, although the chair must function within the overall decision-making culture of the Senate as a whole. It notes various chairs have approached the Blue Slip process for judicial nominees very differently, depending in part on whether the White House and the Senate are controlled by the same political party. Finally, the Article discusses how the Committee attracts ideologically extreme members of both parties and how this ideological polarization affects the Committee's interactions with the federal judiciary. The Article also provides some comparisons with the House Judiciary Committee on these issues. PubDate: Wed, 18 May 2022 00:00:00 GMT
Abstract: South Africa is widely regarded as a model of a constitutional democracy on the African continent. This is partly because of the progressive Constitution adopted in 1996 and the fact that the country has consistently managed to conduct democratic, free and fair elections since the end of apartheid in the early 1990s. The sustainability of South Africa's constitutional democracy rests on the ability of the judiciary to ensure compliance with the constitution. The competence and credibility of the judiciary hinge on the appointment of judges who are able to reflect the diversity of the country, act without fear or favor, and develop a jurisprudence which creates and deepens constitutionalism. Judicial independence is a key component of the credibility of the judiciary. The inconsistent application of norms and standards when selecting and appointing judges tends to undermine the credibility of the appointments process.The process of judicial selection and appointment in South Africa begins with the Judicial Service Commission (JSC) advertising the existing judicial vacancies. After that, the JSC shortlists candidates who are then interviewed. Following these interviews, the JSC shortlists candidates for possible appointment by the President. A review of the transcripts of interviews conducted by the JSC from April 2014 to October 2019 shows patterns of discrepancies in the types of questions which candidates vying for the same judicial position are required to answer. This Article explains the process followed by the JSC, and then identifies and analyzes the discrepancies in the process employed by the JSC. The Article then demonstrates the negative impact which the discrepancies have had on both the quality of the judicial selection process and the quality of candidates shortlisted for appointment. Furthermore, this Article makes recommendations on how South Africa can draw from international norms and standards as well as good practices from comparative jurisdictions, to enhance consistency and fairness in its judicial selection and appointments processes. PubDate: Wed, 18 May 2022 00:00:00 GMT
Abstract: The confirmation hearings of U.S. Supreme Court justices held by the Senate Judiciary Committee have been the subject of substantial criticism. Yet, critics typically fail to outline exactly what they want the hearings to accomplish. This article critically examines the purpose and history of confirmation hearings in an effort to shine light on the value that the hearings can add to the Supreme Court selection process. It also discusses three changes that can be made to help the confirmation hearings achieve their promise as an important venue for vetting future members of the Supreme Court and reaching a shared understanding of constitutional meanings among the American public. PubDate: Wed, 18 May 2022 00:00:00 GMT
Abstract: This article examines how one personality trait of U.S. Supreme Court nominees influences the confirmation process in the Senate Judiciary Committee. Specifically, the article asks, are conscientious nominees more forthcoming when they answer Committee Members’ questions' And, second, are Committee Members, in turn, more or less likely to vote favorably for conscientious nominees' The paper builds a theory of how the conscientiousness trait shapes how nominees to the High Court interact with the Senate Judiciary Committee. To test our theory and answer the questions, we use confirmation hearing data starting from 1955 and extending through 2018, which includes both the Gorsuch and Kavanaugh hearings. We find that personality shapes interactions in the Senate judiciary committee in important and meaningful ways. Importantly, we find evidence that suggests a nominee's conscientiousness helps to explain why some Senators would be willing to vote for him or her even when that nominee might be less qualified. PubDate: Wed, 18 May 2022 00:00:00 GMT
Abstract: The 2020 election raised fundamental questions about the future of American democracy. Although the Democratic presidential nominee Joseph Biden won a decisive victory in the Electoral College and the popular vote, President Donald Trump refused to accept defeat. For weeks after the election, Trump falsely claimed that Democrats had stolen the election. In an unprecedented step for a defeated incumbent president, he pressured Republican election officials and legislators to help him overturn the election results. Trump’s attacks on American democracy culminated on January 6, 2021, when a pro-Trump mob invaded the United States Capitol Building to disrupt the Electoral Vote Count.In the aftermath of the 2020 election controversy, national polls found that over 90% of Americans believe that American democracy is in danger. Since the election, experts on both ends of the political spectrum have warned of the possibility of a full-fledged democratic breakdown in the United States.This article places America’s political crisis in historical context by examining the only democratic breakdown in the nation’s history: the Civil War. Following Abraham Lincoln’s victory in the 1860 election, eleven southern states seceded from the Union. The conflict that ensued cost over half a million lives and left one-half of the United States in physical and economic ruin.This article makes three main points. First, a dispute over election rules did not cause the Civil War. Instead, the war resulted when the dominant political class in the South—slaveholders—rejected the principle of majority rule. American history thus demonstrates that even in the case of an election of unquestionable integrity, a disgruntled extremist minority might still break the country apart.Second, the slaveholders feared that if they put the issue of secession to a popular referendum, the non-slaveholding majorities in southern states might vote against it. To achieve their goal of destroying the Union, therefore, slaveholders dictated special rules for the secession votes in their states. After Lincoln’s election, southern state legislatures delegated the issue of secession to state conventions. Across the South, slaveholders manipulated the convention election rules to ensure the result they wanted: break-up of the federal union.Third, and finally, northerners viewed the war as a battle for the survival of democracy itself. They recognized that no democratically held election would ever be binding if losers could simply break free and form their own government. Northerners thus rallied around the Lincoln administration and supported the Union war effort through four bloody years of battle. The Union’s victory vindicated democracy as a form of government. The Confederacy’s crushing defeat in 1865 demonstrated that democracies could successfully navigate even the most extreme forms of civil disorder. Most important of all, the Civil War era gave rise to a dramatic expansion in the inclusiveness of American democracy. Ironically, therefore, the United States government emerged stronger in 1865 than it had been when the war began in 1861. PubDate: Mon, 04 Apr 2022 00:00:00 GMT
Abstract: ABSTRACTThis article examines the use of lethal injection from 2010-2020. That period marks the “decomposition” of the standard three-drug protocol and the proliferating use of new drugs or drug combinations in American executions. That development is associated with an increase in the number and type of mishaps encountered during lethal injections. This article describes and analyzes those mishaps and the ways death penalty jurisdictions responded, and adapted, to them. It suggests that the recent history of lethal injection echoes the longer history of the death penalty. When states encountered problems with their previous methods of execution, they first attempted to address these problems by tinkering with their existing methods. When tinkering failed, they adopted allegedly more humane execution methods. When they ran into difficulty with the new methods, state actors scrambled to hide the death penalty from public view. New drugs and drug combinations may have allowed the machinery of death to keep running. New procedures may have given the lethal injection process a veneer of legitimacy. But none of these recent changes has resolved its fate or repaired its vexing problems. PubDate: Thu, 27 Jan 2022 00:00:00 GMT
Abstract: A major legacy of the Obama presidency was the mark he left on the federal courts with respect to increasing judicial diversity. In particular, President Obama's appointments of women to the federal judiciary exceeded all previous presidents in terms of both absolute numbers and as a share of all judges; he also appointed a record-setting number of women of color to the lower federal courts. In this Article, I take an intersectional approach to exploring variation in the professional backgrounds, qualifications, and Senate confirmation experiences of Obama's female appeals court appointees, comparing them with George W. Bush and Bill Clinton appointees. These data reveal that women of color appointed by Obama differ from both white women and minority men in terms of ABA ratings, the types of professional experiences they bring with them, and whether they were confirmed by a roll call vote. PubDate: Wed, 17 Nov 2021 00:00:00 GMT
Abstract: This article analyzes the specific issue of whether an individual could be tried for treason by a State government if that individual is not a resident or citizen of that State. This issue is analyzed through the prism of the landmark case of John Brown v. Commonwealth of Virginia, a criminal prosecution which occurred in October 1859. Brown, a resident of New York, was convicted of treason against the Commonwealth of Virginia, insurrection, and murder after he attempted to overthrow the institution of slavery by force on October 16–18, 1859. After a prosecution and trial which occurred within a matter of weeks following Brown's crimes, Brown was executed on December 2, 1859. To this day, John Brown's trial and execution remains one of the leading examples of a State government exercising its power to enforce treason law on the State level and to execute an individual for that offense. Of course, the John Brown case had a major impact on American history, including being a significant factor in the presidential election of 1860 and an often-cited spark to the powder keg of tensions between the Northern and Southern States, which would erupt into a raging conflagration between the North and South in the American Civil War a short eighteen months later. However, in the legal realm, the Brown case is one of the leading and best-known examples of a state government exercising its authority to enforce its laws prohibiting treason against the State. The purpose of this article is not to discuss treason laws generally or even all the issues applicable to John Brown's trial in 1859. Rather, this article focuses only on the very specific issue of the culpability of a non-resident/non-citizen for treason against a State government. With the increased array of hostile actions against State governments in recent years, and criminal actors crossing state lines to commit these hostile acts, this article discusses an issue of importance to contemporary society, namely whether an individual can be prosecuted and convicted for treason by a State of which the defendant is not a citizen or resident. PubDate: Wed, 17 Nov 2021 00:00:00 GMT
Abstract: Anthony Trollope (1815–1882) resides in the pantheon of nineteenth century English literature. While working full time in his postal position until 1867, he still managed to publish 47 novels, travel books, biographies, short stories, collections of essays, and articles on various topics. Trollope has been described as the novelist of the ordinary for his realistic description of English society.Law and legal issues flow through Trollope's fiction. The legal system held a special importance to him as the skeleton upholding the social and political framework of the country. Over one hundred lawyers appear in his work and eleven of his novels feature trials or hearings. The law intrigued and exasperated him. Along with the lawyers and legal issues he depicts are ideas of the law and legal system that are part of elaborate philosophical and jurisprudential traditions, which he recognized.This article examines Trollope's changing attitude toward lawyers. It describes the structure of the Bar in terms of class, status and reputation. Trollope believed the legal system should ensure justice, and those who labored in the law should be the vehicle of that pursuit. Justice for Trollope was the meting out of rewards and punishments as the consequence of a right or wrong decision. However, the law, as he depicted it, was often an impediment to this process, and lawyers were unreliable guides.Initially Trollope portrayed lawyers critically as caricatures as evinced by such names as Alwinde, O’Blather, Slow & Bideawhile, Haphazard, and Chaffanbrass. He was outraged that barristers (lawyers who appear in court) put loyalty to their clients ahead of the search for truth and justice. The adversary system was flawed as the enactment of laws in accord with the laws of nature assumes an inbuilt moral compass in humans that contains self-evident truths of right and wrong. Trollope felt there was no reason why a right-minded person could not intuitively recognize the truth, so criminal law's adversary system was unnecessary. The legal system sought not the discovery of the truth but was more interested in aiding the guilty defendant to escape punishment.As he matured as a writer and achieved success, Trollope's understanding and appreciation of the legal profession changed. He met and become friends with leaders of the Bar, and they influenced his descriptions of lawyers, who became realistic and often admirable human beings. Beyond the legal problems of its characters, Trollope's later novels incorporated the social, political, and jurisprudential issues of the times and engaged the Victorian legal culture in a broader sense of history, traditions, continuity and change.Natural law principles were challenged during the Victorian era by positivist notions that law is what the statute books say. These divisions lurk in the background of his later portraits of lawyers and the legal system. In his later period Trollope created a realistic characterization of the legal profession at the time that offered universal insights into human nature. PubDate: Wed, 10 Nov 2021 00:00:00 GMT
Abstract: This article draws on the state action doctrine and the case Marsh v. Alabama to evaluate a recent proposal to create an unprecedented public-private partnership in the state of Nevada. In Marsh, the Supreme Court of the United States held that a private citizen was protected under the U.S. Constitution's First and Fourteenth Amendments in distributing religious literature on the sidewalk of a “company-owned” town. We make the case that both the state policy under consideration and a number of political and economic trend lines indicate that the issue central to Marsh remains pressing at the start of our new millennium: what are the circumstances under which concentrated private power amounts to something akin to government authority, thereby implicating the protections of the national Constitution' Our goal in this piece is not to offer an exhaustive or thorough review of the particulars of the “Innovation Zone” bill under consideration, but to consider, in advance, constitutional problems that might arise from granting corporations broad powers traditionally wielded by governments. PubDate: Mon, 23 Aug 2021 00:00:00 GMT
Abstract: In 2026, New York City plans to close the VERNON C. BAIN, America’s only currently-operating prison ship. Although prison ships have a long history, both in the United States and elsewhere, surprisingly little has been written about them. Accordingly, this article first provides a detailed overview of prison ships. It then surveys the U.S. case law generated by them. PubDate: Mon, 09 Aug 2021 00:00:00 GMT
Abstract: Conflicts between those supporting and opposing congressional redelegation to executive agencies go back to the earliest days of the Republic, but given the enormous development of the administrative state, now raise issues of great practical importance. The arguments back and forth implicate abstract notions of democracy, efficiency, and judicial power, though typically partisan and other self interested considerations actually drive the debate. The future is likely to see some retrenchment, but not wholesale rejection of redelegation, as the massive and unpredictable consequences would deter courts from acting. PubDate: Tue, 18 May 2021 00:00:00 GMT
Abstract: The U.S. Supreme Court has recently been tasked with determining—both metaphorically and literally—whether in matters of marriage equality and religious freedom, those within society can have their cake and eat it too. This came to the fore in Masterpiece Cakeshop (2018). In most of scholarship which has followed, the respective parties’ rights in this case are parsed in terms of rights to religious expression and free speech (on the one hand), and a statutory right to non-discrimination (on the other). By approaching this matter through a primarily philosophical (rather than legal) lens, I aim to present a new perspective. Where cases involve same-sex marriage, it is argued that both sides are predicated upon religious or conscientious convictions. This is established through a philosophical argument, which examines the nature of the marital promise to love and seeks to demonstrate how this promise entails a characteristically religious sort of belief. PubDate: Sat, 17 Apr 2021 00:00:00 GMT
Abstract: The prevalent approach to the concept of the rule of law among legal theorists puts attributes first, assigning certain features of laws and sometimes legal systems as rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel, structuralist view of the rule of law. While honoring theoretical constraints that guard against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills, this approach shows that the concept implicates inequalities sustained by a society's social, economic, and political structures. This is accomplished by demonstrating that the rule-of-law project holds a structural position in the collective normative discourse as a vehicle by which people morally evaluate the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system's treatment of those individuals and groups.Law's procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders – and particularly the most disadvantaged within the population – perturb the virtues typically associated with the rule-of-law ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes.Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project. PubDate: Tue, 06 Apr 2021 00:00:00 GMT
Abstract: Keep Law Alive, the latest book by law and literature scholar James Boyd White, is an important apologia for the traditional understanding and practice of law in the United States. Law, White argues, has served as a language in a sense closely parallel to what we mean by referring to English or Spanish as a language: law provides those fluent in it with the tools to describe the social world and to imagine its transformation, but without scripting what the speaker must say. White also envisions law as an art that evokes imagination, emotion and personal judgment, as well as the mind, and that is fundamentally oriented toward the realization of justice. Intellectual, social and political changes, however, threaten to displace law as a language and art with a view of law as an essentially empty rhetoric that cloaks the use of abstract and impersonal reasoning often borrowed from other disciplines. The survival of law depends on the willingness of those who speak it to continue its practice as an art that serves a humane vision of political life. PubDate: Fri, 29 Jan 2021 00:00:00 GMT
Abstract: Notwithstanding his youthful dalliance with abolitionism, Holmes’ votes and opinions in Supreme Court cases involving race reveal a stubborn indifference to discrimination on a range of issues. Whether this reflects a cold personal aloofness, a preoccupation with life as struggle, a commitment to judicial restraint or merely an insensitivity pervading the enlightened opinion of the day, his performance will continue to stain his reputation. PubDate: Thu, 21 Jan 2021 00:00:00 GMT
Abstract: Since the Engineers Case decision in 1920, the role of the United States Constitution in interpreting the Australian Constitution has been diminished, leading to inefficiencies in High Court of Australia (HCA) dealing with constitutional issues. To explain this thesis, the article looks at the 7,657 cases decided by the HCA, from the first case in 1903, to the 31st of August 2020, the centenary of the Engineers Case. The analysis identifies outliers that have much higher complexity (in terms of word-length) than the other judgments. This complexity has one common denominator: comparative analysis with the United States Constitution. The article explains why this common denominator has resulted in such complexity, and concludes with possible research extensions on the roles of the Australian judiciary in embracing SCOTUS jurisprudence when interpreting the Australian Constitution. PubDate: Wed, 06 Jan 2021 00:00:00 GMT
Abstract: With Brexit completed and the UK's conditions of separation from the EU pending, there is some anticipation for a U.S.-UK FTA. But then there is the Pandemic and the unpredictable variables of Donald Trump and Boris Johnson, and the influence of the residual binding obligations of the UK-EU separation agreement and possible UK-EU FTA, which may cause some pause. Identifying the negotiating agenda of the labor issues may flow easily from each country's recent FTAs – USMCA and UK's obligations under CETA. With that likely agenda, a comparison can be made between each country's current labor laws on these issues to identify possible emerging areas needing further attention. Lingering in the background is the potential U.S.-EU FTA (TTIP) which will set standards and obligations for the UK which can be relevant to the UK FTAs with the U.S. and the EU. This is followed with analysis as to likely outcomes on these labor issues and the U.S.-UK FTA. Although the future cannot be predicted, it can be prepared for. PubDate: Tue, 05 Jan 2021 00:00:00 GMT
Abstract: The Federalist Papers are a set of eighty-five essays written by Alexander Hamilton, James Madison, and John Jay during the founding era of the United States, with the purpose of persuading the states to adopt the Constitution as the replacement for the Articles of Confederation. The Papers were some of the most impressive political writings of the time, and are still cited frequently today by the United States Supreme Court. The arguments set forth in the Papers attempted to defend the Constitution's aristocratic characteristics against its opponents, the Anti-Federalists, while also attempting to normalize an anti-democratic, representative form of government in the minds of the American people. The clever advocacy and skillful rhetoric employed by Hamilton, Madison, and Jay led to the eventual ratification of the Constitution, and consequently the creation of the most powerful and prosperous nation on the planet. This paper examines the differences between the traditional forms of government, the political philosophies of the Papers’ authors, the anti-democratic, aristocratic nature of the government proposed by the Constitution, and the arguments for and against its adoption, as articulated in the Papers and various other writings. PubDate: Sat, 31 Oct 2020 00:00:00 GMT
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