Pfander on Dicey's Nightmare: An Essay on the Rule of Law

James E. Pfander, Northwestern University School of Law, is publishing Dicey's Nightmare: An Essay on the Rule of Law in the California Law Review. Here is the abstract.

The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Essay builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Essay compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today. This Essay focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Essay examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair.

Download the article from SSRN at the link.

Wheatle @seshaunawheatle on Bounded Cosmopolitanism and a Constitutional Common Law

Se-shauna Wheatle, Durham Law School, is publishing Bounded Cosmopolitanism and a Constitutional Common Law, forthcoming in the Journal of Comparative Law. Here is the abstract.

There remains deep uncertainty regarding the growing transnational nature and scope of law. This uncertainty is in part answered by, but also fuelled by, current cosmopolitan theories. Such theories -- including Jeremy Waldron’s conception of a ‘ius gentium’ as a body of principles shared by the legal world, and Neil Walker’s articulation of ‘global law’ -- are decidedly cosmopolitan in nature by articulating legal orders and systems that see the individual as part of a shared human community. While these theories make valuable contributions to legal studies, they have overreached by asserting an extensive level of transnational consensus, consensus which is not fully represented in current transnational dialogue. What is needed is a framework that balances the cosmopolitan impulse with awareness of the current experience of transnational law, and the historical and cultural limitations on transnational dialogue. With this contextual background in mind, I propose the idea of ‘bounded cosmopolitanism’, which harnesses the power of cosmopolitanism but restrains the cosmopolitan impulse through awareness of the interplay between convergence and divergence that is central to the experience of transnational law. As an instance of bounded cosmopolitanism, the article advances a cosmopolitan common law constitution, which embodies the convergent influence of common law methods and principles with the divergent elements of specific constitutional design in individual common law jurisdictions.

The full text is not available from SSRN.

Delfini on Instances of the Civil Law in the North American Common Law Tradition

Newly published in the Italian Law Journal:

F. Delfini, Instances of Civil Law in North American Common Law Tradition: Cause and Consideration in Quebec and Louisiana Civil Codes, 2 Italian Law Journal 87 (2016).

More here.

Hulsebosch on English Liberties Outside England

Daniel J. Hulsebosch, New York University School of Law, is publishing English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire in the Oxford History of English Law and Literature 1500-1700 (Lorna Hutson, ed., Oxford University Press, forthcoming). Here is the abstract.

We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant. Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems. Liberties and privileges claims fell into five functional categories. First, the claim that colonists abroad and their descendants enjoyed English liberties functioned as an open door, allowing overseas colonists to return home to England and be treated as equal English subjects. Second, the king or his colonial deputies might make positive grants of English liberties to subjects in a royal territory outside England as an inducement for English subjects to migrate there. Here, the grant of English liberties and privileges functioned as a window, a transparent promise of familiar and cherished rights to encourage settlement. Third, already by the time of the English Civil War and more frequently by century’s end, the colonists themselves sometimes claimed English liberties, privileges, and immunities abroad as a floor below which governors could not push. Fourth, in the reverse of the second, the claim that overseas subjects had to be governed according to English standards, including English liberties and privileges, could function as a ceiling on colonial innovation. It was a ceiling measured by metropolitan officials, especially the Privy Council as it reviewed colonial statutes and judicial cases to ensure that they were, in the familiar language of colonial grants, ‘agreeable’ with and ‘not repugnant’ to the laws of England. Finally, colonial assumptions of English liberties functioned as a mirror through which colonists could see themselves as English, even when their colonial rights, such as their property rights, were viewed at home as peculiar. If for example a subject of the English king in an overseas dominion owned slaves in that dominion and wished to sojourn home, could he bring his slaves? Could he carry the rights of a Virginian or Jamaican with him to England and enjoy those rights there? Collapsing English and local liberties, slaveholders argued affirmatively. As Englishmen they should, they thought, be able to move around the empire with their property, including human property.

Download the essay from SSRN at the link.

Blackstone's Enduring Legacy

Wilfrid Prest has edited a collection of essays on Blacktone's Commentaries with Hart Publishing. Titled Re-Interpreting Blackstone's Commentaries, it appeared in October 2014. Here is a description from the publisher's website.

This collection explores the remarkable impact and continuing influence of William Blackstone's Commentaries on the Laws of England, from the work's original publication in the 1760s down to the present. Contributions by cultural and literary scholars, and intellectual and legal historians trace the manner in which this truly seminal text has established its authority well beyond the author's native shores or his own limited lifespan. In the first section, 'Words and Visions', Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries' aesthetic and literary qualities as factors contributing to the work's unique status in Anglo-American legal culture. The second group of essays traces the nature and dimensions of Blackstone's impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone's influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of 'Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone'. This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).

The editor is Professor Emeritus of Law and History at the University of Adelaide.

 

Comparing Western Legal Traditions: A New Book

Martin Vranken, University of Melbourne Law School, has published Western Legal Traditions: A Comparison of Civil Law and Common Law (Federation Press, 2015). Here is a description of the contents from the publisher's website.

The rule of law constitutes the hallmark of contemporary Western society. However, public perceptions and attitudes to the law can vary in space and time. This book explores legal solutions to selected problem scenarios in their broader historical, economic, political and societal context. The focus is on the legal traditions of civil law and common law. The book is premised on the assumption – indeed, the conviction – that use of the comparative method both facilitates and promotes a deeper understanding of the society in which we live and the rules by which it is shaped. Major ‘threads’ that run through the book are the relationship between law and morality, the role of the state in regulating human interaction, as well as the relationship between the state and the individual. As a practical matter, the text is divided into 3 Parts. A first Part provides various building blocks for a discussion of ‘the law in action’ in the second and main Part of the book. A final Part addresses the issue of regional globalisation and its impact on the traditional divide between civil law and common law. An Appendix contains the full text of the Charter of Fundamental Rights of the European Union.