25 November 2005

Posner's Foreword and the 'protective coloration' of nonconstitutional jurisdiction

Just a quick thought on the Posner Foreword (see below) and its relevance to European practice. I was struck by this passage on the Supreme Court's handling of nonconstitutional cases:

(...)The Justices would be reluctant to relinquish their nonconstitutional jurisdiction. (...) Nonconstitutional cases provide protective coloration. Not because there aren't plenty of indeterminate statutory cases, especially in the sample that reaches the Supreme Court, but because no one doubts that a court is "doing law" when it is deciding statutory cases. Since the style of the Court's constitutional opinions is similar to that of its statutory opinions, the impression is created that even when deciding constitutional cases the Justices are doing law, and hence that the Supreme Court really is just another court, doing what normal courts do. Thus, paradoxically, the Court's agressiveness in constitutional decisionmaking retards the emergence of the dual system found in so many other countries.

Think of this statement in relation to the ECJ. As authors such as professor Lasser have shown, the ECJ escalates even its most mundane technical cases to decisions of great constitutional importance. There are few areas of its jurisdiction in which the ECJ has not frequently referred to large overarching themes of European integration and the construction of a European legal order, even in cases of seemingly minor direct constitutional importance. This seems diametrically opposed to the 'protective colloration' thesis described here by Posner.

Another main theme of the Foreword is the Supreme Court's use of foreign legal materials. I refer to Roger Alford's analysis here of the discussion on this topic in the Foreword and in three other important articles in the same issue of the Harvard Law Review.

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