“Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S.,” 7 Tulsa Comparative & International Law Journal 327-373 (2000).
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Abstract: Both U.S. and European courts have applied general principles of law in the construction of their constitutional jurisprudence. The European courts have engaged in this practice explicitly – the American courts implicitly. This essay examines the ways in which European and American courts have applied a problematic general principle of law, the general principle of “margin of appreciation.” The margin of appreciation is essentially a rule of deference, permitting states a certain discretion “to decide whether a given course of action is compatible with” Constitutional requirements unless such discretion departs from a generally accepted consensus of the community. The margin of appreciation principle is a European innovation. I argue here that what appears to judges like Justice Scalia to be a variant of the common law sin, in matters of constitutional interpretation, of permitting unelected judges to decide what the law is may instead evidence the development of an American variant of the civil law general principle of margins of appreciation. Ironically, the end result may not be different results in particular cases, but a more principled basis for reaching these results. This essay first defines the pragmatic American approach to the problem of politics in constitutional construction. Assuming that what appears to be a judicial debate about the propriety of the imposition of ‘political’ judicial solutions to particular problems is instead, a struggle over the application of a general principle of deference, a margin of appreciation, to state action, the article considers the development of the doctrine of margin of appreciation in Europe. It ends by recasting two American Supreme Court cases, Bowers v. Hardwick and Romer v. Evans, in margin of appreciation terms, provides a more principled basis for understanding the weaknesses of the former and the strengths of the latter.
“Measuring the Penetration of Outsider Scholarship in the Courts: Indifference, Hostility, Engagement,” 33 U.C. Davis Law Review 1173–1226 (2000).
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Abstract: In this essay I test the theory that current legal scholarship, and especially the “outsider” scholarship of people of color, is either shunned or demonized in the courts. I look at the reception of outsider scholarship in the courts because courts, along with legislatures, are the two formal institutional vehicles for “altering the existing legal landscape,” in the United States. The article first examines the ways in which state and federal courts have cited a representative number of legal academics who are said to epitomize major strands of critical legal studies, minority and feminist scholarship being produced in many law schools today. The initial focus is on rates and quality of citation. This examination revealed that most of the work, though valued by law school academics, is virtually ignored by judges. To the extent that the work is not ignored, it tended to be used as examples of threats to the legal order or as irrelevant. The article then examines the reasons courts have failed to use this body of scholarship in a more positive manner, and suggests some of the ways in which the scholars themselves bear some responsibility for judicial indifference to their work.
“Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture,” 20 Boston College Third World Law Journal 291-343 (2000).
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Abstract: My purpose in this paper is to explore the nature and process of norm making within culture as it is expressed through what we identify as “law.” I do so by focusing both on law as an expression of cultural standards/models/patterns regarded as mandatory, both large and small, and on courts as a place from which these standards are articulated. My object is twofold. First, I mean to interrogate the commonplace notion that law is something that “acts on” culture–that law disciplines culture. Second, I posit that, contrary to a most cherished delusion especially among so-called progressives, neither our common-law nor our courts nor our legislatures can serve as the engines producing any sort of coercive law which can transform these standards/models/patterns. I begin by discussing the role of courts as the institution which identifies and memorializes norms in the form of law. The primary functions of courts are to identify cultural practice and then to memorialize that practice as law. Juridical expressions of law are essentially descriptive; their pronouncements cannot, of themselves, coerce cultural practices. As such, law is an enterprise of affirmation. Courts are the great vehicle for the performance of cultural aesthetics on a perpetually grand scale. I then explore the identification-memorialization process in two contexts. The first context is that of the European Court of Human Rights’ margin of appreciation jurisprudence and the second is that of the construction of general principles of community law by the European Court of Justice. Identification-memorialization engages the courts in the process of cultural production to the extent that courts speak or provide a site for the articulation of the authoritative.
The culturally evocative voices which a court uses to speak are then explored. These voices – the Homeric, Delphic and Jobian cacophony – describe the complex and dynamic interactions between law, courts and culture. As such, courts function as a discordant and polyphonic cultural choir. From out of this choir will come articulations, more or less authoritative, more or less temporary, and more or less clear, of the cultural reality in the form of rules and consequences for breaking taboos. Courts also and simultaneously serve as a site for the contestation of authority in voice. To the victor of these struggles belongs a greater authority to convincingly pronounce those standards/patterns/models of the normal which may be enforced by the countless disciplines marshaled by society for that purpose. I end by suggesting some complexity to the simple aesthetics of norm and authority I describe. Complexity and ambiguity follow from our understanding that courts may speak simultaneously in multiple voices. Neither society nor “law” provides an unimpeachable arbiter of these voices. Society can never know for sure which voice speaks “truth,” even momentary “truth.” The last level of complexity I suggest is that culture must be understood in the plural, even when the institutions of cultural production are conceived in the singular. The culture with respect to which courts engage share space with multiple competing cultures. The struggle over the authority of one culture to speak for the others through the institutions of formalized power with competence of the geography shared by multiple cultures suggests a complex and dynamic interaction which in turn affects the quality of the authority of courts to speak.
“Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America and European Alternatives,” 36 Tulsa Law Journal 117-151 (2000).
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Abstract: American Constitutional jurisprudence has entered a period of decadence. The characteristics of this decadence is much in evidence in the constitutional jurisprudence of the American Supreme Court: judicial arbitrariness, the use of interpretive doctrine as an end rather than a means, disregard of existing interpretive doctrine and hyperdistinction of fact, doctrine as a smokescreen for personal preference, and an inclination to permit the juridification of everyday life. Indeed, these characteristics of decadence are made worse by a bloated and ill-defined catalogue of interpretive doctrine that veils all distortion of constitutional principle in the service of personal politics. Here is a jurisprudence in decline, increasingly noted more for arbitrariness than principle. In this context it is worth inquiring whether there might be a suggestion for improvement in the juristic traditions of <European or supra-national constitutional systems- This article examines the latest example the modern phenomenon of jurisprudential decline through an analysis of two First Amendment cases decided during the American Supreme Court’s 1999-2000 term. It then looks to the French and German systems of constitutional review, and the jurisprudence of the European Court of Human Rights to determine whether other systems provide translatable lessons for a more effective and democratically based supervision of the interpretive function of the American Supreme Court. The article suggests that in the absence of regularization and restraint, the American system of constitutional jurisprudence (like that of any other system relying on judicial interpretation unmoored to theory or custom) will collapse of its own weight and aggregate contradiction. Alternatively, unmoored complexity raises the possibility that such a system will be abandoned because, having become so engorged in detail, point and counterpoint, thrust and counter thrust, rule and exception, it will prove useless to all but the theoretician and the pedant.
“Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation,” 8 Tulsa Journal of Comparative & International Law 87 (2000).
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Abstract: In this essay I suggest that The Irish and American Republics do themselves a great injustice to concentrate on their declarations of principles to the exclusion of the social and political covenants that they have created as the foundation stones on which they have built our democratic, humane, and tolerant societies. Yet, documents like the American Declaration of Independence and the Easter Proclamation of 1916 tend to get all the attention. The celebrations of the American 1789 Constitution or the Irish 1937 Constitution remain mooted indeed. I believe there should be less celebration of declarations of independence and more celebrations of the constitutional norms that represent the rich fruit of those declarations. In truth, we must celebrate our great good fortune that those who were charged with the construction of our political structures chose wisely among the political options that each declaration permitted. The essay explores the reasons why both the American Declaration of Independence and the Easter Proclamation have been used as a sword and shroud by those brothers and countrymen who would invoke their principles to support absolutely contrary positions.