The Many Tongues of the King: Indigenous Language Interpreters and the Making of the Spanish Empire

General language interpreters of Lima's High Court of Appeal (Audiencia) played a significant part in gaining access to the Spanish system of justice for the indigenous populations of Peru. These interpreters worked as translators in lawsuits, notarial transactions, and other legal and administrative procedures conducted or supervised by the viceroy, the justices of the Audiencia, the public defender of the Indians, and other officials stationed at the viceregal court. But they also served as legal agents and solicitors for native leaders and communities litigating in Lima or aspiring to take their cases to the Supreme Council of the Indies in Spain. Through formal and informal dealings, these interpreters brokered between the king and his native subjects, thus connecting indigenous groups with the Habsburg royal court. The careers of these official translators illustrate the crucial roles played by indigenous subjects in the formation of what can be termed the ‘Spanish legal Atlantic,’ an organic network of litigants, judges, lawyers, attorneys, and documents bridging courtrooms on both shores of the ocean.     

Swift and Erie: The Trials of an Ephemeral Landmark Case

Like jazz improvisation, the meaning of Swift v. Tyson was elusive. ¹ Justice Joseph Story's 1842 opinion concerning an important commercial‐law issue arose from a jury trial. ² When the creditor plaintiff appealed, counsel for the winning debtor raised as a defense Section 34 of the 1789 Judiciary Act. The federal circuit court disagreed about the standing of commercial law under Section 34. Although profound conflicts otherwise divided nationalist and states'‐rights proponents, the Supreme Court endorsed Story's commercial‐law opinion unanimously. ³ New members of the Court and the increasing number of federal lower‐court judges steadily transformed the Swift doctrine; after the Civil War it agitated the federal judiciary, elite lawyers, and Congress. ⁴ Asserting contrary tenets of American constitutionalism, the Supreme Court overturned the ninety‐six‐year‐old precedent in Erie Railroad v. Tompkins (1938). ⁵ The Swift doctrine's resonance with changing times was forgotten. The Court and the legal profession established, transformed, and abandoned the doctrine though an adversarial process and judicial instrumentalism. Although the policy of each decision reflected its time, Story's opinion was more consistent with the federalism of the early Constitution than was Erie. ⁶     

JURY DECISION MAKING MODELS AND THE SUPREME COURT: THE JURY CASES FROM WILLIAMS v. FLORIDA TO BALLEW v. GEORGIA*

This article analyzes recent U.S. Supreme Court decisions in cases relating to the size and unanimity of juries as an example of the use (and abuse) of social science by the Court in the realm of policy analysis. The four cases reviewed “cast an unflattering light on the U.S. Supreme Court's ability to integrate social science findings into public law.”     

The politics of the public and private spheres: the High Court’s decision in Monis and the gendered privileging of free speech

The High Court of Australia’s decision in Monis v The Queen and Droudis v The Queen concerned whether Monis and Droudis’s use of the postal service to send offensive letters warranted the constitutional protection of the implied freedom of political communication. The outcome was a split decision: the three men judges found for Monis and Droudis, and the three women judges against. We argue that this decision was significant because it draws attention to the law’s key role in framing political understandings of the nature of and demarcation between public and private spheres. The Court’s interpretations concerning how we should understand and apply the foundational relationships binding the state, the individual, and the public and private spheres in the twenty-first century highlights the gendered complexities of the politics shaping those relationships. It also highlights the gendered privileging of what sort of speech should be exempted from the law’s immediate purview, and in so doing, further reveals the masculinism upon which Australia’s constitutional framework rests.     

The Case of William Dick: Ransom County, North Dakota

In May 2009, a decision of the United States Supreme Court with North Dakota roots turned fifty years old. A case unique in the annals of the law, Dick v. New York Life Insurance Company ¹ still fascinates lawyers today. Factually, the case presented a strange question: could an experienced hunter accidentally shoot himself not once, but twice? Some of North Dakota's finest lawyers, including Philip Vogel, Donald Holand, and Norman Tenneson, aimed to get to the bottom of that matter. The judges were equally impressive: Judge Ronald Davies of the federal district court; Judge John Sanborn of the U.S. Court of Appeals for the Eighth Circuit; and Chief Justice Earl Warren and Justice Felix Frankfurter. Finally, as a matter of Supreme Court jurisprudence, Dick may have been the last time the High Court granted a petition for certiorari in a case that turned almost exclusively on questions of fact. In honor of its golden anniversary, this article recounts the captivating story of Dick v. New York Life.     

Democracy in Justice Kennedy's America: Reading Obergefell with Tocqueville

Justice Anthony Kennedy cites Alexis de Tocqueville in support of the majority opinion in Obergefell v. Hodges. But Kennedy's citation leaves much out of Tocqueville's original text. Looking at what Kennedy erases in his quotation of Tocqueville indicates some of the broader cultural and historic erasures that are present in the Obergefell decision (and in the Supreme Court's latter-day treatment of marriage and the family in general). Standing Obergefell next to Tocqueville yields suggestive possibilities for evaluating the evolution of recent Supreme Court jurisprudence—and recent American political thought, more generally speaking—on questions of marriage and family. Specifically, reading Obergefell with Tocqueville reveals the intellectual and political weakness of the contemporary Supreme Court.     

BAKKE, WEBER, AND RACE IN EMPLOYMENT: ANALYSIS OF INFORMED OPINION

The article reports research on informed opinion as to linkage between Bakke and the discretionary use of race in private employment practice. Of particular concern is the legal parallel between the 1964 Civil Rights Act, Title 6 as applied in Bakke and Title 7 as it relates to Kaiser Aluminum v. Weber and to other employment cases. The principal research entailed Q-methodology, a technique allowing respondents to produce and present a structured attitude (mind set) with regard to an issue or controversy. Focus of the study was upon 1) respondent values or norms as to race in employment; 2) opinions as to the impact of Bakke upon race in employment; and 3) perceptions of Bakke as portent of things to come. Responses were made in the Fall of 1978. Respondents were from groups indicating interest in Bakke, together with university teachers in relevant fields. Factor analysis of responses revealed three principal attitudes. One attitude (Factor I) strongly affirms race-conscious affirmative action, including quotas, sharply condemned the Supreme Court for abrogating (in Bakke) its responsibility for protecting minority rights, and saw Bakke as a portent of unwelcome things. Factor II condemns any consideration of race in programs of admission or employment, predicted some beneficial legacy of Bakke, but was most critical of its deference to racial considerations. Factor III is pragmatic and was supportive of the Supreme Court Bakke decision, from which it projected beneficial consequences. Factor III accepts the discretionary use of race while rejecting quotas. Survey research conducted by others reveals that a public majority holds opinions most congruent with Factor III. In the employment area specifically, a majority rejects quotas but endorses minority training programs. The 1979 Weber decision gives a limited sanction to voluntary quotas, but does not exceed the range of tolerance set by a public permissive in this particular policy area.     

John J. Parker and the Beginning of the Modern Confirmation Process

Ideological concerns' dominance of the Supreme Court confirmation process has certainly become routine, especially in the form of issue-driven interest groups' influence over the agenda for Senate debates. More significantly, the Senate normally focuses on what Laurence Tribe has called “the net impact of adding [a] candidate to the Court” ¹ in terms of steering the Court toward adherence to a particular judicial philosophy, such as originalism ² or pragmatism, ³ or toward a specific outlook on a given constitutional issue. And when the President nominates someone with prior judicial experience, the candidate's decisions, as well as his or her prior speeches or other public activities, become fair game as supposed indications of his or her fitness for service on the Court.     

Trumping foreign policy: public diplomacy,framing, and public opinion among middle power publics

Even as the world’s sole superpower, the United States requires the cooperation of other states to achieve many of its foreign policy objectives. The President of the United States thus often serves as ‘Diplomat in Chief’ in public diplomacy efforts to appeal directly to publics abroad. Given Donald Trump’s antagonistic approach to foreign relations and widespread lack of popularity, what are the implications for support for US policy among publics abroad – particularly among middle power states allied to the US? While previous research on public opinion relying on observational data has found that confidence in the US President is linked to support for American foreign policy goals, the mechanisms at work remain unclear. Using original data from survey-based experiments conducted in Canada and Australia, this article seeks to clarify the effect of ‘presidential framing’ (presenting a policy goal as endorsed or not endorsed by Trump) on attitudes toward key policy issues in the Canada–US and Australia–US relationships. Results point to a negative ‘Trump framing’ effect in Canadians’ and Australians’ trade policy attitudes, but such an effect is not observed in other policy domains (energy policy in Canada, and refugee policy in Australia).     

Canada’s Supply Management System and the Dairy Industry in the Era of Trade Liberalization: A Cultural Commodity?

ABSTRACT

Canada’s dairy farmers have spent the last 40 years fighting to preserve their supply management system despite increases in the desire to liberalize trade through the expansion of regional free trade agreements and the targeting of agriculture in recent rounds of the General Agreement on Tariffs and Trade (GATT). How has Canada’s supply management system resisted trade liberalization thus far? Moreover, what strategies have Canadian dairy farmers used to lobby the government to preserve this system? The answer to these questions lay within the intersection of culture and economics. Canadian dairy farmers have been successful in framing Canadian dairy as a distinctly Canadian cultural commodity, and therefore framing supply management as the economic tool needed to defend this cultural commodity. In exploring this topic, this article will touch on Canada’s history of preserving cultural institutions, as well as the historical importance of Canada’s supply management system.     

From Normative Debates to Comparative Methodology: The Three Waves of Post-Charter Supreme Court Scholarship in Canada

This article surveys the literature on the Supreme Court of Canada following the 1982 introduction of the Canadian Charter of Rights and Freedoms, and argues it has taken place in three distinct “waves.” The first involved tentative, prospective, and normative arguments about the impact of the Charter on national unity and Canada’s political institutions. The second was characterized by the legitimacy debate, the dialogue debate, and qualitative examination of how other political actors responded to Supreme Court decisions. By contrast, the third wave, initiated by American scholars drawing from American research, has been less normative, more comparative, and methodologically rigorous. While this comparative shift has been beneficial, the retreat from normative questions contributes to a misplaced sense that important debates are now settled. We urge scholars to engage in intellectual cross-fertilization by drawing from third-wave contributions to address normative questions about the Supreme Court’s increasingly important role in Canadian politics.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

Who identifies with the “Russian World”? Geopolitical attitudes in southeastern Ukraine,Crimea, Abkhazia,South Ossetia,and Transnistria

Abstract

The concept of the Russian world (Russkii mir) re-entered geopolitical discourse after the end of the Soviet Union. Though it has long historical roots, the practical definition and geopolitical framing of the term has been debated and refined in Russian political and cultural circles during the years of the Putin presidency. Having both linguistic-cultural and geopolitical meanings, the concept of the Russian world remains controversial, and outside Russia it is often associated with Russian foreign policy actions. Examination of official texts from Vladimir Putin and articles from three Russian newspapers indicate complicated and multifaceted views of the significance and usage of the Russkii mir concept. Surveys in December 2014 in five sites on the fringes of Russia – in southeastern Ukraine, Crimea, and three Russian-supported de facto states (Abkhazia, South Ossetia, and Transnistria) – show significant differences between the Ukrainian sample points and the other locations about whether respondents believe that they live in the Russian world. In Ukraine, nationality (Russian vs. Ukrainian) is aligned with the answers, while overall, attitudes toward Russian foreign policy, level of trust in the Russian president, trust of Vladimir Putin, and liking Russians are positively related to beliefs about living in the Russian world. In Ukraine, the negative reactions to geopolitical speech acts and suspicions about Russian government actions overlap with and confuse historical linguistic-cultural linkages with Russia, but in the other settings, close security and economic ties reinforce a sense of being in the Russian “world.”     

The Odd Compartmentalization: Public Opinion,Aggregate Data,and Policy Analysis*

This article examines some of the assumptions that underlie the use of aggregate data for policy analysis, In particular, it explores the consequences of the assumption of antagonistic attitudes between “haves” and “have nots” on social welfare policies. Use of public opinion data demonstrates the low salience of regressiveness of taxation and thereby calls into question the validity of a common indice in aggregate analysis. The use of this and related examples is intended to demonstrate the value of supplementing aggregate data analysis of public policy with direct evidence about public attitudes toward those policies.     

In Defense of “Public Reason”: Supreme Court Justice William Johnson

For those of us who gravitate toward rebels and upstarts, Supreme Court Justice William Johnson has uncommon appeal, if only because he was the first member of the federal Bench to kick up his heels in a sustained, effective, and deliberate way. In 1954, Johnson's only biographer, Donald Morgan, proclaimed him “the first dissenter,” ¹ a force for democratization in the style of Thomas Jefferson and Andrew Jackson, the man who persuaded Chief Justice John Marshall to compromise on the question of unitary opinions and institutionalize (if not applaud) publication of concurring or dissenting departures from the majority's official reasoning.     

The Canada-US Relationship: An Updated Evaluation of Public Opinion

ABSTRACT

Despite the political turbulence of the Trump-Trudeau era, the US-Canada relationship remains workable on many policy fronts. Against this backdrop, this article explores this relationship by first focusing on public opinion toward “the other,” including general sentiments as well as political leadership specifically, before turning to public opinion in specific policy fields, such as bilateral trade, security, energy, and diplomacy. We broadly find that Canadians are more likely than Americans to draw distinctions between Canada and the US and view the relationship in more cautious terms. By contrast, opinion in the US appears to be much more positive about the relationship.     

Clerking for Justice Souter

Adam Gopnik once observed that "Paris is a struggle between its pompous official culture and its matchless … commonplace civilization." The aphorism applies even more clearly to the Supreme Court. It is an institution cloaked in formality, from the ceremonies of First Monday to the grand generalities it invokes in its ruling. It is also an institution that takes itself extremely seriously, with its strongest opinions penned when it thinks another institution—Congress in passing Commerce Clause legislation or the Religious Freedom Restoration Act, the Florida supreme court during  Bush v. Gore —is treading on the Court's privileges. The Court's pompous officious culture contributes to the studied cynicism lawyers exhibit whenever they talk about judges.     

Justice Jackson and the Second Flag‐Salute Case: Reason and Passion in Opinion‐Writing

In 1943, the Supreme Court handed down West Virginia State Board of Education v. Barnette. ¹ With Justice Robert H. Jackson writing for the six‐Justice majority, the Court upheld the First Amendment right of Jehovah's Witnesses schoolchildren to refuse to salute the flag or recite the Pledge of Allegiance, state‐imposed obligations that the children and their parents contended were acts of idolatry that violated biblical commands. Judge Richard A. Posner has said that Justice Jackson's effort “may be the most eloquent majority opinion in the history of the Supreme Court.” ²     

The Judicial Bookshelf

Almost anyone who can read would describe the Supreme Court of the United States as a legal body–an institution that says what the law is in the context of deciding cases. May the Court also be fairly described as a political institution? Even to pose the question raises eyebrows, because Americans commonly use the word “political” to refer to partisan politics—that persistent struggle between organized groups called political parties to control public offices, public resources, and the nation’s destiny. In this sense of the word, the federal courts are expected today to be “above politics,” meaning that judges are supposed to refrain from publicly taking sides in elections, from otherwise jumping into the arena of electoral combat, 2 or from deciding cases based on the popularity of the litigants.3 While democratic theory anticipates that elected officials will answer to the people, the rule of law envisions something different: an abiding and even‐handed application by the judiciary of the Constitution and statutes shaped by the people and their representatives.     

Culture and Legal Policy Punctuation in the Supreme Court's Gender Discrimination Cases

For the most part, punctuated equilibrium scholarship has ignored the legal policy change generated by the Supreme Court. In this study, I address this gap though an examination of the Court's equal protection and gender cases from the 1970s. My case study here has two aims. First, I offer an adaptation of the jurisprudential regimes framework as a device for framing and identifying legal policy punctuations. After identifying Reed v. Reed (1971) as the cut point of such a regime, I then use Reed and its progeny to illustrate the promise of culture in explaining stasis and change, specifically focusing on the concepts of cultural cognition and cultural surprise.