The Judicial Bookshelf

A persistent reality of constitutional government in the United States from practically the beginning of the Republic has been the close link between the Constitution itself and the Supreme Court. Oddly, this link derives more from the Constitution's impact on the American political system than from what the Constitution itself actually says or contains. True, Article III included cases “arising under this Constitution” in describing the proper reach of the federal judicial power, and Article VI specified that “[t]his Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land … ” ¹ But the document not only provided scant means for enforcing that supremacy, but also failed even to specify how this “supreme Law” should be interpreted. It soon became clear, however that the task of interpretation would fall upon the Supreme Court, as illustrated by Chisholm v. Georgia. ² In the face of assurances made by Alexander Hamilton, James Madison, John Marshall, and others during the ratification debates in 1787–1788 that a state could not, without its consent, be made a defendant in the federal courts by a citizen of another state, ³ the Justices in 1793 construed the language in Article III conferring the federal judicial power in suits “Between a State and Citizens of another State” to encompass a suit brought by a South Carolinian against the State of Georgia. The uproar that ensued prompted swift ratification of the Eleventh Amendment, which reversed the Court's first excursion into the realm of constitutional interpretation. Despite this rebuke, it was only a short time before Chief Justice Marshall insisted that the judicial power encompassed the authority “to say what the law is.” ⁴ Thus, from the assumed role of expounding of the Constitution evolved the companion duty of guarding it as well.     

The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation

We offer a theory about public policy adoption that depicts a game between state supreme courts and state policymakers. We hypothesize that court ideological hostility or friendliness operates to discourage or encourage policy enactment, with the likelihood of subsequent court intervention magnifying the relationship. To test the argument we examine the influence of court ideology on the enactment of state abortion and death penalty laws since the 1970s. Empirical analyses provide strong support for our theory, indicating that court ideological hostility or friendliness significantly influenced state abortion and death penalty policy enactments. In addition, the likelihood of court intervention conditioned this relationship, with the most pronounced effect occurring where subsequent court review was mandatory. The findings reveal courts exert important preemptive influence on law without hearing a case. This facet of judicial influence expands the traditional view of actors involved in the policymaking process.     

国民政府时期四川县级司法人事制度改革研究

国民政府时期,最高司法行政当局力图对县级司法人事制度进行改革,并在此基础上推动县法院的普及.四川各县司法机构在省高院的部署下实施了改革.在人事任命上,提高了任职资格,采用新标准对既有人员进行甄别审定,采用考核录用的办法吸收新增人员,对未达标者进行培训,并建立一套常规考核办法.虽然经过努力改革目的部分得到实现,但效果并不尽如人意.有许多因素阻碍改革的顺利进行,如改革计划不切实际,合格的司法人员短缺,人员质量和数量的矛盾未能妥善解决等等,使得县司法处和县法院的建立一再拖延.另外,制度之间的冲突、围绕人事权力的争斗也消减了执行的力度.在监督方面,虽然最高司法当局规定了巡查制度和常规监督管理制度,但地方以种种应付手段使监督多流于形式.     

Property and morality: women in the communal courts of late Ottoman Greece

Abstract

Women in Ottoman Greece were present in a number of different courts of law, one being the so-called communal courts. These courts became increasingly important towards the end of the Ottoman period, especially in areas where there was little if any Muslim population, and they dealt with a great variety of cases ranging from property disputes to rape and crimes of morality. Women were very active in such courts, both as accusers and as accused, showing remarkable knowledge of the manner in which such courts functioned. They frequently chose to pursue cases in them, in part because communal courts were supportive of individuals in difficult circumstances such as widows, who form the bulk of the female petitioners. This was an outcome of the nature of these courts which were composed of the same individuals who exercised executive powers over their communities and who thus wanted to ensure tranquillity and the prosperity of their people. For that reason notables appear almost unconcerned with the stipulations of customary law in several of their judgments, seeking instead to achieve compromises, or what we could term the greater social good. Being local, easily accessible, and familiar to the members of each community, communal courts were attractive to women and men in the years leading to the emergence of the modern Greek state, forming one tier of the complex Ottoman 'system' of conflict resolution.     

The Judicial Bookshelf

Some may be surprised to realize that nearly a half century has lapsed since publication of The American Supreme Court by Robert G. McCloskey. ¹ One reviewer praised the book as “unique,” one that could be read “profitably by layman, student, lawyer, and constitutional lawyer.” ² Readers familiar with that compact volume will recall the antinomy that the author put forward as the defining theme of American constitutional history: the tension between fundamental law and popular sovereignty. The latter suggests will and the former restraint. The antinomy is reflected in the founding documents of the Republic. The Declaration of Independence trumpets “inalienable rights” in the same paragraph that it emphasizes “government by the consent of the governed.” The Constitution, “ordain[ed] and establish[ed]” by “We the people,” insisted in Article VI that it “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This conflict between equally valid principles lies at the heart of judicial review in the federal courts, where appointed and politically unaccountable judges sit in judgment on the actions of the politically accountable representatives of the people. In McCloskey's view, one principle “conjures up the vision of an active, positive state; the other emphasizes the negative, restrictive side of the political problem.” ³ Opposites though these principles are, Professor McCloskey emphasized that Americans have managed to cling simultaneously to both. “But like most successes in politics and elsewhere, this one had a price. The failure to resolve the conflict between popular sovereignty and fundamental law perhaps saved the latter principle, but by the same token it left the former intact. And this meant that fundamental law could be enforced only within delicately defined boundaries, that constitutional law, though not simply the creature of the popular will, nevertheless had always to reckon with it, that the mandates of the Supreme Court must be shaped with an eye not only to legal right and wrong, but with an eye to what popular opinion would tolerate.” ⁴     

The Wapentake Courts of The Honour of Pontefract, 1427–1877

Wapentake courts continued to play an important role in the administration of the West Riding throughout the early-modern period and for much of the nineteenth century. This can be demonstrated from the surviving court records of the six wapentake courts of the honour of Pontefract. These show that wapentake courts, acting as sheriff's tourns, performed a central function in early-modern local administration. All the township officers within their jurisdictions, including constables, sworn men (bye-law men) and pinders, were sworn into office at sittings of these courts. The roles of these different township officers are made clear. These courts and the seigneurial courts with jurisdiction over civil suits were inter-dependant, as were the wapentake courts and the courts of quarter sessions. Evolutionary changes in the sittings and functions of these courts are described. The wapentake courts were undermined by nineteenth century reforms of policing and to courts for debt litigation, which eventually led to the final abandonment of these courts despite local support for their continuation.     

Exotica in Context: Reconfiguring Prestige,Power and Wealth in the Southern African Iron Age

Prestige goods, in various combinations and permutations, feature prominently in anthropological and archaeological templates of the emergence of social inequality and early state formation in premodern societies. In Africa, discussion of the contribution of prestige goods to the evolution of cultural behaviours such as class distinction and statehood has been conducted primarily through theoretical lenses that allocate significant weight to the proceeds of external long distance trade. The major outcome is that archaeologists have rarely paused to evaluate not just the definition of prestige goods but also the congruity between global ‘universals’ and African ‘particularities’. Using empirical evidence from the southern African historical and archaeological records, this paper seeks to evaluate the concept of prestige goods and to assess their contribution to the evolution of Iron Age (AD 200–1900) communities of different time periods, from locally centred positions. It reveals that the distribution, use and deposition of exotic imports in southern Africa is not compatible with the pattern suggested by the prestige goods model, and points towards their valuation as embedded within situational contexts of meaning. In fact, hinterland elites controlled neither the source nor the distribution of exotic goods from producer regions, making them a volatile source of power and prestige. While local elites used exotic imports when available, and imposed taxes on their citizens—payable in both local and external goods—land, cattle, religion and individual entrepreneurship were far more predictable and stable sources of prestige, wealth and power. This provides the basis for reassessing the development of complexity in the region and potentially contributes towards global debates on the impact of long-distance trade in the development of complex states.     

Valuing Reputation and Prestige: Canadian Foreign Policy and the International Criminal Court

How do we explain the behavior of states when they appear to be engaged in normative international actions that carry some cost in terms of their material interests? This essay examines the relevance of reputation and prestige for Canadian foreign policy and, in particular, the role of these concepts in relation to Canada's leadership over the creation of the International Criminal Court (ICC). It argues that Canadians and Canadian policymakers care about their country's international reputation and are motivated by the desire to gain prestige. Ottawa's decision to support enthusiastically the creation of an international criminal court demonstrates how the interaction of the Canadian self-identity as a good international citizen and the desire to be recognized as such translates into foreign policy.     

Chile 1997-1998: The Revenge of Incomplete Democratization

The author seeks to analyse the repercussions and consequences of the Pinochet affair for Chilean domestic politics. He explains how the legacy of seventeen years of authoritarian rule has shaped the deep divisions within Chilean society regarding the prosecution of the Chilean former dictator in the London courts. Chile is an incomplete democracy and Pinochetism is very much alive in Chile today.
The author is very critical of the role played by the current Chilean government and political class, for their behaviour during the affair. In granting a special mission to the General which gave him immunity and later supported his legal case after initial hesitation, the government has shown confusion that has not advanced the case for full democratization and justice in Chile. The ambiguous behaviour of the political class during the episode has discredited its prestige in the eyes of public opinion. Chilean society, according to the author, has missed an opportunity to advance justice and the dignity of the country.     

Beyond “unwinding”: Constitutional review strategies in consociations

This article contributes to the emerging literature on the role of constitutional courts in consociational democracies. While most works have approached the topic from the perspective of regime dynamics, this analysis focuses on how courts relate to the constitutions they are mandated to enforce. Beyond addressing the empirical question of what choices courts make in their balancing between universal values and stability, this article also investigates how courts do this balancing. Through the analysis of seven cases from two consociations, Bosnia and Herzegovina and Northern Ireland, I argue that courts embrace specific interpretive approaches (proportionality analysis, purposive interpretation, and the political question doctrine) to reconcile the ideas of constitutional supremacy and respect for political agreements. The analysis also demonstrates how—by their nature political—framework agreements establishing consociational settlements become primary reference points for interpreting constitutional documents.     

Supreme emergencies and the protection of non-combatants in war

Is it ever justifiable to target non‐combatants deliberately? This article assesses Michael Walzer's claim that the deliberate targeting of non‐combatants may be justifiable during ‘supreme emergencies’, a view that has received some support but that has elicited little debate. It argues that the supreme emergencies exception to the prohibition on targeting non‐combatants is problematic for at least four reasons. First, its utilitarianism contradicts Walzer's wider ethics of war based on a conception of human rights. Second, the exception may undermine the principle of non‐combatant immunity. Third, it is based on a historical fallacy. Finally, it is predicated on a strategic fallacy–the idea that killing noncombatants can win wars. The case for rejecting the exception, however, has been opposed by those who persuasively argue that it is wrong to tie leaders' hands when they confront supreme emergencies. The final part of the article addresses this question and suggests that the principle of proportionality may give political leaders room for manoeuvre in supreme emergencies without permitting them deliberately to target non‐combatants.     

试论魏玛"福利国家"的早期实践(1918-1920)

一战结束后,德国社会遭遇了政治、经济与社会的多重危机,政府权力亟待合法性认同,社会期稳定。魏玛政府力图把福利国家作为控制与解决危机的一种手段。1918-1920年间,魏玛的福利国家建设曾规范劳动市场、协调劳资关系、改革保险和救济政策、解决住房问题以及调整经济运作模式等方面掀起高潮从短时段看,这些实践活动确立了基本的福利国家原则,维护了政府权威,初步解决了战后德国的社会危机然而从长时段看,这一时期的福利实践存在许多问题,埋下了日后经济危机、社会危机乃至民主危机的隐患。     

The politics of the Shanghai courts: the state,local elites,and social networks in Nationalist China, 1927–1937

This article explores the ways in which the Nationalist Party established dominance over the Shanghai courts in the foreign concession area to use them as weapons against political dissidents, and it analyzes the intricate relations among the Nationalist Party, local elites, and the Shanghai courts during the Nanjing decade (1927–1937). Building on recent studies that pay attention to the limited success of the Nationalist Party’s policy of putting the judiciary under Party control, this study demonstrates that the process of establishing the Nationalist Party’s dominance over the Shanghai courts was highly contested. The interplay between the Nationalist Party’s effort to gain control over the Shanghai courts by building formal and informal institutions and the local elites’ appropriation of their own social networks rendered the Shanghai courts vulnerable not only to the Party’s intervention, but also to the influence of social forces. I argue that due to the weak authority of the Shanghai courts, the Nationalist Party’s use of law against political foes could be a double-edged sword.     

Beyond Bodies: Aspects of the Politicisation of Exchange in the South-West Highlands of Papua New Guinea

Different exchanges offer varying potential for transactors to gain prestige in Anganen, Southern Highlands (PNG). The central argument is that this variation — what I call politicisation — is in part linked with how bodies are variously appropriated as the premise upon which exchange is undertaken. The least prestigious for individual actors are collective prestations in which wealth acts as direct substitution for persons and their bodies. At the other extreme is ceremonial pork distribution where individual prestige is directly measurable in terms of a man's own endeavours. This event is ‘beyond bodies’ and centres the transactor as the sole, focal individual. In between lie warfare compensations where bodies still create debt, but the focus shifts from the female associated body such as the bride to male associated bodies as when allies compensate slain warriors' agnates. The second most prestigious event is ‘moka’ in which the ‘body’ is metaphorised in the Anganen names of its sequence together with aspects of performance. Here wealth does not substitute for the body but rather creates debt. These varying ‘body logics’ can be seen to lie at the heart of the politicisation in their interrelations with other indices of prestige such as individual autonomy or finance for provisioning. I conclude by suggesting the way bodies are variously appropriated may be a useful comparative base for Highlands political economies more generally.     

Review of Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie , the Judicial Power, and the Politics of Federal Courts in Twentieth-Century America

One of my strongest memories of law school remains the first class in “Federal Courts.” The teacher began by asking if anyone could explain the holding in Erie Railroad Co. v. Tompkins (1938).2 Several students raised their hands, and the answer was soon forthcoming. Federal courts were bound by the decisional rules of the state courts in the states in which theywere located; there is no federal common law. “Very good,” the teacher said. “If you know that, why are you taking this course?”     

Law and Famine: Learning from the Hunger Courts in South Sudan

Activists and scholars are seeking to end famine by promoting international legal accountability for starvation. This article deepens our understanding of the relationship between the politics of famine and law by observing the ongoing prevalence and power of legal norms and institutions during times of famine. It reveals the widespread use of hunger courts in famine-prone South Sudan and their role in legally enforcing social networks that provide for the most vulnerable. Based on analysis of country-wide survey data from 2018 and 2019, qualitative interviews from 2019‒22 and in-depth ethnographic observations of hunger courts in one chiefdom in South Sudan during a period of famine-level hunger in 2018 and 2019, the article argues that hunger courts have played a key role in enforcing social networks. These courts have also supported continuity of chiefs’ authority despite crisis. The article concludes by addressing two issues: whether law is necessarily emancipatory in times of famine, and whether legal norms have shifted responsibility for hunger away from the political economies and conflicts that cause famine, instead placing blame and shame on the families of the most vulnerable.     

Practical and prestige technologies: The evolution of material systems

Design theory provides a useful means for analyzing both practical and prestige technologies, although the goals and constraints of each are very different. The aggrandizer model of prestige technology postulates that prestige items were essential elements in aggrandizer strategies and that prestige items emerged only under conditions of sustainable food surpluses and included the most important innovations of the last 30,000 years such as metal working, pottery, sophisticated art, and domesticated plants and animals. The aggrandizer model also accounts for the transformation of some prestige technologies into practical technologies.     

Judicial Intervention and Local Spending

This study develops a methodology for examining the impact of court orders on local budgets and applies it to one of the most important areas of judicial involvement-local jails. During the 1980s an increasing number of local jails came under court order due to overcrowded facilities. In many counties this has been matched by equally rapid growth in jail capacity and expenditures. Based on simple comparisons of these trends and case studies of individual counties, previous research on court intervention has concluded that the courts have forced reluctant local governments to increase expenditures on corrections. However, past research on judicial intervention may be misleading because of inadequate controls for other factors that may affect both jail capacity and spending. We examine the determinants of jail spending for a national sample of jails in the mid-1980s. Our results indicate that court orders influence capacity expansion (their impact on current expenditures is less clear); however, other jail and demand factors may have a stronger effect. Contrary to conventional wisdom, our findings suggest that many jurisdictions, given adequate fiscal resources, budget for jail expansion when they need its not when forced by the courts to act.     

The Judicial Bookshelf

Americans were reminded last January 20, as they are every four years, of the central moment at the Inauguration: the swearing in of the president. In this republican rite, the new or continuing chief executive publicly subordinates himself to the fundamental law of the land. As the Constitution dictates, "[b]efore he enters on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" ¹ Justices of the Supreme Court, other federal judges, legislators and officials, as well as state officeholders, likewise govern only upon making a similar pledge. "Senators and Representatives … , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." ² And for added emphasis, protection, and insurance, the Constitution crowns itself, national statutes, and treaties as "the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." ³ Parallel drama unfolds in other venues too. In the half century since all nominees to the Supreme Court have routinely appeared before the Senate Judiciary Committee, it would be difficult to find an example of a would-be Justice who, through one combination of words or another, did not promise senators that she or he would faithfully interpret and apply the Constitution.     

The atomic meal: The cold war and irradiated foods, 1945–1963

Following World War II, food technologists in the US participated in an Army‐led program to develop food irradiation technology. The program involved over 120 military, government, industrial, and academic institutions. Focusing on the MIT Department of Food Technology, I trace the networks that formed between these groups and their motivations for developing the technology. I argue that food irradiation was Cold War science directed towards the development of a consumer product, and that it highlighted the links between large‐scale military‐funded research and consumers' everyday lives. I suggest that researchers advocated for irradiation not because the technology produced better processed food, but because the development of the technology produced a number of valuable benefits for the researchers. These included increases in funding, materials, and prestige.