Webb on The Lost History of Judicial Restraint @CathULaw @YaleLawSch @NotreDameLRev

Derek Webb, Yale Law School, is publishing The Lost History of Judicial Restraint in volume 100 of the Notre Dame Law Review. Here is the abstract.

This article attempts to answer a question of great contemporary significance – what role courts should play in our democracy. Specifically, it attempts to answer the question of what standard of review courts should use in deciding constitutional cases. It does so by recovering a lost history of how American jurists conceived that role from the American founding to the close of the nineteenth century. It draws upon a voluminous and diverse array of nineteenth century treatises, legal dictionaries, encyclopedias, case books, and manuals of federal practice, on the one hand, most of which have never before been examined, and federal and state supreme court cases in all fifty states on the other, to show, contra prominent legal historians and many leading contemporary originalists, that by the close of the nineteenth century, there was an overwhelming consensus in favor of the presumption of constitutionality, clear error rule, and reasonable doubt standard. James Bradley Thayer, who popularized those rules and gave them a unique theoretical justification in his classic 1893 article “The Origin and Scope of the American Doctrine of Constitutional Law,” did not just invent those rules. He was not, as Learned Hand put it, and many of his critics have subsequently agreed, the “prophet of a new approach.” Rather, he was just one – albeit distinguished and influential – member of a vast yet now forgotten chorus of treatise writers and jurists throughout the country, eventually in all fifty states, who defended a cautious, deferential, and restrained approach to invalidating the acts of democratic bodies. My thesis is that over the course of America’s first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the “Thayerian” “rules of administration” associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country. This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly "lost history of judicial restraint," I argue that during America’s first century, through the “discussions” in legal treatises and the “adjudications” in all the country’s apex supreme courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution’s standard of review, and the very meaning of "the judicial power" in Article III, appears to have been fixed or “liquidated" during America's first century.

Download the article from SSRN at the link.

Davis on Recent Judicial Criticism Cases

Kirsten K. Davis, Stetson University College of Law, is publishing Recent Judicial Criticism Cases: Audience, Style and Tone Matter in the AALS Professional Responsibility Section Newsletter, Fall 2016. Here is the abstract.

Do courts care about audience, style, and tone when lawyers criticize judges? Three recent state supreme court opinions suggest they do.

Download the essay from SSRN at the link.

Frishman on Court-Audience Relationships in the Twenty-First Century

Olga Frishman, University of Haifa Faculty of Law, and Tel-Aviv University, Buchmann Faculty Faculty of Law, is publishing Court-Audience Relationships in the 21st Century in the Mississippi Law Journal. Here is the abstract.

Courts, especially supreme and constitutional courts, need social legitimacy to successfully fulfill their roles. This article argues that courts are not only aware of this need but also can, and do in practice, actively manage their relationships with their audiences in an attempt to increase this legitimacy. The article proposes a new framework for understanding these court-audience relationships. Using insights from organizational theory, the article proposes a broad definition of courts’ audiences. It also argues that court-audience relationships should be analyzed using the concepts of “intended image” and “organizational image.” Based on the proposed framework, the article identifies a wide variety of methods that courts use to manage these relationships and to convince their different audiences to support them. It focuses in particular on one type of methods courts use – methods that are external to their official roles (e.g., movies and books, museums, gift shops, websites, and advertisements). Many of these methods are similar to techniques used by public relations specialists to promote other organizations. These methods, the article argues, which until now have not been accorded much scholarly investigation, are pivotal for courts’ ability to gain the support of their audiences. The article also discusses the practical concerns that arise from courts’ use of these methods, situations in which using them may decrease courts’ legitimacy. Finally, the article addresses normative concerns that result from courts’ turn to public relations methods for managing their relationships with their audiences and the way this turn may influence their social role.

Download the article from SSRN at the link.

Cohen on the Influence of the Choice of Official and Working Languages on the Workings of Courts

Mathilde Cohen, University of Connecticut School of Law, is publishing On the Linguistic Design of Multinational Courts — The French Capture in volume 14 of the International Journal of Constitutional Law (2016). Here is the abstract.

This Article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages on native speakers. It has profound implications on judgments as it imports a set of writing conventions that live on even as the institution becomes more cosmopolitan. Using the example of French at the Court of Justice of the European Union, the European Court of Human Rights, and the International Court of Justice, I argue that granting French the status of official language has led French lawyers and French judicial culture to disproportionately influence the courts’ inner workings. This is what I call the “French capture.”

Download the article from SSRN at the link.

Provost on Centaur Jurisprudence: Cultural Sensitivity of Courts and Other Legal Institutions

René Provost, McGill University Faculty of Law, is publishing Centaur Jurisprudence: Culture Before the Law in Culture in the Domains of Law (René Provost, ed., Cambridge University Press, forthcoming). Here is the abstract.

Many claims to justice ask law to be responsive to the lived experiences of those to and through whom it is applied. ‘Culture’ is one label attached to collective forms of this lived experience. But what does it mean for courts and other legal institutions to be culturally sensitive? What are the institutional implications and consequences of such an aspiration? To what extent is legal discourse capable of accommodating multiple cultural narratives without losing its claim to normative specificity? And how are we to understand meetings of law and culture in the context of formal legal processes, such as when a criminal defendant invokes the acceptability of domestic violence within his ethnic community, when oral traditions are presented as the basis for an aboriginal land claim, or when the custom of ‘bush marriage’ is evoked as relevant to the prosecution of the war crime of rape? The encounter of law and culture corresponds to a polycentric relation, but these specific questions draw our attention to law and legal institutions as one site of encounter warranting further investigation, to map out the place of culture in the domains of law.

Download the essay from SSRN at the link.

Christie on Courts and the Search for Ultimate Moral and Political Truth

George C. Christie, Duke University School of Law, has published Some Reasons Courts Have Become Active Participants in the Search for Ultimate Moral and Political Truth in Le droit compare et.../ Comparative Law and... (A. Albsrian and O. Moreteau eds., Presses Universitaires d'Aix-Marseille, 2015). Here is the abstract.

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.

Download the essay from SSRN at the link.

The Court of Chancery, Inheritance, and Policy in the Eighteenth Century

Adam S. Hofri-Winogradow, Hebrew University of Jerusalem, Faculty of Law, has published Parents, Children and Property in the Late Eighteenth Century Chancery in volume 32 of the Oxford Journal of Legal Studies (2012). Here is the abstract.

The late eighteenth century court of Chancery established a balance between the respective interests of parents and their children in the family’s property. The court required parents, especially fathers, to themselves provide for the maintenance and education of their minor children, even where money was made available for these purposes from a non-parental source. It prevented parents from intercepting gifts given to their children by third parties. It permitted parents, however, to make their children's entitlements to marriage portions conditional, for children marrying before majority, on the children's choice of spouse being consented to by a parent or parental surrogate. Chancery’s overall intergenerational policy was notably anti-dynastic: it made sure that younger generations, specifically those just reaching adulthood, marriage and parenthood, were endowed with sufficient property to give them at least a measure of independence from their elders, and some power over their own children.

Download the article from SSRN at the link.

The Dutch Court Bailiff

Cornelis Hendrik Van Rhee, Maastricht University School of Law, has published The History of the 'Huissier De Justice' in the Low Countries in Enforcement and Enforceability: Tradition and Reform (C. H. van Rhee and A. Uzelac eds.; Antwerp: Intersentia, 2010) (M-EPLI Working Paper 2011/15). Here is the abstract.

The present paper discusses the history of the huissier de justice (court bailiff or ‘deurwaarder’) in the Netherlands. The author demonstrates that the Dutch huissier has undergone a metamorphosis during the last few centuries. He has changed from a badly educated civil servant with a questionable reputation into a highly educated professional. The reasons underlying this metamorphosis are analysed. Additionally, some of the problems caused as a result of the introduction of market forces in the profession are discussed.

Download the essay from SSRN at the link.